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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/
|
expressly distinguished on the ground that the First Amendment does not "require the Government itself to behave in ways that the individual believes will further his or her spiritual development The Free Exercise Clause simply cannot be understood to require the Government to conduct its own internal affairs in ways that comport with the religious beliefs of particular citizens." ; see This distinction makes sense because "the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the government." Because the case sub judice, like the other cases in which we have applied plainly falls into the former category, I would apply those established precedents to the facts of this case. Similarly, the other cases cited by the Court for the proposition that we have rejected application of the test outside the unemployment compensation field, ante, at 884, are distinguishable because they arose in the narrow, specialized contexts in which we have not traditionally required *901 the government to justify a burden on religious conduct by articulating a compelling interest. See 475 U.S. 50, ; 48 U.S. 4, 49 (citation omitted). That we did not apply the compelling interest test in these cases says nothing about whether the test should continue to apply in paradigm free exercise cases such as the one presented here. The Court today gives no convincing reason to depart from settled First Amendment jurisprudence. There is nothing talismanic about neutral laws of general applicability or general criminal prohibitions, for laws neutral toward religion can coerce a person to violate his religious conscience or intrude upon his religious duties just as effectively as laws aimed at religion. Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a "constitutional anomaly," ante, at 886, the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional nor[m]," not an "anomaly." Nor would application of our established free exercise doctrine to this case necessarily be incompatible with our equal protection cases. Cf. 458 U.S. 61, (citation omitted); 40 U.S. 48, We have in any event recognized that the Free Exercise Clause protects values distinct from those protected by the Equal Protection Clause. See 480 U. S., at As the language of the *90 Clause itself makes clear, an individual's free exercise of religion is a preferred constitutional activity. See, e. g., McConnell, Accommodation of Religion, 1985 S. Ct. Rev. 1, 9 ("[T]he text of the First Amendment itself
|
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/
|
Rev. 1, 9 ("[T]he text of the First Amendment itself `singles out' religion for special protections"); P. Kauper, Religion and the Constitution 17 A law that makes criminal such an activity therefore triggers constitutional concern and heightened judicial scrutiny even if it does not target the particular religious conduct at issue. Our free speech cases similarly recognize that neutral regulations that affect free speech values are subject to a balancing, rather than categorical, approach. See, e. g., United 91 U.S. 67, 77 ; ; cf. (198) The Court's parade of horribles, ante, at 888-889, not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests. Finally, the Court today suggests that the disfavoring of minority religions is an "unavoidable consequence" under our system of government and that accommodation of such religions must be left to the political process. Ante, at 890. In my view, however, the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility. The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish. Indeed, the words of Justice Jackson in West Virginia State Bd. of ) are apt: *90 "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections." 19 U.S., at 68. See also United U.S. 78, ("The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views"). The compelling interest test reflects the First Amendment's mandate of preserving religious liberty to the fullest extent possible in a pluralistic society. For the Court to deem this command a "luxury," ante, at 888, is to denigrate "[t]he very
|
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 "luxury," ante, at 888, is to denigrate "[t]he very purpose of a Bill of Rights." III The Court's holding today not only misreads settled First Amendment precedent; it appears to be unnecessary to this case. I would reach the same result applying our established free exercise jurisprudence. A There is no dispute that Oregon's criminal prohibition of peyote places a severe burden on the ability of respondents to freely exercise their religion. Peyote is a sacrament of the Native American Church and is regarded as vital to respondents' ability to practice their religion. See O. Stewart, Peyote Religion: A History 7-6 (describing modern status of peyotism); E. Anderson, Peyote: The Divine Cactus 41-65 (1980) (describing peyote ceremonies); Teachings from *904 the American Earth: Indian Religion and Philosophy 96-104 (D. Tedlock & B. Tedlock eds. 1975) (same); see also 94 P.d 81, As we noted in Smith I, the Oregon Supreme Court concluded that "the Native American Church is a recognized religion, that peyote is a sacrament of that church, and that respondent's beliefs were sincerely held." Under Oregon law, as construed by that State's highest court, members of the Native American Church must choose between carrying out the ritual embodying their religious beliefs and avoidance of criminal prosecution. That choice is, in my view, more than sufficient to trigger First Amendment scrutiny. There is also no dispute that Oregon has a significant interest in enforcing laws that control the possession and use of controlled substances by its citizens. See, e. g., 74 U. S., at 40 ; 406 U. S., at As we recently noted, drug abuse is "one of the greatest problems affecting the health and welfare of our population" and thus "one of the most serious problems confronting our society today." Treasury Indeed, under federal law (incorporated by Oregon law in relevant part, see Ore. Rev. Stat. 475.005(6) ), peyote is specifically regulated as a Schedule I controlled substance, which means that Congress has found that it has a high potential for abuse, that there is no currently accepted medical use, and that there is a lack of accepted safety for use of the drug under medical supervision. See 1 U.S. C. 81(b)(1). See generally R. Julien, A Primer of Drug Action 149 In light of our recent decisions holding that the governmental *905 interests in the collection of income tax, -700, a comprehensive Social Security system, see 455 U. S., and military conscription, see are compelling, respondents do not seriously dispute that Oregon has a compelling interest in prohibiting the possession of peyote by its citizens.
|
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/
|
interest in prohibiting the possession of peyote by its citizens. B Thus, the critical question in this case is whether exempting respondents from the State's general criminal prohibition "will unduly interfere with fulfillment of the governmental interest." ; see also 476 U. S., at ; ; 66 U. S., -607. Although the question is close, I would conclude that uniform application of Oregon's criminal prohibition is "essential to accomplish," its overriding interest in preventing the physical harm caused by the use of a Schedule I controlled substance. Oregon's criminal prohibition represents that State's judgment that the possession and use of controlled substances, even by only one person, is inherently harmful and dangerous. Because the health effects caused by the use of controlled substances exist regardless of the motivation of the user, the use of such substances, even for religious purposes, violates the very purpose of the laws that prohibit them. Cf. 9 N. C. 74, (denying religious exemption to municipal ordinance prohibiting handling of poisonous reptiles), appeal dism'd sub nom. 6 U.S. 94 Moreover, in view of the societal interest in preventing trafficking in controlled substances, uniform application of the criminal prohibition at issue is essential to the effectiveness of Oregon's stated interest in preventing any possession of peyote. Cf. For these reasons, I believe that granting a selective exemption in this case would seriously impair Oregon's compelling interest in prohibiting possession of peyote by its citizens. Under such circumstances, the Free Exercise Clause does not require the State to accommodate respondents' religiously motivated conduct. See, e. g., Unlike in where we noted that "[t]he record strongly indicates that accommodating the religious objections of the Amish by forgoing one, or at most two, additional years of compulsory education will not impair the physical or mental health of the child, or result in an inability to be self-supporting or to discharge the duties and responsibilities of citizenship, or in any other way materially detract from the welfare of society," 406 U.S., at 4; see also at 8-40 a religious exemption in this case would be incompatible with the State's interest in controlling use and possession of illegal drugs. Respondents contend that any incompatibility is belied by the fact that the Federal Government and several States provide exemptions for the religious use of peyote, see 1 CFR 107.1 ; 07 Ore., at 7, n. 76 P.d, at n. (citing 11 state statutes that expressly exempt sacramental peyote use from criminal proscription). But other governments may surely choose to grant an exemption without Oregon, with its specific asserted interest in uniform application of
|
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/
|
Oregon, with its specific asserted interest in uniform application of its drug laws, being required to do so by the First Amendment. Respondents also note that the sacramental use of peyote is central to the tenets of the Native American Church, but I agree with the Court, ante, at 886-8, that because " `[i]t is not within the judicial ken to question the centrality of particular beliefs or practices to a faith,' " quoting our determination of the constitutionality of Oregon's general criminal prohibition cannot, and should not, turn on the centrality of the particular *907 religious practice at issue. This does not mean, of course, that courts may not make factual findings as to whether a claimant holds a sincerely held religious belief that conflicts with, and thus is burdened by, the challenged law. The distinction between questions of centrality and questions of sincerity and burden is admittedly fine, but it is one that is an established part of our free exercise doctrine, see U. S., at 85-88, and one that courts are capable of making. See Tony and Susan Alamo 471 U.S. 90, 0-05 I would therefore adhere to our established free exercise jurisprudence and hold that the State in this case has a compelling interest in regulating peyote use by its citizens and that accommodating respondents' religiously motivated conduct "will unduly interfere with fulfillment of the governmental interest." Accordingly, I concur in the judgment of the Court.
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
Sheila Myers was discharged for circulating a questionnaire to her fellow Assistant District Attorneys seeking information about the effect of petitioner's personnel policies on employee morale and the overall work performance of the District Attorney's Office. The Court concludes that her dismissal does not violate the First Amendment, primarily because the questionnaire addresses matters that, in the Court's view, are not of public concern. It is hornbook law, however, that speech about "the manner in which government is operated or should be operated" is an essential part of the communications necessary for self-governance the protection of which was a central purpose of the First Amendment. Because the questionnaire addressed such matters and its distribution did not adversely affect the operations of the District Attorney's Office or interfere with Myers' working relationship with her fellow employees, I dissent. I The Court correctly reaffirms the long-established principle that the government may not constitutionally compel persons to relinquish their First Amendment rights as a condition of public employment. E. g., ; ; held that the First Amendment protects the rights of public employees "as citizens to comment on matters of public interest" in connection with the operation of the government agencies for which they 391 U.S., at We recognized, however, that the *157 government has legitimate interests in regulating the speech of its employees that differ significantly from its interests in regulating the speech of people generally. We therefore held that the scope of public employees' First Amendment rights must be determined by balancing "the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." The balancing test articulated in comes into play only when a public employee's speech implicates the government's interests as an employer. When public employees engage in expression unrelated to their employment while away from the workplace, their First Amendment rights are, of course, no different from those of the general public. See Thus, whether a public employee's speech addresses a matter of public concern is relevant to the constitutional inquiry only when the statements at issue by virtue of their content or the context in which they were made may have an adverse impact on the government's ability to perform its duties efficiently.[1] The Court's decision today is flawed in three respects. First, the Court distorts the balancing analysis required under by suggesting that one factor, the context in which a statement is made, is to be weighed twice
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
a statement is made, is to be weighed twice first in *158 determining whether an employee's speech addresses a matter of public concern and then in deciding whether the statement adversely affected the government's interest as an employer. See ante, at 147-148, 152-153. Second, in concluding that the effect of respondent's personnel policies on employee morale and the work performance of the District Attorney's Office is not a matter of public concern, the Court impermissibly narrows the class of subjects on which public employees may speak out without fear of retaliatory dismissal. See ante, at 148-149. Third, the Court misapplies the balancing test in holding that Myers could constitutionally be dismissed for circulating a questionnaire addressed to at least one subject that was "a matter of interest to the community," ante, at 149, in the absence of evidence that her conduct disrupted the efficient functioning of the District Attorney's Office. II The District Court summarized the contents of respondent's questionnaire as follows: "Plaintiff solicited the views of her fellow Assistant District Attorneys on a number of issues, including office transfer policies and the manner in which information of that nature was communicated within the office. The questionnaire also sought to determine the views of Assistants regarding office morale, the need for a grievance committee, and the level of confidence felt by the Assistants for their supervisors. Finally, the questionnaire inquired as to whether the Assistants felt pressured to work in political campaigns on behalf of office-supported candidates." After reviewing the evidence, the District Court found that "[t]aken as a whole, the issues presented in the questionnaire relate to the effective functioning of the District Attorney's Office and are matters of public importance and concern." The Court of Appeals affirmed on the basis of *159 the District Court's findings and conclusions. The Court nonetheless concludes that Myers' questions about the effect of petitioner's personnel policies on employee morale and overall work performance are not "of public import in evaluating the performance of the District Attorney as an elected official." Ante, at 148. In so doing, it announces the following standard: "Whether an employee's speech addresses a matter of public concern must be determined by the content, form, and context of a given statement." Ante, at 147-148. The standard announced by the Court suggests that the manner and context in which a statement is made must be weighed on both sides of the balance. It is beyond dispute that how and where a public employee expresses his views are relevant in the second half of the inquiry determining whether the
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
the second half of the inquiry determining whether the employee's speech adversely affects the government's interests as an employer. The Court explicitly acknowledged this in where we stated that when a public employee speaks privately to a supervisor, "the employing agency's institutional efficiency may be threatened not only by the content of the. message but also by the manner, time, and place in which it is delivered." But the fact that a public employee has chosen to express his views in private has nothing whatsoever to do with the first half of the calculus whether those views relate to a matter of public concern. This conclusion is implicit in Givhan's holding that the freedom of speech guaranteed by the First Amendment is not "lost to the public employee who arranges to communicate privately with his employer rather than to spread his views before the public." -416. The Court seeks to distinguish Givhan on the ground that speech protesting racial discrimination is "inherently of public concern." Ante, at 148, n. 8. In so doing, it suggests that there are two classes of speech of public concern: statements "of public import" because of their content, form, and context, *160 and statements that, by virtue of their subject matter, are "inherently of public concern." In my view, however, whether a particular statement by a public employee is addressed to a subject of public concern does not depend on where it was said or why. The First Amendment affords special protection to speech that may inform public debate about how our society is to be governed regardless of whether it actually becomes the subject of a public controversy.[2] "[S]peech concerning public affairs is more than self-expression; it is the essence of self-government." "The maintenance of the opportunity for free political discussion to the end that government may be responsive to the will of the people and that changes may be obtained by lawful means, an opportunity essential to the security of the Republic, is a fundamental principle of our constitutional system." We have long recognized that one of the central purposes of the First Amendment's guarantee of freedom of expression is to protect the dissemination of information on the basis of which members of our society may make reasoned decisions about the government. 384 U. S., at -219; New York Times See A. Meiklejohn, Free Speech and Its Relation to Self-Government 22-27 (1948). "No aspect of that constitutional guarantee is more rightly treasured than its protection of the ability of our people through free and open debate to consider and resolve
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
people through free and open debate to consider and resolve their own destiny." Unconstrained discussion concerning the manner in which the government performs its duties is an essential element of the public discourse necessary to informed self-government. "Whatever differences may exist about interpretations of the First Amendment, there is practically universal agreement that a major purpose of that Amendment was to protect the free discussion of governmental affairs. This of course includes discussions of candidates, structures and forms of government, the manner in which government is operated or should be operated, and all such matters relating to political processes." at -219 *162 The constitutionally protected right to speak out on governmental affairs would be meaningless if it did not extend to statements expressing criticism of governmental officials. In New York Times we held that the Constitution prohibits an award of damages in a libel action brought by a public official for criticism of his official conduct absent a showing that the false statements at issue were made with " `actual malice.' " -280. We stated there that the First Amendment expresses "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials." See Garrison v. In we held that the First Amendment affords similar protection to critical statements by a public school teacher directed at the Board of Education for whom he 391 U.S., In so doing, we recognized that "free and open debate" about the operation of public schools "is vital to informed decision-making by the electorate." We also acknowledged the importance of allowing teachers to speak out on school matters. "Teachers are, as a class, the members of a community most likely to have informed and definite opinions as to how funds allotted to the operation of the schools should be spent. Accordingly, it is essential that they be able to speak out freely on such questions without fear of retaliatory dismissal." See also (describing "[t]he importance of Government employees' being assured of their right to freely comment on the conduct of Government, to inform the public of abuses of power and of the misconduct of their superiors"). *163 Applying these principles, I would hold that Myers' questionnaire addressed matters of public concern because it discussed subjects that could reasonably be expected to be of interest to persons seeking to develop informed opinions about the manner in which the Orleans Parish District Attorney, an elected official charged with managing a vital governmental agency,
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
an elected official charged with managing a vital governmental agency, discharges his responsibilities. The questionnaire sought primarily to obtain information about the impact of the recent transfers on morale in the District Attorney's Office. It is beyond doubt that personnel decisions that adversely affect discipline and morale may ultimately impair an agency's efficient performance of its duties. See Because I believe the First Amendment protects the right of public employees to discuss such matters so that the public may be better informed about how their elected officials fulfill their responsibilities, I would affirm the District Court's conclusion that the questionnaire related to matters of public importance and concern. The Court's adoption of a far narrower conception of what subjects are of public concern seems prompted by its fears that a broader view "would mean that virtually every remark and certainly every criticism directed at a public official would plant the seed of a constitutional case." Ante, at 149. Obviously, not every remark directed at a public official by a public employee is protected by the First Amendment.[3] But deciding whether a particular matter is of public concern is an inquiry that, by its very nature, is a sensitive one for judges charged with interpreting a constitutional provision intended to put "the decision as to what views shall be *164 voiced largely into the hands of each of us"[4] The Court recognized the sensitive nature of this determination in which held that the scope of the constitutional privilege in defamation cases turns on whether or not the plaintiff is a public figure, not on whether the statements at issue address a subject of public concern. In so doing, the Court referred to the "difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of `general or public interest' and which do not," and expressed "doubt [about] the wisdom of committing this task to the conscience of judges." See also In making such a delicate inquiry, we must bear in mind that "the citizenry is the final judge of the proper conduct of public business." Cox Broadcasting The Court's decision ignores these precepts. Based on its own narrow conception of which matters are of public concern, the Court implicitly determines that information concerning *165 employee morale at an important government office will not inform public debate. To the contrary, the First Amendment protects the dissemination of such information so that the people, not the courts, may evaluate its usefulness. The proper means to ensure that the courts are not swamped with routine
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
to ensure that the courts are not swamped with routine employee grievances mischaracterized as First Amendment cases is not to restrict artificially the concept of "public concern," but to require that adequate weight be given to the public's important interests in the efficient performance of governmental functions and in preserving employee discipline and harmony sufficient to achieve that end. See Part III, infra.[5] *166 III Although the Court finds most of Myers' questionnaire unrelated to matters of public interest, it does hold that one question asking whether Assistants felt pressured to work in political campaigns on behalf of office-supported candidates addressed a matter of public importance and concern. The Court also recognizes that this determination of public interest must weigh heavily in the balancing of competing interests required by Having gone that far, however, the Court misapplies the test and holds against our previous authorities that a public employer's mere apprehension that speech will be disruptive justifies suppression of that speech when all the objective evidence suggests that those fears are essentially unfounded. recognized the difficulty of articulating "a general standard against which all statements may be judged," ; it did, however, identify a number of factors that may affect the balance in particular cases. Those relevant here are whether the statements are directed to persons with whom the speaker "would normally be in contact in the course of his daily work"; whether they had an adverse effect on "discipline by immediate superiors or harmony among coworkers"; whether the employment relationship in question is "the kind for which it can persuasively *167 be claimed that personal loyalty and confidence are necessary to their proper functioning"; and whether the statements "have in any way either impeded [the employee's] proper performance of his daily duties or interfered with the regular operation of the [office]." at -573. In addition, in Givhan, we recognized that when the statements in question are made in private to an employee's immediate supervisor, "the employing agency's institutional efficiency may be threatened not only by the content of the message but also by the manner, time, and place in which it is delivered." 439 U.S., See The District Court weighed all of the relevant factors identified by our cases. It found that petitioner failed to establish that Myers violated either a duty of confidentiality or an office 507 F. Supp., at -759. Noting that most of the copies of the questionnaire were distributed during lunch, it rejected the contention that the distribution of the questionnaire impeded Myers' performance of her duties, and it concluded that
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
impeded Myers' performance of her duties, and it concluded that "Connick has not shown any evidence to indicate that the plaintiff's work performance was adversely affected by her expression." The Court accepts all of these findings. See ante, at 151. It concludes, however, that the District Court failed to give adequate weight to the context in which the questionnaire was distributed and to the need to maintain close working relationships in the District Attorney's Office. In particular, the Court suggests the District Court failed to give sufficient weight to the disruptive potential of Question 10, which asked whether the Assistants had confidence in the word of five named supervisors. Ante, at 152. The District Court, however, explicitly recognized that this was petitioner's "most forceful argument"; but after hearing the testimony of four of the five supervisors named in the question, it found that the question had no adverse effect on Myers' relationship with her superiors. *168 To this the Court responds that an employer need not wait until the destruction of working relationships is manifest before taking action. In the face of the District Court's finding that the circulation of the questionnaire had no disruptive effect, the Court holds that respondent may be dismissed because petitioner "reasonably believed [the action] would disrupt the office, undermine his authority, and destroy close working relationships." Ante, at 154. Even though the District Court found that the distribution of the questionnaire did not impair Myers' working relationship with her supervisors, the Court bows to petitioner's judgment because "[w]hen close working relationships are essential to fulfilling public responsibilities, a wide degree of deference to the employer's judgment is appropriate." Ante, at 151-152. Such extreme deference to the employer's judgment is not appropriate when public employees voice critical views concerning the operations of the agency for which they Although an employer's determination that an employee's statements have undermined essential working relationships must be carefully weighed in the balance, we must bear in mind that "the threat of dismissal from public employment is a potent means of inhibiting speech." 391 U. S., See If the employer's judgment is to be controlling, public employees will not speak out when what they have to say is critical of their supervisors. In order to protect public employees' First Amendment right to voice critical views on issues of public importance, the courts must make their own appraisal of the effects of the speech in question. In this regard, our decision in is controlling. Tinker arose in a public school, a context similar to the one in which the present case arose
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Connick v. Myers
|
https://www.courtlistener.com/opinion/110917/connick-v-myers/
|
similar to the one in which the present case arose in that the determination of the scope of the Constitution's guarantee of freedom of speech required consideration of the "special *169 characteristics of the environment" in which the expression took place. See At issue was whether public high school students could constitutionally be prohibited from wearing black armbands in school to express their opposition to the Vietnam conflict. The District Court had ruled that such a ban "was reasonable because it was based upon [school officials'] fear of a disturbance from the wearing of armbands." We found that justification inadequate, because "in our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." We concluded: "In order for the State to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would `materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained." ). Because the speech at issue addressed matters of public importance, a similar standard should be applied here. After reviewing the evidence, the District Court found that "it cannot be said that the defendant's interest in promoting the efficiency of the public services performed through his employees was either adversely affected or substantially impeded by plaintiff's distribution of the questionnaire." Based on these findings the District Court concluded that the circulation of the questionnaire was protected by the First Amendment. The District Court applied the proper legal standard and reached an acceptable accommodation between the competing interests. I would affirm its decision and the judgment of the Court of Appeals. *170 IV The Court's decision today inevitably will deter public employees from making critical statements about the manner in which government agencies are operated for fear that doing so will provoke their dismissal. As a result, the public will be deprived of valuable information with which to evaluate the performance of elected officials. Because protecting the dissemination of such information is an essential function of the First Amendment, I dissent.
|
Justice Rehnquist
| 1,990 | 19 |
majority
|
Milkovich v. Lorain Journal Co.
|
https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
|
Respondent J. Theodore Diadiun authored an article in an Ohio newspaper implying that petitioner Michael Milkovich, a local high school wrestling coach, lied under oath in a judicial proceeding about an incident involving petitioner and his team which occurred at a wrestling match. Petitioner sued Diadiun and the newspaper for libel, and the Ohio Court of Appeals affirmed a lower court entry of summary judgment against petitioner. This judgment was based in part on the grounds that the article constituted an "opinion" protected from the reach of state defamation law by the First Amendment to the United States Constitution. We hold that the First Amendment does not prohibit the application of Ohio's libel laws to the alleged defamations contained in the article. This lawsuit is before us for the third time in an odyssey of litigation spanning nearly 15 years.[1] Petitioner Milkovich, now retired, was the wrestling coach at Maple Heights High *4 School in Maple Heights, Ohio. In 1974, his team was involved in an altercation at a home wrestling match with a team from Mentor High School. Several people were injured. In response to the incident, the Ohio High School Athletic Association (OHSAA) held a hearing at which Milkovich and H. Don the Superintendent of Maple Heights Public Schools, testified. Following the hearing, OHSAA placed the Maple Heights team on probation for a year and declared the team ineligible for the 1975 state tournament. OHSAA also censured Milkovich for his actions during the altercation. Thereafter, several parents and wrestlers sued OHSAA in the Court of Common Pleas of Franklin County, Ohio, seeking a restraining order against OHSAA's ruling on the grounds that they had been denied due process in the OHSAA proceeding. Both Milkovich and testified in that proceeding. The court overturned OHSAA's probation and ineligibility orders on due process grounds. The day after the court rendered its decision, respondent Diadiun's column appeared in the News-Herald, a newspaper which circulates in Lake County, Ohio, and is owned by respondent Lorain Journal Co. The column bore the heading "Maple beat the law with the `big lie,'" beneath which appeared Diadiun's photograph and the words "TD Says." The carryover page headline announced ". Diadiun says Maple told a lie." The column contained the following passages: "`. [A] lesson was learned (or relearned) yesterday by the student body of Maple Heights High School, and by anyone who attended the Maple-Mentor wrestling meet of last Feb. 8. "`A lesson which, sadly, in view of the events of the past year, is well they learned early. "`It is simply this: If you get
|
Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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they learned early. "`It is simply this: If you get in a jam, lie your way out. *5 "`If you're successful enough, and powerful enough, and can sound sincere enough, you stand an excellent chance of making the lie stand up, regardless of what really happened. "`The teachers responsible were mainly head Maple wrestling coach, Mike Milkovich, and former superintendent of schools H. Donald "`Anyone who attended the meet, whether he be from Maple Heights, Mentor, or impartial observer, knows in his heart that Milkovich and lied at the hearing after each having given his solemn oath to tell the truth. "`But they got away with it. "`Is that the kind of lesson we want our young people learning from their high school administrators and coaches? "`I think not.'" 13-1322[2] *6 Petitioner commenced a defamation action against respondents in the Court of Common Pleas of Lake County, Ohio, alleging that the headline of Diadiun's article and the *7 nine passages quoted above "accused plaintiff of committing the crime of perjury, an indictable offense in the State of Ohio, and damaged plaintiff directly in his life-time occupation of coach and teacher, and constituted libel per se." App. 12. The action proceeded to trial, and the court granted a directed verdict to respondents on the ground that the evidence failed to establish the article was published with "actual malice" as required by New York See App. -22. The Ohio Court of Appeals for the Eleventh Appellate District reversed and remanded, holding that there was sufficient evidence of actual malice to go to the jury. See The Ohio *8 Supreme Court dismissed the ensuing appeal for want of a substantial constitutional question, and this Court denied certiorari. On remand, relying in part on our decision in the trial court granted summary judgment to respondents on the grounds that the article was an opinion protected from a libel action by "constitutional law," App. 55, and alternatively, as a public figure, petitioner had failed to make out a prima facie case of actual malice. The Ohio Court of Appeals affirmed both determinations. at, 62-70. On appeal, the Supreme Court of Ohio reversed and remanded. The court first decided that petitioner was neither a public figure nor a public official under the relevant decisions of this Court. See The court then found that "the statements in issue are factual assertions as a matter of law, and are not constitutionally protected as the opinions of the writer. The plain import of the author's assertions is that Milkovich, inter alia, committed the crime of perjury in a court
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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inter alia, committed the crime of perjury in a court of law." -1197. This Court again denied certiorari. Meanwhile, Superintendent had been pursuing a separate defamation action through the Ohio courts. Two years after its Milkovich decision, in considering 's appeal, the Ohio Supreme Court reversed its position on Diadiun's article, concluding that the column was "constitutionally protected opinion." Consequently, the court upheld a lower court's grant of summary judgment against The court decided that the proper analysis for determining whether utterances are fact or opinion was set forth in the decision of the United States Court of Appeals for the District of Columbia Circuit in cert. denied, 471 U. S. *9 1127 See Under that analysis, four factors are considered to ascertain whether, under the "totality of circumstances," a statement is fact or opinion. These factors are: (1) "the specific language used"; (2) "whether the statement is verifiable"; (3) "the general context of the statement"; and (4) "the broader context in which the statement appeared." The court found that application of the first two factors to the column militated in favor of deeming the challenged passages actionable assertions of fact. -707. That potential outcome was trumped, however, by the court's consideration of the third and fourth factors. With respect to the third factor, the general context, the court explained that "the large caption `TD Says' would indicate to even the most gullible reader that the article was, in fact, opinion."[3] As for the fourth factor, the "broader context," the court reasoned that because the article appeared on a sports page "a traditional haven for cajoling, invective, and hyperbole" the article would probably be construed as opinion. at 253-,[4] *10 Subsequently, considering itself bound by the Ohio Supreme Court's decision in the Ohio Court of Appeals in the instant proceedings affirmed a trial court's grant of summary judgment in favor of respondents, concluding that "it has been decided, as a matter of law, that the article in question was constitutionally protected opinion." The Supreme Court of Ohio dismissed petitioner's ensuing appeal for want of a substantial constitutional question. App. 119. We granted certiorari, to consider the important questions raised by the Ohio courts' recognition of a constitutionally required "opinion" exception to the application of its defamation laws. We now reverse.[5] *11 Since the latter half of the 16th century, the common law has afforded a cause of action for damage to a person's reputation by the publication of false and defamatory statements. See L. Law of Defamation 5 (1978). *12 In Shakespeare's Othello, Iago says to Othello: "Good
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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(1978). *12 In Shakespeare's Othello, Iago says to Othello: "Good name in man and woman, dear my lord, Is the immediate jewel of their souls. Who steals my purse steals trash; `Tis something, nothing; `Twas mine, `tis his, and has been slave to thousands; But he that filches from me my good name Robs me of that which not enriches him, And makes me poor indeed." Act III, scene 3. Defamation law developed not only as a means of allowing an individual to vindicate his good name, but also for the purpose of obtaining redress for harm caused by such statements. As the common law developed in this country, apart from the issue of damages, one usually needed only allege an unprivileged publication of false and defamatory matter to state a cause of action for defamation. See, e. g., Restatement of 558 (1938); *13 v. Robert Welch, ("Under typical state defamation law, the defamed private citizen had to prove only a false publication that would subject him to hatred, contempt, or ridicule"). The common law generally did not place any additional restrictions on the type of statement that could be actionable. Indeed, defamatory communications were deemed actionable regardless of whether they were deemed to be statements of fact or opinion. See, e. g., Restatement of 565-567. As noted in the 1977 Restatement (Second) of 566, Comment a: "Under the law of defamation, an expression of opinion could be defamatory if the expression was sufficiently derogatory of another as to cause harm to his reputation, so as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. The expression of opinion was also actionable in a suit for defamation, despite the normal requirement that the communication be false as well as defamatory. This position was maintained even though the truth or falsity of an opinion as distinguished from a statement of fact is not a matter that can be objectively determined and truth is a complete defense to a suit for defamation." However, due to concerns that unduly burdensome defamation laws could stifle valuable public debate, the privilege of "fair comment" was incorporated into the common law as an affirmative defense to an action for defamation. "The principle of `fair comment' afford[ed] legal immunity for the honest expression of opinion on matters of legitimate public interest when based upon a true or privileged statement of fact." 1 F. Harper & F. James, Law of 5.28, p. 456 (1956) As this statement implies, comment was generally privileged when it concerned
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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this statement implies, comment was generally privileged when it concerned a matter of public concern, was upon true or privileged facts, represented the actual opinion of the speaker, and was not made *14 solely for the purpose of causing harm. See Restatement of 606. "According to the majority rule, the privilege of fair comment applied only to an expression of opinion and not to a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of 566, Comment a. Thus under the common law, the privilege of "fair comment" was the device employed to strike the appropriate balance between the need for vigorous public discourse and the need to redress injury to citizens wrought by invidious or irresponsible speech. In 1964, we decided in New York that the First Amendment to the United States Constitution placed limits on the application of the state law of defamation. There the Court recognized the need for "a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." This rule was prompted by a concern that, with respect to the criticism of public officials in their conduct of governmental affairs, a state-law "`rule compelling the critic of official conduct to guarantee the truth of all his factual assertions' would deter protected speech." (quoting New York ). Three years later, in Curtis Publishing a majority of the Court determined "that the New York test should apply to criticism of `public figures' as well as `public officials.' The Court extended the constitutional privilege announced in that case to protect defamatory criticism of nonpublic persons `who are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large.'" at 336-337 *15 (quoting ). As Chief Justice Warren noted in concurrence, "[o]ur citizenry has a legitimate and substantial interest in the conduct of such persons, and freedom of the press to engage in uninhibited debate about their involvement in public issues and events is as crucial as it is in the case of `public officials.'" The Court has also determined that both for public officials and public figures, a showing of New York malice is subject to a clear and convincing standard of proof. The next step in this constitutional evolution was the Court's consideration
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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next step in this constitutional evolution was the Court's consideration of a private individual's defamation actions involving statements of public concern. Although the issue was intially in doubt, see Rosenbloom v. Metromedia, the Court ultimately concluded that the New York malice standard was inappropriate for a private person attempting to prove he was defamed on matters of public interest. As we explained: "Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy. "[More important,] public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual." Nonetheless, the Court believed that certain significant constitutional protections were warranted in this area. First, we held that the States could not impose liability without requiring some showing of fault. See Second, we held that the States could not permit recovery of presumed or punitive damages on less than a showing of New York malice. See Still later, in Philadelphia Newspapers, v. we held that "the common-law presumption that defamatory speech is false cannot stand when a plaintiff seeks damages against a media defendant for speech of public concern." In other words, the Court fashioned "a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages." Although recognizing that "requiring the plaintiff to show falsity will insulate from liability some speech that is false, but unprovably so," the Court believed that this result was justified on the grounds that "placement by state law of the burden of proving truth upon media defendants who publish speech of public concern deters such speech because of the fear that liability will unjustifiably result." -778. We have also recognized constitutional limits on the type of speech which may be the subject of state defamation actions. In Greenbelt Cooperative Publishing Assn., v. Bresler, a real estate developer had engaged in negotiations with a local city council for a zoning variance on certain of his land, while simultaneously negotiating with the city on other land the city wished to purchase from him. A local newspaper published certain articles stating that some people had characterized the developer's negotiating position as "blackmail," and the developer sued for libel. Rejecting a contention that liability could be premised on the notion that the word "blackmail" implied the developer had committed the actual crime of blackmail, we held that "the imposition of *17 liability on such a
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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held that "the imposition of *17 liability on such a basis was constitutionally impermissible that as a matter of constitutional law, the word `blackmail' in these circumstances was not slander when spoken, and not libel when reported in the Greenbelt News Review." Noting that the published reports "were accurate and full," the Court reasoned that "even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable." -14. See also Hustler Magazine, v. ; Letter The Court has also determined that "in cases raising First Amendment issues an appellate court has an obligation to `make an independent examination of the whole record' in order to make sure that `the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of United States, (quoting New York 376 U. S., at ). "The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law." Harte-Hanks Communications, v. Connaughton, Respondents would have us recognize, in addition to the established safeguards discussed above, still another First-Amendment-based protection for defamatory statements which are categorized as "opinion" as opposed to "fact." For *18 this proposition they rely principally on the following dictum from our opinion in : "Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact." -340 Judge Friendly appropriately observed that this passage "has become the opening salvo in all arguments for protection from defamation actions on the ground of opinion, even though the case did not remotely concern the question." v. New Publishing Co., Read in context, though, the fair meaning of the passage is to equate the word "opinion" in the second sentence with the word "idea" in the first sentence. Under this view, the language was merely a reiteration of Justice Holmes' classic "marketplace of ideas" concept. See 2 U.S. 6, ("[T]he ultimate good desired is better reached by free trade in ideas the best test of truth is the power of the thought to get itself accepted in the competition of the market"). Thus, we do not think this passage from was intended to create a wholesale defamation exemption for anything that might be labeled "opinion." See
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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defamation exemption for anything that might be labeled "opinion." See Not only would such an interpretation be contrary to the tenor and context of the passage, but it would also ignore the fact that expressions of "opinion" may often imply an assertion of objective fact. If a speaker says, "In my opinion John Jones is a liar," he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts *19 upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, "In my opinion Jones is a liar," can cause as much damage to reputation as the statement, "Jones is a liar." As Judge Friendly aptly stated: "[It] would be destructive of the law of libel if a writer could escape liability for accusations of [defamatory conduct] simply by using, explicitly or implicitly, the words `I think.'" See It is worthy of note that at common law, even the privilege of fair comment did not extend to "a false statement of fact, whether it was expressly stated or implied from an expression of opinion." Restatement (Second) of 566, Comment a (1977). Apart from their reliance on the dictum, respondents do not really contend that a statement such as, "In my opinion John Jones is a liar," should be protected by a separate privilege for "opinion" under the First Amendment. But they do contend that in every defamation case the First Amendment mandates an inquiry into whether a statement is "opinion" or "fact," and that only the latter statements may be actionable. They propose that a number of factors developed by the lower courts (in what we hold was a mistaken reliance on the dictum) be considered in deciding which is which. But we think the "`breathing space'" which "`[f]reedoms of expression require in order to survive,'" (quoting New York ), is adequately secured by existing constitutional doctrine without the creation of an artificial dichotomy between "opinion" and fact. Foremost, we think stands for the proposition that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations, like the present, where a media defendant *20 is involved.[6] Thus, unlike the statement, "In my opinion Mayor Jones is a liar," the statement, "In my opinion Mayor Jones shows his
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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liar," the statement, "In my opinion Mayor Jones shows his abysmal ignorance by accepting the teachings of Marx and Lenin," would not be actionable. ensures that a statement of opinion relating to matters of public concern which does not contain a provably false factual connotation will receive full constitutional protection.[7] Next, the Bresler-Letter Carriers- line of cases provides protection for statements that cannot "reasonably [be] interpreted as stating actual facts" about an individual. 485 U. S., 0. This provides assurance that public debate will not suffer for lack of "imaginative expression" or the "rhetorical hyperbole" which has traditionally added much to the discourse of our Nation. See 3-55. The New York -- culpability requirements further ensure that debate on public issues remains "uninhibited, robust, and wide-open." New York Thus, where a statement of "opinion" on a matter of public concern reasonably implies false and defamatory facts regarding public figures or officials, those individuals must show that such statements were made with knowledge of their false implications or with reckless disregard of their truth. Similarly, where such a statement involves a private figure on a matter of public concern, a plaintiff must show that the false connotations were made with some level of fault * as required by[8] Finally, the enhanced appellate review required by Bose Corp. provides assurance that the foregoing determinations will be made in a manner so as not to "constitute a forbidden intrusion of the field of free expression." Bose Corp., 466 U. S., at We are not persuaded that, in addition to these protections, an additional separate constitutional privilege for "opinion" is required to ensure the freedom of expression guaranteed by the First Amendment. The dispositive question in the present case then becomes whether a reasonable factfinder could conclude that the statements in the Diadiun column imply an assertion that petitioner Milkovich perjured himself in a judicial proceeding. We think this question must be answered in the affirmative. As the Ohio Supreme Court itself observed: "[T]he clear impact in some nine sentences and a caption is that [Milkovich] `lied at the hearing after having given his solemn oath to tell the truth.'" This is not the sort of loose, figurative, or hyperbolic language which would negate the impression that the writer was seriously maintaining that petitioner committed the crime of perjury. Nor does the general tenor of the article negate this impression. We also think the connotation that petitioner committed perjury is sufficiently factual to be susceptible of being proved true or false. A determination whether petitioner lied in this instance can be made on a
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Justice Rehnquist
| 1,990 | 19 |
majority
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Milkovich v. Lorain Journal Co.
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https://www.courtlistener.com/opinion/112470/milkovich-v-lorain-journal-co/
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petitioner lied in this instance can be made on a core of objective evidence by comparing, inter alia, petitioner's testimony before the OHSAA board with his subsequent testimony before the trial court. As the court noted regarding the plaintiff in that case: "[W]hether or not H. Don did indeed perjure himself is certainly verifiable by a perjury action with evidence adduced from the transcripts and witnesses present at *22 the hearing. Unlike a subjective assertion the averred defamatory language is an articulation of an objectively verifiable event." So too with petitioner Milkovich.[9] The numerous decisions discussed above establishing First Amendment protection for defendants in defamation actions surely demonstrate the Court's recognition of the Amendment's vital guarantee of free and uninhibited discussion of public issues. But there is also another side to the equation; we have regularly acknowledged the "important social values which underlie the law of defamation," and recognized that "[s]ociety has a pervasive and strong interest in preventing and redressing attacks upon reputation." Justice Stewart in that case put it with his customary clarity: "The right of a man to the protection of his own reputation from unjustified invasion and wrongful hurt reflects no more than our basic concept of the essential dignity and worth of every human being a concept at the root of any decent system of ordered liberty. "The destruction that defamatory falsehood can bring is, to be sure, often beyond the capacity of the law to redeem. *23 Yet, imperfect though it is, an action for damages is the only hope for vindication or redress the law gives to a man whose reputation has been falsely dishonored." We believe our decision in the present case holds the balance true. The judgment of the Ohio Court of Appeals is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed.
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Justice Burger
| 1,986 | 12 |
concurring
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Darden v. Wainwright
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https://www.courtlistener.com/opinion/111717/darden-v-wainwright/
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I concur fully in the opinion for the Court and write separately only to address the suggestion in JUSTICE BLACKMUN'S dissent that the Court rejects Darden's Witherspoon claim because of its "impatience with the progress of Darden's constitutional challenges to his conviction." Post, at 204. In support of this contention, reference is made to my dissent from the grant of certiorari in this case. The dissent states that I voted to deny the petition because Darden's claims have been reviewed by 95 judges in the 12 years since his conviction. This is simply incorrect. To set the record straight, I quote my dissent in full: "In the 12 years since petitioner was convicted of murder and sentenced to death, the issues now raised in the petition for certiorari have been considered by this Court four times, see ; ; ); [] (order dated September 3, 1985, denying application for stay), and have been passed upon no fewer than 95 times by federal and *188 state court judges. Upon review of the petition and the history of this case, I conclude that no issues are presented that merit plenary review by this Court. Because we abuse our discretion when we accept meritless petitions presenting claims that we rejected only hours ago, I dissent." As my dissent makes clear, I voted to deny the petition in this extraordinary case because the meritless claims raised did not require plenary review. Full briefing and oral argument have not changed my views. The dissent's suggestion that this Court is motivated by impatience with Darden's constitutional claims is refuted by the record; the 13 years of judicial proceedings in this case manifest substantial care and patience. Our rejection of Darden's claims in this the fourth time he has sought review in this Court is once again based on a thoughtful application of the law to the facts of the case. At some point there must be finality.
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Justice Thomas
| 1,997 | 1 |
majority
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Young v. Harper
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https://www.courtlistener.com/opinion/118095/young-v-harper/
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This case presents the narrow question whether a program employed by the State of Oklahoma to reduce the overcrowding *145 of its prisons was sufficiently like parole that a person in the program was entitled to the procedural protections set forth in before he could be removed from it. We hold that the program, as it appears to have been structured at the time respondent was placed on it, differed from parole in name alone, and affirm the decision of the Court of Appeals for the Tenth Circuit. I As pertinent to this case, Oklahoma operated two programs under which inmates were conditionally released from prison before the expiration of their sentences. One was parole, the other was the Preparole Conditional Supervision Program (preparole or Program). The Program was in effect whenever the population of the prison system exceeded 95% of its capacity. Okla. Stat., Tit. 57, 365(A) (Supp. 1990). An inmate could be placed on preparole after serving 15% of his sentence, 365(A)(2), and he was eligible for parole when one-third of his sentence had elapsed, 332.7(A). The Pardon and Parole Board (Board) had a role in the placement of both parolees and preparolees. The Board itself determined who could participate in the Program, while the Governor, based on the Board's recommendation, decided whether a prisoner would be paroled. As we describe further in Part II, infra, participants in the Program were released subject to constraints similar to those imposed on parolees. In October 1990, after reviewing respondent Ernest Eugene Harper's criminal record and conduct while incarcerated, the Pardon and Parole Board simultaneously recommended him for parole and released him under the Program. At that time, respondent had served 15 years of a life sentence for two murders. Before his release, respondent underwent orientation, during which he reviewed the "Rules and Conditions of Pre-Parole Conditional Supervision," see App. 7, and after which he executed a document *146 indicating that he "underst[ood] that being classified to community level depend[ed] upon [his] compliance with each of these expectations," He spent five apparently uneventful months outside the penitentiary. Nonetheless, the Governor of Oklahoma denied respondent parole. On March 14, 1991, respondent was telephoned by his parole officer, informed of the Governor's decision, and told to report back to prison, which he did later that day. Respondent filed a petition for a writ of habeas corpus in state court complaining that his summary return to prison had deprived him of liberty without due process. The state trial court denied relief and the Oklahoma Court of Criminal Appeals affirmed. The Court of Criminal Appeals
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Justice Thomas
| 1,997 | 1 |
majority
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Young v. Harper
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https://www.courtlistener.com/opinion/118095/young-v-harper/
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Court of Criminal Appeals affirmed. The Court of Criminal Appeals concluded that respondent's removal from the Program impinged only upon an interest in his "degree of confinement," an interest to which the procedural protections set out in did not The court found "[d]ispositive of the issue" the fact that respondent "was not granted parole by the Governor of Oklahoma." The court noted that the Board had adopted a procedure under which preparolees subsequently denied parole remained on the Program, and had their cases reviewed within 90 days of the denial for a determination whether they should continue on preparole. According to the court, "such a procedure gives an inmate sufficient notice when he is placed in the program that he may be removed from it when the governor exercises his discretion and declines to grant parole." Respondent fared no better in District Court on his petition for relief under 28 U.S. C. 2254. But the Tenth Circuit reversed. It determined that preparole "more closely resembles parole or probation than even the more permissive forms of institutional confinement" and that "[d]ue process therefore mandates that program participants receive at least the procedural protections described in " Petitioners sought certiorari *147 on the limited question whether preparole "is more similar to parole or minimum security imprisonment; and, thus, whether continued participation in such program is protected by the Due Process Clause of the Fourteenth Amendment." Pet. for Cert. i. We granted certiorari, and, because we find that preparole as it existed at the time of respondent's release was equivalent to parole as understood in we affirm.[1] II "The essence of parole is release from prison, before the completion of sentence, on the condition that the prisoner abide by certain rules during the balance of the sentence." In we described the "nature of the interest of the parolee in his continued liberty": "[H]e can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison. The parolee has relied on at *148 least an implicit promise that parole will be revoked only if he fails to live up to the parole conditions." This passage could just as easily have applied to respondent while he was on preparole. In compliance with state procedures, he was released from prison before the expiration of his sentence. He kept his own residence; he sought, obtained, and maintained a job; and
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Justice Thomas
| 1,997 | 1 |
majority
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Young v. Harper
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https://www.courtlistener.com/opinion/118095/young-v-harper/
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own residence; he sought, obtained, and maintained a job; and he lived a life generally free of the incidents of imprisonment. To be sure, respondent's liberty was not unlimited. He was not permitted to use alcohol, to incur other than educational debt, or to travel outside the county without permission. App. 7-8. And he was required to report regularly to a parole officer. The liberty of a parolee is similarly limited, but that did not in render such liberty beyond procedural protection. Petitioners do not ask us to revisit ; they merely dispute that preparole falls within its compass. Our inquiry, they argue, should be controlled instead by There, we determined that the interest of a prisoner in avoiding an intrastate prison transfer was "too ephemeral and insubstantial to trigger procedural due process protections as long as prison officials have discretion to transfer him for whatever reason or for no reason at all." ; see also Petitioners contend that reincarceration of a preparolee was nothing more than a "transfe[r] to a higher degree of confinement" or a "classification to a more supervised prison environment," Brief for Petitioners 18, which, like transfers within the prison setting, involved no liberty interest. In support of their argument that preparole was merely a lower security classification and not parole, petitioners identify several aspects of the Program said to render it different from parole. Some of these do not, in fact, appear to distinguish the two programs. Others serve only to set preparole *149 apart from the specific terms of parole as it existed in Oklahoma, but not from the more general class of parole identified in None of the differencesreal or imagined supports a view of the Program as having been anything other than parole as described in We first take up the phantom differences. We are told at the outset that the purposes of preparole and parole were different. Preparole was intended "to reduce prison overcrowding," while parole was designed "to help reintegrate the inmate into society." Reply Brief for Petitioners 10. This alleged difference is less than it seems. Parole could also be employed to reduce prison overcrowding, see Okla. Stat., Tit. 57, 332.7(B) (Supp. 1990). And the Program's requirement that its participants work or attend school belies the notion that preparole was concerned only with moving bodies outside of teeming prison yards. In fact, in their brief below, petitioners described the Program as one in which the Department of Corrections "places eligible inmates into a community for the purpose of reintegration into society." Brief for Appellees in No. 95-5026 (CA10), p.
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Justice Thomas
| 1,997 | 1 |
majority
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Young v. Harper
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https://www.courtlistener.com/opinion/118095/young-v-harper/
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into society." Brief for Appellees in No. 95-5026 (CA10), p. 7, n. 2. We are also told that "an inmate on the Program continues to serve his sentence and receives earned credits. whereas a parolee is not serving his sentence and, if parole is revoked, the parolee is not entitled to deduct from his sentence time spent on parole." Reply Brief for Petitioners 11. Our review of the statute in effect when respondent was released, however, reveals that a parolee was "entitled to a deduction from his sentence for all time during which he has been or may be on parole" and that, even when parole was revoked, the Board had the discretion to credit time spent on parole against the sentence. Okla. Stat., Tit. 57, 350 (Supp. 1990). Petitioners next argue that preparolees, unlike parolees, remained within the custody of the Department of Corrections. This is said to be evidenced by respondent's having *150 had to report to his parole officer weekly and to provide the officer with a weekly itinerary. Reply Brief for Petitioners 13. We are at a loss to explain why respondent's regular visits to his parole officer rendered him more "in custody" than a parolee, who was required to make similar visits. See App. to Brief for Respondent 28a. Likewise, the provision that preparolees "be subject to disciplinary proceedings as established by the Department of Corrections" in the event that they "violate any rule or condition during the period of community supervision," Okla. Stat., Tit. 57, 365(E) (Supp. 1990), did not distinguish their "custodial" status from that of parolees, who were also subject to the department's custody in the event of a parole violation. See Reply Brief for Petitioners 13. Petitioners, for their final nonexistent distinction, argue that, because a preparolee "is aware that he may be transferred to a higher security level if the Governor, through his discretionary power, denies parole," he does not enjoy the same liberty interest as a parolee. Brief for Petitioners 20. Preparole, contend petitioners, was thus akin to a furlough program, in which liberty was not conditioned on the participant's behavior but on extrinsic events. By this reasoning, respondent would have lacked the "implicit promise" that his liberty would continue so long as he complied with the conditions of his release, 408 U. S., Respondent concedes the reasoning of petitioners' argument as it relates to furloughs, but challenges the premise that his participation in the Program was conditioned on the Governor's decision regarding parole. In support of their assertion that a preparolee knew that a denial of parole could
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Justice Thomas
| 1,997 | 1 |
majority
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Young v. Harper
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https://www.courtlistener.com/opinion/118095/young-v-harper/
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that a preparolee knew that a denial of parole could result in reincarceration, petitioners relyas they have throughout this litigationon a procedure promulgated in August 1991, nearly five months after respondent was returned to prison. See Pardon and Parole Board Procedure No. 004-011 (1991), App. to Pet. for Cert. *151 56a.[2] The Court of Criminal Appeals also relied on this provision, but because it was not in effect when respondent was released, it has little relevance to this case. Nor have we been presented with any other evidence to substantiate this asserted limitation on respondent's release. The closest petitioners come is to direct us to the orientation form reviewed with respondent upon his release. Item 9 of that orientation form says: "Reviewed options available in the event of parole denial." App. 5. Mindful of Procedure No. 004-011, as amended after respondent was reincarcerated, it is possible to read this item as indicating that respondent was told his participation in the Program could be terminated if parole were denied. But the mere possibility of respondent's having been so informed is insufficient to overcome his showing of the facially complete, written "Rules and Conditions of Pre-Parole Conditional Supervision," App. 7-9, which said nothing about the effect of a parole denial. Counsel for the State also claims that at the time respondent was participating in the Program, preparolees were always reincarcerated if the Governor denied them parole. Tr. of Oral Arg. 8. In the absence of evidence to this effectand the State points to nonethis assertion is insufficient to rebut the seemingly complete rules and conditions of respondent's release. On the record before us, therefore, the premise of petitioners' argumentthat respondent's continued participation was conditioned on extrinsic eventsis illusory, and the analogy to furlough in apposite.[3] *152 Petitioners do identify some actual differences between preparole and Oklahoma's version of parole, but these do no better at convincing us that preparole was different from parole as we understood it in As petitioners point out, participation in the Program was ordered by the Board, while the Governor conferred parole. In this regard, preparole was different from parole in Oklahoma; but it was no different from parole as we described it in See -478. In addition, preparolees who "escape[d]" from the Program could be prosecuted as though they had escaped from prison, see Okla. Stat., Tit. 57, 365(F) (Supp. 1990), while it appears that parolees who "escaped" from parole were subject not to further prosecution, but to revocation of parole, see Reply Brief for Petitioners 11. That the punishment for failure to abide by one of
|
Justice Burger
| 1,973 | 12 |
majority
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Brown v. Chote
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https://www.courtlistener.com/opinion/108770/brown-v-chote/
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This case arises under 28 U.S. C. 1253 on direct appeal from a three-judge district court in the Northern District of California. The court was convened pursuant to 28 U.S. C. 2281 when appellee called into *453 question the constitutionality of those provisions of the California Elections Code which require candidates in a primary election to pay a filing fee prior to having their names listed on the primary ballot. Cal. Elections Code 6552 and 6553 (Supp. 1973). Under these provisions, candidates for the Federal House of Representatives must pay $425 (1% of the annual salary of the office); candidates for the Federal Senate must pay $850 (2% of the salary of the office). Those wishing to run for statewide offices must pay similar fees ranging in amount from $192 for State Assemblyman (1% of the annual salary) to $982 for Governor (2% of the annual salary). Other portions of the California Elections Code, not challenged in the present suit, require prospective candidates to file with appropriate state officials a declaration of candidacy and sponsor certificates. Cal. Elections Code 6490-6491, 6494-6495 (1961 and Supp. 1973). Appellee commenced this class action on March 3, 1972. He moved, and was granted permission by, a single district judge, to proceed in forma pauperis and as his own attorney. In his complaint, appellee asserted that he wished to become a candidate for the Federal House of Representatives from the 17th District of California, and had taken the following steps to place his name in nomination in the June 6, 1972, California primary election. On February 17, 1972, appellee called the Registrar of Voters of Santa Clara County, an official designated by state law to dispense those forms necessary to place a name in nomination. Appellee was purportedly told by the Registrar or a member of his office that he was required to pay $425 in advance in order to secure blank copies of the necessary papers. According to appellee, the Registrar's Office also advised him that the papers would be delivered in exchange for a worthless check.[1] *454 Appellee proceeded immediately to the Registrar's Office where he presented a personal check for $425 and requested copies of the necessary forms. Across the face of the check appellee had typed "Written under protest for filing fee."[2] The Registrar issued the requisite papers to appellee and informed him that his check would be forwarded to the California Secretary of State when his completed papers were submitted. Subsequently, a Deputy Secretary of State informed appellee that his name would not be placed on the ballot if his
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Justice Burger
| 1,973 | 12 |
majority
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Brown v. Chote
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https://www.courtlistener.com/opinion/108770/brown-v-chote/
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name would not be placed on the ballot if his check was not honored.[3] Citing appellee asserted that California's filing-fee system was unconstitutional since it barred indigents, such as himself, from seeking elective office and from voting for the candidate of his choice. In addition to requesting declaratory and permanent injunctive relief, appellee moved the District Court to issue a preliminary injunction so as to allow him to participate as a candidate in the upcoming primary. Under state law, the final date on which appellee could submit nominating papers for that primary was March 10, 1972, one week away. Because of the impending filing deadline, the District Court proceeded quickly to set the case for argument. *455 On March 3, 1972, the same date on which the suit was filed, the single District Judge to whom the case was assigned entered an order requiring appellant to show cause why interlocutory relief should not be granted. The State was given five days in which to respond. It was not until March 7 that the Chief Judge of the Ninth Circuit was notified of the application for a three-judge court. On March 8, he designated the judges who were to compose the panel. On the same day, the court convened and heard oral argument. Because of the speed with which the case had developed, neither the court nor appellee had an opportunity prior to the hearing to consider appellant's return to the order to show cause, the only paper which the State had been able to prepare. On March 9, 1972, one day after oral argument and one day before the deadline for filing nomination papers, the District Court granted appellee's motion for a preliminary injunction, stating: "Since no showing has been made by the State, concerning either the necessity, the purpose or the reasonableness of the filing fee statutes in question, we conclude that within the rationale and holding of Bullock [v. Carter, ], plaintiff may prevail on the merits and that, absent a preliminary injunction, his constitutional right may be irreparably lost." (Emphasis added.) Under the terms of the preliminary injunction, the State was required to allow appellee and others similarly situated to place their names on the ballot without paying the required fee, so long as they were otherwise eligible for the applicable state or federal office and had deposited with an appropriate state official an affidavit attesting to their indigency. *456 The State appealed directly to this Court under 28 U.S. C. 1253. Its Jurisdictional Statement posed two questions: "Under the decision of this Court in when a
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Justice Burger
| 1,973 | 12 |
majority
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Brown v. Chote
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https://www.courtlistener.com/opinion/108770/brown-v-chote/
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questions: "Under the decision of this Court in when a state statute requiring a candidate's filing fee of one per cent (1%) of the first year's salary for the office is challenged on Equal Protection grounds does the `rational basis' or `close scrutiny' standard of judicial review apply? "Do California Elections Code sections 6552 and 6553 deny voters or indigent prospective candidates equal protection of the laws?" Thus, the State of California, for reasons not clear to us in light of the limited record, asked the Court to address itself to the ultimate merits of appellee's constitutional claim, a question which the District Court did not reach. In the present posture of the case, there is no occasion to consider any issues beyond those addressed by the District Court. The issuance of the requested preliminary injunction was the only action taken by the District Court. In determining whether such relief was required, that court properly addressed itself to two relevant factors: first, the appellee's possibilities of success on the merits; and second, the possibility that irreparable injury would have resulted, absent interlocutory relief. As the District Court opinion clearly evidences, issuance of the injunction reflected the balance which that court reached in weighing these factors and was not in any sense intended as a final decision as to the constitutionality of the challenged statute. In the exigent circumstances, the grant of extraordinary interim relief was a permissible choice; but on the very limited record before the District Court a decision on the merits would not have been appropriate. *457 In reviewing such interlocutory relief, this Court may only consider whether issuance of the injunction constituted an abuse of discretion. ; United ; United Fuel Gas ; National Fire Insurance Co. of In light of the arguments presented by appellee and the fact that appellee's opportunity to be a candidate would have been foreclosed, absent some relief, we cannot conclude that the court's action was an abuse of discretion. We therefore affirm the action taken by the District Court in granting interim relief. In doing so, we intimate no view as to the ultimate merits of appellee's contentions. The record in this case clearly reflects the limited time which the parties had to assemble evidence and prepare their arguments. While the District Court's swift action is understandable in view of the deadline which it faced, the resulting record was simply insufficient to allow that court to consider fully the grave, far-reaching constitutional questions presented. The specific deadline which led the District Court to grant equitable relief has now passed.[4] Nothing precludes
|
Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
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The question presented by this appeal is whether an apportionment plan for congressional district satisfies Art. I, 2, of the Constitution without need for further justification if the population of the largest district is less than one percent greater than the population of the smallest district. A three-judge District Court declared New Jersey's reapportionment plan unconstitutional on the authority of and because the population deviations among districts, although small, were not the result of a good-faith effort to achieve population equality. We affirm. I After the results of the 1980 decennial census had been tabulated, the Clerk of the United States House of Representatives notified the Governor of New Jersey that the number of Representatives to which the State was entitled had decreased from 15 to 1. Accordingly, the New Jersey Legislature was required to reapportion the State's congressional districts. The State's 199th Legislature passed two reapportionment bills. One was vetoed by the Governor, and the second, although signed into law, occasioned significant dissatisfaction among those who felt it diluted minority voting strength in the city of Newark. See App. 83-8, 86-90. In response, the 200th Legislature returned to the problem of apportioning congressional districts when it convened in January and it swiftly passed a bill (S-711) introduced by Senator Feldman, President pro tem of the State Senate, *728 which created the apportionment plan at issue in this The bill was signed by the Governor on January 19, becoming Pub. L. ch. 1 (hereinafter Feldman Plan). A map of the resulting apportionment is appended infra. Like every plan considered by the legislature, the Feldman Plan contained 1 districts, with an average population per district (as determined by the 1980 census) of 526,059.[1] Each district did not have the same population. On the average, each district differed from the "ideal" figure by 0.138%, or about 726 people. The largest district, the Fourth District, which includes Trenton, had a population of 527,72, and the smallest, the Sixth District, embracing most of Middlesex County, a population of 523,798. The difference between them was 3,67 people, or 0.698% of the average district. The populations of the other districts also varied. The Ninth District, including most of Bergen County, in the northeastern corner of the State, had a population of 527,9, while the population of the Third District, along the Atlantic shore, was only 52,825. App. 12. The legislature had before it other plans with appreciably smaller population deviations between the largest and smallest districts. The one receiving the most attention in the District Court was designed by Dr. Ernest Reock, Jr., a political science
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Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
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was designed by Dr. Ernest Reock, Jr., a political science professor at Rutgers University and Director of the Bureau of Government Research. A version of the Reock *729 Plan introduced in the 200th Legislature by Assemblyman Hardwick had a maximum population difference of 2,375, or 0.51% of the average figure. Almost immediately after the Feldman Plan became law, a group of individuals with varying interests, including all incumbent Republican Members of Congress from New Jersey, sought a declaration that the apportionment plan violated Art. I, 2, of the Constitution[2] and an injunction against proceeding with the primary election for United States Representatives under the plan. A three-judge District Court was convened pursuant to 28 U.S. C. 228(a). The District Court held a hearing on February 26, at which the parties submitted a number of depositions and affidavits, moved for summary judgment, and waived their right to introduce further evidence in the event the motions for summary judgment were denied. Shortly thereafter, the District Court issued an opinion and order declaring the Feldman Plan unconstitutional. Denying the motions for summary judgment and resolving the case on the record as a whole, the District Court held that the population variances in the Feldman Plan were not "unavoidable despite a good-faith effort to achieve absolute equality," see The court rejected appellants' argument that a deviation lower than the statistical imprecision of the decennial census was "the functional equivalent of mathematical equality." It also held that appellants had failed to show that the population variances were justified by the legislature's purported goals of preserving minority *730 voting strength and anticipating shifts in population. The District Court enjoined appellants from conducting primary or general elections under the Feldman Plan, but that order was stayed pending appeal to this Court, and we noted probable jurisdiction, II Article I, 2, establishes a "high standard of justice and common sense" for the apportionment of congressional districts: "equal representation for equal numbers of people." Precise mathematical equality, however, may be impossible to achieve in an imperfect world; therefore the "equal representation" standard is enforced only to the extent of requiring that districts be apportioned to achieve population equality "as nearly as is practicable." See at 7-8, As we explained further in : "[T]he `as nearly as practicable' standard requires that the State make a good-faith effort to achieve precise mathematical equality. See Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small." -531. Article I, 2, therefore, "permits only the limited population variances which are
|
Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
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2, therefore, "permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Accord, Thus two basic questions shape litigation over population deviations in state legislation apportioning congressional districts. First, the court must consider whether the population differences among districts could have been reduced or eliminated altogether by a good-faith effort to draw districts of equal population. Parties challenging apportionment legislation *731 must bear the burden of proof on this issue, and if they fail to show that the differences could have been avoided the apportionment scheme must be upheld. If, however, the plaintiffs can establish that the population differences were not the result of a good-faith effort to achieve equality, the State must bear the burden of proving that each significant variance between districts was necessary to achieve some legitimate goal. ; cf. III Appellants' principal argument in this case is addressed to the first question described above. They contend that the Feldman Plan should be regarded per se as the product of a good-faith effort to achieve population equality because the maximum population deviation among districts is smaller than the predictable undercount in available census data. A squarely rejected a nearly identical argument. "The whole thrust of the `as nearly as practicable' approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular " ; see and 792-793. Adopting any standard other than population equality, using the best census data available, see would subtly erode the Constitution's ideal of equal representation. If state legislators knew that a certain de minimis level of population differences was acceptable, they would doubtless strive to achieve that level rather than equality.[3] at *732 531. Furthermore, choosing a different standard would import a high degree of arbitrariness into the process of reviewing apportionment plans. In this case, appellants argue that a maximum deviation of approximately 0.7% should be considered de minimis. If we accept that argument, how are we to regard deviations of 0.8%, 0.95%, 1%, or 1.1%? Any standard, including absolute equality, involves a certain artificiality. As appellants point out, even the census data are not perfect, and the well-known restlessness of the American people means that population counts for particular localities are outdated long before they are completed. Yet problems with the data at hand apply equally to any population-based standard we could choose.[] As between two standards equality or something less than equality only the former reflects the aspirations of Art. I, 2. To accept the
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Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
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reflects the aspirations of Art. I, 2. To accept the legitimacy of unjustified, though small population deviations in this case would mean to reject the basic premise of and Wesberry. We decline appellants' invitation to go that far. The unusual rigor of their standard has been noted several times. Because of that rigor, we have required that absolute population equality be the paramount objective of apportionment only in the case of *733 congressional districts, for which the command of Art. I, 2, as regards the National Legislature outweighs the local interests that a State may deem relevant in apportioning districts for representatives to state and local legislatures, but we have not questioned the population equality standard for congressional districts. See, e. g., ; ; The principle of population equality for congressional districts has not proved unjust or socially or economically harmful in experience. Cf. ; B. The Nature of the Judicial Process 150 (1921). If anything, this standard should cause less difficulty now for state legislatures than it did when we adopted it in Wesberry. The rapid advances in computer technology and education during the last two decades make it relatively simple to draw contiguous districts of equal population and at the same time to further whatever secondary goals the State has.[5] Finally, to abandon unnecessarily a clear and oft-confirmed constitutional interpretation would impair our authority in other cases, Florida Dept. of ; (95) would implicitly open the door to a plethora of requests that we reexamine other rules that some may consider *7 burdensome, and would prejudice those who have relied upon the rule of law in seeking an equipopulous congressional apportionment in New Jersey, see Florida Nursing Home We thus reaffirm that there are no de minimis population variations, which could practicably be avoided, but which nonetheless meet the standard of Art. I, 2, without justification.[6] *735 B The sole difference between appellants' theory and the argument we rejected in is that appellants have proposed a de minimis line that gives the illusion of rationality and predictability: the "inevitable statistical imprecision of the census." They argue: "Where, as here, the deviation from ideal district size is less than the known imprecision of the census figures, that variation is the functional equivalent of zero." Brief for Appellants There are two problems with this approach. First, appellants concentrate on the extent to which the census systematically undercounts actual population a figure which is not known precisely and which, even if it were known, would not be relevant to this Second, the mere existence of statistical imprecision does not make
|
Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
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Second, the mere existence of statistical imprecision does not make small deviations among districts the functional equivalent of equality. In the District Court and before this Court, appellants rely exclusively on an affidavit of Dr. James Trussell, a Princeton University demographer. See App. 97-10. Dr. Trussell's carefully worded statement reviews various studies of the undercounts in the 1950, 1960, and 1970 decennial censuses, and it draws three important conclusions: (1) "the undercount in the 1980 census is likely to be above one percent"; (2) "all the evidence to date indicates that all places are not undercounted to the same extent, since the undercount rate has been shown to depend on race, sex, age, income, and education"; and (3) "[t]he distribution of the undercount in New Jersey is unknown, and I see no reason to believe that it would be uniformly spread over all municipalities." Assuming for purposes of argument that each of *736 these statements is correct, they do not support appellants' argument. In essence, appellants' one-percent benchmark is little more than an attempt to present an attractive de minimis line with a patina of scientific authority. Neither Dr. Trussell's statement nor any of appellants' other evidence specifies a precise level for the undercount in New Jersey, and Dr. Trussell's discussion of the census makes clear that it is impossible to develop reliable estimates of the undercount on anything but a nationwide scale. See His conclusion that the 1980 undercount is "likely to be above one percent" seems to be based on the undercounts in previous censuses and a guess as to how well new procedures adopted in 1980 to reduce the undercount would work. Therefore, if we accepted appellants' theory that the national undercount level sets a limit on our ability to use census data to tell the difference between the populations of congressional districts, we might well be forced to set that level far above one percent when final analyses of the 1980 census are completed.[7] As Dr. Trussell admits, the existence of a one-percent undercount would be irrelevant to population deviations among districts if the undercount were distributed evenly among districts. The undercount in the census affects the accuracy of the deviations between districts only to the extent that the undercount varies from district to district. For a one-percent undercount to explain a one-percent deviations between the census populations of two districts, the undercount in the smaller district would have to be approximately three times as large as the undercount in the larger *737 district.[8] It is highly unlikely, of course, that this condition holds true, especially
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Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
|
highly unlikely, of course, that this condition holds true, especially since appellants have utterly failed to introduce evidence showing that the districts were designed to compensate for the probable undercount. Dr. Trussell's affidavit states that the rate of undercounting may vary from municipality to municipality, but it does not discuss by how much it may vary, or to what extent those variations would be reflected at the district level, with many municipalities combined. Nor does the affidavit indicate that the factors associated with the rate of undercounting race, sex, age, etc. vary from district to district, or (more importantly) that the populations in the smaller districts reflect the relevant factors more than the populations in the larger districts.[9] As Dr. Trussell admits, the distribution of the undercount in New Jersey is completely unknown. Only by bizarre coincidence could the systematic undercount in the *738 census bear some statistical relationship to the districts drawn by the Feldman The census may systematically undercount population, and the rate of undercounting may vary from place to place. Those facts, however, do not render meaningless the differences in population between congressional districts, as determined by uncorrected census counts. To the contrary, the census data provide the only reliable albeit less than perfect indication of the districts' "real" relative population levels. Even if one cannot say with certainty that one district is larger than another merely because it has a higher census count, one can say with certainty that the district with a larger census count is more likely to be larger than the other district than it is to be smaller or the same size. That certainty is sufficient for decisionmaking. Cf. City of Furthermore, because the census count represents the "best population data available," see it is the only basis for good-faith attempts to achieve population equality. Attempts to explain population deviations on the basis of flaws in census data must be supported with a precision not achieved here. See C Given that the census-based population deviations in the Feldman Plan reflect real differences among the districts, it is clear that they could have been avoided or significantly reduced with a good-faith effort to achieve population equality. For that reason alone, it would be inappropriate to accept the Feldman Plan as "functionally equivalent" to a plan with districts of equal population. The District Court found that several other plans introduced in the 200th Legislature had smaller maximum deviations than the Feldman Cf. and n. 9. Appellants object that the alternative plans considered by the District Court were not comparable to
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Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
|
plans considered by the District Court were not comparable to the Feldman Plan because *739 their political character differed profoundly. See, e. g., App. 93-96 (affidavit of S. H. Woodson, Jr.,) (arguing that alternative plans failed to protect the interests of black voters in the Trenton and Camden areas). We have never denied that apportionment is a political process, or that state legislatures could pursue legitimate secondary objectives as long as those objectives were consistent with a good-faith effort to achieve population equality at the same time. Nevertheless, the claim that political considerations require population differences among congressional districts belongs more properly to the second level of judicial inquiry in these cases, see infra, at 70-71, in which the State bears the burden of justifying the differences with particularity. In any event, it was unnecessary for the District Court to rest its finding on the existence of alternative plans with radically different political effects. As in "resort to the simple device of transferring entire political subdivisions of known population between contiguous districts would have produced districts much closer to numerical equality." Starting with the Feldman Plan itself and the census data available to the legislature at the time it was enacted, see App. 23-, one can reduce the maximum population deviation of the plan merely by shifting a handful of municipalities from one district to another.[10]*70 See also -6; n. Thus the District Court did not err in finding that the plaintiffs had met their burden of showing that the Feldman Plan did not come as nearly as practicable to population equality. IV By itself, the foregoing discussion does not establish that the Feldman Plan is unconstitutional. Rather, appellees' success in proving that the Feldman Plan was not the product of a good-faith effort to achieve population equality means only that the burden shifted to the State to prove that the population deviations in its plan were necessary to achieve some legitimate state objective. demonstrates that we are willing to defer to state legislative policies, so long as they are consistent with constitutional norms, even if they require small differences in the population of congressional districts. See 12 U.S., at 795-797; cf. 56 U.S. 37 ; 31 U.S. 07, 1-15 Any number of consistently applied legislative policies might justify some variance, including, for instance, making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives. As long as the criteria are nondiscriminatory, see 36 U.S. 339 these are all legitimate objectives that on a proper showing could justify minor population deviations. See, e.
|
Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
|
a proper showing could justify minor population deviations. See, e. g., West Virginia Civil Liberties Union v. *71 Rockefeller, 398-00 ; cf. ; 38 U.S. 73, The State must, however, show with some specificity that a particular objective required the specific deviations in its plan, rather than simply relying on general assertions. The showing required to justify population deviations is flexible, depending on the size of the deviations, the importance of the State's interests, the consistency with which the plan as a whole reflects those interests, and the availability of alternatives that might substantially vindicate those interests yet approximate population equality more closely. By necessity, whether deviations are justified requires case-by-case attention to these factors. The possibility that a State could justify small variations in the census-based population of its congressional districts on the basis of some legitimate, consistently applied policy was recognized in itself. In that case, Missouri advanced the theory, echoed by JUSTICE WHITE in dissent, see post, at 771-772, that district-to-district differences in the number of eligible voters, or projected population shifts, justified the population deviations in that 39 U.S., at 5-535. We rejected its arguments not because those factors were impermissible considerations in the apportionment process, but rather because of the size of the resulting deviations and because Missouri "[a]t best made haphazard adjustments to a scheme based on total population," made "no attempt" to account for the same factors in all districts, and generally failed to document its findings thoroughly and apply them "throughout the State in a systematic, not an ad hoc, manner."[11] *72 The District Court properly found that appellants did not justify the population deviations in this At argument before the District Court and on appeal in this Court, appellants emphasized only one justification for the Feldman Plan's population deviations preserving the voting strength of racial minority groups.[12] They submitted affidavits from *73 Mayors Kenneth Gibson of Newark and Thomas Cooke of East Orange, discussing the importance of having a large majority of black voters in Newark's Tenth District, App. 86-92, as well as an affidavit from S. Howard Woodson, Jr., a candidate for Mayor of Trenton, comparing the Feldman Plan's treatment of black voters in the Trenton and Camden areas with that of the Reock Plan, See also The District Court found, however: "[Appellants] have not attempted to demonstrate, nor can they demonstrate, any causal relationship between the goal of preserving minority voting strength in the Tenth District and the population variances in the other districts. We find that the goal of preserving minority voting strength in the Tenth District
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Justice Brennan
| 1,983 | 13 |
majority
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Karcher v. Daggett
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https://www.courtlistener.com/opinion/110980/karcher-v-daggett/
|
goal of preserving minority voting strength in the Tenth District is not related in any way to the population deviations in the Fourth and Sixth Districts." Under the Feldman Plan, the largest districts are the Fourth and Ninth Districts, and the smallest are the Third and Sixth. See None of these districts borders on the Tenth, and only one the Fourth is even mentioned in appellants' discussions of preserving minority voting strength. Nowhere do appellants suggest that the large population of the Fourth District was necessary to preserve minority voting strength; in fact, the deviation between the Fourth District and other districts has the effect of diluting the votes of all residents of that district, including members of racial minorities, as compared with other districts with fewer minority voters. The record is completely silent on the relationship between preserving minority voting *7A strength and the small populations of the Third and Sixth Districts. Therefore, the District Court's findings easily pass the "clearly erroneous" test. V The District Court properly applied the two-part test of to New Jersey's apportionment of districts for the United States House of Representatives. It correctly held that the population deviations in the plan were not functionally equal as a matter of law, and it found that the plan was not a good-faith effort to achieve population equality using the best available census data. It also correctly rejected appellants' attempt to justify the population deviations as not supported by the evidence. The judgment of the District Court, therefore, is Affirmed. [Map of New Jersey Congressional Districts follows this page.]
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Justice Marshall
| 1,988 | 15 |
majority
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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In this case we must decide whether a Mississippi statute imposing a 15% penalty on parties who appeal unsuccessfully from a money judgment violates the Equal Protection Clause. I This action grows out of allegations that appellant Bankers Life and Casualty Company refused in bad faith to pay appellee Lloyd Crenshaw's insurance claim for loss of a limb. According to testimony at trial, appellee was injured on January 6, 1979, when a car alternator he was repairing rolled off his workbench and landed on his foot. Three days later, after the injury had not responded to home treatment, appellee went to the emergency room of the local Air Force base hospital. Hospital doctors prescribed a splint, crutches, and pain medication, and told appellee to return in a week. Appellee revisited the hospital three times over the next five days, each time complaining of continuing pain in his foot. By the last visit, appellee's foot had swollen and begun to turn blue, and the examining doctor recommended a surgery consultation. Appellee was admitted to the hospital, where, *74 on January 17, an Air Force general surgeon determined that a surgical amputation was necessary. The following day, appellee's leg was amputated below the knee. At the time of the amputation, appellee was insured under a group policy issued by appellant. The policy provided a $20,000 benefit for loss of limb due to accidental bodily injury. In April 1979, appellee submitted a claim under the policy. Appellant denied the claim. The apparent basis for the denial was an opinion of appellant's Medical Director, Dr. Nathaniel McParland, that the cause of the amputation was not appellee's accident but a pre-existing condition of arteriosclerosis, a degenerative vascular disease. Appellee responded to the company's denial by furnishing a statement signed by three doctors who treated him at the hospital. They stated that appellee's arteriosclerosis was " `an underlying condition and not the immediate cause of the gangrenous necrosis. The precipating [sic] event must be considered to be the trauma which initially brought him to the Emergency Room on 9 January.' " Dr. McParland and a company analyst concluded that this statement was inconsequential, and appellant adhered to its position that the arteriosclerosis was responsible for the loss of limb. Appellee persisted in his efforts to recover under the policy, eventually hiring an attorney, and appellant persisted in its intransigence. In its correspondence with appellee and his attorney, appellant repeatedly asserted that appellee had not suffered an injury as defined in the policy, that is, a " `bodily injury, causing the loss while this policy is in
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Justice Marshall
| 1,988 | 15 |
majority
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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`bodily injury, causing the loss while this policy is in force, directly and independently of all other causes and effected solely through an accidental bodily injury to the insured person.' " quoting letter of Apr. 8, 1980, from Wm. Herzau to appellee. In contemporaneous internal memoranda, however, appellant noted that notwithstanding the policy language, appellee was entitled to recovery under Mississippi law if his injury had " ` "aggravate[d], render[ed] *75 active, or set in motion a latent or dormant pre-existing physical condition or disease." ' " The memoranda also demonstrated that appellant knew its files were incomplete yet never attempted to obtain appellee's medical records, most notably his emergency room report, even though Mississippi law and internal company procedures required such efforts. After appellant again denied the claim on the ground that there was no evidence that appellee's " `injury caused this loss "directly and independently of all other causes," ' " see appellee brought this suit in Mississippi state court. His complaint requested $20,000 in actual damages, and, as amended, $1,635,000 in punitive damages for the tort of bad-faith refusal to pay an insurance claim. The jury awarded appellee the $20,000 provided by the policy and punitive damages of $1.6 million. The Mississippi Supreme Court affirmed the jury verdict without modification. It concluded that the punitive damages award was not excessive in light of appellant's financial worth and the degree of its wrongdoing. See Because the money judgment was affirmed without modification, a penalty of $243,000, or 15% of the judgment, was assessed against appellant and added to appellee's recovery in accordance with Mississippi's penalty statute. See (Supp. 1987). In its appeal to the Mississippi Supreme Court, appellant did not raise a federal constitutional challenge to the size of the punitive damages award.[1] Following the affirmance of the jury verdict, appellant filed a petition for rehearing. Appellant argued in the petition that "[t]he punitive damage verdict was clearly excessive, *76 not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles." App. to Juris. Statement 139a. An accompanying brief asserted that the punitive damages award violated "due process, equal protection, and other constitutional standards." at 151a. Appellant also filed a Motion to Correct Judgment in which it alleged that the 15% penalty under 11-3-23 "violat[ed] the rights of equal protection and due process of Bankers Life" guaranteed in the Federal and State Constitutions. App. to Juris. Statement 106a-107a. The Mississippi Supreme Court, without opinion, denied the petition for rehearing and overruled the Motion to Correct Judgment. II Appellant focuses most of its efforts in this
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| 1,988 | 15 |
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Bankers Life & Casualty Co. v. Crenshaw
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Judgment. II Appellant focuses most of its efforts in this appeal to challenging the punitive damages award of $1.6 million. It contends foremost that the award violates the Eighth Amendment's guarantee that "excessive fines [shall not be] imposed." Appellant argues first, that the Excessive Fines Clause applies to punitive damages awards rendered in civil cases, and second, that the particular award in this case was constitutionally excessive. In addition to its excessive fines claim, appellant challenges the punitive damages award in this case on the grounds that it violates the Due Process Clause and the Contract Clause. Although we noted probable jurisdiction as to all of the questions presented in appellant's jurisdictional statement, appellant's challenges to the size of the punitive damages award do not fall within our appellate jurisdiction. See 28 U.S. C. 1257(2). We therefore treat them as if contained in a petition for a writ of certiorari, and our unrestricted notation of probable jurisdiction of the appeal is to be understood as a grant of the writ as to these claims. See We conclude, however, that these claims were not raised and passed upon in state court, and we decline to reach them here. See ("The issue thus remains within our *77 certiorari jurisdiction, and we may, for good reason, even at this stage, decline to decide the merits of the issue, much as we would dismiss a writ of certiorari as improvidently granted"). Appellant maintains that it raised its various challenges to the size of the punitive damages award in its petition for rehearing before the Mississippi Supreme Court. In urging us to entertain the claims, appellant relies on our decision in in which we accepted certiorari jurisdiction of claims that were raised, but not passed upon, in the Mississippi Supreme Court on petition for rehearing. Hathorn would be apposite were we to conclude that appellant had adequately raised its claims on rehearing. But appellant's petition for rehearing alleged only that the punitive damages award "was clearly excessive, not reasonably related to any legitimate purpose, constitutes excessive fine, and violates constitutional principles." App. to Juris. Statement 139a. The vague appeal to constitutional principles does not preserve appellant's Contract Clause or due process claims. A party may not preserve a constitutional challenge by generally invoking the Constitution in state court and awaiting review in this Court to specify the constitutional provision it is relying upon. Cf. Appellant's reference to the excessiveness of the punitive damages award more colorably raises a cognizable constitutional challenge to the size of the award, one based on the Excessive Fines Clause of
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Justice Marshall
| 1,988 | 15 |
majority
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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the award, one based on the Excessive Fines Clause of the Eighth Amendment. But this language as well is too oblique to allow us to conclude that appellant raised before the Mississippi Supreme Court the federal claim it now urges us to resolve. As this Court stated in "[a]t the minimum there should be no doubt from the record that a * claim under a federal statute or the Federal Constitution was presented in the state courts and that those courts were apprised of the nature or substance of the federal claim at the time and in the manner required by the state law." Although the petition for rehearing alleges that the fine is excessive, it does not indicate that the fine is excessive as a constitutional matter, be it state or federal. It certainly does not identify the Excessive Fines Clause of the Eighth Amendment to the Federal Constitution as the source of appellant's claim. Indeed, the crucial language from appellant's petition contains no reference whatsoever to the Eighth Amendment, the Federal Constitution, or federal law. This failure to invoke the Federal Constitution is especially problematic in this case because the Mississippi Constitution contains its own Excessive Fines Clause. Miss. Const., Art. 3, 28. Thus, even if the Mississippi Supreme Court understood appellant to be offering a constitutional challenge, it may very well have taken that challenge to be anchored in the State Constitution. Cf. -498 ; We therefore conclude that appellant's Eighth Amendment challenge, like its other challenges to the size of the punitive damages award, was not properly raised below.[2] *79 Whether appellant's failure to raise these claims in the Mississippi courts deprives us of all power to review them under our certiorari jurisdiction is an unsettled question. As then JUSTICE REHNQUIST wrote for the Court in the cases have been somewhat inconsistent in their characterization of the "not pressed or passed upon below" rule. Early opinions seemed to treat the requirement as jurisdictional, whereas more recent cases clearly view the rule as merely a prudential restriction that does not pose an insuperable bar to our review. See We are not called on today to conclusively characterize the "not pressed or passed upon below" rule, however, because assuming that the rule is merely prudential, we believe that the more prudent course in this case is to decline to review appellant's claims. In determining whether to exercise jurisdiction over questions not properly raised below, the Court has focused on the policies that animate the "not pressed or passed upon below" rule. These policies are first, comity to the
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Justice Marshall
| 1,988 | 15 |
majority
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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upon below" rule. These policies are first, comity to the States, and second, a constellation of practical considerations, chief among which is our own need for a properly developed record on appeal. See at 500-. Because the chief issue appellant would have us resolve whether the Eighth Amendment's Excessive Fines Clause serves to limit punitive damages in state civil cases is a question of some moment and difficulty, these policies apply with special force. See ; 383 U. S., at -513 Our review of appellant's claim now would short-circuit a number of less intrusive, *80 and possibly more appropriate, resolutions: the Mississippi State Legislature might choose to enact legislation addressing punitive damages awards for bad-faith refusal to pay insurance claims;[3] failing that, the Mississippi state courts may choose to resolve the issue by relying on the State Constitution or on some other adequate and independent nonfederal ground; and failing that, the Mississippi Supreme Court will have its opportunity to decide the question of federal law in the first instance, while any ultimate review of the question that we might undertake will gain the benefit of a well-developed record and a reasoned opinion on the merits. We think it unwise to foreclose these possibilities, and therefore decline to address appellant's challenges to the size of the punitive damages award. III There remains appellant's challenge to Mississippi's "penalty statute," which requires unsuccessful appellants from money judgments, as well as from several other categories of judgments whose value may readily be determined, to pay an additional assessment of 15% of the judgment.[4] Appellant *81 argues that the penalty statute violates the Equal Protection Clause of the Fourteenth Amendment because it singles out appellants from money judgments, and because it penalizes all such appellants who are unsuccessful, regardless of the merit of their appeal. This claim is properly before us under our appellate jurisdiction because the Mississippi Supreme Court, in denying appellant's Motion to Correct Judgment, upheld the validity of 11-3-23 against appellant's federal constitutional claim. See 28 U.S. C. 1257(2). Under this Court's equal protection jurisprudence, Mississippi's statute is "presumed to be valid and will be sustained if the classification is rationally related to a legitimate state interest." The state interests assertedly served by the Mississippi statute were detailed by the Mississippi Supreme Court in So. 2d 268 The penalty statute, some version of which has been part of Mississippi law since 1857, "expresses the state's interest in discouraging frivolous appeals. It likewise expresses a bona fide interest in providing a measure of compensation for the successful appellee, compensation for his
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Justice Marshall
| 1,988 | 15 |
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Bankers Life & Casualty Co. v. Crenshaw
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measure of compensation for the successful appellee, compensation for his *82 having endured the slings and arrows of successful appellate litigation." In a similar vein, the statute protects the integrity of judgments by discouraging appellant-defendants from prolonging the litigation merely to "squeeze a favorable settlement out of an impecunious" appellee. Also, the penalty statute "tells the litigants that the trial itself is a momentous event, the centerpiece of the litigation, not just a first step weighing station en route to endless rehearings and reconsiderations." Finally, in part because it serves these other goals, the penalty statute furthers the State's interest in conserving judicial resources. The legitimacy of these state interests cannot seriously be doubted, and this Court has upheld statutes that serve similar interests. See, e. g., Life & Casualty Ins. ; see also, Louisville & Nashville R. 241 U.S. (Holmes, J.). Cf. (citation omitted). The statute therefore offends the Equal Protection Clause only if the legislative means that Mississippi has chosen are not rationally related to these legitimate interests. In arguing that 11-3-23 violates equal protection, appellant seeks to draw support from the Court's opinion in addressed the constitutionality of an Oregon statute that required tenants challenging eviction proceedings to post a bond of twice the amount of rent expected to accrue pending appellate review. The bond was forfeited to the landlord if the lower court decision was affirmed. We agreed with the appellants that the double-bond *83 requirement violated the Equal Protection Clause.[5] We noted that the requirement was "unrelated to actual rent accrued or to specific damage sustained by the landlord." Moreover, the requirement, which burdened only tenants, including tenants whose appeals were nonfrivolous, erected "a substantial barrier to appeal faced by no other civil litigant in Oregon." We therefore concluded that the requirement bore "no reasonable relationship to any valid state objective" and that it discriminated against the class of tenants appealing from adverse decisions in wrongful-detainer actions in an "arbitrary and irrational" fashion. As demonstrates, arbitrary and irrational discrimination violates the Equal Protection Clause under even our most deferential standard of review. Unlike the statute in however, Mississippi's penalty statute does not single out a class of appellants in an arbitrary and irrational fashion. First, whereas the statute in singled out the narrow class of defendant-tenants for discriminatory treatment, the sweep of 11-3-23 is far broader: the penalty applies both to plaintiffs and defendants, and it also applies to all money judgments as well as to a long list of judgments whose money value may readily be determined. See n. 6, infra. Second, and more
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Justice Marshall
| 1,988 | 15 |
majority
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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readily be determined. See n. 6, infra. Second, and more generally, there is a rational connection between the statute's objective and Mississippi's choice to impose a penalty only on appellants from money judgments or judgments the money value of which can readily be determined. If Mississippi wanted similarly to deter frivolous appeals from other kinds of judgments, it either would have to erect a fixed bond that bore no relation to the value of the underlying suit, or else it would have to *84 set appropriate penalties in each case using some kind of individualized procedure, which would impose a considerable cost in judicial resources, exactly what the statute aims to avoid. Mississippi instead has chosen a partial solution that will deter many, though not all, frivolous appeals without requiring a significant commitment of governmental resources. Appellants from money judgments, and from the other types of judgments delineated in the statute, are a rational target of this scheme because the value of their claims, and thus of a proportional penalty, may be readily computed without substantial judicial intervention. Cf. at The Constitution does not prohibit Mississippi from singling out a group of litigants that it rationally concludes is most likely to be deterred from bringing meritless claims at the least cost to the State. In addition, Mississippi's statute is less likely than was the statute in to discourage substantial appeals along with insubstantial ones. Because the penalty operates only after a judgment has been affirmed without modification, there is less risk than in of discouraging appellants who believe they have meritorious appeals but simply lack the funds to post a substantial bond during the appellate process.[6] And whereas the assessment in "automatically doubled the stakes," 405 U.S. the 15% penalty here is a relatively modest additional assessment. Cf. *85 Although Mississippi may not have succeeded in eliminating all danger of deterring meritorious claims, we cannot say that the residual danger is sufficient to render the statutory scheme irrational. In short, unlike the double-bond provision condemned in the means chosen in 11-3-23 are reasonably related to the achievement of the State's objectives of discouraging frivolous appeals, compensating appellees for the intangible costs of litigation, and conserving judicial resources. See It of course is possible that Mississippi might have enacted a statute that more precisely serves these goals and these goals only; as we frequently have explained, however, a state statute need not be so perfectly calibrated in order to pass muster under the rational-basis test. See, e. g., U.S. 93, We are satisfied that the means that the State has chosen
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Justice Marshall
| 1,988 | 15 |
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Bankers Life & Casualty Co. v. Crenshaw
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https://www.courtlistener.com/opinion/112069/bankers-life-casualty-co-v-crenshaw/
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are satisfied that the means that the State has chosen are "reasonably tailored to achieve [the State's legitimate] ends." at We therefore affirm the judgment of the Mississippi Supreme Court denying appellant's equal protection challenge to 11-3-23. It is so ordered. JUSTICE STEVENS and JUSTICE KENNEDY took no part in the consideration or decision of this case. JUSTICE WHITE, with whom JUSTICE SCALIA joins, concurring in part. I join Parts I and III of the Court's opinion but not Part II. I continue to believe that "the statute which gives us jurisdiction in this cause, 28 U.S. C. 1257(3), prevents us from deciding federal constitutional claims raised here for the first time on review of state-court decisions." Thus, I disagree with the Court's analysis under "prudential" *86 standards of appellant's preservation of its challenge to the punitive damages award here. Ante, -80. Ultimately, because the majority properly declines to address claims which I believe are not within this Court's jurisdiction, I concur in Part II's result, but not its reasoning. JUSTICE O'CONNOR, with whom JUSTICE SCALIA joins, concurring in part and concurring in the judgment.
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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This case presents the question whether federal courts may craft an exception to the full faith and credit statute, 28 U.S. C. 738, for claims brought under the Takings Clause of the Fifth Amendment. Petitioners, who own and operate a hotel in San Francisco, California (hereinafter City), initiated this litigation in response to the application of a city ordinance that required them to pay a $67,000 "conversion fee" in 996. After the California courts rejected petitioners' various state-law takings claims, they advanced in the Federal District Court a series of federal takings claims that depended on issues identical to those that had previously been resolved in the state-court *327 In order to avoid the bar of issue preclusion, petitioners asked the District Court to exempt from 738's reach claims brought under the Takings Clause of the Fifth Amendment. Petitioners' argument is predicated on Williamson County Regional Planning which held that takings claims are not ripe until a State fails "to provide adequate compensation for the taking." Unless courts disregard 738 in takings cases, petitioners argue, plaintiffs will be forced to litigate their claims in state court without any realistic possibility of ever obtaining review in a federal forum. The Ninth Circuit's rejection of this argument conflicted with the Second Circuit's decision in We granted certiorari to resolve the conflict,[] and now affirm the judgment of the Ninth Circuit. I The San Remo Hotel is a three-story, 62-unit hotel in the Fisherman's Wharf neighborhood in San Francisco. In December 906, shortly after the great earthquake and fire destroyed most of the City, the hotel then called the "New California Hotel" opened its doors to house dislocated individuals, immigrants, artists, and laborers. The City officially licensed the facility to operate as a hotel and restaurant in 96, and in 922 the hotel was given its current *328 name. When the hotel fell into financial difficulties and a "dilapidated condition" in the early 970's, Robert and Thomas Field purchased the facility, restored it, and began to operate it as a bed and breakfast inn. See San Remo Hotel, L. In 979, San Francisco's Board of Supervisors responded to "a severe shortage" of affordable rental housing for elderly, disabled, and low-income persons by instituting a moratorium on the conversion of residential hotel units into tourist units. San Francisco Residential Hotel Unit Conversion and Demolition Ordinance (hereinafter Hotel Conversion Ordinance or HCO) 4.3(a)-(g), App. to Pet. for Cert. 9a-97a. Two years later, the City enacted the first version of the Hotel Conversion Ordinance to regulate all future conversions. San Francisco Ordinance No. 330-8,
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Justice Stevens
| 2,005 | 16 |
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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to regulate all future conversions. San Francisco Ordinance No. 330-8, codified in 4. et seq. Under the 98 version of the HCO, a hotel owner could convert residential units into tourist units only by obtaining a conversion permit. And those permits could be obtained only by constructing new residential units, rehabilitating old ones, or paying an "in lieu" fee into the City's Residential Hotel Preservation Fund Account. See 4.2-4.3, App. to Pet. for Cert. 224a-23a. The City substantially strengthened the HCO in 990 by eliminating several exceptions that had existed in the 98 version and increasing the size of the "in lieu" fee hotel owners must pay when converting residential units. See 4 F.3d 09, The genesis of this protracted dispute lies in the 98 HCO's requirement that each hotel "file an initial unit usage report containing" the "number of residential and tourist units in the hotel[s] as of September 23, 979." 4.6(b)(), App. to Pet. for Cert. 206a. Jean Iribarren was operating the San Remo Hotel, pursuant to a lease from petitioners, when this requirement came into effect. Iribarren filed the initial usage report for the hotel, which erroneously reported *329 that all of the rooms in the hotel were "residential" units.[2] The consequence of that initial classification was that the City zoned the San Remo Hotel as "residential hotel" in other words, a hotel that consisted entirely of residential units. And that zoning determination ultimately meant that, despite the fact that the San Remo Hotel had operated in practice as a tourist hotel for years, 4 F. 3d, at 00, petitioners were required to apply for a conditional use permit to do business officially as a "tourist hotel," San Remo Hotel, L. 64, After the HCO was revised in 990, petitioners applied to convert all of the rooms in the San Remo Hotel into tourist use rooms under the relevant HCO provisions and requested a conditional use permit under the applicable zoning laws. In 993, the City Planning Commission granted petitioners' requested conversion and conditional use permit, but only after imposing several conditions, one of which included the requirement that petitioners pay a $67,000 "in lieu" fee.[3] Petitioners appealed, arguing that the HCO requirement was unconstitutional and otherwise improperly applied to their hotel. See at 66, 4 P. 3d, at 9. The City Board of Supervisors rejected petitioners' appeal on April 9, 993. *330 In March 993, petitioners filed for a writ of administrative mandamus in California Superior Court. That lay dormant for several years, and the parties ultimately agreed to stay that after petitioners filed for
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Justice Stevens
| 2,005 | 16 |
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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parties ultimately agreed to stay that after petitioners filed for relief in Federal District Court. Petitioners filed in federal court for the first time on May 4, 993. Petitioners' first amended complaint alleged four counts of due process (substantive and procedural) and takings (facial and as-applied)[4] violations under the Fifth and Fourteenth Amendments to the United States Constitution, one count seeking damages under Rev. Stat. 979, 42 U.S. C. 983, for those violations, and one pendent state-law claim. The District Court granted respondents summary judgment. As relevant to this the court found that petitioners' facial takings claim was untimely under the applicable statute of limitations, and that the as-applied takings claim was unripe under Williamson County, On appeal to the Court of Appeals for the Ninth Circuit, petitioners took the unusual position that the court should not decide their federal claims, but instead should abstain under Railroad Comm'n of (), because a return to state court could conceivably moot the remaining federal questions. See App. 67-68; see 4 F. 3d, at 0. The Court of Appeals obliged petitioners' request with respect to the facial challenge, a request that respondents apparently viewed as an "outrageous act of chutzpah." at 0. That claim, the court reasoned, *33 was "ripe the instant the 990 HCO was enacted," and appropriate for Pullman abstention principally because petitioners' "entire case" hinged on the propriety of the planning commission's zoning designation the precise subject of the pending state mandamus 4 F. 3d, at 0.[] The court, however, affirmed the District Court's determination that petitioners' as-applied takings claim the claim that the application of the HCO to the San Remo Hotel violated the Takings Clause was unripe. Because petitioners had failed to pursue an inverse condemnation in state court, they had not yet been denied just compensation as contemplated by Williamson 4 F. 3d, at 0. At the conclusion of the Ninth Circuit's opinion, the court appended a footnote stating that petitioners would be free to raise their federal takings claims in the California courts. If, however, they wanted to "retain [their] right to return to federal court for adjudication of [their] federal claim, [they] must make an appropriate reservation in state court."[6] That is precisely what petitioners attempted to do when they reactivated the dormant California case. Yet petitioners advanced more than just the claims on which the federal court had abstained, and phrased their state claims in language that sounded in the rules and standards established and refined by this Court's takings jurisprudence. Petitioners claimed, for instance, that "imposition of the fee `fails
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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Petitioners claimed, for instance, that "imposition of the fee `fails to substantially advance a legitimate government interest' and that `[t]he amount of the fee imposed is not roughly proportional to the impact' of the proposed tourist use of the San Remo Hotel." 27 Cal. 4th, at 66, 4 P. 3d, at 9[7] The state trial court dismissed petitioners' amended complaint, but the intermediate appellate court reversed. The court held that petitioners' claim that the payment of the "in lieu" fee effected a taking should have been evaluated under heightened scrutiny. Under more exacting scrutiny, the fee failed this Court's "essential nexus" and "rough proportionality" tests because, inter alia, it was based on the original flawed designation that the San Remo Hotel was an entirely "residential use" facility. See at 67-68, -97 (internal quotation marks omitted). The California Supreme Court reversed over the partial dissent of three justices.[8] The court initially noted that petitioners had reserved their federal causes of and had sought no relief for any violation of the Federal Constitution. n.[9] In the portion of its opinion discussing the Takings Clause of the California Constitution, however, the court noted that "we appear to have construed the clauses congruently." 4 P. 3d, at 00-0 (citing cases). Accordingly, despite the fact that petitioners sought relief only under California law, the state court decided to "analyze their takings claim under the *333 relevant decisions of both this court and the United States Supreme Court." Ib 4 P. 3d, at 0.[0] The principal constitutional issue debated by the parties was whether a heightened level of scrutiny applied to the claim that the housing replacement fee "`does not substantially advance legitimate state interests.'" (quoting 0 U.S. 003, 06 (992)). In resolving that debate the court focused on our opinions in 483 U.S. 82 (987), and 2 U.S. 374 (9). Rejecting petitioners' argument that heightened scrutiny should apply, the court emphasized the distinction between discretionary exs imposed by executive officials on an ad hoc basis and "`generally applicable zoning regulations'" involving "`legislative determinations.'" 4 P. 3d, at 02-04 (quoting, e. g., 2 U. S., at 38, 39, n. 8). The court situated the HCO within the latter category, reasoning that the ordinance relied upon fixed fees computed under a formula that is generally applicable to broad classes of property owners.[] The court concluded that the less demanding "reasonable relationship" test should apply to the HCO's monetary assessments, 27 Cal. 4th, at 67, 4 P. 3d, at 0. *334 Applying the "reasonable relationship" test, the court upheld the HCO on its face and as applied to
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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upheld the HCO on its face and as applied to petitioners. As to the facial challenge, the court concluded that the HCO's d conversion fees "bear a reasonable relationship to the loss of housing in the generality or great majority of cases." 4 P. 3d, at 07. With respect to petitioners' as-applied challenge, the court concluded that the conversion fee was reasonably based on the number of units designated for conversion, which itself was based on petitioners' own estimate that had been provided to the City in 98 and had remained unchallenged for years. and n. 7, 4 P. 3d, at 0-, and n. 7. The court therefore reversed the appellate court and reinstated the trial court's order dismissing petitioners' complaint. Petitioners did not seek a writ of certiorari from the California Supreme Court's decision in this Court. Instead, they returned to Federal District Court by filing an amended complaint based on the complaint that they had filed prior to invoking Pullman abstention.[2] The District Court held that petitioners' facial attack on the HCO was not only barred by the statute of limitations, but by the general rule of issue preclusion. See App. to Pet. for Cert. 8a-86a.[3]*33 The District Court reasoned that 28 U.S. C. 738 requires federal courts to give preclusive effect to any state-court judgment that would have preclusive effect under the laws of the State in which the judgment was rendered. Because California courts had interpreted the relevant substantive state takings law coextensively with federal law, petitioners' federal claims constituted the same claims that had already been resolved in state court. The Court of Appeals affirmed. The court rejected petitioners' contention that general preclusion principles should be cast aside whenever plaintiffs "must litigate in state court pursuant to Pullman and/or Williamson " 364 F.3d 088, 096 Relying on unambiguous Circuit precedent and the absence of any clearly contradictory decisions from this Court, the Court of Appeals found itself bound to apply general issue preclusion doctrine. Given that general issue preclusion principles governed, the only remaining question was whether the District Court properly applied that doctrine; the court concluded that it did. The court expressly rejected petitioners' contention "that California takings law is not coextensive with federal takings law," ib and held that the state court's application of the "reasonable relationship" test was an "`equivalent determination' of such claims under the federal takings clause," at 098.[4] We granted certiorari and now affirm. *336 II Article IV, of the United States Constitution demands that "Full Faith and Credit shall be given in each State to the public Acts,
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San Remo Hotel, LP v. City and County of San Francisco
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shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof." In 790, Congress responded to the Constitution's invitation by enacting the first version of the full faith and credit statute. See Act of May 26, 790, ch. Stat. 22.[] The modern version of the statute, 28 U.S. C. 738, provides that "judicial proceedings shall have the same full faith and credit in every court within the United States and its Territories and Possessions as they have by law or usage in the courts of such State" This statute has long been understood to encompass the doctrines of res judicata, or "claim preclusion," and collateral estoppel, or "issue preclusion." See -96 (980).[6] The general rule implemented by the full faith and credit statute that parties should not be permitted to relitigate issues that have been resolved by courts of competent jurisdiction predates the Republic.[7] It "has found its way into *337 every system of jurisprudence, not only from its obvious fitness and propriety, but because without it, an end could never be put to litigation." 6 Wheat. 09, 4 (82). This Court has explained that the rule "is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for, the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters properly put in issue and actually determined by them." Southern Pacific R. 68 U.S. (897). As this case is presented to us, under our limited grant of certiorari, we have only one narrow question to decide: whether we should create an exception to the full faith and credit statute, and the ancient rule on which it is based, in order to provide a federal forum for litigants who seek to advance federal takings claims that are not ripe until the entry of a final state judgment denying just compensation. See Williamson County,[8] *338 The essence of petitioners' argument is as follows: because no claim that a state agency has violated the federal Takings Clause can be heard in federal court until the property owner has "been denied just
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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federal court until the property owner has "been denied just compensation" through an available state compensation procedure, "federal courts [should be] required to disregard the decision of the state court" in order to ensure that federal takings claims can be "considered on the merits in federal court." See Brief for Petitioners 8, 4. Therefore, the argument goes, whenever plaintiffs reserve their claims under 37 U.S. 4 (964), federal courts should review the reserved federal claims de novo, regardless of what issues the state court may have decided or how it may have decided them. We reject petitioners' contention. Although petitioners were certainly entitled to reserve some of their federal claims, as we shall explain, England does not support their erroneous expectation that their reservation would fully negate the preclusive effect of the state-court judgment with respect to any and all federal issues that might arise in the future federal litigation. Federal courts, moreover, are not free to disregard 28 U.S. C. 738 simply to guarantee that all takings plaintiffs can have their day in federal court. We turn first to England. III England involved a group of plaintiffs who had graduated from chiropractic school, but sought to practice in Louisiana without complying with the educational requirements of the State's Medical Practice 37 U. S., at 42. They filed suit in federal court challenging the constitutionality of the The District Court invoked Pullman abstention and stayed the proceedings to enable the Louisiana courts to *339 decide a preliminary and essential question of state law namely, whether the state statute applied at all to chiropractors. 37 U. S., at 43.[9] The state court, however, reached beyond the state-law question and held not only that the statute applied to the plaintiffs but that its application was consistent with the Fourteenth Amendment to the Federal Constitution. The Federal District Court then dismissed the federal without addressing the merits of the federal claim. On appeal, we held that when a federal court abstains from deciding a federal constitutional issue to enable the state courts to address an antecedent state-law issue, the plaintiff may reserve his right to return to federal court for the disposition of his federal at In that case, the antecedent state issue requiring abstention was distinct from the reserved federal issue. See at 48-. Our discussion of the "typical case" in which reservations of federal issues are appropriate makes clear that our holding was limited to cases that are fundamentally distinct from petitioners'. "Typical" England cases generally involve federal constitutional challenges to a state statute that can be avoided if a
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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to a state statute that can be avoided if a state court construes the statute in a particular manner.[20] In such cases, the purpose of abstention is not to afford state courts an opportunity to adjudicate an issue that is functionally identical to the federal question. To the contrary, the purpose of Pullman abstention in such cases is to avoid resolving the federal question by encouraging a state-law determination that may moot the federal controversy. *340 See 37 U. S., at 46-47, and n. 7.[2] Additionally, our opinion made it perfectly clear that the effective reservation of a federal claim was dependent on the condition that plaintiffs take no to broaden the scope of the state court's review beyond decision of the antecedent state-law issue.[22] Our holding in England does not support petitioners' attempt to relitigate issues resolved by the California courts. With respect to petitioners' facial takings claims, the Court of Appeals invoked Pullman abstention after determining that a ripe federal question existed namely, "the facial takings challenge to the 990 HCO." 4 F. 3d, at 0.[23] It did so because "`land use planning is a sensitive area of social policy'" and because petitioners' pending state mandamus had the potential of mooting their facial challenge to the HCO by overturning the City's original classification of the San Remo Hotel as a "residential" property. Thus, petitioners were entitled to insulate from preclusive effect one federal issue their facial constitutional challenge *34 to the HCO while they returned to state court to resolve their petition for writ of Petitioners, however, chose to advance broader issues than the limited issues contained within their state petition for writ of administrative mandamus on which the Ninth Circuit relied when it invoked Pullman abstention. In their state petitioners advanced not only their request for a writ of administrative 27 Cal. 4th, at 63, 4 P. 3d, at 93, but their various claims that the HCO was unconstitutional on its face and as applied for () its failure to substantially advance a legitimate interest, (2) its lack of a nexus between the required fees and the ultimate objectives sought to be achieved via the ordinance, and (3) its imposition of an undue economic burden on individual property owners. 4 P. 3d, at 06-09. By broadening their state beyond the mandamus petition to include their "substantially advances" claims, petitioners effectively asked the state court to resolve the same federal issues they asked it to reserve. England does not support the exercise of any such right. Petitioners' as-applied takings claims fare no better. As an
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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right. Petitioners' as-applied takings claims fare no better. As an initial matter, the Court of Appeals did not abstain with respect to those Instead, the court found that they were unripe under Williamson The court therefore affirmed the District Court's dismissal of those 4 F. 3d, at 06. Unlike their "substantially advances" claims, petitioners' as-applied claims were never properly before the District Court, and there was no reason to expect that they could be relitigated in full if advanced in the state proceedings. See 4 U. S., at 0, n. 7. In short, our opinion in England does not support petitioners' attempt to circumvent 738. IV Petitioners' ultimate submission, however, does not rely on England alone. Rather, they argue that federal courts simply should not apply ordinary preclusion rules to state-court *342 judgments when a case is forced into state court by the ripeness rule of Williamson For support, petitioners rely on the Court of Appeals for the Second Circuit's decision in Santini, 342 F. 3d, at 30. In Santini, the Second Circuit held that parties "who litigate state-law takings claims in state court involuntarily" pursuant to Williamson County cannot be precluded from having those very claims resolved "by a federal court." 342 F. 3d, at 30. The court did not rest its decision on any provision of the federal full faith and credit statute or our cases construing that law. Instead, the court reasoned that "[i]t would be both ironic and unfair if the very procedure that the Supreme Court required [plaintiffs] to follow before bringing a Fifth Amendment takings claim precluded [them] from ever bringing a Fifth Amendment takings claim." We find this reasoning unpersuasive for several reasons. First, both petitioners and Santini ultimately depend on an assumption that plaintiffs have a right to vindicate their federal claims in a federal forum. We have repeatedly held, to the contrary, that issues actually decided in valid state-court judgments may well deprive plaintiffs of the "right" to have their federal claims relitigated in federal court. See, e. g., 46 U.S. 7, (9); 4 U. S., at 03-04. This is so even when the plaintiff would have preferred not to litigate in state court, but was required to do so by statute or prudential rules. See at 04. The relevant question in such cases is not whether the plaintiff has been afforded access to a federal forum; rather, the question is whether the state court actually decided an issue of fact or law that was necessary to its judgment. In the plaintiff, Willie McCurry, invoked the Fourth and Fourteenth Amendments in
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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plaintiff, Willie McCurry, invoked the Fourth and Fourteenth Amendments in an unsuccessful attempt to suppress evidence in a state criminal trial. After he was convicted, he sought to remedy his alleged constitutional violation *343 by bringing a suit for damages under 42 U.S. C. 983 against the officers who had entered his home. Relying on "`the special role of federal courts in protecting civil rights'" and the fact that 983 provided the "only route to a federal forum," the Court of Appeals held that McCurry was entitled to a federal trial unencumbered by collateral 4 U. S., at 93. We rejected that argument emphatically. "The actual basis of the Court of Appeals' holding appears to be a generally framed principle that every person asserting a federal right is entitled to one unencumbered opportunity to litigate that right in a federal district court, regardless of the legal posture in which the federal claim arises. But the authority for this principle is difficult to discern. It cannot lie in the Constitution, which makes no such guarantee, but leaves the scope of the jurisdiction of the federal district courts to the wisdom of Congress. And no such authority is to be found in 983 itself There is, in short, no reason to believe that Congress intended to provide a person claiming a federal right an unrestricted opportunity to relitigate an issue already decided in state court simply because the issue arose in a state proceeding in which he would rather not have been engaged at all." at 03-04[24] As in we are presently concerned only with issues actually decided by the state court that are dispositive of federal claims raised under 983. And, as in it *344 is clear that petitioners would have preferred not to have been forced to have their federal claims resolved by issues decided in state court. Unfortunately for petitioners, it is entirely unclear why their preference for a federal forum should matter for constitutional or statutory purposes. The only distinction between this case and that is possibly relevant is the fact that petitioners here originally invoked the jurisdiction of a Federal District Court, which abstained on Pullman grounds while petitioners returned to state court. But petitioners' as-applied takings claims were never properly before the District Court because they were unripe. And, as we have already explained, the Court of Appeals invoked Pullman abstention only with respect to petitioners' "substantially advances" takings challenge, which petitioners then gratuitously presented to the state court. At a bare minimum, with respect to the facial takings claim, petitioners were "in an offensive posture
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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the facial takings claim, petitioners were "in an offensive posture in [their] state-court proceeding, and could have proceeded first in federal court had [they] wanted to litigate [their "substantially advances"] federal claim in a federal forum." Migra, 46 U. S., at 8, n. 7. Thus, the only distinction between this case and is a distinction of no relevant significance. The second reason we find petitioners' argument unpersuasive is that it assumes that courts may simply create exceptions to 28 U.S. C. 738 wherever courts deem them appropriate. Even conceding, arguendo, the laudable policy goal of making federal forums available to deserving litigants, we have expressly rejected petitioners' view. "Such a fundamental departure from traditional rules of preclusion, enacted into federal law, can be justified only if plainly stated by Congress." 46 U.S. 46, 48 (982). Our cases have therefore made plain that "an exception to 738 will not be recognized unless a later statute contains an express or implied partial repeal." *34 at 468 (citing 4 U. S., at 99). Even when the plaintiff's resort to state court is involuntary and the federal interest in denying finality is robust, we have held that Congress "must `clearly manifest' its intent to depart from 738." 46 U. S., at 477. The same concerns animate our decision here. Congress has not expressed any intent to exempt from the full faith and credit statute federal takings Consequently, we apply our normal assumption that the weighty interests in finality and comity trump the interest in giving losing litigants access to an additional appellate tribunal. As we explained in Federated Department Stores, 42 U.S. 3 (98): "[W]e do not see the grave injustice which would be done by the application of accepted principles of res judicata. `Simple justice' is achieved when a complex body of law developed over a period of years is evenhandedly applied. The doctrine of res judicata serves vital public interests beyond any individual judge's ad hoc determination of the equities in a particular case. There is simply `no principle of law or equity which sanctions the rejection by a federal court of the salutary principle of res judicata.'" at 40 (quoting (6)). Third, petitioners have overstated the reach of Williamson County throughout this litigation. Petitioners were never required to ripen the heart of their complaint the claim that the HCO was facially invalid because it failed to substantially advance a legitimate state interest in state court. See 03 U.S. 9, 34 (992). Petitioners therefore could have raised most of their facial takings challenges, which by their nature requested relief distinct
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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facial takings challenges, which by their nature requested relief distinct from the provision of "just compensation," directly *346 in federal court.[2] Alternatively, petitioners had the option of reserving their facial claims while pursuing their as-applied claims along with their petition for writ of administrative mandamus. Petitioners did not have the right, however, to seek state review of the same substantive issues they sought to reserve. The purpose of the England reservation is not to grant plaintiffs a second bite at the apple in their forum of choice. With respect to those federal claims that did require ripening, we reject petitioners' contention that Williamson County forbids plaintiffs from advancing their federal claims in state courts. The requirement that aggrieved property owners must seek "compensation through the procedures the State has provided for doing so," 473 U. S., at does not preclude state courts from hearing simultaneously a plaintiff's request for compensation under state law and the claim that, in the alternative, the denial of compensation would violate the Fifth Amendment of the Federal Constitution. Reading Williamson County to preclude plaintiffs from raising such claims in the alternative would erroneously interpret our cases as requiring property owners to "resort to piecemeal litigation or otherwise unfair procedures." MacDonald, Sommer & 30, n. 7 (986). It is hardly a radical notion to recognize that, as a practical matter, a significant number of plaintiffs will necessarily litigate their federal takings claims in state courts. It was settled well before Williamson County that "a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a *347 final decision regarding the application of the regulations to the property at issue." 473 U. S., at 86. As a consequence, there is scant precedent for the litigation in federal district court of claims that a state agency has taken property in violation of the Fifth Amendment's takings clause. To the contrary, most of the cases in our takings jurisprudence, including nearly all of the cases on which petitioners rely, came to us on writs of certiorari from state courts of last resort.[26] Moreover, this is not the only area of law in which we have recognized limits to plaintiffs' ability to press their federal claims in federal courts. See, e. g., Fair Assessment in Real Estate Assn., 44 U.S. 00, 6 (98) (holding that taxpayers are "barred by the principle of comity from asserting 983 s against the validity of state tax systems in federal courts"). State courts are fully competent
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Justice Stevens
| 2,005 | 16 |
majority
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San Remo Hotel, LP v. City and County of San Francisco
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https://www.courtlistener.com/opinion/799978/san-remo-hotel-lp-v-city-and-county-of-san-francisco/
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tax systems in federal courts"). State courts are fully competent to adjudicate constitutional challenges to local land-use decisions. Indeed, state courts undoubtedly have more experience than federal courts do in resolving the complex factual, technical, and legal questions related to zoning and land-use regulations. At base, petitioners' claim amounts to little more than the concern that it is unfair to give preclusive effect to state-court proceedings that are not chosen, but are instead required in order to ripen federal takings Whatever the merits of that concern may be, we are not free to disregard the full faith and credit statute solely to preserve the availability of a federal forum. The Court of Appeals was correct to decline petitioners' invitation to ignore the requirements *348 of 28 U.S. C. 738. The judgment of the Court of Appeals is therefore affirmed. It is so ordered CHIEF JUSTICE REHNQUIST, with whom JUSTICE O'CONNOR, JUSTICE KENNEDY, and JUSTICE THOMAS join, concurring in the judgment.
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Justice Stevens
| 1,977 | 16 |
concurring
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Nashville Gas Co. v. Satty
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https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/
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Petitioner enforces two policies that treat pregnant employees less favorably than other employees who incur a temporary disability. First, they are denied seniority benefits during their absence from work and thereafter; second, they are denied sick pay during their absence. The Court holds that the former policy is unlawful whereas the latter is lawful. I concur in the Court's judgment, but because I believe that its explanation of the legal distinction between the two policies may engender some confusion among those who must make compliance decisions on a day-to-day basis, I advance a separate, and rather pragmatic, basis for reconciling the two parts of the decision with each other and with General Electric The general problem is to decide when a company policy which attaches a special burden to the risk of absenteeism caused by pregnancy is a prima facie violation of the statutory prohibition against sex discrimination. The answer "always," which I had thought quite plainly correct,[1] is foreclosed by the Court's holding in Gilbert. The answer "never" would seem *154 to be dictated by the Court's view that a discrimination against pregnancy is "not a gender-based discrimination at all."[2] The Court has, however, made it clear that the correct answer is "sometimes." Even though a plan which frankly and unambiguously discriminates against pregnancy is "facially neutral," the Court will find it unlawful if it has a "discriminatory effect."[3] The question, then, is how to identify this discriminatory effect. Two possible answers are suggested by the Court. The Court seems to rely on (a) the difference between a benefit and a burden, and (b) the difference between 703 (a) (2) and 703 (a) (1). In my judgment, both of these differences are illusory.[4] I agree with the Court that the effect of the respondent's *155 seniority plan is significantly different from that of the General Electric disability plan in Gilbert, but I suggest that the difference may be described in this way: Although the Gilbert Court was unwilling to hold that discrimination against pregnancyas compared with other physical disabilitiesis discrimination on account of sex, it may nevertheless be true that discrimination against pregnant or formerly pregnant employeesas compared with other employeesdoes constitute sex discrimination. This distinction may be pragmatically expressed in terms of whether the employer has a policy which adversely affects a woman beyond the term of her pregnancy leave. Although the opinion in Gilbert characterizes as "facially neutral" a company policy which differentiates between an absence caused by pregnancy and an absence caused by illness, the factual context of Gilbert limits the reach of that broad characterization.
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Justice Stevens
| 1,977 | 16 |
concurring
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Nashville Gas Co. v. Satty
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https://www.courtlistener.com/opinion/109753/nashville-gas-co-v-satty/
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context of Gilbert limits the reach of that broad characterization. Under the Court's reasoning, the disability plan in Gilbert did not discriminate against pregnant employees or formerly pregnant employees while they were working for the company. If an employee, whether pregnant or nonpregnant, contracted the measles, he or she would receive disability benefits; moreover, an employee returning from maternity leave would also receive those benefits. On the other hand, pregnancy, or an illness occurring while absent on maternity leave, was not covered.[5] During that period of maternity leave, the pregnant woman was temporarily cut off from the benefits extended by the company's plan. At all other times, the woman was treated the same as other employees in terms of her eligibility for the plan's benefits. *156 The Company's seniority plan in this case has a markedly different effect. In attempting to return to work, the formerly pregnant woman is deprived of all previously accumulated seniority. The policy affects both her ability to re-enter the work force, and her compensation when she does return.[6] The Company argues that these effects are permissible because they flow from its initial decision to treat pregnancy as an unexcused absence. But this argument misconceives the scope of the protection afforded by Gilbert to such initial decisions. For the General Electric plan did not attach any consequences to the condition of pregnancy that extended beyond the period of maternity leave. Gilbert allowed the employer to treat pregnancy leave as a temporal gap in the full employment status of a woman. During that period, the employer may treat the employee in a manner consistent with the determination that pregnancy is not an illness.[7] In this case, however, the Company's seniority policy has an adverse impact on the employee's status after pregnancy leave is terminated. The formerly pregnant person is permanently disadvantaged as compared to the rest of the work force. And since the persons adversely affected by this policy constitute an exclusively female class, the Company's plan has an obvious discriminatory effect.[8] *157 Under this analysis, it is clear that petitioner's seniority rule discriminating against formerly pregnant employees is invalid. It is equally clear that the denial of sick pay during maternity leave is consistent with the Gilbert rationale, since the Company was free to withhold those benefits during that period.[9] As is evident from my dissent in Gilbert, I would prefer to decide this case on a simpler rationale. Since that preference is foreclosed by Gilbert, I concur in the Court's judgment on the understanding that as the law now stands, although some discrimination against pregnancyas
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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https://www.courtlistener.com/opinion/111744/posadas-de-puerto-rico-associates-v-tourism-co-of-pr/
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In this case we address the facial constitutionality of a Puerto Rico statute and regulations restricting advertising of casino gambling aimed at the residents of Puerto Rico. Appellant Posadas de Puerto Rico Associates, doing business in Puerto Rico as Condado Holiday Inn Hotel and Sands Casino, filed suit against appellee Tourism Company of Puerto Rico in the Superior Court of Puerto Rico, San Juan Section. Appellant *331 sought a declaratory judgment that the statute and regulations, both facially and as applied by the Tourism Company, impressibly suppressed commercial speech in violation of the First Amendment and the equal protection and due process guarantees of the United States Constitution.[1] The Superior Court held that the advertising restrictions had been unconstitutionally applied to appellant's past conduct. But the court adopted a narrowing construction of the statute and regulations and held that, based on such a construction, both were facially constitutional. The Supreme Court of Puerto Rico dismissed an appeal on the ground that it "d[id] not present a substantial constitutional question." We postponed consideration of the question of jurisdiction until the hearing on the merits. We now hold that we have jurisdiction to hear the appeal, and we affirm the decision of the Supreme Court of Puerto Rico with respect to the facial constitutionality of the advertising restrictions. In 1948, the Puerto Rico Legislature legalized certain forms of casino gambling. The Games of Chance Act of 1948, Act No. 221 of May 15, 1948 (Act), authorized the playing of roulette, dice, and card games in licensed "gambling rooms." 2, codified, as amended, at P. R. Laws Ann., Tit. 15, 71 Bingo and slot machines were later added to the list of authorized games of chance under the Act. See Act of June 7, 1948, No. 21, 1 (bingo); Act of July 30, 1974, No. 2, pt. 2, 2 (slot machines). The legislature's intent was set forth in the Act's Statement of Motives: *332 "The purpose of this Act is to contribute to the development of tourism by means of the authorization of certain games of chance which are customary in the recreation places of the great tourist centers of the world, and by the establishment of regulations for and the strict surveillance of said games by the government, in order to ensure for tourists the best possible safeguards, while at the same time opening for the Treasurer of Puerto Rico an additional source of income." Games of Chance Act of 1948, Act No. 221 of May 15, 1948, 1. The Act also provided that "[n]o gambling room shall be permitted to advertise
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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https://www.courtlistener.com/opinion/111744/posadas-de-puerto-rico-associates-v-tourism-co-of-pr/
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provided that "[n]o gambling room shall be permitted to advertise or otherwise offer their facilities to the public of Puerto Rico." 8, codified, as amended, at P. R. Laws Ann., Tit. 15, 77 The Act authorized the Economic Development Administration of Puerto Rico to issue and enforce regulations implementing the various provisions of the Act. See 7(a), codified, as amended, at P. R. Laws Ann., Tit. 15, 76a Appellee Tourism Company of Puerto Rico, a public corporation, assumed the regulatory powers of the Economic Development Administration under the Act in 1970. See Act of June 18, 1970, No. 10, 17, codified at P. R. Laws Ann., Tit. 23, 671p The two regulations at issue in this case were originally issued in 1957 for the purpose of implementing the advertising restrictions contained in 8 of the Act. Regulation 76-218 basically reiterates the language of 8. See 15 R. & R. P. R. 76-218 Regulation 76a-1(7), as amended in provides in pertinent part: "No concessionaire, nor his agent or employee is authorized to advertise the gambling parlors to the public in Puerto Rico. The advertising of our games of chance is hereby authorized through newspapers, magazines, radio, television and other publicity media outside Puerto Rico subject to the prior editing and approval by *333 the Tourism Development Company of the advertisement to be submitted in draft to the Company." 15 R. & R. P. R. 76a-1(7) In 1975, appellant Posadas de Puerto Rico Associates, a partnership organized under the laws of Texas, obtained a franchise to operate a gambling casino and began doing business under the name Condado Holiday Inn Hotel and Sands Casino.[2] In 1978, appellant was twice fined by the Tourism Company for violating the advertising restrictions in the Act and implementing regulations. Appellant protested the fines in a series of letters to the Tourism Company. On February 16, 1979, the Tourism Company issued to all casino franchise holders a memorandum setting forth the following interpretation of the advertising restrictions: "This prohibition includes the use of the word `casino' in matchbooks, lighters, envelopes, inter-office and/or external correspondence, invoices, napkins, brochures, menus, elevators, glasses, plates, lobbies, banners, flyers, paper holders, pencils, telephone books, directories, bulletin boards or in any hotel dependency or object which may be accessible to the public in Puerto Rico." App. 7a. Pursuant to this administrative interpretation, the Tourism Company assessed additional fines against appellant. The Tourism Company ordered appellant to pay the outstanding total of $1,500 in fines by March 18, 1979, or its gambling franchise would not be renewed. Appellant continued to protest the fines, but
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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https://www.courtlistener.com/opinion/111744/posadas-de-puerto-rico-associates-v-tourism-co-of-pr/
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not be renewed. Appellant continued to protest the fines, but ultimately paid them without seeking judicial review of the decision of the Tourism Company. In July 1981, appellant was again fined for violating the advertising restrictions. Faced with another threatened nonrenewal *334 of its gambling franchise, appellant paid the $500 fine under protest.[3] Appellant then filed a declaratory judgment action against the Tourism Company in the Superior Court of Puerto Rico, San Juan Section, seeking a declaration that the Act and implementing regulations, both facially and as applied by the Tourism Company, violated appellant's commercial speech rights under the United States Constitution. The Puerto Rico Secretary of Justice appeared for the purpose of defending the constitutionality of the statute and regulations. After a trial, the Superior Court held that "[t]he administrative interpretation and application has [sic] been capricious, arbitrary, erroneous and unreasonable, and has [sic] produced absurd results which are contrary to law." App. to Juris. Statement 29b. The court therefore determined that it must "override the regulatory deficiency to save the constitutionality of the statute." The court reviewed the history of casino gambling in Puerto Rico and concluded: ". We assume that the legislator was worried about the participation of the residents of Puerto Rico on what on that date constituted an experiment Therefore, he prohibited the gaming rooms from announcing themselves or offering themselves to the public which we reasonably infer are the bona fide residents of Puerto Rico. [W]hat the legislator foresaw and prohibited was the invitation to play at the casinos through publicity campaigns or advertising in Puerto Rico addressed to the resident of Puerto Rico. He wanted to protect him." at 32b. Based on this view of the legislature's intent, the court issued a narrowing construction of the statute, declaring that "the *335 only advertisement prohibited by the law originally is that which is contracted with an advertising agency, for consideration, to attract the resident to bet at the dice, card, roulette and bingo tables." at 33b-34b. The court also issued the following narrowing construction of Regulation 76a-1(7): ". Advertisements of the casinos in Puerto Rico are prohibited in the local publicity media addressed to inviting the residents of Puerto Rico to visit the casinos. "We hereby allow, within the jurisdiction of Puerto Rico, advertising by the casinos addressed to tourists, provided they do not invite the residents of Puerto Rico to visit the casino, even though said announcements may incidentally reach the hands of a resident. Within the ads of casinos allowed by this regulation figure, for illustrative purposes only, advertising distributed or
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
|
https://www.courtlistener.com/opinion/111744/posadas-de-puerto-rico-associates-v-tourism-co-of-pr/
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this regulation figure, for illustrative purposes only, advertising distributed or placed in landed airplanes or cruise ships in jurisdictional waters and in restricted areas to travelers only in the international airport and the docks where tourist cruise ships arrive since the principal objective of said announcements is to make the tourist in transit through Puerto Rico aware of the availability of the games of chance as a tourist amenity; the ads of casinos in magazines for distribution primarily in Puerto Rico to the tourist, including the official guide of the Tourism Company `Que Pasa in Puerto Rico' and any other tourist facility guide in Puerto Rico, even though said magazines may be available to the residents and in movies, television, radio, newspapers and trade magazines which may be published, taped, or filmed in the exterior for tourism promotion in the exterior even though they may be exposed or incidentally circulated in Puerto Rico. For example: an advertisement in the New York Times, an advertisement in CBS which reaches us through Cable TV, whose main objective is to reach the potential tourist. *336 "We hereby authorize advertising in the mass communication media of the country, where the trade name of the hotel is used even though it may contain a reference to the casino provided that the word casino is never used alone nor specified. Among the announcements allowed, by way of illustration, are the use of the trade name with which the hotel is identified for the promotion of special vacation packages and activities at the hotel, in invitations, `billboards,' bulletins and programs or activities sponsored by the hotel. The use of the trade name, including the reference to the casino is also allowed in the hotel's facade, provided the word `casino' does not exceed in proportion the size of the rest of the name, and the utilization of lights and colors will be allowed if the rest of the laws regarding this application are complied with; and in the menus, napkins, glasses, tableware, glassware and other items used within the hotel, as well as in calling cards, envelopes and letterheads of the hotel and any other use which constitutes a means of identification. "The direct promotion of the casinos within the premises of the hotels is allowed. In-house guests and clients may receive any type of information and promotion regarding the location of the casino, its schedule and the procedure of the games as well as magazines, souvenirs, stirrers, matchboxes, cards, dice, chips, T-shirts, hats, photographs, postcards and similar items used by the tourism centers of the world. "Since
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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https://www.courtlistener.com/opinion/111744/posadas-de-puerto-rico-associates-v-tourism-co-of-pr/
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items used by the tourism centers of the world. "Since a clausus enumeration of this regulation is unforeseeable, any other situation or incident relating to the legal restriction must be measured in light of the public policy of promoting tourism. If the object of the advertisement is the tourist, it passes legal scrutiny." at 38b-40b. The court entered judgment declaring that appellant's constitutional rights had been violated by the Tourism Company's past application of the advertising restrictions, but that *337 the restrictions were not facially unconstitutional and could be sustained, as "modified by the guidelines issued by this Court on this date."[4] at 42b. The Supreme Court of Puerto Rico dismissed appellant's appeal of the Superior Court's decision on the ground that it "d[id] not present a substantial constitutional question." at 1a. See P. R. Laws Ann., Tit. 4, 37(a) (1978). Treating appellant's submission as a petition for a writ of review, see 37(b), (g), the Supreme Court denied the petition. One judge dissented. We hold that we have jurisdiction to review the decision of the Supreme Court of Puerto Rico. A federal statute, 28 U.S. C. 1258(2), specifically authorizes an appeal to this Court from a decision of the Supreme Court of Puerto Rico "where is drawn in question the validity of a statute of the Commonwealth of Puerto Rico on the ground of its being repugnant to the Constitution, treaties, or laws of the United States, and the decision is in favor of its validity." A careful review of the record in this case reveals that appellant's federal constitutional claims were adequately raised at every stage of the proceedings below. In a letter to the Tourism Company on February 24, 1982, prior to filing suit, appellant warned that, absent a reinterpretation of the advertising restrictions by the Tourism Company, "we have no choice but to challenge in Court the constitutionality and or validity of the advertising prohibition of the Act and Regulations." App. to Juris. Statement 6h. In its complaint, appellant claimed that the advertising restrictions "violat[ed] the constitutional rights of petitioner protected by the First Amendment *338 to the Constitution of the United States [,] the constitutional guarantee of equal protection of the laws protected by the Constitution of the United States [and] the constitutional guarantee of due process of law" at 4i. And in the bill of appeal to the Supreme Court of Puerto Rico, appellant claimed that the advertising restrictions violated "the First Amendment of the United States Constitution," at 5c, along with "due process of law guaranteed by the Constitution" and "the equal protection
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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of law guaranteed by the Constitution" and "the equal protection of the laws," at 6c. Under Puerto Rico law, appellant had the right to appeal the Superior Court's decision to the Supreme Court of Puerto Rico on the ground that that case "involv[ed] or decid[ed] a substantial constitutional question under the Constitution of the United States." P. R. Laws Ann., Tit. 4, 37(a) (1978). The Supreme Court's dismissal of appellant's appeal for want of "a substantial constitutional question" therefore constituted a decision on the merits in favor of the validity of the challenged statute and regulations. See In such a situation, we have jurisdiction to review the decision of the Supreme Court pursuant to 28 U.S. C. 1258(2). The Tourism Company argues, however, that appellant's notice of appeal was not timely filed with the Clerk of the Supreme Court of Puerto Rico,[5] in violation of Rule 53.1 of the Puerto Rico Rules of Civil Procedure. According to the Tourism Company, this flaw is fatal to appellant's right to seek review in this Court. We do not agree. The requirement under Rule 53.1 that a notice of appeal be timely filed with the clerk of the reviewing court has been held by the *339 Supreme Court of Puerto Rico to be nonjurisdictional. See Morales v. Mendez Mas, 109 P. R. R. 1136 In this case, the Supreme Court did not dismiss appellant's appeal on timeliness grounds, so we can only assume that the court waived the timeliness requirement, as it had the power to do. Appellant's late filing of the notice of appeal does not affect our jurisdiction. Before turning to the merits of appellant's First Amendment claim, we must address an additional preliminary matter. Although we have not heretofore squarely addressed the issue in the context of a case originating in Puerto Rico, we think it obvious that, in reviewing the facial constitutionality of the challenged statute and regulations, we must abide by the narrowing constructions announced by the Superior Court and approved sub silentio by the Supreme Court of Puerto Rico. This would certainly be the rule in a case originating in one of the 50 States. See New ; Kingsley International Pictures And we believe that Puerto Rico's status as a Commonwealth dictates application of the same rule. See ; Wackenhut aff'd,[6] *340 Because this case involves the restriction of pure commercial speech which does "no more than propose a commercial transaction," Virginia Pharmacy[7] our First Amendment analysis is guided by the general principles identified in Central Gas & Electric See Under Central commercial speech receives a limited
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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& Electric See Under Central commercial speech receives a limited form of First Amendment protection so long as it concerns a lawful activity and is not misleading or fraudulent. Once it is determined that the First Amendment applies to the particular kind of commercial speech at issue, then the speech may be restricted only if the government's interest in doing so is substantial, the restrictions directly advance the government's asserted interest, and the restrictions are no more extensive than necessary to serve that The particular kind of commercial speech at issue here, namely, advertising of casino gambling aimed at the residents of Puerto Rico, concerns a lawful activity and is not *341 misleading or fraudulent, at least in the abstract. We must therefore proceed to the three remaining steps of the Central analysis in order to determine whether Puerto Rico's advertising restrictions run afoul of the First Amendment. The first of these three steps involves an assessment of the strength of the government's interest in restricting the speech. The interest at stake in this case, as determined by the Superior Court, is the reduction of demand for casino gambling by the residents of Puerto Rico. Appellant acknowledged the existence of this interest in its February 24, 1982, letter to the Tourism Company. See App. to Juris. Statement 2h ("The legislators wanted the tourists to flock to the casinos to gamble, but not our own people"). The Tourism Company's brief before this Court explains the legislature's belief that "[e]xcessive casino gambling among local residents would produce serious harmful effects on the health, safety and welfare of the Puerto Rican citizens, such as the disruption of moral and cultural patterns, the increase in local crime, the fostering of prostitution, the development of corruption, and the infiltration of organized crime." Brief for Appellees 37. These are some of the very same concerns, of course, that have motivated the vast majority of the 50 States to prohibit casino gambling. We have no difficulty in concluding that the Puerto Rico Legislature's interest in the health, safety, and welfare of its citizens constitutes a "substantial" governmental Cf. The last two steps of the Central analysis basically involve a consideration of the "fit" between the legislature's ends and the means chosen to accomplish those ends. Step three asks the question whether the challenged restrictions on commercial speech "directly advance" the government's asserted In the instant case, the answer to this question is clearly "yes." The Puerto Rico Legislature obviously *342 believed, when it enacted the advertising restrictions at issue here, that advertising of casino gambling aimed at
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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at issue here, that advertising of casino gambling aimed at the residents of Puerto Rico would serve to increase the demand for the product advertised. We think the legislature's belief is a reasonable one, and the fact that appellant has chosen to litigate this case all the way to this Court indicates that appellant shares the legislature's view. See Central ; cf. Metromedia, (finding third prong of Central test satisfied where legislative judgment "not manifestly unreasonable"). Appellant argues, however, that the challenged advertising restrictions are underinclusive because other kinds of gambling such as horse racing, cockfighting, and the lottery may be advertised to the residents of Puerto Rico. Appellant's argument is misplaced for two reasons. First, whether other kinds of gambling are advertised in Puerto Rico or not, the restrictions on advertising of casino gambling "directly advance" the legislature's interest in reducing demand for games of chance. See ("[W]hether onsite advertising is permitted or not, the prohibition of offsite advertising is directly related to the stated objectives of traffic safety and esthetics. This is not altered by the fact that the ordinance is underinclusive because it permits onsite advertising"). Second, the legislature's interest, as previously identified, is not necessarily to reduce demand for all games of chance, but to reduce demand for casino gambling. According to the Superior Court, horse racing, cockfighting, "picas," or small games of chance at fiestas, and the lottery "have been traditionally part of the Puerto Rican's roots," so that "the legislator could have been more flexible than in authorizing more sophisticated games *343 which are not so widely sponsored by the people." App. to Juris. Statement 35b. In other words, the legislature felt that for Puerto Ricans the risks associated with casino gambling were significantly greater than those associated with the more traditional kinds of gambling in Puerto Rico.[8] In our view, the legislature's separate classification of casino gambling, for purposes of the advertising ban, satisfies the third step of the Central analysis. We also think it clear beyond peradventure that the challenged statute and regulations satisfy the fourth and last step of the Central analysis, namely, whether the restrictions on commercial speech are no more extensive than necessary to serve the government's The narrowing constructions of the advertising restrictions announced by the Superior Court ensure that the restrictions will not affect advertising of casino gambling aimed at tourists, but will apply only to such advertising when aimed at the residents of Puerto Rico. See also n. 7, infra; cf. Oklahoma Telecasters *344 rev'd on other grounds sub nom. Capital Cities Cable, Appellant contends, however,
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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other grounds sub nom. Capital Cities Cable, Appellant contends, however, that the First Amendment requires the Puerto Rico Legislature to reduce demand for casino gambling among the residents of Puerto Rico not by suppressing commercial speech that might encourage such gambling, but by promulgating additional speech designed to discourage it. We reject this contention. We think it is up to the legislature to decide whether or not such a "counterspeech" policy would be as effective in reducing the demand for casino gambling as a restriction on advertising. The legislature could conclude, as it apparently did here, that residents of Puerto Rico are already aware of the risks of casino gambling, yet would nevertheless be induced by widespread advertising to engage in such potentially harmful conduct. Cf. Capital Broadcasting ("Congress had convincing evidence that the Labeling Act of 1965 had not materially reduced the incidence of smoking"), summarily aff'd sub nom. Capital Broadcasting U.S. 1000 ; ("We do not believe that a less restrictive time, place and manner restriction, such as a disclaimer warning of the dangers of alcohol, would be effective. The state's concern is not that the public is unaware of the dangers of alcohol. The concern instead is that advertising will unduly promote alcohol consumption despite known dangers"), cert. denied, In short, we conclude that the statute and regulations at issue in this case, as construed by the Superior Court, pass muster under each prong of the Central test. We therefore hold that the Supreme Court of Puerto Rico properly rejected appellant's First Amendment claim.[9] *345 Appellant argues, however, that the challenged advertising restrictions are constitutionally defective under our decisions in and In Carey, this Court struck down a ban on any "advertisement or display" of -702, and in Bigelow, we reversed a criminal conviction based on the advertisement of an abortion clinic. We think appellant's argument ignores a crucial distinction between the Carey and Bigelow decisions and the instant case. In Carey and Bigelow, the underlying conduct that was the subject of the advertising restrictions was constitutionally protected and could not have been prohibited by the State. Here, on the other hand, the Puerto Rico Legislature surely could have prohibited casino gambling by the residents of Puerto Rico altogether. In our view, the greater power to *346 completely ban casino gambling necessarily includes the lesser power to ban advertising of casino gambling, and Carey and Bigelow are hence inapposite. Appellant also makes the related argument that, having chosen to legalize casino gambling for residents of Puerto Rico, the legislature is prohibited by the First Amendment from using
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Justice Rehnquist
| 1,986 | 19 |
majority
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Posadas De Puerto Rico Associates v. Tourism Co. of PR
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the legislature is prohibited by the First Amendment from using restrictions on advertising to accomplish its goal of reducing demand for such gambling. We disagree. In our view, appellant has the argument backwards. As we noted in the preceding paragraph, it is precisely because the government could have enacted a wholesale prohibition of the underlying conduct that it is permissible for the government to take the less intrusive step of allowing the conduct, but reducing the demand through restrictions on advertising. It would surely be a Pyrrhic victory for casino owners such as appellant to gain recognition of a First Amendment right to advertise their casinos to the residents of Puerto Rico, only to thereby force the legislature into banning casino gambling by residents altogether. It would just as surely be a strange constitutional doctrine which would concede to the legislature the authority to totally ban a product or activity, but deny to the legislature the authority to forbid the stimulation of demand for the product or activity through advertising on behalf of those who would profit from such increased demand. Legislative regulation of products or activities deemed harmful, such as cigarettes, alcoholic beverages, and prostitution, has varied from outright prohibition on the one hand, see, e. g., Cal. Penal Code Ann. 647(b) (prohibiting soliciting or engaging in act of prostitution), to legalization of the product or activity with restrictions on stimulation of its demand on the other hand, see, e. g., Nev. Rev. Stat. 244.345(1), (8) (authorizing licensing of houses of prostitution except in counties with more than 250,000 population), 201.430, 201.440 (prohibiting advertising of houses of prostitution "[i]n any public theater, on the public streets of any city or town, or on any public highway," *347 or "in [a] place of business").[10] To rule out the latter, intermediate kind of response would require more than we find in the First Amendment. Appellant's final argument in opposition to the advertising restrictions is that they are unconstitutionally vague. In particular, appellant argues that the statutory language, "to advertise or otherwise offer their facilities," and "the public of Puerto Rico," are not sufficiently defined to satisfy the requirements of due process. Appellant also claims that the term "anunciarse," which appears in the controlling Spanish version of the statute, is actually broader than the English term "to advertise," and could be construed to mean simply "to make known." Even assuming that appellant's argument has merit with respect to the bare statutory language, however, we have already noted that we are bound by the Superior Court's narrowing construction of the statute. Viewed in
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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Federal law requires strict safety and efficacy testing of all "new" prescription "drugs." 21 U.S. C. ง 355. See 21 CFR ง 310.3(h) (2002) (defining "new drug" broadly). This testing process requires for every "new drug" a preclinical investigation and three separate clinical tests, including small, controlled studies of healthy and diseased humans as well as scientific double-blind studies designed to identify any possible health risk or side effect associated with the new drug. Practical Guide to Food and Drug Law and Regulation 95-102 (K. Pi๑a & W. Pines eds. 1998). The objective of this elaborate and time-consuming regulatory regime is to identify those health risksโboth large and smallโthat a doctor or pharmacist might not otherwise notice. At the same time, the law exempts from its testing requirements prescription drugs produced through "compounding"โa process "by which a pharmacist or doctor combines, mixes, or alters ingredients to create a medication tailored to the needs of an individual patient." Ante, at 360-361. The exemption is available, however, only if the pharmacist meets certain specified conditions, including the condition that the pharmacist not "advertise or promote the compounding of any particular drug." 21 U.S. C. ง 353a(c) (emphasis added). The Court holds that this condition restricts "commercial speech" in violation of the First Amendment. See Central Gas & Elec. t concedes that the statutory provision tries to "[p]reserv[e] the effectiveness and integrity of the new drug approval process," ante, at 369, and it assumes without deciding that the statute might "`directly advance' " that interest, ante, at 371. t nonetheless finds the statute unconstitutional because it could advance that interest in other, less restrictive ways. Ante, at 372-373. disagree with this conclusion, and believe that the Court *379 seriously undervalues the importance of the Government's interest in protecting the health and safety of the American public. n my view, the advertising restriction "directly advances" the statute's important safety objective. That objective, as the Court concedes, is to confine the sale of untested, compounded, drugs to where they are medically needed. But to do so the statute must exclude from the area of permitted drug sales both (1) those drugs that traditional drug manufacturers might supply after testingโtypically drugs capable of being produced in large amounts, and (2) those compounded drugs sought by patients who may not clearly need themโincluding compounded drugs produced in small amounts. The majority's discussion focuses upon the first exclusionary need, but it virtually ignores the second. t describes the statute's objective simply as drawing a "line" that will "distinguish compounded drugs produced on such a small scale that they
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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compounded drugs produced on such a small scale that they could not undergo safety and efficacy testing from drugs produced and sold on a large enough scale that they could undergo such testing and therefore must do so." Ante, at 370 (emphasis added). This description overlooks the need for a second lineโa line that will distinguish (1) sales of compounded drugs to those who clearly need them from (2) sales of compounded drugs to those for whom a specially tailored but untested drug is a convenience but not a medical necessity. That is to say, the statute, in seeking to confine distribution of untested tailored drugs, must look both at the amount supplied (to help decide whether ordinary manufacturers might provide a tested alternative) and at the nature of demand (to help separate genuine need from simple convenience). Cf. 143 Cong. Rec. S9840 (Sept. 24, 1997) (remarks of Sen. Kennedy) (understanding that "some of the conditions are intended to ensure that the volume of compounding does not approach that ordinarily associated *380 with drug manufacturing" while others are "intended to ensure that the compounded drugs that qualify for the exemption have appropriate assurances of quality and safety since [they] would not be subject to the more comprehensive regulatory requirements that apply to manufactured drug products"). This second intermediate objective is logically related to Congress' primary endโthe minimizing of safety risks. The statute's basic exemption from testing requirements inherently creates risks simply by placing untested drugs in the hands of the consumer. Where an individual has a specific medical need for a specially tailored drug those risks are likely offset. But where an untested drug is a convenience, not a necessity, that offset is unlikely to be present. That presumably is why neither the Food and Drug Administration (FDA) nor Congress anywhere suggests that all that matters is the total amount of a particular drug's sales. That is why the statute's history suggests that the amount supplied is not the whole story. See S. Rep. No. 105-43, p. 67 (1997) (statute seeks to assure "continued availability of compounded drug products as a component of individualized therapy, while prevent[ing] small-scale manufacturing under the guise of compounding" (emphasis added)); accord, H. R. Conf. Rep. No. 105-399, p. 94 (1997). That is why the statute itself, as well as the FDA policy that the statute reflects, lists several distinguishing factors, of which advertising is one. See FDA Compliance Policy Guide 7132.16, reprinted in App. to Pet. for Cert. 71aโ77a (hereinafter Compliance Policy Guide). And that is likely why, when faced with the possibility of
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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that is likely why, when faced with the possibility of severing the advertising restriction from the rest of the statute, the Government argued that the "other conditions in section 353a alone are inadequate to achieve Congress's desired balance among competing interests." See Brief for Appellants in No. 99-17424 (CA9), p. 57. See also Ensuring that the risks associated with compounded drug prescriptions are offset by the benefits is also why public health authorities, testifying in Congress, insisted that the doctor's prescription represent an individualized determination of need. See, e. g., FDA Reform Legislation: Hearings before the Subcommittee on Health and the Environment of the House Committee on Commerce, 104th Cong., 2d Sess., 120 (hereinafter FDA Reform Legislation) (statement of Mary K. Pendergast, Deputy Commissioner of the FDA and Senior Advisor to the Commissioner) (Allowing traditional compounding is "good medicine" because "an individual physician" was making "an individualized determination for a patient"). See also National Association of Boards of Pharmacy, Model State Pharmacy Act and Rules, Art. ง 1.05(e) (hereinafter NABP Model Act) (defining "[c]ompounding" as involving a prescription "based on the Practitioner/patient/Pharmacist relationship in the course of professional practice"). And that, in part, is why federal and state authorities have long permitted pharmacists to advertise the fact that they compound drugs, while forbidding the advertisement of individual compounds. See Compliance Policy Guide 76a; Good Compounding Practices Applicable to State Licensed Pharmacies, NABP Model Act, App. C.2, subpart A (forbidding pharmacists to "solicit business (e. g., promote, advertise, or use salespersons) to compound specific drug products"). The definitions of drug manufacturing and compounding used by the NABP and at least 13 States reflect similar distinctions. NABP Model Act, Art. งง 105(e), (t), and (u) (defining drug manufacturing to "include the promotion and marketing of such drugs or devices" but excluding any reference to promotion or marketing from the definition of drug compounding); Alaska Stat. งง 08.80.480(3) and (15) (2000) *382 (same); La. Stat. Ann. งง 37:1164(5) and (25) (West 2000) (same); Miss. Code Ann. งง 73-21-73(c) and (s) (Lexis 1973โ 2000) (same); Mont. Code Ann. ง 37-7โ101(7) (1997) (same); N. H. Rev. Stat. Ann. งง 318-1() and (V) (same); N. M. Stat. Ann. งง 61-11-2(C) and (Q) (same); Ohio Rev. Code Ann. ง 3715.01(14) (West Supp. 2002) (same); Okla. Stat., Tit. 59, งง 353.1(20) and (26) (Supp. 2002) (same); S. C. Code Ann. งง 40-43-30(7) and (29) (same); Tenn. Code Ann. งง 63-10-404(4) and (18) (1997) (same); Tex. Occ. Code Ann. งง 551.003(9) and (23) (2002 Pamphlet) (same); W. Va. Code งง 30-5โ1b(c) and (o) (1966-1998) (same). These policies and statutory
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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งง 30-5โ1b(c) and (o) (1966-1998) (same). These policies and statutory provisions reflect the view that individualized consideration is more likely present, and convenience alone is more likely absent, when demand for a compounding prescription originates with a doctor, not an advertisement. The restrictions try to assure that demand is generated doctor-to-patient-to-pharmacist, not pharmacist-to-advertisement-to-patient-to-doctor. And they do so in order to diminish the likelihood that those who do not genuinely need untested compounded drugs will not receive them. There is considerable evidence that the relevant meansโ the advertising restrictionsโdirectly advance this statutory objective. No one denies that the FDA's complex testing system for new drugsโa system that typically relies upon double-blind or other scientific studiesโis more likely to find, and to assess, small safety risks than are physicians or pharmacists relying upon impressions and anecdotes. See Nor can anyone deny that compounded drugs carry with them special risks. After all, compounding is not necessarily a matter of changing a drug's flavor, cf. ante, at 377, but rather it is a matter of combining different ingredients in new, untested ways, say, adding a pain medication to an antihistamine to counteract allergies or increasing the ratio of approved ingredients in a salve to help the body absorb it *383 at a faster rate. And the risks associated with the untested combination of ingredients or the quicker absorption rate or the working conditions necessary to change an old drug into its new form can, for some patients, mean infection, serious side effects, or even death. See, e. g., J. Thompson, A Practical Guide to Contemporary Pharmacy Practice 11.5 (1998) (hereinafter Contemporary Pharmacy Practice). Cf. 21 CFR ง 310.3(h)(1) (2002) (considering a drug to be "new" and subject to the approval process if the "substance which composes such drug" is new); ง 310.3(h)(3) (considering a drug to be "new" and subject to the approval process if approved ingredients are combined in new proportions). There is considerable evidence that consumer oriented advertising will create strong consumer-driven demand for a particular drug. See, e. g., National nstitute for Health Care Management, Factors Affecting the Growth of Prescription Drug Expenditures iii (July 9, 1999) (three antihistamine manufacturers spent $313 million on advertising in 1998 and accounted for 90% of prescription drug antihistamine market); Kritz, Ask Your Doctor About Which of the Many Advertised Allergy Drugs Are Right for You? Washington Post, June 6, 2000, Health, p. 9 (The manufacturer of the world's top selling allergy drug, the eighth best-selling drug in the United States, spent almost $140 million in 1999 on advertising); 1999 Prevention Magazine 10 (spending on
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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in 1999 on advertising); 1999 Prevention Magazine 10 (spending on direct-to-consumer advertising of prescription medicine increased from $965.2 million in 1997 to $1.33 billion in 1998). And there is strong evidence that doctors will often respond affirmatively to a patient's request for a specific drug that the patient has seen advertised. See ; Henry J. Kaiser Family Foundation, Understanding the Effects of Direct-to-Consumer Prescription Drug Advertising 3 (A foundation survey found that more than one in eight Americans had asked *384 forโand receivedโa specific prescription from their doctor in response to an advertisement). n these circumstances, Congress could reasonably conclude that doctors will respond affirmatively to a patient's request for a compounded drug even if the doctor would not normally prescribe it. When a parent learns that a child's pill can be administered in liquid form, when a patient learns that a compounded skin cream has an enhanced penetration rate, or when an allergy sufferer learns that a compounded antiinflammatory/allergy medication can alleviate a sinus headache without the sedative effects of antihistamines, that parent or patient may well ask for the desired prescription. And the doctor may well write the prescription even in the absence of special needโat least if any risk likely to arise from lack of testing is so small that only scientific testing, not anecdote or experience, would reveal it. t is consequently not surprising that 71% of the active members of the American Academy of Family Physicians "believe that direct-to-consumer advertising pressures physicians into prescribing drugs that they would not ordinarily prescribe." Rosenthal, Berndt, Donohue, Frank, & Epstein, Promotion of Prescription Drugs to Consumers, -505 (2002) (citing Lipsky, The Opinions and Experiences of Family Physicians Regarding Direct-To-Consumer Advertising, 45 J. Fam. Pract. 495- (1997)). Of course, the added risks in any such individual case may be small. But those individual risks added together can significantly affect the public health. At least, the FDA and Congress could reasonably reach that conclusion. And that fact, along with the absence of any significant evidence that the advertising restrictions have prevented doctors from learning about, or obtaining, compounded drugs, means that the FDA and Congress could also conclude that the advertising restrictions "directly advance" the statute's safety goal. They help to assure that demand for an untested compounded drug originates with the doctor, responding to an *385 individual's special medical needs; they thereby help to restrict the untested drug's distribution to those most likely to need it; and they thereby advance the statute's safety goals. There is no reason for this Court, as a matter of constitutional law, to reach
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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this Court, as a matter of constitutional law, to reach a different conclusion. do not believe that Congress could have achieved its safety objectives in significantly less restrictive ways. Consider the several alternatives the Court suggests. First, it says that "the Government could ban the use of `commercial scale manufacturing or testing equipment for compounding drug products.' " Ante, at 372. This alternative simply restricts compounding to drugs produced in small batches. t would neither limit the total quantity of compounded drugs produced, nor help in any way to assure the kind of individualized doctor-patient need determination that the statute's advertising restriction are designed to help achieve. Second, the Court says that the Government "could prohibit pharmacists from compounding more drugs in anticipation of receiving prescriptions than in response to prescriptions already received." This alternative, while addressing the issue of quantity, does virtually nothing to promote the second, need-related statutory objective. Third, the Court says the Government "could prohibit pharmacists from `[o]ffering compounded drug products at wholesale to other state licensed persons or commercial entities for resale." This alternative is open to the same objection. Fourth, the Court says the Government "could limit the amount of compounded drugs, either by volume or by numbers of prescriptions, that a given pharmacist or pharmacy sells out of state." This alternative, applying only to out-of-state sales, would not significantly restrict sales, either in respect to amounts or in respect to patient need. *386 n fact, it could prevent compounded drugs from reaching out-of-state patients who genuinely need them. Fifth, the Court says that the Government could "ca[p] the amount of any particular compounded drug, either by drug volume, number of prescriptions, gross revenue, or profit." This alternative, like the others, ignores the patientneed problem, while simultaneously threatening to prevent compounded drugs from reaching those who genuinely need them, say, a patient whose prescription represents one beyond the arbitrarily imposed quantitative limit. Sixth, the Court says that the Government could rely upon "non-speech-related provisions of the FDAMA, such as the requirement that compounding only be conducted in response to a prescription." This alternative also ignores the patient-need problem and was specifically rejected by the Government in the Court of Appeals for the Ninth Circuit. See The Court adds that "[t]he Government has not offered any reason why these possibilities, alone or in combination, would be insufficient." Ante, at 373. The Government's failure to do so may reflect the fact that only the Court, not any of the respondents, has here suggested that these "alternatives," alone or in combination, would prove sufficient. n fact, the
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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alone or in combination, would prove sufficient. n fact, the FDA's Compliance Policy Guide, from which the Court draws its first four alternatives, specifically warned that these alternatives alone were insufficient to successfully distinguish traditional compounding from unacceptable manufacturing. See Compliance Policy Guide 77a. The Court responds to the claim that advertising compounded drugs causes people to obtain drugs that do not promote their health, by finding it implausible given the need for a prescription and by suggesting that it is not relevant. The First Amendment, it says, does not permit the Government to control the content of advertising, where *387 doing so flows from "fear" that "people would make bad decisions if given truthful information about compounded drugs." Ante, at 374. This response, however, does not fully explain the Government's regulatory rationale; it fails to take account of considerations that make the claim more than plausible (if properly stated); and it is inconsistent with this Court's interpretation of the Constitution. t is an oversimplification to say that the Government "fear[s]" that doctors or patients "would make bad decisions if given truthful information." Rather, the Government fears the safety consequences of multiple compound-drug prescription decisions initiated not by doctors but by pharmacist-to-patient advertising. Those consequences flow from the adverse cumulative effects of multiple individual decisions each of which may seem perfectly reasonable considered on its own. The Government fears that, taken together, these apparently rational individual decisions will undermine the safety testing system, thereby producing overall a net balance of harm. See, e. g., FDA Reform Legislation 121 (statement of David A. Kessler, Commissioner of the FDA) (voicing concerns about "quality controls" and the integrity of the drug-testing system). Consequently, the Government leaves pharmacists free to explain through advertisements what compounding is, to advertise that they engage in compounding, and to advise patients to discuss the matter with their physicians. And it forbids advertising the specific drug in question, not because it fears the "information" the advertisement provides, but because it fears the systematic effect, insofar as advertisements solicit business, of advertisements that will not fully explain the complicated risks at issue. And this latter fear is more than plausible. See Part do not deny that the statute restricts the circulation of some truthful information. t prevents a pharmacist from including in an advertisement the information that "this pharmacy will compound Drug X." Nonetheless, this Court *388 has not previously held that commercial advertising restrictions automatically violate the First Amendment. Rather, the Court has applied a more flexible test. t has examined the restriction's proportionality, the relation between restriction and
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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has examined the restriction's proportionality, the relation between restriction and objective, the fit between ends and means. n doing so, the Court has asked whether the regulation of commercial speech "directly advances" a "substantial" governmental objective and whether it is "more extensive than is necessary" to achieve those ends. See Central t has done so because it has concluded that, from a constitutional perspective, commercial speech does not warrant application of the Court's strictest speechprotective tests. And it has reached this conclusion in part because restrictions on commercial speech do not often repress individual self-expression; they rarely interfere with the functioning of democratic political processes; and they often reflect a democratically determined governmental decision to regulate a commercial venture in order to protect, for example, the consumer, the public health, individual safety, or the environment. See, e. g., 44 Liquormart, nc. v. Rhode sland, ; L. Tribe, American Constitutional Law ง 12-15, p. 903 (2d ed. 1988) ("[C]ommercial speech doctrine" seeks to accommodate "the right to speak and hear expression about goods and services" with "the right of government to regulate the sales of such goods and services" (emphasis in original)). have explained why believe the statute satisfies this more flexible test. See Parts and The Court, in my view, gives insufficient weight to the Government's regulatory rationale, and too readily assumes the existence of practical alternatives. t thereby applies the commercial speech doctrine too strictly. Cf. Buckman See also llinois Bd. of (warning against overly demanding search for less restrictive alternatives). n my view, the Constitution demands a more lenient application, an application that reflects the need for distinctions among contexts, forms of regulation, and forms of speech, and which, in particular, clearly distinguishes between "commercial speech" and other forms of speech demanding stricter constitutional protection. Otherwise, an overly rigid "commercial speech" doctrine will transform what ought to be a legislative or regulatory decision about the best way to protect the health and safety of the American public into a constitutional decision prohibiting the legislature from enacting necessary protections. As history in respect to the Due Process Clause shows, any such transformation would involve a tragic constitutional misunderstanding. See V Finally, the majority would hold the statute unconstitutional because it prohibits pharmacists from advertising compounded drugs to doctors. Ante, at 376-377. Doctors, however, obtain information about individual drugs through many other channels. And there is no indication that restrictions on commercial advertising have had any negative effect on the flow of this information. See e. g., Contemporary Pharmacy Practice 11.4 (compounded drug information "available" and "widely disseminated" through books,
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Justice Breyer
| 2,002 | 2 |
dissenting
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Thompson v. Western States Medical Center
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https://www.courtlistener.com/opinion/118499/thompson-v-western-states-medical-center/
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11.4 (compounded drug information "available" and "widely disseminated" through books, journals, monographs, and vendors). Nor, with one exception, have doctors or groups of doctors complained that the statute will interfere with that flow of information in the future. But see Brief for Julian M. Whitaker, M.D., et al. as Amici Curiae 1 (alleging, without evidentiary support, that the regulations prevent doctors from knowing how to *390 get "competitively priced compounded drugs as efficiently as possble"). Regardless, we here consider a facial attack on the statute. The respondents here focus their attack almost entirely upon consumer-directed advertising. They have not fully addressed separate questions involving the effect of advertising restrictions on information received by physicians. would consequently leave these questions in abeyance. Considering the statute only insofar as it applies to advertising directed at consumers, would hold it constitutional. For these reasons, dissent.
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Justice Brennan
| 1,983 | 13 |
dissenting
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Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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In some respects, this is a difficult case. Pre-emption cases in the labor law area are often difficult because we must decide the questions presented without any clear guidance from Congress. See Motor Coach ; San Diego Building Trades ; We have developed standards to assist us in our task, see e. g., ; but those standards are by necessity general ones which may not provide as much assistance as we would like in particular cases. This is especially true when the case is an unusual one. We are not confronted here with a suit between an employer and a union, see e. g., Sears, *524 Roebuck & ; or with one between a union and one of its members, see, e. g., ; Such suits are common and have provided the vehicles for developing the standards we have established in this area. Rather, we have here a suit brought by former employees of petitioner who allegedly were hired as permanent replacements for striking union members. Our prior cases, therefore, provide little guidance in this novel area. Despite the conceded difficulty of this case, I cannot agree with the Court's conclusion that neither respondents' breach-of-contract claim nor their misrepresentation claim is pre-empted by federal See ante, at 52. In my view these claims go to the core of federal labor policy. If respondents are allowed to pursue their claims in state court, employers will be subject to potentially conflicting state and federal regulation of their activities; the efficient administration of the National Labor Relations Act will be threatened; and the structure of the economic weapons Congress has provided to parties to a labor dispute will be altered. In short, the purposes and policies of federal law will be frustrated. I, therefore, respectfully dissent. I In the Court stated that "[t]he National Labor Relations Act is designed to promote industrial peace by encouraging the making of voluntary agreements governing relations between unions and employers." This process of "ordering and adjusting" competing employer and employee interests has been aptly described as "the keystone of the federal scheme to promote industrial peace." An integral part of this process is the use of economic pressure by both employers and unions to achieve bargaining goals. As the Court stated in NLRB v. Insurance Agents, 36 U. S. *525 477 (960): "The presence of economic weapons in reserve, and their actual exercise on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized." A union's most important economic weapon is the strike. "The economic strike against the
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Justice Brennan
| 1,983 | 13 |
dissenting
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Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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economic weapon is the strike. "The economic strike against the employer is the ultimate weapon in labor's arsenal for achieving agreement upon its terms" A strike is protected activity under 7 of the Act, 29 U.S. C. 57, and the right to strike is expressly recognized in 3, 29 U.S. C. 63. See ; ; Moreover, 2(3) of the Act, 29 U.S. C. 52(3), "preserves to strikers their unfilled positions and status as employees during the pendency of a strike." Erie Resistor at See also Fleetwood Trailer at ; NLRB v. Mackay "This solicitude for the right to strike is predicated upon the conclusion that a strike when legitimately employed is an economic weapon which in great measure implements and supports the principles of the collective bargaining system." Erie Resistor at -2. Employers also have lawful economic weapons at their disposal. See ; American Ship Building v. NLRB, ; Among these weapons is one of particular relevance to this case: the right to hire replacements for striking employees. See NLRB v. Mackay at -7. A variety of rules have been developed regarding the use of economic weapons by employers and unions. As noted, if an employee decides to strike he does not lose his status as an employee. If he offers to return to work at the end of an economic strike, the employer must reinstate him. Fleetwood *526 Trailer at A refusal by the employer to reinstate the employee constitutes an unfair labor practice under 8(a)() and 8(a)(3), 29 U.S. C. 58(a)() and (a)(3), unless the employer can show that his action is supported by " `legitimate and substantial business justifications.' " Fleetwood Trailer at quoting One such justification arises within the context of an economic strike when "the jobs claimed by the strikers are occupied by workers hired as permanent replacements during the strike in order to continue operations." Fleetwood Trailer In NLRB v. Mackay the Court recognized that an employer may replace striking employees in an effort to carry on his 304 U.S., at The employees' right to strike does not deprive the employer of his "right to protect and continue his business by supplying places left vacant by strikers." If the employer replaces the strikers, "he is not bound to discharge [the replacements] upon the election of [the strikers] to resume their employment." at -6. "[T]he employer's interest [in continuing operations] must be deemed to outweigh the damage to concerted activities caused by permanently replacing strikers." Erie Resistor The burden of proving the existence of this justification, however, is on the employer. Fleetwood Trailer at In
|
Justice Brennan
| 1,983 | 13 |
dissenting
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Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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justification, however, is on the employer. Fleetwood Trailer at In this regard, the employer must prove that the workers hired to replace the strikers have been hired as permanent employees. See, e. g., NLRB v. Mars Sales & Equipment ; 584 F.2d 9, In Mars Sales & Equipment the Court of Appeals stated: "The replacements must be permanent at the time of the discharge or the discharge and refusal to reinstate constitute an unfair labor practice. If an employer hires replacements without a commitment or understanding *527 that the job is permanent and also discharges the strikers, the interest in protecting economic strikers by an entitlement to reinstatement is not overcome by a substantial business justification. The employer has not had to offer the jobs on a permanent basis as an inducement to continuing his operations. Hence, an economic striker whose job has not been permanently promised to a replacement at the time the striking employee is discharged is entitled to reinstatement." 626 F.2d, at -573. See also International Assn. of M. & A. W., Dist. No. 8 v. J. L. Clark See generally H. & F. Binch Plant of Native Laces, ; C. H. Guenther & Son, A different set of rules applies if employees have decided to strike in response to employer unfair labor practices. Under these circumstances, "the striking employees do not lose their status and are entitled to reinstatement with back pay, even if replacements for them have been made." Mastro Plastics v. NLRB, "Failure of the Board to enjoin [the employer's] illegal conduct or failure of the Board to sustain the right to strike against that conduct would seriously undermine the primary objectives of the Labor Act." See Fleetwood Trailer n. 5; NLRB v. Top Mfg. Inc., These rules are the product of the "delicate task of weighing the interests of employees in concerted activity against the interest of the employer in operating his business in a particular manner and of balancing in the light of the Act and its policy the intended consequences upon employee rights against the business ends to be served by the employer's conduct." Erie Resistor See also The questions presented by this case cannot be addressed, or answered *528 correctly, without due regard for the existence of these rules and the sensitivity of the process that produced them. II Respondents' breach-of-contract claim is based on the allegation that petitioner breached its contracts with them by entering into a settlement agreement with the union that called for the gradual reinstatement of the strikers respondents had replaced. See App. 3a-5a. The strike
|
Justice Brennan
| 1,983 | 13 |
dissenting
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Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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the strikers respondents had replaced. See App. 3a-5a. The strike involved in this case, however, arguably was converted into an unfair labor practice strike almost immediately after it started. See ante, at 494-495, 507-508. If the strike was converted into an unfair labor practice strike, the striking employees were entitled to reinstatement irrespective of petitioner's decision to hire permanent replacements. See ; Philip Carey Mfg. v. NLRB, See also Fleetwood Trailer 389 U. S., n. 5; Mastro Plastics at ; Under these circumstances, federal law would have required petitioner to reinstate the striking employees and to discharge the replacements. In this light, it is clear that petitioner's decision to breach its contracts with respondents was arguably required by federal In Motor Coach the Court stated that "[t]he constitutional principles of pre-emption, in whatever particular field of law they operate, are designed with a common end in view: to avoid conflicting regulation of conduct by various official bodies which might have some authority over the subject matter." In this regard, "[i]t is the conduct being regulated, not the formal description of governing legal standards, that is the proper focus of concern." In San Diego Building Trades the Court stated that "[i]n determining the extent to which state regulation must yield to subordinating federal authority *529 we have been concerned with delimiting areas of potential conflict; potential conflict of rules of law, of remedy, and of administration." The Court later noted that "[w]hen the exercise of state power over a particular area of activity threatened interference with the clearly indicated policy of industrial relations, it has been judicially necessary to preclude the States from acting."[] See also ("[T]he broad powers conferred by Congress upon the National Labor Relations Board to interpret and to enforce the complex Labor Management Relations Act necessarily imply that potentially conflicting `rules of law, of remedy, and of administration' cannot be permitted to operate"). *530 In my view, these basic principles compel a conclusion that respondents' breach-of-contract claim is pre-empted. The potential for conflicting regulation clearly exists in this case. Respondents' breach-of-contract claim seeks to regulate activity that may well have been required by federal Petitioner may have to answer in damages for taking such an action. This sort of conflicting regulation is intolerable. As the Court stated in Motor Coach if "the regulatory schemes, state and federal, conflict. pre-emption is clearly called for." 403 U.S.,[2] *53 The Court recognizes that "had the strike been adjudicated an unfair labor practice strike, [petitioner] would have been required to reinstate the strikers" Ante, at 5. The Court concedes that the
|
Justice Brennan
| 1,983 | 13 |
dissenting
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Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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the strikers" Ante, at 5. The Court concedes that the State "could not negate" this obligation, ib and states that the contracts at issue here could not be specifically enforced. Ante, at 5-52, n. 3. "To do so would be to deprive returning strikers of jobs committed to them by the national labor laws." In the Court's view, however, "even had there been no settlement and the Board had ordered reinstatement of what it held to be unfair labor practice strikers, the suit for damages for breach of contract could still be maintained without in any way prejudicing the jurisdiction of the Board or the interest of the federal law in insuring the replacement of strikers." Ante, at 52.[3] Prohibiting specific enforcement, but permitting a damages award, does noting to eliminate the conflict between state and federal law in this context. The Court fails to recognize *532 that "regulation can be as effectively exerted through an award of damages as through some form of preventive relief." "The obligation to pay compensation can be, indeed is designed to be, a potent method of governing conduct and controlling policy." The force of these observations is apparent in this case. If an employer is confronted with potential liability for discharging workers he has hired to replace striking employees, he is likely to be much less willing to enter into a settlement agreement calling for the dismissal of unfair labor practice charges and for the reinstatement of strikers. Instead, he is much more likely to refuse to settle and to litigate the charges at issue while retaining the replacements.[4] Such developments would frustrate the strong federal interest in ending strikes and in settling labor disputes.[5] In addition, *533 the National Labor Relations Board has suggested that any impediment to the settlement of unfair labor practice charges would have a serious adverse effect on the Board's administration of the Act. Brief for NLRB as Amicus Curiae 3, n. 6.[6] Finally, any obstacle to strike settlement agreements clearly affects adversely the interest of striking employees in returning to work, to say nothing of the public interest in ending labor strife. Consideration of these factors leads to the clear conclusion that respondents' breach-of-contract claim must be pre-empted.[7] *5 III Respondents' misrepresentation claim stands on a somewhat different footing than their breach-of-contract claim. There is no sense in which it can be said that federal law required petitioner to misrepresent to respondents the terms on which they were hired. Permitting respondents to pursue their misrepresentation claim in state court, therefore, does not present the same potential for directly
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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court, therefore, does not present the same potential for directly conflicting regulation of employer activity as permitting respondents to pursue their breach-of-contract claim. Nor can it be said that petitioner's alleged misrepresentation was "arguably protected" under While it is arguable that petitioner's alleged offers of permanent employment were prohibited by the Act and therefore pre-empted under see n. careful analysis yields the conclusion that this is not a sufficient ground for pre-empting respondents' misrepresentation claim.[8] In my view, however, respondents' misrepresentation claim is pre-empted under the analysis articulated principally in The pre-emption doctrine described in finds its roots in and in *535 During the course of considering a pre-emption question in Garner, the Court stated: "For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits." 6 U.S., at 500. In Morton, the Court considered whether a state court should be permitted to award damages under state law for injuries caused by union conduct that was assumed to be neither protected nor prohibited by federal The Court stated that the answer to this question "ultimately depends upon whether the application of state law in this kind of case would operate to frustrate the purpose of the federal legislation." The Court held that it would. In reaching this conclusion, the Court reasoned that the self-help weapon at issue "formed an integral part of [the union's] effort to achieve its bargaining goals during negotiations with [the employer]." Permitting the use of this weapon was "part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community." The Court concluded: "If the [state] law of secondary boycott can be applied to proscribe the same type of conduct which Congress focused upon but did not proscribe the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy." -260. relied on Garner and Morton in expressly articulating a branch of labor law pre-emption analysis distinct from the line of cases. The Court in described this branch as "focusing upon the crucial inquiry whether Congress intended that the conduct involved be unregulated because left `to be controlled by the free play *536 of economic forces.' " 427 U.S., at 40 While earlier cases had addressed this question within the context of union
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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cases had addressed this question within the context of union and employee activities, see at 47, the Court noted that "self-help is also the prerogative of the employer because he, too, may properly employ economic weapons Congress meant to be unregulable." The Court stated: "Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding pre-emption is the same: whether `the exercise of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes.' " at 47-48[9] As noted, see employers have the right to hire replacements for striking employees. This is an economic weapon that the employer may use to combat pressure brought to bear by the union. Permitting the use of this weapon is part of the balance struck by the Act between labor and management. There is no doubt that respondents' misrepresentation claim, involving as it does the potential for substantial employer liability, burdens an employer's right to resort to this weapon. This is especially apparent when one considers the fact that the character of a strike is often unclear. A strike that starts as an economic strike, during which an employer is entitled to hire permanent replacements that he need not discharge to make way for returning strikers, may be converted into an unfair labor practice strike, in which case the employer loses his right to hire permanent *537 replacements subsequent to the date of the conversion. See NLRB v. Top Mfg. ; ; Philip Carey Mfg. v. NLRB, See also ante, at 507-508;[0] Moreover, in order to preserve his right to retain the replacements and to refuse to reinstate returning strikers, the employer must establish that the replacements have been hired on a permanent basis in order to continue his business operations. See Only under these circumstances can the strikers' right to reinstatement be overcome, and the consequent burden on the right to strike be justified.[] In order to avoid misrepresentation claims, an employer might decide not to hire replacements on a permanent basis or to hire permanent replacements only in cases in which it is absolutely clear that the strike is an economic one. Either of these developments would mean that employers were being inhibited by state law from making full use of an economic weapon available to them under federal Moreover, if an employer decided not to hire replacements on a permanent basis, his ability to hire replacements might be affected adversely. An employer also might decide to disclose to prospective replacements the possibility, even if it is remote, that the strike might be
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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even if it is remote, that the strike might be determined to have been an unfair labor practice strike and that he might be ordered to reinstate the strikers and to discharge the replacements. This course of action, however, might limit an employer's ability to hire replacements, and it might have the further effect of *538 rendering the replacements temporary under federal law, in which case the strikers would be entitled to reinstatement regardless of the nature of the strike. See Based on this analysis, it is clear that permitting respondents to pursue their misrepresentation claim in state court would limit and substantially burden an employer's resort to an economic weapon available to him under federal This would have the inevitable effect of distorting the delicate balance struck by the Act between the rights of labor and management in labor disputes. For these reasons, respondents' misrepresentation claim must be pre-empted.[2] The Court rejects the argument that the prospect of misrepresentation claims being filed in state court will burden an employer's right to hire permanent replacements for employees engaged in an economic strike. The Court suggests that employers may avoid liability for misrepresentation by conditioning their offers of employment to replacements. In the Court's view, a requirement that employers condition their offers of employment will not have an adverse effect on an employer's ability to hire permanent replacements because under a system in which an employer is not liable for misrepresentation or breach of contract his offers are, as a matter of law, conditional. Honest employers would not make promises that they know they are not obligated to keep and, in any event, replacements would know that the offers were, in some respects, nonpermanent. See ante, at 502. Putting aside the validity of these observations, the Court's analysis creates another problem: a requirement that employers condition their offers to replacements might render the replacements nonpermanent under federal law and result in employers *539 being required to reinstate returning strikers regardless of the nature of the strike. The Court acknowledges this problem, and in order to resolve it, changes the law of permanency. See ante, at 50-504. The Court states: "An employment contract with a replacement promising permanent employment, subject only to settlement with its employees' union and to a Board unfair labor practice order directing reinstatement of strikers, would not in itself render the replacement a temporary employee subject to displacement by a striker over the employer's objection during or at the end of what is proved to be a purely economic strike. The Board suggests that such a conditional offer
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
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economic strike. The Board suggests that such a conditional offer `might' render the replacements only temporary hires that the employer would be required to discharge at the conclusion of a purely economic strike. But the permanent-hiring requirement is designed to protect the strikers, who retain their employee status and are entitled to reinstatement unless they have been permanently replaced. [T]he protection is of great moment if the employer is not found guilty of unfair practices, does not settle with the union, or settles without a promise to reinstate. In that eventuality, the employer, although it has prevailed in the strike, may refuse reinstatement only if it has hired replacements on a permanent basis. If it has promised to keep the replacements on in such a situation, discharging them to make way for selected strikers whom it deems more experienced or more efficient would breach its contract with the replacements. Those contracts, it seems to us, create a sufficiently permanent agreement to permit the prevailing employer to abide by its promises." Ante, at 503-504 The fact that the Court feels compelled to announce a new standard of "permanency" under federal law highlights the need to pre-empt respondents' misrepresentation claim in *540 this case. The Court is in effect adjusting the balance of power struck by the Act between labor and management. The right to strike is so central to the Act that an employer can refuse to reinstate returning economic strikers only if he can show a legitimate and substantial business justification for the refusal. One such justification is the need to offer permanent employment to replacements in order to continue his business operations. See Fleetwood Trailer 389 U. S., at -379; If the employer has not had to offer employment to replacements on a permanent basis then there is no justification for refusing to reinstate the strikers. See NLRB v. Mars Sales & Equipment 626 F. 2d, at -573; The Court's change in the law of permanency weakens the rights of strikers and undermines the protection afforded those rights by the Act.[3]*54 Such adjustments in the balance of power between labor and management are for Congress, not this Court.[4] The real problem in this case, and another factor that supports pre-emption, is that the words "permanent replacement" *542 have a special meaning within the context of federal labor This is not surprising since the words arise in a context that is at the core of federal labor law: the use of economic weapons to achieve legitimate bargaining objectives. Workers hired to replace striking employees on a permanent basis are nonpermanent
|
Justice Brennan
| 1,983 | 13 |
dissenting
|
Belknap, Inc. v. Hale
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https://www.courtlistener.com/opinion/111006/belknap-inc-v-hale/
|
to replace striking employees on a permanent basis are nonpermanent to the extent that a strike may be determined to have been an unfair labor practice strike and that an employer may be ordered to reinstate strikers. They are also nonpermanent to the extent that a union may "win" a strike and force an employer to agree to a settlement that requires the reinstatement of striking employees. But such workers are "permanent" under other circumstances. There may be situations in which it is reasonably clear that a strike is an economic one and that an employer has a right to hire permanent replacements and to retain them even when the strike has ended. The employer also may be likely to "win" the strike and to find no need to settle with the union. Under these circumstances, a prudent employer still might find it necessary to condition his offers of employment to replacements in order to avoid even a remote possibility that he will be faced with potential liability for misrepresentation.[5]*543 This would burden his right to hire permanent replacements. Moreover, changing the law of permanency to accommodate this development compromises the rights of strikers, which are a crucial part of the federal scheme. I share the Court's concern over the plight of workers hired to replace striking employees. Contrary to the Court's suggestion, however, strikes are, to some extent, "war." See ante, at 500. As Judge Learned Hand stated more than 40 years ago in a case involving the reinstatement of strikers: "It is of course true that the consequences are harsh to those who have taken the strikers' places; strikes are always harsh; it might have been better to forbid them in quarrels over union recognition. But with that we have nothing to do; as between those who have used a lawful weapon and those whose protection will limit its use, the second must yield; and indeed, it is probably true today that most men taking jobs so made vacant, realize from the outset how tenuous is their hold." 87 It might be a better world if strike replacements were afforded greater protection. But if accomplishing this end requires an alteration of the balance of power between labor and management or an erosion of the right to strike, this Court should not pursue it.[6] This Court's notions of what would constitute a more "fair" system are irrelevant to determining whether certain state-law claims must be pre-empted because they interfere with the system of labor-management relations established by Congress. *544 IV Permitting respondents to pursue their breach-of-contract and misrepresentation claims
|
Justice Rehnquist
| 2,000 | 19 |
majority
|
Los Angeles Police Dept. v. United Reporting Publishing Corp.
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https://www.courtlistener.com/opinion/118321/los-angeles-police-dept-v-united-reporting-publishing-corp/
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California Govt. Code Ann. 6254(f)(3) places two conditions on public access to arrestees' addressesthat the person requesting an address declare that the request is being made for one of five prescribed purposes, and that the requester also declare that the address will not be used directly or indirectly to sell a product or service. The District Court permanently enjoined enforcement of the statute, and the Court of Appeals affirmed, holding that the statute was facially invalid because it unduly burdens commercial speech. We hold that the statutory section in question was not subject to a "facial" challenge. Petitioner, the Los Angeles Police Department, maintains records relating to arrestees. Respondent, United Reporting Publishing Corporation, is a private publishing service that provides the names and addresses of recently arrested individuals to its customers, who include attorneys, insurance companies, drug and alcohol counselors, and driving schools. Before July 1, respondent received arrestees' names and addresses under the old version of 6254, which generally required state and local law enforcement agencies to make public the name, address, and occupation of every individual arrested by the agency. Cal. Govt. Code Ann. 6254(f) Effective July 1, the state legislature amended 6254(f) to limit the public's access to arrestees' and victims' current addresses. The amended statute provides that state and local law enforcement agencies shall make public: *35 "[T]he current address of every individual arrested by the agency and the current address of the victim of a crime, where the requester declares under penalty of perjury that the request is made for a scholarly, journalistic, political, or governmental purpose, or that the request is made for investigation purposes by a licensed private investigator except that the address of the victim of [certain crimes] shall remain confidential. Address information obtained pursuant to this paragraph shall not be used directly or indirectly to sell a product or service to any individual or group of individuals, and the requester shall execute a declaration to that effect under penalty of perjury." Cal. Govt. Code Ann. 6254(f)(3) Sections 6254(f)(1) and (2) require that state and local law enforcement agencies make public, inter alia, the name, occupation, and physical description, including date of birth, of every individual arrested by the agency, as well as the circumstances of the arrest.[1] Thus, amended 6254(f) limits access only to the arrestees' addresses. *36 Before the effective date of the amendment, respondent sought declaratory and injunctive relief pursuant to Rev. Stat. 1979, 42 U.S. C. 1983, to hold the amendment unconstitutional under the First and Fourteenth Amendments to the United States Constitution. On the effective date of
|
Justice Rehnquist
| 2,000 | 19 |
majority
|
Los Angeles Police Dept. v. United Reporting Publishing Corp.
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https://www.courtlistener.com/opinion/118321/los-angeles-police-dept-v-united-reporting-publishing-corp/
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to the United States Constitution. On the effective date of the statute, petitioner and other law enforcement agencies denied respondent access to the address information because, according to respondent, "[respondent's] employees could not sign section 6254(f)(3) declarations." Brief for Respondent 5. Respondent did not allege, and nothing in the record before this Court indicates, that it ever "declar[ed] under penalty of perjury" that it was requesting information for one of the prescribed purposes and that it would not use the address information to "directly or indirectly sell a product or service," as would have been required by the statute. See 6254(f)(3). Respondent then amended its complaint and sought a temporary restraining order. The District Court issued a temporary restraining order, and, a few days later, issued a preliminary injunction. Respondent then filed a motion for summary judgment, which was granted. In granting the motion, the District Court construed respondent's claim as *37 presenting a facial challenge to amended 6254(f). United Reporting Publishing The court held that the statute was facially invalid under the First Amendment. The Court of Appeals affirmed the District Court's facial invalidation. United Reporting Publishing The court concluded that the statute restricted commercial speech, and, as such, was entitled to "`a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values.' " ). The court applied the test set out in Central Hudson Gas & Elec. and found that the asserted governmental interest in protecting arrestees' privacy was substantial. But, the court held that "the numerous exceptions to 6254(f)(3) for journalistic, scholarly, political, governmental, and investigative purposes render the statute unconstitutional under the First Amendment." The court noted that "[h]aving one's name, crime, and address printed in the local paper is a far greater affront to privacy than receiving a letter from an attorney, substance abuse counselor, or driving school eager to help one overcome his present difficulties (for a fee, naturally)," and thus that the exceptions "undermine and counteract" the asserted governmental interest in preserving arrestees' privacy. Thus, the Court of Appeals affirmed the District Court's grant of summary judgment in favor of respondent and upheld the injunction against enforcement of 6254(f)(3). We granted certiorari. We hold that respondent was not, under our cases, entitled to prevail on a "facial attack" on 6254(f)(3). Respondent's primary argument in the District Court and the Court of Appeals was that 6254(f)(3) was invalid on its *38 face, and respondent maintains that position here. But we believe that our cases hold otherwise. The traditional rule is that "a person to whom a statute may
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Justice Rehnquist
| 2,000 | 19 |
majority
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Los Angeles Police Dept. v. United Reporting Publishing Corp.
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https://www.courtlistener.com/opinion/118321/los-angeles-police-dept-v-united-reporting-publishing-corp/
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rule is that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." New Prototypical exceptions to this traditional rule are First Amendment challenges to statutes based on First Amendment overbreadth. "At least when statutes regulate or proscribe speech the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity.' " "This is deemed necessary because persons whose expression is constitutionally protected may well refrain from exercising their right for fear of criminal sanctions provided by a statute susceptible of application to protected expression." at See also In Gooding, for example, the defendant was one of a group that picketed an Army headquarters building carrying signs opposing the Vietnam war. A confrontation with the police occurred, as a result of which Gooding was charged with "`using opprobrious words and abusive language tending to cause a breach of the peace.' " -519. In Thornhill, the defendant was prosecuted for violation of a statute forbidding any person to "`picket the works or place of business of such other persons, firms, corporations, or associations of persons, for the purpose of hindering, delaying, *39 or interfering with or injuring any lawful business or enterprise' " This is not to say that the threat of criminal prosecution is a necessary condition for the entertainment of a facial challenge. We have permitted such attacks on statutes in appropriate circumstances where no such threat was present. See, e. g., National Endowment for ; ; But the allowance of a facial overbreadth challenge to a statute is an exception to the traditional rule that "a person to whom a statute may constitutionally be applied may not challenge that statute on the ground that it may conceivably be applied unconstitutionally to others in situations not before the Court." Ferber, at (citing at ). This general rule reflects two "cardinal principles" of our constitutional order: the personal nature of constitutional rights and the prudential limitations on constitutional 458 U.S., at "By focusing on the factual situation before us, and similar cases necessary for development of a constitutional rule, we face `flesh and blood' legal problems with data `relevant and adequate to an informed judgment.' " Even though the challenge be based on the First Amendment, the overbreadth doctrine is not casually
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Justice Rehnquist
| 2,000 | 19 |
majority
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Los Angeles Police Dept. v. United Reporting Publishing Corp.
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https://www.courtlistener.com/opinion/118321/los-angeles-police-dept-v-united-reporting-publishing-corp/
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on the First Amendment, the overbreadth doctrine is not casually employed. "Because of the wide-reaching effects of striking down a statute on its face at the request of one whose own conduct may be punished despite the First Amendment, we have recognized that the overbreadth doctrine is `strong medicine' and have employed it with hesitation, and then `only as a last resort.' " at 769 (citing ). "`[F]acial overbreadth adjudication is an exception to our *40 traditional rules of practice and its function, a limited one at the outset, attenuates as the otherwise unprotected behavior that it forbids the State to sanction moves from "pure speech" toward conduct and that conducteven if expressivefalls within the scope of otherwise valid criminal laws' " (quoting ). See also Board of Airport Comm'rs of Los The Court of Appeals held that 6254(f)(3) was facially invalid under the First Amendment. Petitioner contends that the section in question is not an abridgment of anyone's right to engage in speech, be it commercial or otherwise, but simply a law regulating access to information in the hands of the police department. We believe that, at least for purposes of facial invalidation, petitioner's view is correct. This is not a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses. See The California statute in question merely requires that if respondent wishes to obtain the addresses of arrestees it must qualify under the statute to do so. Respondent did not attempt to qualify and was therefore denied access to the addresses. For purposes of assessing the propriety of a facial invalidation, what we have before us is nothing more than a governmental denial of access to information in its possession. California could decide not to give out arrestee information at all without violating the First Amendment.[2] Cf. To the extent that respondent's "facial challenge" seeks to rely on the effect of the statute on parties not before the Courtits potential customers, for exampleits claim does not fit within the case law allowing courts to entertain facial *41 challenges. No threat of prosecution, for example, see Gooding, or cutoff of funds, see NEA, hangs over their heads. They may seek access under the statute on their own just as respondent did, without incurring any burden other than the prospect that their request will be denied. Resort to a facial challenge here is not warranted because there is "[no] possibility that protected speech will be muted." The Court of Appeals was therefore wrong to facially invalidate 6254(f)(3). Respondent urges several grounds as alternative
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Justice White
| 1,979 | 6 |
majority
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FCC v. Midwest Video Corp.
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https://www.courtlistener.com/opinion/110047/fcc-v-midwest-video-corp/
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In May the Federal Communications Commission promulgated rules requiring cable television systems that have 3,500 or more subscribers and carry broadcast signals to develop, at a minimum, a 20-channel capacity by 1986, to make available certain channels for access by third parties, and to furnish equipment and facilities for access purposes. Report and in Docket No. 20508, 59 F. C. C. 2d 294 ( ). The issue here is whether these rules are "reasonably ancillary to the effective performance of the Commission's various responsibilities for the regulation of television broadcasting," United and hence within the Commission's statutory I The regulations now under review had their genesis in rules prescribed by the Commission in 1972 requiring all cable operators in the top 100 television markets to design their systems to include at least 20 channels and to dedicate 4 of those channels for public, governmental, educational, and leased The rules were reassessed in the course of further rulemaking proceedings. As a result, the Commission modified a compliance deadline, Report and in Docket No. 20363, 54 F. C. C. 2d 207 (1975), effected certain substantive changes, and extended the rules to all cable systems having 3,500 or more subscribers, In its *692 the Commission reaffirmed its view that there was "a definite societal good" in preserving access channels, though it acknowledged that the "overall impact that use of these channels can have may have been exaggerated in the past." 59 F. C. C. 2d, at 296. As ultimately adopted, the rules prescribe a series of interrelated obligations ensuring public access to cable systems of a designated size and regulate the manner in which access is to be afforded and the charges that may be levied for providing it. Under the rules, cable systems must possess a minimum capacity of 20 channels as well as the technical capability for accomplishing two-way, nonvoice communication.[1] (1977). Moreover, to the extent of their available activated channel capacity,[2] cable systems must allocate four *693 separate channels for use by public, educational, local governmental, and leased-access users, with one channel assigned to each. 76.254 Absent demand for full-time use of each access channel, the combined demand can be accommodated with fewer than four channels but with at least one. 76.254 (b), (c).[3] When demand on a particular access channel exceeds a specified limit, the cable system must provide another access channel for the same purpose, to the extent of the system's activated capacity. 76.254 (d). The rules also require cable systems to make equipment available for those utilizing public-access channels. 76.256 Under the rules, cable operators are deprived
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Justice White
| 1,979 | 6 |
majority
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FCC v. Midwest Video Corp.
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https://www.courtlistener.com/opinion/110047/fcc-v-midwest-video-corp/
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public-access channels. 76.256 Under the rules, cable operators are deprived of all discretion regarding who may exploit their access channels and what may be transmitted over such channels. System operators are specifically enjoined from exercising any control over the content of access programming except that they must adopt rules proscribing the transmission on most access channels of lottery information and commercial matter.[4] 76.256 *694 (b), (d). The regulations also instruct cable operators to issue rules providing for first-come, nondiscriminatory access on public and leased channels. 76.256 (d) (1), (3). Finally, the rules circumscribe what operators may charge for privileges of access and use of facilities and equipment. No charge may be assessed for the use of one public-access channel. 76.256 (c) (2). Operators may not charge for the use of educational and governmental access for the first five years the system services such users. 76.256 (c) (1). Leased-access-channel users must be charged an "appropriate" fee. 76.256 (d) (3). Moreover, the rules admonish that charges for equipment, personnel, and production exacted from access users "shall be reasonable and consistent with the goal of affording users a low-cost means of television " 76.256 (c) (3). And "[n]o charges shall be made for live public access programs not exceeding five minutes in length." Lastly, a system may not charge access users for utilization of its playback equipment or the personnel required to operate such equipment when the cable's production equipment is not deployed and when tapes or film can be played without technical alteration to the system's equipment. Petition for Reconsideration in Docket No. 20508, 62 F. C. C. 2d 399, 407 The Commission's capacity and access rules were challenged on jurisdictional grounds in the course of the rulemaking proceedings. In its the Commission rejected such comments on the ground that the regulations furthered objectives that it might properly pursue in its supervision over broadcasting. Specifically, the Commission maintained that its rules would promote "the achievement of long-standing communications regulatory objectives by increasing outlets for *695 local self-expression and augmenting the public's choice of programs." 59 F. C. C. 2d, at 298. The Commission did not find persuasive the contention that "the access requirements are in effect common carrier obligations which are beyond our authority to impose." The explanation was: "So long as the rules adopted are reasonably related to achieving objectives for which the Commission has been assigned jurisdiction we do not think they can be held beyond our authority merely by denominating them as somehow `common carrier' in nature. The proper question, we believe, is not whether they fall in one
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Justice White
| 1,979 | 6 |
majority
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FCC v. Midwest Video Corp.
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https://www.courtlistener.com/opinion/110047/fcc-v-midwest-video-corp/
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question, we believe, is not whether they fall in one category or another of regulationwhether they are more akin to obligations imposed on common carriers or obligations imposed on broadcasters to operate in the public interest but whether the rules adopted promote statutory objectives." Additionally, the Commission denied that the rules violated the First Amendment, reasoning that when broadcasting or related activity by cable systems is involved First Amendment values are served by measures facilitating an exchange of ideas. On petition for review, the Eighth Circuit set aside the Commission's access, channel capacity, and facilities rules as beyond the agency's jurisdiction. The court was of the view that the regulations were not reasonably ancillary to the Commission's jurisdiction over broadcasting, a jurisdictional condition established by past decisions of this Court. The rules amounted to an attempt to impose common-carrier obligations on cable operators, the court said, and thus ran counter to the statutory command that broadcasters themselves may not be treated as common carriers. See Communications Act of 1934, 3 (h), 47 U.S. C. 153 (h). Furthermore, the court made plain its belief that the regulations presented grave First Amendment *696 problems. We granted certiorari, and we now affirm.[5] II A The Commission derives its regulatory authority from the Communications Act of 1934, as amended, 47 U.S. C. 151 et seq. The Act preceded the advent of cable television and understandably does not expressly provide for the regulation of that medium. But it is clear that Congress meant to confer "broad authority" on the Commission, H. R. Rep. No. 1850, 73d Cong., 2d Sess., 1 (1934), so as "to maintain, through appropriate administrative control, a grip on the dynamic aspects of radio transmission." To that end, Congress subjected to regulation "all interstate and foreign communication by wire or radio." Communications Act of 1934, 2 47 U.S. C. 152 In United we construed 2 as conferring on the Commission a circumscribed range of power to regulate cable television, and we reaffirmed that determination in United The question now before us is whether the Act, as construed in these two cases, authorizes the capacity and access regulations that are here under challenge. The Southwestern litigation arose out of the Commission's efforts to ameliorate the competitive impact on local broadcasting operations resulting from importation of distant signals by cable systems into the service areas of local stations. *697 Fearing that such importation might "destroy or seriously degrade the service offered by a television broadcaster," First Report and 38 F. C. C. 683, 700 (1965), the Commission promulgated rules requiring CATV systems[6] to carry
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