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Justice White | 1,973 | 6 | majority | United States v. Glaxo Group Ltd. | https://www.courtlistener.com/opinion/108711/united-states-v-glaxo-group-ltd/ | to continue to supply their present licensees with the bulk form of the drug. *64 This Court has repeatedly recognized that "[t]he framing of decrees should take place in the District rather than in Appellate Courts" and has generally followed the principle that district courts "are invested with large discretion to model their judgments to fit the exigencies of the particular case." International Salt ; accord, Ford Motor The Court has not, however, treated that power as one of discretion, subject only to reversal for gross abuse, but has recognized "an obligation to intervene in this most significant phase of the case" when necessary to assure that the relief will be effective. United Accordingly, we have ordered the affirmative relief that the District Court refused to implement. See, e. g., United The purpose of relief in an antitrust case is "so far as practicable, [to] cure the ill effects of the illegal conduct, and assure the public freedom from its continuance." Mandatory selling on specified terms and compulsory patent licensing at reasonable charges are recognized antitrust remedies. See, e. g., Besser Mfg. ; International Salt ; Hartford-Empire The District Court should have ordered those remedies in this case. To the extent indicated in this opinion, the judgment of the District Court is reversed. So ordered. MR. JUSTICE REHNQUIST, with whom MR. JUSTICE STEWART and MR. |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | The Court today concludes that the State of Washgton may seize private property, without payg compensation, on the ground that the former owners suffered no "net loss" because their confiscated property was created by the beneficence of a state regulatory program. In so holdg the Court creates a novel exception to our oft-repeated rule that the just compensation owed to former owners of confiscated property is the fair market value of the property taken. What is more, the Court embraces a le of reasong that we explicitly rejected Our precedents compel the conclusion that petitioners are entitled to the fair market value of the terest generated by their funds held terest on lawyers' trust accounts (IOLTA). I dissent from the Court's judgment to the contrary. I In 1984 the Supreme Court of Washgton issued an order requirg lawyers to place all client trust funds "identifiable terest-bearg trust accounts." App. 150. If a client's funds can be vested to provide a "positive net return" to the client, the lawyer must place the funds an account that pays terest to the client. If the client's funds cannot earn a "positive net return" for the client, the funds are to be deposited a pooled terest-bearg IOLTA account with the terest payable to the Legal Foundation of Washgton (LFW), a nonprofit organization that provides legal services for the digent. A lawyer is not required to obta his client's consent, or even notify his client, regardg the *242 use of client funds IOLTA accounts or the payment of terest to LFW. The Supreme Court of Washgton dismissed all constitutional objections to its 1984 order on the now-discredited ground that any terest that might be earned on IOLTA accounts would not be "property" of the clients. ; cf. As the Court correctly notes, Washgton's IOLTA program comprises two steps: First, the State mandates that certa client trust funds be placed an IOLTA account, where those funds generate terest. Second, the State seizes the terest earned on those accounts to fund LFW. Ante, at 234. With regard to step one, we held that any terest earned on client funds held IOLTA accounts belongs to the owner of the prcipal, not the State or the State's designated recipient of the terest. As to step two, the Court assumes, arguendo, that the appropriation of petitioners' terest constitutes a "takg,"[1] but holds that just compensation is zero because without the mandatory poolg arrangements (step one) of IOLTA, petitioners' funds could not have generated any terest the first place.[2]Ante, at 239-240. This holdg contravenes our *243 decision effectively refusg to |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | This holdg contravenes our *243 decision effectively refusg to treat the terest as the property of petitioners we held it to be and brushes aside 80 years of precedent on determg just compensation. II When a State has taken private property for a public use, the Fifth Amendment requires compensation the amount of the market value of the property on the date it is appropriated. See United (holdg that just compensation is "`market value of the property at the time of the takg'" )); Kirby Forest Industries, ; United ; Almota Farmers Elevator & Warehouse ; United v. Commodities Tradg Corp., ; United As we explaed United "just compensation is not the value to the owner for his particular purposes or to the condemnor for some special use *244 but a so-called `market value.'" Our cases have recognized only two situations which this standard is not to be used: when market value is too difficult to ascerta, and when payment of market value would result "`manifest justice'" to the owner or the public. See Kirby Forest Industries, at n. 14. In holdg that any just compensation that might be owed is zero, the Court neither pretends to ascerta the market value of the confiscated property nor asserts that the case falls with one of the two exceptions where market value need not be determed. Instead, the Court proclaims that just compensation is to be determed by the former property owner's "net loss," and endorses simultaneously two competg and irreconcilable theories of how that loss should be measured. The Court proclaims its agreement with the Nth Circuit majority that just compensation is the terest petitioners would have earned had their funds been deposited non-IOLTA accounts. Ante, at 239-240. See ("[W]ithout IOLTA, neither Brown nor Hayes would have earned terest on his prcipal because by regulatory defition, their funds would have not otherwise been placed an IOLTA account"). At the same time, the Court approves the view of the Nth Circuit dissenters that just compensation is the amount of terest actually earned petitioners' IOLTA accounts, mus the amount that would have been lost transaction costs had petitioners sought to keep the money for themselves. Ante, at 238-239, n. The Court cannot have it both ways as the Nth Circuit itself realized but even if it could, neither of the two options from which lower courts may now choose is consistent with or our precedents that equate just compensation with the fair market value of the property taken. A Under the Court's first theory, just compensation is zero because, |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | Under the Court's first theory, just compensation is zero because, under the State Supreme Court's Rules, the only *245 funds placed IOLTA accounts are those which could not have earned net terest for the client a non-IOLTA savgs account. App. 150. This approach defes petitioners' "net loss" as the amount of terest they would have received had their funds been deposited separate, non-IOLTA accounts. See ante, at 239 ("[I]f the [Limited Practice Officers (LPOs)] who deposited petitioners' money IOLTA accounts could have generated net come, the LPOs violated the court's Rules. Any conceivable net loss to petitioners was the consequence of the LPOs' correct private decisions rather than any state action"). This defition of just compensation has no foundation reason. Once terest is earned on petitioners' funds held IOLTA accounts, that money is petitioners' property. See ("[A]ny terest that does accrue attaches as a property right cident to the ownership of the underlyg prcipal"). It is at that pot that the State appropriates the terest to fund LFW after the terest has been generated the pooled accounts and it is at that pot that just compensation for the takg must be assessed. It may very well be, as the Court asserts, that petitioners could not have earned money on their funds absent IOLTA's mandatory poolg arrangements, but just compensation is not to be measured by what would have happened a hypothetical world which the State's IOLTA program did not exist. When the State takes possession of petitioners' property petitioners' money and transfers it to LFW, the property obviously has value. The conclusion that it is devoid of value because of the circumstances givg rise to its creation is defensible. Consider the implications of the Court's approach for a case such as Webb's Fabulous Pharmacies, v. Beckwith, which volved a Florida statute that allowed the clerk of a court, his discretion, to vest terpleader funds deposited with that court terest-bearg certificates, the terest earned to be deemed "`come of *246 the office of the clerk of the circuit court.'" (quotg (1977)). The appellant Webb's had tendered nearly $2 million to a state court after filg an terpleader action, and we held that the state court's retention of the more than $0,000 terest generated by those funds was an uncompensated takg of private property.[3] But what would have been just compensation for the takg Webb's under today's analysis? It would consist not of the amount of terest actually earned by the prcipal, but rather of the amount that would have been earned had the State not provided for |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | would have been earned had the State not provided for the clerk of court to generate the terest the first place. That amount would have been zero sce, as we noted Webb's, Florida law did not require that terest be earned on a registry deposit, Section 28.33's authorization for the clerk of court to vest the terpleader funds, like the Washgton Supreme Court's IOLTA scheme, was a state-created opportunity to generate terest on moneys that would otherwise lie fallow. As the Florida Supreme Court observed, "[i]nterest accrues only because of section 28.33. In this sense the statute takes only what it creates." Beckwith v. Webb's Fabulous Pharmacies, In Webb's this Court unanimously rejected the contention that a state regulatory scheme's generation of terest that *247 would otherwise not have come to existence gave license for the State to claim the terest for itself. What can possibly expla the contrary holdg today? Surely it cannot be that the Justices look more favorably upon a nationally emulated uncompensated takg of clients' funds to support (hurrah!) legal services to the digent than they do upon a more local uncompensated takg of clients' funds to support nothg more spirg than the Florida circuit courts. That were surely an unprcipled distction. But the real, prcipled basis for the distction remas to be disclosed. And until it is disclosed, today's endorsement of the proposition that there is no takg when "the State giveth, and the State taketh away," has potentially far-reachg consequences. May the government now seize welfare benefits, without payg compensation, on the ground that there was no "net los[s]," ante, at 237, to the recipient? Cf.[4] What is more, the Court's reasong calls to question our holdg that terest generated on IOLTA accounts is the "private property" of the owners of the prcipal. An ownership terest encumbered by the right of the government to seize moneys for itself or transfer them to the nonprofit organization of its choice is not compatible with any notion of "private property." True, the Fifth Amendment allows the government to appropriate private property without compensation if the market value of the property is zero (and if it is taken for a "public use"). But *248 the Court does not defend the State's action on the ground that the money taken is worthless, but stead on the ground that the terest would not have been created but for IOLTA's mandatory poolg arrangements. The Court thereby embraces precisely the le of argument we rejected : that the terest earned on client funds IOLTA accounts could not be deemed "private property" of |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | funds IOLTA accounts could not be deemed "private property" of the clients because those funds "cannot reasonably be expected to generate terest come on their own." (ternal quotation marks omitted); cf. (BREYER, J., dissentg). B The Court's rival theory for explag why just compensation is zero fares no better. Contrary to its aforementioned description of petitioners' "net loss" as the amount their funds would have earned non-IOLTA accounts, ante, at 239-240, the Court declares that just compensation is "the net value of the terest that was actually earned by petitioners," ante, at 239, n. net value consistg of the value of the funds, less "transaction and admistrative costs and bank fees" that would be expended extractg the funds from the IOLTA accounts, To support this concept of "net value," the Court cites nothg but the cases discussed earlier its opion, ante, at 235-237, which establish that just compensation consists of the value the owner has lost rather than the value the government has gaed. In this case, however, there is no difference between the two. Petitioners have lost the terest that says rightfully belongs to them which is precisely what the government has gaed. The Court's apparent fear that followg the Constitution this case will provide petitioners a "wdfall" the amount of transaction costs saved is based on the unfounded assumption that the State must return the terest directly to petitioners. The State could satisfy its obligation to pay just compensation by simply returng petitioners' money to the IOLTA account *249 from which it was seized, leavg others to cur the accountg costs the event petitioners seek to extract their terest from the account. In any event, our cases that have distguished the "property owner's loss" from the "government's ga" say nothg whatever about reducg this value to some "net" amount. Remarkably, the Court does not cite the recent case of ours that specifically addresses this issue, and that does so the very context of an IOLTA-type scheme. flatly rejected the notion that just compensation may be reduced by transaction costs the former owner would have sustaed retag his property. See ("The government may not seize rents received by the owner of a buildg simply because it can prove that the costs curred collectg the rents exceed the amount collected");[5] see 2 U. S., at *250 And if the Federal Government seizes someone's paycheck, it may not deduct from its obligation to pay just compensation the amount that state and local governments would have taxed, on the ground that it need only compensate the "net los[s]," ante, at |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | that it need only compensate the "net los[s]," ante, at 237, to the former owner. That is why we have repeatedly held that just compensation is the "market value" of the confiscated property, rather than the "net loss" to the owner. "Market value" is not reduced by what the owner would have lost taxes or other exactions. "`[J]ust compensation' means the full monetary equivalent of the property taken." United v. Reynolds, But the irrationality of this aspect of the Court's opion does not end with its blatant contradiction of a precedent () promulgated by a Court consistg of the same Justices who sit today. Even if "net value" (rather than "market value") were the appropriate measure of just compensation, the Court has no basis whatsoever for pronouncg the "net value" of petitioners' terest to be zero. While the Court is correct that under the State's IOLTA rules, petitioners' funds could not have earned net terest separate, non-IOLTA accounts, ante, at 238-239, n. that has no bearg on the transaction costs that petitioners would susta removg their earned terest from the IOLTA accounts.[6] The Court today arbitrarily forecloses clients from *251 recoverg the "net terest" to which (even under the Court's defition of just compensation) they are entitled. What is more, there is no reason to believe that petitioners themselves do not fall with the class of clients whose funds, though unable to earn terest non-IOLTA accounts, nevertheless generate "net terest" IOLTA accounts. That is why the Nth Circuit dissenters (who shared the Court's second theory of just compensation but not the first) voted to remand to the District Court for a factual determation of what the "net value" of petitioners' terest actually is. To confuse confusion yet aga, the Court justifies its decision not to remand by simply fallg back upon the different theory of just compensation espoused by the Nth Circuit majority namely, that just compensation will always be zero because the funds would not have earned terest for the clients a non-IOLTA savgs account. Ante, at 239-240. See 271 F.3d, at ("Brown and Hayes are actuality seekg compensation for the value added to their property by Washgton's IOLTA program"). That does not conform, of course, with the Court's previously announced standard for just compensation: "the net value of the terest that was actually earned by petitioners." Ante, at 239, n.[7] Assessg the "net value" of terest *252 "actually earned" requires a factual determation of the costs petitioners would cur if they sought to keep the IOLTA-generated terest for themselves. By refusg to undertake this quiry, the Court |
Justice Scalia | 2,003 | 9 | dissenting | Brown v. Legal Foundation of Wash. | https://www.courtlistener.com/opinion/127904/brown-v-legal-foundation-of-wash/ | for themselves. By refusg to undertake this quiry, the Court reveals that its contention that the value of terest "actually earned" is the measure of just compensation is a facade. The Court's affirmance of the decision below can only rest on the reasong adopted by the Nth Circuit majority (notwithstandg its rejection ): that property created by virtue of a state regulatory program may be taken without compensation. * * * Perhaps we are witnessg today the emergence of a whole new concept Compensation Clause jurisprudence: the Rob Hood Takg, which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (takg from the rich to give to digent defendants) that the normal rules of the Constitution protectg private property are suspended. One must hope that that is the case. For to extend to the entire run of Compensation Clause cases the rationale supportg today's judgment what the government hath given, the government may freely take away would be disastrous. The Court's judgment that petitioners are not entitled to the market value of their confiscated property has no basis law. I respectfully dissent. |
Justice Rehnquist | 1,980 | 19 | dissenting | United States v. Clark | https://www.courtlistener.com/opinion/110210/united-states-v-clark/ | I am in full agreement with the Court that the statutory question should have been resolved in this case prior to any application of the constitutional issue decided by the Court *37 of Claims in Nor do I disagree with the Court's construction of the statute in issue. I dissent, however, because I believe that the Court should remand the case to the Court of Claims for consideration of the statutory claim in the first instance. Federal courts should not, of course, resolve cases on the basis of constitutional questions when a nonconstitutional ground might be available. A federal court also may not award relief on the basis of a constitutional decision absent jurisdiction conferred by Congress. When a federal court violates either of these prudential or jurisdictional limitations, our standard practice is to remand the case for consideration of the statutory question. In this Court found that a constitutional holding of a lower court might possibly be avoided by the construction of statutory requirements. The Court remanded, finding that the statutory issue might be dispositive, "but that the claim should be aired first in the District Court. Vacating the judgment and remanding the case for this purpose will require the District Court first to decide the statutory issue, and if appellants prevail on that question, it will be unnecessary for either the District Court or this Court to reach the equal protection issue at all." See also ; Alma Motor In the District Court decided a constitutional question under an erroneous assumption of Tucker Act jurisdiction, and this Court found it necessary to remand the case so that the District Court could determine what other permissible grounds of decision may have been open to it. The Court of Claims in this case was wrong in resolving this case on the basis of its constitutional holding, both as a matter of prudential considerations as well as jurisdiction. See United While the Court of Claims did have jurisdiction to entertain the statutory *38 question presented in this case, we should have permitted it the opportunity to exercise that jurisdiction. Only this Term, we remanded a case to the Court of Claims for consideration of an issue not resolved by that court. Hatzlachh Supply By remanding here, we would conform the disposition of this case to our customary practice which recognizes the usefulness of district and appellate court opinions on the questions ultimately reviewed here, as well as the need to reserve this Court's plenary consideration for questions still warranting final decision here after decision by another court. |
Justice Scalia | 2,003 | 9 | concurring | Castro v. United States | https://www.courtlistener.com/opinion/131151/castro-v-united-states/ | I concur in Parts I and II of the Court's opinion and in the judgment of the Court. I also agree that this Court's consideration of Castro's challenge to the status of his recharacterized motion is neither barred by nor necessarily resolved by the doctrine of law of the case. I write separately because I disagree with the Court's laissez-faire attitude toward recharacterization. The Court promulgates a new procedure to be followed if the district court desires the recharacterized motion to count against the pro se litigant as a first motion in later litigation. (This procedure, by the way, can be ignored with impunity by a court bent upon aiding pro se litigants at all costs; the only consequence will be that the litigants' later 25 submissions cannot be deemed "second or successive.") The Court does not, however, place any limits on when recharacterization may occur, but to the contrary treats it as a routine practice which may be employed "to avoid an unnecessary dismissal," "to avoid inappropriately stringent application of formal labeling requirements," or "to create a better correspondence between the substance of a pro se motion's claim and its underlying legal basis." Ante, at 381-382. The Court does not address whether Castro's motion filed under Federal Rule of Criminal Procedure 33 should have been recharacterized, and its discussion scrupulously avoids placing any limits on the circumstances in which district courts are permitted to recharacterize. That is particularly regrettable since the Court's new recharacterization procedure does not include an option for the pro se litigant to insist that the district court rule on his motion as filed; and gives scant indication of what might be a meritorious ground for contesting the recharacterization on appeal. In my view, this approach gives too little regard to the exceptional nature of recharacterization within an adversarial *386 system, and neglects the harm that may be caused pro se litigants even when courts do comply with the Court's newly minted procedure. The practice of judicial recharacterization of pro se litigants' motions is a mutation of the principle that the allegations of a pro se litigant's complaint are to be held "to less stringent standards than formal pleadings drafted by lawyers." "Liberal construction" of pro se pleadings is merely an embellishment of the notice-pleading standard set forth in the Federal Rules of Civil Procedure, and thus is consistent with the general principle of American jurisprudence that "the party who brings a suit is master to decide what law he will rely upon." The Our adversary system is designed around the premise that the parties know |
Justice Scalia | 2,003 | 9 | concurring | Castro v. United States | https://www.courtlistener.com/opinion/131151/castro-v-united-states/ | system is designed around the premise that the parties know what is best for them, and are responsible for advancing the facts and arguments entitling them to relief. Recharacterization is unlike "liberal construction," in that it requires a court deliberately to override the pro se litigant's choice of procedural vehicle for his claim. It is thus a paternalistic judicial exception to the principle of party self-determination, born of the belief that the "parties know better" assumption does not hold true for pro se prisoner litigants. I am frankly not enamored of any departure from our traditional adversarial principles. It is not the job of a federal court to create a "better correspondence" between the substance of a claim and its underlying procedural basis. But if departure from traditional adversarial principles is to be allowed, it should certainly not occur in any situation where there is a risk that the patronized litigant will be harmed rather than assisted by the court's intervention. It is not just a matter of whether the litigant is more likely, or even much more likely, to be helped rather than harmed. For the overriding rule of judicial intervention must be "First, do no harm." The injustice caused by letting the litigant's *387 own mistake lie is regrettable, but incomparably less than the injustice of producing prejudice through the court's intervention. The risk of harming the litigant always exists when the court recharacterizes into a first 25 motion a claim that is procedurally or substantively deficient in the manner filed. The court essentially substitutes the litigant's ability to bring his merits claim now, for the litigant's later ability to bring the same claim (or any other claim), perhaps with stronger evidence. For the later 25 motion will then be burdened by the limitations on second or successive petitions imposed by the Antiterrorism and Effective Death Penalty Act of 1996, A pro se litigant whose non- 25 motion is dismissed on procedural grounds and one whose recharacterized 25 claim is denied on the merits both end up as losers in their particular actions, but the loser on procedure is better off because he is not stuck with the consequences of a 25 motion that he never filed. It would be an inadequate response to this concern to state that district courts should recharacterize into first 25 motions only when doing so is (1) procedurally necessary (2) to grant relief on the merits of the underlying claim. Ensuring that these conditions are met would often enmesh district courts in fact- and labor-intensive inquiries. It is an inefficient use of |
Justice Scalia | 2,003 | 9 | concurring | Castro v. United States | https://www.courtlistener.com/opinion/131151/castro-v-united-states/ | fact- and labor-intensive inquiries. It is an inefficient use of judicial resources to analyze the merits of every claim brought by means of a questionable procedural vehicle simply in order to determine whether to recharacterize particularly in the common situation in which entitlement to relief turns on resolution of disputed facts. Moreover, even after that expenditure of effort the district court cannot be certain it is not prejudicing the litigant: the court of appeals may not agree with it on the merits of the claim. In other words, even fully informed district courts that try their best not to harm pro se litigants by recharacterizing may nonetheless end up doing so because they cannot predict and protect against every possible adverse effect that may *388 flow from recharacterization. But if district courts are unable to provide this sort of protection, they should not recharacterize into first 25 motions at all. This option is available under the Court's opinion, even though the opinion does not prescribe it. The Court today relieves Castro of the consequences of the recharacterization (to wit, causing his current 25 motion to be dismissed as "second or successive") because he was not given the warning that its opinion prescribes. I reach the same result for a different reason. Even if one does not agree with me that, because of the risk involved, pleadings should never be recharacterized into first 25 motions, surely one must agree that running the risk is unjustified when there is nothing whatever to be gained by the recharacterization. That is the situation here. Castro's Rule 33 motion was valid as a procedural matter, and the claim it raised was no weaker on the merits when presented under Rule 33 than when presented under 25. The recharacterization was therefore unquestionably improper, and Castro should be relieved of its consequences. Accordingly, I concur in the judgment of the Court. |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | The question presented is whether respondent Falcon, who complaed that petitioner did not promote him because he is a Mexican-American, was properly permitted to mata a class action on behalf of Mexican-American applicants for employment whom petitioner did not hire. I In petitioner itiated a special recruitment and trag program for morities. Through that program, respondent Falcon was hired July as a groundman, and with a year he was twice promoted, first to leman and then to leman--charge. He subsequently refused a promotion to staller-repairman. In October 1972 he applied for the job of field spector; his application was denied even though the promotion was granted several white employees with less seniority. Falcon thereupon filed a charge with the Equal Employment Opportunity Commission statg his belief that he had been passed over for promotion because of his national orig and that petitioner's promotion policy operated agast Mexican-Americans as a class. In due *150 course he received a right-to-sue letter from the Commission and, April 1975, he commenced this action under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000e et seq. (1976 ed. and Supp. IV), the United States District Court for the Northern District of Texas. His complat alleged that petitioner mataed "a policy, practice, custom, or usage of: (a) discrimatg agast [Mexican-Americans] because of national orig and with respect to compensation, terms, conditions, and privileges of employment, and (b) subjectg [Mexican-Americans] to contuous employment discrimation."[1] Respondent claimed that as a result of this policy whites with less qualification and experience and lower evaluation scores than respondent had been promoted more rapidly. The complat contaed no factual allegations concerng petitioner's hirg practices. Respondent brought the action "on his own behalf and on behalf of other persons similarly situated, pursuant to Rule 23(b)(2) of the Federal Rules of Civil Procedure."[2] The class *151 identified the complat was "composed of Mexican-American persons who are employed, or who might be employed, by GENERAL TELEPHONE COMPANY at its place of busess located Irvg, Texas, who have been and who contue to be or might be adversely affected by the practices complaed of here."[3] After respondg to petitioner's written terrogatories,[4] respondent filed a memorandum favor of certification of "the class of all hourly Mexican American employees who have been employed, are employed, or may the future be employed and all those Mexican Americans who have applied or would have applied for employment had the Defendant not practiced racial discrimation its employment practices." App. 46-47. His position was supported by the rulg of the *152 United States Court of |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | by the rulg of the *152 United States Court of Appeals for the Fifth Circuit that any victim of racial discrimation employment may mata an "across the board" attack on all unequal employment practices alleged to have been committed by the employer pursuant to a policy of racial discrimation. Without conductg an evidentiary hearg, the District Court certified a class cludg Mexican-American employees and Mexican-American applicants for employment who had not been hired.[5] Followg trial of the liability issues, the District Court entered separate fdgs of fact and conclusions of law with respect first to respondent and then to the class. The District Court found that petitioner had not discrimated agast respondent hirg, but that it did discrimate agast him its promotion practices. App. to Pet. for Cert. 35a, 37a. The court reached converse conclusions about the class, fdg no discrimation promotion practices, but concludg that petitioner had discrimated agast Mexican-Americans at its Irvg facility its hirg practices. at 39a-40a.[6] After various post-trial proceedgs, the District Court ordered petitioner to furnish respondent with a list of all Mexican-Americans who had applied for employment at the Irvg *153 facility durg the period between January 1, 1973, and October 18, 1976. Respondent was then ordered to give notice to those persons advisg them that they might be entitled to some form of recovery. Evidence was taken concerng the applicants who responded to the notice, and backpay was ultimately awarded to 13 persons, addition to respondent Falcon. The total recovery by respondent and the entire class amounted to $67,925.49, plus costs and terest.[7] Both parties appealed. The Court of Appeals rejected respondent's contention that the class should have encompassed all of petitioner's operations Texas, New Mexico, Oklahoma, and Arkansas.[8] On the other hand, the court also rejected petitioner's argument that the class had been defed too broadly. For, under the Fifth Circuit's across-the-board rule, it is permissible for "an employee complag of one employment practice to represent another complag of another practice, if the platiff and the members of the class suffer from essentially the same jury. In this case, all of the claims are based on discrimation because of national orig."[9] The court relied on cert. denied, which the Fifth Circuit stated: "Platiffs' action is an `across the board' attack on unequal employment practices alleged to have been committed by Travenol pursuant to a policy of racial discrimation. As parties who have allegedly been aggrieved by some of those discrimatory practices, platiffs have demonstrated a sufficient nexus to enable them to represent other class members sufferg from different practices motivated by the |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | other class members sufferg from different practices motivated by the same policies." quoted On the merits, the Court of Appeals upheld respondent's claim of disparate treatment promotion,[10] but held that the District Court's fdgs relatg to disparate impact hirg were sufficient to support recovery on behalf of the class.[11]*155 After this Court decided Texas Dept. of Community Affairs v. Burde, we vacated the judgment of the Court of Appeals and directed further consideration the light of that opion. General Telephone Co. of The Fifth Circuit thereupon vacated the portion of its opion addressg respondent's promotion claim but restated the portions of its opion approvg the District Court's class certification. With the merits of both respondent's promotion claim and the class hirg claims remag open for reconsideration the District Court on remand, we granted certiorari to decide whether the class action was properly mataed on behalf of both employees who were denied promotion and applicants who were denied employment. II The class-action device was designed as "an exception to the usual rule that litigation is conducted by and on behalf of the dividual named parties only." Class relief is "peculiarly appropriate" when the "issues volved are common to the class as a whole" and when they "turn on questions of law applicable the same manner to each member of the class." For such cases, "the class-action device saves the resources of both the courts and the parties by permittg an issue potentially affectg every [class member] to be litigated an economical fashion under Rule 23." Title VII of the Civil Rights Act of 1964, as amended, authorizes the Equal Employment Opportunity Commission to sue its own name to secure relief for dividuals aggrieved *156 by discrimatory practices forbidden by the Act. See 42 U.S. C. 2000e-5(f)(1). In exercisg this enforcement power, the Commission may seek relief for groups of employees or applicants for employment without complyg with the strictures of Rule 23. General Telephone Co. of Title VII, however, contas no special authorization for class suits mataed by private parties. An dividual litigant seekg to mata a class action under Title VII must meet "the prerequisites of numerosity, commonality, typicality, and adequacy of representation" specified Rule 23(a). These requirements effectively "limit the class claims to those fairly encompassed by the named platiff's claims." We have repeatedly held that "a class representative must be part of the class and `possess the same terest and suffer the same jury' as the class members." East Texas Motor System, (quotg Schlesger v. Reservists Committee to Stop the War, ). In East Texas Motor a Title |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | Stop the War, ). In East Texas Motor a Title VII action brought by three Mexican-American city drivers, the Fifth Circuit certified a class consistg of the truckg company's black and Mexican-American city drivers allegedly denied on racial or ethnic grounds transfers to more desirable le-driver jobs. We held that the Court of Appeals had "plaly erred declarg a class action." 431 U.S., at Because at the time the class was certified it was clear that the named platiffs were not qualified for le-driver positions, "they could have suffered no jury as a result of the allegedly discrimatory practices, and they were, therefore, simply not eligible to represent a class of persons who did allegedly suffer jury." at -404. Our holdg East Texas Motor was limited; we noted that "a different case would be presented if the District Court had certified a class and only later had it appeared that the named platiffs were not class members or were otherwise appropriate class representatives." *157 We also recognized the theory behd the Fifth Circuit's across-the-board rule, notg our awareness "that suits allegg racial or ethnic discrimation are often by their very nature class suits, volvg classwide wrongs," and that "[c]ommon questions of law or fact are typically present." In the same breath, however, we reiterated that "careful attention to the requirements of Fed. Rule Civ. Proc. 23 remas nonetheless dispensable" and that the "mere fact that a complat alleges racial or ethnic discrimation does not itself ensure that the party who has brought the lawsuit will be an adequate representative of those who may have been the real victims of that discrimation." -406. We cannot disagree with the proposition underlyg the across-the-board rule that racial discrimation is by defition class discrimation.[12] But the allegation that such discrimation has occurred neither determes whether a class action may be mataed accordance with Rule 23 nor defes the class that may be certified. Conceptually, there is a wide gap between (a) an dividual's claim that he has been denied a promotion on discrimatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimation, and (b) the existence of a class of persons who have suffered the same jury as that dividual, such that the dividual's claim and the class claims will share common questions of law or fact and that the dividual's claim will be typical of the class claims.[13] For respondent to *158 bridge that gap, he must prove much more than the validity of his own claim. Even though evidence that he was passed over for promotion |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | Even though evidence that he was passed over for promotion when several less deservg whites were advanced may support the conclusion that respondent was denied the promotion because of his national orig, such evidence would not necessarily justify the additional ferences (1) that this discrimatory treatment is typical of petitioner's promotion practices, (2) that petitioner's promotion practices are motivated by a policy of ethnic discrimation that pervades petitioner's Irvg division, or (3) that this policy of ethnic discrimation is reflected petitioner's other employment practices, such as hirg, the same way it is manifested the promotion practices. These additional ferences demonstrate the tenuous character of any presumption that the class claims are "fairly encompassed" with respondent's claim. Respondent's complat provided an sufficient basis for concludg that the adjudication of his claim of discrimation promotion would require the decision of any common question concerng the failure of petitioner to hire more Mexican-Americans. Without any specific presentation identifyg the questions of law or fact that were common to the claims of respondent and of the members of the class he sought to represent,[14] it was error for the District Court to presume that respondent's claim was typical of other claims *159 agast petitioner by Mexican-American employees and applicants. If one allegation of specific discrimatory treatment were sufficient to support an across-the-board attack, every Title VII case would be a potential companywide class action. We fd nothg the statute to dicate that Congress tended to authorize such a wholesale expansion of class-action litigation.[15] The trial of this class action followed a predictable course. Instead of raisg common questions of law or fact, respondent's evidentiary approaches to the dividual and class claims were entirely different. He attempted to susta his dividual claim by provg tentional discrimation. He tried to prove the class claims through statistical evidence of disparate impact. Ironically, the District Court rejected the class claim of promotion discrimation, which conceptually might have borne a closer typicality and commonality relationship with respondent's dividual claim, but sustaed the class claim of hirg discrimation. As the District Court's bifurcated fdgs on liability demonstrate, the dividual and class claims might as well have been tried separately. It is clear that the matenance of respondent's action as a class action did not advance "the efficiency and economy of litigation which is a prcipal purpose of the procedure." American Pipe & Construction *160 We do not, of course, judge the propriety of a class certification by hdsight. The District Court's error this case, and the error herent the across-the-board rule, is the failure to evaluate carefully the legitimacy of |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | rule, is the failure to evaluate carefully the legitimacy of the named platiff's plea that he is a proper class representative under Rule 23(a). As we noted Coopers & "the class determation generally volves considerations that are `enmeshed the factual and legal issues comprisg the platiff's cause of action.' " (quotg Mercantile Nat. ). Sometimes the issues are pla enough from the pleadgs to determe whether the terests of the absent parties are fairly encompassed with the named platiff's claim, and sometimes it may be necessary for the court to probe behd the pleadgs before comg to rest on the certification question. Even after a certification order is entered, the judge remas free to modify it the light of subsequent developments the litigation.[16] For such an order, particularly durg the period before any notice is sent to members of the class, "is herently tentative." 437 U.S., n. 11. This flexibility enhances the usefulness of the class-action device; actual, not presumed, conformance with Rule 23(a) remas, however, dispensable. III The need to carefully apply the requirements of Rule 23(a) to Title VII class actions was noticed by a member of the Fifth Circuit panel that announced the across-the-board rule. In a specially concurrg opion 417 F. 2d, at 1125-1127, Judge Godbold emphasized the need for "more precise pleadgs," at *161 1125, for "without reasonable specificity the court cannot defe the class, cannot determe whether the representation is adequate, and the employer does not know how to defend," He termed as "most significant" the potential unfairness to the class members bound by the judgment if the framg of the class is overbroad. And he poted out the error of the "tacit assumption" underlyg the across-the-board rule that "all will be well for surely the platiff will w and manna will fall on all members of the class." With the same concerns md, we reiterate today that a Title VII class action, like any other class action, may only be certified if the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied. The judgment of the Court of Appeals affirmg the certification order is reversed, and the case is remanded for further proceedgs consistent with this opion. It is so ordered. CHIEF JUSTICE BURGER, concurrg part and dissentg part. I agree with the Court's decision sofar as it states the general prciples which apply determg whether a class should be certified this case under Rule 23. However, my view it is not necessary to remand for further proceedgs sce it is entirely clear on this |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | for further proceedgs sce it is entirely clear on this record that no class should have been certified this case. I would simply reverse the Court of Appeals and remand with structions to dismiss the class claim. As the Court notes, the purpose of Rule 23 is to promote judicial economy by allowg for litigation of common questions of law and fact at one time. We have stressed that strict attention to the requirements of Rule 23 is dispensable employment discrimation cases. East Texas Motor System, *162 This means that class claims are limited to those " `fairly encompassed by the named platiff's claims.' " Ante, at 156, quotg General Telephone Co. of Respondent claims that he was not promoted to a job as field spector because he is a Mexican-American. To be successful his claim, which he advances under the "disparate treatment" theory, he must convce a court that those who were promoted were promoted not because they were better qualified than he was, but, stead, that he was not promoted for discrimatory reasons. The success of this claim depends on evaluation of the comparative qualifications of the applicants for promotion to field spector and on analysis of the credibility of the reasons for the promotion decisions provided by those who made the decisions. Respondent's class claim on behalf of unsuccessful applicants for jobs with petitioner, contrast, is advanced under the "adverse impact" theory. Its success depends on an analysis of statistics concerng petitioner's hirg patterns.[*] The record this case clearly shows that there are no common questions of law or fact between respondent's claim and the class claim; the only commonality is that respondent is a Mexican-American and he seeks to represent a class of Mexican-Americans. See ante, at 153, and n. 9. We have repeatedly held that the bare fact that a platiff alleges racial or ethnic discrimation is not enough to justify class certification. Ante, at 157; East Texas Motor -406. Accordgly, the class should not have been certified. *163 Moreover, while a judge's decision to certify a class is not normally to be evaluated by hdsight, ante, at 160, sce the judge cannot know what the evidence will show, there is no reason for us at this stage of these lengthy judicial proceedgs not to proceed light of the evidence actually presented. The Court properly concludes that the Court of Appeals and the District Court failed to consider the requirements of Rule 23. In determg whether to reverse and remand or to simply reverse, we can and should look at the evidence. The record shows |
Justice Stevens | 1,982 | 16 | majority | General Telephone Co. of Southwest v. Falcon | https://www.courtlistener.com/opinion/110737/general-telephone-co-of-southwest-v-falcon/ | can and should look at the evidence. The record shows that there is no support for the class claim. Respondent's own statistics show that 7.7% of those hired by petitioner between 1972 and 1976 were Mexican-American while the relevant labor force was 5.2% Mexican-American. Petitioner's unchallenged evidence shows that it hired Mexican-Americans numbers greater than their percentage of the labor force even though Mexican-Americans applied for jobs with petitioner numbers smaller than their percentage of the labor force. This negates any claim of Falcon as a class representative. Like so many Title VII cases, this case has already gone on for years, drag judicial resources as well as resources of the litigants. Rather than promotg judicial economy, the "across-the-board" class action has promoted multiplication of claims and endless litigation. Sce it is clear that the class claim brought on behalf of unsuccessful applicants for jobs with petitioner cannot succeed, I would simply reverse and remand with structions to dismiss the class claim. |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | Petitioners Robert and Nadia Reid, husband and wife, are citizens of British Honduras. Robert Reid entered the United States at Chula Vista, California, in November falsely representing himself to be a citizen of the United States. Nadia Reid, employing the same technique, entered at the Chula Vista port of entry two months later. Petitioners have two children who were born in the United States since their entry. In November the Immigration and Naturalization Service () began deportation proceedings against petitioners, which were resolved adversely to them first by a special inquiry officer and then by the Board of Immigration Appeals. On petition for review, the United States Court of Appeals for the Second Circuit by a divided vote affirmed the finding of deportability. We granted certiorari to resolve the conflict between this holding and the contrary conclusion of the Court of Appeals for the Ninth Circuit in Lee *621 Fook[1] Because of the complexity of congressional enactments relating to immigration, some understanding of the structure of these laws is required before evaluating the legal contentions of petitioners. The McCarran-Walter Act, enacted by Congress in 1952, as amended, 8 U.S. C. 1101 et seq., although frequently amended since that date, remains the basic format of the immigration laws. "Although the McCarran-Walter Act has been repeatedly amended, it still is the basic statute dealing with immigration and nationality. The amendments have been fitted into the structure of the parent statute and most of the original enactment remains undisturbed." 1 C. Gordon & H. Rosenfield, Immigration Law and Procedure 1-13 to 1-14 (rev. ed. 1975). Section 212 of the Act as amended, 8 U.S. C. 1182, specifies various grounds for exclusion of aliens seeking admission to this country. Section 241 of the Act, 8 U.S. C. 1251, specifies grounds for deportation of aliens already in this country. Section 241 (a) specifies 18 different bases for deportation, among which only the first two need directly concern us: "Any alien in the United States shall, upon the order of the Attorney General, be deported who "(1) at the time of entry was within one or more of the classes of aliens excludable by the law existing at the time of such entry; "(2) entered the United States without inspection or at any time or place other than as designated by *622 the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States" The seeks to deport petitioners under the provisions of 241 (a) (2), asserting that they entered the United States |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | 241 (a) (2), asserting that they entered the United States without inspection.[2] Petitioners dispute none of the factual predicates upon which the bases its claim, but instead argue that their case is saved by the provisions of 241 (f), which provides in pertinent part as follows: "The provisions of this section relating to the deportation of aliens within the United States on the ground that they were excludable at the time of entry as aliens who have sought to procure, or have procured visas or other documentation, or entry into the United States by fraud or misrepresentation shall not apply to an alien otherwise admissible at the time of entry who is the spouse, parent, or a child of a United States citizen or of an alien lawfully admitted for permanent residence." 8 U.S. C. 1251 (f). (Emphasis supplied.) Petitioners contend that they are entitled to the benefits of 241 (f) "by virtue of its explicit language." This contention is plainly wrong, and for more than one reason. The language of 241 (f) tracks the provisions of 212 (a) (19), 8 U.S. C. 1182 (a) (19), dealing with aliens who are excludable, and providing in pertinent part as follows: "Except as otherwise provided in this chapter, the *623 following classes of aliens shall be ineligible to receive visas and shall be excluded from admission into the United States: "(19) Any alien who seeks to procure, or has sought to procure, or has procured a visa or other documentation, or seeks to enter the United States, by fraud, or by willfully misrepresenting a material fact" (Emphasis supplied.) Thus the "explicit language" of 241 (f), upon which petitioners rely, waives deportation for aliens who are "excludable at the time of entry" by reason of the fraud specified in 212 (a) (19), and for that reason deportable under the provisions of 241 (a) (1). If the were seeking to deport petitioners on this ground, they would be entitled to have applied to them the provisions of 241 (f) because of the birth of their children after entry. But the in this case does not rely on 212 (a) (19), nor indeed on any of the other grounds for excludability under 212, which are in turn made grounds for deportation by the language of 241 (a) (1). It is instead relying on the separate provision of 241 (a) (2), which does not depend in any way upon the fact that an alien was excludable at the time of his entry on one of the grounds specified in 212 (a). Section 241 (a) (2) establishes |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | grounds specified in 212 (a). Section 241 (a) (2) establishes as a separate ground for deportation, quite independently of whether the alien was excludable at the time of his arrival, the failure of an alien to present himself for inspection at the time he made his entry. If this ground is established by the admitted facts, nothing in the waiver provision of 241 (f), which by its terms grants relief against deportation of aliens "on the ground that they were excludable at the time of entry," has any bearing on the case. Cf. *624 The issue before us, then, turns upon whether petitioners, who accomplished their entry into the United States by falsely asserting that they were citizens of this country, can be held to have "entered the United States without inspection." Obviously not every misrepresentation on the part of an alien making an entry into the United States can be said to amount to an entry without inspection. But the Courts of Appeals have held that an alien who accomplishes entry into this country by making a willfully false representation that he is a United States citizen may be charged with entry without inspection. Ex parte Saadi, (CA9), cert. denied, ; United States ex rel. (CA7), aff'd on other grounds, ; Ben We agree with these holdings, and conclude that an alien making an entry into this country who falsely represents himself to be a citizen would not only be excludable under 212 (a) (19) if he were detected at the time of his entry, but has also so significantly frustrated the process for inspecting incoming aliens that he is also deportable as one who has "entered the United States without inspection." In reaching this conclusion we subscribe to the reasoning of Chief Judge Aldrich, writing for the Court of Appeals for the First Circuit in Goon Mee : "Whatever the effect other misrepresentations may arguably have on an alien's being legally considered to have been inspected upon entering the country, we do not now consider; we are here concerned solely with an entry under a fraudulent claim of citizenship. Aliens who enter as citizens, rather than as aliens, are treated substantially differently by immigration authorities. The examination to which citizens are *625 subjected is likely to be considerably more perfunctory than that accorded aliens. Gordon & Rosenfield, Immigration Law and Procedure 316d Also, aliens are required to fill out alien registration forms, copies of which are retained by the immigration authorities. 8 C. F. R. 235.4, 264.1; 8 U.S. C. 1201 (b), 1301-1306. Fingerprinting is required for most |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | U.S. C. 1201 (b), 1301-1306. Fingerprinting is required for most aliens. 8 U.S. C. 1201 (b), 1301-1302. The net effect, therefore, of a person's entering the country as an admitted alien is that the immigration authorities, in addition to making a closer examination of his right to enter in the first place, require and obtain information and a variety of records that enable them to keep track of the alien after his entry. Since none of these requirements is applicable to citizens, an alien who enters by claiming to be a citizen has effectively put himself in a quite different position from other admitted aliens, one more comparable to that of a person who slips over the border and who has, therefore, clearly not been inspected." Petitioners rely upon this Court's decision in There the Court decided two companion cases involving fraudulent representations by aliens in connection with quota requirements which existed at the time was decided, but which were prospectively repealed in a native of Italy, falsely represented to the authorities that he was a skilled mechanic with specialized experience in repairing foreign automobiles. On the basis of that representation he was granted first-preference-quota status under the statutory preference scheme then in effect, entered the United States with his wife, and later fathered a child by her. *626 Scott, a native of Jamaica, contracted a marriage with a United States citizen by proxy solely for the purpose of obtaining nonquota status for her entry into the country. She never lived with her husband and never intended to do so. After entering the United States in 1958, she gave birth to an illegitimate child, who thereby became an American citizen at birth. When the discovered the fraud in each of these cases, it sought to deport both and Scott on the grounds that they were "within one or more of the classes of aliens excludable by the law existing at the time" of their entry, and therefore deportable under 241 (a) (1). The did not rely on the provisions of 212 (a) (19), making excludable an alien who has procured a visa or other documentation or entry by fraud, nor indeed did it rely on any other of the subsections of 212 dealing with excludable aliens. Instead it relied on an entirely separate portion of the statute, 211, 8 U.S. C. 1181 (a) (1964 ed.), prospectively amended in[3] but reading, as applicable to and Scott, as follows: "No immigrant shall be admitted into the United States unless at the time of application for admission he (1) has a valid unexpired |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | of application for admission he (1) has a valid unexpired immigrant visa or was born subsequent to the issuance of such immigrant visa of the accompanying parent, (2) is properly chargeable to the quota specified in the immigrant visa, (3) is a nonquota immigrant if specified as *627 such in the immigrant visa, (4) is of the proper status under the quota specified in the immigrant visa, and (5) is otherwise admissible under this chapter." The contended that fell within the proscription of 211 (a) (4), and that Scott fell within the proscription of 211 (a) (3), and that therefore 211 (a) prohibited their admission into the United States as of the time of their entry. It apparently reasoned from these admitted facts that both and Scott were therefore "excludable" at the time of their entry within the meaning of 241 (a) (1). Section 211 of the Act of 1952, -182, is entitled Documentary Requirements. Section 212 of the same Act, -188, is entitled General Classes of Aliens Ineligible to Receive Visas and Excluded from Admission. could clearly have proceeded against either Scott or under 212 (a) (19), on the basis of their procuring a visa or other documentation by fraud or misrepresentation. Just as clearly Scott and could have then asserted their claim to the benefit of 241 (f), waiving deportation based upon fraud for aliens who had given birth to children after their entry and who were otherwise admissible. Instead the relied on the provisions of 211 (a), which deal with the general subject of the necessary documentation for admission of immigrants, rather than with the general subject of excludable aliens. Rather than questioning whether a failure to comply with 211 (a) (3) or (4) by itself rendered an alien "excludable" as that term is used in 241 (a) (1), the Court in implicitly treated it as doing so and went on to hold that 241 (f) "saves from deportation an alien who misrepresents his status for the purpose of evading quota restrictions, if he has the necessary familial relationship to a United States citizen or *628 lawful permanent resident." was decided by a divided Court over a strong dissenting opinion. Even the most expansive view of its holding could not avail these petitioners, since 241 (f) which it construed applies by its terms only to "the deportation of aliens within the United States on the ground that they were excludable at the time of entry." Here, as we have noted, seeks to deport petitioners, not under the provisions of 241 (a) (1), relating to aliens excludable at |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | provisions of 241 (a) (1), relating to aliens excludable at the time of entry, but instead under the provisions of 241 (a) (2), relating to aliens who do not present themselves for inspection. Yet there is no doubt that the broad language used in some portions of the Court's opinion in has led one Court of Appeals to apply the provisions of 241 (f) to a case indistinguishable from petitioners', Lee Fook and to decisions of other Courts of Appeals in related areas which may be summarized in the language of Macduff: "Confusion now hath made his masterpiece." Aliens entering the United States under temporary visitor permits, who acquire one of the specified familial relationships described in 241 (f) after entry, have argued with varying results that their fraudulent intent upon entry to remain in this country permanently cloaks them with immunity from deportation even though they overstayed their visitor permits.[4] Acceptance of this *629 theory leads to the conclusion that 241 (f) waives a substantive ground for deportation based on overstay if the alien can affirmatively prove his fraudulent intent at the time of entry, but grants no relief to aliens with exactly the same familial relationship who are unable to satisfactorily establish their dishonesty. See (CA9), cert. denied sub nom. ; cf. Balking at such an irrational result, one court has gone so far as to declare that 241 (f) waives deportability under 241 (a) (1) even though no fraud is involved if the alien is able merely to establish the requisite familial tie. In re Yuen Lan Hom, Nor has there been agreement among those courts which have construed 241 (f) to waive substantive grounds for deportation under 212 other than for fraud delineated in 212 (a) (19) as to which other grounds are waived. While some courts have found that 241 (f) waives any deportation charge to which fraud is "germane"[5] others have found it waives "quantitative" but not "qualitative" grounds where its requirements are met.[6] Still others have required that "but for" the misrepresentation, the alien meet the substantive requirements of the Act[7] while at least one court has discerned *630 in a test requiring that the aliens' fraudulent statement be taken as true, with determination on such hypothetical facts whether the alien would be deportable. We do not believe that 241 (f) as interpreted by requires such results. We adhere to the holding of that case, which we take to be that where the chooses not to seek deportation under the obviously available provisions of 212 (a) (19) relating to the fraudulent procurement of |
Justice Rehnquist | 1,975 | 19 | majority | Reid v. INS | https://www.courtlistener.com/opinion/109217/reid-v-ins/ | of 212 (a) (19) relating to the fraudulent procurement of visas, documentation, or entry, but instead asserts a failure to comply with those separate requirements of 211 (a), dealing with compliance with quota requirements, as a ground for deportation under 241 (a) (1), 241 (f) waives the fraud on the part of the alien in showing compliance with the provisions of 211 (a). In view of the language of 241 (f) and the cognate provisions of 212 (a) (19), we do not believe 's holding may properly be read to extend the waiver provisions of 241 (f) to any of the grounds of excludability specified in 212 (a) other than subsection (19). This conclusion, by extending the waiver provision of 241 (f) not only to deportation based on excludability under 212 (a) (19), but to a claim of deportability based on fraudulent misrepresentation in order to satisfy the requirements of 211 (a), gives due weight to the concern expressed in that the provisions of 241 (f) were intended to apply to some misrepresentations that were material to the admissions procedure. It likewise gives weight to our belief that Congress, in enacting 241 (f), was intent upon granting relief to limited classes of aliens whose fraud was of such a nature that it was more than counterbalanced by after-acquired family ties;[8] it did not intend to arm the dishonest alien *631 seeking admission to our country with a sword by which he could avoid the numerous substantive grounds for exclusion unrelated to fraud, which are set forth in 212 (a) of the Immigration and Nationality Act. The judgment of the Court of Appeals is Affirmed. MR. JUSTICE DOUGLAS took no part in the consideration or decision of this case. MR. JUSTICE BRENNAN, with whom MR. |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | The question presented is whether it was error for the Court of Appeals to hold that the state trial court violated respondent's Sixth Amendment right to counsel by denying respondent's motion for a continuance until the Deputy Public Defender initially assigned to defend him was available. We granted certiorari, and we reverse. The issues raised arise out of two trials in the state court, the second trial having been held on two counts on which the first jury could not agree. Respondent was convicted of robbery, burglary, and false imprisonment in the first trial; he was convicted of rape and forcible oral copulation in the second. On review of all five counts, the California Court of Appeal, First Appellate District, affirmed the convictions, and the California Supreme Court denied review. Thereafter the United District Court denied respondent's petition for a writ of habeas This denial was reversed by the United Court of Appeals, which held that the Sixth Amendment guarantees a right to counsel with whom the accused has a "meaningful attorney-client relationship," *4 and that the trial judge abused his discretion and violated this right by denying a motion for a continuance based on the substitution of appointed counsel six days before trial. I Respondent's pro se petition for a writ of habeas corpus in the United District Court set forth two grounds for relief: (a) that the state "[t]rial court abused its discretion by failing to order a substitution of counsel after [respondent and counsel became] embroiled in irreconcilable conflict," Record 3; and (b) that the trial court had not permitted him to testify in his own behalf in the second trial. The facts shown by the record conclusively rebut both these claims and are alone dispositive, independent of the correctness of the novel Sixth Amendment guarantee announced by the Court of Appeals. A After midnight on July 7, 1976, the victim, a young woman, left her apartment to shop at a nearby grocery store in San Francisco. There she was accosted by respondent and when she complained to the store manager, he ordered respondent to leave. Respondent waited for the victim outside; when the victim left the store, respondent threw a beer bottle at her. She asked the store manager to call the police, but he told her just to walk away. She then walked home taking the long way around the block, but when she entered her apartment house, respondent was waiting for her in the lobby. From this fact, the jury could have inferred that respondent had been stalking the victim from the time she |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | respondent had been stalking the victim from the time she first left her apartment. Respondent forced the victim into the basement, where, she testified, he raped and sodomized her and then robbed her. The victim managed to escape from respondent and fled from the building into a nearby all-night diner, where she was sheltered until the police came. She gave the police a *5 description of her assailant; he was apprehended two blocks away. He was wearing the green fatigue jacket with furtrimmed hood and the "Afro" style wig that the victim had described to the police. On his person the police found jewelry taken from the victim. The respondent told the booking officer that he had been given the jewelry by a woman whose last name he did not recall and whose address he did not know. Police found the victim's clothing scattered on the floor of the basement of her apartment building and a button from respondent's jacket on the basement steps. Respondent was charged in San Francisco Superior Court with five felonies.[1] The court appointed the San Francisco Public Defender's Office to represent respondent and Deputy Public Defender Harvey Goldfine was assigned to defend the accused. Goldfine represented respondent at the preliminary hearing and supervised an extensive investigation. The trial was scheduled for Thursday, September 23, 1976. Shortly prior to trial, however, Goldfine was hospitalized for emergency surgery. On Friday, September 17, six days before the scheduled trial date, the Public Defender assigned Bruce Hotchkiss, a senior trial attorney in the Public Defender's Office, to represent respondent. On the day he was assigned the case, Hotchkiss interviewed respondent in jail and advised him of the substitution. Between that date and the following Tuesday, September 21, Hotchkiss reviewed the files and investigation prepared by his colleague. On Tuesday, he conferred with respondent for three hours; on the following day he again met with respondent in the morning and afternoon. *6 (a) First Day of First Trial The first trial began as scheduled on Thursday, September 23. At the opening of trial, respondent told the court: "I only have this P. D. [Public Defender] for a day and a half, we have not had time to prepare this case. He came in Tuesday night, last Tuesday night was the first time I saw him. We have not had enough time to prepare this case." App. 7. Construing respondent's remarks as a motion for a continuance, the court denied the motion, noting that the case had been assigned to Hotchkiss the previous Friday, six days before the trial date, and |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | the previous Friday, six days before the trial date, and that Hotchkiss stated he had "investigated the case, [and] studied it." In reply, respondent repeated his claim that Hotchkiss had only been on the case for a day and a half. Respondent then stated: "[T]his past Tuesday was the first time [Hotchkiss interviewed me.] He said he was busy and he couldn't make it up there. He only [sic] been on this case one day and a half your Honor, he can't possibly have had enough time to investigate all these things in this case. Some of the major issues have not been investigated. It's impossible for him to have time enough to take care of this case to represent this case properly, the way it should be represented." Hotchkiss explained Goldfine's absence and stated that he was prepared to try the case on the basis of his study of the investigation made by Goldfine and his conferences with respondent. "I feel that I am prepared. My own feeling is that a further continuance would not benefit me in presenting the case." Respondent replied that he was "satisfied with the Public Defender, but it's just no way, no possible way, that he has had enough time to prepare this case." The trial judge repeated that he was confident that the Public Defender's Office was representing respondent adequately *7 and that Hotchkiss was an experienced counsel; the court again denied a continuance. (b) Second Day of First Trial At the start of the second day of trial, on Friday, September 24, 1976, respondent again complained that Hotchkiss was not prepared. When the court expressed its confidence in Hotchkiss, respondent said: "I don't mean he's not a good P. D., I don't have anything against him. It's just that he didn't have time to prepare the case, one day and a half." The trial judge again stated that he was satisfied that the case had been "well prepared" by Goldfine, and that Hotchkiss had been assigned to the case the previous week, had read the transcript of the preliminary hearing, and had "prepared the case, reviewed all the matters, obtained the pictures, and other items that he intends to produce into evidence." In conclusion, the trial judge stated: "I am satisfied that Mr. Hotchkiss is doing a more than adequate job, a very fine job." -19. When respondent continued to complain that Hotchkiss had not adequately investigated the case, Hotchkiss told the court: "My feeling is that all investigation that needed to be done and that should be done and quite possibly |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | be done and that should be done and quite possibly that could have been done has been done." Finally, Hotchkiss pointed out that he would have the weekend between the close of the prosecution's case and the beginning of the defense's case for further conferences with respondent. At this time on the second day of the first trial respondent first mentioned Goldfine's name. After complaining again about Hotchkiss' alleged lack of time for preparation, respondent said: "Mr. Harvey Goldfine was my attorney, he was my attorney, and he still is. I haven't seen him in five *8 weeks because he's in the hospital." Respondent then claimed that not even Goldfine had had enough time to prepare the case: "Mr. Harvey Goldfine didn't even have enough time to go over my case with me, he didn't even have time." Respondent concluded these remarks with additional complaints about Hotchkiss' preparation. (c) Third Day of First Trial Trial resumed four days later, on Tuesday, September 28, 1976. Out of the presence of the jury, respondent presented the court with a pro se petition for a writ of habeas corpus, claiming that he was unrepresented by counsel. In support of his petition, respondent claimed that Goldfine, not Hotchkiss, was his attorney. Specifically, he said that the writ should be granted on "the grounds that my attorney's in the hospital, and I don't legally have no attorney, and this P. D. here told me, this P. D., Mr. Hotchkiss, Bruce Hotchkiss, told me I didn't have no defense to my charges." Hotchkiss disputed this charge. The trial court treated the petition as a renewal of respondent's motion for a continuance, and denied it. Following the court's ruling, respondent announced that he would not cooperate at all in the trial and asked to be returned to his cell. The court urged respondent to cooperate but respondent refused, claiming that Hotchkiss did not represent him: "I don't have any Counsel, I just got through telling you, I don't have no Counsel." However, respondent remained in the courtroom and the trial proceeded. Later, respondent renewed his attack: "What do I have to say to get through to you, your Honor, what do I have to say to make you understand. I have told you two or three times, and then you keep telling me about talking to my Counsel. I don't have *9 no attorney, I told you I don't have no attorney. My attorney's name is Mr. P. D. Goldfine, Harvey Goldfine, that's my attorney, he's in the hospital." Ultimately, respondent refused to take the |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | he's in the hospital." Ultimately, respondent refused to take the stand, ignoring Hotchkiss' advice that he testify. The jury returned a verdict of guilty on the robbery, burglary, and false imprisonment counts, but failed to reach a verdict on the rape and oral copulation counts. (d) Second Trial A week later, a second trial was held on the charges left unresolved as a result of the mistrial and Hotchkiss again appeared for respondent. Once more, respondent ignored Hotchkiss' advice and refused to take the stand.[2] Indeed, respondent refused to cooperate with or even speak to Hotchkiss. The second jury returned a guilty verdict on the sexual assault counts. The California Court of Appeal affirmed respondent's convictions on all five counts; the California Supreme Court denied review. B The United District Court for the Northern District of California (Peckham, J.) construed the pro se petition for a writ of habeas corpus liberally as including a claim that the trial court abused its discretion both in denying a continuance to allow Hotchkiss additional time to prepare and in denying a continuance to permit Goldfine to defend respondent. In denying the writ, the District Court stated: "The record supports the trial judge's conclusion that Hotchkiss had adequate time to prepare for the trials *10 and that he presented an able defense despite [respondent's] lack of cooperation with him." App. to Pet. for Cert. D3-D4. The District Court also rejected respondent's claim that the trial court should have granted the continuance to permit Goldfine to represent respondent, stating that "it was not unreasonable to conclude that the efficient administration of justice required that petitioner be represented by Hotchkiss rather than Goldfine after the latter had fully recovered from surgery." at D4-D5. The District Court thus rejected any claim that the state trial judge had abused his discretion in denying a continuance.[3] In reversing the District Court's denial of the writ, the Court of Appeals acknowledged that "an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing," but argued that respondent was not seeking appointment of counsel of his own choosing; rather, he "was merely seeking a continuance of the trial date so that his attorney [Goldfine] would be able to represent him at trial." The Court of Appeals went on to announce a new component of the Sixth Amendment right to counsel. The Sixth Amendment right, it held, would "be without substance if it did not include the right to a meaningful attorney-client relationship." The court seems to have determined, solely on the basis of respondent's |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | seems to have determined, solely on the basis of respondent's confusing and contradictory remarks on the subject, that respondent had developed such a "meaningful attorney-client relationship" with Goldfine but not with Hotchkiss. *11 The Court of Appeals next stated that the trial court, having failed to inquire about the probable length of Goldfine's absence, could not have weighed respondent's interest in continued representation by Goldfine against the State's interest in proceeding with the scheduled trial. The Court of Appeals concluded that the trial court's failure to conduct this balancing test ignored respondent's Sixth Amendment right to a "meaningful attorney-client relationship" and hence violated respondent's right to counsel;[4] this violation was held to require reversal without any need to show prejudice. The Court of Appeals directed that the writ issue unless respondent received a new trial on all five counts. II Not every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel. See Trial judges necessarily require a great deal of latitude in scheduling trials. Not the least of their problems is that of assembling the witnesses, lawyers, and jurors at the same place at the same time, and this burden counsels against continuances except for compelling reasons. Consequently, broad discretion must be granted trial courts on matters of continuances; only an unreasoning and arbitrary "insistence upon expeditiousness in the face of a justifiable *12 request for delay" violates the right to the assistance of counsel. We have set out at greater length than usual the record facts showing Hotchkiss' prompt action in taking Goldfine's place, his prompt study of the investigation, his careful review of the materials prepared by Goldfine for trial, his conferences with respondent, and his representation to the court that "a further continuance would not benefit me in presenting the case," App. 11. In the face of the unequivocal and uncontradicted statement by a responsible officer of the court that he was fully prepared and "ready" for trial, it was far from an abuse of discretion to deny a continuance. On this record, it would have been remarkable had the trial court not accepted counsel's assurances. Nor is there any merit to the claim that the denial of a continuance prevented Hotchkiss from being fully prepared for trial. Despite respondent's adamant even contumacious refusal to cooperate with Hotchkiss or to take the stand as Hotchkiss advised, in spite of respondent's numerous outbursts and disruptions, and in the face of overwhelming evidence of guilt, Hotchkiss succeeded in |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | the face of overwhelming evidence of guilt, Hotchkiss succeeded in getting a "hung jury" on the two most serious charges at the first trial. Given the undisputed and overwhelming evidence of guilt, the jury's failure at the first trial to convict the defendant on the more serious charges cannot reflect other than favorably on Hotchkiss' readiness for trial. III In holding that the trial judge violated respondent's right to the assistance of counsel by arbitrarily refusing a continuance that would have permitted Goldfine to try the case, the Court of Appeals misread the record and the controlling law and announced a new constitutional standard which is unsupported by any authority. A The Court of Appeals' first error was in reading the record as indicating that respondent timely and in good faith moved *13 for a delay to permit Goldfine to continue to represent him. The transcript clearly shows that respondent did not specifically assert a concern for continued representation by Goldfine until the third day of trial, 11 days after Hotchkiss had been substituted for Goldfine. Until then, all that respondent sought was a delay to give Hotchkiss additional time that respondent, but not Hotchkiss, thought necessary to prepare for trial. Moreover, respondent specifically disavowed any dissatisfaction with counsel; he informed the court on the first day of trial that he was "satisfied" with Hotchkiss. On this record, we cannot fathom how the Court of Appeals could have construed these complaints about Hotchkiss' alleged lack of time in which to prepare as indicating an unspoken preference for Goldfine. On the contrary, the trial court was abundantly justified in denying respondent's midtrial motion for a continuance so as to have Goldfine represent him. On this record, it could reasonably have concluded that respondent's belated requests to be represented by Goldfine were not made in good faith but were a transparent ploy for delay. In our view, the record shows that the trial judge exhibited sensitive concern for the rights of the accused and extraordinary patience with a contumacious litigant.[5] B The Court of Appeals' conclusion that the Sixth Amendment right to counsel "would be without substance if it did not include the right to a meaningful attorney-client relationship," is without basis in the law. No authority was cited for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be. No court could possibly guarantee that a defendant will develop the kind of rapport with his attorney privately retained or provided by the public that *14 the Court of Appeals thought part of the |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | that *14 the Court of Appeals thought part of the Sixth Amendment guarantee of counsel. Accordingly, we reject the claim that the Sixth Amendment guarantees a "meaningful relationship" between an accused and his counsel.[6] IV We have gone to unusual length in discussing the facts and relevant authorities in order to evaluate the claim of abuse of discretion by the trial judge and to deal with the novel idea that the Sixth Amendment guarantees an accused a "meaningful attorney-client relationship." Had the Court of Appeals examined the record more carefully, it would have had no occasion to consider, let alone announce, a new constitutional rule under the Sixth Amendment. In its haste to create a novel Sixth Amendment right, the court wholly failed to take into account the interest of the victim of these crimes in not undergoing the ordeal of yet a third trial in this case. Of course, inconvenience and embarrassment to witnesses cannot justify failing to enforce constitutional rights of an accused: when prejudicial error is made that clearly impairs a defendant's constitutional rights, the burden of a new trial must be borne by the prosecution, the courts, and the witnesses; the Constitution permits nothing less. But in the administration of criminal justice, courts may not ignore the concerns of victims. Apart from all other factors, such a course would hardly encourage victims to report violations to the proper authorities; this is especially so when the crime is one calling for public testimony about a humiliating and degrading experience such as was involved here. Precisely what weight should be given to the ordeal of reliving such an experience for the third time need not be decided *15 now; but that factor is not to be ignored by the courts. The spectacle of repeated trials to establish the truth about a single criminal episode inevitably places burdens on the system in terms of witnesses, records, and fading memories, to say nothing of misusing judicial resources. Over 75 years ago, Roscoe Pound condemned American courts for ignoring "substantive law and justice," and treating trials as sporting contests in which the "inquiry is, Have the rules of the game been carried out strictly?" Pound, The Causes of Popular Dissatisfaction With the Administration of Justice, 29 ABA Ann. Rep. 395, 406 (1906). A criminal trial is not a "game," and nothing in the record of respondent's two trials gives any support for the conclusion that he was constitutionally entitled to a new trial. The state courts provided respondent a fair trial, and the United District Judge properly denied relief. The judgment |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | and the United District Judge properly denied relief. The judgment of the Court of Appeals is reversed, and the case is remanded with directions to reinstate the judgment of the District Court. It is so ordered. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the result. The Court states that "[i]n its haste to create a novel Sixth Amendment right, the [Court of Appeals] wholly failed to take into account the interest of the victim of these crimes in not undergoing the ordeal of yet a third trial in this case." Ante, at 14. Unfortunately, it could just as easily be said of the Court that in its haste to "deal with the novel idea that the Sixth Amendment guarantees an accused a `meaningful attorney-client relationship,' " ib the Court reaches issues unnecessary to its judgment, mischaracterizes the Court of Appeals' opinion, and disregards the crucial role of a defendant's right to counsel in our system of criminal justice. For the reasons described below, I concur only in the Court's reversal of the Court of Appeals' judgment. *16 I After reviewing the record of the proceedings in the state trial court, the Court of Appeals concluded that respondent moved for a continuance based on the unavailability of Harvey Goldfine, the Deputy Public Defender originally appointed to represent him. The court, therefore, proceeded to consider whether the trial court had denied respondent's Sixth Amendment right to counsel by refusing to grant his motion for a continuance until Goldfine was well enough to represent him at trial. In considering this question, the Court of Appeals acknowledged that "an indigent defendant does not have an unqualified right to the appointment of counsel of his own choosing." The court stated, however, that after a particular attorney is appointed to represent a defendant, the defendant and his attorney develop a relationship that is encompassed by the Sixth Amendment right to counsel. In the court's view, the attorney-client relationship is important to a defendant's Sixth Amendment right to counsel because it affects the quality of representation and the defendant's ability to present an effective defense. -721. In this regard, the court noted that unreasonable denials of continuances when a defendant has retained counsel can amount to a denial of the right to counsel or to a violation of due process. The court saw no reason "to distinguish between appointed and retained counsel in the context of preserving an attorney-client relationship." In light of "the importance of the attorney-client relationship to the substance of the defendant's sixth amendment right to counsel," the court held that "the |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | sixth amendment right to counsel," the court held that "the sixth amendment (as incorporated by the fourteenth amendment) encompasses the right to have the trial judge accord weight to that relationship in determining whether to grant a continuance founded on the temporary unavailability of a defendant's particular attorney." The court stated that in considering *17 motions for continuances based on the temporary unavailability of counsel, "the trial court must balance the defendant's constitutional right to counsel against the societal interest in the `prompt and efficient administration of justice.' " In this case, the trial judge failed to inquire into the expected length of Goldfine's unavailability and, therefore, could not "engage in the balancing required to protect [respondent's] rights." As a result, respondent had been denied his right to counsel as that right was construed by the Court of Appeals. [1] The Court of Appeals next concluded that no showing of prejudice was required for reversal of the conviction. In reaching this conclusion, the court stated that this case did not involve a claim of ineffective assistance of counsel, which it previously had held to require a showing of prejudice to justify reversal. and n. 4. Instead, the court analogized this case to cases in which counsel is either not provided or in which counsel is prevented from fulfilling normal functions. In such cases a defendant is not required to demonstrate prejudice. [2] II I agree with the Court that the Court of Appeals misread the record in concluding, at least implicitly, that respondent made a timely motion for a continuance based on Goldfine's *18 unavailability and on his desire to have Goldfine represent him at trial. Ante, -13.[3] Respondent based his initial motion for a continuance on the ground that Hotchkiss had not had enough time to prepare the case. App. 7-13. On the second day of trial, respondent again complained that Hotchkiss had not had enough time to prepare. For the first time respondent also mentioned Goldfine and stated that Goldfine "was [his] attorney." Respondent went on to state that he had not seen Goldfine in five weeks because Goldfine was in the hospital. Respondent suggested, however, that Goldfine "didn't even have time enough to go over my case with me, he didn't even have time." It is clear, therefore, that respondent was basing his inartful motions for a continuance on the inadequate preparation of his appointed counsel. Even construing respondent's statements liberally, as a court should, there is no way the trial judge reasonably could have understood that respondent's motions for a continuance were based on Goldfine's unavailability |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | respondent's motions for a continuance were based on Goldfine's unavailability and on respondent's desire to be represented by him. Based on Hotchkiss' assurances that he was prepared, ; see the trial judge clearly did not abuse his discretion in denying a continuance. On the third day of trial, following an intervening weekend, respondent filed a "Writ of Habeas Corpus" with the trial court. He stated that the writ was based, in part, on the ground that his attorney was in the hospital and that he did not "legally have [an] attorney." During his discussion with the trial judge, respondent repeatedly stated that he did not have an attorney and that his attorney *19 was in the hospital. See 38, 41. At this point, the trial judge reasonably could be expected to have understood that respondent was moving for a continuance based on Goldfine's unavailability and on his desire to be represented by Goldfine. As the Court points out, however, respondent finally made clear the grounds for his motions 11 days after Hotchkiss had been substituted for Goldfine, ante, at 13, and 5 days after the trial had begun. I agree with the Court that the trial judge was justified "in denying respondent's midtrial motion for a continuance." See Because respondent did not make a timely motion for a continuance based on Goldfine's unavailability, I concur in the Court's reversal of the Court of Appeals' judgment. We need go no further to support a reversal. The Court recognizes as much when it states that "[t]he facts shown by the record conclusively rebut [respondent's] claims and are alone dispositive, independent of the correctness of the novel Sixth Amendment guarantee announced by the Court of Appeals." Ante, at 4. See also ante, at 14. III Despite the Court's recognition that it is unnecessary to its decision, the Court rejects summarily "the claim that the Sixth Amendment guarantees a `meaningful relationship' between an accused and his counsel." The Court states simply that the Court of Appeals cited no authority "for this novel ingredient of the Sixth Amendment guarantee of counsel, and of course none could be." Ante, at 13. In the Court's view, "[n]o court could possibly guarantee that a defendant will develop the kind of rapport with his attorney privately retained or provided by the public that the Court of Appeals thought part of the Sixth Amendment guarantee of counsel." Ante, at 13-14. This is the extent of the Court's analysis. Properly understood, however, the interest recognized by the Court of Appeals does find *20 support in other cases and does |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | Appeals does find *20 support in other cases and does not require any court to guarantee that a defendant develop a rapport with his attorney. A We have recognized repeatedly the central role of the defendant's right to counsel in our criminal justice system. See, e. g., ; ; ; ; ; ; ; We have described this right as "fundamental," and have stated that "[t]he assistance of counsel is often a requisite to the very existence of a fair trial." In the Court stated: "The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence." Given the importance of counsel to the presentation of an effective defense, it should be obvious that a defendant has *21 an interest in his relationship with his attorney. As we noted in "[t]he right to defend is personal." It is the defendant's interests, and freedom, which are at stake. Counsel is provided to assist the defendant in presenting his defense, but in order to do so effectively the attorney must work closely with the defendant in formulating defense strategy. This may require the defendant to disclose embarrassing and intimate information to his attorney. In view of the importance of uninhibited communication between a defendant and his attorney, attorney-client communications generally are privileged. See Upjohn Moreover, counsel is likely to have to make a number of crucial decisions throughout the proceedings on a range of subjects that may require consultation with the defendant. These decisions can best be made, and counsel's duties most effectively discharged, if the attorney and the defendant have a relationship characterized by trust and confidence.[4] In recognition of the importance of a defendant's relationship with his attorney, appellate courts have found constitutional violations when a |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | his attorney, appellate courts have found constitutional violations when a trial court has denied a continuance that was sought so that an attorney retained by the defendant could represent him at trial. *22 In the attorney retained by the defendant was hospitalized. Instead of granting a continuance so that either the retained attorney could represent the defendant at trial or the defendant could secure substitute counsel of his choice, the trial judge ordered another attorney to represent the defendant over the defendant's objections and in the face of the second attorney's reluctance. 9-301. The Court of Appeals reversed the defendant's conviction because the defendant had been deprived of the assistance of counsel of his own choice. In Gandy v. the Court of Appeals found that the defendant had been denied due process when the state trial court denied a continuance and forced the defendant to go to trial with an attorney other than the one he had retained. In the court's view, "the trial was rendered fundamentally unfair when [the defendant] was effectively denied his right to choose his counsel." See also ; United ; Cf. United ; Admittedly, the cases discussed above involved retained rather than appointed counsel. This ground of distinction, however, is not sufficient to preclude recognition of an indigent defendant's interest in continued representation by a particular attorney who has been appointed to represent him and with whom the defendant has developed a relationship. Nothing about indigent defendants makes their relationships with their attorneys less important, or less deserving of protection, than those of wealthy defendants. As was stated in a different context in "[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has." at 19 *23 (plurality opinion). Undoubtedly, we must accept the harsh reality that the quality of a criminal defendant's representation frequently may turn on his ability to retain the best counsel money can buy. But where an indigent defendant wants to preserve a relationship he has developed with counsel already appointed by the court, I can perceive no rational or fair basis for failing at least to consider this interest in determining whether continued representation is possible.[5] In the California Supreme Court considered a petition for a writ of mandate to compel the trial court to vacate its order removing the defendant's attorney in a pending murder trial. The court found that the trial court had no power to remove a court-appointed attorney over the objections of the defendant and the attorney even if the decision to remove the attorney |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | the attorney even if the decision to remove the attorney was based on doubts about the attorney's competence. *24 In reaching this conclusion, the court rejected the argument that because an indigent defendant does not pay for his attorney he has no cause to complain about the attorney's removal as long as the attorney currently handling his case is competent. It stated: "But the attorney-client relationship is not that elementary: it involves not just the casual assistance of a member of the bar, but an intimate process of consultation and planning which culminates in a state of trust and confidence between the client and his attorney. This is particularly essential, of course, when the attorney is defending the client's life or liberty. Furthermore, the relationship is independent of the source of compensation, for an attorney's responsibility is to the person he has undertaken to represent rather than to the individual or agency which pays for the service. It follows that once counsel is appointed to represent an indigent defendant, whether it be the public defender or a volunteer private attorney, the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused." at 561-,[6] *25 In light of the importance of a defendant's relationship with his attorney to his Sixth Amendment right to counsel, recognizing a qualified right to continue that relationship is eminently sensible. The Court of Appeals simply held that where a defendant expresses a desire to continue to be represented by counsel who already has been appointed for him by moving for a continuance until that attorney again will be available, the trial judge has an obligation to inquire into the length of counsel's expected unavailability and to balance the defendant's interest against the public's interest in the efficient and expeditious administration of criminal justice. Contrary to the Court's suggestion, ante, at 13-14, this does not require a trial court "to guarantee" attorney-defendant "rapport." The defendant's expressed desire in continued representation by a particular attorney is a clear indication that an attorney-client relationship has developed. The quality of that relationship, or the reasons that it developed, are of no concern to the court. The trial court's only duty is to inquire into the expected length of the attorney's unavailability and to determine whether the existing attorney-client relationship can be preserved consistent with society's interests. This is a minimal burden. It is one that we should readily impose in |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | burden. It is one that we should readily impose in order to insure that a defendant's rights are not arbitrarily denied. The defendant's interest in preserving his relationship with a particular attorney is not afforded absolute protection. If the attorney is likely to be unavailable for an extended period, or if other factors exist that tip the balance in favor of proceeding in spite of a particular attorney's absence,[7] the *26 defendant's motion for a continuance clearly may be denied. Such denials would be subject to review under the traditional "abuse of discretion" standard. As the Court of Appeals suggested, however, the balancing is 649 F.2d, n. 3. In the absence of a balancing inquiry a trial court cannot discharge its "duty to preserve the fundamental rights of an accused." B After concluding that respondent had been denied his Sixth Amendment right to counsel, the Court of Appeals proceeded to consider whether a showing of prejudice was necessary to support the issuance of a writ of habeas 649 F.2d, The Court of Appeals held that it was not. [8] In reaching this conclusion, the court stated that claims of ineffective assistance of counsel, which involve specific acts and omissions of counsel, require a showing that the defendant was prejudiced by counsel's conduct before relief will be granted. This case, however, did not involve an ineffective-assistance claim. n. 4. The claim in this case was based on the trial court's arbitrary deprivation of respondent's interest in continued representation by a particular attorney. This deprivation prevented "counsel from fulfilling normal functions from forming and exploiting an attorney-client relationship with [respondent]." As a result, the court found that this case was analogous to cases such as and in which counsel either was not provided or was prevented from discharging his normal functions *27 and in which no showing of prejudice was 649 F.2d, I find the Court of Appeals' reasoning persuasive. The same conclusion has been reached in other cases in similar contexts. See, e. g., 656 F. 2d, at 211-212; 288 F. 2d, at 302; Harling v. United If an ineffective-assistance-of-counsel claim were at issue here, I might agree that a showing of prejudice was Requiring such a showing to support ineffective-assistance claims may be appropriate because courts are able to assess an attorney's performance and the effect of that performance on a defendant's rights based on the records before them. The courts, therefore, can make reasonable judgments regarding the presence or absence of prejudice. In cases involving claims such as the one at issue here, however, courts cannot make the |
Justice Burger | 1,983 | 12 | majority | Morris v. Slappy | https://www.courtlistener.com/opinion/110914/morris-v-slappy/ | the one at issue here, however, courts cannot make the same judgments. The fact that a defendant has been arbitrarily denied his interest in preserving his relationship with a particular attorney, with the result that the attorney does not appear, means that there is no record on which to base judgments regarding prejudice. We recognized this problem in in the context of joint representation of conflicting interests. We stated: "[I]n a case of joint representation of conflicting interests the evil is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney's failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney's representation of a client. And to assess the impact of a conflict of interests on the attorney's options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry *28 into a claim of harmless error here would require, unlike most cases, unguided speculation." In this case, there is no way to know whether the character of the proceedings would have changed, whether counsel would have made different decisions, or whether the defense strategy would have been different if Goldfine had represented respondent. Conclusions based on inquiries into such questions would amount to nothing more than "unguided speculation." Under these circumstances, it is reasonable and just not to require a showing of prejudice.[9] IV While the Court of Appeals may have misread the record, its opinion reflects a thoughtful and dedicated effort to protect the rights of an indigent criminal defendant. Despite their poverty and the fact that they stand accused of a crime, indigent defendants are entitled to the enforcement of procedural rules that protect substantive rights guaranteed by the Constitution.[10] The Court of Appeals should be commended, *29 not criticized, for carrying out its obligation to respect this entitlement. JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, concurring in the judgment. |
Justice Thomas | 2,015 | 1 | concurring | Michigan v. EPA | https://www.courtlistener.com/opinion/2959748/michigan-v-epa/ | The Environmental Protection Agency (EPA) asks the Court to defer to its interpretation of the phrase “appro- priate and necessary” in of the Clean Air Act, 42 U.S. C. JUSTICE SCALIA’s opinion for the Court demonstrates why EPA’s interpretation deserves no deference under our precedents. I write separately to note that its request for deference raises serious questions about the constitutionality of our broader practice of de- ferring to agency interpretations of federal statutes. See Chevron U. S. A. Chevron deference is premised on “a presumption that Congress, when it left ambiguity in a statute meant for 2 MICHIGAN v. EPA THOMAS, J., concurring implementation by an agency, understood that the ambi- guity would be resolved, first and foremost, by the agency, and desired the agency (rather than the courts) to possess whatever degree of discretion the ambiguity allows.” 740–741 (1996). We most often describe Congress’ sup- posed choice to leave matters to agency discretion as an allocation of interpretive authority. See, e.g., National Cable & Telecommunications (referring to the agency as “the authoritative interpreter (within the limits of reason) of [ambiguous] statutes”). But we sometimes treat that discretion as though it were a form of legislative power. See, e.g., United States v. Corp., 533 U.S. 218, 229 (2001) (noting that the agency “speak[s] with the force of law when it addresses ambiguity in the statute or fills a space in the enacted law” even when “ ‘Congress did not actually have an intent’ as to a particular result”). Either way, Chevron deference raises serious separation- of-powers questions. As I have explained elsewhere, “[T]he judicial power, as originally understood, requires a court to exercise its independent judgment in interpreting and expounding upon the laws.” Perez v. Mortgage Bankers Assn., 575 U. S. (2015) (opinion concurring in judgment) (slip op., at 8). Interpreting federal statutes—including ambig- uous ones administered by an agency—“calls for that exercise of independent judgment.” at (slip op., at 12). Chevron deference precludes judges from exercising that judgment, forcing them to abandon what they believe is “the best reading of an ambiguous statute” in favor of an agency’s construction. Brand at It thus wrests from Courts the ultimate interpretative authority to “say what the law is,” Marbury v. Madison, 1 Cranch 137, 177 (1803), and hands it over to the Executive. See Brand at (noting that the judicial construc- Cite as: 576 U. S. (2015) 3 THOMAS, J., concurring tion of an ambiguous statute is “not authoritative”). Such a transfer is in tension with Article III’s Vesting Clause, which vests the judicial power exclusively in Article III courts, |
Justice Thomas | 2,015 | 1 | concurring | Michigan v. EPA | https://www.courtlistener.com/opinion/2959748/michigan-v-epa/ | which vests the judicial power exclusively in Article III courts, not administrative agencies. U. S. Const., Art. III, In reality, as the Court illustrates in the course of dis- mantling EPA’s interpretation of agencies “interpreting” ambiguous statutes typically are not en- gaged in acts of interpretation at all. See, e.g., ante, at 9. Instead, as Chevron itself acknowledged, they are engaged in the “ ‘formulation of policy.’ ” Statu- tory ambiguity thus becomes an implicit delegation of rule- making authority, and that authority is used not to find the best meaning of the text, but to formulate legally binding rules to fill in gaps based on policy judgments made by the agency rather than Congress. Although acknowledging this fact might allow us to escape the jaws of Article III’s Vesting Clause, it runs headlong into the teeth of Article I’s, which vests “[a]ll legislative Powers herein granted” in Congress. U. S. Const., Art I., For if we give the “force of law” to agency pronouncements on matters of private conduct as to which “ ‘Congress did not actually have an intent,’ ” we permit a body other than Congress to perform a function that requires an exercise of the legisla- tive power. See Department of Transportation v. Associa- tion of American 575 U. S. – (2015) (THOMAS, J., concurring in judgment) (slip op., at 21–22). These cases bring into bold relief the scope of the poten- tially unconstitutional delegations we have come to coun- tenance in the name of Chevron deference. What EPA claims for itself here is not the power to make political judgments in implementing Congress’ policies, nor even the power to make tradeoffs between competing policy goals set by Congress, American at – (opinion of THOMAS, J.) (slip op., at 20–21) (collecting 4 MICHIGAN v. EPA THOMAS, J., concurring cases involving statutes that delegated this legislative authority). It is the power to decide—without any particu- lar fidelity to the text—which policy goals EPA wishes to pursue. Should EPA wield its vast powers over electric utilities to protect public health? A pristine environment? Economic security? We are told that the breadth of the word “appropriate” authorizes EPA to decide for itself how to answer that question. Compare (2012) (“[N]othing about the definition [of “appropriate”] compels a consideration of costs” (emphasis added)) with Tr. of Oral Arg. 42 (“[T]he phrase appropriate and neces- sary doesn’t, by its terms, preclude the EPA from consider- ing cost” (emphasis added)).1 Perhaps there is some unique historical justification for deferring to federal agencies, see (SCALIA, J., dissenting), but these cases reveal how paltry |
Justice Thomas | 2,015 | 1 | concurring | Michigan v. EPA | https://www.courtlistener.com/opinion/2959748/michigan-v-epa/ | see (SCALIA, J., dissenting), but these cases reveal how paltry an effort we have made to understand it or to confine ourselves to its boundaries. Although we hold today that EPA exceeded even the extremely permissive limits on agency power set by our precedents, we should be alarmed that it felt sufficiently emboldened by those precedents to make the bid for deference that it did here.2 As in other areas of our jurisprudence concerning administrative agencies, see, e.g., B&B Hardware, Inc. v. Hargis Indus- tries, Inc., 575 U. S. – (2015) (THOMAS, J., dissenting) (slip op., at 10–14), we seem to be straying —————— 1I can think of no name for such power other than “legislative power.” Had we deferred to EPA’s interpretation in these cases, then, we might have violated another constitutional command by abdicating our check on the political branches—namely, our duty to enforce the rule of law through an exercise of the judicial power. Perez v. Mortgage Bankers Assn., 575 U. S. – (2015) (THOMAS, J., concurring in judg- ment) (slip op., at 14–16). 2 This is not the first time an agency has exploited our practice of deferring to agency interpretations of statutes. See, e.g., Texas Dept. of Housing and Community Affairs v. Inclusive Communities Project, Inc., ante, at 6–7 (THOMAS, J., dissenting). Cite as: 576 U. S. (2015) 5 THOMAS, J., concurring further and further from the Constitution without so much as pausing to ask why. We should stop to consider that document before blithely giving the force of law to any other agency “interpretations” of federal statutes. Cite as: 576 U. S. (2015) 1 KAGAN, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 14–46, 14–47, and 14–49 MICHIGAN, ET AL., PETITIONERS 14–46 v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. UTILITY AIR REGULATORY GROUP, PETITIONER 14–47 v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. NATIONAL MINING ASSOCIATION, PETITIONER 14–49 v. ENVIRONMENTAL PROTECTION AGENCY, ET AL. |
Justice White | 1,974 | 6 | concurring | Calero-Toledo v. Pearson Yacht Leasing Co. | https://www.courtlistener.com/opinion/109026/calero-toledo-v-pearson-yacht-leasing-co/ | I join the Court's opinion, and agree that there was no constitutional necessity under or any other case in this Court to accord the owner-lessor of the yacht a hearing in the circumstances of this case. I add, however, that the presence of important public interests which permits dispensing with a preseizure hearing in the instant case, is only one of the situations in which no prior hearing is required. See Mitchell v. W. T. Grant Co., ante, p. 600; Arnett v. Kennedy, ante, p. 134 (WHITE, J., concurring). MR. JUSTICE DOUGLAS, dissenting in part. While I agree that Puerto Rico is a State for purposes of the three-judge court jurisdiction, I dissent on the merits. The discovery of marihuana on the yacht took place May 6, 72. The seizure of the yacht took place on July 11, 72over two months later. In view of the long delay in making the seizure where is that "special need for very prompt action" which we emphasized in 91? The Court cites instances of exigent circumstancesseized poisoned food, dangerous drugs, failure of a bank, and the like. But they are inapt. involved a contest between debtor and creditor and a resolution of private property rights not implicated in an important governmental purpose. Here important governmental purposes are involved. As *692 to that type of case we said in Fuentes: "First, in each case, the seizure has been directly necessary to secure an important governmental or general public interest. Second, there has been a special need for very prompt action. Third, the State has kept strict control over its monopoly of legitimate force: the person initiating the seizure has been a government official responsible for determining, under the standards of a narrowly drawn statute, that it was necessary and justified in the particular instance. Thus, the Court has allowed summary seizure of property to collect the internal revenue of the United States, to meet the needs of a national war effort, to protect against the economic disaster of a bank failure, and to protect the public from misbranded drugs and contaminated food." Postponement of notice and hearing until after seizure of the vessel apparently was not needed here, as the District Court held. Yet after that two-month delay, forfeiture of the vessel is ordered without notice to the owner and without just compensation for the taking. On those premises this is the classic case of lack of procedural due process. The owner on the record before us was wholly innocent of knowing that the lessee was using the vessel illegally. To analogize this case |
Justice White | 1,974 | 6 | concurring | Calero-Toledo v. Pearson Yacht Leasing Co. | https://www.courtlistener.com/opinion/109026/calero-toledo-v-pearson-yacht-leasing-co/ | lessee was using the vessel illegally. To analogize this case to the old cases of forfeiture of property of felons is peculiarly inappropriate. Nor is this a case where owner and lessee are "in cahoots" in a smuggling venture or negligent in any way. The law does provide for forfeitures of property even of the innocent. But as Mr. Chief Justice Marshall said in 365: "[T]he law is not understood to forfeit the property of owners or consignees, on account of the misconduct of mere strangers, over whom such owners or consignees could have no control." The lessee of the vessel was, of course, no stranger. *693 Here unlike United (DOUGLAS, J., dissenting), there is no suggestion that the lessee was a mere strawman for runners of drugs. Even where such ambiguous circumstances were present the Court refused to impose forfeiture of an auto running illegal whiskey and belonging to those who acted "in good faith and without negligence." The present case is one of extreme hardship. The District Court found that the owner "did not know that its property was being used for an illegal purpose and was completely innocent of the lessee's criminal act. After the seizure and within the time allowed by law, the Superintendent [of the Police] notified lessee. Plaintiff was never notified and, since lessee did not post bond, the yacht was forfeited to the Commonwealth of Puerto Rico. It was not until plaintiff attempted to recover possession of the yacht after lessee had defaulted in the rental payments that plaintiff learned of its forfeiture." Moreover, the owner had included in the lease a prohibition against use of the yacht for an unlawful project. If the yacht had been notoriously used in smuggling drugs, those who claim forfeiture might have equity on their side. But no such showing was made; and so far as we know only one marihuana cigarette was found on the yacht. We deal here with trivia where harsh judge-made law should be tempered with justice. I realize that the ancient law is founded on the fiction that the inanimate object itself is guilty of wrongdoing. United But that traditional forfeiture doctrine cannot at times be reconciled with the requirements of the Fifth Amendment. Such a case is the present one. *694 Some forfeiture statutes are mandatory, title vesting in the State when the forfeiting act occurs. United Others are conditional, forfeiture occurring only if and when the State follows prescribed procedures. One 58 Plymouth Some forfeiture statutes exclude from their scope, property used in violation of the law as to which |
Justice White | 1,974 | 6 | concurring | Calero-Toledo v. Pearson Yacht Leasing Co. | https://www.courtlistener.com/opinion/109026/calero-toledo-v-pearson-yacht-leasing-co/ | property used in violation of the law as to which the owner is not "a consenting party or privy." See U.S. C. 1594. Some provide for discretionary administrative or judicial relief from forfeiture if the forfeiture was incurred without willful negligence or without any intention on the part of the owner to violate the law, U.S. C. 1618, or if the owner had at no time any knowledge or reason to believe that the property was used in violation of specified laws, 18 U.S. C. 3617 (b); United Puerto Rico, however, has no provision for mitigation in case the owner of the seized property is wholly innocent of any wrongdoing. And, as the Court says, these absolute, mandatory forfeiture procedures have been supported at least by much dicta in the cases. But in my view, there was a taking of private property "for public use" under the Fifth Amendment, applied to the States by the Fourteenth, and compensation must be paid an innocent owner. Where the owner is in no way implicated in the illegal project, I see no way to avoid paying just compensation for property taken. I, therefore, would remand the case to the three-judge court for findings as to the innocence of the lessor of the yachtwhether the illegal use was of such magnitude or notoriety that the owner cannot be found faultless in remaining ignorant of its occurrence. *6 The law of deodands[*] was at one time as severe as the rule applied this day by the Court. See Law of Deodands, 34 Law Mag. 188-1 (1845). Its severity was tempered by juries who were sustained by the King's Bench, at 1. The "great moderation" of the jurors in light of "the moral innocence of the party incurring the penalty," at 0, is an example we should follow here. While the law of deodands does not obtain here (cf. Goldsmith-Grant ; United ), the quality of mercy is no stranger to our equity jurisdiction, Hecht ; United |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | [] This case requires the Court to decide what standards apply when a party seeks to avoid compliance with a subpoena duces tecum issued in connection with a grand jury investigation. I Since 1986, a federal grand jury sitting in the Eastern District of Virginia has been investigating allegations of interstate transportation of obscene materials. In early 1988, the grand jury issued a series of subpoenas to three companies Model Magazine Distributors, Inc. (Model), R. Enterprises, Inc., and MFR Court Street Books, Inc. (MFR). Model is a New York distributor of sexually oriented paperback books, magazines, and videotapes. R. Enterprises, which distributes adult materials, and MFR, which sells books, magazines, and videotapes, are also based in New York. All three companies are wholly owned by Martin Rothstein. The grand jury subpoenas sought a variety of corporate *295 books and records and, in Model's case, copies of 193 videotapes that Model had shipped to retailers in the Eastern District of Virginia. All three companies moved to quash the subpoenas, arguing that the subpoenas called for production of materials irrelevant to the grand jury's investigation and that the enforcement of the subpoenas would likely infringe their First Amendment rights. The District Court, after extensive hearings, denied the motions to quash. As to Model, the court found that the subpoenas for business records were sufficiently specific and that production of the videotapes would not constitute a prior restraint. App. to Pet. for Cert. 57a-58a. As to R. Enterprises, the court found a "sufficient connection with Virginia for further investigation by the grand jury." at 60a. The court relied in large part on the statement attributed to Rothstein that the three companies were "all the same thing, I'm president of all three." Additionally, the court explained in denying MFR's motion to quash that it was "inclined to agree" with "the majority of the jurisdictions," which do not require the Government to make a "threshold showing" before a grand jury subpoena will be enforced. at 63a. Even assuming that a preliminary showing of relevance was required, the court determined that the Government had made such a showing. It found sufficient evidence that the companies were "related entities," at least one of which "certainly did ship sexually explicit material into the Commonwealth of Virginia." The court concluded that the subpoenas in this case were "fairly standard business subpoenas" and "ought to be complied with." at a. Notwithstanding these findings, the companies refused to comply with the subpoenas. The District Court found each in contempt and fined them $500 per day, but stayed imposition of the fine |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | them $500 per day, but stayed imposition of the fine pending appeal. at 64a. The Court of Appeals for the Fourth Circuit upheld the business records subpoenas issued to Model, but remanded the motion to quash the subpoena for Model's videotapes. *296 In re Grand Jury 87-3 Subpoena Duces Tecum, Of particular relevance here, the Court of Appeals quashed the business records subpoenas issued to R. Enterprises and MFR. In doing so, it applied the standards set out by this Court in United The court recognized that dealt with a trial subpoena, not a grand jury subpoena, but determined that the rule was "equally applicable" in the grand jury n. 2. Accordingly, it required the Government to clear the three hurdles that established in the trial contextrelevancy, admissibility, and specificityin order to enforce the grand jury subpoenas. The court concluded that the challenged subpoenas did not satisfy the standards, finding no evidence in the record that either company had ever shipped materials into, or otherwise conducted business in, the Eastern District of Virginia. The Court of Appeals specifically criticized the District Court for drawing an inference that, because Rothstein owned all three businesses and one of them had undoubtedly shipped sexually explicit materials into the Eastern District of Virginia, there might be some link between the Eastern District of Virginia and R. Enterprises or MFR. It then noted that "any evidence concerning Mr. Rothstein's alleged business activities outside of Virginia, or his ownership of companies which distribute allegedly obscene materials outside of Virginia, would most likely be inadmissible on relevancy grounds at any trial that might occur," and that the subpoenas therefore failed "to meet the requirements [sic] that any documents subpoenaed under [Federal] Rule [of Criminal Procedure] (c) must be admissible as evidence at " citing The Court of Appeals did not consider whether enforcement of the subpoenas duces tecum issued to respondents implicated the First Amendment. We granted certiorari to determine whether the Court of Appeals applied the proper standard in evaluating the *297 grand jury subpoenas issued to respondents. We now reverse. II The grand jury occupies a unique role in our criminal justice system. It is an investigatory body charged with the responsibility of determining whether or not a crime has been committed. Unlike this Court, whose jurisdiction is predicated on a specific case or controversy, the grand jury "can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not." United The function of the grand jury is to inquire into all information that might |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | grand jury is to inquire into all information that might possibly bear on its investigation until it has identified an offense or has satisfied itself that none has occurred. As a necessary consequence of its investigatory function, the grand jury paints with a broad brush. "A grand jury investigation `is not fully carried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed.'" quoting United A grand jury subpoena is thus much different from a subpoena issued in the context of a prospective criminal trial, where a specific offense has been identified and a particular defendant charged. "[T]he identity of the offender, and the precise nature of the offense, if there be one, normally are developed at the conclusion of the grand jury's labors, not at the beginning." In short, the Government cannot be required to justify the issuance of a grand jury subpoena by presenting evidence sufficient to establish probable cause because the very purpose of requesting the information is to ascertain whether probable cause exists. See *298 This Court has emphasized on numerous occasions that many of the rules and restrictions that apply at a trial do not apply in grand jury proceedings. This is especially true of evidentiary restrictions. The same rules that, in an adversary hearing on the merits, may increase the likelihood of accurate determinations of guilt or innocence do not necessarily advance the mission of a grand jury, whose task is to conduct an ex parte investigation to determine whether or not there is probable cause to prosecute a particular defendant. In this Court declined to apply the rule against hearsay to grand jury proceedings. Strict observance of trial rules in the context of a grand jury's preliminary investigation "would result in interminable delay but add nothing to the assurance of a fair " In United we held that the Fourth Amendment exclusionary rule does not apply to grand jury proceedings. Permitting witnesses to invoke the exclusionary rule would "delay and disrupt grand jury proceedings" by requiring adversary hearings on peripheral matters, and would effectively transform such proceedings into preliminary trials on the merits, -350. The teaching of the Court's decisions is clear: A grand jury "may compel the production of evidence or the testimony of witnesses as it considers appropriate, and its operation generally is unrestrained by the technical procedural and evidentiary rules governing the conduct of criminal trials," This guiding principle renders suspect the Court of Appeals' holding that the standards announced in as to subpoenas issued |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | holding that the standards announced in as to subpoenas issued in anticipation of trial apply equally in the grand jury The multifactor test announced in would invite procedural delays and detours while courts evaluate the relevancy and admissibility of documents sought by a particular subpoena. We have expressly stated that grand jury proceedings should be free of such delays. "Any holding that would saddle a grand jury with minitrials *299 and preliminary showings would assuredly impede its investigation and frustrate the public's interest in the fair and expeditious administration of the criminal laws." United Accord, Additionally, application of the test in this context ignores that grand jury proceedings are subject to strict secrecy requirements. See Fed. Rule Crim. Proc. 6(e). Requiring the Government to explain in too much detail the particular reasons underlying a subpoena threatens to compromise "the indispensable secrecy of grand jury proceedings." United Broad disclosure also affords the targets of investigation far more information about the grand jury's internal workings than the Federal Rules of Criminal Procedure appear to contemplate. III A The investigatory powers of the grand jury are nevertheless not unlimited. See ; and n. 4. Grand juries are not licensed to engage in arbitrary fishing expeditions, nor may they select targets of investigation out of malice or an intent to harass. In this case, the focus of our inquiry is the limit imposed on a grand jury by Federal Rule of Criminal Procedure (c), which governs the issuance of subpoenas duces tecum in federal criminal proceedings. The Rule provides that "[t]he court on motion made promptly may quash or modify the subpoena if compliance would be unreasonable or oppressive." This standard is not self-explanatory. As we have observed, "what is reasonable depends on the " New In this Court defined what is reasonable in the context of a jury We determined that, in order to require production of information prior to trial, a party must make a reasonably specific request for information that would be both relevant and admissible at 418 U.S., But, for the *300 reasons we have explained above, the standard does not apply in the context of grand jury proceedings. In the grand jury context, the decision as to what offense will be charged is routinely not made until after the grand jury has concluded its investigation. One simply cannot know in advance whether information sought during the investigation will be relevant and admissible in a prosecution for a particular offense. To the extent that Rule (c) imposes some reasonableness limitation on grand jury subpoenas, however, our task is to define |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | on grand jury subpoenas, however, our task is to define it. In doing so, we recognize that a party to whom a grand jury subpoena is issued faces a difficult situation. As a rule, grand juries do not announce publicly the subjects of their investigations. See A party who desires to challenge a grand jury subpoena thus may have no conception of the Government's purpose in seeking production of the requested information. Indeed, the party will often not know whether he or she is a primary target of the investigation or merely a peripheral witness. Absent even minimal information, the subpoena recipient is likely to find it exceedingly difficult to persuade a court that "compliance would be unreasonable." As one pair of commentators has summarized it, the challenging party's "unenviable task is to seek to persuade the court that the subpoena that has been served on [him or her] could not possibly serve any investigative purpose that the grand jury could legitimately be pursuing." 1 S. Beale & W. Bryson, Grand Jury Law and Practice 6:28 Our task is to fashion an appropriate standard of reasonableness, one that gives due weight to the difficult position of subpoena recipients but does not impair the strong governmental interests in affording grand juries wide latitude, avoiding minitrials on peripheral matters, and preserving a necessary level of secrecy. We begin by reiterating that the law presumes, absent a strong showing to the contrary, that a grand jury acts within the legitimate scope of its authority. *301 See United ("The grand jury proceeding is accorded a presumption of regularity, which generally may be dispelled only upon particularized proof of irregularities in the grand jury process"). See also ; United at 512-. Consequently, a grand jury subpoena issued through normal channels is presumed to be reasonable, and the burden of showing unreasonableness must be on the recipient who seeks to avoid compliance. Indeed, this result is indicated by the language of Rule (c), which permits a subpoena to be quashed only "on motion" and "if compliance would be unreasonable" (emphasis added). To the extent that the Court of Appeals placed an initial burden on the Government, it committed error. Drawing on the principles articulated above, we conclude that where, as here, a subpoena is challenged on relevancy grounds, the motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury's investigation. Respondents did not challenge the subpoenas as being too |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | investigation. Respondents did not challenge the subpoenas as being too indefinite nor did they claim that compliance would be overly burdensome. See App. in In re Grand Jury 87-3 Subpoena Duces Tecum, Nos. 88-5619, 88-5620 (CA4), pp. A-333, A-494. The Court of Appeals accordingly did not consider these aspects of the subpoenas, nor do we. B It seems unlikely, of course, that a challenging party who does not know the general subject matter of the grand jury's investigation, no matter how valid that party's claim, will be able to make the necessary showing that compliance would be unreasonable. After all, a subpoena recipient "cannot put his whole life before the court in order to show that there is no crime to be investigated," Marston's, Consequently, a court may be justified in a case where unreasonableness is alleged in requiring the Government to reveal the general subject of the grand jury's investigation before requiring the challenging party to carry its burden of persuasion. We need not resolve this question in the present case, however, as there is no doubt that respondents knew the subject of the grand jury investigation pursuant to which the business records subpoenas were issued. In cases where the recipient of the subpoena does not know the nature of the investigation, we are confident that district courts will be able to craft appropriate procedures that balance the interests of the subpoena recipient against the strong governmental interests in maintaining secrecy, preserving investigatory flexibility, and avoiding procedural delays. For example, to ensure that subpoenas are not routinely challenged as a form of discovery, a district court may require that the Government reveal the subject of the investigation to the trial court in camera, so that the court may determine whether the motion to quash has a reasonable prospect for success before it discloses the subject matter to the challenging party. IV Applying these principles in this case demonstrates that the District Court correctly denied respondents' motions to quash. It is undisputed that all three companiesModel, R. Enterprises, and MFRare owned by the same person, that all do business in the same area, and that one of the three, Model, has shipped sexually explicit materials into the Eastern District of Virginia. The District Court could have concluded from these facts that there was a reasonable possibility that the business records of R. Enterprises and MFR would produce information relevant to the grand jury's investigation into the interstate transportation of obscene materials. Respondents' blanket denial of any connection to *303 Virginia did not suffice to render the District Court's conclusion invalid. |
Justice O'Connor | 1,991 | 14 | majority | United States v. R. Enterprises, Inc. | https://www.courtlistener.com/opinion/112523/united-states-v-r-enterprises-inc/ | did not suffice to render the District Court's conclusion invalid. A grand jury need not accept on faith the self-serving assertions of those who may have committed criminal acts. Rather, it is entitled to determine for itself whether a crime has been committed. See Morton Salt 338 U. S., at Both in the District Court and in the Court of Appeals, respondents contended that these subpoenas sought records relating to First Amendment activities, and that this required the Government to demonstrate that the records were particularly relevant to its investigation. The Court of Appeals determined that the subpoenas did not satisfy Rule (c) and thus did not pass on the First Amendment issue. We express no view on this issue and leave it to be resolved by the Court of Appeals. The judgment is reversed insofar as the Court of Appeals quashed the subpoenas issued to R. Enterprises and MFR, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in part and concurring in the judgment. |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | For more than 120 years, the American economy has prospered by charting a middle path between pure lassez- faire and state capitalism, governed by an antitrust law “dedicated to the principle that markets, not individual firms and certainly not political power, produce the opti mal mixture of goods and services” 1 P Areeda & H Hovenkamp, Antitrust Law ¶100b, p 4 (4th ed 2013) (Areeda & Hovenkamp) By means of a strong antitrust law, the United States has sought to avoid the danger of monopoly capitalism Long gone, we hope, are the days when the great trusts presided unfettered by competition over the American economy This lawsuit is emblematic of the American approach Many governments around the world have responded to concerns about the high fees that credit-card companies often charge merchants by regulating such fees directly See GAO, Credit and Debit Cards: Federal Entities Are Taking Actions to Limit Their Interchange Fees, but Additional Revenue Collection Cost Savings May Exist 31–35 (GAO–08–558, 2008) The United States has not followed that approach The Government instead filed this lawsuit, which seeks to restore market competition over credit-card merchant fees by eliminating a contract 2 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ual barrier with anticompetitive effects The majority rejects that effort But because the challenged contractual term clearly has serious anticompetitive effects, I dissent I I agree with the majority and the parties that this case is properly evaluated under the three-step “rule of reason” that governs many antitrust lawsuits Ante, –10 Under that approach, a court looks first at the agreement or restraint at issue to assess whether it has had, or is likely to have, anticompetitive effects In doing so, the court normally asks whether the restraint may tend to impede competition and, if so, whether those who have entered into that restraint have sufficient economic or commercial power for the agreement to make a negative difference See at –461 Sometimes, but not al ways, a court will try to determine the appropriate market (the market that the agreement affects) and determine whether those entering into that agreement have the power to raise prices the competitive level in that market See It is important here to understand that in cases under of the Sherman Act (unlike in cases challenging a mer ger under of the Clayton Act, 15 US C 8), it may well be unnecessary to undertake a sometimes complex, market power inquiry: “Since the purpose [in a Sherman Act case] of the inquiries into market power is [simply] to deter mine whether an arrangement has the |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | is [simply] to deter mine whether an arrangement has the potential for genuine adverse effects on competition, ‘proof of actual detrimental effects, such as a reduction in output,’ can obviate the need for an inquiry into market power, which is but a ‘surrogate for detrimental effects’ ” Indiana Federation of –461 (quoting 7 P Areeda, Antitrust Law ¶1511, p 429 (3d Cite as: 585 U S (2018) 3 BREYER, J, dissenting ed 1986)) Second (as treatise writers summarize the case law), if an antitrust plaintiff meets the initial burden of showing that an agreement will likely have anticompetitive effects, normally the “burden shifts to the defendant to show that the restraint in fact serves a legitimate objective” 7 Areeda & Hovenkamp ¶1504b, at 415; see California Dental ; (BREYER, J, dissenting) Third, if the defendant successfully bears this burden, the antitrust plaintiff may still carry the day by showing that it is possible to meet the legitimate objective in less restrictive ways, or, perhaps by showing that the legiti mate objective does not outweigh the harm that competi tion will suffer, ie, that the agreement “on balance” re mains unreasonable 7 Areeda & Hovenkamp ¶1507a, at 442 Like the Court of Appeals and the parties, the majority addresses only the first step of that three-step framework Ante, at 10 II A This case concerns the credit-card business As the majority explains, ante, at 2, that business involves the selling of two different but related card services First, when a shopper uses a credit card to buy something from a participating merchant, the credit-card company pays the merchant the amount of money that the merchant’s cus tomer has charged to his card and charges the merchant a fee, say 5%, for that speedy-payment service I shall refer to that kind of transaction as a merchant-related card service Second, the credit-card company then sends a bill to the merchant’s customer, the shopper who holds the card; and the shopper pays the card company the sum that merchant charged the shopper for the goods or services he 4 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting or she bought The cardholder also often pays the card company a fee, such as an annual fee for the card or an interest charge for delayed payment I shall call that kind of transaction a shopper-related card service The credit- card company can earn revenue from the sale (directly or indirectly) of each of these services: (1) speedy payment for merchants, and (2) credit for shoppers (I say “indirectly” to reflect the fact that card companies |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | (I say “indirectly” to reflect the fact that card companies often create or use networks of banks as part of the process—but I have found nothing here suggesting that that fact makes a significant difference to my analysis) Sales of the two basic card services are related A shop per can pay for a purchase with a particular credit card only if the merchant has signed up for merchant-related card services with the company that issued the credit card that the shopper wishes to use A firm in the credit-card business is therefore unlikely to make money unless quite a few merchants agree to accept that firm’s card and quite a few shoppers agree to carry and use it In general, the more merchants that sign up with a particular card com pany, the more useful that card is likely to prove to shop pers and so the more shoppers will sign up; so too, the more shoppers that carry a particular card, the more useful that card is likely to prove to merchants (as it obviously helps them obtain the shoppers’ business) and so the more merchants will sign up Moreover, as a rough rule of thumb (and assuming constant charges), the larger the networks of paying merchants and paying shoppers that a card firm maintains, the larger the revenues that the firm will likely receive, since more payments will be processed using its cards Thus, it is not surprising that a card company may offer shoppers incentives (say, points redeemable for merchandise or travel) for using its card or that a firm might want merchants to accept its card exclusively Cite as: 585 U S (2018) 5 BREYER, J, dissenting B This case focuses upon a practice called “steering” American Express has historically charged higher mer chant fees than its competitors App to Pet for Cert 173a–176a Hence, fewer merchants accept American Express’ cards than its competitors’ at 184a–187a But, perhaps because American Express cardholders are, on average, wealthier, higher-spending, or more loyal to American Express than other cardholders, vast numbers of merchants still accept American Express cards See at 156a, 176a–177a, 184a–187a Those who do, however, would (in order to avoid the higher American Express fee) often prefer that their customers use a different card to charge a purchase Thus, the merchant has a monetary incentive to “steer” the customer towards the use of a different card A merchant might tell the customer, for example, “American Express costs us more,” or “please use Visa if you can,” or “free shipping if you use Discover” See at 100a–102a |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | or “free shipping if you use Discover” See at 100a–102a Steering makes a difference, because without it, the shopper does not care whether the merchant pays more to American Express than it would pay to a different card company—the shopper pays the same price either way But if steering works, then American Express will find it more difficult to charge more than its competitors for merchant-related services, because merchants will re spond by steering their customers, encouraging them to use other cards Thus, American Express dislikes steer ing; the merchants like it; and the shoppers may benefit from it, whether because merchants will offer them incen tives to use less expensive cards or in the form of lower retail prices overall See 2a, 97a–104a In response to its competitors’ efforts to convince mer chants to steer shoppers to use less expensive cards, American Express tried to stop, or at least to limit, steer ing by placing antisteering provisions in most of its con 6 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting tracts with merchants It called those provisions “nondis crimination provisions” They prohibited steering of the forms I have described (and others as well) See 5a–96a, 100a–101a After placing them in its agree ments, American Express found it could maintain, or even raise, its higher merchant prices without losing too many transactions to other firms at 195a–198a These agreements—the “nondiscrimination provisions”—led to this lawsuit C In 2010 the United States and 17 States brought this antitrust case against American Express They claimed that the “nondiscrimination provisions” in its contracts with merchants created an unreasonable restraint of trade (Initially Visa and MasterCard were also defend ants, but they entered into consent judgments, dropping similar provisions from their contracts with merchants) After a 7-week bench trial, the District Court entered judgment for the Government, setting forth its findings of fact and conclusions of law in a 97-page opinion Because the majority devotes little attention to the District Court’s detailed factual findings, I will summarize some of the more significant ones here Among other things, the District Court found that beginning in 2005 and during the next five years, American Express raised the prices it charged merchants on 20 separate occasions See at 195–196 In doing so, American Express did not take account of the possibility that large merchants would respond to the price increases by encouraging shop pers to use a different credit card because the nondiscrim ination provisions prohibited any such steering at 215 The District Court pointed to merchants’ testimony stating that, had it not been for those provisions, |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | testimony stating that, had it not been for those provisions, the large merchants would have responded to the price increases by Cite as: 585 U S (2018) 7 BREYER, J, dissenting encouraging customers to use other, less-expensive cards The District Court also found that even though Ameri can Express raised its merchant prices 20 times in this 5 year period, it did not lose the business of any large mer chant Nor did American Express increase benefits (or cut credit-card prices) to American Express cardholders in tandem with the merchant price increases Even had there been no direct evidence of injury to competition, American Express’ ability to raise merchant prices without losing any meaningful market share, in the District Court’s view, showed that American Express possessed power in the relevant market See at 195 The District Court also found that, in the absence of the provisions, prices to merchants would likely have been lower It wrote that in the late 1990’s, Discover, one of American Express’ competitors, had tried to develop a business model that involved charging lower prices to merchants than the other companies charged Discover then invited each “merchant to save money by shifting volume to Discover,” while simultaneously offer ing merchants additional discounts “if they would steer customers to Discover” The court determined that these efforts failed because of American Express’ (and the other card companies’) “nondiscrimination provisions” These provisions, the court found, “denied merchants the ability to express a preference for Discover or to employ any other tool by which they might steer share to Discov er’s lower-priced network” Because the provi sions eliminated any advantage that lower prices might produce, Discover “abandoned its low-price business model” and raised its merchant fees to match those of its competitors This series of events, the court con cluded was “emblematic of the harm done to the competi tive process” by the “nondiscrimination provisions” 8 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting The District Court added that it found no offsetting pro- competitive benefit to shoppers at 225–238 Indeed, it found no offsetting benefit of any kind See American Express appealed, and the U S Court of Appeals for the Second Circuit held in its favor 838 F3d 179 (2016) The Court of Appeals did not reject any fact found by the District Court as “clearly erroneous” See Fed Rule Civ Proc 52(a)(6) Rather, it concluded that the District Court had erred in step 1 of its rule-of-reason analysis by failing to account for what the Second Circuit called the credit-card business’s “two-sided market” (or “two-sided platform”) –186, |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | called the credit-card business’s “two-sided market” (or “two-sided platform”) –186, 196–200 III The majority, like the Court of Appeals, reaches only step 1 in its “rule of reason” analysis Ante, at 10 To repeat, that step consists of determining whether the challenged “nondiscrimination provisions” have had, or are likely to have, anticompetitive effects See Indiana Federation of 476 US, at Do those provi sions tend to impede competition? And if so, does Ameri can Express, which imposed that restraint as a condition of doing business with its merchant customers, have suffi cient economic or commercial power for the provision to make a negative difference? See –461 A Here the District Court found that the challenged provi sions have had significant anticompetitive effects In particular, it found that the provisions have limited or prevented price competition among credit-card firms for the business of merchants 88 F Supp 3d, That conclusion makes sense: In the provisions, American Express required the merchants to agree not to encourage customers to use American Express’ competitors’ credit cards, even cards from those competitors, such as Discover, Cite as: 585 U S (2018) 9 BREYER, J, dissenting that intended to charge the merchants lower prices See By doing so, American Express has “dis rupt[ed] the normal price-setting mechanism” in the mar ket As a result of the provisions, the District Court found, American Express was able to raise mer chant prices repeatedly without any significant loss of business, because merchants were unable to respond to such price increases by encouraging shoppers to pay with other cards The provisions also meant that competitors like Discover had little incentive to lower their merchant prices, because doing so did not lead to any additional market share The provisions thereby “suppress[ed] [American Express’] competitors’ incentives to offer lower prices resulting in higher profit-maximizing prices across the network services market” Consumers throughout the economy paid higher retail prices as a result, and they were denied the opportunity to accept incentives that merchants might otherwise have offered to use less-expensive cards at 216, 220 I should think that, considering step 1 alone, there is little more that need be The majority, like the Court of Appeals, says that the District Court should have looked not only at the market for the card companies’ merchant-related services but also at the market for the card companies’ shopper-related services, and that it should have combined them, treating them as a single market Ante, at 14–15; 838 F3d, at 197 But I am not aware of any support for that view in antitrust law Indeed, this Court |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | support for that view in antitrust law Indeed, this Court has held to the contrary In Times-Picayune Publishing Co v United States, 345 US 594, 610 (1953), the Court held that an antitrust court should begin its definition of a relevant market by focusing narrowly on the good or service directly affected by a challenged restraint The Government in that case claimed that a newspaper’s advertising policy violated the Sherman Act’s “rule of reason” See In support of 10 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting that argument, the Government pointed out, and the District Court had held, that the newspaper dominated the market for the sales of newspapers to readers in New Orleans, where it was the sole morning daily newspaper But this Court reversed We that “every newspaper is a dual trader in separate though interde pendent markets; it sells the paper’s news and advertising content to its readers; in effect that readership is in turn sold to the buyers of advertising space” We then added: “This case concerns solely one of those markets The Publishing Company stands accused not of tying sales to its readers but only to buyers of general and classi fied space in its papers For this reason, dominance in the advertising market, not in readership, must be de cisive in gauging the legality of the Company’s unit plan” Here, American Express stands accused not of limiting or harming competition for shopper-related card services, but only of merchant-related card services, because the chal lenged contract provisions appear only in American Ex press’ contracts with merchants That is why the District Court was correct in considering, at step 1, simply whether the agreement had diminished competition in merchant-related services B The District Court did refer to market definition, and the majority does the same Ante, at 11–15 And I recog nize that properly defining a market is often a complex business Once a court has identified the good or service directly restrained, as Times-Picayune Publishing Co requires, it will sometimes add to the relevant market what economists call “substitutes”: other goods or services that are reasonably substitutable for that good or service Cite as: 585 U S (2018) 11 BREYER, J, dissenting See, eg, United States v E I du Pont de Nemours & Co, 351 US 377, (explaining that cellophane market includes other, substitutable flexible wrapping materials as well) The reason that substitutes are in cluded in the relevant market is that they restrain a firm’s ability to profitably raise prices, because customers will switch to the substitutes rather than pay the higher |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | will switch to the substitutes rather than pay the higher prices See 2B Areeda & Hovenkamp ¶561, at 378 But while the market includes substitutes, it does not include what economists call complements: goods or ser vices that are used together with the restrained product, but that cannot be substituted for that product See ¶565a, at 429; Eastman Kodak Co v Image Technical Services, Inc, 504 US 451, An example of complements is gasoline and tires A driver needs both gasoline and tires to drive, but they are not substitutes for each other, and so the sale price of tires does not check the ability of a gasoline firm (say a gasoline monopolist) to raise the price of gasoline competitive levels As a treatise on the subject states: “Grouping complementary goods into the same market” is “economic nonsense,” and would “undermin[e] the rationale for the policy against monopolization or collusion in the first place” 2B Areeda & Hovenkamp ¶565a, at 431 Here, the relationship between merchant-related card services and shopper-related card services is primarily that of complements, not substitutes Like gasoline and tires, both must be purchased for either to have value Merchants upset about a price increase for merchant- related services cannot avoid that price increase by becom ing cardholders, in the way that, say, a buyer of newspa per advertising can switch to television advertising or direct mail in response to a newspaper’s advertising price increase The two categories of services serve fundamen tally different purposes And so, also like gasoline and tires, it is difficult to see any way in which the price of 12 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting shopper-related services could act as a check on the card firm’s sale price of merchant-related services If anything, a lower price of shopper-related card services is likely to cause more shoppers to use the card, and increased shop per popularity should make it easier for a card firm to raise prices to merchants, not harder, as would be the case if the services were substitutes Thus, unless there is something unusual about this case—a possibility I discuss below, see infra, at 13–20—there is no justification for treating shopper-related services and merchant-related services as if they were part of a single market, at least not at step 1 of the “rule of reason” C Regardless, a discussion of market definition was legally unnecessary at step 1 That is because the District Court found strong direct evidence of anticompetitive effects flowing from the challenged restraint 88 F Supp 3d, at 207–224 As I this evidence included |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | F Supp 3d, at 207–224 As I this evidence included Discover’s efforts to break into the credit-card business by charging lower prices for merchant-related services, only to find that the “nondiscrimination provisions,” by pre venting merchants from encouraging shoppers to use Discover cards, meant that lower merchant prices did not result in any additional transactions using Discover credit cards 88 F Supp 3d, –214 The direct evidence also included the fact that American Express raised its merchant prices 20 times in five years without losing any appreciable market share at 195–198, 208–212 It also included the testimony of numerous merchants that they would have steered shoppers away from American Express cards in response to merchant price increases (thereby checking the ability of American Express to raise prices) had it not been for the nondiscrimination provi sions See at 221–222 It included the factual finding that American Express “did not even account for the pos Cite as: 585 U S (2018) 13 BREYER, J, dissenting sibility that [large] merchants would respond to its price increases by attempting to shift share to a competitor’s network” because the nondiscrimination provisions pro hibited steering It included the District Court’s ultimate finding of fact, not overturned by the Court of Appeals, that the challenged provisions “were integral to” American Express’ “[price] increases and thereby caused merchants to pay higher prices” As I this Court has stated that “[s]ince the purpose of the inquiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competi tion, proof of actual detrimental effects can obviate the need for” those inquiries Indiana Federation of 476 US, –461 (internal quotation marks omitted) That statement is fully applicable here Doubts about the District Court’s market-definition analysis are beside the point in the face of the District Court’s findings of actual anticompetitive harm The majority disagrees that market definition is irrele vant See ante, at 11–12, and n 7 The majority explains that market definition is necessary because the nondis crimination provisions are “vertical restraints” and “[v]ertical restraints often pose no risk to competition unless the entity imposing them has market power, which cannot be evaluated unless the Court first determines the relevant market” Ante, at 11, n 7 The majority thus, in a footnote, seems categorically to exempt vertical re straints from the ordinary “rule of reason” analysis that has applied to them since the Sherman Act’s enactment in 1890 The majority’s only support for this novel exemption is Leegin Creative Leather Products, Inc v PSKS, Inc, 551 US 877 But |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | Leather Products, Inc v PSKS, Inc, 551 US 877 But Leegin held that the “rule of reason” applied to the vertical restraint at issue in that case See at 898–899 It nothing to suggest that vertical restraints are not subject to the usual “rule of 14 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting reason” analysis See also infra, at 24 One critical point that the majority’s argument ignores is that proof of actual adverse effects on competition is, a fortiori, proof of market power Without such power, the restraints could not have brought about the anticompeti tive effects that the plaintiff proved See Indiana Federa- tion of (“[T]he purpose of the in quiries into market definition and market power is to determine whether an arrangement has the potential for genuine adverse effects on competition” (emphasis added)) The District Court’s findings of actual anticom petitive harm from the nondiscrimination provisions thus showed that, whatever the relevant market might be, American Express had enough power in that market to cause that harm There is no reason to require a separate showing of market definition and market power under such circumstances And so the majority’s extensive discussion of market definition is legally unnecessary D The majority’s discussion of market definition is also wrong Without raising any objection in general with the longstanding approach I describe at 10–11, the majority agrees with the Court of Appeals that the market for American Express’ card services is special because it is a “two-sided transaction platform” Ante, at 2–5, 12–15 The majority explains that credit-card firms connect two distinct groups of customers: First, merchants who accept credit cards, and second, shoppers who use the cards Ante, at 2; 838 F3d, at 186 The majority adds that “no credit-card transaction can occur unless both the merchant and the cardholder simultaneously agree to use to the same credit-card network” Ante, at 3 And it explains that the credit-card market involves “indirect network effects,” by which it means that shoppers want a card that many merchants will accept and merchants Cite as: 585 U S (2018) 15 BREYER, J, dissenting want to accept those cards that many customers have and use From this, the majority concludes that “courts must include both sides of the platform—merchants and cardholders—when defining the credit-card market” Ante, at 12; 838 F3d, 1 Missing from the majority’s analysis is any explanation as to why, given the purposes that market definition serves in antitrust law, the fact that a credit-card firm can be to operate a “two-sided transaction platform” means that its merchant-related and shopper-related services |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | “two-sided transaction platform” means that its merchant-related and shopper-related services should be combined into a single market The phrase “two-sided transaction platform” is not one of antitrust art—I can find no case from this Court using those words The majority defines the phrase as covering a business that “offers different products or services to two different groups who both depend on the platform to in termediate between them,” where the business “cannot make a sale to one side of the platform without simultane ously making a sale to the other” side of the platform Ante, at 2 I take from that definition that there are four relevant features of such businesses on the majority’s account: they (1) offer different products or services, (2) to different groups of customers, (3) whom the “platform” connects, (4) in simultaneous transactions See What is it about businesses with those four features that the majority thinks justifies a special market- definition approach for them? It cannot be the first two features—that the company sells different products to different groups of customers Companies that sell multi ple products to multiple types of customers are common place A firm might mine for gold, which it refines and sells both to dentists in the form of fillings and to inves tors in the form of ingots Or, a firm might drill for both oil and natural gas Or a firm might make both ignition 16 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting switches inserted into auto bodies and tires used for cars I have already that, ordinarily, antitrust law will not group the two nonsubstitutable products together for step 1 purposes at 10–11 Neither should it normally matter whether a company sells related, or complementary, products, ie, products which must both be purchased to have any function, such as ignition switches and tires, or cameras and film It is well established that an antitrust court in such cases looks at the product where the attacked restraint has an anti competitive effect ; see Eastman Kodak, 504 US, at The court does not combine the customers for the separate, nonsubstitutable goods and see if “over all” the restraint has a negative effect See ; 2B Areeda & Hovenkamp ¶565a That is because, as I have the complementary relationship between the products is irrelevant to the purposes of market-definition See at 10–11 The majority disputes my characterization of merchant- related and shopper-related services as “complements” See ante, at 14, n 8 The majority relies on an academic article which devotes one sentence to the question, saying that “a two-sided |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | devotes one sentence to the question, saying that “a two-sided market [is] different from markets for complementary products [eg, tires and gas], in which both products are bought by the same buyers, who, in their buying decisions, can therefore be expected to take into account both prices” Filistrucchi, Geradin, Van Damme, & Affeldt, Market Definition in Two-Sided Mar kets: Theory and Practice, 10 J Competition L & Econ 293, 297 (2014) (Filistrucchi) I agree that two-sided platforms—at least as some academics define them, but see infra, at 19–20—may be distinct from some types of complements in the respect the majority mentions (even though the services resemble complements because they must be used together for either to have value) But the distinction the majority mentions has nothing to do with Cite as: 585 U S (2018) 17 BREYER, J, dissenting the relevant question The relevant question is whether merchant-related and shopper-related services are substi- tutes, one for the other, so that customers can respond to a price increase for one service by switching to the other service As I have the two types of services are not substitutes in this way at 11–12 And so the question remains, just as before: What is it about the economic relationship between merchant-related and shopper-related services that would justify the majority’s novel approach to market definition? What about the last two features—that the company connects the two groups of customers to each other, in simultaneous transactions? That, too, is commonplace Consider a farmers’ market It brings local farmers and local shoppers together, and transactions will occur only if a farmer and a shopper simultaneously agree to engage in one Should courts abandon their ordinary step 1 inquiry if several competing farmers’ markets in a city agree that only certain kinds of farmers can participate, or if a farm ers’ market charges a higher fee than its competitors do and prohibits participating farmers from raising their prices to cover it? Why? If farmers’ markets are special, what about travel agents that connect airlines and pas sengers? What about internet retailers, who, in addition to selling their own goods, allow (for a fee) other goods- producers to sell over their networks? Each of those busi nesses seems to meet the majority’s four-prong definition Apparently as its justification for applying a special market-definition rule to “two-sided transaction plat forms,” the majority explains that such platforms “often exhibit” what it calls “indirect network effects” Ante, at 3 By this, the majority means that sales of merchant-related card services and (different) shopper-related card services are interconnected, in that increased |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | and (different) shopper-related card services are interconnected, in that increased merchant-buyers mean increased shopper-buyers (the more stores in the card’s network, the more customers likely to use the card), 18 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting and vice versa See But this, too, is commonplace Consider, again, a farmers’ market The more farmers that participate (within physical and esthetic limits), the more customers the market will likely attract, and vice versa So too with travel agents: the more airlines whose tickets a travel agent sells, the more potential passengers will likely use that travel agent, and the more potential passengers that use the travel agent, the easier it will likely be to convince airlines to sell through the travel agent And so forth Nothing in antitrust law, to my knowledge, suggests that a court, when presented with an agreement that restricts competition in any one of the markets my examples suggest, should abandon traditional market-definition approaches and include in the relevant market services that are complements, not substitutes, of the restrained good See at 10–11 2 To justify special treatment for “two-sided transaction platforms,” the majority relies on the Court’s decision in United States v Grinnell Corp, 384 US 563, 571–572 (1966) In Grinnell, the Court treated as a single market several different “central station services,” including burglar alarm services and fire alarm services It did so even though, for consumers, “burglar alarm ser vices are not interchangeable with fire alarm services” But that is because, for producers, the services were indeed interchangeable: A company that offered one could easily offer the other, because they all involve “a single basic service—the protection of property through use of a central service station” Thus, the “commer cial realit[y]” that the Grinnell Court relied on, ib was that the services being grouped were what economists call “producer substitutes” See 2B Areeda & Hovenkamp ¶561, at 378 And the law is clear that “two products produced interchangeably from the same production facili Cite as: 585 U S (2018) 19 BREYER, J, dissenting ties are presumptively in the same market,” even if they are not “close substitutes for each other on the demand side” That is because a firm that produces one such product can, in response to a price increase in the other, easily shift its production and thereby limit its compet- itor’s power to impose the higher price See ¶561a, at 379 Unlike the various types of central station services at issue in Grinnell Corp, however, the shopper-related and merchant-related services that American Express provides are not “producer substitutes” any more |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | that American Express provides are not “producer substitutes” any more than they are traditional substitutes For producers as for consumers, the services are instead complements Credit card compa nies must sell them together for them to be useful As a result, the credit-card companies cannot respond to, say, merchant-related price increases by shifting production away from shopper-related services to merchant-related services The relevant “commercial realities” in this case are thus completely different from those in Grinnell Corp for this point, but the “commercial realities” considered in that case were that “shoe stores in the outskirts of cities compete effectively with stores in central downtown areas,” and thus are part of the same market at –339 Here, merchant-related services do not, as I have compete with shopper-related services, and so Brown Shoe Co does not support the majority’s position) Thus, our precedent provides no support for the majority’s special approach to defining markets involving “two-sided transaction platforms” 3 What about the academic articles the majority cites? The first thing to note is that the majority defines “two- sided transaction platforms” much more broadly than the 20 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting economists do As the economists who coined the term explain, if a “two-sided market” meant simply that a firm connects two different groups of customers via a platform, then “pretty much any market would be two-sided, since buyers and sellers need to be brought together for markets to exist and gains from trade to be realized” Rochet & Tirole, Two-Sided Markets: A Progress Report, 37 RAND J Econ 645, 646 (2006) The defining feature of a “two- sided market,” ing to these economists, is that “the platform can affect the volume of transactions by charging more to one side of the market and reducing the price paid by the other side by an equal amount” at 664–665; Filistrucchi 299 That requirement appears no where in the majority’s definition By failing to limit its definition to platforms that economists would recognize as “two sided” in the relevant respect, the majority carves out a much broader exception to the ordinary antitrust rules than the academic articles it relies on could possibly support Even as limited to the narrower definition that econo mists use, however, the academic articles the majority cites do not support the majority’s flat rule that firms operating “two-sided transaction platforms” should always be treated as part of a single market for all antitrust purposes Ante, at 13–15 Rather, the academics explain that for market-definition purposes, “[i]n some cases, the fact that a business can be thought |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | some cases, the fact that a business can be thought of as two-sided may be irrelevant,” including because “nothing in the analysis of the practices [at issue] really hinges on the linkages be tween the demands of participating groups” Evans & Schmalensee, Markets With Two-Sided Platforms, 1 Is sues in Competition L & Pol’y 667, 689 (2008) “In other cases, the fact that a business is two-sided will prove important both by identifying the real dimensions of com petition and focusing on sources of constraints” That flexible approach, however, is precisely the one the Cite as: 585 U S (2018) 21 BREYER, J, dissenting District Court followed in this case, by considering the effects of “[t]he two-sided nature of the card industry” throughout its analysis 88 F Supp 3d, at 155 Neither the majority nor the academic articles it cites offer any explanation for why the features of a “two-sided transaction platform” justify always treating it as a single antitrust market, rather than accounting for its economic features in other ways, as the District Court did The article that the majority repeatedly quotes as saying that “ ‘[i]n two-sided transaction markets, only one market should be defined,’ ” ante, at 14–15 (quoting Filistrucchi 302), justifies that conclusion only for purposes of as sessing the effects of a merger In such a case, the article explains, “[e]veryone would probably agree that a payment card company such as American Express is either in the relevant market on both sides or on neither side The analysis of a merger between two payment card platforms should thus consider both sides of the market” at 301 In a merger case this makes sense, but is also mean ingless, because, whether there is one market or two, a reviewing court will consider both sides, because it must examine the effects of the merger in each affected market and submarket See Brown Shoe Co, 370 US, at 325 As for a nonmerger case, the article offers only United States v Grinnell as a justification, see Filistrucchi 303, and as I have already at 16–18, Grinnell does not support this proposition E Put all of those substantial problems with the majority’s reasoning aside, though Even if the majority were right to say that market definition was relevant, and even if the majority were right to further say that the District Court should have defined the market in this case to include shopper-related services as well as merchant-related services, that still would not justify the majority in affirm 22 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ing the |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting ing the Court of Appeals That is because, as the majority is forced to admit, the plaintiffs made the factual showing that the majority thinks is required See ante, at 17 Recall why it is that the majority says that market definition matters: because if the relevant market includes both merchant-related services and card-related services, then the plaintiffs had the burden to show that as a result of the nondiscrimination provisions, “the price of credit- card transactions”—considering both fees charged to merchants and rewards paid to cardholders—“was higher than the price one would expect to find in a competitive market” Ante, at 16 This mirrors the Court of Appeals’ holding that the Government had to show that the “non discrimination provisions” had “made all [American Ex press] customers on both sides of the platform—ie, both merchants and cardholders—worse off overall” 838 F3d, at 205 The problem with this reasoning, aside from it being wrong, is that the majority admits that the plaintiffs did show this: they “offer[ed] evidence” that American Express “increased the percentage of the purchase price that it charges merchants and that this increase was not entirely spent on cardholder rewards” Ante, 17 (citing 88 F Supp 3d, at 195–197, 215) Indeed, the plaintiffs did not merely “offer evidence” of this—they persuaded the District Court, which made an unchallenged factual find ing that the merchant price increases that resulted from the nondiscrimination provisions “were not wholly offset by additional rewards expenditures or otherwise passed through to cardholders, and resulted in a higher net price” In the face of this problem, the majority retreats to saying that even net price increases do not matter after all, absent a showing of lower output, because if output is increasing, “ ‘rising prices are equally consistent with growing product demand’ ” Ante, at 18 (quoting Brooke Cite as: 585 U S (2018) 23 BREYER, J, dissenting Group Ltd v Brown & Williamson Tobacco Corp, 509 US 209, 237 (1993)) This argument, unlike the price argument, has nothing to do with the credit-card market being a “two-sided transaction platform,” so if this is the basis for the majority’s holding, then nearly all of the opinion is dicta The argument is also wrong It is true as an economic matter that a firm exercises market power by restricting output in order to raise prices But the rele vant restriction of output is as compared with a hypothet ical world in which the restraint was not present and prices were lower The fact that credit-card use in |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | and prices were lower The fact that credit-card use in general has grown over the last decade, as the majority says, see ante, at 17–18, says nothing about whether such use would have grown more or less without the nondiscrimina tion provisions And because the relevant question is a comparison between reality and a hypothetical state of affairs, to require actual proof of reduced output is often to require the impossible—tantamount to saying that the Sherman Act does not apply at all In any event, there are features of the credit-card mar ket that may tend to limit the usual relationship between price and output In particular, merchants generally spread the costs of credit-card acceptance across all their customers (whatever payment method they may use), while the benefits of card use go only to the cardholders See, eg, 88 F Supp 3d, at 216; Brief for John M Connor et al as Amici Curiae 34–35 Thus, higher credit-card merchant fees may have only a limited effect on credit- card transaction volume, even as they disrupt the market place by extracting anticompetitive profits IV A For the reasons I have stated, the Second Circuit was wrong to lump together the two different services sold, at step 1 But I recognize that the Court of Appeals has not 24 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting yet considered whether the relationship between the two services might make a difference at steps 2 and 3 That is to say, American Express might wish to argue that the nondiscrimination provisions, while anticompetitive in respect to merchant-related services, nonetheless have an adequate offsetting procompetitive benefit in respect to its shopper-related services I believe that American Express should have an opportunity to ask the Court of Appeals to consider that matter American Express might face an uphill battle A Sher man Act defendant can rarely, if ever, show that a pro- competitive benefit in the market for one product offsets an anticompetitive harm in the market for another In United States v Topco Associates, Inc, 405 US 596, (1972), this Court wrote: “If a decision is to be made to sacrifice competition in one portion of the economy for greater competition in another portion, this is a decision that must be made by Congress and not by private forces or by the courts Private forces are too keenly aware of their own interests in making such decisions and courts are ill-equipped and ill-situated for such decisionmaking” American Express, pointing to vertical price-fixing cases like our decision in Leegin, argues that comparing competition-related pros and cons |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | decision in Leegin, argues that comparing competition-related pros and cons is more common than I have just suggested See 551 US, at 889–892 But Leegin held only that vertical price fixing is subject to the “rule of reason” instead of being per se unlawful; the “rule of reason” still applies to vertical agreements just as it applies to horizontal agreements See at 898–899 Moreover, the procompetitive justifications for vertical price-fixing agreements are not apparently applicable to the distinct types of restraints at issue in this case A vertically imposed price-fixing agreement typically in volves a manufacturer controlling the terms of sale for its Cite as: 585 U S (2018) 25 BREYER, J, dissenting own product A television-set manufacturer, for example, will insist that its dealers not cut prices for the manufac turer’s own televisions below a particular level Why might a manufacturer want its dealers to refrain from price competition in the manufacturer’s own products? Perhaps because, for example, the manufacturer wants to encourage the dealers to develop the market for the manu facturer’s brand, thereby increasing interbrand competi tion for the same ultimate product, namely a television set This type of reasoning does not appear to apply to American Express’ nondiscrimination provisions, which seek to control the terms on which merchants accept other brands’ cards, not merely American Express’ own Regardless, I would not now hold that an agreement such as the one before us can never be justified by pro- competitive benefits of some kind But the Court of Ap peals would properly consider procompetitive justifications not at step 1, but at steps 2 and 3 of the “rule of reason” inquiry American Express would need to show just how this particular anticompetitive merchant-related agree ment has procompetitive benefits in the shopper-related market In doing so, American Express would need to overcome the District Court’s factual findings that the agreement had no such effects See 88 F Supp 3d, at 224–238 B The majority charts a different path Notwithstanding its purported acceptance of the three-step, burden-shifting framework I have described, ante, –10, the majority addresses American Express’ procompetitive justifications now, at step 1 of the analysis, see ante, at 18–20 And in doing so, the majority inexplicably ignores the District Court’s factual findings on the subject The majority reasons that the challenged nondiscrimi nation provisions “stem negative externalities in the credit 26 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting card market and promote interbrand competition” Ante, at 19 The “negative externality” the majority has in mind is this: If one merchant persuades a shopper not to use |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | this: If one merchant persuades a shopper not to use his American Express card at that merchant’s store, that shopper becomes less likely to use his American Express card at other merchants’ stores The majority wor ries that this “endangers the viability of the entire [Ameri can Express] network,” ib but if so that is simply a consequence of American Express’ merchant fees being higher than a competitive market will support “The antitrust laws were enacted for ‘the protection of competi- tion, not competitors’ ” Atlantic Richfield Co v USA Petroleum Co, 495 US 328, If American Express’ merchant fees are so high that merchants suc cessfully induce their customers to use other cards, Ameri can Express can remedy that problem by lowering those fees or by spending more on cardholder rewards so that cardholders decline such requests What it may not do is demand contractual protection from price competition In any event, the majority ignores the fact that the District Court, in addition to saying what I have just also rejected this argument on independent factual grounds It that American Express “presented no expert testimony, financial analysis, or other direct evidence establishing that without its [nondiscrimination provisions] it will, in fact, be unable to adapt its business to a more competitive market” 88 F Supp 3d, at 231 It further that the testimony that was provided on the topic “was notably inconsistent,” with some of Ameri can Express’ witnesses saying only that invalidation of the provisions “would require American Express to adapt its current business model” After an extensive discus sion of the record, the District Court found that “American Express possesses the flexibility and expertise necessary to adapt its business model to suit a market in which it is required to compete on both the cardholder and merchant Cite as: 585 U S (2018) 27 BREYER, J, dissenting sides of the [credit-card] platform” at 231–232 The majority evidently rejects these factual findings, even though no one has challenged them as clearly erroneous Similarly, the majority refers to the nondiscrimination provisions as preventing “free riding” on American Ex press’ “investments in rewards” for cardholders Ante, at 19–20; see also ante, (describing steering in terms suggestive of free riding) But as the District Court ex plained, “[p]lainly investments tied to card use (such as Membership Rewards points, purchase protection, and the like) are not subject to free-riding, since the network does not incur any cost if the cardholder is successfully steered away from using his or her American Express card” 88 F Supp 3d, at 237 This, I should think, |
Justice Breyer | 2,018 | 2 | dissenting | Ohio v. American Express Co. | https://www.courtlistener.com/opinion/4510530/ohio-v-american-express-co/ | 88 F Supp 3d, at 237 This, I should think, is an unassailable conclusion: American Express pays rewards to cardholders only for transactions in which cardholders use their American Express cards, so if a steering effort succeeds, no rewards are paid As for concerns about free riding on American Express’ fixed expenses, including its investments in its brand, the District Court acknowledged that free-riding was in theory possible, but that American Express “ma[de] no effort to identify the fixed expenses to which its experts referred or to explain how they are subject to free riding” ; see also (American Express’ own data showed “that the network’s ability to confer a credentialing benefit trails that of its competitors, casting doubt on whether there is in fact any particular benefit associated with accepting [American Express] that is subject to free riding”) The majority does not even acknowledge, much less reject, these factual findings, despite coming to the contrary conclusion Finally, the majority reasons that the nondiscrimination provisions “do not prevent Visa, MasterCard, or Discover from competing against [American Express] by offering lower merchant fees or promoting their broader merchant acceptance” Ante, at 20 But again, the District Court’s 28 OHIO v AMERICAN EXPRESS CO BREYER, J, dissenting factual findings were to the contrary As I laid out the District Court found that the nondiscrimination provi sions in fact did prevent Discover from pursuing a low merchant-fee business model, by “den[ying] merchants the ability to express a preference for Discover or to employ any other tool by which they might steer share to Discov er’s lower-priced network” 88 F Supp 3d, ; see The majority’s statements that the nondis crimination provisions are procompetitive are directly contradicted by this and other factual findings * * * For the reasons I have the majority’s decision in this case is contrary to basic principles of antitrust law, and it ignores and contradicts the District Court’s detailed factual findings, which were based on an extensive trial record I respectfully dissent |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | In this case, with its emotional overtones, we must decide whether the free speech guarantees of the First and Fourteenth Amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. I Petitioner Forsyth County is a primarily rural Georgia county approximately 30 miles northeast of Atlanta. It has *125 had a troubled racial history. In 1912, in one month, its entire African-American population, over 1,000 citizens, was driven systematically from the county in the wake of the rape and murder of a white woman and the lynching of her accused assailant.[1] Seventy-five years later, in 1987, the county population remained 99% white.[2] Spurred by this history, Hosea Williams, an Atlanta city councilman and civil rights personality, proposed a Forsyth County "March Against Fear and Intimidation" for January 17, 1987. Approximately 90 civil rights demonstrators attempted to parade in Cumming, the county seat. The marchers were met by members of the Forsyth County Defense League (an independent affiliate of respondent, The Nationalist Movement), of the Ku Klux Klan, and other Cumming residents. In all, some 400 counterdemonstrators lined the parade route, shouting racial slurs. Eventually, the counterdemonstrators, dramatically outnumbering police officers, forced the parade to a premature halt by throwing rocks and beer bottles. Williams planned a return march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960's. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally.[3] The 1,000 counterdemonstrators on the parade route were contained *126 by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $6,000 in police protection, of which Forsyth County apparently paid a small portion.[4] See App. to Pet. for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section, p. 5, col. 1. "As a direct result" of these two demonstrations, the Forsyth County Board of Commissioners enacted Ordinance 34 on January 27, 1987. See Brief for Petitioner 6. The ordinance recites that it is "to provide for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes." See App. to Pet. for Cert. 98. The board of commissioners justified the ordinance by explaining that "the cost of |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | commissioners justified the ordinance by explaining that "the cost of necessary and reasonable protection of persons participating in or observing said parades, assemblies, demonstrations, road closings and other related activities exceeds the usual and normal cost of law enforcement for which those participating should be held accountable and responsible." The ordinance required the permit applicant to defray these costs by paying a fee, the amount of which was to be fixed "from time to time" by the Board. Ordinance 34 was amended on June 8, 1987, to provide that every permit applicant "`shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place.'"[5] In addition, the county *127 administrator was empowered to "`adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.'" In January 1989, respondent The Nationalist Movement proposed to demonstrate in opposition to the federal holiday commemorating the birthday of Martin Luther King, Jr. In Forsyth County, the Movement sought to "conduct a rally and speeches for one and a half to two hours" on the courthouse steps on a Saturday afternoon. Nationalist[6] The county imposed a $100 fee. The fee did not include any calculation for expenses incurred by law enforcement authorities, but was based on 10 hours of the county administrator's time in issuing the permit. The county administrator testified that the cost of his time was deliberately undervalued and that he did not charge for the clerical support involved in processing the application. Tr. 135-139. The Movement did not pay the fee and did not hold the rally. Instead, it instituted this action on January 19, 1989, in the United States District Court for the Northern District of Georgia, requesting a temporary restraining order and permanent injunction prohibiting Forsyth County from interfering with the Movement's plans. The District Court denied the temporary restraining order and injunction. It found that, although "the instant ordinance vests much discretion in the County Administrator in determining an appropriate fee," the determination of the fee was "based solely upon content-neutral criteria; namely, *128 the actual costs incurred investigating and processing the application." App. to Pet. for Cert. 13-14. Although it expressed doubt about the constitutionality of that portion of the ordinance that permits fees to be based upon the costs incident to maintaining public order, the District Court found that "the county ordinance, as applied in this case, |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | found that "the county ordinance, as applied in this case, is not unconstitutional." The United States Court of Appeals for the Eleventh Circuit reversed this aspect of the District Court's judgment. Nationalist Relying on its prior opinion in Central Florida Nuclear Freeze cert. denied, the Court of Appeals held: "An ordinance which charges more than a nominal fee for using public forums for public issue speech, violates the First Amendment." The court determined that a permit fee of up to $1,000 a day exceeded this constitutional threshold. One judge concurred specially, calling for Central Florida to be The Court of Appeals then voted to vacate the panel's opinion and to rehear the case en banc. After further briefing, the court issued a per curiam opinion reinstating the panel opinion in its entirety. Two judges, concurring in part and dissenting in part, agreed that any fee imposed on the exercise of First Amendment rights in a traditional public forum must be nominal if it is to survive constitutional scrutiny. Those judges, however, did not believe that the county ordinance swept so broadly that it was facially invalid, and would have remanded the case for the District Court to determine whether the fee was nominal.[7] Three judges *129 dissented, arguing that this Court's cases do not require that fees be nominal. 93. We granted certiorari to resolve a conflict among the Courts of Appeals concerning the constitutionality of charging a fee for a speaker in a public forum.[8] II Respondent mounts a facial challenge to the Forsyth County ordinance. It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. See, e. g., City Council of Los ; Board of Airport Comm'rs of Los This exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. See, e. g., New ; Thus, the Court has permitted a party to challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, see ; ; Taxpayers for n. 15, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected, see (13); Jews for 482 U. S., at -575. The Forsyth County ordinance requiring a permit and a |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | -575. The Forsyth County ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in "the archetype of a traditional public forum," is a prior restraint on speech, see ; Although there is a "heavy presumption" against the validity of a prior restraint, Bantam Books, the Court has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally, see 312 U.S. 9, -576 Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official. See Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication. See United A Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is "inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view." *131 To curtail that risk, "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license" must contain "narrow, objective, and definite standards to guide the licensing authority." 394 U. S., at ; see also 340 U. S., at The reasoning is simple: If the permit scheme "involves appraisal of facts, the exercise of judgment, and the formation of an opinion," by the licensing authority, "the danger of censorship and of abridgment of our precious First Amendment freedoms is too great" to be permitted, Southeastern Promotions, (15). In evaluating respondent's facial challenge, we must consider the county's authoritative constructions of the ordinance, including its own implementation and interpretation of it. See ; 7, n. 11 ; (12). In the present litigation, the county has made clear how it interprets and implements the ordinance. The ordinance can apply to any activity on public property from parades, to street corner speeches, to bike racesand the fee assessed may reflect the county's police and administrative costs. Whether or not, in any given instance, the fee would include any or all of the county's administrative and security expenses is decided by the county administrator.[9] *132 In this case, according to testimony at the District Court hearing, the administrator based the fee on his own judgment of what would |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | based the fee on his own judgment of what would be reasonable. Although the county paid for clerical support and staff as an "expense incident to the administration" of the permit, the administrator testified that he chose in this instance not to include that expense in the fee. The administrator also attested that he had deliberately kept the fee low by undervaluing the cost of the time he spent processing the application. Even if he had spent more time on the project, he claimed, he would not have charged more. He further testified that, in this instance, he chose not to include any charge for expected security expense. Tr. 135-139. The administrator also explained that the county had imposed a fee pursuant to a permit on two prior occasions. The year before, the administrator had assessed a fee of $100 for a permit for the Movement. The administrator testified that he charged the same fee the following year (the year in question here), although he did not state that the Movement was seeking the same use of county property or that it required the same amount of administrative time to process. The administrator also once charged bike-race organizers $25 to hold a race on county roads, but he did not explain why processing a bike-race permit demanded less administrative time than processing a parade permit or why he had chosen to assess $25 in that instance. 3-144. At oral argument in this Court, counsel for Forsyth County stated that the administrator had levied a $5 fee on the Girl Scouts for an activity on county property. Tr. of Oral Arg. 26. Finally, the administrator testified that in other cases the county required neither a permit nor a fee for activities in other county facilities or on county land. Tr. 146. Based on the county's implementation and construction of the ordinance, it simply cannot be said that there are any *133 "narrowly drawn, reasonable and definite standards," 340 U. S., at guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative timeor even whether to charge at allis left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county's established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees.[10] The First Amendment prohibits |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | through the arbitrary application of fees.[10] The First Amendment prohibits the vesting of such unbridled discretion in a government official.[11] B The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion. As *134 construed by the county, the ordinance often requires that the fee be based on the content of the speech. The county envisions that the administrator, in appropriate instances, will assess a fee to cover "the cost of necessary and reasonable protection of persons participating in or observing said activit[y]." See App. to Pet. for Cert. 100. In order to assess accurately the cost of security for parade participants, the administrator "`must necessarily examine the content of the message that is conveyed,'" Arkansas Writers' quoting estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator's measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit. Although petitioner agrees that the cost of policing relates to content, see Tr. of Oral Arg. 15 and 24, it contends that the ordinance is content neutral because it is aimed only at a secondary effectthe cost of maintaining public order. It is clear, however, that, in this case, it cannot be said that the fee's justification "`ha[s] nothing to do with content.'" quoting The costs to which petitioner refers are those associated with the public's reaction to the speech. Listeners' reaction to speech is not a content-neutral basis for regulation. See ; ; Hustler Magazine, 55- ; ; cf. Speech cannot be financially *135 burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.[12] See (12); This Court has held time and again: "Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment." 648- ; Simon & Schuster, ; Arkansas Writers' 481 U. S., at The county offers only one *136 justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee. See Petitioner insists that its ordinance cannot be unconstitutionally content based because it contains much of the same language as did the state statute upheld in 312 U.S. 9 Although the Supreme Court of New Hampshire had interpreted the statute at issue in Cox to authorize the municipality |
Justice Blackmun | 1,992 | 11 | majority | Forsyth County v. Nationalist Movement | https://www.courtlistener.com/opinion/112767/forsyth-county-v-nationalist-movement/ | the statute at issue in Cox to authorize the municipality to charge a permit fee for the "maintenance of public order," no fee was actually assessed. See Nothing in this Court's opinion suggests that the statute, as interpreted by the New Hampshire Supreme Court, called for charging a premium in the case of a controversial political message delivered before a hostile audience. In light of the Court's subsequent First Amendment jurisprudence, we do not read Cox to permit such a premium. C Petitioner, as well as the Court of Appeals and the District Court, all rely on the maximum allowable fee as the touchstone of constitutionality. Petitioner contends that the $1,000 cap on the fee ensures that the ordinance will not result in content-based discrimination. The ordinance was found unconstitutional by the Court of Appeals because the $1,000 cap was not sufficiently low to be "nominal." Neither the $1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance because in this context, the level of the fee is irrelevant. A tax based on the content of speech does not become more constitutional because it is a small tax. The lower courts derived their requirement that the permit fee be "nominal" from a sentence in the opinion in In Murdock, the Court invalidated a flat license fee levied on distributors of religious literature. In distinguishing the case from Cox, *137 where the Court upheld a permit fee, the Court stated: "And the fee is not a nominal one, imposed as a regulatory measure and calculated to defray the expense of protecting those on the streets and at home against the abuses of solicitors." 319 U.S., at This sentence does not mean that an invalid fee can be saved if it is nominal, or that only nominal charges are constitutionally permissible. It reflects merely one distinction between the facts in Murdock and those in Cox. The tax at issue in Murdock was invalid because it was unrelated to any legitimate state interest, not because it was of a particular size. Similarly, the provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations. The judgment of the Court of Appeals is affirmed. It is so ordered. |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | Last Term, this Court examined the relationship between federal and state authority in the nuclear energy field and concluded that States are precluded from regulating the *241 safety aspects of nuclear energy. Pacific Gas & This case requires us to determine whether a state-authorized award of punitive damages arising out of the escape of plutonium from a federally licensed nuclear facility is pre-empted either because it falls within that forbidden field or because it conflicts with some other aspect of the Atomic Energy Act. I Karen Silkwood was a laboratory analyst for Kerr-McGee[1] at its Cimarron plant near Crescent, Okla. The plant fabricated plutonium fuel pins for use as reactor fuel in nuclear powerplants. Accordingly, the plant was subject to licensing and regulation by the Nuclear Regulatory Commission (NRC) (then the Atomic Energy Commission) pursuant to the Atomic Energy Act, 42 U.S. C. 2011 et seq. ( ed. and Supp. V).[2] During a 3-day period of November 1974, Silkwood was contaminated by plutonium from the Cimarron plant. On November 5, Silkwood was grinding and polishing plutonium samples, utilizing glove boxes designed for that purpose.[3] In accordance with established procedures, she checked her hands for contamination when she withdrew them from the *242 glove box. When some contamination was detected, a more extensive check was performed. A monitoring device revealed contamination on Silkwood's left hand, right wrist, upper arm, neck, hair, and nostrils. She was immediately decontaminated, and at the end of her shift, the monitors detected no contamination. However, she was given urine and fecal kits and was instructed to collect samples in order to check for plutonium discharge. The next day, Silkwood arrived at the plant and began doing paperwork in the laboratory. Upon leaving the laboratory, Silkwood monitored herself and again discovered surface contamination. Once again, she was decontaminated. On the third day, November 7, Silkwood was monitored upon her arrival at the plant. High levels of contamination were detected. Four urine samples and one fecal sample submitted that morning were also highly contaminated.[4] Suspecting that the contamination had spread to areas outside the plant, the company directed a decontamination squad to accompany Silkwood to her apartment. Silkwood's roommate, who was also an employee at the plant, was awakened and monitored. She was also contaminated, although to a lesser degree than Silkwood. The squad then monitored the apartment, finding contamination in several rooms, with especially high levels in the bathroom, the kitchen, and Silkwood's bedroom. The contamination level in Silkwood's apartment was such that many of her personal belongings had to be destroyed. Silkwood herself was sent to |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | belongings had to be destroyed. Silkwood herself was sent to the Los Alamos Scientific Laboratory to determine the extent of contamination in her vital body organs. She returned to work on November 13. That night, she was killed in an unrelated automobile accident. *2 Bill Silkwood, Karen's father, brought the present diversity action in his capacity as administrator of her estate. The action was based on common-law tort principles under Oklahoma law and was designed to recover for the contamination injuries to Karen's person and property. Kerr-McGee stipulated that the plutonium which caused the contamination came from its plant, and the jury expressly rejected Kerr-McGee's allegation that Silkwood had intentionally removed the plutonium from the plant in an effort to embarrass the company. However, there were no other specific findings of fact with respect to the cause of the contamination. During the course of the trial, evidence was presented which tended to show that Kerr-McGee did not always comply with NRC regulations. One Kerr-McGee witness conceded that the amount of plutonium which was unaccounted for during the period in question exceeded permissible limits.[5] An NRC official testified that he did not feel that Kerr-McGee was conforming its conduct to the "as low as reasonably achievable" standard.[6] There was also some evidence that the level of plutonium in Silkwood's apartment may have exceeded that permitted in an unrestricted area such as a residence. * However, there was also evidence that Kerr-McGee complied with most federal regulations. The NRC official testified that there were no serious personnel exposures at the plant and that Kerr-McGee did not exceed the regulatory requirements with respect to exposure levels that would result in significant health hazards. In addition, Kerr-McGee introduced the Commission's report on the investigation of the Silkwood incident in which the Commission determined that Kerr-McGee's only violation of regulations throughout the incident was its failure to maintain a record of the dates of two urine samples submitted by Silkwood. The trial court determined that Kerr-McGee had not shown that the contamination occurred during the course of Silkwood's employment. Accordingly, the court precluded the jury from deciding whether the personal injury claim was covered by Oklahoma's Workers' Compensation Act, which provides the sole remedy for accidental personal injuries arising in the course of employment. Okla. Stat., Tit. 85, 11, 12 Instead, the court submitted the claims to the jury on alternative theories of strict liability and negligence.[7] The court also instructed the jury with respect to punitive damages, explaining the standard by which Kerr-McGee's conduct was to be evaluated in determining whether such damages should |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | was to be evaluated in determining whether such damages should be awarded: "[T]he jury may give damages for the sake of example and by way of punishment, if the jury finds the defendant or defendants have been guilty of oppression, fraud, or malice, actual or presumed. "Exemplary damages are not limited to cases where there is direct evidence of fraud, malice or gross negligence. They may be allowed when there is evidence *245 of such recklessness and wanton disregard of another's rights that malice and evil intent will be inferred. If a defendant is grossly and wantonly reckless in exposing others to dangers, the law holds him to have intended the natural consequences of his acts, and treats him as guilty of a willful wrong." The jury returned a verdict in favor of Mr. Silkwood, finding actual damages of $505,000 ($500,000 for personal injuries and $5,000 for property damage) and punitive damages of $10 million. The trial court entered judgment against Kerr-McGee in that amount. Kerr-McGee then moved for judgment n.o.v. or a new trial. In denying that motion, the court rejected Kerr-McGee's contention that compliance with federal regulations precluded an award of punitive damages. The court noted that Kerr-McGee "had a duty under part 20 of Title 10 of the Code of Federal Regulations to maintain the release of radiation `as low as reasonably achievable.' Compliance with this standard cannot be demonstrated merely through control of escaped plutonium to within any absolute amount." Therefore, the court concluded, it is not "inconsistent [with any congressional design] to impose punitive damages for the escape of plutonium caused by grossly negligent, reckless and willful conduct." Kerr-McGee renewed its contentions with greater success before the Court of Appeals for the Tenth Circuit. That court, by decision of a split panel, affirmed in part and reversed in part. The court first held that recovery for Silkwood's personal injuries was controlled exclusively by Oklahoma's workers' compensation law. It thus reversed the $500,000 judgment for those injuries. The court then affirmed the property damage portion of the award, holding that the workers' compensation law applied only to personal injuries and that Oklahoma law permitted an award under a theory of strict liability in the circumstances *246 of this case. Finally, the court held that because of the federal statutes regulating the Kerr-McGee plant, "punitive damages may not be awarded in this case," In reaching its conclusion with respect to the punitive damages award, the Court of Appeals adopted a broad pre-emption analysis. It concluded that "any state action that competes substantially with the AEC (NRC) in |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | state action that competes substantially with the AEC (NRC) in its regulation of radiation hazards associated with plants handling nuclear material" was impermissible. Because "[a] judicial award of exemplary damages under state law as punishment for bad practices or to deter future practices involving exposure to radiation is not less intrusive than direct legislative acts of the state," the court determined that such awards were pre-empted by federal law. Mr. Silkwood appealed, seeking review of the Court of Appeals' ruling with respect to the punitive damages award. We noted probable jurisdiction and postponed consideration of the jurisdictional issue until argument on the merits. II We first address the jurisdictional issue. This Court is empowered to review the decision of a federal court of appeals "by appeal [if] a State statute [is] held by [the] court of appeals to be invalid as repugnant to the Constitution" 28 U.S. C. 1254(2). Mr. Silkwood argues that because the Court of Appeals invalidated the punitive damages award on pre-emption grounds and because the basis for that award was a state statute, Okla. Stat., Tit. 23, 9[8] the Court of Appeals necessarily held that the state statute was unconstitutional, at least as applied in this case. Accordingly, Mr. Silkwood contends, this case falls within the confines of 28 U.S. C. 1254(2). We disagree. * In keeping with the policy that statutes authorizing appeals are to be strictly construed, Perry Education ; we have consistently distinguished between those cases in which a state statute is expressly struck down on constitutional grounds and those in which an exercise of authority under state law is invalidated without reference to the state statute. The former come within the scope of 1254(2)'s jurisdictional grant. 5 U.S. 497, ; The latter do not. Perry Education ; ;[9] See also County of (CA4), cert. denied, ; 5 F.2d 1198 cert. denied sub nom. 0 U.S. 977 The present case falls into the second category. The Court of Appeals held that because of the pre-emptive effect of federal law, "punitive damages may not be awarded in this case." 6 F.2d, It did not purport to rule on the constitutionality of the Oklahoma punitive damages statute. The court did not mention the statute, and the parties did not contest or defend the constitutionality of the statute in their appellate briefs. While the award itself was struck down, the statute authorizing such awards was left untouched. Cf. Perry Education 460 U. S., Therefore, the present appeal is not within our 1254(2) appellate jurisdiction.[10] *248 Nevertheless, the decision below is reviewable by writ of certiorari. The |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | the decision below is reviewable by writ of certiorari. The issue addressed by the court below is important; it affects both the States' traditional authority to provide tort remedies to their citizens and the Federal Government's express desire to maintain exclusive regulatory authority over the safety aspects of nuclear power. Accordingly, treating the jurisdictional statement as a petition for certiorari, as we are authorized to do, 28 U.S. C. 2103, we grant the petition and reach the merits of the Court of Appeals' ruling. III As we recently observed in Pacific Gas & state law can be pre-empted in either of two general ways. If Congress evidences an intent to occupy a given field, any state law falling within that field is pre-empted. ; Fidelity Federal Savings & Loan v. De la Cuesta, ; If Congress has not entirely displaced state regulation over the matter in question, state law is still pre-empted to the extent it actually conflicts with federal law, that is, when it is impossible to comply with both state and federal law, Florida Lime & Avocado Growers, 142-1 or where the state law stands as an obstacle to the accomplishment of the full purposes and objectives of Congress, Pacific Gas & Kerr-McGee contends that the award in this case is invalid under either analysis. We consider each of these contentions in turn. *249 A In Pacific Gas & an examination of the statutory scheme and legislative history of the Atomic Energy Act convinced us that "Congress intended that the Federal Government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant." Thus, we concluded that "the Federal Government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the States." Kerr-McGee argues that our ruling in Pacific Gas & is dispositive of the issue in this case. Noting that "regulation can be as effectively exerted through an award of damages as through some form of preventive relief," San Diego Building Trades Kerr-McGee submits that because the state-authorized award of punitive damages in this case punishes and deters conduct related to radiation hazards, it falls within the prohibited field. However, a review of the same legislative history which prompted our holding in Pacific Gas & coupled with an examination of Congress' actions with respect to other portions of the Atomic Energy Act, convinces us that the pre-empted field does not extend as far as Kerr-McGee would have it. As we recounted in Pacific Gas & "[u]ntil 1954. the use, control, and ownership of nuclear technology remained |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | 1954. the use, control, and ownership of nuclear technology remained a federal monopoly." In that year, Congress enacted legislation which provided for private involvement in the development of atomic energy. Atomic Energy Act of 1954, Act of Aug. 30, 1954, ch. 1073, as amended, 42 U.S. C. 2011 et seq. ( ed. and Supp. V). However, the Federal Government retained extensive control over the manner in which this development occurred. In particular, the Atomic Energy Commission was given "exclusive jurisdiction to license the transfer, *250 delivery, receipt, acquisition, possession, and use of nuclear materials." Pacific Gas & See 42 U.S. C. 2014(e), (z), (aa), 2061-2064, 2071-2078, 2091-2099, 2111-2114 ( ed. and Supp. V). In 1959 Congress amended the Atomic Energy Act in order to "clarify the respective responsibilities of the States and the Commission with respect to the regulation of byproduct, source, and special nuclear materials." 42 U.S. C. 2021(a)(1). See S. Rep. No. 870, 86th Cong., 1st Sess., 8-12 The Commission was authorized to turn some of its regulatory authority over to any State which would adopt a suitable regulatory program. However, the Commission was to retain exclusive regulatory authority over "the disposal of such byproduct, source, or special nuclear material as the Commission determines should, because of the hazards or potential hazards thereof, not be disposed of without a license from the Commission." 42 U.S. C. 2021(c)(4). The States were therefore still precluded from regulating the safety aspects of these hazardous materials.[11] Congress' decision to prohibit the States from regulating the safety aspects of nuclear development was premised on its belief that the Commission was more qualified to determine what type of safety standards should be enacted in this complex area. As Congress was informed by the AEC, the 1959 legislation provided for continued federal control over the more hazardous materials because "the technical safety considerations are of such complexity that it is not likely that any State would be prepared to deal with them during the foreseeable future." H. R. Rep. No. 1125, 86th Cong., 1st Sess., 3 If there were nothing more, this concern over the States' inability to formulate effective standards and *251 the foreclosure of the States from conditioning the operation of nuclear plants on compliance with state-imposed safety standards arguably would disallow resort to state-law remedies by those suffering injuries from radiation in a nuclear plant. There is, however, ample evidence that Congress had no intention of forbidding the States to provide such remedies. Indeed, there is no indication that Congress even seriously considered precluding the use of such remedies either when it |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | considered precluding the use of such remedies either when it enacted the Atomic Energy Act in 1954 or when it amended it in 1959. This silence takes on added significance in light of Congress' failure to provide any federal remedy for persons injured by such conduct. It is difficult to believe that Congress would, without comment, remove all means of judicial recourse for those injured by illegal conduct. See Construction More importantly, the only congressional discussion concerning the relationship between the Atomic Energy Act and state tort remedies indicates that Congress assumed that such remedies would be available. After the 1954 law was enacted, private companies contemplating entry into the nuclear industry expressed concern over potentially bankrupting state-law suits arising out of a nuclear incident. As a result, in 1957 Congress passed the Price-Anderson Act, an amendment to the Atomic Energy Act. Stat. 576. That Act established an indemnification scheme under which operators of licensed nuclear facilities could be required to obtain up to $60 million in private financial protection against such suits. The Government would then provide indemnification for the next $500 million of liability, and the resulting $560 million would be the limit of liability for any one nuclear incident. Although the Price-Anderson Act does not apply to the present situation,[12] the discussion preceding its enactment *252 and subsequent amendment[13] indicates that Congress assumed that persons injured by nuclear accidents were free to utilize existing state tort law remedies. The Joint Committee Report on the original version of the Price-Anderson Act explained the relationship between the Act and existing state tort law as follows: "Since the rights of third parties who are injured are established by State law, there is no interference with the State law until there is a likelihood that the damages exceed the amount of financial responsibility required together with the amount of the indemnity. At that point the Federal interference is limited to the prohibition of making payments through the State courts and to prorating the proceeds available." S. Rep. No. 296, 85th Cong., 1st Sess., 9 (1957). See also H. R. Rep. No. 5, 85th Cong., 1st Sess., 9 (1957); S. Rep. No. 89th Cong., 2d Sess., 6 (1966). Congress clearly began working on the Price-Anderson legislation with the assumption that in the absence of some subsequent legislative action, state tort law would apply.[14] This was true even though Congress was fully aware of the *2 Commission's exclusive regulatory authority over safety matters. As the Joint Committee explained in 1965: "The Price-Anderson Act also contained provisions to improve the AEC's procedures for regulating |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | also contained provisions to improve the AEC's procedures for regulating reactor licensees This manifested the continuing concern of the Joint Committee and Congress with the necessity for assuring the effectiveness of the national regulatory program for protecting the health and safety of employees and the public against atomic energy hazards. The inclusion of these provisions also reflected the intimate relationship which existed between Congress' concern for prevention of reactor accidents and the indemnity provisions of the Price-Anderson legislation." S. Rep. No. 89th Cong., 1st Sess., 4-5 (1965). When it enacted the Price-Anderson Act, Congress was well aware of the need for effective national safety regulation. In fact, it intended to encourage such regulation. But, at the same time, "the right of the State courts to establish the liability of the persons involved in the normal way [was] maintained." S. Rep. No. 296, The belief that the NRC's exclusive authority to set safety standards did not foreclose the use of state tort remedies was reaffirmed when the Price-Anderson Act was amended in 1966. The 1966 amendment was designed to respond to concerns about the adequacy of state-law remedies. See, e. g., S. Rep. No. It provided that in the event of an "extraordinary nuclear occurrence,"[15] licensees could be required to waive any issue of fault, any charitable or governmental *254 immunity defense, and any statute of limitations defense of less than 10 years. 42 U.S. C. 2210(n)(1). Again, however, the importance of the legislation for present purposes is not so much in its substance, as in the assumptions on which it was based. Describing the effect of the 1966 amendment, the Joint Committee stated: "By requiring potential defendants to agree to waive defenses the defendants' rights are restricted; concomitantly, to this extent, the rights of plaintiffs are enlarged. Just as the rights of persons who are injured are established by State law, the rights of defendants against whom liability is asserted are fixed by State law. What this subsection does is to authorize the [NRC] to require that defendants covered by financial protection and indemnity give up some of the rights they might otherwise assert." S. Rep. No. 89th Cong., 2d Sess., 26 (1966). Similarly, when the Committee outlined the rights of those injured in nuclear incidents which were not extraordinary nuclear occurrences, its reference point was again state law. "Absent a determination [that the incident is an "extraordinary nuclear occurrence"], a claimant would have exactly the same rights that he has today under existing law including, perhaps, benefit of a rule of strict liability if applicable State law so |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | a rule of strict liability if applicable State law so provides." Indeed, the entire discussion surrounding the 1966 amendment was premised on the assumption that state remedies were available notwithstanding the NRC's exclusive regulatory authority. For example, the Committee rejected a suggestion that it adopt a federal tort to replace existing state remedies, noting that such displacement of state remedies would engender great opposition. Hearings before the Joint Committee on Atomic Energy on Proposed Amendments to Price-Anderson Act Relating to Waiver of Defenses, 89th Cong., 2d Sess., 31, 75 (1966); S. Rep. No. If other provisions *255 of the Atomic Energy Act already precluded the States from providing remedies to its citizens, there would have been no need for such concerns. Other comments made throughout the discussion were similarly based on the assumption that state remedies were available.[16] Kerr-McGee focuses on the differences between compensatory and punitive damages awards and asserts that, at most, Congress intended to allow the former. This argument, however, is misdirected because our inquiry is not whether Congress expressly allowed punitive damages awards. Punitive damages have long been a part of traditional state tort law. As we noted above, Congress assumed that traditional principles of state tort law would apply with full force unless they were expressly supplanted. Thus, it is Kerr-McGee's burden to show that Congress intended to preclude such awards. See al Yet, the company is unable to point to anything in the legislative history or in the regulations that indicates that punitive damages were not to be allowed. To the contrary, the regulations issued implementing the insurance provisions of the Price-Anderson Act themselves contemplate that punitive damages might be awarded under state law.[17] *256 In sum, it is clear that in enacting and amending the Price-Anderson Act, Congress assumed that state-law remedies, in whatever form they might take, were available to those injured by nuclear incidents. This was so even though it was well aware of the NRC's exclusive authority to regulate safety matters. No doubt there is tension between the conclusion that safety regulation is the exclusive concern of the federal law and the conclusion that a State may nevertheless award damages based on its own law of liability. But as we understand what was done over the years in the legislation concerning nuclear energy, Congress intended to stand by both concepts and to tolerate whatever tension there was between them. We can do no less. It may be that the award of damages based on the state law of negligence or strict liability is regulatory in the sense that a nuclear |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | strict liability is regulatory in the sense that a nuclear plant will be threatened with damages liability if it does not conform to state standards, but that regulatory consequence was something that Congress was quite willing to accept. We do not suggest that there could never be an instance in which the federal law would pre-empt the recovery of damages based on state law. But insofar as damages for radiation injuries are concerned, pre-emption should not be judged on the basis that the Federal Government has so completely occupied the field of safety that state remedies are foreclosed but on whether there is an irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law. We perceive no such conflict or frustration in the circumstances of this case. *257 B The United States, as amicus curiae, contends that the award of punitive damages in this case is pre-empted because it conflicts with the federal remedial scheme, noting that the NRC is authorized to impose civil penalties on licensees when federal standards have been violated. 42 U.S. C. 2282 ( ed. and Supp. V). However, the award of punitive damages in the present case does not conflict with that scheme. Paying both federal fines and state-imposed punitive damages for the same incident would not appear to be physically impossible. Nor does exposure to punitive damages frustrate any purpose of the federal remedial scheme. Kerr-McGee contends that the award is pre-empted because it frustrates Congress' express desire "to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes." 42 U.S. C. 2013(d). In Pacific Gas & we observed that "[t]here is little doubt that a primary purpose of the Atomic Energy Act was, and continues to be, the promotion of nuclear power." 461 U.S., 1. However, we also observed that "the promotion of nuclear power is not to be accomplished `at all costs.' " 2. Indeed, the provision cited by Kerr-McGee goes on to state that atomic energy should be developed and utilized only to the extent it is consistent "with the health and safety of the public." 42 U.S. C. 2013(d). Congress therefore disclaimed any interest in promoting the development and utilization of atomic energy by means that fail to provide adequate remedies for those who are injured by exposure to hazardous nuclear materials. Thus, the award of punitive damages in this case does not hinder the accomplishment of the purpose stated in 2013(d). We also reject Kerr-McGee's submission that |
Justice White | 1,984 | 6 | majority | Silkwood v. Kerr-McGee Corp. | https://www.courtlistener.com/opinion/111056/silkwood-v-kerr-mcgee-corp/ | purpose stated in 2013(d). We also reject Kerr-McGee's submission that the punitive damages award in this case conflicts with Congress' express intent to preclude dual regulation of radiation hazards. See S. Rep. No. 870, 86th Cong., 1st Sess., 8 As we *258A explained in Part A, Congress did not believe that it was inconsistent to vest the NRC with exclusive regulatory authority over the safety aspects of nuclear development while at the same time allowing plaintiffs like Mr. Silkwood to recover for injuries caused by nuclear hazards. We are not authorized to second-guess that conclusion.[18] IV We conclude that the award of punitive damages in this case is not pre-empted by federal law. On remand Kerr-McGee is free to reassert any claims it made before the Court of Appeals which were not addressed by that court or by this opinion, including its contention that the jury's findings with respect to punitive damages were not supported by sufficient evidence and its argument that the amount of the punitive damages award was excessive. The judgment of the Court of Appeals with respect to punitive damages is therefore reversed, and the case is remanded to that court for proceedings consistent with this opinion. It is so ordered. |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | [*] Although I agree with the result the Court reaches in this case, I cannot join its opinion. In my view, today's holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty. I At the outset, I note that I agree with the Court's implicit determination that the constitutional question upon which we granted review whether the Free Exercise Clause protects a person's religiously motivated use of peyote from the reach of a State's general criminal law prohibition is properly presented in this case. As the Court recounts, respondents Alfred Smith and Galen Black (hereinafter respondents) were denied unemployment compensation benefits because their sacramental use of peyote constituted work-related "misconduct," not because they violated Oregon's general criminal prohibition against possession of peyote. We held, however, in Employment Div., Dept. of Human Resources of that whether a State may, consistent with federal law, deny unemployment compensation benefits to persons for their religious use of peyote depends on whether the State, as a matter of state law, has criminalized the underlying conduct. See The Oregon Supreme Court, on remand from this Court, concluded that "the Oregon statute against possession of controlled substances, which include peyote, makes no exception for the sacramental use of peyote." *89 Respondents contend that, because the Oregon Supreme Court declined to decide whether the Oregon Constitution prohibits criminal prosecution for the religious use of peyote, see 76 P.d, at n. any ruling on the federal constitutional question would be premature. Respondents are of course correct that the Oregon Supreme Court may eventually decide that the Oregon Constitution requires the State to provide an exemption from its general criminal prohibition for the religious use of peyote. Such a decision would then reopen the question whether a State may nevertheless deny unemployment compensation benefits to claimants who are discharged for engaging in such conduct. As the case comes to us today, however, the Oregon Supreme Court has plainly ruled that Oregon's prohibition against possession of controlled substances does not contain an exemption for the religious use of peyote. In light of our decision in Smith I, which makes this finding a "necessary predicate to a correct evaluation of respondents' federal claim," the question presented and addressed is properly before the Court. II The Court today extracts from our long history of free exercise precedents the single categorical rule that "if prohibiting the exercise of religion is merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | a generally applicable and otherwise valid provision, the First Amendment has not been offended." Ante, at 8 (citations omitted). Indeed, the Court holds that where the law is a generally applicable criminal prohibition, our usual free exercise jurisprudence does not even apply. Ante, at 884. To reach this sweeping result, however, the Court must not only give a strained reading of the First Amendment but must also disregard our consistent application of free exercise doctrine to cases involving generally applicable regulations that burden religious conduct. *89 A The Free Exercise Clause of the First Amendment commands that "Congress shall make no law prohibiting the free exercise [of religion]." In 10 U.S. 96 we held that this prohibition applies to the States by incorporation into the Fourteenth Amendment and that it categorically forbids government regulation of religious beliefs. at 0. As the Court recognizes, however, the "free exercise" of religion often, if not invariably, requires the performance of (or abstention from) certain acts. Ante, at 7; cf. A New English Dictionary on Historical Principles 401-40 (J. Murray ed. 1897) (defining "exercise" to include "[t]he practice and performance of rites and ceremonies, worship, etc.; the right or permission to celebrate the observances (of a religion)" and religious observances such as acts of public and private worship, preaching, and prophesying). "[B]elief and action cannot be neatly confined in logic-tight compartments." Because the First Amendment does not distinguish between religious belief and religious conduct, conduct motivated by sincere religious belief, like the belief itself, must be at least presumptively protected by the Free Exercise Clause. The Court today, however, interprets the Clause to permit the government to prohibit, without justification, conduct mandated by an individual's religious beliefs, so long as that prohibition is generally applicable. Ante, at 8. But a law that prohibits certain conduct conduct that happens to be an act of worship for someone manifestly does prohibit that person's free exercise of his religion. A person who is barred from engaging in religiously motivated conduct is barred from freely exercising his religion. Moreover, that person is barred from freely exercising his religion regardless of whether the law prohibits the conduct only when engaged in for religious reasons, only by members of that religion, or by all persons. It is difficult to deny that a law that prohibits *894 religiously motivated conduct, even if the law is generally applicable, does not at least implicate First Amendment concerns. The Court responds that generally applicable laws are "one large step" removed from laws aimed at specific religious practices. The First Amendment, however, does |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | aimed at specific religious practices. The First Amendment, however, does not distinguish between laws that are generally applicable and laws that target particular religious practices. Indeed, few States would be so naive as to enact a law directly prohibiting or burdening a religious practice as such. Our free exercise cases have all concerned generally applicable laws that had the effect of significantly burdening a religious practice. If the First Amendment is to have any vitality, it ought not be construed to cover only the extreme and hypothetical situation in which a State directly targets a religious practice. As we have noted in a slightly different context, " `[s]uch a test has no basis in precedent and relegates a serious First Amendment value to the barest level of minimum scrutiny that the Equal Protection Clause already provides.' " 480 U.S. 16, ). To say that a person's right to free exercise has been burdened, of course, does not mean that he has an absolute right to engage in the conduct. Under our established First Amendment jurisprudence, we have recognized that the freedom to act, unlike the freedom to believe, cannot be absolute. See, e. g., at 04; Instead, we have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest. See ; ; United ; ; 45 U.S. ; ; 401 U.S. 47, ; 74 U.S. 98, 40 (196); see also at 7 ; West Virginia State Bd. of 19 U.S. 64, 69 (194). The compelling interest test effectuates the First Amendment's command that religious liberty is an independent liberty, that it occupies a preferred position, and that the Court will not permit encroachments upon this liberty, whether direct or indirect, unless required by clear and compelling governmental interests "of the highest order," "Only an especially important governmental interest pursued by narrowly tailored means can justify exacting a sacrifice of First Amendment freedoms as the price for an equal share of the rights, benefits, and privileges enjoyed by other citizens." The Court attempts to support its narrow reading of the Clause by claiming that "[w]e have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate." Ante, at 8-9. But as the Court later notes, as it must, in cases such as and we have in fact interpreted the Free Exercise Clause to |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | we have in fact interpreted the Free Exercise Clause to forbid application of a generally applicable prohibition to religiously motivated conduct. See at 04-07; -4. Indeed, in we expressly rejected the interpretation the Court now adopts: "[O]ur decisions have rejected the idea that religiously grounded conduct is always outside the protection of the Free Exercise Clause. It is true that activities of individuals, even when religiously based, are often subject *896 to regulation by the States in the exercise of their undoubted power to promote the health, safety, and general welfare, or the Federal Government in the exercise of its delegated powers. But to agree that religiously grounded conduct must often be subject to the broad police power of the State is not to deny that there are areas of conduct protected by the Free Exercise Clause of the First Amendment and thus beyond the power of the State to control, even under regulations of general applicability. ". A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for government neutrality if it unduly burdens the free exercise of religion." at 19- The Court endeavors to escape from our decisions in and by labeling them "hybrid" decisions, ante, at 89, but there is no denying that both cases expressly relied on the Free Exercise Clause, see 10 U. S., at 0-07; and that we have consistently regarded those cases as part of the mainstream of our free exercise jurisprudence. Moreover, in each of the other cases cited by the Court to support its categorical rule, ante, at 9-880, we rejected the particular constitutional claims before us only after carefully weighing the competing interests. See 1 U.S. 158, ; 66 U.S. 599, (state interest in uniform day of rest justifies denial of religious exemption from Sunday closing law); at ; That we rejected the free exercise *897 claims in those cases hardly calls into question the applicability of First Amendment doctrine in the first place. Indeed, it is surely unusual to judge the vitality of a constitutional doctrine by looking to the win-loss record of the plaintiffs who happen to come before us. B Respondents, of course, do not contend that their conduct is automatically immune from all governmental regulation simply because it is motivated by their sincere religious beliefs. The Court's rejection of that argument, ante, at 88, might therefore be regarded as merely harmless dictum. Rather, respondents invoke our traditional compelling interest test to argue that the Free Exercise Clause requires the State to grant them a limited exemption from its general criminal prohibition |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | grant them a limited exemption from its general criminal prohibition against the possession of peyote. The Court today, however, denies them even the opportunity to make that argument, concluding that "the sounder approach, and the approach in accord with the vast majority of our precedents, is to hold the [compelling interest] test inapplicable to" challenges to general criminal prohibitions. Ante, at 885. In my view, however, the essence of a free exercise claim is relief from a burden imposed by government on religious practices or beliefs, whether the burden is imposed directly through laws that prohibit or compel specific religious practices, or indirectly through laws that, in effect, make abandonment of one's own religion or conformity to the religious beliefs of others the price of an equal place in the civil community. As we explained in : "Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists." -. *898 See also 8 ; 480 U. S., A State that makes criminal an individual's religiously motivated conduct burdens that individual's free exercise of religion in the severest manner possible, for it "results in the choice to the individual of either abandoning his religious principle or facing criminal prosecution." I would have thought it beyond argument that such laws implicate free exercise concerns. Indeed, we have never distinguished between cases in which a State conditions receipt of a benefit on conduct prohibited by religious beliefs and cases in which a State affirmatively prohibits such conduct. The compelling interest test applies in both kinds of cases. See, e. g., -60 ; 401 U. S., at ; 406 U. S., -4 As I noted in : "The fact that the underlying dispute involves an award of benefits rather than an exaction of penalties does not grant the Government license to apply a different version of the Constitution. ". The fact that appellees seek exemption from a precondition that the Government attaches to an award of benefits does not, therefore, generate a meaningful distinction between this case and one where appellees seek an exemption from the Government's imposition of penalties upon them." 476 U.S., at 71-7 See also at ; 74 U. S., at 404. I would reaffirm that principle today: A neutral criminal law prohibiting conduct that a State may legitimately regulate is, if anything, more burdensome than a neutral civil *899 statute |
Justice O'Connor | 1,990 | 14 | concurring | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112404/employment-div-dept-of-human-resources-of-ore-v-smith/ | if anything, more burdensome than a neutral civil *899 statute placing legitimate conditions on the award of a state benefit. Legislatures, of course, have always been "left free to reach actions which were in violation of social duties or subversive of good order." ; see also at 19-; 66 U. S., at 60-604. Yet because of the close relationship between conduct and religious belief, "[i]n every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom." 10 U. S., at 04. Once it has been shown that a government regulation or criminal prohibition burdens the free exercise of religion, we have consistently asked the government to demonstrate that unbending application of its regulation to the religious objector "is essential to accomplish an overriding governmental interest," at or represents "the least restrictive means of achieving some compelling state interest," at See, e. g., ; ; ; 476 U. S., -7 To me, the sounder approach the approach more consistent with our role as judges to decide each case on its individual merits is to apply this test in each case to determine whether the burden on the specific plaintiffs before us is constitutionally significant and whether the particular criminal interest asserted by the State before us is compelling. Even if, as an empirical matter, a government's criminal laws might usually serve a compelling interest in health, safety, or public order, the First Amendment at least requires a case-by-case determination of the question, sensitive to the facts of each particular claim. Cf. 45 U. S., at 68, n. 8 (noting application of to general criminal prohibitions and the "delicate balancing required by our decisions in" and ). Given the range of conduct that a State might legitimately make *900 criminal, we cannot assume, merely because a law carries criminal sanctions and is generally applicable, that the First Amendment never requires the State to grant a limited exemption for religiously motivated conduct. Moreover, we have not "rejected" or "declined to apply" the compelling interest test in our recent cases. Ante, at 88-884. Recent cases have instead affirmed that test as a fundamental part of our First Amendment doctrine. See, e. g., ; at (rejecting Chief Justice Burger's suggestion in that free exercise claims be assessed under a less rigorous "reasonable means" standard). The cases cited by the Court signal no retreat from our consistent adherence to the compelling interest test. In both and 485 U.S. 49 for example, we expressly distinguished on the ground that the First Amendment does |
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