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Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
or permanent. See ; ; Kwong Hai ; Yick 118 U. S. ; cf. Indeed, this Court has held that the Due Process *694 Clause protects an alien subject to a final order of deportation, see ng though the nature of that protection may vary depending upon status and circumstance, see ; at 0. In ng the Court held unconstitutional a statute that imposed a year of hard labor upon aliens subject to a final deportation order. That case concerned substantive protections for aliens who had been ordered removed, not procedural protections for aliens whose removability was being determined. Cf. post, at 704 (Scalia, J., dissenting). The Court held that punitive measures could not be imposed upon aliens ordered removed because "all persons within the territory of the United States are entitled to the protection" of the Constitution. 163 U. S., at (citing Yick at ); see also 201 And contrary to Justice Scalia's characterization, see post, at 703-705, in itself, both this Court's rejection of 's challenge to the procedures by which he was deemed excludable and its rejection of his challenge to continued detention rested upon a basic territorial distinction. See (holding that 's presence on Ellis Island was not "considered a landing" and did "not affec[t]" his legal or constitutional status (internal quotation marks omitted)). In light of this critical distinction between and the present cases, does not offer the Government significant support, and we need not consider the aliens' claim that subsequent developments have undermined `s legal authority. See Brief for Petitioner in No. 99-91, p. 23; Brief for Respondent in No. 00-38, pp. 16-17; Brief for Lawyers' Committee for Human Rights as Amicus Curiae in No. 00-38, pp. 15-20. Nor are we aware of any other authority that would support Justice Kennedy's limitation of *6 due process protection for removable aliens to freedom from detention that is arbitrary or capricious. See post, at 717 722 (dissenting opinion). The Government also looks for support to cases holding that Congress has "plenary power" to create immigration law, and that the Judicial Branch must defer to Executive and Legislative Branch decisionmaking in that area. Brief for Respondents in No. 99-91, at 17, 20 ). But that power is subject to important constitutional limitations. See 4 U. S. 919, ; The Chinese Exclusion Case, In these cases, we focus upon those limitations. In doing so, we nowhere deny the right of Congress to remove aliens, to subject them to supervision with conditions when released from detention, or to incarcerate them where appropriate for violations of those conditions. See (a)(3)
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Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
them where appropriate for violations of those conditions. See (a)(3) (1994 ed., Supp. V) (granting authority to Attorney General to prescribe regulations governing supervision of aliens not removed within 90 days); 1253 (imposing penalties for failure to comply with release conditions). The question before us is not one of "`confer[ring] on those admitted the right to remain against the national will' " or "`sufferance of aliens' " who should be removed. Post, at 703 (Scalia, J., dissenting) (emphasis deleted) (quoting -223 ). Rather, the issue we address is whether aliens that the Government finds itself unable to remove are to be condemned to an indefinite term of imprisonment within the United States. Nor do the cases before us require us to consider the political branches' authority to control entry into the United States. Hence we leave no "unprotected spot in the Nation's *696 armor." Kwong Hai Neither do we consider terrorism or other special circumstances where special arguments might be made for forms of preventive detention and for heightened deference to the judgments of the political branches with respect to matters of national security. The sole foreign policy consideration the Government mentions here is the concern lest courts interfere with "sensitive" repatriation negotiations. Brief for Respondents in No. 99-91, at 21. But neither the Government nor the dissents explain how a habeas court's efforts to determine the likelihood of repatriation, if handled with appropriate sensitivity, could make a significant difference in this respect. See infra, at 699-700. Finally, the Government argues that, whatever liberty interest the aliens possess, it is "greatly diminished" by their lack of a legal right to "liv[e] at large in this country." Brief for Respondents in No. 99-91, at 47; see also post, at 703 (Scalia, J., dissenting) (characterizing right at issue as "right to release into this country"). The choice, however, is not between imprisonment and the alien "living at large." Brief for Respondents in No. 99-91, at 47. It is between imprisonment and supervision under release conditions that may not be violated. See at 6 (citing 8 U. S. C. 1231(a)(3), 1253 (1994 ed., Supp. V)); 8 CFR 241.5 (2001) And, for the reasons we have set forth, we believe that an alien's liberty interest is, at the least, strong enough to raise a serious question as to whether, irrespective of the procedures used, cf. post, at 722-724 (Kennedy, J., dissenting), the Constitution permits detention that is indefinite and potentially permanent. B Despite this constitutional problem, if "Congress has made its intent" in the statute "clear, `we must give effect to that intent.' "
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
statute "clear, `we must give effect to that intent.' " (quoting Sinclair Refining (19)). *697 We cannot find here, however, any clear indication of congressional intent to grant the Attorney General the power to hold indefinitely in confinement an alien ordered removed. And that is so whether protecting the community from dangerous aliens is a primary or (as we believe) secondary statutory purpose. Cf. post, at 706, 708-709 (Kennedy, J., dissenting). After all, the provision is part of a statute that has as its basic purpose effectuating an alien's removal. Why should we assume that Congress saw the alien's dangerousness as unrelated to this purpose? The Government points to the statute's word "may." But while "may" suggests discretion, it does not necessarily suggest unlimited discretion. In that respect the word "may" is ambiguous. Indeed, if Congress had meant to authorize long-term detention of unremovable aliens, it certainly could have spoken in clearer terms. Cf. 8 U. S. C. 1537(b)(2)(C) (1994 ed., Supp. V) ("If no country is willing to receive" a terrorist alien ordered removed, "the Attorney General may, notwithstanding any other provision of law, retain the alien in custody" and must review the detention determination every six months). The Government points to similar related statutes that require detention of criminal aliens during removal proceedings and the removal period, and argues that these show that mandatory detention is the rule while discretionary release is the narrow exception. See Brief for Petitioners in No. 00-38, at 26-28 (citing (c), 1231(a)(2)). But the statute before us applies not only to terrorists and criminals, but also to ordinary visa violators, see ; and, more importantly, post-removal-period detention, unlike detention pending a determination of removability or during the subsequent 90-day removal period, has no obvious termination point. The Government also points to the statute's history. That history catalogs a series of changes, from an initial period when lower courts had interpreted statutory *698 silence, Immigration Act of 1917, ch. 29, 19, 20, 890, to mean that deportation-related detention must end within a reasonable time, ; United States ex rel. ; United States ex rel. 279 F. to a period (from the early 10's through the late 19's) when the statutes permitted, but did not require, postdeportation-order detention for up to six months, Immigration and Nationality Act of 12, 242(c), 66 Stat. 8 U. S. C. 1252(c), (d) (1982 ed.); to more recent statutes that have at times mandated and at other times permitted the post-deportation-order detention of aliens falling into certain categories such as aggravated felons, Anti-Drug Abuse Act of 1988, 7343(a), 8 U.
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
aggravated felons, Anti-Drug Abuse Act of 1988, 7343(a), 8 U. S. C. 1252(a)(2) ; Immigration Act of 1990, 504(a), -5050, 8 U. S. C. 1252(a)(2)(A), (B) (permitting release under certain circumstances); Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, 306(a)(4), 8 U. S. C. 1252(a)(2)(B) In early 1996, Congress explicitly expanded the group of aliens subject to mandatory detention, eliminating provisions that permitted release of criminal aliens who had at one time been lawfully admitted to the United States. Antiterrorism and Effective Death Penalty Act of 1996, 439(c), 110 Stat. 12. And later that year Congress enacted the present law, which liberalizes pre-existing law by shortening the removal period from six months to 90 days, mandates detention of certain criminal aliens during the removal proceedings and for the subsequent 90-day removal period, and adds the post-removal-period provision here at issue. Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Div. C, 303, 305, -585, 3009-598 to 3009-599; (c), 1231(a) (1994 ed., Supp. V). *699 We have found nothing in the history of these statutes that clearly demonstrates a congressional intent to authorize indefinite, perhaps permanent, detention. Consequently, interpreting the statute to avoid a serious constitutional threat, we conclude that, once removal is no longer reasonably foreseeable, continued detention is no longer authorized by statute. See 1 E. Coke, Institutes *70b ("Cessante ratione legis cessat ipse lex") (the rationale of a legal rule no longer being applicable, that rule itself no longer applies). IV The Government seems to argue that, even under our interpretation of the statute, a federal habeas court would have to accept the Government's view about whether the implicit statutory limitation is satisfied in a particular case, conducting little or no independent review of the matter. In our view, that is not so. Whether a set of particular circumstances amounts to detention within, or beyond, a period reasonably necessary to secure removal is determinative of whether the detention is, or is not, pursuant to statutory authority. The basic federal habeas corpus statute grants the federal courts authority to answer that question. See 28 U. S. C. 2241(c)(3) In doing so the courts carry out what this Court has described as the "historic purpose of the writ," namely, "to relieve detention by executive authorities without judicial trial." In answering that basic question, the habeas court must ask whether the detention in question exceeds a period reasonably necessary to secure removal. It should measure reasonableness primarily in terms of the statute's basic purpose, namely, assuring the alien's presence at the moment of removal. Thus, if removal is not reasonably
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
the moment of removal. Thus, if removal is not reasonably foreseeable, the court should hold continued detention unreasonable and no *700 longer authorized by statute. In that case, of course, the alien's release may and should be conditioned on any of the various forms of supervised release that are appropriate in the circumstances, and the alien may no doubt be returned to custody upon a violation of those conditions. See at 6 (citing 8 U. S. C. 1231(a)(3), 1253 (1994 ed., Supp. V); 8 CFR 241.5 (2001)). And if removal is reasonably foreseeable, the habeas court should consider the risk of the alien's committing further crimes as a factor potentially justifying confinement within that reasonable removal period. See We recognize, as the Government points out, that review must take appropriate account of the greater immigrationrelated expertise of the Executive Branch, of the serious administrative needs and concerns inherent in the necessarily extensive INS efforts to enforce this complex statute, and the Nation's need to "speak with one voice" in immigration matters. Brief for Respondents in No. 99-91, at 19. But we believe that courts can take appropriate account of such matters without abdicating their legal responsibility to review the lawfulness of an alien's continued detention. Ordinary principles of judicial review in this area recognize primary Executive Branch responsibility. They counsel judges to give expert agencies decisionmaking leeway in matters that invoke their expertise. See Pension Benefit Guaranty They recognize Executive Branch primacy in foreign policy matters. See Container Corp. of And they consequently require courts to listen with care when the Government's foreign policy judgments, including, for example, the status of repatriation negotiations, are at issue, and to grant the Government appropriate leeway when its judgments rest upon foreign policy expertise. We realize that recognizing this necessary Executive leeway will often call for difficult judgments. In order to limit *701 the occasions when courts will need to make them, we think it practically necessary to recognize some presumptively reasonable period of detention. We have adopted similar presumptions in other contexts to guide lower court determinations. See 379-3 (6) (adopting rule, based on definition of "petty offense" in United States Code, that right to jury trial extends to all cases in which sentence of six months or greater is imposed); County of (adopting presumption, based on lower court estimate of time needed to process arrestee, that 48-hour delay in probable-cause hearing after arrest is reasonable, hence constitutionally permissible). While an argument can be made for confining any presumption to 90 days, we doubt that when Congress shortened the removal period to
|
Justice Breyer
| 2,001 | 2 |
majority
|
Zadvydas v. Davis
|
https://www.courtlistener.com/opinion/1269289/zadvydas-v-davis/
|
we doubt that when Congress shortened the removal period to 90 days in 1996 it believed that all reasonably foreseeable removals could be accomplished in that time. We do have reason to believe, however, that Congress previously doubted the constitutionality of detention for more than six months. See Juris. Statement in United O. T. 16, No. 2, pp. 8-9. Consequently, for the sake of uniform administration in the federal courts, we recognize that period. After this 6month period, once the alien provides good reason to believe that there is no significant likelihood of removal in the reasonably foreseeable future, the Government must respond with evidence sufficient to rebut that showing. And for detention to remain reasonable, as the period of prior postremoval confinement grows, what counts as the "reasonably foreseeable future" conversely would have to shrink. This 6-month presumption, of course, does not mean that every alien not removed must be released after six months. To the contrary, an alien may be held in confinement until it has been determined that there is no significant likelihood of removal in the reasonably foreseeable future. *702 V The Fifth Circuit held Zadvydas' continued detention lawful as long as "good faith efforts to effectuate deportation continue" and Zadvydas failed to show that deportation will prove "impossible." 185 F. 3d, But this standard would seem to require an alien seeking release to show the absence of any prospect of removalno matter how unlikely or unforeseeablewhich demands more than our reading of the statute can bear. The Ninth Circuit held that the Government was required to release Ma from detention because there was no reasonable likelihood of his removal in the foreseeable future. But its conclusion may have rested solely upon the "absence" of an "extant or pending" repatriation agreement without giving due weight to the likelihood of successful future negotiations. See and n. 30. Consequently, we vacate the judgments below and remand both cases for further proceedings consistent with this opinion. It is so ordered.
|
Justice Thomas
| 2,016 | 1 |
concurring
|
Bravo-Fernandez v. United States
|
https://www.courtlistener.com/opinion/4325538/bravo-fernandez-v-united-states/
|
The question presented in this case is whether, under and v. United States, a vacated conviction can nullify the preclusive effect of an acquittal under the issue-preclusion prong of the Double Jeopardy Clause. As originally understood, the Double Jeopardy Clause does not have an issue-preclusion prong. “The English common-law pleas of auterfoits acquit and auterfoits con- vict, on which the Clause was based, barred only repeated ‘prosecution for the same identical act and crime.’ ” at 128 (Scalia, J., dissenting) (quoting 4 W. Blackstone, Commentaries on the Laws of England 330 (1769); em- phasis added by dissent); see also Grady v. Corbin, 495 U.S. 508, 530–535 (1990) (Scalia, J., dissenting). But “[i]n the Court departed from the original meaning of the Double Jeopardy Clause, holding that it precludes suc- cessive prosecutions on distinct crimes when facts essen- tial to conviction of the second crime have necessarily been resolved in the defendant’s favor by a verdict of ac- quittal of the first crime.” (Scalia, J., dissenting). In this Court erroneously and illogically extended See 557 U.S., –131. “ held only that 2 BRAVO-FERNANDEZ v. UNITED STATES THOMAS, J., concurring the Clause sometimes bars successive prosecution of facts found during ‘a prior proceeding.’ ” (quoting ). however, “bar[red] retrial on hung counts after what was not a prior proceeding but simply an earlier stage of the same proceeding.” 557 U.S., (Scalia, J., dissenting). In an appropriate case, we should reconsider the hold- ings of and Because the Court today prop- erly declines to extend those cases, and indeed reaches the correct result under the Clause’s original meaning, I join its opinion
|
Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
|
This presents the question whether certain rules of the New York Stock Exchange, promulgated as self-regulating measures pursuant to 6 of the Securities Exchange Act of 194, 15 U.S. C. 78f, and a broker's employee's pledge to abide by those rules, preempt avenues of wage relief otherwise available to the employee under state law. The California Court of Appeal answered this in the negative. Because of the significance of the question in the area of federal-state relations, we granted certiorari. I Respondent, David Ware, in July 1958 entered the employ of petitioner Merrill Lynch, Pierce, Fenner & Smith, Inc., a New York corporation, as a registered representative or "account executive" in the petitioner's San Francisco office. Ware worked there continuously until March 1969 when he voluntarily terminated that relationship and accepted a similar position in San Francisco with one of Merrill Lynch's competitors. Merrill Lynch is a broker-dealer in securities and is a member-corporation of the New York Stock Exchange. Since prior to 1958, the firm has had a noncontributory Profit-Sharing Plan for its employees in the United States. *120 Under the Plan an employee may have allocated to his account both vested and unvested units, as therein described. Article 11 of the Plan relates to "Forfeiture of Benefits" upon the happening of specified events. One such event is competitive activity: "11.1 A Participant who, in the determination of the Committee, voluntarily terminates his employment with the Corporation or provokes his termination and engages in an occupation which is, in the determination of the Committee, competitive with the Corporation, or any affiliate or subsidiary thereof, shall forfeit all rights to any benefits otherwise due or to become due from the Trust Fund with respect to units credited for fiscal years subsequent to the fiscal year ended December 0, 1960." The Committee referred to is provided for by the Plan's Art. 1. It has not less than five nor more than nine persons (not necessarily employees) appointed by Merrill Lynch and serving "at the pleasure of the Corporation." Article 1.2 states that the Committee "shall administer the Plan" and "shall determine any questions arising in the administration, interpretation and application of the Plan, which determination shall be conclusive and binding on all persons." At the time Ware terminated his employment with Merrill Lynch in March 1969, both vested and unvested units were allocated to his account. Upon his departure, the Committee, pursuant to Art. 11.1, determined that Ware, by entering competitive employment, had forfeited all rights to benefits due or to become due him under the Plan. In January 1970 Ware
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Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
|
become due him under the Plan. In January 1970 Ware filed this class action in California state court against Merrill Lynch and the members of the Committee. The class purported to consist of Ware and all other similarly situated former *121 Merrill Lynch employees in California. Declaratory relief was sought to the effect that Art. 11.1 was "unlawful and void under applicable California law," and that the defendants were obligated to pay all vested units credited from December 0, 1960, to the date of termination of employment. Although the statute was not cited in the complaint, the parties appear to agree that the suit rested principally on 16600 of the California Business and Professions Code. This reads: "Except as provided in this chapter, every contract by which anyone is restrained from engaging in a lawful profession, trade, or business of any kind is to that extent void." In its answer, Merrill Lynch alleged that the provisions of Art. 11.1 were a reasonable restraint on competition under the laws of New York or of the United States; that, pursuant to Art. 22.1[1] of the Plan, it was to be construed according to the laws of New York; that under New York law Art. 11.1 is lawful, valid, and enforceable; that a condition of Ware's employment with Merrill Lynch was approval by the New York Stock Exchange; that Ware, at the time of his employment in 1958, executed a written application, on an Exchange form, for approval of his employment as a registered representative, as required by the Exchange's Rule 45 (a) (1);[2] that by ¶ 0 (j) of that form Ware agreed that any controversy with a member arising out of the *122 termination of his employment would be settled by arbitration at the instance of any party;[] that the Exchange approved the application; that Ware's sole remedy was arbitration; and that a declaration that Art. 11.1 was invalid under the laws of California would cause Merrill Lynch to discriminate in the administration of the Plan and would deprive it of due process of law. Merrill Lynch, invoking 1281.2 of the California Code of Civil Procedure,[4] petitioned the state court for an *12 order directing arbitration pursuant to the above- ¶ 0 (j) and Ware's pledge, contained in his application for approval of employment, that he would "abide by the Constitution and Rules of the Board of Governors of the New York Stock Exchange" and that he submitted himself "to the jurisdiction of such Exchange." Ware opposed arbitration on the grounds that no contract to arbitrate existed between him and Merrill
|
Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
|
that no contract to arbitrate existed between him and Merrill Lynch; that if an agreement to this effect existed, it was a contract of adhesion; and that, since 16600 made the forfeiture provision illegal under California law, it was not arbitrable. The state trial court, by minute order, denied the petition to compel arbitration. Merrill Lynch then appealed. The California Court of Appeal held that a written agreement to arbitrate did exist; that the Exchange form was "a contractual agreement"; and that the "approval and registration by Merrill Lynch made the application a contract between the parties." -796. The court went on to hold, however, that the forfeiture clause was invalid and unenforceable under California law, when applied to California residents, as being in restraint of trade. -797. Cited as supporting authorities were where the same forfeiture clause was held ineffective under California law, but where the court also held that an *124 enforceable agreement to arbitrate existed,[5] and Finally, the Court of Appeal, while taking note of California's "strong public policy" favoring arbitration, held that Merrill Lynch's contributions under its Profit-Sharing Plan were wages, within the meaning of 200[6]*125 and 229[7] of the California Labor Code, and that 229 gave Ware "the right to bring his claim in court in spite of any agreement to arbitrate." -798. Merrill Lynch's petition for hearing by the Supreme Court of California was denied without opinion. See II The broad issue thus presented to us is the extent to which authority delegated under a federal regulatory statute pre-empts state law. Specifically, we are concerned with the questions (a) whether, in the context of the present 229 of the California Labor Code, which would preclude compulsory arbitration of wage disputes, is ineffective under the Supremacy Clause; (b) whether 16600 of the California Business and Professions Code unduly interferes with federal regulation of the securities industry; and (c) whether the California legislation unconstitutionally burdens interstate commerce. In order to resolve these questions, we think it necessary to review the principles of stock exchange preemption delineated in this Court's decision a decade ago in and to examine the geneses of the federal Act and of the California statute. *126 A. In Silver the Court considered whether, and to what extent, the federal antitrust laws apply to securities exchanges regulated by the 194 Act. It held that the mere passage of the Act did not effect, pro tanto, a repeal of the federal antitrust laws, but that particular instances of exchange regulation that fall within the scope and purposes of the Act may be justified and will
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Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
|
and purposes of the Act may be justified and will be upheld against antitrust challenge. With respect to the specific question there presented, it was clear that the New York Stock Exchange had exercised its "tremendous economic power," against two nonmembers by discontinuing their direct-wire telephone connections with members of the Exchange without notice, hearing, or statement of reasons. It was the Court's view, under the circumstances, that procedural guarantees were necessary in order to protect against the possibility of proscribed antitrust practices and to provide the "extremely beneficial effect in keeping exchange action from straying into areas wholly foreign to the purposes of the Securities Exchange Act." See also, In contrast with Silver, we are not confronted here with conflicting federal regulatory schemes. The present controversy concerns the interrelationship between statutes adopted, respectively, by the Federal Government and a State. The analytical framework of Silver is instructive, nonetheless. There the Court reviewed carefully the securities exchange regulatory scheme that Congress had adopted in order to identify the character and purposes of the Act and the extent to which instances of exchange self-regulation were necessary to the furtherance of congressional aims and objectives. -61. It was mindful, also, of the purposes behind the conflicting statutes which, in that were the *127 antitrust laws. So here, we may not overlook the body of law relating to the sensitive interrelationship between statutes adopted by the separate, yet coordinate, federal and state sovereignties. Our analysis is also to be tempered by the conviction that the proper approach is to reconcile "the operation of both statutory schemes with one another rather than holding one completely ousted."[8] The principle that emerged from Silver, and the premise upon which the Court based its judgment, was that conflicting law, absent repealing or exclusivity provisions, should be pre-empted by exchange self-regulation "only to the extent necessary to protect the achievement of the aims of the Securities Exchange Act." B. The Securities Exchange Act of 194, as amended, 15 U.S. C. 78a to 78hh-1, "regulates securities markets and the business of securities brokers and dealers." Report of Special of Securities Markets of the Securities and Exchange Commission, H. R. Doc. No. 95, pt. 1, 88th Cong., 1st Sess., Two types of regulation are reflected in the Act. Some provisions impose direct requirements and prohibitions. Among these are mandatory exchange registration, restrictions on broker and dealer borrowing, and the prohibition of manipulative or deceptive practices. Other provisions are flexible and rely on the technique of self-regulation to achieve their objectives. Supervised self-regulation, although consonant with the traditional private governance of
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Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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Supervised self-regulation, although consonant with the traditional private governance of exchanges, allows the Government to *128 monitor exchange business in the public interest.[9] MR. JUSTICE DOUGLAS, when he was Chairman of the Securities and Exchange Commission, observed that this permits the exchanges to "take the leadership with Government playing a residual role. Government would keep the shotgun, so to speak, behind the door, loaded, well oiled, cleaned, ready for use but with the hope it would never have to be used." W. Douglas, Democracy and Finance 82 (J. Allen ed. 1940). The Act provides for stock exchanges to be registered by the Commission. 6, 15 U.S. C. 78f. It outlaws securities transactions conducted on unregistered exchanges. 5, 15 U.S. C. 78e. It conditions registration on a showing that the exchange has rules that are "just and adequate to insure fair dealing and to protect investors." 6 (d), 15 U.S. C. 78f (d). An exchange seeking registration must also meet other requirements. It must agree "to enforce so far as is within its powers compliance by its members" with the *129 Act and the Commission's rules and regulations thereunder. 6 (a) (1), 15 U.S. C. 78f (a) (1). It must include in its rules a provision for the disciplining of a member "for conduct or proceeding inconsistent with just and equitable principles of trade." 6 (b), 15 U.S. C. 78f (b). And it must supply to the Commission copies of its constitution, articles of incorporation, and bylaws, and such data or other information as the Commission may require "as being necessary or appropriate in the public interest or for the protection of investors." 6 (a) () and (2), 15 U.S. C. 78f (a) () and (2). The Commission's direct authority with respect to exchange self-regulation is supervisory. Apart from its responsibilities in registering exchanges, the Commission may "alter or supplement" the rules of an exchange if such action is "necessary or appropriate for the protection of investors or to insure fair dealing in securities traded in upon such exchange or to insure fair administration of such exchange." 19 (b), 15 U.S. C. 78s (b).[10] This authority, however, relates to 12 designated subject areas and "similar matters." As a consequence, some exchange rules are not subject to direct Commission scrutiny, In re Rules of the New York Stock Exchange, 10 S.E. C. 270, 294 (1941), and, instead, if they do not operate contrary to the interests of insuring fair dealing and protecting investors, would kindle no federal curiosity and would serve no identifiable public purpose. It is to be noted, moreover, that
|
Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
|
https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
|
identifiable public purpose. It is to be noted, moreover, that the Commission has exercised its direct supervisory power *10 sparingly. Securities Industry Report of the Subcommittee on Securities, Committee on Banking, Housing and Urban Affairs, S. Doc. No. 9-1, p. 180 Apart from registration and direct Commission supervision, the only other qualification on exchange autonomy is the statutory requirement that any rules promulgated and enforced by an exchange not be "inconsistent with this [Act] and the rules and regulations thereunder and the applicable laws of the State in which it is located." 6 (c), 15 U.S. C. 78f (c). From this review of relevant portions of the Act, it is apparent that Congress accorded maximum scope to self-regulation, and reposed powers in the Commission "to be exercised as needed but in such manner as to allow maximum initiative and responsibility to the self-regulators." Report of the Special pt. 4, p. 726. In the words of the Senate Report issued at the time of enactment, "Thus the initiative and responsibility for promulgating regulations pertaining to the administration of their ordinary affairs remain with the exchanges themselves. It is only where they fail adequately to provide protection to investors that the Commission is authorized to step in and compel them to do so." S. Rep. No. 792, 7d Cong., 2d Sess., 1 (194). It is thus clear that the congressional aim in supervised self-regulation is to insure fair dealing and to protect investors from harmful or unfair trading practices. To the extent that any exchange rule or practice contravenes this policy, or any authorized rule or regulation under the Act, the rule may be subject to appropriate federal regulatory supervision or action. Correspondingly, any rule or practice not germane to fair dealing *11 or investor protection would not appear to fall under the shadow of the federal umbrella; it is, instead, subject to applicable state law. C. On the other side are the California statutes. By the addition of 229 to its Labor Code in 1959 California codified for the wage earner, with the solitary collective-bargaining-agreement exception, a right of action to recover due and unpaid wages from his employer, regardless of the existence of any private agreement to arbitrate. Selected 1959 Code Legislation, 4 Cal. St. B. J. 581, 706-707. This was due, apparently, to the legislature's desire to protect the worker from the exploitative employer who would demand that a prospective employee sign away in advance his right to resort to the judicial system for redress of an employment grievance. The statute's legislative history is sparse, but the exception carved
|
Justice Blackmun
| 1,973 | 11 |
majority
|
Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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The statute's legislative history is sparse, but the exception carved out for collective-bargaining disputes provides the obvious conclusion that it was the individual, nonunion, and otherwise unprotected wage earner who was the intended beneficiary of the State's grace in providing this remedy. This conclusion is fortified by the fact that 200 (a) of the Code defines "wages" broadly to include "all amounts for labor performed by employees of every description, whether the amount is fixed or ascertained by the standard of time, task, piece, commission basis, or other method of calculation." And the California court itself has noted "the established policy of protecting and promoting" the right, " `favored' in the law," of the wage earner "to all wages lawfully accrued to him." City of It may be, too, that the legislature felt that arbitration was a less than adequate protection against awarding the wage earner something short of what was due compensation. In any event, there is the harder substance of California law. In Local decided prior to the addition of 229 to the Labor Code, the court held that the then 1280 of the State's Code of Civil Procedure, providing for the enforcement of an arbitration clause in a contract and characterizing it as "irrevocable," was subject to waiver or mutual rescission. The statute provided that arbitration was required "save upon such grounds as exist at law or in equity for the revocation of any contract."[11] California, thus, does not exclude a remedy available at law or in equity for the revocation of any contract that happens to contain an arbitration clause. This conclusion as to the broad and liberal intendment of 229 is reinforced by the Court of Appeal's observation in the present that the State's Arbitration Act, revised in 1961, embraced no attempt to change the right of action first accorded the wage earner only two years earlier in 1959. The record is clear, moreover, that legislative attention was drawn in 1961 to 229. The California Senate was asked to reconsider its unanimous vote in favor of the Arbitration Act on the ground that there was legislative uncertainty as to its effect upon 229. 2 Journal of the Senate 2215-2218 The motion to reconsider was later waived, and the bill was transmitted to the Assembly. Thus, the Senate had in mind the rights accorded wage earners by 229, and those rights were placed in focus with the "historical friendliness of California to the institution of arbitration." Feldman, Arbitration ModernizedThe New California Arbitration Act, 4 So. Calif. L. Rev. 41, 414 Section 229 thus survived subsequent legislative
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Justice Blackmun
| 1,973 | 11 |
majority
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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L. Rev. 41, 414 Section 229 thus survived subsequent legislative scrutiny and has now manifested *1 itself as an important state policy through interpretation by the California courts. One might also consider, as the respondent suggests here, the California antitrust policies embodied in 16600 of the Business and Professions Code, This statute has been in effect for many years and is well entrenched in law and in commentary.[12] We need not pursue in depth the policy considerations supporting this statute because, in our judgment, 16600, standing alone and apart from 229, under existing law, would not provide the necessary support to uphold a challenge to arbitration. Our inclination in this respect is buttressed by the different results reached by the California Court of Appeal in this and in respectively. In the court decided that the "strong [California] public policy" against restraining one from engaging in a lawful business foreclosed the application of the more permissive New York law to the forfeiture provision of the profit-sharing plan. Although California public policy thus served to nullify the contract's forfeiture provision, arbitration, nonetheless, was not precluded. By way of contrast, the present provoked a claim under 229, in addition to Ware's reliance on 16600, in the face of Merrill Lynch's motion to compel arbitration. The California court declared again that the forfeiture clause was invalid but, in addition, held that the arbitration clause was unenforceable, relying on 16600 and 229, respectively. With this analysis of the state statutes made by the California court, we rest on that court's interpretation of state law and do not, and in fact cannot, disturb its determination that under those statutes arbitration will lie in the one instance but not in the other. *14 With this background, we turn to specific arguments advanced by the petitioner here. III A. Merrill Lynch suggests that Rule 47 (b) of the New York Stock Exchange, set forth in n. falls under the Exchange's mandate to protect the investing public and to insure just and equitable trade practices.[1] Its contention is that confidence in the industry and in the integrity and ability of its members has been jeopardized by failures of major brokerage houses with consequent substantial losses to the public. Investor confidence would be further undermined, it is said, by protracted litigation between member firms and their employees over disputes that arise out of employment relationships; public airing of every claim of this kind will erode confidence in the market; and arbitration, on the other hand, will internalize these disputes and provide an expeditious and economical method of resolution by arbitrators
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Justice Blackmun
| 1,973 | 11 |
majority
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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provide an expeditious and economical method of resolution by arbitrators familiar with industry customs and practices. As is seen by our discussion above, 6 (d) and 19 (b) of the Act, 15 U.S. C. 78f (d) and 78s (b), establish the measure of congressionally delegated authority for self-regulation in the national interest. Section 6 (d) requires that exchange rules be "just and adequate to insure fair dealing and to protect investors." Section 19 (b) gives the Commission limited power over certain types of exchange rules "for the protection of investors *15 or to insure fair dealing in securities" or to "insure fair administration" of the exchanges.[14] Measured by these standards, we conclude that the policy arguments advanced by Merrill Lynch do not require pre-emption of contrary state law by Rule 47 (b). To begin with the obvious, there is nothing in the Act and there is no Commission rule or regulation that specifies arbitration as the favored means of resolving employer-employee disputes.[15] It is also clear that Rule 47 (b) would not be subject to the Commission's modification or review under 19 (b). The United States, as amicus, concedes as much, and we conclude, as the Government suggests, that the relationship between compulsory employer-employee arbitration and fair dealing and investor protection is "extremely attenuated and peripheral, if it exists at all." Brief for the United States 9. Merrill Lynch has not alleged that arbitration will effect fair dealing or result in investor protection. It suggests only that investor confidence not be shaken *16 further by public airing of employer-employee disputes. There is no explanation of why a judicial proceeding, even though public, would undermine investor confidence. It is difficult to understand why muffling a grievance in the cloakroom of arbitration would prevent lessening of confidence in the market. To the contrary, for the generally sophisticated investing public, market confidence may tend to be restored in the light of impartial public court adjudication. Furthermore, it should be apparent that, so far as investor confidence is concerned, compulsory arbitration of an employee-employer grievance is no substitute for direct effective disciplinary action against any abusive exchange practice. Other rules of the Exchange serve this very function. Rule 45 (b), for example, permits the Exchange to disapprove, and thereby to forestall, the employment of any person, and Rule 45 (d) spells out punitive measures for "conduct inconsistent with just and equitable principles of trade," or "acts detrimental to the interest or welfare of the Exchange," or "conduct contrary to an established practice of the Exchange." These measures, designed to insure fair dealing and to
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Justice Blackmun
| 1,973 | 11 |
majority
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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Exchange." These measures, designed to insure fair dealing and to protect investors, are of the kind directly related to the Act's purposes and ordinarily would not be expected to yield to provisions of state law. B. Rule 47 (b) cannot be categorized, as the petitioner suggests, as part of a need for uniform national regulation. There is no revelation in the Act or in any Commission rule or regulation that nationwide uniformity of an exchange's housekeeping affairs is necessary or desirable. And Merrill Lynch has not demonstrated that national uniformity in the area of wage claims is vital, in some way, to federal securities policy. Convenience in exchange management may be desirable, but it does not support a plea for uniform application when the rule to be applied is not necessary for the achievement of the national policy objectives reflected in *17 the Act. Indeed, Congress, in the securities field, has not adopted a regulation system wholly apart from and exclusive of state regulation. Cf. 1 U.S. 218, 24-26 ; 68 U.S. 297, 02 Instead, Congress intended to subject the exchanges to state regulation that is not inconsistent with the federal Act. Section 6 (c), 15 U.S. C. 78f (c), explicitly subjects exchange rules to a requirement of consistency with the Act "and the applicable laws of the State in which [the exchange] is located." "Where the Government has provided for collaboration the courts should not find conflict." Union Brokerage 22 U.S. 202, And we observed in Silver that the scheme of self-regulation provides in some s for no agency check on exchange behavior and, therefore, "[s]ome form of review of exchange self-policing, whether by administrative agency or by the courts, is not at all incompatible with the fulfillment of the aims of the Securities Exchange Act." 7 U.S., at 59. C. It is also argued that the applicable state laws referred to in 6 (c) are the laws of the State in which the exchange itself is located. Thus, because the New York Stock Exchange is in the city of New York, it is said that "the applicable laws" are those of New York, and that the California court was in error in not applying New York law that would have compelled arbitration of this dispute and would have validated the forfeiture provision of the Profit-Sharing Plan. We are not persuaded that this is what Congress intended. Section 6 (c) has no independent existence creating some sort of spurious uniformity of application for all States. It has meaning only in the context of the assertion of a federal interest,
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Justice Blackmun
| 1,973 | 11 |
majority
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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in the context of the assertion of a federal interest, and it hinges on our determination that the particular rule be integrally related to or substantially effect the aims and purposes of the *18 Act. It merely requires that any exchange rule adopted outside the context of the Act be consistent with the laws of the State in which the exchange is located.[16] If the rule is sought to be enforced in another State, normal conflict of laws principles come into play, and the rule's effect depends on the resolution of that conflict. Were this not so, there would be no purpose behind the choice-of-law clause in the Profit-Sharing Plan itself. More importantly, the uniform application Merrill Lynch's interpretation of the Act would purportedly foster is seen to be ephemeral when one considers that broker-dealers like petitioner are also members of exchanges located outside New York, and are therefore subject, under the "state of location" theory, to other States' laws. In effect, we are asked to sacrifice the individual's expectation of uniform treatment in the State of his residence for uniformity of application of the effect of an exchange's rules. We decline to do so because we believe that Congress intended that those elements of the old regime of complete self-regulation, that is, those elements not related to the federal objectives, be subject to state law and to established conflicts principles when their application out of State comes into controversy. After all, a stock exchange is organized as an association in *19 accordance with the laws of the State of its location. Any assertion of extraterritorial jurisdiction contends, of course, with the public policy of the State in which this jurisdiction is sought. To ascribe more to 6 (c) would be contrary to the congressional scheme and to what might be regarded as common sense. D. MR. JUSTICE BRENNAN has stated: "The principle to be derived from our decisions is that federal regulation of a field of commerce should not be deemed preemptive of state regulatory power in the absence of persuasive reasonseither that the nature of the regulated subject matter permits no other conclusion, or that the Congress has unmistakably so ordained." Florida Lime & Avocado Growers, 7 U.S. 12, In other contexts, pre-emption has been measured by whether the state statute frustrates any part of the purpose of the federal legislation. Colorado Anti-Discrimination 72 U.S. 714, ; 402 U.S. 67 ; 1 U.S. 247, 25-255 And only last term MR. JUSTICE DOUGLAS, in speaking for the Court, observed that while prior s on pre-emption "are not precise guidelines,"
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Justice Blackmun
| 1,973 | 11 |
majority
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Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Ware
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https://www.courtlistener.com/opinion/108887/merrill-lynch-pierce-fenner-smith-inc-v-ware/
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that while prior s on pre-emption "are not precise guidelines," because each turns on the peculiarities and special features of the federal regulatory scheme in question," it is where there is in existence a pervasive and comprehensive scheme of federal regulation that pre-emption follows in order to fulfill the federal statutory purposes. City of 68-69 In the area of regulation that we are considering here, California has manifested a strong policy of protecting its wage earners from what it regards as undesirable economic pressures affecting the employment relationship. *140 This policy prevails in the absence of interference with the federal regulatory scheme. We find no such interference and we also find in the structure of the Act an intent on the part of Congress that state policies in this area should operate vigorously. E. It is suggested, finally, that the petitioner's Profit-Sharing Plan operates on a national level; that it is open to all eligible Merrill Lynch employees in the United States; that the employment of respondent and the class he represents is interstate in nature, as is Merrill Lynch's business; and that the application of the California statutes would unduly burden interstate commerce. What has been said above provides the answer to this argument. It is in line with the principle, long established, that the National Government's power, under the Commerce Clause, to regulate commerce does not exclude all state power of regulation. Southern Pacific 25 U.S. 761, ; Brotherhood of Locomotive Firemen & 9 U.S. 129 ; Huron Portland Cement 62 U.S. 440 The judgment of the Court of Appeal is affirmed. It is so ordered. MR. JUSTICE STEWART took no part in the decision of this
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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Today we see the latest manifestation of this Court's recent and increasingly insistent "concern about punitive damages that `run wild.' " Pacific Mut. Life Ins. Since the Constitution does not make that concern any of our business, the Court's activities in this area are an unjustified incursion into the province of state governments. In earlier cases that were the prelude to this decision, I set forth my view that a state trial procedure that commits the decision whether to impose punitive damages, and the amount, to the discretion of the jury, subject to some judicial review for "reasonableness," furnishes a defendant with all the process that is "due." See Production ; ; cf. Honda Motor I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against *599 "unfairness"neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable. See This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. See -462 ; at 4 481 ; at When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect indeed, I do not feel justified in doing so. See, e. g., ; Our punitive damages jurisprudence compels such a response. The Constitution provides no warrant for federalizing yet another aspect of our Nation's legal culture (no matter how much in need of correction it may be), and the application of the Court's new rule of constitutional law is constrained by no principle other than the Justices' subjective assessment of the "reasonableness" of the award in relation to the conduct for which it was assessed. Because today's judgment represents the first instance of this Court's invalidation of a state-court punitive assessment as simply unreasonably large, I think it a proper occasion to discuss these points at some length. I The most significant aspects of today's decisionthe identification of a "substantive due process" right against a "grossly excessive" award, and the concomitant assumption *600 of ultimate authority to decide anew a matter of "reasonableness" resolved in lower court proceedingsare of course not new. and revived the notion, moribund since its appearance in the first years of this century, that the measure of civil punishment poses a question of
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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that the measure of civil punishment poses a question of constitutional dimension to be answered by this Court. Neither of those cases, however, nor any of the precedents upon which they relied, actually took the step of declaring a punitive award unconstitutional simply because it was "too big." At the time of adoption of the Fourteenth Amendment, it was well understood that punitive damages represent the assessment by the jury, as the voice of the community, of the measure of punishment the defendant deserved. See, e. g., (86); Missouri Pacific R. (85); (52). See generally Today's decision, though dressed up as a legal opinion, is really no more than a disagreement with the community's sense of indignation or outrage expressed in the punitive award of the Alabama jury, as reduced by the State Supreme Court. It reflects not merely, as the concurrence candidly acknowledges, "a judgment about a matter of degree," ante, at 596; but a judgment about the appropriate degree of indignation or outrage, which is hardly an analytical determination. There is no precedential warrant for giving our judgment priority over the judgment of state courts and juries on this matter. The only support for the Court's position is to be found in a handful of errant federal cases, bunched within a few years of one other, which invented the notion that an unfairly severe civil sanction amounts to a violation of constitutional liberties. These were the decisions upon which the plurality relied in pronouncing that the Due Process Clause "imposes substantive limits `beyond which penalties may not go,' " ); see also 509 U. S., *601 at 4-481 ; at Although they are our precedents, they are themselves too shallowly rooted to justify the Court's recent undertaking. The only case relied upon in which the Court actually invalidated a civil sanction does not even support constitutional review for excessiveness, since it really concerned the validity, as a matter of procedural due process, of state legislation that imposed a significant penalty on a common carrier which lacked the means of determining the legality of its actions before the penalty was imposed. See Southwestern Telegraph & Telephone The amount of the penalty was not a subject of independent scrutiny. As for the remaining cases, while the opinions do consider arguments that statutory penalties can, by reason of their excessiveness, violate due process, not a single one of these judgments invalidates a damages award. See at -79; Waters-Pierce Oil ; Standard Oil Co. of ; St. Louis, I. M. & S. R. More importantly, this latter group of caseswhich again are
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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R. More importantly, this latter group of caseswhich again are the sole precedential foundation put forward for the rule of constitutional law espoused by today's Courtsimply fabricated the "substantive due process" right at issue. assigned no precedent to its bald assertion that the Constitution imposes "limits beyond which penalties may not go," 207 U.S., at Waters-Pierce cited only a case which inquired into the constitutionality of state procedure, Standard Oil simply cited Waters-Pierce, and St. Louis, I. M. & S. R. Co. offered in addition to these cases only which said nothing to support the notion of a "substantive due process" right against excessive civil penalties, but to the contrary asserted that the prescribing and imposing of criminal punishment were "functions peculiarly belonging to the several States," *602 Thus, the only authority for the Court's position is simply not authoritative. These cases fall far short of what is needed to supplant this country's longstanding practice regarding exemplary awards, see, e. g., -; II One might understand the Court's eagerness to enter this field, rather than leave it with the state legislatures, if it had something useful to say. In fact, however, its opinion provides virtually no guidance to legislatures, and to state and federal courts, as to what a "constitutionally proper" level of punitive damages might be. We are instructed at the outset of Part II of the Court's opinionthe beginning of its substantive analysisthat "the federal excessiveness inquiry begins with an identification of the state interests that a punitive award is designed to serve." Ante, at 568. On first reading this, one is faced with the prospect that federal punitive damages law (the new field created by today's decision) will be beset by the sort of "interest analysis" that has laid waste the formerly comprehensible field of conflict of laws. The thought that each assessment of punitive damages, as to each offense, must be examined to determine the precise "state interests" pursued, is most unsettling. Moreover, if those "interests" are the most fundamental determinant of an award, one would think that due process would require the assessing jury to be instructed about them. It appears, however (and I certainly hope), that all this is a false alarm. As Part II of the Court's opinion unfolds, it turns out to be directed, not to the question "How much punishment is too much?" but rather to the question "Which acts can be punished?" "Alabama does not have the power," the Court says, "to punish BMW for conduct that was lawful where it occurred and that had no impact on Alabama or
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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it occurred and that had no impact on Alabama or its residents." Ante, at 572-573. That may be true, though *603 only in the narrow sense that a person cannot be held liable to be punished on the basis of a lawful act. But if a person has been held subject to punishment because he committed an un lawful act, the degree of his punishment assuredly can be increased on the basis of any other conduct of his that displays his wickedness, unlawful or not. Criminal sentences can be computed, we have said, on the basis of "information concerning every aspect of a defendant's life," The Court at one point seems to acknowledge this, observing that, although a sentencing court "[cannot] properly punish lawful conduct," it may in assessing the penalty "consider lawful conduct that bears on the defendant's character." Ante, at 573, n. 19. That concession is quite incompatible, however, with the later assertion that, since "neither the jury nor the trial court was presented with evidence that any of BMW's out-of-state conduct was unlawful," the Alabama Supreme Court "therefore properly eschewed reliance on BMW's outof-state conduct, and based its remitted award solely on conduct that occurred within Alabama." Ante, at 573-574. Why could the Supreme Court of Alabama not consider lawful (but disreputable) conduct, both inside and outside Alabama, for the purpose of assessing just how bad an actor BMW was? The Court follows up its statement that "Alabama does not have the power to punish BMW for conduct that was lawful where it occurred" with the statement: "Nor may Alabama impose sanctions on BMW in order to deter conduct that is lawful in other jurisdictions." Ante, at 572-573. The Court provides us no citation of authority to support this propositionother than the barely analogous cases cited earlier in the opinion, see ante, at 571-572and I know of none. These significant issues pronounced upon by the Court are not remotely presented for resolution in the present case. There is no basis for believing that Alabama has sought to control conduct elsewhere. The statutes at issue merely *604 permit civil juries to treat conduct such as petitioner's as fraud, and authorize an award of appropriate punitive damages in the event the fraud is found to be "gross, oppressive, or malicious," (b)(1) To be sure, respondent did invite the jury to consider out-of-state conduct in its calculation of damages, but any increase in the jury's initial award based on that consideration is not a component of the remitted judgment before us. As the Court several times recognizes, in computing the
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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us. As the Court several times recognizes, in computing the amount of the remitted award the Alabama Supreme Courtwhether it was constitutionally required to or not"expressly disclaimed any reliance on acts that occurred in other jurisdictions." Ante, at 567 (internal quotation marks omitted); see also ante, at 573-574.[*] Thus, the only question presented by this case is whether that award, limited to petitioner's Alabama conduct and viewed in light of the factors identified as properly informing the inquiry, is excessive. The Court's sweeping (and largely unsupported) statements regarding the relationship of punitive awards to lawful or unlawful out-of-state conduct are the purest dicta. III In Part III of its opinion, the Court identifies "[t]hree guideposts" that lead it to the conclusion that the award in this case is excessive: degree of reprehensibility, ratio between punitive award and plaintiff's actual harm, and legislative *605 sanctions provided for comparable misconduct. Ante, at 574-585. The legal significance of these "guideposts" is nowhere explored, but their necessary effect is to establish federal standards governing the hitherto exclusively state law of damages. Apparently (though it is by no means clear) all three federal "guideposts" can be overridden if "necessary to deter future misconduct," ante, at 584a loophole that will encourage state reviewing courts to uphold awards as necessary for the "adequat[e] protect[ion]" of state consumers, By effectively requiring state reviewing courts to concoct rationalizationswhether within the "guideposts" or through the loopholeto justify the intuitive punitive reactions of state juries, the Court accords neither category of institution the respect it deserves. Of course it will not be easy for the States to comply with this new federal law of damages, no matter how willing they are to do so. In truth, the "guideposts" mark a road to nowhere; they provide no real guidance at all. As to "degree of reprehensibility" of the defendant's conduct, we learn that "`nonviolent crimes are less serious than crimes marked by violence or the threat of violence,' " ante, at 576 ), and that "`trickery and deceit' " are "more reprehensible than negligence," ante, at 576. As to the ratio of punitive to compensatory damages, we are told that a "`general concer[n] of reasonableness enter[s] into the constitutional calculus,' " ante, at 583 (quoting )though even "a breathtaking 500 to 1" will not necessarily do anything more than "`raise a suspicious judicial eyebrow,' " ante, at 583 (quoting an opinion which, when confronted with that "breathtaking" ratio, approved it). And as to legislative sanctions provided for comparable misconduct, they should be accorded "`substantial deference,' " ante, at 583 ). One expects
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Justice Scalia
| 1,996 | 9 |
dissenting
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BMW of North America, Inc. v. Gore
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https://www.courtlistener.com/opinion/118026/bmw-of-north-america-inc-v-gore/
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accorded "`substantial deference,' " ante, at 583 ). One expects the Court to conclude: "To thine own self be true." These crisscrossing platitudes yield no real answers in no real cases. And it must be noted that the Court nowhere says that these three "guideposts" are the only guideposts; indeed, it makes very clear that they are notexplaining away the earlier opinions that do not really follow these "guideposts" on the basis of additional factors, thereby "reiterat[ing] our rejection of a categorical approach." Ante, at 582. In other words, even these utter platitudes, if they should ever happen to produce an answer, may be overridden by other unnamed considerations. The Court has constructed a framework that does not genuinely constrain, that does not inform state legislatures and lower courtsthat does nothing at all except confer an artificial air of doctrinal analysis upon its essentially ad hoc determination that this particular award of punitive damages was not "fair." The Court distinguishes today's result from and partly on the ground that "the record in this case discloses no deliberate false statements, acts of affirmative misconduct, or concealment of evidence of improper motive, such as were present in and " Ante, at 579. This seemingly rejects the findings necessarily made by the jurythat petitioner had committed a fraud that was "gross, oppressive, or malicious," (b)(1) Perhaps that rejection is intentional; the Court does not say. The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i. e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i. e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure *607 the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See And
|
Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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https://www.courtlistener.com/opinion/118105/strate-v-a-1-contractors/
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This case concerns the adjudicatory authority of tribal courts over personal injury actions against defendants who are not tribal members Specifically, we confront this question: When an accident occurs on a portion of a public highway maintained by the State under a federally granted right-of-way over Indian reservation land, may tribal courts entertain a civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe? Such cases, we hold, fall within state or federal regulatory and adjudicatory governance; tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question We express no view on the governing law or proper forum when an accident occurs on a tribal road within a I In November 1990, petitioner Gisela Fredericks and respondent Lyle Stockert were involved in a traffic accident on a portion of a North Dakota state highway running through the Fort Berthold Indian Reservation The highway strip crossing the reservation is a 659-mile stretch of road, open to the public, affording access to a federal water resource project North Dakota maintains the road under a right-ofway *443 granted by the United States to the State's Highway Department; the right-of-way lies on land held by the United States in trust for the Three Affiliated Tribes (Mandan, Hidatsa, and Arikara) and their members The accident occurred when Fredericks' automobile collided with a gravel truck driven by Stockert and owned by respondent A-1 Contractors, Stockert's employer A-1 Contractors, a non-Indian-owned enterprise with its principal place of business outside the reservation, was at the time under a subcontract with LCM Corporation, a corporation wholly owned by the Tribes, to do landscaping work related to the construction of a tribal community building A-1 Contractors performed all work under the subcontract within the boundaries of the [1] The record does not show whether Stockert was engaged in subcontract work at the time of the accident Neither Stockert nor Fredericks is a member of the Three Affiliated Tribes or an Indian Fredericks, however, is the widow of a deceased member of the Tribes and has five adult children who are tribal members[2] Fredericks sustained serious injuries in the accident and was hospitalized for 24 days In May 1991, she sued respondents A-1 Contractors and Stockert, as well as A-1 Contractors' insurer, in the Tribal Court for the Three Affiliated Tribes of the Fort Berthold Reservation In the same lawsuit, Fredericks' five adult children filed a loss-of-consortium
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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https://www.courtlistener.com/opinion/118105/strate-v-a-1-contractors/
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the same lawsuit, Fredericks' five adult children filed a loss-of-consortium *444 claim Together, Fredericks and her children sought damages exceeding $13 million App 8-10 Respondents and the insurer made a special appearance in the Tribal Court to contest that court's personal and subject-matter jurisdiction The Tribal Court ruled that it had authority to adjudicate Gisela Fredericks' case, and therefore denied respondents' motion to dismiss the action [3] Respondents appealed the Tribal Court's jurisdictional ruling to the Northern Plains Inter tribal Court of Appeals, which affirmed Thereafter, pursuant to the parties' stipulation, the Tribal Court dismissed the insurer from the suit See Before Tribal Court proceedings resumed, respondents commenced this action in the United States District Court for the District of North Dakota Naming as defendants Fredericks, her adult children, the Tribal Court, and Tribal Judge William Strate, respondents sought a declaratory judgment that, as a matter of federal law, the Tribal Court lacked jurisdiction to adjudicate Fredericks' claims The respondents also sought an injunction against further proceedings in the Tribal Court See Relying particularly on this Court's decisions in National Union Ins and Iowa Mut Ins the District Court determined that the Tribal Court had civil jurisdiction over Fredericks' complaint against A-1 Contractors and Stockert; accordingly, on cross-motions for summary judgment, the District Court dismissed the action App 54-67 On appeal, a divided panel of the United States Court of Appeals for the Eighth Circuit affirmed App 68 90 The Eighth Circuit granted rehearing en banc and, in an 8-to-4 decision, reversed the District Court's judgment *445 The Court of Appeals concluded that our decision in was the controlling precedent, and that, under the Tribal Court lacked subject-matter jurisdiction over the dispute[4] We granted certiorari, and now affirm II Our case law establishes that, absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances In the Court held that Indian tribes lack criminal jurisdiction over non-Indians[5], decided three years later, is the pathmarking case concerning tribal civil authority over nonmembers concerned the authority of the Crow Tribe to regulate hunting and fishing by non-Indians on lands within the Tribe's reservation owned in fee simple by non-Indians The Court said in that the restriction on tribal criminal jurisdiction recognized in Oliphant rested on principles that support a more "general proposition" In the main, the Court explained, "the inherent sovereign powers of an Indian tribe"those powers a tribe enjoys apart from express provision by treaty or statute"do not extend to the activities *446 of nonmembers of the tribe" The opinion added, however,
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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*446 of nonmembers of the tribe" The opinion added, however, that in certain circumstances, even where Congress has not expressly authorized it, tribal civil jurisdiction may encompass nonmembers: "To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe" The term "non-Indian fee lands," as used in this passage and throughout the opinion, refers to reservation land acquired in fee simple by non-Indian owners See thus a general rule that, absent a different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers on non-Indian land within a reservation, subject to two exceptions: The first exception relates to nonmembers who enter consensual relationships with the tribe or its members; the second concerns activity that directly affects the tribe's political integrity, economic security, health, or welfare The Court recognized that the Crow Tribe retained power to limit or forbid hunting or fishing by nonmembers on land still owned by or held in trust for the Tribe The Court held, however, that the Tribe lacked authority to regulate hunting and fishing by non-Indians on land within the Tribe's *447 reservation owned in fee simple by non-Indians [6] Petitioners and the United States as amicus curiae urge that does not control this case They maintain that the guiding precedents are National and Iowa and that those decisions establish a rule converse to `s Whatever may instruct regarding regulatory authority, they insist, tribal courts retain adjudicatory authority in disputes over occurrences inside a reservation, even when the episode-in-suit involves nonmembers, unless a treaty or federal statute directs otherwise Petitioners, further supported by the United States, argue, alternately, that does not cover lands owned by, or held *448 in trust for, a tribe or its members holds sway, petitioners say, only with respect to alienated reservation land owned in fee simple by non-Indians We address these arguments in turn A We begin with petitioners' contention that National and Iowa broadly confirm tribal-court civil jurisdiction over claims against nonmembers arising from occurrences on any land within a We read our precedent
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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occurrences on any land within a We read our precedent differently National and Iowa we conclude, are not at odds with, and do not displace, Both decisions describe an exhaustion rule allowing tribal courts initially to respond to an invocation of their jurisdiction; neither establishes tribal-court adjudicatory authority, even over the lawsuits involved in those cases Accord, National involved a federal-court challenge to a tribal court's jurisdiction over a personal injury action initiated on behalf of a Crow Indian minor against a school district The accident-in-suit occurred when the minor was struck by a motorcycle in an elementary school parking lot The school occupied land owned by the State within the Crow Indian Reservation See The school district and its insurer sought a federal-court injunction to stop proceedings in the Crow Tribal Court See The District Court granted the injunction, but the Court of Appeals reversed, concluding that federal courts lacked subject-matter jurisdiction to entertain such a case See -849 We reversed the Court of Appeals' judgment and held that federal courts have authority to determine, as a matter "arising under" federal law, see 28 US C 1331, whether a tribal court has exceeded the limits of its jurisdiction See -853 We further held, however, that the federal *449 suit was premature Ordinarily, we explained, a federal court should stay its hand "until after the Tribal Court has had a full opportunity to determine its own jurisdiction" Finding no cause for immediate federal-court intervention,[7] we remanded the case, leaving initially to the District Court the question "[w]hether the federal action should be dismissed, or merely held in abeyance pending further Tribal Court proceedings" Petitioners underscore the principal reason we gave in National for the exhaustion requirement there stated Tribal-court jurisdiction over non-Indians in criminal cases is categorically restricted under Oliphant, we observed, while in civil matters "the existence and extent of a tribal court's jurisdiction will require a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested, or diminished, as well as a detailed study of relevant statutes, Executive Branch policy as embodied in treaties and elsewhere, and administrative or judicial decisions" -856 The Court's recognition in National that tribal courts have more extensive jurisdiction in civil cases than in criminal proceedings, and of the need to inspect relevant statutes, treaties, and other materials, does not limit `s instruction As the Court made plain in the general rule and exceptions there announced govern only in the absence of a delegation of tribal authority by treaty or statute In itself, the Court examined the treaties
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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treaty or statute In itself, the Court examined the treaties and legislation relied upon by the Tribe and explained *450 why those measures did not aid the Tribe's case See 450 US, -563 Only after and in light of that examination did the Court address the Tribe's assertion of "inherent sovereignty," and formulate, in response to that assertion, `s general rule and exceptions to it In sum, we do not extract from National anything more than a prudential exhaustion rule, in deference to the capacity of tribal courts "to explain to the parties the precise basis for accepting [or rejecting] jurisdiction" 471 US, Iowa involved an accident in which a member of the Blackfeet Indian Tribe was injured while driving a cattle truck within the boundaries of the The injured member was employed by a corporation that operated a ranch on reservation land owned by Blackfeet Indians residing on the See The driver and his wife, also a Tribe member, sued in the Blackfeet Tribal Court, naming several defendants: the corporation that employed the driver; the individual owners of the ranch; the insurer of the ranch; and an independent insurance adjuster representing the insurer See Over the objection of the insurer and the insurance adjusterboth companies not owned by members of the Tribethe Tribal Court determined that it had jurisdiction to adjudicate the case See Thereafter, the insurer commenced a federal-court action against the driver, his wife, the corporation, and the ranch owners See Invoking federal jurisdiction based on the parties' diverse citizenship, see 28 US C 1332, the insurer alleged that it had no duty to defend or indemnify the corporation or the ranch owners because the injuries asserted by the driver and his wife fell outside the coverage of the applicable insurance policies See 480 US, -13 The Federal District Court dismissed the insurer's action for lack of subject-matter jurisdiction, and the Court of Appeals affirmed See *451 We reversed Holding that the District Court had diversity-of-citizenship jurisdiction over the insurer's complaint, we remanded, as in National for a determination whether "the federal action should be stayed pending further Tribal Court proceedings or dismissed" n 14 The Court recognized in Iowa that the exhaustion rule stated in National was "prudential," not n 14; see also Respect for tribal self-government made it appropriate "to give the tribal court a `full opportunity to determine its own jurisdiction' " (quoting National 471 U S, ) That respect, the Court reasoned, was equally in order whether federal-court jurisdiction rested on 1331 (federal question) or on 1332 (diversity of citizenship) -18 Elaborating on
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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question) or on 1332 (diversity of citizenship) -18 Elaborating on the point, the Court stated: "Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty See ; Washington v Confederated Tribes of Indian Reservation, 447 US 134, ; v District Court [of Sixteenth Judicial Dist of Mont], 424 U S [382,] 387-389 [] Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute In the absence of any indication that Congress intended the diversity statute to limit the jurisdiction of the tribal courts, we decline petitioner's invitation to hold that tribal sovereignty can be impaired in this fashion" Petitioners and the United States fasten upon the Court's statement that "[c]ivil jurisdiction over such activities presumptively lies in the tribal courts" Read in context, however, this language scarcely supports the view that the *452 rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants The statement stressed by petitioners and the United States was made in refutation of the argument that "Congress intended the diversity statute to limit the jurisdiction of the tribal courts" 480 US, The statement is preceded by three informative citations The first citation points to the passage in in which the Court advanced "the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," with two prime exceptions, The case cited second is Washington v Confederated Tribes of Reservation, 447 US 134 a decision the Court listed as illustrative of the first exception, applicable to "nonmembers who enter consensual relationships with the tribe or its members," -566; the Court in acknowledged inherent tribal authority to tax "non-Indians entering the reservation to engage in economic activity," 447 US, at 153 The third case noted in conjunction with the Iowa statement is v District Court of Sixteenth Judicial Dist of Mont, 424 US 382 a decision the Court cited in support of the second exception, covering on-reservation activity of nonmembers bearing directly "on the political integrity, the economic security, or the health or welfare of the tribe" 450 US, at 566 The Court held in that a tribal court had exclusive jurisdiction over an adoption proceeding when all parties were members of the tribe and resided on its See 424 US, 83, 389 State-court jurisdiction over such matters, the Court said, "plainly would interfere with the powers of self-government conferred upon the Tribe and exercised through the Tribal Court" The Court observed in that state
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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through the Tribal Court" The Court observed in that state courts may not exercise jurisdiction over disputes arising out of *453 on-reservation conducteven over matters involving nonIndiansif doing so would "`infring[e] on the right of reservation Indians to make their own laws and be ruled by them' " In light of the citation of and the Iowa statement emphasized by petitioners does not limit the rule In keeping with the precedent to which Iowa refers, the statement stands for nothing more than the unremarkable proposition that, where tribes possess authority to regulate the activities of nonmembers, "[c]ivil jurisdiction over [disputes arising out of] such activities presumptively lies in the tribal courts" 480 US, Recognizing that our precedent has been variously interpreted, we reiterate that National and Iowa enunciate only an exhaustion requirement, a "prudential rule," see Iowa 480 U S, at 20, n 14, based on comity, see These decisions do not expand or stand apart from `s instruction on "the inherent sovereign powers of an Indian tribe" While immediately involved regulatory authority, the Court broadly addressed the concept of "inherent sovereignty" Regarding activity on non-Indian fee land within a reservation, delineatedin a main rule and exceptionsthe bounds of the power tribes retain to exercise "forms of civil jurisdiction over non-Indians" As to nonmembers, we hold, a tribe's adjudicative jurisdiction does not exceed its legislative jurisdiction Absent congressional direction enlarging tribal-court jurisdiction, we adhere to that understanding Subject to controlling provisions in treaties and statutes, and the two exceptions identified in the civil authority of Indian tribes and their courts with respect to non-Indian fee lands generally "do[es] not extend to the activities of nonmembers of the tribe" *454 B We consider next the argument that does not govern this case because the land underlying the scene of the accident is held in trust for the Three Affiliated Tribes and their members Petitioners and the United States point out that in as in later cases following `s instruction, and South Dakota v 508 US 679 n 6the challenged tribal authority related to nonmember activity on alienated, non-Indian reservation land We "can readily agree," in accord with 450 U S, that tribes retain considerable control over nonmember conduct on tribal land[8] On the particular matter before us, however, we agree with respondents: The right-of-way North Dakota acquired for the State's highway renders the 659-mile stretch equivalent, for nonmember governance purposes,[9] to alienated, non-Indian land Congress authorized grants of rights-of-way over Indian lands in 1948 legislation Act of Feb 5, 1948, ch 45, 62 Stat 17, 25 US C 323-328 A grant
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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https://www.courtlistener.com/opinion/118105/strate-v-a-1-contractors/
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45, 62 Stat 17, 25 US C 323-328 A grant over land belonging to a tribe requires "consent of the proper tribal officials," 324, *455 and the payment of just compensation, 325[10] The grant involved in this case was made, pursuant to the federal statute, in 1970 Its purpose was to facilitate public access to Lake Sakakawea, a federal water resource project under the control of the Army Corps of Engineers In the granting instrument, the United States conveyed to North Dakota "an easement for a right-of-way for the realignment and improvement of North Dakota State Highway No 8 over, across and upon [specified] lands" App to Brief for Respondents 1 The grant provides that the State's "easement is subject to any valid existing right or adverse claim and is without limitation as to tenure, so long as said easement shall be actually used for the purpose specified" The granting instrument details only one specific reservation to Indian landowners: "The right is reserved to the Indian land owners, their lessees, successors, and assigns to construct crossings of the right-of-way at all points reasonably necessary to the undisturbed use and occupan[cy] of the premises affected by the right-of-way; such crossings to be constructed and maintained by the owners or lawful occupants and users of said lands at their own risk and said occupants and users to assume full responsibility for avoiding, or repairing any damage to the right-of-way, which may be occasioned by such crossings" -4 Apart from this specification, the Three Affiliated Tribes expressly reserved no right to exercise dominion or control over the right-of-way Forming part of the State's highway, the right-of-way is open to the public, and traffic on it is subject to the State's *456 control[11] The Tribes have consented to, and received payment for, the State's use of the 659-mile stretch for a public highway They have retained no gatekeeping right So long as the stretch is maintained as part of the State's highway, the Tribes cannot assert a landowner's right to occupy and exclude Cf 508 U S, at 689 (regarding reservation land acquired by the United States for operation of a dam and a reservoir, Tribe's loss of "right of absolute and exclusive use and occupation implies the loss of regulatory jurisdiction over the use of the land by others") We therefore align the right-of-way, for the purpose at hand, with land alienated to non-Indians Our decision in accordingly, governs this case III Petitioners and the United States refer to no treaty or statute authorizing the Three Affiliated Tribes to entertain highway-accident tort suits
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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https://www.courtlistener.com/opinion/118105/strate-v-a-1-contractors/
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authorizing the Three Affiliated Tribes to entertain highway-accident tort suits of the kind Fredericks commenced against A-1 Contractors and Stockert Rather, petitioners and the United States ground their defense of tribal-court jurisdiction exclusively on the concept of retained or inherent sovereignty we have explained, is the controlling decision for this case To prevail here, petitioners must show that Fredericks' tribal-court action against nonmembers qualifies under one of `s two exceptions The first exception to the rule covers "activities of nonmembers who enter consensual relationships with the *457 tribe or its members, through commercial dealing, contracts, leases, or other arrangements" The tortious conduct alleged in Fredericks' complaint does not fit that description The dispute, as the Court of Appeals said, is "distinctly non-tribal in nature" 76 F3d, at 940 It "arose between two non-Indians involved in [a] run-of-themill [highway] accident" Although A-1 was engaged in subcontract work on the Fort Berthold Reservation, and therefore had a "consensual relationship" with the Tribes, "Gisela Fredericks was not a party to the subcontract, and the [T]ribes were strangers to the accident" `s list of cases fitting within the first exception, see -566, indicates the type of activities the Court had in mind: v Lee, 358 US 217, ; Morris v Hitchcock, 194 US 384 ; Buster v Wright, 135 F 947, (upholding Tribe's permit tax on nonmembers for the privilege of conducting business within Tribe's borders; court characterized as "inherent" the Tribe's "authority to prescribe the terms upon which noncitizens may transact business within its borders"); 447 U S, at 152-154 Measured against these cases, the Fredericks-Stockert highway accident presents no "consensual relationship" of the qualifying kind The second exception to `s general rule concerns conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe" 450 US, at 566 Undoubtedly, those *458 who drive carelessly on a public highway running through a reservation endanger all in the vicinity, and surely jeopardize the safety of tribal members But if `s second exception requires no more, the exception would severely shrink the rule Again, cases cited in indicate the character of the tribal interest the Court envisioned The Court's statement of `s second exceptional category is followed by citation of four cases, ; each of those cases raised the question whether a State's (or Territory's) exercise of authority would trench unduly on tribal self-government In two of the cases, the Court held that a State's exercise of authority would so intrude, and in two, the Court saw no impermissible intrusion The Court referred
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Justice Ginsburg
| 1,997 | 5 |
majority
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Strate v. A-1 Contractors
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two, the Court saw no impermissible intrusion The Court referred first to the decision recognizing the exclusive competence of a tribal court over an adoption proceeding when all parties belonged to the Tribe and resided on its See 424 U S, ; Next, the Court listed a decision holding a tribal court exclusively competent to adjudicate a claim by a nonIndian merchant seeking payment from tribe members for goods bought on credit at an on-reservation store See 358 U S, at 220 ("[A]bsent governing Acts of Congress, the question [of state-court jurisdiction over onreservation conduct] has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them") Thereafter, the Court referred to two decisions dealing with objections to a county or territorial government's imposition of a property tax on non-Indian-owned livestock that grazed on reservation land; in neither case did the Court find a significant tribal interest at stake See Catholic Missions v Missoula County, 200 US 118, ; Thomas v Gay, 169 US 264, Read in isolation, the rule's second exception can be misperceived Key to its proper application, however, is the Court's preface: "Indian tribes retain their inherent power [to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members But [a tribe's inherent power does not reach] beyond what is necessary to protect tribal self-government or to control internal relations" 450 US, at 564 Neither regulatory nor adjudicatory authority over the state highway accident at issue is needed to preserve "the right of reservation Indians to make their own laws and be ruled by them" 358 U S, at 220 The rule, therefore, and not its exceptions, applies to this case Gisela Fredericks may pursue her case against A-1 Contractors and Stockert in the state forum open to all who sustain injuries on North Dakota's highway[12] Opening the Tribal Court for her optional use is not necessary to protect tribal self-government; and requiring A-1 and Stockert to defend against this commonplace state highway accident claim in an unfamiliar court[13] is not crucial to "the political integrity, the economic security, or the health or welfare of the [Three Affiliated Tribes]" 450 U S, at 566[14] *460 * * * For the reasons stated, the judgment of the Court of Appeals for the Eighth Circuit is Affirmed
|
Justice Stevens
| 1,978 | 16 |
dissenting
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JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of Nat. Automatic Sprinkler Industry Pension Fund
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https://www.courtlistener.com/opinion/109778/jw-bateson-co-v-united-states-ex-rel-bd-of-trustees-of-nat-automatic/
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The Court's narrow reading of the word "subcontractor" creates a system of protection for construction workers that I cannot believe Congress intended. It drives a wedge between employees working side by side on tasks equally vital to "the prosecution of the work." 40 U.S. C. 270a (a) (2). Under the Court's reading, those who work for the general contractor or for a "first-tier" subcontractor are protected by the bond; those who work for other subcontractors are unprotected. The Court's construction of the statute derives strong support from the statement in the Committee Reports distinguishing between "sub-subcontractors" and "more remote relationships." Nevertheless, I am persuaded that contrary evidence of congressional intent outweighs the isolated statement upon which the Court's decision primarily rests. I shall therefore first explain why I think the Act protects every person who has supplied labor or material in the prosecution of the work provided for in the prime contract. Thereafter, I shall explain why I believe the excerpt from the Committee Reports does not compel a contrary conclusion. I The Miller Act, like the Heard Act which preceded it, covers "all persons supplying labor and material in the prosecution of the work provided for in [a federal construction] contract."[1]*596 Unless this language were to be narrowly read to cover only persons supplying labor or materials directly to the general contractorand no one suggests that such a narrow reading is properit plainly identifies "the prosecution of the work" as the proper test of coverage. This Court so read the comparable language in the Heard Act in United States ex rel. In that case the Court recognized that a "liberal interpretation" was needed to further "the manifest purpose of the statute to require that material and labor actually contributed to the construction of the public building shall be paid for and to provide a security to that end."[2] The Hill Court therefore allowed recovery to all who supplied labor *597 to the contractor, whether directly or indirectly through a subcontractor.[3] The question at the heart of this case is whether Congress intended the Miller Act to cut back the coverage of the Heard Act. The fact that there was no significant change in the statutory language identifying the persons protected by the Act is a sufficient reason for concluding that no change in coverage was intended.[4] this conclusion is confirmed by a study of the entire legislative history of the Miller Act. The Miller Act was primarily designed to speed workmen's recoveries under the Heard Act by correcting procedural flaws in the old Act. Not a word in the
|
Justice Stevens
| 1,978 | 16 |
dissenting
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JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of Nat. Automatic Sprinkler Industry Pension Fund
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https://www.courtlistener.com/opinion/109778/jw-bateson-co-v-united-states-ex-rel-bd-of-trustees-of-nat-automatic/
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flaws in the old Act. Not a word in the legislative history hinted that the coverage of the Heard Act was too broad. To the contrary, the proposed revision was consistently presented as *598 a measure to strengthen the existing rights of laborers on public works.[5] "The most radical changes made in the existing law by these bills," Congressman Miller, the proponent of the Act, explained, "is that we provide in this bill for two bonds; one a performance bond to the Government, and the other a payment bond."[6] While Congress intended to speed the recoveries of protected workers, it sought to do so within the framework of existing law. Witnesses testifying in support of the Act urged Congress to preserve as much language from the Heard Act as possible, in order that past judicial interpretations would continue to apply under the new Act.[7] Congressman Miller *599 himself noted that the Committee was "rather loath to disturb existing law and existing court decisions where we can correct the difficulty without doing so."[8] Thus it is especially significant that the drafters lifted bodily from the Heard Act the coverage provision that had already been construed in Hill. The historical context in which the statute was enacted confirms this analysis. The Miller Act was passed during the depression of the 1930's. Few construction laborers could then find work except on Government projects. Reform of the Heard Act drew urgency from the ironic discovery that precious construction jobs too often proved worthless when an irresponsible subcontractor was unable to pay his workers. An exchange between Senators Walsh and McCarran about the Miller Act shows the sentiments of the day: "Mr. WALSH. Mr. President, the investigation conducted by the subcommittee of the Committee on Education and Labor showed a deplorable condition with reference to the way employees on public buildings were defrauded and cheated of their wages, and any measure that will tend to strengthen their rights and help them to secure their compensation is justified. "Mr. McCARRAN. That is the object of the pending bill" 79 Cong. Rec. 13383 (1935). The language of the Miller Act is entirely consistent with the obvious legislative intent to preserve the substantive protections of the Heard Act. The Miller Act extends coverage *600 to "all persons supplying labor and material in the prosecution of the work provided for in [the] contract"[9] This coverage is comparable to that afforded by many state mechanic's lien statutes. See generally Note, Mechanics' Liens and Surety Bonds in the Building Trades, 68 Yale L. J. 138 (1958). The purpose of both the
|
Justice Stevens
| 1,978 | 16 |
dissenting
|
JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of Nat. Automatic Sprinkler Industry Pension Fund
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https://www.courtlistener.com/opinion/109778/jw-bateson-co-v-united-states-ex-rel-bd-of-trustees-of-nat-automatic/
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Yale L. J. 138 (1958). The purpose of both the Heard Act and the Miller Act was to protect persons supplying labor or materials for federal construction projects, which are not subject to state mechanics' liens.[10] Giving an ordinary meaning to the language used by both Acts will achieve that purpose. The proviso to 2 (a) of the Miller Act, which requires persons having a direct relationship with a subcontractor to give written notice of his claim to the prime contractor, does not narrow the coverage of the statute. It merely requires persons covered by the bond to give the required notice in order to preserve their protection.[11] *601 It is true, of course, that it would be anomalous to require that notice be given by employees of first-tier subcontractors but not by employees of second-tier subcontractors.[12]Clifford F. MacEvoy But that anomaly is entirely avoided if the term "subcontractor" is read to refer to any person or firm that has contracted to do any part of the work provided for in the prime contract, whether that person has dealt directly with the prime contractor or with another subcontractor. In the common usage of the construction trades, the term "subcontractor" does not include ordinary laborers or material men. But the term is often used to describe subordinate contractors who have accepted contractual responsibility for a portion of the work covered by the basic contract, no matter how many subcontractors lie between the general contractor and the subcontractor who actually does the work.[13] *602 State courts, which have more occasion to deal with construction contracts than we do, recognize that a generic use of the term subcontractor is entirely proper. For example, Colorado's construction bond law protects persons furnishing labor or materials to a "contractor, or his subcontractor." Despite the personal pronoun, the Colorado Supreme Court has held that the bond covers those who deal with a "second-tier" subcontractor, saying: "To construe the term `sub-contractor' so as to exclude a `sub-subcontractor' from the protection granted by the contractor's bond statute would require us to ignore the purpose of the statute. Since the benefits of our mechanic's lien act do not apply to projects constructed by governmental agencies, a remedy similar to our mechanic's lien statute was provided by the legislature for the protection of those furnishing supplies or material for such projects. The statute stands in lieu of the mechanic's lien statute, and is designed to protect those who supply labor and materials for public works." South-Way Constr. Other courts have taken a similar approach. See, e. g., Nash Eng. ; ;
|
Justice Stevens
| 1,978 | 16 |
dissenting
|
JW Bateson Co. v. United States Ex Rel. Bd. of Trustees of Nat. Automatic Sprinkler Industry Pension Fund
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https://www.courtlistener.com/opinion/109778/jw-bateson-co-v-united-states-ex-rel-bd-of-trustees-of-nat-automatic/
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a similar approach. See, e. g., Nash Eng. ; ; Hey Kiley Man, See also Note, Thus, if we consider the language of the statute, its broad purpose to provide protection comparable to that afforded by *603 state mechanic's lien laws on private contracts, and its specific purpose to provide protection for laborers performing work on federal projects, we must conclude that employees of a "sub-subcontractor" who actually perform work on the job are protected. II The contrary argument rests almost entirely[14] on a statement in the Committee Reports that draws a distinction *604 between a "sub-subcontractor" and "more remote relationships."[15] I believe the significance of that statement has been overemphasized. Those who have participated in the making of legislative history know that congressional reports sometimes contain statements that are merely intended to summarize portions of the hearings or to answer testimony expressing specific concerns about a bill. For this reason, the hearings should be examined in order to understand the excerpt on which the Court relies. In three days of testimony, the coverage of the Act was mentioned only briefly. A witness for a surety company raised the specter of remote material men seeking to recover as "subcontractors," an idea Congressman Miller quickly rejected: "Colonel PROCTOR. [If] it will cover everybody all the way down the line whether the work goes into the job or not you have an insurance policy and not a surety. For example, if it will cover the labor of the quarryman that strips the quarry, that he is a subcontractor to the man that cuts the stone, that he is a subcontractor with the man that lays the stone and he is a subcontractor with the general contractor, you have a situation there that is an insurance policy and not a bond. *605 "Mr. MILLER. We are not figuring in going into all the subcontractors." at 61-62 (emphasis added). This colloquy was concerned with the danger that the term "subcontractor" might be used loosely to describe the suppliers or employees of material men. It was that danger that I believe the Committee Report was intended to forestall. Obviously, suppliers or employees of materialmen do not provide "work [that] goes into the job." They are not considered "subcontractors" under the most common usage in the construction trades, as this Court recognized when it construed the Miller Act to bar the claims of remote material men and their employees. Clifford F. MacEvoy It is the "remote relationship" of persons like the quarryman and the stonecutter mentioned in the hearings that I believe the author of the
|
Justice Kennedy
| 2,001 | 4 |
concurring
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Lorillard Tobacco Co. v. Reilly
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The obvious overbreadth of the outdoor advertising restrictions suffices to invalidate them under the fourth part of the test in Central Hudson Gas & Elec. As a result, in my view, there is no need to consider whether the restrictions satisfy the third part of the test, a proposition about which there is considerable doubt. Cf. post, at 583-584 Neither are we required to consider whether Central Hudson should be retained in the face of the substantial objections that can be made to it. See post, at 5-582 (opinion of Thomas, J.). My continuing concerns that the test gives *572 insufficient protection to truthful, nonmisleading commercial speech require me to refrain from expressing agreement with the Court's application of the third part of Central Hudson. See, e. g., 44 With the exception of Part III-B-1, then, I join the opinion of the Court. Justice Thomas, concurring in part and concurring in the judgment. I join the opinion of the Court (with the exception of Part III-B-1) because I agree that the Massachusetts cigarette advertising regulations are pre-empted by the Federal Cigarette Labeling and Advertising Act, 15 U.S. C. 1331 et seq. I also agree with the Court's disposition of the First Amendment challenges to the other regulations at issue here, and I share the Court's view that the regulations fail even the intermediate scrutiny of Central Hudson Gas & Elec. At the same time, I continue to believe that when the government seeks to restrict truthful speech in order to suppress the ideas it conveys, strict scrutiny is appropriate, whether or not the speech in question may be characterized as "commercial." See 44 I would subject all of the advertising restrictions to strict scrutiny and would hold that they violate the First Amendment. I At the heart of this litigation is a Massachusetts regulation that imposes a sweeping ban on speech about tobacco products. 940 Code of Mass. Regs. 21.04(5) which governs cigarettes and smokeless tobacco, and 22.06(5), which governs cigars, prohibit all outdoor advertising, all indoor advertising that can be seen from outdoors, and all point-ofsale advertising (even if not visible from outdoors) that is *573 lower than five feet from the floor.[1] These restrictions are superficially limited in their geographic scope: They apply only within 1,000 feet of "any public playground, playground area in a public park, elementary school or secondary school." 21.04(5)(a). But the Court of Appeals acknowledged that the zone of prohibition covers as much as 90 percent of the three largest cities in Massachusetts, Consolidated Cigar so the practical effect is little different from that
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Cigar so the practical effect is little different from that of a total ban. Cf. United Respondents suggest in passing that the regulations are "zoning-type restrictions" that should receive "the intermediate level of scrutiny traditionally associated with various forms of `time, place, and manner' regulations." Brief for Respondents 31. We have indeed upheld time, place, and manner regulations that prohibited certain kinds of outdoor signs, see, e. g., Members of City Council of Los and we have similarly upheld zoning laws that had the effect of restricting certain kinds of sexually explicit expression, see, e. g., But the abiding characteristic of valid time, place, and manner regulations is their content neutrality. See In Vincent the city prohibited all signs on public property, not to suppress *5 the message conveyed by any of the signs, but simply to minimize the esthetic effect of visual clutter. Likewise, the ordinance in Renton was aimed not at expression, but at the "secondary effects" caused by adult businesses. The regulations here are very different. Massachusetts is not concerned with any "secondary effects" of tobacco advertisingit is concerned with the advertising's primary effect, which is to induce those who view the advertisements to purchase and use tobacco products. Cf. In other words, it seeks to suppress speech about tobacco because it objects to the content of that speech. We have consistently applied strict scrutiny to such contentbased regulations of speech. See, e. g., Turner Broadcasting System, A There was once a time when this Court declined to give any First Amendment protection to commercial speech. In the Court went so far as to say that "the Constitution imposes [no] restraint on government as respects purely commercial advertising." That position was repudiated in Virginia of which explained that even speech "which does `no more than propose a commercial transaction' " is protected by the First Amendment. ). Since then, the Court has followed an uncertain coursemuch of the uncertainty being generated by the malleability of the four-part balancing test of Central Hudson. See 44 -522 *575 I have observed previously that there is no "philosophical or historical basis for asserting that `commercial' speech is of `lower value' than `noncommercial' speech." Indeed, I doubt whether it is even possible to draw a coherent distinction between commercial and noncommercial speech. See n. 4 ).[2] It should be clear that if these regulations targeted anything other than advertising for commercial productsif, for example, they were directed at billboards promoting political candidatesall would agree that the restrictions should be subjected to strict scrutiny. In my view, an asserted government interest in
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strict scrutiny. In my view, an asserted government interest in keeping people ignorant by suppressing expression "is per se illegitimate and can no more justify regulation of `commercial' speech than it can justify regulation of `noncommercial' speech." 517 U.S., at That is essentially the interest asserted here, and, adhering to the views I expressed in 44 I would subject the Massachusetts regulations to strict scrutiny. B Even if one accepts the premise that commercial speech generally is entitled to a lower level of constitutional protection than are other forms of speech, it does not follow that the regulations here deserve anything less than strict scrutiny. Although we have recognized several categories of *576 speech that normally receive reduced First Amendment protection, or no First Amendment protection at all, we have never held that the government may regulate speech within those categories in any way that it wishes. Rather, we have said "that these areas of speech can, consistently with the First Amendment, be regulated because of their constitutionally proscribable content. " R. A. V. v. St. Paul, 5 U.S. Even when speech falls into a category of reduced constitutional protection, the government may not engage in content discrimination for reasons unrelated to those characteristics of the speech that place it within the category. For example, a city may ban obscenity ), but it may not ban "only those legally obscene works that contain criticism of the city government." R. A. V., In explaining the distinction between commercial speech and other forms of speech, we have emphasized that commercial speech is both "more easily verifiable by its disseminator" and less likely to be "chilled by proper regulation." Virginia n. 24. These characteristics led us to conclude that, in the context of commercial speech, it is "less necessary to tolerate inaccurate statements for fear of silencing the speaker," and also that it is more "appropriate to require that a commercial message appear in such a form, or include such additional information, warnings, and disclaimers, as are necessary to prevent its being deceptive." Whatever the validity of this reasoning, it is limited to the peculiarly commercial harms that commercial speech can threateni. e., the risk of deceptive or misleading advertising. As we observed in R. A. V.: "[A] State may choose to regulate price advertising in one industry but not in others, because the risk of fraud (one of the characteristics of commercial speech that justifies depriving it of full First Amendment protection) is in its view greater there. But a State may not prohibit *577 only that commercial advertising that depicts men
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not prohibit *577 only that commercial advertising that depicts men in a demeaning fashion." 5 U.S., at 388-389 In 44 several Members of the Court said much the same thing: "[W]hen a State entirely prohibits the dissemination of truthful, nonmisleading commercial messages for reasons unrelated to the preservation of a fair bargaining process, there is far less reason to depart from the rigorous review that the First Amendment generally demands." 517 U.S., at 1 Whatever power the State may have to regulate commercial speech, it may not use that power to limit the content of commercial speech, as it has done here, "for reasons unrelated to the preservation of a fair bargaining process." Such content-discriminatory regulationlike all other contentbased regulation of speechmust be subjected to strict scrutiny. C In an effort to avoid the implications of these basic principles of First Amendment law, respondents make two principal claims. First, they argue that the regulations target deceptive and misleading speech. See Brief for Respondents 33 )). Second, they argue that the regulations restrict speech that promotes an illegal transactioni. e., the sale of tobacco to minors. See Brief for Respondents 15 ("The regulations exhibit a close connection to a commercial transaction the State has prohibited"). Neither theory is properly before the Court. For purposes of summary judgment, respondents were willing to assume *578 "that the tobacco advertisements at issue here are truthful, nonmisleading speech about a lawful activity." Although respondents now claim that they have not conceded this point, see Brief for Respondents 35, n. 17, the fact remains that they did not urge their theories in the lower courts, and in general, we do not consider arguments for affirmance that were not presented below. See, e. g., These concessions should make this an easy case, one clearly controlled by 44 and by Greater New Orleans Broadcasting Assn., At all events, even if we were to entertain these arguments, neither is persuasive. Respondents suggest that tobacco advertising is misleading because "its youthful imagery and sheer ubiquity" leads children to believe "that tobacco use is desirable and pervasive." Brief for Respondents 33; see also Brief for United States as Amicus Curiae 7 ("[S]o many children lack the maturity in judgment to resist the tobacco industry's appeals to excitement, glamour, and independence"). This justification is belied, however, by the sweeping over inclusivity of the regulations. Massachusetts has done nothing to target its prohibition to advertisements appealing to "excitement, glamour, and independence"; the ban applies with equal force to appeals to torpor, homeliness, and servility. It has not focused on "youthful imagery"; smokers depicted
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servility. It has not focused on "youthful imagery"; smokers depicted on the sides of buildings may no more play shuffleboard than they may ride skateboards. The regulations even prohibit a store from accurately stating the prices at which cigarettes are sold. Such a display could not possibly be misleading, unless one accepts the State's apparent view that the simple existence of tobacco advertisements misleads people into believing that tobacco use is more pervasive than it actually is. The State misunderstands the purpose of advertising. Promoting a product that is not yet pervasively used (or a cause that is not yet *579 widely supported) is a primary purpose of advertising. Tobacco advertisements would be no more misleading for suggesting pervasive use of tobacco products than are any other advertisements that attempt to expand a market for a product, or to rally support for a political movement. Any inference from the advertisements that businesses would like for tobacco use to be pervasive is entirely reasonable, and advertising that gives rise to that inference is in no way deceptive. The State also contends that tobacco advertisements may be restricted because they propose an illegal sale of tobacco to minors. A direct solicitation of unlawful activity may of course be proscribed, whether or not it is commercial in nature. See The State's power to punish speech that solicits or incites crime has nothing to do with the commercial character of the speech. After all, it is often the case that solicitation to commit a crime is entirely noncommercial. The harm that the State seeks to prevent is the harm caused by the unlawful activity that is solicited; it is unrelated to the commercial transaction itself. Thus there is no reason to apply anything other than our usual rule for evaluating solicitation and incitement simply because the speech in question happens to be commercial. See Viewed as an effort to proscribe solicitation to unlawful conduct, these regulations clearly fail the Brandenburg test. A State may not "forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action." Brandenburg, Even if Massachusetts could prohibit advertisements reading, "Hey kids, buy cigarettes here," these regulations sweep much more broadly than that. They cover "any statement or representation the purpose or effect of which is to promote the use or sale" of tobacco products, whether or not the statement is directly or indirectly *580 addressed to minors. 940 Code of Mass. Regs. 21.03 On respondents'
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to minors. 940 Code of Mass. Regs. 21.03 On respondents' theory, all tobacco advertising may be limited because some of its viewers may not legally act on it. It is difficult to see any stopping point to a rule that would allow a State to prohibit all speech in favor of an activity in which it is illegal for minors to engage. Presumably, the State could ban car advertisements in an effort to enforce its restrictions on underage driving. It could regulate advertisements urging people to vote, because children are not permitted to vote. And, although the Solicitor General resisted this implication of her theory, see Tr. of Oral Arg. 55-56, the State could prohibit advertisements for adult businesses, which children are forbidden to patronize. At bottom, respondents' theory rests on the premise that an indirect solicitation is enough to empower the State to regulate speech, and that, as petitioners put it, even an advertisement directed at adults "will give any children who may happen to see it the wrong idea and therefore must be suppressed from public view." Brief for Petitioners Lorillard Tobacco Co. et al. in No. 00-596, p. 36. This view is foreign to the First Amendment. "Every idea is an incitement," 268 U.S. 2, and if speech may be suppressed whenever it might inspire someone to act unlawfully, then there is no limit to the State's censorial power. Cf. American Booksellers Assn., aff'd, There is a deeper flaw in the State's argument. Even if Massachusetts has a valid interest in regulating speech directed at childrenwho, it argues, may be more easily misled, and to whom the sale of tobacco products is unlawful it may not pursue that interest at the expense of the free speech rights of adults. The theory that public debate should be limited in order to protect impressionable children has a long historical pedigree: *581 Socrates was condemned for being "a doer of evil, inasmuch as he corrupts the youth." 1 Dialogues of Plato, Apology 348 (B. Jowett transl., 4th ed. 1953). But the theory has met with a less enthusiastic reception in this Court than it did in the Athenian assembly. In we struck down a statute restricting the sale of materials "`tending to incite minors to violent or depraved or immoral acts.' " (quoting then Mich. Penal Code 343). The effect of the law, we observed, was "to reduce the adult population of Michigan to reading only what is fit for children." 352 U.S., at As Justice Frankfurter colorfully put it, "Surely, this is to burn the house to roast the
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"Surely, this is to burn the house to roast the pig." We have held consistently that speech "cannot be suppressed solely to protect the young from ideas or images that a legislative body thinks unsuitable for them." 422 U.S. ; accord, To be sure, in we upheld the Federal Communications Commission's power to regulate indecent but nonobscene radio broadcasts. But relied heavily on what it considered to be the "special justifications for regulation of the broadcast media that are not applicable to other speakers." It emphasized that radio is "uniquely pervasive" and "uniquely accessible to children, even those too young to read." Outside of the broadcasting context, we have adhered to the view that "the governmental interest in protecting children from harmful materials" does not "justify an unnecessarily broad suppression of speech addressed to adults." ; see also Playboy Massachusetts may not avoid the application of strict scrutiny simply because it seeks to protect children. II Under strict scrutiny, the advertising ban may be saved only if it is narrowly tailored to promote a compelling government interest. See, e. g., If that interest could be served by an alternative that is less restrictive of speech, then the State must use that alternative instead. See ; Applying this standard, the regulations here must fail. A Massachusetts asserts a compelling interest in reducing tobacco use among minors. Applied to adults, an interest in manipulating market choices by keeping people ignorant would not be legitimate, let alone compelling. See But assuming that there is a compelling interest in reducing underage smoking, and that the ban on outdoor advertising promotes this interest, I doubt that the same is true of the ban on point-of-sale advertising below five feet. See 940 Code of Mass. Regs. 21.04(5)(b), 22.06(5)(b) The Court of Appeals admitted to having "some misgivings about the effectiveness of a restriction that is based on the assumption that minors under five feet tall will not, or will less frequently, raise their view above eye-level," as well it might have, since respondents have produced no evidence to support this counterintuitive assumption. Obviously even short children can see objects that are taller than they are. Anyway, by the time they are 12[1]20442 years old, both the median girl and the median boy are over five feet tall. See U. S. Centers for Disease Control and Prevention, Growth Charts Thus, there is no reason to believe that this regulation does anything to protect minors from *583 exposure to tobacco advertising.[3] Far from serving a compelling interest, the ban on displays below five feet seems to lack even
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ban on displays below five feet seems to lack even a minimally rational relationship to any conceivable interest. There is also considerable reason to doubt that the restrictions on cigar and smokeless tobacco outdoor advertising promote any state interest. Outdoor advertising for cigars, after all, is virtually nonexistent. Cigar makers use no billboards in Massachusetts, and in fact their nationwide outdoor advertising budget is only about $,000 per year. See To the extent outdoor advertising exists, there is no evidence that it is targeted at youth or has a significant effect on youth. The Court of Appeals focused on the State's evidence of a relationship between "tobacco advertising and tobacco use," thus eliding the dearth of evidence showing any relationship between cigar advertising and cigar use by minors. Respondents principally rely on a National Cancer Institute report on cigar smoking, see Brief for Respondents 39, n. 19. But that report contains only the conclusory assertion that cigars are being "heavily promoted in ways likely to influence adolescent use," and it does not even discuss outdoor advertising, instead focusing on "[e]ndorsements by celebrities," "the resurgence *584 of cigar smoking in movies," and "cigar lifestyle magazines such as `Cigar Aficionado.' " National Cancer Institute, Cigars: Health Effects and Trends, Smoking and Tobacco Control Monograph No. 9, pp. 14-15 (1998), Record, Doc. No. 39, Exh. 67. The report candidly acknowledges that "[a]dditional information is needed to better characterize marketing efforts for cigars" and "to learn the extent to which advertising and promotion for cigars reaches and affects kids." In other words, respondents have adduced no evidence that a ban on cigar advertising will do anything to promote their asserted interest. Much the same is true of smokeless tobacco. Here respondents place primary reliance on evidence that, in the late 1960's, the U. S. Smokeless Tobacco Company increased its sales through advertising targeted at young males. See Brief for Respondents 39, n. 19. But this does nothing to show that advertising affecting minors is a problem today. The Court invokes the Food and Drug Administration's findings, see ante, at 559-560, but the report it cites based its conclusions on the observed "very large increase in the use of smokeless tobacco products by young people." This premise is contradicted by one of respondents' own studies, which reports a large, steady decrease in smokeless tobacco use among Massachusetts high school students during the 1990's. See App. 292. This finding casts some doubt on whether the State's interest in additional regulation is truly compelling. More importantly, because cigarette smoking among high school students has not exhibited such
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cigarette smoking among high school students has not exhibited such a trend, see ib it indicates that respondents' effort to aggregate cigarettes and smokeless tobacco is misguided. B In any case, even assuming that the regulations advance a compelling state interest, they must be struck down because they are not narrowly tailored. The Court is correct, see ante, at 561-563, that the arbitrary 1,000-foot radius demonstrates *585 a lack of narrow tailoring, but the problem goes deeper than that. A prohibited zone defined solely by circles drawn around schools and playgrounds is necessarily overinclusive, regardless of the radii of the circles. Consider, for example, a billboard located within 1,000 feet of a school but visible only from an elevated freeway that runs nearby. Such a billboard would not threaten any of the interests respondents assert, but it would be banned anyway, because the regulations take no account of whether the advertisement could even be seen by children. The prohibited zone is even more suspect where, as here, it includes all but 10 percent of the area in the three largest cities in the State. The loose tailoring of the advertising ban is displayed not only in its geographic scope but also in the nature of the advertisements it affects. The regulations define "advertisement" very broadly; the term includes any "written statement or representation, made by" a person who sells tobacco products, "the purpose or effect of which is to promote the use or sale of the product." 940 Code of Mass. Regs. 21.03 Almost everything a business does has the purpose of promoting the sale of its products, so this definition would cover anything a tobacco retailer might say. Some of the prohibited speech would not even be commercial. If a store displayed a sign promoting a candidate for Attorney General who had promised to repeal the tobacco regulations if elected, it probably would be doing so with the longterm purpose of promoting sales, and the display of such a sign would be illegal. Even if the definition of "advertisement" were read more narrowly so as to require a specific reference to tobacco products, it still would have Draconian effects. It would, for example, prohibit a tobacconist from displaying a sign reading "Joe's Cigar Shop." The effect of this rule is not to make cigars impossible to find; retailers are after all allowed to display a 576-square-inch black-and-white sign reading "Tobacco Products Sold Here." 22.06(6). Rather, it is to *586 make individual cigar retailers more difficult to identify by making them change their names. Respondents assert no interest in cigar
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them change their names. Respondents assert no interest in cigar retailer anonymity, and it is difficult to conceive of any other interest to which this rule could be said to be narrowly tailored. The regulations fail the narrow tailoring inquiry for another, more fundamental reason. In addition to examining a narrower advertising ban, the State should have examined ways of advancing its interest that do not require limiting speech at all. Here, respondents had several alternatives. Most obviously, they could have directly regulated the conduct with which they were concerned. See, e. g., ; see also 44 ("[I]t would seem that directly banning a product (or otherwise restricting its sale in specific ways) would virtually always be at least as effective in discouraging consumption as merely restricting advertising"). Massachusetts already prohibits the sale of tobacco to minors, but it could take steps to enforce that prohibition more vigorously. It also could enact laws prohibiting the purchase, possession, or use of tobacco by minors. And, if its concern is that tobacco advertising communicates a message with which it disagrees, it could seek to counteract that message with "more speech, not enforced silence," III Underlying many of the arguments of respondents and their amici is the idea that tobacco is in some sense sui generis that it is so special, so unlike any other object of regulation, that application of normal First Amendment principles should be suspended. See, e. g., Brief for Respondents *587 (referring to tobacco use as "one of the State'sand indeed the Nation'smost urgent problems"); Brief for United States as Amicus Curiae 19-20 (cataloging the prevalence and the effects of tobacco use); Brief for American Medical Association et al. as Amici Curiae 24 (advocating "the authority of governments to protect children from uniquely dangerous messages"). Smoking poses serious health risks, and advertising may induce children (who lack the judgment to make an intelligent decision about whether to smoke) to begin smoking, which can lead to addiction. The State's assessment of the urgency of the problem posed by tobacco is a policy judgment, and it is not this Court's place to secondguess it. Nevertheless, it seems appropriate to point out that to uphold the Massachusetts tobacco regulations would be to accept a line of reasoning that would permit restrictions on advertising for a host of other products. Tobacco use is, we are told, "the single leading cause of preventable death in the United States." Brief for United States as Amicus Curiae 19. The second largest contributor to mortality rates in the United States is obesity. Koplan & Dietz, Caloric Imbalance
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the United States is obesity. Koplan & Dietz, Caloric Imbalance and Public Health Policy, It is associated with increased incidence of diabetes, hypertension, and coronary artery disease, ib and it represents a public health problem that is rapidly growing worse. See Mokdad et al., The Spread of the Obesity Epidemic in the United States, 1991-1998, Although the growth of obesity over the last few decades has had many causes, a significant factor has been the increased availability of large quantities of highcalorie, high-fat foods. See Hill, Environmental Contributions to the Obesity Epidemic, 280 Science 1371 (1998). Such foods, of course, have been aggressively marketed and promoted by fast food companies. See Nestle & Jacobson, Halting the Obesity Epidemic, U. S. Dept. of Health and Human Services, 115 Public Health Reports 12, 18 *588 Respondents say that tobacco companies are covertly targeting children in their advertising. Fast food companies do so openly. See, e. g., Kramer, McD's Steals Another Toy from BK, Advertising Age, Nov. 15, p. 1 (describing a McDonald's promotional campaign); Lucas, BK Takes Choice Message to Kids, Adweek, June 29, 1998, p. 4 (describing a Burger King promotional campaign). Moreover, there is considerable evidence that they have been successful in changing children's eating behavior. See Borzekowski & Robinson, The 30-Second Effect, 101 J. Am. Dietetic Assn. 42 ; Taras, Sallis, Patterson, Nader, & Nelson, Television's Influence on Children's Diet and Physical Activity, 10 J. Dev. & Behav. Pediatrics 176 The effect of advertising on children's eating habits is significant for two reasons. First, childhood obesity is a serious health problem in its own right. Troiano & Flegal, Overweight Children and Adolescents, 101 Pediatrics 497 (1998). Second, eating preferences formed in childhood tend to persist in adulthood. Birch & Fisher, Development of Eating Behaviors Among Children and Adolescents, 101 Pediatrics 539 (1998). So even though fast food is not addictive in the same way tobacco is, children's exposure to fast food advertising can have deleterious consequences that are difficult to reverse. To take another example, the third largest cause of preventable deaths in the United States is alcohol. McGinnis & Foege, Actual Causes of Death in the United States, Alcohol use is associated with tens of thousands of deaths each year from cancers and digestive diseases. at -2209. And the victims of alcohol use are not limited to those who drink alcohol. In 1996, over 17,000 people were killed, and over000 people were injured, in alcohol-related car accidents. U. S. Dept. of Justice, Alcohol and Crime 13 (1998). Each year, alcohol is involved in several million violent crimes, including
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year, alcohol is involved in several million violent crimes, including almost 200,000 sexual assaults. *589 Although every State prohibits the sale of alcohol to those under age 21, much alcohol advertising is viewed by children. Federal Trade Commission, J. Evans & R. Kelly, SelfRegulation in the Alcohol Industry ; Grube & Wallack, Television Beer Advertising and Drinking Knowledge, Beliefs, and Intentions among Schoolchildren, 84 Am. J. Pub. Health 254 Not surprisingly, there is considerable evidence that exposure to alcohol advertising is associated with underage drinking. See Atkin, Survey and Experimental Research on Effects of Alcohol Advertising, in The Effects of the Mass Media on the Use and Abuse of Alcohol 39 ; Madden & Grube, The Frequency and Nature of Alcohol and Tobacco Advertising in Televised Sports, 1990 through 1992, 84 Am. J. Pub. Health 297 Like underage tobacco use, underage drinking has effects that cannot be undone later in life. Those who begin drinking early are much more likely to become dependent on alcohol. Indeed, the probability of lifetime alcohol dependence decreases approximately 14 percent with each additional year of age at which alcohol is first used. Grant & Dawson, Age at Onset of Alcohol Use and its Association with DSMIV Alcohol Abuse and Dependence, 9 J. Substance Abuse 103, 108 And obviously the effects of underage drinking are irreversible for the nearly 1,700 Americans killed each year by teenage drunk drivers. See National Highway Traffic Safety Administration, 1998 Youth Fatal Crash and Alcohol Facts. Respondents have identified no principle of law or logic that would preclude the imposition of restrictions on fast food and alcohol advertising similar to those they seek to impose on tobacco advertising. Cf. Tr. of Oral Arg. 56-57. In effect, they seek a "vice" exception to the First Amendment. No such exception exists. See 44 -514 If it did, it would have almost no limit, for "any product that poses some threat to *590 public health or public morals might reasonably be characterized by a state legislature as relating to `vice activity.' " That is why "a `vice' label that is unaccompanied by a corresponding prohibition against the commercial behavior at issue fails to provide a principled justification for the regulation of commercial speech about that activity." No legislature has ever sought to restrict speech about an activity it regarded as harmless and inoffensive. Calls for limits on expression always are made when the specter of some threatened harm is looming. The identity of the harm may vary. People will be inspired by totalitarian dogmas and subvert the Republic. They will be inflamed by
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dogmas and subvert the Republic. They will be inflamed by racial demagoguery and embrace hatred and bigotry. Or they will be enticed by cigarette advertisements and choose to smoke, risking disease. It is therefore no answer for the State to say that the makers of cigarettes are doing harm: perhaps they are. But in that respect they are no different from the purveyors of other harmful products, or the advocates of harmful ideas. When the State seeks to silence them, they are all entitled to the protection of the First Amendment. Justice Souter, concurring in part and dissenting in part. I join Parts I, II-C, II-D, III-A, III-B-1, III-C, and III-D of the Court's opinion. I join Part I of the opinion of Justice Stevens concurring in part, concurring in the judgment in part, and dissenting in part. I respectfully dissent from Part III-B-2 of the opinion of the Court, and like Justice Stevens would remand for trial on the constitutionality of the 1,000-foot limit. Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, and with whom Justice Souter joins as to Part I, concurring in part, concurring in the judgment in part, and dissenting in part. This suit presents two separate sets of issues. The first involving pre-emptionis straightforward. The second *591 involving the First Amendmentis more complex. Because I strongly disagree with the Court's conclusion that the Federal Cigarette Labeling and Advertising Act of 19 (FCLAA or Act), 15 U.S. C. 1331 et seq., as amended, precludes States and localities from regulating the location of cigarette advertising, I dissent from Parts II-A and II-B of the Court's opinion. On the First Amendment questions, I agree with the Court both that the outdoor advertising restrictions imposed by Massachusetts serve legitimate and important state interests and that the record does not indicate that the measures were properly tailored to serve those interests. Because the present record does not enable us to adjudicate the merits of those claims on summary judgment, I would vacate the decision upholding those restrictions and remand for trial on the constitutionality of the outdoor advertising regulations. Finally, because I do not believe that either the point-of-sale advertising restrictions or the sales practice restrictions implicate significant First Amendment concerns, I would uphold them in their entirety. I As the majority acknowledges, ante, 1-542, under prevailing principles, any examination of the scope of a preemption provision must "`start with the assumption that the historic police powers of the States [are] not to be superseded by Federal Act unless that [is] the clear and manifest purpose of Congress.'
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unless that [is] the clear and manifest purpose of Congress.' " 5 U.S. 4, ; see also, e. g., California Div. of Labor Standards ; U.S. 470, As the regulations at issue in this suit implicate two powers that lie at the heart of the States' traditional police powerthe power to regulate land usage and the power to protect the health and safety of minorsour precedents require that the Court construe the pre-emption provision "narrow[ly]." 5; *592 see also 5 U. S., at If Congress' intent to pre-empt a particular category of regulation is ambiguous, such regulations are not pre-empted.[1] The text of the pre-emption provision must be viewed in context, with proper attention paid to the history, structure, and purpose of the regulatory scheme in which it appears. See, e. g., U. S., 4-486; New York State Conference of Blue Cross & Blue Shield 5-6 ; 5 U. S., at 513-515, 519-520, 529, 530, n. 27; accord, ante, 2.[2] An assessment of the scope of a pre-emption provision must give effect to a "reasoned understanding of the way in which Congress intended the statute and its surrounding regulatory scheme to affect business, consumers, and the law." U. S., 6. This task, properly performed, leads inexorably to the conclusion that Congress did not intend to pre-empt state and local regulations of the location of cigarette advertising when it adopted the provision at issue in this suit. In both 19 and 1969, Congress made clear the purposes of its regulatory *593 endeavor, explaining with precision the federal policies motivating its actions. According to the Acts, Congress adopted a "comprehensive Federal Program to deal with cigarette labeling and advertising with respect to any relationship between smoking and health," for two reasons: (1) to inform the public that smoking may be hazardous to health and (2) to ensure that commerce and the interstate economy not be "impeded by diverse, nonuniform, and confusing cigarette labeling and advertising regulations with respect to any relationship between smoking and health." 15 U.S. C. 1331. In order to serve the second purpose it was necessary to pre-empt state regulation of the content of both cigarette labels and cigarette advertising. If one State required the inclusion of a particular warning on the package of cigarettes while another State demanded a different formulation, cigarette manufacturers would have been forced into the difficult and costly practice of producing different packaging for use in different States. To foreclose the waste of resources that would be entailed by such a patchwork regulatory system, Congress expressly precluded other regulators from requiring the placement on
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
|
https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
|
Congress expressly precluded other regulators from requiring the placement on cigarette packaging of any "statement relating to smoking and health." 1334(a). Similar concerns applied to cigarette advertising. If different regulatory bodies required that different warnings or statements be used when cigarette manufacturers advertised their products, the text and layout of a company's ads would have had to differ from locale to locale. The resulting costs would have come with little or no health benefit. Moreover, given the nature of publishing, it might well have been the case that cigarette companies would not have been able to advertise in national publications without violating the laws of some jurisdictions. In response to these concerns, Congress adopted a parallel provision pre-empting state and local regulations requiring inclusion in cigarette advertising of any "statement relating to smoking and health." 1334(b) (1970 ed.) (amended 1970). *594 There was, however, no need to interfere with state or local zoning laws or other regulations prescribing limitations on the location of signs or billboards. Laws prohibiting a cigarette company from hanging a billboard near a school in Boston in no way conflict with laws permitting the hanging of such a billboard in other jurisdictions. Nor would such laws even impose a significant administrative burden on would-be advertisers, as the great majority of localities impose general restrictions on signage, thus requiring advertisers to examine local law before posting signs whether or not cigarette-specific laws are pre-empted. See Greater N. Y. Metropolitan Food Council, Hence, it is unsurprising that Congress did not include any provision in the 19 Act pre-empting location restrictions. The Public Health Cigarette Smoking Act of 1969 (1969 Act), 2, made two important changes in the pre-emption provision. First, it limited the applicability of the advertising prong to States and localities, paving the way for further federal regulation of cigarette advertising. FCLAA, 4. Second, it expanded the scope of the advertising pre-emption provision. Where previously States were prohibited from requiring particular statements in cigarette advertising based on health concerns, they would henceforth be prohibited from imposing any "requirement or prohibition based on smoking and health with respect to the advertising or promotion" of cigarettes. 5(b), 15 U.S. C. 1334(b).[3] *595 Ripped from its context, this provision could theoretically be read as a breathtaking expansion of the limitations imposed by the 19 Act. However, both our precedents and common sense require us to read statutory provisionsand, in particular, pre-emption clausesin the context of both their neighboring provisions and of the history and purpose of the statutory scheme. See When so viewed, it is quite clear that the 1969
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
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https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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When so viewed, it is quite clear that the 1969 amendments were intended to expand the provision to capture a narrow set of content regulations that would have escaped pre-emption under the prior provision, not to fundamentally reorder the division of regulatory authority between the Federal and State Governments. All signs point inescapably to the conclusion that Congress only intended to pre-empt content regulations in the 1969 Act. It is of crucial importance that, in making modifications of the pre-emption provision, Congress did not alter the statement laying out the federal policies the provision was intended to serve. See 15 U.S. C. 1331. To this day, the stated federal policies in this area are (1) to inform the public of the dangers of cigarette smoking and (2) to protect the cigarette companies from the burdens of confusing and contradictory state regulations of their labels and advertisements. See The retention of this provision unchanged is strong evidence that Congress' only intention in expanding the pre-emption clause was to capture forms of content regulation that had fallen through the cracks of the prior provisionfor example, state laws prohibiting cigarette manufacturers from making particular claims in their advertising or requiring them to utilize specified layouts or include particular graphics in their marketing.[4] *596 The legislative history of the provision also supports such a reading. The record does not contain any evidence that Congress intended to expand the scope of pre-emption beyond content restrictions.[5] To the contrary, the Senate Report makes it clear that the changes merely "clarified" the scope of the original provision. S. Rep. No. 91-566, p. 12 Even as amended, Congress perceived the provision as "narrowly phrased" and emphasized that its purpose is to "avoid the chaos created by a multiplicity of conflicting regulations." According to the Senate Report, the changes "in no way affect the power of any state or political subdivision of any state with respect to the sale of cigarettes to minors or similar police regulations." In analyzing the scope of the pre-emption provision, the Courts of Appeals have almost uniformly concluded that state and local laws regulating the location of billboards and signs are not pre-empted. See Consolidated Cigar ; Greater New York Metropolitan Food Council, ; Federation of Advertising Industry Representatives, ; Penn Advertising of Baltimore, ; contra, 195 F.3d 10 The decisions in those cases relied heavily upon our discussion of the same pre-emption provision in 5 U. S., at 515-524. In while the Members of the Court expressed three different opinions concerning the scope of pre-emption mandated by the provision, those differences related entirely
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
|
https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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of pre-emption mandated by the provision, those differences related entirely to which, if any, of the plaintiff's claims based on the content of the defendants' advertising were pre-empted by 5. Nary a word in any of the three opinions supports the thesis that 5 should be interpreted to pre-empt state regulation of the location of signs advertising cigarettes. Indeed, seven of the nine Justices subscribed to opinions that explicitly tethered the scope of the pre-emption provision to Congress' concern with "diverse, nonuniform, and confusing cigarette labeling and advertising regulations." ; I am firmly convinced that, when Congress amended the pre-emption provision in 1969, it did not intend to expand the application of the provision beyond content regulations.[6]*598 I, therefore, find the conclusion inescapable that the zoning regulation at issue in this suit is not a "requirement or prohibition with respect to advertising" within the meaning of the 1969 Act.[7] Even if I were not so convinced, however, I would still dissent from the Court's conclusion with regard to pre-emption, because the provision is, at the very least, ambiguous. The historical record simply does not reflect that it was Congress' "`clear and manifest purpose,' " at to pre-empt attempts by States to utilize their traditional zoning authority to protect the health and welfare of minors. Absent such a manifest purpose, Massachusetts and its sister States retain their traditional police powers.[8] *599 II On the First Amendment issues raised by petitioners, my disagreements with the majority are less significant. I would, however, reach different dispositions as to the 1,000foot rule and the height restrictions for indoor advertising, and my evaluation of the sales practice restrictions differs from the Court's. The 1,000-Foot Rule I am in complete accord with the Court's analysis of the importance of the interests served by the advertising restrictions. As the Court lucidly explains, few interests are more "compelling," ante, at 564, than ensuring that minors do not become addicted to a dangerous drug before they are able to make a mature and informed decision as to the health risks associated with that substance. Unlike other products sold for human consumption, tobacco products are addictive and ultimately lethal for many long-term users. When that interest is combined with the State's concomitant concern for the effective enforcement of its laws regarding the sale of tobacco to minors, it becomes clear that Massachusetts' regulations serve interests of the highest order and are, therefore, immune from any ends-based challenge, whatever level of scrutiny one chooses to employ. Nevertheless, noble ends do not save a speech-restricting statute whose means are poorly tailored. Such
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
|
https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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save a speech-restricting statute whose means are poorly tailored. Such statutes *600 may be invalid for two different reasons. First, the means chosen may be insufficiently related to the ends they purportedly serve. See, e. g., Alternatively, the statute may be so broadly drawn that, while effectively achieving its ends, it unduly restricts communications that are unrelated to its policy aims. See, e. g., United The second difficulty is most frequently encountered when government adopts measures for the protection of children that impose substantial restrictions on the ability of adults to communicate with one another. See, e. g., Playboy Group, ; Sable Communications of Cal., To my mind, the 1,000-foot rule does not present a tailoring problem of the first type. For reasons cogently explained in our prior opinions and in the opinion of the Court, we may fairly assume that advertising stimulates consumption and, therefore, that regulations limiting advertising will facilitate efforts to stem consumption.[9] See, e. g., 514 U. S., 7; United 9 U.S. 418, ; ante, at 557. Furthermore, if the government's intention is to limit consumption by a particular segment of the communityin this case, minorsit is *601 appropriate, indeed necessary, to tailor advertising restrictions to the areas where that segment of the community congregatesin this case, the area surrounding schools and playgrounds. However, I share the majority's concern as to whether the 1,000-foot rule unduly restricts the ability of cigarette manufacturers to convey lawful information to adult consumers. This, of course, is a question of line-drawing. While a ban on all communications about a given subject would be the most effective way to prevent children from exposure to such material, the State cannot by fiat reduce the level of discourse to that which is "fit for children." ; cf. On the other hand, efforts to protect children from exposure to harmful material will undoubtedly have some spillover effect on the free speech rights of adults. See, e. g., 9-7, Finding the appropriate balance is no easy matter. Though many factors plausibly enter the equation when calculating whether a child-directed location restriction goes too far in regulating adult speech, one crucial question is whether the regulatory scheme leaves available sufficient "alternative avenues of communication." ; Members of City Council of Los ; accord, ante, at 563. Because I do not think the record contains sufficient information to enable us to answer that question, I would vacate the award of summary judgment upholding the 1,000-foot rule and remand for trial on that issue. Therefore, while I agree with the majority that the Court of Appeals did not
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
|
https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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with the majority that the Court of Appeals did not sufficiently consider the implications of the 1,000-foot rule for the lawful communication of adults, see ante, at 561-566, *602 I dissent from the disposition reflected in Part III-B-2 of the Court's opinion. There is no doubt that the 1,000-foot rule prohibits cigarette advertising in a substantial portion of Massachusetts' largest cities. Even on that question, however, the parties remain in dispute as to the percentage of these urban areas that is actually off limits to tobacco advertising. See ante, at 562. Moreover, the record is entirely silent on the impact of the regulation in other portions of the Commonwealth. The dearth of reliable statistical information as to the scope of the ban is problematic. More importantly, the Court lacks sufficient qualitative information as to the areas where cigarette advertising is prohibited and those where it is permitted. The fact that 80% or 90% of an urban area is unavailable to tobacco advertisements may be constitutionally irrelevant if the available areas are so heavily trafficked or so central to the city's cultural life that they provide a sufficient forum for the propagation of a manufacturer's message. One electric sign in Times Square or at the foot of the Golden Gate Bridge may be seen by more potential customers than a hundred signs dispersed in residential neighborhoods. Finally, the Court lacks information as to other avenues of communication available to cigarette manufacturers and retailers. For example, depending on the answers to empirical questions on which we lack data, the ubiquity of print advertisements hawking particular brands of cigarettes might suffice to inform adult consumers of the special advantages of the respective brands. Similarly, print advertisements, circulars mailed to people's homes, word of mouth, and general information may or may not be sufficient to imbue the adult population with the knowledge that particular stores, chains of stores, or types of stores sell tobacco products.[10] *603 In granting summary judgment for the respondents, the District Judge treated the First Amendment issues in this suit as pure questions of law and stated that "there are no material facts in dispute concerning these issues." With due respect, I disagree. While the ultimate question before us is one of law, the answer to that question turns on complicated factual questions relating to the practical effects of the regulations. As the record does not reveal the answer to these disputed questions of fact, the court should have denied summary judgment to both parties and allowed the parties to present further evidence. I note, moreover, that the alleged "overinclusivity"
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
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https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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present further evidence. I note, moreover, that the alleged "overinclusivity" of the advertising regulations, ante, at 578 while relevant to whether the regulations are narrowly tailored, does not "beli[e]" the claim that tobacco advertising imagery misleads children into believing that smoking is healthy, glamorous, or sophisticated, See Brief for American Legacy Foundation as Amicus Curiae 4-5, and nn. 9, 10; Brief for City of Los Angeles et al. as Amici Curiae 4 (documenting charge that advertisements for cigarettes and smokeless tobacco target underage smokers). For purposes of summary judgment, the State conceded that the tobacco companies' advertising concerns lawful activity and is not misleading. Under the Court's disposition of the cases today, the State remains free to proffer evidence that the advertising is in fact misleading. See Virginia of I would vacate the grant of summary judgment to respondents on this issue and remand for further proceedings. *604 The Sales Practice and Indoor Advertising Restrictions After addressing petitioners' challenge to the sales practice restrictions imposed by the Massachusetts statute, the Court concluded that these provisions did not violate the First Amendment. I concur in that judgment, but write separately on this issue to make two brief points. First, I agree with the District Court and the Court of Appeals that the sales practice restrictions are best analyzed as regulating conduct, not speech. See While the decision how to display one's products no doubt serves a marginal communicative function, the same can be said of virtually any human activity performed with the hope or intention of evoking the interest of others. This Court has long recognized the need to differentiate between legislation that targets expression and legislation that targets conduct for legitimate non-speech-related reasons but imposes an incidental burden on expression. See, e. g., United However difficult that line may be to draw, it seems clear to me that laws requiring that stores maintain items behind counters and prohibiting self-service displays fall squarely on the conduct side of the line. Restrictions as to the accessibility of dangerous or legally restricted products are a common feature of the regulatory regime governing American retail stores. I see nothing the least bit constitutionally problematic in requiring individuals to ask for the assistance of a salesclerk in order to examine or purchase a handgun, a bottle of penicillin, or a package of cigarettes. Second, though I admit the question is closer, I would, for similar reasons, uphold the regulation limiting tobacco advertising in certain retail establishments to the space five feet or more above the floor.[11] When viewed in isolation, this provision appears to target
|
Justice Kennedy
| 2,001 | 4 |
concurring
|
Lorillard Tobacco Co. v. Reilly
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https://www.courtlistener.com/opinion/118458/lorillard-tobacco-co-v-reilly/
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floor.[11] When viewed in isolation, this provision appears to target speech. Further, to the extent *605 that it does target speech it may well run into constitutional problems, as the connection between the ends the statute purports to serve and the means it has chosen are dubious. Nonetheless, I am ultimately persuaded that the provision is unobjectionable because it is little more than an adjunct to the other sales practice restrictions. As the Commonwealth of Massachusetts can properly legislate the placement of products and the nature of displays in its convenience stores, I would not draw a distinction between such restrictions and height restrictions on related product advertising. I would accord the Commonwealth some latitude in imposing restrictions that can have only the slightest impact on the ability of adults to purchase a poisonous product and may save some children from taking the first step on the road to addiction. III Because I strongly disagree with the Court's conclusion on the pre-emption issue, I dissent from Parts II-A and II-B of its opinion. Though I agree with much of what the Court has to say about the First Amendment, I ultimately disagree with its disposition or its reasoning on each of the regulations before us.[12]
|
Justice Ginsburg
| 2,011 | 5 |
second_dissenting
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Michigan v. Bryant
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https://www.courtlistener.com/opinion/2959736/michigan-v-bryant/
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I agree with JUSTICE SCALIA that Covington’s state ments were testimonial and that “[t]he declarant’s intent is what counts.” Ante, at 2 (dissenting opinion). Even if the interrogators’ intent were what counts, I further agree, Covington’s statements would still be testimonial. Ante, at 8. It is most likely that “the officers viewed their encounter with Covington [as] an investigation into a past crime with no ongoing or immediate consequences.” Ante, at 10. Today’s decision, JUSTICE SCALIA rightly notes, “creates an expansive exception to the Confrontation Clause for violent crimes.” In so doing, the decision confounds our recent Confrontation Clause jurisprudence, ante, at 12, which made it plain that “[r]eliability tells us nothing about whether a statement is testimonial,” ante, at 14 (emphasis deleted). I would add, however, this observation. In Crawford v. Washington, this Court noted that, in the law we inherited from England, there was a well-established exception to the confrontation require ment: The cloak protecting the accused against admission of out-of-court testimonial statements was removed for dying declarations. This historic exception, we recalled in ; see at 361–362, 368, applied to statements made by a person 2 MICHIGAN v. BRYANT GINSBURG, J., dissenting about to die and aware that death was imminent. Were the issue properly tendered here, I would take up the question whether the exception for dying declarations survives our recent Confrontation Clause decisions. The Michigan Supreme Court, however, held, as a matter of state law, that the prosecutor had abandoned the issue. See The matter, therefore, is not one the Court can address in this case.
|
Justice Brennan
| 1,975 | 13 |
dissenting
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Huffman v. Pursue, Ltd.
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https://www.courtlistener.com/opinion/109216/huffman-v-pursue-ltd/
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I dissent The treatment of the state civil proceeding as one "in aid of and closely related to criminal statutes" is obviously only the first step toward extending to state civil proceedings generally the holding of that federal courts should not interfere with pending state criminal proceedings except under extraordinary circumstances[1] Similarly, today's holding that the plaintiff in an action under 42 US C 1983 may not maintain it without first exhausting state appellate procedures for review of an adverse state trial court decision is but an obvious first step toward discard of heretofore settled law that such actions may be maintained without first exhausting state judicial remedies was basically an application, in the context of the relation of federal courts to pending state criminal prosecutions, of "the basic doctrine of equity jurisprudence that courts of equity particularly should not act to restrain a criminal prosecution" "The maxim that equity will not enjoin a criminal prosecution summarizes centuries of weighty experience in Anglo-American law" But was *614 also a decision enforcing "the national policy forbidding federal courts to stay or enjoin pending state court [criminal] proceedings except under special circumstances" See also For in decisions long antedating the Court had invested the basic maxim with particular significance as a restraint upon federal equitable interference with pending state prosecutions Not a showing of irreparable injury alone but of irreparable injury "both great and immediate" is required to justify federal injunctive relief against a pending state prosecution ; Spielman Motor Sales Injury merely "incidental to every criminal proceeding brought lawfully and in good faith" is not irreparable injury that justifies an injunction See also The line of decisions culminating in reflects this Court's longstanding recognition that equitable interference by federal courts with pending state prosecutions is incompatible in our federal system with the paramount role of the States in the definition of crimes and the enforcement of criminal laws Federal-court noninterference with state prosecution of crimes protects against "the most sensitive source of friction between States and Nation" at The tradition, however, has been quite the opposite as respects federal injunctive interference with pending state civil proceedings Even though legislation as far back as 1793 has provided in "seemingly uncompromising language," that a federal court "may not grant an injunction to stay proceedings in a State court" with specified exceptions, see 28 US C 2283, the Court has consistently engrafted *615 exceptions upon the prohibition Many, if not most, of those exceptions have been engrafted under the euphemism "implied" The story appears in at -236 Indeed, when Congress became concerned that the
|
Justice Brennan
| 1,975 | 13 |
dissenting
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Huffman v. Pursue, Ltd.
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https://www.courtlistener.com/opinion/109216/huffman-v-pursue-ltd/
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in at -236 Indeed, when Congress became concerned that the Court's 1941 decision in forecast the possibility that the 1793 Act might be enforced according to its literal terms, Congress amended the Act in 1948 "to restore `the basic law as generally understood and interpreted prior to the Toucey decision' " Thus today's extension of turns the clock back and portends once again the resuscitation of the literal command of the 1793 Anti-Injunction Act that the state courts should be free from interference by federal injunction even in civil cases This not only would overrule some 18 decades of this Court's jurisprudence but would heedlessly flout Congress' evident purpose in enacting the 1948 amendment to acquiesce in that jurisprudence The extension also threatens serious prejudice to the potential federal-court plaintiff not present when the pending state proceeding is a criminal prosecution That prosecution does not come into existence until completion of steps designed to safeguard him against spurious prosecution arrest, charge, information, or indictment In contrast, the civil proceeding, as in this case, comes into existence merely upon the filing of a complaint, whether or not well founded To deny by fiat of this Court the potential federal plaintiff a federal forum in that circumstance is obviously to arm his adversary (here the public authorities) with an easily wielded weapon to strip him of a forum and a remedy that federal statutes were enacted to assure him The Court does not escape this consequence by characterizing the state civil proceeding involved *616 here as "in aid of and closely related to criminal statutes" The nuisance action was brought into being by the mere filing of the complaint in state court, and the untoward consequences for the federal plaintiff were thereby set in train without regard to the connection, if any, of the proceeding to the State's criminal laws Even if the extension of to pending state civil proceedings can be appropriate in any case, and I do not think it can be,[2] it is plainly improper in the case of an action by a federal plaintiff, as in this case, grounded upon 42 US C 1983[3] That statute serves a particular congressional objective long recognized and enforced by the Court Today's extension will defeat that objective After the War Between the States, "nationalism dominated political thought and brought with it congressional investiture of the federal judiciary with enormously increased powers" Section 1983 was enacted at that time as 1 of the Civil Rights Act of 1871, That Act, and the Judiciary Act of 1875, which granted the federal courts general
|
Justice Brennan
| 1,975 | 13 |
dissenting
|
Huffman v. Pursue, Ltd.
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https://www.courtlistener.com/opinion/109216/huffman-v-pursue-ltd/
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Judiciary Act of 1875, which granted the federal courts general federal-question jurisdiction, completely altered Congress' pre-Civil War policy of relying on state courts to vindicate rights arising under the Constitution and federal laws 389 US, at 245- These statutes constituted the lower federal courts " `the primary and powerful reliances for vindicating every right given by the Constitution, the laws, and treaties of the United States' " Steffel v US 452, 464 The fact, standing alone, that state courts also must protect federal rights can never justify a refusal of federal courts to exercise that jurisdiction Zwickler v This is true notwithstanding the possibility of review by this Court of state decisions for, "even when available by appeal rather than only by discretionary writ of certiorari, [that possibility] is an inadequate substitute for the initial District Court determination to which the litigant is entitled in the federal courts" England v Louisiana State Board of Medical Examiners, 375 US 411, Consistently with this congressional objective of the 1871 and 1875 Acts we held in Monroe v Pape, 365 US 167, that a federal plaintiff suing under 1983 need not exhaust state administrative or judicial remedies before filing his action under 1983 in federal district court "The federal remedy is supplementary to the state remedy, and the latter need not be first sought and refused before the federal one is invoked" Ibid The extension today of to require exhaustion in an action under 1983 drastically undercuts Monroe v Pape and its numerous progenythe mere filing of a complaint against a potential 1983 litigant forces him to exhaust state remedies *618 holding that actions under 1983 are excepted from the operation of the federal anti-injunction statute, 28 US C 2283, is also undercut by today's extension of Younger Mitchum canvassed the history of 1983 and concluded that it extended "federal power in an attempt to remedy the state courts' failure to secure federal rights" 407 US, at 241 Mitchum prompted the comment that if were extended to civil cases, "much of the rigidity of section 2283 would be reintroduced, the significance of Mitchum for those seeking relief from state civil proceedings would largely be destroyed, and the recognition of section 1983 as an exception to the Anti-Injunction Statute would have been a Pyrrhic victory"[4] Today's decision fulfills that gloomy prophecy I therefore dissent from the remand and would reach the merits MR JUSTICE DOUGLAS, while joining in the opinion of MR JUSTICE BRENNAN, wishes to make clear that he adheres to the view he expressed in that federal abstention from interference with state
|
Justice Breyer
| 1,998 | 2 |
majority
|
Forney v. Apfel
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https://www.courtlistener.com/opinion/118231/forney-v-apfel/
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The question in this case is whether a Social Security disability claimant seeking court reversal of an agency decision denying benefits may appeal a district court order remanding the case to the agency for further proceedings. We conclude that the law authorizes such an I Sandra K. Forney, the petitioner, applied for Social Security disability benefits under 223 of the Social Security Act, as added, and as amended, 42 U.S. C. 423. A Social Security Administration Administrative Law Judge (ALJ) determined (1) that Forney had not worked since the *268 onset of her medical problem, and (2) that she was more than minimally disabled, but (3) that she was not disabled enough to qualify for benefits automatically. Moreover, her disability, (4) while sufficiently serious to prevent her return to her former work (cook, kitchen manager, or baker), (5) was not serious enough to prevent her from holding other jobs available in the economy (such as order clerk or telephone answering service operator). App. 12-28. The ALJ consequently denied her disability claim, at 28, and the Administration's Appeals Council denied Forney's request for review, App. to Pet. for Cert. 39-40; see generally Bowen v.Yuckert, ; 20 CFR 404.1520 Forney then sought judicial review in Federal District Court. The court found the agency's final determination that Forney could hold other jobsinadequately supported because those jobs "require frequent or constant reaching," but the record showed that Forney's "ability to reach is impaired." Forney v. Secretary, Civ. No. 94-6357 (D. Ore., May 1, 1995); App. 127-128. The District Court then entered a judgment, which remanded the case to the agency for further proceedings (pursuant to sentence four of 42 U.S. C. 405(g)). at 128. Forney sought to appeal the remand order. She contended that, because the agency had already had sufficient opportunity to prove the existence of other relevant employment (and for other reasons), its denial of benefits should be reversed outright. The Court of Appeals for the Ninth Circuit did not hear her claim, however, for it decided that Forney did not have the legal right to Forney sought certiorari. Both she and the Solicitor General agreed that Forney had the legal right to appeal from the District Court's judgment. The Solicitor General suggested that we reverse the Ninth Circuit and remand the case so that it could hear Forney's We granted certiorari *269 to consider the merits of this position, and we appointed an amicus to defend the Ninth Circuit's decision. We now agree with Forney and the Solicitor General that the Court of Appeals should have heard Forney's II Section 1291
|
Justice Breyer
| 1,998 | 2 |
majority
|
Forney v. Apfel
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https://www.courtlistener.com/opinion/118231/forney-v-apfel/
|
Court of Appeals should have heard Forney's II Section 1291 of Title 28 of the United States Code grants the "courts of appeals jurisdiction of appeals from all final decisions of the district courts." (Emphasis added.) Forney's appeal falls within the scope of this jurisdictional grant. That is because the District Court entered its judgment under the authority of the special "judicial review" provision of the Social Security Act, which says, in its fourth sentence, that "district court[s]" (reviewing, for example, agency denials of Social Security disability claims) "shall have power to enter a judgment affirming, modifying, or reversing the decision of the [agency] with or without remanding the cause for a rehearing," 42 U.S. C. 405(g) (emphasis added), and which adds, in its eighth sentence, that the "judgment of the court shall be final except that it shall be subject to review in the same manner as a judgment in other civil actions," ib This Court has previously held that this statutory language means what it says, namely, that a district court order remanding a Social Security disability benefit claim to the agency for further proceedings is a "final judgment" for purposes of 1291 and it is, therefore, appealable. ; see also (statute that requires attorney's fees application to be filed within "thirty days of final judgment" requires filing within 30 days of entry of 405(g) "sentence four" district court remand order, not within 30 days of final agency decision after remand). *270 is not identical to the case before us. It involved an appeal by the Government; this case involves an appeal by a disability benefits claimant. Moreover, the need for immediate appeal in was arguably greater than that here. The District Court there had invalidated a set of Health and Human Services regulations, and the Government might have found it difficult to obtain appellate review of this matter of general importance. Further, the Court, in said specifically that it would "express no opinion about appealability" where a party seeks to "appeal on the ground that" the district court should have granted broader n. 3. `s logic, however, makes these features of that case irrelevant here. focused upon a "class of orders" that Congress had made "appealable under 1291." It reasoned, primarily from the language of 405(g), that a district court judgment remanding a Social Security disability benefit case fell within that class. Nothing in the language, either of the statute or the Court's opinion, suggests that such an order could be "final" for purposes of appeal only when the Government seeks to appeal but not when the
|
Justice Breyer
| 1,998 | 2 |
majority
|
Forney v. Apfel
|
https://www.courtlistener.com/opinion/118231/forney-v-apfel/
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when the Government seeks to appeal but not when the claimant seeks to do so. Nor does the opinion's reasoning permit an inference that "finality" turns on the order's importance or the availability (or lack of availability) of an avenue for appeal from the different, later, agency determination that might emerge after remand. The Ninth Circuit itself recognized that the District Court's judgment was "final" for purposes of appeal, for it said that any effort "to conclude" that a judgment remanding the case is "not final for the claimant" was "inconsistent" with The court added that it would be "error for the district court to attempt to retain jurisdiction" after remanding the case; and it wrote that the remand judgment, which ended the "civil action," must be "`final' in a formalistic sense for all parties to it." Ib *271 The Court of Appeals nonetheless reached a "no appeal" conclusionbut on a different ground. It pointed out that a "party normally may not appeal [a] decision in its favor." Ib ). And it said that Forney had obtained a decision in her favor here. Because Forney "may, on remand, secure all of the relief she seeks," the court wrote, she is a "prevailing" party and therefore cannot -. We do not agree. We concede that this Court has held that a "party who receives all that he has sought generally is not aggrieved by the judgment affording the relief and cannot appeal from it." Deposit Guaranty Nat. But this Court also has clearly stated that a party is "aggrieved" and ordinarily can appeal a decision "granting in part and denying in part the remedy requested." United And this latter statement determines the outcome of this case. Forney's complaint sought as relief: "1. That this court reverse and set aside the decision denying [the] claim for disability benefits; "2. In the alternative, that this court remand the case back to the Secretary for proper evaluation of the evidence or a hearing de novo. " App. 37. The context makes clear that, from Forney's perspective, the second "alternative," which means further delay and risk, is only half a loaf. Thus, the District Court's order gives petitioner some, but not all, of the relief she requested; and she consequently can appeal the District Court's order insofar as it denies her the relief she has sought. Indeed, to hold to the contrary would deny a disability claimant the right to seek reversal (instead of remand) through a crossappeal in cases where the Government itself appeals a remand *272 order, as the Government has every right
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Justice Breyer
| 1,998 | 2 |
majority
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Forney v. Apfel
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https://www.courtlistener.com/opinion/118231/forney-v-apfel/
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a remand *272 order, as the Government has every right to do. See The Solicitor General points to many cases that find a right to appeal in roughly comparable circumstances. See Brief for Respondent 21, n. 12 ; (permitting appeal where prevailing party awarded partial backpay but denied reinstatement and front pay); La ; ; Ragen ; ). The contrary authority that amicus, through diligent efforts, has found arose in less closely analogous circumstances and consequently does not persuade us. Brief for Amicus Curiae in Support of the Judgment Below 17, and n. 13; see, e. g., (19) ; see also CH2M Hill Central, ; Director, Office of Workers' Compensation ; Finally, we recognize that the Ninth Circuit expressed concern that a rule of law permitting appeals in these circumstances would impose additional, and unnecessary, burdens upon federal appeals courts. The Solicitor General, while noting that the federal courts reviewed nearly 10,000 Social Security Administration decisions in says that the "[p]ractical [c]onsequences" of permitting appeals "[a]re limited." Brief for Respondent 26; Reply Brief for Respondent 17, n. 13. Except for unusual cases, he believes, a claimant obtaining a remand will prefer to return to the agency rather than to appeal immediately seeking outright agency reversalbecause appeal means further delay, because the chance of obtaining reversal should be small, and because the appeal (if it provokes a Government crossappeal) risks losing all. Brief for Respondent 26-29. Regardless, as we noted in congressional statutes governing appealability normally proceed by defining "classes" of cases where appeals will (or will not) 496 U.S., The statutes at issue here do not give courts the power to redefine, or to subdivide, those classes, according to whether or not they believe, in a particular case, further agency proceedings might obviate the need for an immediate Thus, if the Solicitor General proves wrong in his prediction, the remedy must be legislative in nature. For these reasons, the judgment of the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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With all due respect, I find the Court's opinion difficult to accept. The New Jersey-Delaware Compact of 1905 (Compact or 1905 Compact), Art. VII, addressed the "exercise [of] riparian jurisdiction," and the power to "make grants. of riparian rights." The particular riparian right at issue here is the right of wharfing out. All are agreed that jurisdiction and power over that right were given to New Jersey on its side of the Delaware River. The Court says, however, that that jurisdiction and power was not exclusive. I find that difficult to accept, because if Delaware could forbid the wharfing out that Article VII allowed New Jersey to permit, Article VII was a ridiculous nullity. That could not be what was meant. The Court seeks to avoid that obstacle to credibility by saying that Delaware's jurisdiction and power is limited to forbidding "activities that go beyond the exercise of ordinary and usual riparian rights." Ante, at 1423. It is only "riparian structures and operations of extraordinary character" over which Delaware retains "overlapping authority to regulate." Ante, at 1416 But that also is difficult to accept, because the Court explains neither the meaning nor the provenance of its "extraordinary character" test. The exception (whatever it means) has absolutely no basis in prior law, which regards as beyond the "ordinary and usual" (and hence beyond the legitimate) only that wharfing out which interferes with navigation. So unheard-of is the exception that its first appearance in this case is in the Court's opinion. I would sustain New Jersey's objections to the Special Master's Report. I I must begin by clearing some underbrush. One of Delaware's principal argumentsan argument accepted by the Master and implicitly accepted by the Courtis that the 1905 Compact must not be construed to limit Delaware's pre-Compact (albeit at the time unrecognized) sovereign control over the Delaware River, because of the "strong presumption against defeat of a State's title" in interpreting agreements. See Report of Special Master 42-43 (Report) ). According to Delaware, this presumption establishes that the 1905 Compact gave New Jersey the authority to allocate riparian rights, but left with Delaware *1431 the power to veto exercises of those rights under its general police-power authority. I have written of this presumption elsewhere that it "has little if any independent legal force beyond what would be dictated by normal principles of contract interpretation. It is simply a rule of presumed (or implied-in-fact) intent." United It is a manifestation of the commonsense intuition that a State will rarely contract away its sovereign power. That intuition is sound enough in almost all
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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sovereign power. That intuition is sound enough in almost all state dealings with private citizens, and in some state dealings with other States. It has no application here, however, because the whole purpose of the 1905 Compact was precisely to come to a compromise agreement on the exercise of the two States' sovereign powers. Entered into at a time when Delaware and New Jersey disputed the location of their boundary, the Compact demarcated the authority between the two States with respect to service of civil and criminal process on vessels, rights of fishery, and riparian rights on either side of the Delaware River within the circle of a 12-mile radius centered on the town of New Castle, Delaware. See Compact, Stat. 858; New (19) There is no way the Compact can be interpreted other than as a yielding by both States of what they claimed to be their sovereign powers. The only issue is what sovereign powers were yielded, and that is best determined from the language of the Compact, with no thumb on the scales. Besides relying on the presumption, the Special Master believed (and the Court believes) that New Jersey's claims must be viewed askance because it is implausible that Delaware would have "given up all governing authority over the disputed area while receiving nothing in return." Ante, at 1422. But Delaware received plenty in return. First of all, it assured access of its citizens to fisheries on the side of the river claimed by New Jerseysomething it evidently cared more about than the power to control wharfing out from the Jersey shore, which it had never theretofore exercised. And it obtained (as the Compact observed) "the amicable termination" of New Jersey's then-pending original action in the Supreme Court, which had "been pending for twenty-seven years and upwards." Stat. 858-859. How plausible it was that Delaware would give up anything to get rid of that suit surely depends upon how confident Delaware was that it would prevail. And to tell the truth, the case appeared to be going badly. As the Compact observed, the Supreme Court had issued a preliminary injunction against Delaware "restraining the execution of certain statutes of the State of Delaware relating to fisheries." The order issuing that injunction had remarked that Delaware had now "interfered with and claimed to control the right of fishing" which New Jerseyites had "heretofore been accustomed" to exercise without Delaware's interference for over 70 years. Order in New No. 1, Orig. (filed 1877), Lodging for Brief of State of Delaware in Opposition to State of New Jersey's Motion to
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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Delaware in Opposition to State of New Jersey's Motion to Reopen (Tab 1). By providing for dismissal of New Jersey's suit, the Compact assured Delaware that the Supreme Court's rather ominous sounding preliminary order would not become the Court's holding, perhaps the consequence of a rationale that gave New Jersey jurisdiction in the river. II Article VII of the 1905 Compact between New Jersey and Delaware reads as follows: *1432 "Each State may, on its own side of the river, continue to exercise riparian jurisdiction of every kind and nature, and to make grants, leases, and conveyances of riparian lands and rights under the laws of the respective States." As the Court recognizes, this provision allocates to each State jurisdiction over a bundle of rights that, at the time of the Compact, riparian landowners, or "owners of land abutting on bodies of water," possessed under the common law "by reason of their adjacency." 1 H. Farnham, Law of Waters and Water Rights 62, p. 278 (1904) (Farnham). Those riparian rights included the right to "fill in and to build wharves and other structures in the shallow water in front of [the upland] and below low-water mark." 113b, at 5. A wharf, the type of structure at issue here, "imports a place built or constructed for the purpose of loading or unloading goods." 111, at 520, n. 1. It was considered "a necessary incident of the right [to construct wharves and piers] that they shall project to a distance from the shore necessary to reach water which shall float vessels, the largest as well as the smallest, that are engaged in commerce upon the water into which they project." Thus, wharves could be built up to "the point of navigability," J. Gould, Treatise on the Law of Waters, including Riparian Rights 181, p. 352 (2d ed. 1891) (Gould), so long as they did not "interfere needlessly with the right of navigation" possessed by members of the general public upon navigable waters, 1 Farnham 111, at 521. The two States would have been acquainted with this common law. New Jersey case law comported with the hornbook rules. According to the State's Court of Errors and Appeals, it was "undoubted" and the "common understanding" that "the owners of land bounding on navigable waters had an absolute right to wharf out and otherwise reclaim the land down to and even below low water, provided that they did not thereby impede the paramount right of navigation." ; see also J. Angell, Treatise on the Right of Property in Tide Waters and in the Soil and
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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of Property in Tide Waters and in the Soil and Shores Thereof 2 (1847) ("[T]he right of a riparian proprietor to `wharf out' into a public river, is a local custom in New Jersey"); Gould 171, at 2 ("[T]he common understanding in [New Jersey] carries the right [to wharf out] even below low-water mark, provided there is no obstruction to the navigation"). Case authority in Delaware seems to be lacking, but in New II the State assured the Special Master at oral argument that "it is undoubtedly true in the State of Delaware that the upland owner had the right to wharf out. subject only that you must not obstruct navigation." 1 App. of New Jersey on Motion for Summary Judgment 126a-1 (hereinafter NJ App.). Thus, under the plain terms of the 1905 Compact, each State had "jurisdiction"the "authority of a sovereign power to govern or legislate," Webster's International Dictionary of the English Language (1898)over wharfing out on "its own side of the river." To emphasize that this jurisdiction was plenarythat it included, for example, not merely the power to prohibit wharfing out but also the power to permit itArticle VII specified that the jurisdiction it conferred would be "of every kind and nature." And finally, the jurisdictional grant was not framed as though it was conferring on either State some hitherto unexercised power. Rather, the Compact provided that each State would "continue to" exercise the allocated "riparian jurisdiction," clearly envisioning that each State would *1433 wield in the future the same authority over riparian rights it had wielded in the past. This is significant because, before adoption of the Compact in 1905, New Jersey alone had regulated the construction of riparian improvements on New Jersey's side of the Delaware River. It had repeatedly authorized the construction of piers and wharves that extended beyond the low-water line. App. to Report C-4 to C-5 (listing New Jersey Acts authorizing riparian landowners to construct wharves); 7 NJ App. 1196a-1199a. Delaware, by contrast, had never regulated riparian rights on the New Jersey side, and indeed, at the time of the Compact even on its own side there was "little evidence of [the State's] active involvement in shoreland development." Report 69. I would think all of this quite conclusive of the fact that New Jersey was given full and exclusive control over riparian rights on the New Jersey side. The Court concludes that this was not so, however, in part because of the alleged implausibility of Delaware's "giv[ing] up all governing authority while receiving nothing in return," ante, at 1422 (a mistaken contention that
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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nothing in return," ante, at 1422 (a mistaken contention that I have already addressed), and in part because "riparian jurisdiction" is different from "exclusive jurisdiction," the term used in an 18 Compact between New Jersey and New York, which referred to "the exclusive jurisdiction of and over the wharves, docks, and improvements, made and to be made on the shore" Act of June 28, 18, ch. 126, Art. Third, I willingly concede that exclusive riparian jurisdiction is not the same as "exclusive jurisdiction" simpliciter. It includes only exclusive jurisdiction over riparian rights which, as I have described, include the right to erect wharves for the loading and unloading of goods. That jurisdiction does not necessarily include, for example, the power to permit or forbid the construction of a casino on the wharf, or even the power to serve legal process on the wharf. Jurisdiction to control such matterswhich were not established as part of riparian rights by the common-law and hornbook sources that the parties relied on in framing the Compactmay well fall outside the scope of the "riparian jurisdiction" that the Compact grants. See, e.g., (Fla.App.1999) (operation of a restaurant on a dock is not included within riparian rights). Such powerswhich may well have been conveyed by a grant of "exclusive jurisdiction" such as that contained in the New York-New Jersey Compactare not at issue in this case. What is at issue is jurisdiction over the core riparian right of building a wharf to be used for the loading and unloading of cargo. And that that jurisdiction was given exclusively to New Jersey is made perfectly clear by the Compact's recognition of each State's riparian jurisdiction only "on its own side of the river." It does not take vast experience in textual interpretation to conclude that this implicitly excludes each State's riparian jurisdiction on the other State's side of the river. (Inclusio unius est exclusio alterius.) There was no need, therefore, to specify exclusive riparian jurisdiction. The Court's position gains no support from the fact that the rights of a private riparian owner "`are always subordinate to the public rights, and the state may regulate their exercise in the interest of the public.'" Ante, at 1421 ( 1 Farnham 63, at 284). The Compact did not purport to convey mere private rights, but rather "riparian jurisdiction of every kind and nature." If that means anything at all, it means that New Jersey is the State that "may regulate [the] exercise [of the rights of a private riparian owner] in *14 the interest of the public." Delaware's contention that it
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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*14 the interest of the public." Delaware's contention that it retains the authority to prohibit under its police power even those activities that are specifically allowed to New Jersey under the Compact renders not just Article VII but most of the Compact a virtual nullity. Article III, for example, gives the States "common right of fishery throughout, in, and over the waters" of the Delaware. Stat. 859. But under its police powers a sovereign State could regulate fishing within its public navigable waters. See Gould 189, at 362. Thus, under Delaware's view, just as its ownership of the riverbed would allow it to trump New Jersey's authority to permit wharfing out, so also its ownership of the riverbed would allow it to prevent fishing. That would be an extraordinary result, since the litigation the 1905 Compact was designed to resolve arose over fishing rights, after Delaware enacted a law in 1871 requiring New Jersey fishermen to obtain a Delaware license. See Report 3-6. III The Court, following the Special Master's analysis, see Report 68-84, asserts that today's judgment is supported by the parties' course of conduct after conclusion of the Compact. I frankly think post-Compact conduct irrelevant to this case, since it can properly be used only to clarify an ambiguous agreement, and there is no ambiguity here. The Court, moreover, overstates the post-Compact conduct favoring Delaware's position and understates the post-Compact conduct favoring New Jersey. But even if post-Compact conduct is consulted, no such conductnone whateversupports the Court's "extraordinary character" test, whereas several instances of such conduct strongly support the resolution I have suggested in this dissent. The Court relies upon four instances of Delaware's exercise of jurisdiction over wharfing out from the Jersey shore, and two instances of New Jersey's acquiescence in such an exerciseall postdating 1969. As to the former, the three structures extending from New Jersey into Delaware built between 1969 and 2006 were permitted by Delaware, ante, at 1426; and another application for a permit was denied, ante, at 1425-1426. The Court never establishes, however, that these instances of Delaware's assertion of jurisdiction related to wharves of "extraordinary character," which is the only jurisdiction that the Court's decree confers upon Delaware. At best, these assertions of jurisdiction support not the Court's opinion, but rather Delaware's assertion that it may regulate all wharves on the riveran assertion that the Court rejects. The same mismatch is present with both instances of New Jersey's asserted acquiescence. One of them was New Jersey's application for Delaware's permission to refurbish the stone pier at Fort Mott State Park, described ante,
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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the stone pier at Fort Mott State Park, described ante, at 1426. That construction could not conceivably be characterized as of "extraordinary character," and thus New Jersey did not need to ask Delaware for permission under the Court's theory. In the other instance, described ante, at 1425-1426, New Jersey's Coastal Management Agency assured the Secretary of Commerce that "`any New Jersey project extending beyond mean low water'" had to be approved by Delaware's Coastal Management Agency as well as New Jersey's. This again supports Delaware's theory of this case, but not the Court's.[*] *1435 While post-Compact conduct provides noabsolutely zerosupport for the Court's interpretation, it provides substantial support for the one I have suggested. In New II, a case before this Court involving precisely the meaning of the Compact, the Attorney General of Delaware (obviously authorized to present the State's position on the point) conceded to the Special Master that "Article VII of the Compact is obviously merely a recognition of the rights of the riparian owners of New Jersey and a cession to the State of New Jersey by the State of Delaware of jurisdiction to regulate those rights." 1 NJ App. 123a And at oral argument before the Special Master, Delaware's Special CounselClarence A. Southerland, a former State Attorney General and future Chief Justice of the Supreme Court of Delaware, see Delaware Bar in the Twentieth Century 375 (H. Winslow, A. Bookout, & P. Hannigan eds.1994)explained that "the Compact of 1905 expressly acknowledged the rights of the citizens of New Jersey, at least, by implication to wharf out" and that New Jersey possessed "all the right to control the erection of those wharves and to say who shall erect them." 1 NJ App. 126a-1 And in its Supreme Court brief in that litigation, Delaware assured the Court, without conditions, that "Delaware has never questioned the right of citizens of New Jersey to wharf out to navigable water nor can such a right be questioned now because it is clearly protected by the Compact of 1905 between the States." at 139a Delaware's Supreme Court brief rejected New Jersey's argument that, if the Court found the boundary line to be the low-water mark on the New Jersey shore, "the interests of the riparian owners will be either destroyed or seriously prejudiced." That concern, Delaware said, was misguided because the 1905 Compact "recognized the rights of riparian owners in the river to wharf out." at 140a. "The effect of Article VII of the Compact," the brief explained, "was that the State of Delaware recognized the rights of the inhabitants on the
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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of Delaware recognized the rights of the inhabitants on the east side of the river to wharf out to navigable water. This right had never been questioned and was undoubtedly inserted to put beyond question the riparian rights (as distinguished from title) of land owners in New Jersey." at 141a. These concessions are powerful indication that Delaware's understanding of the Compact was the same as the one I assert. IV Our opinion in effectively decided this case. It rejected the very same assertion of a riverbed-owning State's supervening police-power authority over constructions into the river from a State that had been conceded riparian rights. That case involved *1436 two governing documents rather than (as here) only one. The first, a 1785 compact, provided: "`The citizens of each state respectively shall have full property in the shores of Potowmack river adjoining their lands, with all emoluments and advantages thereunto belonging, and the privilege of making and carrying out wharves and other improvements, so as not to obstruct or injure the navigation of the river.'" The second, an arbitration award of 1877 that interpreted the earlier compact, read as follows: "`Virginia is entitled not only to full dominion over the soil to low-water mark on the south shore of the Potomac, but has a right to such use of the river beyond the line of low-water mark as may be necessary to the full enjoyment of her riparian ownership, without impeding the navigation or otherwise interfering with the proper use of it by Maryland, agreeably to the compact of seventeen hundred and eighty-five.'" -63, We rejected Maryland's police-power authority to forbid Virginia's construction of a water intake structure that extended into Maryland territory, and held that "Virginia's right `to erect structures connected with the shore' is inseparable from, and `necessary to,' the `full enjoyment of her riparian ownership' of the soil to low-water mark." Maryland, we observed, was "doubtless correct that if her sovereignty over the River was well settled as of 1785, we would apply a strong presumption against reading the Compact as stripping her authority to regulate activities on the River." But because the "scope of Maryland's sovereignty over the River was in dispute both before and after the 1785 Compact," no such presumption existed. Today's opinion, the Special Master, claims that the result in turned on "`the unique language of the compact and arbitration award involved in that case.'" Ante, at 1424 ( Report 64, n. 118). But the case did not say that. And of course virtually every written agreement or award has "unique language," so if we
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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written agreement or award has "unique language," so if we could only extend to other cases legal principles pertaining to identical language our interpretive jurisprudence would be limited indeed. The documents in said in other words precisely what the Compact here said: that one of the States (there, Virginia, here, New Jersey) was given riparian rights, including the right to construct wharves and improvements. And the holding of the case was that those rights could be exercised free of police power or other interference by the State owning the riverbed. The Court contends that in the arbitration award, rather than the compact, "was definitive," because it recognized the right of Virginia " 'qua sovereign,'" and nowhere made the right "`subject to Maryland's regulatory authority.'" Ante, at 1424 ( 540 U.S., ). But Article VII of the Compact here at issue likewise spoke of the rights of New Jersey "qua sovereign" (what else does the "exercise [of] riparian jurisdiction" mean?) and similarly did not make those rights subject to Delaware's regulatory authority. We stressed in that the salient factor in the interpretation of the compact (and hence in the arbitration award's interpretation of the compact) was that it was entered into (like the Compact here) by way of settlement of a continuing boundary dispute. "If any inference at all is to be drawn from [the compact's] silence on *1437 the subject of regulatory authority," we said, "it is that each State was left to regulate the activities of her own citizens." effectively decided this case. V Finally, I must remark at greater length upon the Court's peculiar limitation upon New Jersey's wharfing-out rightsthat it excludes wharves of "extraordinary character." But for that limitation, the Court's conclusion is precisely the same as my own: "Given the authority over riparian rights that the 1905 Compact preserves for New Jersey, Delaware may not impede ordinary and usual exercises of the right of riparian owners to wharf out from New Jersey's shore." Ante, at 1427. The Court inexplicably concludes, however, that the liquefied natural gas (LNG) unloading wharf at stake in this litigation "goes well beyond the ordinary or usual." Why? Because it possesses "extraordinary character." To our knowledge (and apparently to the Court's, judging by its failure to cite any authority) the phrase has never been mentioned before in any case involving limitations on wharfing out. What in the world does it mean? Would a pink wharf, or a zig-zagged wharf qualify? Today's opinion itself gives the phrase no content other than to say that "Delaware's classification of the proposed LNG unloading terminal as
|
Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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that "Delaware's classification of the proposed LNG unloading terminal as a `heavy industry use' and a `bulk product transfer facilit[y],' has not been, and hardly could be, challenged as inaccurate." This rationale is bizarre. There is no reason why any designation by the Delaware Department of Natural Resources and Environmental Control would be relevant to, let alone controlling on, the meaning of the 1905 Compact; and no reason why New Jersey's authority under the 1905 Compact should turn on the state-law question whether Delaware "rationally categorize[s]" a wharf under its own statutes, ante, at 1427, n. 21. Wharves were commonly used for "heavy industry use" when the 1905 Compact was adopted, and their primary commercial use was to transfer bulk cargoes. One roughly contemporaneous book on the design and building of wharves in America included information on appropriate pavement material to enable use of trucks on wharves, the proper method of laying down railroad tracks, and the construction of hatch cranes for unloading cargo. See C. Wharves and Piers: Their Design, Construction, and Equipment 191-194, 206-215 (1917). The Court gives no reason why the terminal's character as a "heavy industry use" and a "bulk product transfer facilit[y]" matters in the slightest. Indeed, the Court does not take its state-law reason for "extraordinary character" seriously, conceding that Delaware could not regulate an identical wharf for the "bulk product transfer" of "tofu and bean sprouts," ante, at 1427, n. 21. Apart from the Delaware Department's "heavy industry use" and "bulk product transfer" designations, the Court cites, as support for its conclusion that this wharf is of "extraordinary character" its own factual background section describing the wharf. See ante, at 1427 (citing ante, at 1417-1418). It is not clear which, if any, of the facts discussed there the Court claims to be relevant, and I am forced to speculate on what they might be. Could it be the size of the wharf, which is 2,000 feet long, see ante, at 1418, and extends some 1,455 feet into Delaware territory, see Brief for BP America Inc. as Amicus Curiae 1-2? But the Court cites not a single source for this length limitation upon wharfing out. We did not intimate, in holding in that Virginia could authorize construction *1438 of a water intake pipe extending 725 feet from its shoreline into Maryland, see that the result turned on the length of the pipe. As I have discussed, the common law did establish a size limitation for wharves: the wharf could not be extended so far as to interfere needlessly with the public's "right of navigation"
|
Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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as to interfere needlessly with the public's "right of navigation" in navigable waters. 1 Farnham 111, at 521. Wharves constructed to access the water could "project to a distance from the shore necessary to reach water which shall float vessels, the largest as well as the smallest." 111, Delaware has not claimed that the wharf in this case will interfere with navigation of the river, which is approximately one mile wide at this location, see Brief for BP America Inc. as Amicus Curiae 2. And the record reveals that New Jersey, at least, anticipated that wharves on its side of the river could extend as far as the wharf in this case by establishing pierhead lines in 1877 and 1916 that extended "below low water mark at distances varying from 378 to 3,550 feet." 1 NJ App. 135a; see also 3 at 376a (affidavit of Richard G. Castagna). (Pierhead lines mark the permissible "outshore limit of structures of any kind.") Could the fact rendering this a wharf of "extraordinary character" be that its construction would require the dredging of 1.24 million cubic yards of soil within Delaware's territory? Ante, at 1418. This is suggested, perhaps, by the portion of the Decree which says that "Delaware acted within the scope of its governing authority to prohibit unreasonable uses of the soil within the twelve-mile circle." Ante, at 1428; see also ante, at 1418, n. 8. But no again. Although the record contains no evidence of the dredge volumes required to construct the wharves on the river at the time of the Compact's adoption, it does show that an 1896 navigational improvement required the dredging of 35 million cubic yards from the Delaware River, and a 1907 dredging at Cape May Harbor, New Jersey, removed 19.7 million cubic yards. 7 NJ App. 12a (affidavit of J. Richard Weggel). At the very least, the dredging of 1.24 million cubic yards "would have been familiar to or ascertainable by individuals interested in riparian uses or structures at the time the Compact was signed or ratified." at 1227a. I do not know what to make of the Court's response that the instances of dredging that I have cited involved "public works." Ante, at 1418, n. 8. Is that a limitation upon the Court's holdingonly private wharves of "extraordinary character" can be regulated by Delaware? But in fact dredging seems to have nothing to do with the issue, since (once again) the Court acknowledges that the same wharf for tofu and bean sprouts would be OK. Could the determinative fact be that the wharf would service
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Justice Scalia
| 2,008 | 9 |
dissenting
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New Jersey v. Delaware
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https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
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Could the determinative fact be that the wharf would service "[s]upertankers with capacities of up to 200,000 cubic meters (more than 40 percent larger than any ship then carrying natural gas)," ante, at 1418; that these ships "would pass densely populated areas" and require establishment of "a moving safety zone [that] would restrict other vessels 3,000 feet ahead and behind, and 1,500 feet on all sides," ante, at 1418, n. 7? This is suggested, perhaps, by the portion of the Decree which says that "Delaware acted within the scope of its governing authority to prohibit unreasonable uses of the river within the twelve-mile circle." Ante, at 1428. But surely not. Whatever power Delaware has to restrict traffic on the waters of the United States (a question not presented by this case, though one that seems not to inhibit the Decree's blithe positing of state "authority to prohibit unreasonable uses of the river," ibid.), it has no bearing on whether New *1439 Jersey can build the wharf without Delaware's interference. Could the determinative fact be that the wharf will be used to transport liquefied natural gas, which is dangerous? No again. The Court cites no support, and I am aware of none, for the proposition that the common law forbade a wharf owner to load or unload hazardous goods. At the time of the Compact's adoption, congressional sources reported that the Delaware River was used to transport, among other items, coal tar and pitch, sulfur, gunpowder, and explosives. Annual Report of the Chief of Engineers, United States Army, H.R. Doc. No. 22, 59th Cong., 2d Sess., 1031-1033 (App.H) (1906) (tabulating commerce on the Delaware River by item in 1904 and 1905). Books published some time after the adoption of the Compact discuss the proper handling of seaborne "dangerous goods," including liquids such as benzene, petroleum, and turpentine. See J. Aeby, Dangerous Goods (2d ed.1922); R. MacElwee & T. Taylor, Wharf Management: Stevedoring and Storage 41, 221 (1921). There is not a shred of evidence that the parties to the Compact understood that New Jersey and Delaware would not be authorized to grant riparian rights for the loading and unloading of goods that areunder some amorphous and unexplained criteriadangerous. I say that none of these factors has any bearing upon whether, at law, the wharfing out at issue here is anything more than the usual and ordinary exercise of a riparian right. I am not so rash as to suggest, however, that these factors had nothing to do with the Court's decision. After all, our environmentally sensitive Court concedes that if New
|
Justice Scalia
| 2,008 | 9 |
dissenting
|
New Jersey v. Delaware
|
https://www.courtlistener.com/opinion/145820/new-jersey-v-delaware/
|
After all, our environmentally sensitive Court concedes that if New Jersey had approved a wharf of equivalent dimensions, to accommodate tankers of equivalent size, carrying tofu and bean sprouts, Delaware could not have interfered. See ante, at 1427, n. 21. * * * According to one study, construction activities on the LNG facility in this case would have created more than 1,300 new jobs, added $277 million to New Jersey's gross state product, and produced $13 million in state and local tax revenues. J. Seneca et al., Economic Impacts of BP's Proposed Crown Landing LNG Terminal 65, online at http://www.policy.rutgers.edu/news/reports/BPCrownLanding.pdf (as visited Mar. 28, 2008, and available in Clerk of Court's case file). Operation of the facility was projected to generate 231 permanent jobs, and more than $88 million in state and local tax revenues over a 30-year period. Its delivery capacity would represent 15 percent of the current consumption of natural gas in the region. In holding that Delaware may veto the project, the Court owes New Jerseynot to mention an energy-starved Nationsomething more than its casual and unsupported statements that the wharf possesses "extraordinary character" and "goes well beyond the ordinary or usual." Today's decision does not even have the excuse of achieving a desirable result. If one were to design, ex ante, the socially optimal allocation of the power to permit and forbid wharfing out, surely that power would be lodged with the sovereign that stands most to gain from the benefits of a wharf, and most to lose from its environmental and other costs. Unquestionably, that is the sovereign with jurisdiction over the land from which the wharf is extended. Delaware and New Jersey doubtless realized this when they agreed in 1905 that each of them would have jurisdiction over riparian rights on its own side of the river. The genius of today's decision is that it creates irrationality where sweet reason *1440 once prevailedstraining mightily, against all odds, to assure that the power to permit or forbid "heavy industry use" wharves in New Jersey shall rest with Delaware, which has no interest whatever in facilitating the delivery of goods to New Jersey, which has relatively little to lose from the dangerous nature of those goods or the frequency and manner of their delivery, and which may well have an interest in forcing the inefficient location of employment- and tax-producing wharves on its own shore. It makes no sense. Under its Decree, "[t]he Court retains jurisdiction to entertain such further proceedings, enter such orders, and issue such writs as it may from time to time deem
|
Justice Scalia
| 1,995 | 9 |
concurring
|
North Star Steel Co. v. Thomas
|
https://www.courtlistener.com/opinion/117941/north-star-steel-co-v-thomas/
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I remain of the view that when Congress has not prescribed a limitations period to govern a cause of action that it has created, the Court should apply the appropriate state statute of limitations, or, if doing so would frustrate the purposes of the federal enactment, no limitations period at all. See Agency Holding ; see also The rule first announced in that a federal limitations period should be selected when it presents a "closer analogy" to the federal cause of action and is "significantly more appropriate," I find to be not only erroneous but unworkable. If the "closer analogy" part of this is to be taken seriously, the federal statute would end up applying in some States but not in others; and the "significantly more appropriate" part is meaningless, since in all honesty a uniform nationwide limitations period for a federal cause of action is always significantly more appropriate. *38 I have joined in applying to a so-called "implied" cause of action the limitations period contained in the federal statute out of which the cause of action had been judicially created. See Lampf, Pleva, Lipkind, Prupis & But the cause of action at issue here was created not by us, but by Congress. Accordingly, in my view, the appropriate state statute of limitations governs. Because none of the state statutes arguably applicable here would frustrate the purposes of the Worker Adjustment and Retraining Notification Act (WARN), 29 U.S. C. 2101 et seq. and because the WARN actions before us are timely under even the shortest of those statutes, I concur in the Court's judgment.
|
per_curiam
| 1,999 | 200 |
per_curiam
|
Central State Univ. v. American Assn. of Univ. Professors, Central State Univ. Chapter
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https://www.courtlistener.com/opinion/1087701/central-state-univ-v-american-assn-of-univ-professors-central-state/
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Petitioner Central State University challenges a ruling of the Ohio Supreme Court striking down on equal protection grounds a state law requiring public universities to develop standards for professors' instructional workloads and exempting those standards from collective bargaining. We grant the petition and reverse the judgment of the Ohio Supreme Court. In an effort to address the decline in the amount of time that public university professors devoted to teaching as opposed to researching, the State of Ohio enacted (1997). This provision provides in relevant part: "On or before January 1, 1994, the Ohio board of regents jointly with all state universities shall develop standards for instructional workloads for full-time and part-time faculty in keeping with the universities' missions and with special emphasis on the undergraduate learning experience. "On or before June 30, 1994, the board of trustees of each state university shall take formal action to adopt a faculty workload policy consistent with the standards developed under this section. Notwithstanding [other provisions making faculty workload at public universities a proper subject for collective bargaining], the policies adopted under this section are not appropriate subjects for collective bargaining. Notwithstanding [these collective-bargaining provisions], any policy adopted under this section by a board of trustees prevails over any conflicting provisions of any collective bargaining agreement between an employees organization and that board of trustees."[*] *126 In 1994, petitioner Central State University adopted a workload policy pursuant to 3345.45 and notified respondent, the certified collective-bargaining agent for Central State's professors, that it would not bargain over the issue of faculty workload. Respondent subsequently filed a complaint in Ohio state court for declaratory and injunctive relief, alleging that 3345.45 created a class of public employees not entitled to bargain regarding their workload and that this classification violated the Equal Protection Clauses of the Ohio and United States Constitutions. By a divided vote, the Ohio Supreme Court agreed with respondent that 3345.45 deprived public university professors the equal protection of the laws. See The court acknowledged that Ohio's purpose in enacting the statute was legitimate and that all legislative enactments enjoy a strong presumption of constitutionality. 469. Nonetheless, the court held that 3345's collectivebargaining exemption bore no rational relationship to the State's interest in correcting the imbalance between research and teaching at its public universities. See -470. The State had argued that achieving uniformity, consistency, and equity in faculty workload was necessary to recapture the decline in teaching, and that collective bargaining produced variation in workloads across universities in departments having the same academic mission. Reviewing evidence that the State had submitted in support
|
per_curiam
| 1,999 | 200 |
per_curiam
|
Central State Univ. v. American Assn. of Univ. Professors, Central State Univ. Chapter
|
https://www.courtlistener.com/opinion/1087701/central-state-univ-v-american-assn-of-univ-professors-central-state/
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mission. Reviewing evidence that the State had submitted in support of this *127 contention, the Ohio Supreme Court held that "there is not a shred of evidence in the entire record which links collective bargaining with the decline in teaching over the last decade, or in any way purports to establish that collective bargaining contributed in the slightest to the lost faculty time devoted to undergraduate teaching." Based on this determination, the court concluded that the State had failed to show "any rational basis for singling out university faculty members as the only public employees precluded from bargaining over their workload." The dissenting justices pointed out that the majority's methodology and conclusion conflicted with this Court's standards for rational-basis review of equal protection challenges. See -472. In their view, "that collective bargaining has not caused the decline in teaching proves nothing in assessing whether the faculty workload standards imposed pursuant to R. C. 3345.45 legitimately relate to that statute's purpose of restoring losses in undergraduate teaching activity." The majority's review of the State's evidence was therefore "inconsequential" to the only question in the case: whether the challenged legislative action was arbitrary or irrational. See -473. Answering this question, the dissent concluded that imposing uniform workload standards via the exemption "is not an irrational means of effecting an increasing in teaching activity. In fact, it was probably the most direct means of accomplishing that objective available to the General Assembly." We agree that the Ohio Supreme Court's holding cannot be reconciled with the requirements of the Equal Protection Clause. We have repeatedly held that "a classification neither involving fundamental rights nor proceeding along suspect *128 lines cannot run afoul of the Equal Protection Clause if there is a rational relationship between disparity of treatment and some legitimate governmental purpose." ; ; The legislative classification created by 3345.45 passes this test. One of the statute's objectives was to increase the time spent by faculty in the classroom; the imposition of a faculty workload policy not subject to collective bargaining was an entirely rational step to accomplish this objective. The legislature could quite reasonably have concluded that the policy animating the law would have been undercut and likely varied ifit were subject to collective bargaining. The State, in effect, decided that the attainment of this goal was more important than the system of collective bargaining that had previously included university professors. See The fact that the record before the Ohio courts did not show that collective bargaining in the past had lead to the decline in classroom time for faculty does not detract
|
per_curiam
| 1,993 | 200 |
per_curiam
|
Demos v. Storrie
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https://www.courtlistener.com/opinion/112832/demos-v-storrie/
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Pro se petitioner John R. Demos, Jr., has made 48 in forma pauperis filings in this Court since the beginning of the October 1988 Term, many of which challenged sanctions imposed by lower courts for frivolous filings. Almost two years ago, we prospectively denied Demos leave to proceed in forma pauperis "in all future petitions for extraordinary relief." In re Demos, At that time, we said that Demos "remains free under the present order to file in forma pauperis requests for relief other than an extraordinary writ, if he qualifies under this Court's Rule 39 and does not similarly abuse that privilege." Since then, Demos has filed 14 petitions for certiorari. We denied the first seven petitions outright, and denied Demos leave to proceed in forma pauperis under our Rule 39.8 as to the following six. Today, we invoke Rule 39.8 again with respect to the instant petition. Demos is allowed until March 29, 1993, within which to pay the docketing fees required by Rule 38 and to submit the petition in compliance with this Court's Rule 33. Because Demos has refused to heed our prior warning, we further direct the Clerk to reject *291 all future petitions for certiorari from Demos in noncriminal matters unless he pays the docketing fee required by Rule 38 and submits his petition in compliance with Rule 33. See Demos' continued course of abusive filings plainly warrants this sanction. It is so ordered.
|
Justice Stevens
| 2,010 | 16 |
concurring
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
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https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
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The Court correctly confines its discussion to the narrow issue presented by the record, see ante, at 8–12, and cor rectly upholds the all-comers policy. I join its opinion without reservation. Because the dissent has volunteered an argument that the school’s general Nondiscrimination Policy would be “plainly” unconstitutional if applied to this case, post, at 18 (opinion of ALITO, J.), a brief response is appropriate. In my view, both policies are plainly legitimate. The Hastings College of Law’s (Hastings) Nondiscrimi nation Policy contains boilerplate language used by insti tutions and workplaces across the country: It prohibits “unlawfu[l]” discrimination “on the basis of race, color, religion, national origin, ancestry, disability, age, sex or sexual orientation.” App. 220. Petitioner, the Hastings chapter of the Christian Legal Society (CLS), refused to comply. As the Court explains, ante, at 5–6, CLS was unwilling to admit members unless they affirmed their belief in certain Christian doctrines and refrained from “participation in or advocacy of a sexually immoral life style,” App. 146. CLS, in short, wanted to receive the school’s formal recognition—and the benefits that attend 2 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ STEVENS, J., concurring formal recognition—while continuing to exclude gay and non-Christian students (as well as, it seems, students who advocate for gay rights). In the dissent’s view, by refusing to grant CLS an ex emption from the Nondiscrimination Policy, Hastings violated CLS’s rights, for by proscribing unlawful dis crimination on the basis of religion, the policy discrimi nates unlawfully on the basis of religion. There are nu merous reasons why this counterintuitive theory is unsound. Although the First Amendment may protect CLS’s discriminatory practices off campus, it does not require a public university to validate or support them. As written, the Nondiscrimination Policy is content and viewpoint neutral. It does not reflect a judgment by school officials about the substance of any student group’s speech. Nor does it exclude any would-be groups on the basis of their convictions. Indeed, it does not regulate expression or belief at all. The policy is “directed at the organization’s activities rather than its philosophy,” Healy v. James, Those who hold reli gious beliefs are not “singled out,” post, at 19 (ALITO, J., dissenting); those who engage in discriminatory conduct based on someone else’s religious status and belief are singled out.1 Regardless of whether they are the product —————— 1 The dissent appears to accept that Hastings may prohibit discrimi nation on the basis of religious status, though it rejects the notion that Hastings may do the same for religious
|
Justice Stevens
| 2,010 | 16 |
concurring
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
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the notion that Hastings may do the same for religious belief. See, e.g., post, at 22, n. 5, 28. If CLS sought to exclude a Muslim student in virtue of the fact that he “is” Muslim, the dissent suggests, there would be no problem in Hastings forbidding that. But if CLS sought to exclude the same student in virtue of the fact that he subscribes to the Muslim faith, Hastings must stand idly by. This proposition is not only unworkable in practice but also flawed in conception. A person’s religion often simultaneously constitutes or informs a status, an identity, a set of beliefs and practices, and much else besides. (So does sexual orienta tion for that matter, see ante, at 22–23, notwithstanding the dissent’s view that a rule excluding those who engage in “unrepentant homosex Cite as: 561 U. S. (2010) 3 STEVENS, J., concurring of secular or spiritual feeling, hateful or benign motives, all acts of religious discrimination are equally covered. The discriminator’s beliefs are simply irrelevant. There is, moreover, no evidence that the policy was adopted because of any reason related to the particular views that religious individuals or groups might have, much less because of a desire to suppress or distort those views. The policy’s religion clause was plainly meant to promote, not to un dermine, religious freedom. To be sure, the policy may end up having greater conse quence for religious groups—whether and to what extent it will is far from clear ex ante—inasmuch as they are more likely than their secular counterparts to wish to exclude students of particular faiths. But there is likewise no evidence that the policy was intended to cause harm to religious groups, or that it has in practice caused signifi cant harm to their operations. And it is a basic tenet of First Amendment law that disparate impact does not, in itself, constitute viewpoint discrimination.2 The dissent —————— ual conduct,” App. 226, does not discriminate on the basis of status or identity, post, at 22–23.) Our First Amendment doctrine has never required university administrators to undertake the impossible task of separating out belief-based from status-based religious discrimination. 2 See, e.g., (1994); R. A. V. v. St. Paul, ; Board of Directors of Rotary ; ; cf. Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872, 878–879 (1990) (“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohib iting conduct that the State is free to regulate”). Courts and commen tators have applied this insight to the exact
|
Justice Stevens
| 2,010 | 16 |
concurring
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
and commen tators have applied this insight to the exact situation posed by the Nondiscrimination Policy. See, e.g., Christian Legal (stating that “[t]here can be little doubt that” comparable nondiscrimination policy “is viewpoint neutral on its face”); (similar); Volokh, Freedom of Expressive Association and Government Subsidies, 1930–1938 4 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ STEVENS, J., concurring has thus given no reason to be skeptical of the basic design, function, or rationale of the Nondiscrimination Policy. What the policy does reflect is a judgment that dis crimination by school officials or organizations on the basis of certain factors, such as race and religion, is less tolerable than discrimination on the basis of other factors. This approach may or may not be the wisest choice in the context of a Registered Student Organization (RSO) pro gram. But it is at least a reasonable choice. Academic administrators routinely employ antidiscrimination rules to promote tolerance, understanding, and respect, and to safeguard students from invidious forms of discrimination, including sexual orientation discrimination.3 Applied to the RSO context, these values can, in turn, advance nu merous pedagogical objectives. See post, at 3–4 (KENNEDY, J., concurring). It is critical, in evaluating CLS’s challenge to the Non discrimination Policy, to keep in mind that an RSO pro gram is a limited forum—the boundaries of which may be delimited by the proprietor. When a religious association, or a secular association, operates in a wholly public set ting, it must be allowed broad freedom to control its mem bership and its message, even if its decisions cause offense to outsiders. Profound constitutional problems would arise if the State of California tried to “demand that all Christian groups admit members who believe that Jesus —————— 3 In a case about an antidiscrimination policy that, even if ill-advised, is explicitly directed at preventing religious discrimination, it is rather hard to swallow the dissent’s ominous closing remarks. See post, at 37 (suggesting that today’s decision “point[s] a judicial dagger at the heart of” religious groups in the United States (internal quotation marks omitted)). Although the dissent is willing to see pernicious antireligi ous motives and implications where there are none, it does not seem troubled by the fact that religious sects, unfortunately, are not the only social groups who have been persecuted throughout history simply for being who they are. Cite as: 561 U. S. (2010) 5 STEVENS, J., concurring was merely human.” Post, at 27 (ALITO, J., dissenting). But the CLS chapter that brought this lawsuit does not want to be just a
|
Justice Stevens
| 2,010 | 16 |
concurring
|
Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez
|
https://www.courtlistener.com/opinion/150544/christian-legal-soc-chapter-of-univ-of-cal-hastings-college-of-law-v/
|
brought this lawsuit does not want to be just a Christian group; it aspires to be a recog nized student organization. The Hastings College of Law is not a legislature. And no state actor has demanded that anyone do anything outside the confines of a discrete, voluntary academic program. Although it may be the case that to some “university students, the campus is their world,” post, at 13 (internal quotation marks omitted), it does not follow that the campus ought to be equated with the public square. The campus is, in fact, a world apart from the public square in numerous respects, and religious organizations, as well as all other organizations, must abide by certain norms of conduct when they enter an academic commu nity. Public universities serve a distinctive role in a mod ern democratic society. Like all specialized government entities, they must make countless decisions about how to allocate resources in pursuit of their role. Some of those decisions will be controversial; many will have differential effects across populations; virtually all will entail value judgments of some kind. As a general matter, courts should respect universities’ judgments and let them man age their own affairs. The RSO forum is no different. It is not an open com mons that Hastings happens to maintain. It is a mecha nism through which Hastings confers certain benefits and pursues certain aspects of its educational mission. Having exercised its discretion to establish an RSO program, a university must treat all participants evenhandedly. But the university need not remain neutral—indeed it could not remain neutral—in determining which goals the pro gram will serve and which rules are best suited to facili tate those goals. These are not legal questions but policy questions; they are not for the Court but for the university to make. When any given group refuses to comply with 6 CHRISTIAN LEGAL SOC. CHAPTER OF UNIV. OF CAL., HASTINGS COLLEGE OF LAW v. MARTINEZ STEVENS, J., concurring the rules, the RSO sponsor need not admit that group at the cost of undermining the program and the values re flected therein. On many levels, a university administra tor has a “greater interest in the content of student activi ties than the police chief has in the content of a soapbox oration.” (STEVENS, J., concurring in judgment). In this case, petitioner excludes students who will not sign its Statement of Faith or who engage in “unrepentant homosexual conduct,” App. 226. The expressive associa tion argument it presses, however, is hardly limited to these facts. Other groups may exclude or mistreat Jews, blacks,
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
|
https://www.courtlistener.com/opinion/110331/united-states-v-ward/
|
The United seeks review of a decision of the United Court of Appeals for the Tenth Circuit that a proceeding for the assessment of a "civil penalty" under 311 (b) (6) of the Federal Water Pollution Control Act (FWPCA) is a "criminal case" within the meaning of the Fifth Amendment's guarantee against compulsory self-incrimination. We granted certiorari, and now reverse. I At the time this case arose,[1] 311 (b) (3) of the FWPCA prohibited the discharge into navigable waters or onto adjoining shorelines of oil or hazardous substances in quantities determined by the President to be "harmful."[2] Section 311 (b) (5) of the Act imposed a duty upon "any person in charge of a vessel or of an onshore facility or an offshore facility" to report any discharge of oil or a hazardous substance into navigable waters to the "appropriate agency" of the United Government. Should that person fail to supply such notification, he or she was liable to a fine of not more than $10,000 or imprisonment of not more than one year. Section 311 (b) (5) also provided for a form of "use immunity," specifying that "[n]otification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except a prosecution for perjury or for giving a false statement." 33 U.S. C. 1321 (b) (5).[3] *245 Section 311 (b) (6) provided for the imposition of a "civil penalty" against "[a]ny owner or operator of any vessel, onshore facility, or offshore facility from which oil or a hazardous substance is discharged in violation" of the Act. In 1975, that subsection called for a penalty of up to $5,000 for each violation of the Act.[4] In assessing penalties, the Secretary of the appropriate agency was to take into account "the appropriateness of such penalty to the size of the business or of the owner or operator charged, the effect on the owner or operator's ability to continue in business, and the gravity of the violation." 33 U.S. C. 1321 (b) (6).[5] *246 According to 311 (k) of the Act, funds collected from the assessment of penalties under 311 (b) (6) were to be paid into a "revolving fund" together with "other funds received under this section" and any money appropriated to the revolving fund by Congress. See 33 U.S. C. 1321 (k). Money contained in this fund was to be used to finance the removal, containment, or dispersal of oil and hazardous substances discharged into navigable waters and to defray the costs of administering the
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
|
https://www.courtlistener.com/opinion/110331/united-states-v-ward/
|
navigable waters and to defray the costs of administering the Act. 33 U.S. C. 1321 (l). Another section of the Act allowed the United Government to collect the costs of removal, containment, or dispersal of a discharge from the person or corporation responsible for that discharge in cases where that person or corporation had been identified. 33 U.S. C. 1321 (f). On or about March 23, 1975, oil escaped from an oil retention pit at a drilling facility located near Enid, Okla., and eventually found its way into Boggie Creek, a tributary of the Arkansas River system.[6] At the time of the discharge, the premises were being leased by respondent L. O. Ward, who was doing business as L. O. Ward Oil & Gas Operations. On April 2, 1975, respondent Ward notified the regional office of the Environmental Protection Agency (EPA) that a discharge of oil had taken place. Ward later submitted a more complete written report of the discharge, which was in turn forwarded to the Coast Guard, the agency responsible for assessing civil penalties under 311 (b) (6). After notice and opportunity for hearing, the Coast Guard assessed a civil penalty against respondent in the amount *247 of $500. Respondent filed an administrative appeal from this ruling, contending, inter alia, that the reporting requirements of 311 (b) (5) of the Act violated his privilege against compulsory self-incrimination. The administrative appeal was denied. On April 13, 1976, Ward filed suit in the United District Court for the Western District of Oklahoma, seeking to enjoin the Secretary of Transportation, the Commandant of the Coast Guard, and the Administrator of EPA from enforcing 311 (b) (5) and (6) and from collecting the penalty of $500. On June 4, 1976, the United filed a separate suit in the same court to collect the unpaid penalty. The District Court eventually ordered the two suits consolidated for trial. Prior to trial, the District Court rejected Ward's contention that the reporting requirements of 311 (b) (5), as used to support a civil penalty under 311 (b) (6), violated his right against compulsory self-incrimination. The case was tried to a jury, which found that Ward's facility did, in fact, spill oil into Boggie Creek. The District Court, however, reduced Ward's penalty to $250 because of the amount of oil that had spilled and because of its belief that Ward had been diligent in his attempts to clean up the discharge after it had been discovered. The United Court of Appeals for the Tenth Circuit reversed. Although admitting that Congress had labeled the penalty provided for in
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
|
https://www.courtlistener.com/opinion/110331/united-states-v-ward/
|
admitting that Congress had labeled the penalty provided for in 311 (b) (6) as civil and that the use of funds collected under that section to finance the administration of the Act indicated a "remedial" purpose for the provision, the Court of Appeals tested the statutory scheme against the standards set forth in[7] and held that 311 (b) (6) was sufficiently *248 punitive to intrude upon the Fifth Amendment's protections against compulsory self-incrimination. It therefore reversed and remanded for further proceedings in the collection suit. II The distinction between a civil penalty and a criminal penalty is of some constitutional import. The Self-Incrimination Clause of the Fifth Amendment, for example, is expressly limited to "any criminal case." Similarly, the protections provided by the Sixth Amendment are available only in "criminal prosecutions." Other constitutional protections, while not explicitly limited to one context or the other, have been so limited by decision of this Court. See, e. g., ; United This Court has often stated that the question whether a particular statutorily defined penalty is civil or criminal is a matter of statutory construction. See, e. g., One Lot Emerald Cut ; at Our inquiry in this regard has traditionally proceeded on two levels. First, we have set out to determine whether Congress, in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other. See One Lot Emerald Cut at 236-. Second, where Congress has indicated an intention to establish a civil penalty, we have inquired further whether the statutory *249 scheme was so punitive either in purpose or effect as to negate that intention. See In regard to this latter inquiry, we have noted that "only the clearest proof could suffice to establish the unconstitutionality of a statute on such a ground." See also One Lot Emerald Cut at ; Rex Trailer Co. v. United As for our first inquiry in the present case, we believe it quite clear that Congress intended to impose a civil penalty upon persons in Ward's position. Initially, and importantly, Congress labeled the sanction authorized in 311 (b) (6) a "civil penalty," a label that takes on added significance given its juxtaposition with the criminal penalties set forth in the immediately preceding subparagraph, 311 (b) (5). Thus, we have no doubt that Congress intended to allow imposition of penalties under 311 (b) (6) without regard to the procedural protections and restrictions available in criminal prosecutions. We turn then to consider whether Congress, despite its manifest intention to establish a civil, remedial mechanism, nevertheless provided for sanctions so punitive as
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
|
https://www.courtlistener.com/opinion/110331/united-states-v-ward/
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civil, remedial mechanism, nevertheless provided for sanctions so punitive as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." Rex Trailer Co. v. United at In making this determination, both the District Court and the Court of Appeals found it useful to refer to the seven considerations listed in at This list of considerations, while certainly neither exhaustive nor dispositive, has proved helpful in our own consideration of similar questions, see, e. g., and provides some guidance in the present case. Without setting forth here our assessment of each of the seven factors, we think only one, the fifth, aids respondent. That is a consideration of whether "the *250 behavior to which [the penalty] applies is already a crime." 372 U.S., at In this regard, respondent contends that 13 of the Rivers and Harbors Appropriation Act of 1899, 33 U.S. C. makes criminal the precise conduct penalized in the present case. Moreover, respondent points out that at least one federal court has held that 13 of the Rivers and Harbors Appropriation Act defines a "strict liability crime," for which the Government need prove no scienter. See United v. White Fuel Corp., According to respondent, this confirms the lower court's conclusion that this fifth factor "falls clearly in favor of a finding that [ 311 (b) (6)] is criminal in nature." While we agree that this consideration seems to point toward a finding that 311 (b) (6) is criminal in nature, that indication is not as strong as it seems at first blush. We have noted on a number of occasions that "Congress may impose both a criminal and a civil sanction in respect to the same act or omission." at ; One Lot Emerald Cut Moreover, in Helvering, where we held a 50% penalty for tax fraud to be civil, we found it quite significant that "the Revenue Act of 1928 contains two separate and distinct provisions imposing sanctions," and that "these appear in different parts of the statute." See also One Lot Emerald Cut at 236-. To the extent that we found significant the separation of civil and criminal penalties within the same statute, we believe that the placement of criminal penalties in one statute and the placement of civil penalties in another statute enacted 70 years later tends to dilute the force of the fifth criterion in this case. In sum, we believe that the factors set forth in while neither exhaustive nor conclusive on the issue, are in no way sufficient to render unconstitutional the congressional *251 classification of the penalty established
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Justice Rehnquist
| 1,980 | 19 |
majority
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United States v. Ward
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https://www.courtlistener.com/opinion/110331/united-states-v-ward/
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render unconstitutional the congressional *251 classification of the penalty established in 311 (b) (6) as civil. Nor are we persuaded by any of respondent's other arguments that he has offered the "clearest proof" that the penalty here in question is punitive in either purpose or effect. III Our conclusion that 311 (b) (6) does not trigger all the protections afforded by the Constitution to a criminal defendant does not completely dispose of this case. Respondent asserts that, even if the penalty imposed upon him was not sufficiently criminal in nature to trigger other guarantees, it was "quasi-criminal," and therefore sufficient to implicate the Fifth Amendment's protection against compulsory self-incrimination. He relies primarily in this regard upon Boyd v. United and later cases quoting its language. In Boyd, appellants had been indicted under 12 of an "Act to amend the customs revenue laws and to repeal moieties," for fraudulently attempting to deprive the United of lawful customs duties payable on certain imported merchandise. According to the statute in question, a person found in violation of its provisions was to be "fined in any sum not exceeding $5,000 nor less than $50, or be imprisoned for any time not exceeding two years, or both; and, in addition to such fine, such merchandise shall be forfeited." 116 U.S., Despite the pending indictment, appellants filed a claim for the goods held by the United In response, the prosecutor obtained an order of the District Court requiring appellants to produce the invoice covering the goods at issue. Appellants objected that such an order violated the Fourth and Fifth Amendments by subjecting them to an unreasonable search and seizure and by requiring them to act as witnesses against themselves. This Court found the Fifth Amendment applicable, even though the action in question was one contesting the forfeiture *252 of certain goods. According to the Court: "We are clearly of opinion that proceedings instituted for the purpose of declaring the forfeiture of a man's property by reason of offences committed by him, though they may be civil in form, are in their nature criminal." While at this point in its opinion, the Court seemed to limit its holding to proceedings involving the forfeiture of property, shortly after the quoted passage it broadened its reasoning in a manner that might seem to apply to the present case: "As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of
|
Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
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https://www.courtlistener.com/opinion/110331/united-states-v-ward/
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proceedings for all the purposes of the Fourth Amendment of the Constitution, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself." Seven years later, this Court relied primarily upon Boyd in holding that a proceeding resulting in a "forfeit and penalty" of $1,000 for violation of an Act prohibiting the employment of aliens was sufficiently criminal to trigger the protections of the Self-Incrimination Clause of the Fifth Amendment. Lees v. United More recently, in One 1958 Plymouth and United v. United Coin & this Court applied Boyd to proceedings involving the forfeiture of property for alleged criminal activity. Plymouth Sedan dealt with the applicability of the so-called exclusionary rule to a proceeding brought by the State of to secure the forfeiture of a car allegedly involved in the illegal transportation of liquor. Coin & involved the applicability of the Fifth Amendment privilege against compulsory self-incrimination in a proceeding brought by the United to secure forfeiture *253 of $8,674 found in the possession of a gambler at the time of his arrest. Read broadly, Boyd might control the present case. This Court has declined, however, to give full scope to the reasoning and dicta in Boyd, noting on at least one occasion that "[s]everal of Boyd's express or implicit declarations have not stood the test of time." Fisher v. United In United for example, we declined to apply Boyd's classification of penalties and forfeitures as criminal in a case where a defendant assessed with a $1,000 penalty for violation of the Alien Immigration Act claimed that he was entitled to have the Government prove its case beyond a reasonable doubt. Boyd and Lees, according to Regan, were limited in scope to the Fifth Amendment's guarantee against compulsory self-incrimination, which "is of broader scope than are the guarantees in Art. III and the Sixth Amendment governing trials and criminal prosecutions." See also n. 3. Similarly, in Hepner v. United this Court upheld the entry of a directed verdict against the appellant under a statute similar to that examined in Lees. According to Hepner, "the Lees and Boyd cases do not modify or disturb but recognize the general rule that penalties may be recovered by civil actions, although such actions may be so far criminal in their nature that the defendant cannot be compelled to testify against himself in such actions in respect to any matters involving, or that may involve, his being guilty of a criminal offense." The question before us, then, is whether the
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Justice Rehnquist
| 1,980 | 19 |
majority
|
United States v. Ward
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https://www.courtlistener.com/opinion/110331/united-states-v-ward/
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criminal offense." The question before us, then, is whether the penalty imposed in this case, although clearly not "criminal" enough to trigger the protections of the Sixth Amendment, the Double Jeopardy Clause of the Fifth Amendment, or the other procedural guarantees normally associated with criminal prosecutions, is nevertheless "so far criminal in [its] nature" *254 as to trigger the Self-Incrimination Clause of the Fifth Amendment. Initially, we note that the penalty and proceeding considered in Boyd were quite different from those considered in this case. Boyd dealt with forfeiture of property, a penalty that had absolutely no correlation to any damages sustained by society or to the cost of enforcing the law. See also Lees v. United ; One 1958 Plymouth ; United v. United Coin & Here the penalty is much more analogous to traditional civil damages. Moreover, the statute under scrutiny in Boyd listed forfeiture along with fine and imprisonment as one possible punishment for customs fraud, a fact of some significance to the Boyd Court. See 116 U.S., Here, as previously stated, the civil remedy and the criminal remedy are contained in separate statutes enacted 70 years apart. The proceedings in Boyd also posed a danger that the appellants would prejudice themselves in respect to later criminal proceedings. See Hepner v. United Here, respondent is protected by 311 (b) (5), which expressly provides that "[n]otification received pursuant to this paragraph or information obtained by the exploitation of such notification shall not be used against any such person in any criminal case, except [for] prosecution for perjury or for giving a false statement." 33 U.S. C. 1321 (b) (5). More importantly, however, we believe that in the light of what we have found to be overwhelming evidence that Congress intended to create a penalty civil in all respects and quite weak evidence of any countervailing punitive purpose or effect it would be quite anomalous to hold that 311 (b) (6) created a criminal penalty for the purposes of the Self-Incrimination Clause but a civil penalty for all other purposes. We do not read Boyd as requiring a contrary conclusion. *255 IV We conclude that the penalty imposed by Congress was civil, and that the proceeding in which it was imposed was not "quasi-criminal" as that term is used in Boyd v. United The judgment of the Court of Appeals is therefore Reversed. MR. JUSTICE BLACKMUN, with whom MR. JUSTICE MARSHALL joins, concurring in the judgment.
|
Justice Sotomayor
| 2,013 | 24 |
concurring
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Sebelius v. Auburn Regional Medical Center
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https://www.courtlistener.com/opinion/815689/sebelius-v-auburn-regional-medical-center/
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The Court holds that the presumption in favor of equi- table tolling that we adopted in does not apply to 42 U.S. C. nonjurisdictional 180- day deadline for health care providers to file administra- tive appeals with the Provider Reimbursement Review Board (PRRB), and that the Secretary’s regulation limit- ing “good cause” extensions of that deadline to three years is a permissible interpretation of the statute. I agree with those holdings and join the Court’s opinion in full. I write separately to note that the Court’s decision in this case does not establish that equitable tolling principles are irrelevant to internal administrative deadlines in all, or even most, contexts. The Court is correct that our equitable tolling cases have typically involved deadlines to bring suit in federal court. Ante, at 12. But we have never suggested that the presumption in favor of equitable tolling is generally inapplicable to administrative deadlines. Cf. Henderson v. Shinseki, 562 U.S. n. 4 (2011) (slip op., at 12, n. 4) (noting that the Government did not dispute whether the statutory filing deadline in the Article I Veterans Court was subject to equitable tolling if the deadline was 2 SEBELIUS v. AUBURN REGIONAL MEDICAL CENTER SOTOMAYOR, J., concurring nonjurisdictional); United States v. Brockamp, 519 U.S. 347, 350–353 (1997) (assuming without deciding that the presumption applied to administrative tax refund claims but finding based on statutory text, structure, and the underlying subject matter that tolling was unavail- able); see also ante, at 12 (discussing Brockamp). And we have previously applied the presumption outside the context of filing deadlines in Article III courts. See v. United States, (applying the presumption to a limitations period in bankruptcy pro- ceedings); cf. Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 392–398 (1982) (holding that the statutory time limit for filing charges with the Equal Employment Opportunity Commission was “not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling”). In administrative settings other than the one presented here, I believe the “background principle” that limita- tions periods “are customarily subject to equitable tolling,” –50 (internal quotation marks omitted), may limit an agency’s discretion to make filing deadlines absolute. The Court quite properly observes that the question whether equitable tolling is available turns on congressional intent. See ante, at 13. “[A] realis- tic assessment” of that intent, may vary by context. In this case, given the nature of the statutory scheme, which “applies to ‘sophisticated’ institutional providers” who are “repeat players” in the Medicare system, and
|
Justice Sotomayor
| 2,013 | 24 |
concurring
|
Sebelius v. Auburn Regional Medical Center
|
https://www.courtlistener.com/opinion/815689/sebelius-v-auburn-regional-medical-center/
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providers” who are “repeat players” in the Medicare system, and the statute’s history, I agree that it would distort congres- sional intent to presume that the PRRB’s administrative deadline should be subject to equitable tolling. Ante, at 12–14 ). By contrast, with respect to remedial statutes designed to protect the rights Cite as: 568 U. S. (2013) 3 SOTOMAYOR, J., concurring of unsophisticated claimants, see ante, at 13, agencies (and reviewing courts) may best honor congressional intent by presuming that statutory deadlines for admin- istrative appeals are subject to equitable tolling, just as courts presume comparable judicial deadlines under such statutes may be tolled. Because claimants must generally pursue administrative relief before seeking judicial re- view, see a contrary approach could have odd practical consequences and would attribute a strange intent to Congress: to pro- tect a claimant’s ability to seek judicial review of an agen- cy’s decision by making equitable tolling available, while leaving to the agency’s discretion whether the same claim- ant may invoke equitable tolling in order to seek an ad- ministrative remedy in the first place. Even in cases where the governing statute clearly dele- gates to an agency the discretion to adopt rules that limit the scope of equitable exceptions to administrative dead- lines, I believe “cases may arise where the equities in favor of tolling the limitations period are ‘so great that deference to the agency’s judgment is inappropriate.’ ” ). In particular, efforts by an agency to enforce tight filing deadlines in cases where there are credible allegations that filing delay was due to the agency’s own misfea- sance may not survive deferential review. While equitable tolling extends to circumstances outside both parties’ control, the related doctrines of equitable estoppel and fraudulent concealment may bar a defendant from enforc- ing a statute of limitation when its own deception pre- vented a reasonably diligent plaintiff from bringing a timely claim. See United 49–50 (1998) (Stevens, J., concurring) (noting that these doctrines are distinct); see generally 2 C. Corman, Limita- tion of Actions 9.7 (1991) (describing the doctrines). 4 SEBELIUS v. AUBURN REGIONAL MEDICAL CENTER SOTOMAYOR, J., concurring In Bowen, we applied the basic principle underlying these doctrines to an agency’s conduct, as we concluded that a 60-day deadline to seek judicial review of the administra- tive denial of disability benefits should be tolled because the Social Security Administration’s “‘secretive conduct pre- vent[ed] plaintiffs from knowing of a violation of rights.’ ” (quoting New York v. Heckler, 742 F.2d 729, 738 (CA2 1984)). While the providers in this case allege that the agency’s failure to
|
Justice Brennan
| 1,971 | 13 |
concurring
|
United States v. United States Coin & Currency
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https://www.courtlistener.com/opinion/108303/united-states-v-united-states-coin-currency/
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I join the opinion of the Court. The dissent would have us hold that the Government may continue indefinitely to enforce criminal penalties against individuals who had the temerity to engage in conduct protected by the Bill of Rights before the day that this Court held the conduct protected. Any such holding would have no more support in reason than it does in our cases. *725 I Frank recognition of the possible impact of retroactive application of constitutional decisions on the administration of criminal justice has led this Court to establish guidelines to determine the retroactivity of "constitutional rules of criminal procedure." Since "[e]ach constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice," the "retroactivity or nonretroactivity of a rule is not automatically determined by the provision of the Constitution on which the dictate is based." But although "[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a `question of probabilities,' " quoting as a general matter "[w]here the major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial which substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials, the new rule has been given complete retroactive effect." Williams v. United States, ante, at 653. "Neither good-faith reliance by state or federal authorities on prior constitutional law or accepted practice, nor severe impact on the administration of justice has sufficed to require prospective application in these circumstances." Ibid.[*] *726 The reasoning that underlies these guidelines is clear. The States and the Federal Government have, of course, a legitimate interest in the evenhanded enforcement of such sanctions as they desire to impose upon any conduct that they may constitutionally prohibit. By definition a "new rule of criminal procedure" casts no doubt upon the power of government to punish certain conduct, but only upon the legitimacy of the process by which persons were found to have engaged in that conduct. Of course a government has no legitimate interest in upholding an unconstitutional system of criminal procedure. But accepting the results that an unconstitutional procedure has reached in the past does not uphold such a system for the future. Notwithstanding the new procedural rule the government retains a legitimate interest in sanctioning conduct that it may constitutionally prohibit. Accordingly, when a new procedural rule has cast no substantial doubt upon the reliability of determinations of guilt in criminal cases, we have denied the rule retroactive
|
Justice Brennan
| 1,971 | 13 |
concurring
|
United States v. United States Coin & Currency
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https://www.courtlistener.com/opinion/108303/united-states-v-united-states-coin-currency/
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guilt in criminal cases, we have denied the rule retroactive effect where a contrary decision would "impose a substantial burden [of retrials] upon the judicial system while serving neither to redress knowing violations of [constitutional rights] nor to protect a class of persons the government has no legitimate interest in punishing." Williams v. United States, ante, at 664 (BRENNAN, J., concurring in result); see But since the government has no legitimate interest in punishing those innocent of wrongdoing, cf. when a new procedural rule casts doubt upon the reliability of a substantial proportion of past convictions obtained without its protections, we have required the new rule be given full retroactive effect. Williams v. United States, ante, at 653. From this it follows a fortiori that a decision holding certain conduct beyond the power of government *727 to sanction or prohibit must be applied to prevent the continuing imposition of sanctions for conduct engaged in before the date of that decision. For the decision does far more than cast doubt upon the reliability of the guilt-determining process. It makes the question of reliability irrelevant, for it establishes beyond peradventure that the government has no legitimate interest in punishing such conduct at all. See Ex parte Siebold, Accordingly, it may no longer continue to punish it. II The dissent seeks to explain its view of this case on the ground that even after this Court has declared certain individual conduct beyond the power of government to prohibit, the government retains an "interest in maintaining the rule of law and in demonstrating that those who defy the law do not do so with impunity" by punishing those persons who engaged in constitutionally protected conduct before it was so declared by this Court. Post, at 735. This argument, of course, has nothing whatever to do with the rule of law. It exalts merely the rule of judges by approving punishment of an individual for the lese-majeste of asserting a constitutional right before we said he had it. In light of our frequent reiteration that the usual mode of challenging an unconstitutional statute is expected to be violation of the statute and adjudication of the constitutional challenge in a criminal proceeding, see, e. g., ; it is difficult to see how this argument amounts to more than a flat statement that those who assert their constitutional rights before we have declared them may not do so with impunity. * If the dissent today means what it says, it would appear to follow that Virginia might keep in jail interracial married couples whose only offense was
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