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Justice Stevens | 1,980 | 16 | majority | Beck v. Alabama | https://www.courtlistener.com/opinion/110313/beck-v-alabama/ | a lesser included offense if the evidence would permit a jury rationally to find him guilty of the lesser offense and acquit him of the greater." at[11] Similarly, the state courts that have addressed *636 the issue have unanimously held that a defendant is entitled to a lesser included offense instruction where the evidence warrants it.[12] Indeed, for all noncapital crimes *637 Alabama itself gives the defendant a right to such instructions under appropriate circumstances. See n. While we have never held that a defendant is entitled to a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offensebut leaves some doubt with respect to an element that would justify conviction of a capital offensethe failure to give the jury the "third option" of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction. Such a risk cannot be tolerated in a case in which the defendant's life is at stake. As we have often stated, there is a significant constitutional difference between the death penalty and lesser punishments: "[D]eath is a different kind of punishment from any other which may be imposed in this country. From the point of view of the defendant, it is different in both its severity and its finality. From the point of view of society, the action of the sovereign in taking the life of one of its citizens also differs dramatically from any other legitimate state action. It is of vital importance to the defendant and to the community that any decision to impose the death sentence be, and appear to be, based on *638 reason rather than caprice or emotion." 37-38 (opinion of STEVENS, J.). To insure that the death penalty is indeed imposed on the basis of "reason rather than caprice or emotion," we have invalidated procedural rules that tended to diminish the reliability of the sentencing determination.[13] The same reasoning must apply to rules that diminish the reliability of the guilt determination. Thus, if the unavailability of a lesser included offense instruction enhances the risk of an unwarranted conviction, Alabama is constitutionally prohibited from withdrawing that option from the jury in a capital case.[14] II Alabama argues, however, that petitioner's factual premise is wrong and that, in the context of |
Justice Stevens | 1,980 | 16 | majority | Beck v. Alabama | https://www.courtlistener.com/opinion/110313/beck-v-alabama/ | factual premise is wrong and that, in the context of an apparently mandatory *639 death penalty statute, the preclusion of lesser included offense instructions heightens, rather than diminishes, the reliability of the guilt determination. The argues that, because the jury is led to believe that a death sentence will automatically follow a finding of guilt,[1] it will be more likely to acquit than to convict whenever it has anything approaching a reasonable doubt. In support of this theory the relies on the historical data described in which indicated that American juries have traditionally been so reluctant to impose the death penalty that they have "with some regularity, disregarded their oaths and refused to convict defendants where a death sentence was the automatic consequence of a guilty verdict." The 's argument is based on a misreading of our cases striking down mandatory death penalties. In the Court held unconstitutional a Georgia statute that vested the jury with complete and unguided discretion to impose the death penalty or not as it saw fit, on the ground that such a procedure led to the "wanton" and "freakish" imposition of the penalty. In response to Furman several enacted statutes that purported to withdraw any and all discretion from the jury with respect to the punishment decision by making the death penalty automatic on a finding of guilt. But, as the prevailing opinion noted in in so doing the "simply papered over the problem of unguided and unchecked jury discretion." For, as historical evidence indicated, juries faced with a mandatory death penalty statute often *640 created their own sentencing discretion by distorting the factfinding process, acquitting even a clearly guilty defendant if they felt he did not deserve to die for his crime. Because the jury was given no guidance whatsoever for determining when it should exercise this de facto sentencing power, the mandatory death statutes raised the same possibility that the death penalty would be imposed in an arbitrary and capricious manner as the statute held invalid in Furman.[16] The Alabama statute, which was enacted after Furman but before has many of the same flaws that made the North statute unconstitutional. Thus, the Alabama statute makes the guilt determination depend, at least in part, on the jury's feelings as to whether or not the defendant deserves the death penalty, without giving the jury any standards to guide its decision on this issue. In cert. denied, Chief Justice Torbert attempted to distinguish the Alabama death statute from the North and Louisiana statutes on the ground that the unavailability of lesser included offense instructions substantially reduces |
Justice Stevens | 1,980 | 16 | majority | Beck v. Alabama | https://www.courtlistener.com/opinion/110313/beck-v-alabama/ | that the unavailability of lesser included offense instructions substantially reduces the risk of jury nullification. Thus, because of their reluctance to acquit a defendant who is obviously guilty of some serious crime, juries will be unlikely to disregard their oaths and acquit a defendant who is guilty of a capital crime simply because of their abhorrence of the death penalty. *641 However, because the death penalty is mandatory, the argues that the jury will be especially careful to accord the defendant the full benefit of the reasonable-doubt standard. In the 's view the end result is a perfect balance between competing emotional pressures that ensures the defendant a reliable procedure, while at the same time reducing the possibility of arbitrary and capricious guilt determinations.[17] The 's theory, however, is supported by nothing more than speculation. The 96% conviction rate achieved by prosecutors under the Alabama statute hardly supports the notion that the statute creates such a perfect equipoise.[18]*642 Moreover, it seems unlikely that many jurors would react in the theoretically perfect way the suggests. As Justice Shores stated in dissent in at 61-62: "The Supreme Court of the United did remark in Furman, infra, and again in that this nation abhorred the mandatory death sentence. I suggest that, although there is no historical data to support it, most, if not all, jurors at this point in our history perhaps equally abhor setting free a defendant where the evidence establishes his guilt of a serious crime. We have no way of knowing what influence either of these factors have on a jury's deliberation, and which of these unappealing alternatives a jury opts for in a particular case is a matter of purest conjecture. We cannot know that one outweighs the other. Jurors are not expected to come into the jury box and leave behind all that their human experience has taught them. The increasing crime rate in this country is a source of concern to all Americans. To expect a jury to ignore this reality and to find a defendant innocent and thereby set him free when the evidence establishes beyond doubt that he is guilty of some violent crime requires of our juries clinical detachment from the reality of human experience." In the final analysis the difficulty with the Alabama statute is that it interjects irrelevant considerations into the factfinding process, diverting the jury's attention from the central issue of whether the has satisfied its burden of proving beyond a reasonable doubt that the defendant is guilt of a capital crime. Thus, on the one hand, the unavailability of the |
Justice Stevens | 1,980 | 16 | majority | Beck v. Alabama | https://www.courtlistener.com/opinion/110313/beck-v-alabama/ | crime. Thus, on the one hand, the unavailability of the third option of convicting on a lesser included offense may encourage the jury to convict for an impermissible reason its belief that the defendant is guilty of some serious crime and should be punished. On the other hand, the apparently mandatory nature of the death penalty may encourage it to *643 acquit for an equally impermissible reasonthat, whatever his crime, the defendant does not deserve death.[19] In any particular case these two extraneous factors may favor the defendant or the prosecution or they may cancel each other out. But in every case they introduce a level of uncertainty and unreliability into the factfinding process that cannot be tolerated in a capital case. III The also argues that, whatever the effect of precluding lesser included offense instructions might otherwise be, there is no possibility of harm under the Alabama statute because of two additional safeguards. First, although the jury may not convict the defendant of a lesser included offense, the argues that it may refuse to return any verdict at all in a doubtful case, thus creating a mistrial. After a mistrial, the may reindict on the capital offense or on lesser included offenses.[20] In this case the jury was instructed *644 that a mistrial would be declared if it was unable to agree on a verdict or if it was unable to agree on fixing the death penalty; it was also told that, in the event of a mistrial, the defendant could be tried again. Record 743. We are not persuaded by the 's argument that the mistrial "option" is an adequate substitute for proper instructions on lesser included offenses. It is extremely doubtful that juries will understand the full implications of a mistrial[21] or will have any confidence that their choice of the mistrial option will ultimately lead to the right result. Thus, they could have no assurance that a second trial would end in the conviction of the defendant on a lesser included offense. Moreover, invoking the mistrial option in a case in which the jury agrees that the defendant is guilty of some offense, though not the offense charged, would require the jurors to violate their oaths to acquit in a proper casecontrary to the 's assertions that juries should not be expected to make such lawless choices. Finally, the fact that lesser included offense instructions have traditionally been given in noncapital cases despite the availability of the mistrial "option" *64 indicates that such instructions provide a necessary additional measure of protection for the defendant. The 's |
Justice Stevens | 1,980 | 16 | majority | Beck v. Alabama | https://www.courtlistener.com/opinion/110313/beck-v-alabama/ | necessary additional measure of protection for the defendant. The 's second argument is that, even if a defendant is erroneously convicted, the fact that the judge has the ultimate sentencing power will ensure that he is not improperly sentenced to death. Again, we are not persuaded that sentencing by the judge compensates for the risk that the jury may return an improper verdict because of the unavailability of a "third option." If a fully instructed jury would find the defendant guilty only of a lesser, noncapital offense, the judge would not have the opportunity to impose the death sentence. Moreover, it is manifest that the jury's verdict must have a tendency to motivate the judge to impose the same sentence that the jury did. Indeed, according to statistics submitted by the 's Attorney General, it is fair to infer that the jury verdict will ordinarily be followed by the judge even though he must hold a separate hearing in aggravation and mitigation before he imposes sentence.[22] Under these circumstances, we are unwilling to presume that a post-trial hearing will always correct *646 whatever mistakes have occurred in the performance of the jury's factfinding function. Accordingly, the judgment of the Alabama Supreme Court is Reversed. MR. |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | We are called on to determine whether the federal drug forfeiture statute includes an exemption for assets that a defendant wishes to use to pay an attorney who conducted his defense in the criminal case where forfeiture was sought. Because we determine that no such exemption exists, we must decide whether that statute, so interpreted, is consistent with the Fifth and Sixth Amendments. We hold that it is. I In January 1985, Christopher Reckmeyer was charged in a multicount indictment with running a massive drug importation and distribution scheme. The scheme was alleged to be a continuing criminal enterprise (CCE), in violation of as amended, 21 U.S. C. 848 (1982 ed., Supp. V). Relying on a portion of the CCE statute that authorizes forfeiture to the Government of "property constituting, or derived from proceeds obtained" from drug-law *620 violations, 853(a),[1] the indictment sought forfeiture of specified assets in Reckmeyer's possession. App. 33-40. At this time, the District Court, acting pursuant to 853(e)(1) (A),[2] entered a restraining order forbidding Reckmeyer to transfer any of the listed assets that were potentially forfeitable. Sometime earlier, Reckmeyer had retained petitioner, a law firm, to represent him in the ongoing grand jury investigation which resulted in the January 1985 indictments. Notwithstanding the restraining order, Reckmeyer paid the firm $25,000 for preindictment legal services a few days after the indictment was handed down; this sum was placed by petitioner in an escrow account. Petitioner continued to represent Reckmeyer following the indictment. *621 On March 7, 1985, Reckmeyer moved to modify the District Court's earlier restraining order to permit him to use some of the restrained assets to pay petitioner's fees; Reckmeyer sought to exempt from any postconviction forfeiture order the assets that he intended to use to pay petitioner. However, one week later, before the District Court could conduct a hearing on this motion, Reckmeyer entered a plea agreement with the Government. Under the agreement, Reckmeyer pleaded guilty to the drug-related CCE charge, and agreed to forfeit all of the specified assets listed in the indictment. The day after the Reckmeyer's plea was entered, the District Court denied his earlier motion to modify the restraining order, concluding that the plea and forfeiture agreement rendered irrelevant any further consideration of the propriety of the court's pretrial restraints. App. 54-55. Subsequently, an order forfeiting virtually all of the assets in Reckmeyer's possession was entered by the District Court in conjunction with his sentencing. After this order was entered, petitioner filed a petition under 853(n), which permits third parties with an interest in forfeited property to ask the sentencing |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | with an interest in forfeited property to ask the sentencing court for an adjudication of their rights to that property; specifically, 853(n) (6)(B) gives a third party who entered into a bona fide transaction with a defendant a right to make claims against forfeited property, if that third party was "at the time of [the transaction] reasonably without cause to believe that the [defendant's assets were] subject to forfeiture." See 853 (c). Petitioner claimed an interest in $170,000 of Reckmeyer's assets, for services it had provided Reckmeyer in conducting his defense; petitioner sought the $25,000 being held in the escrow account, as payment for preindictment legal services. Petitioner argued alternatively that assets used to pay an attorney were exempt from forfeiture under 853, and if not, the failure of the statute to provide such an exemption rendered it unconstitutional. The District Court granted petitioner's claim for a share of the forfeited assets. *622 A panel of the Fourth Circuit affirmed, finding that while 853 contained no statutory provision authorizing the payment of attorney's fees out of forfeited assets the statute's failure to do so impermissibly infringed a defendant's Sixth Amendment right to the counsel of his choice. United The Court of Appeals agreed to hear the case en banc and reversed. Sub nom. In re Forfeiture Hearing as to Caplin & Drysdale, Chartered, All the judges of the Fourth Circuit agreed that the language of the CCE statute acknowledged no exception to its forfeiture requirement that would recognize petitioner's claim to the forfeited assets. A majority found this statutory scheme constitutional, ; four dissenting judges, however, agreed with the panel's view that the statute so construed violated the Sixth Amendment, Petitioner sought review of the statutory and constitutional issues raised by the Court of Appeals' holding. We granted certiorari, and now affirm. II Petitioner's first submission is that the statutory provision that authorizes pretrial restraining orders on potentially forfeitable assets in a defendant's possession, 21 U.S. C. 853 (e) (1982 ed., Supp. V), grants district courts equitable discretion to determine when such orders should be imposed. This discretion should be exercised under "traditional equitable standards," petitioner urges, including a "weigh[ing] of the equities and competing hardships on the parties"; under this approach, a court "must invariably strike the balance so as to allow a defendant [to pay] for bona fide attorneys fees," petitioner argues. Brief for Petitioner 8. Petitioner further submits that once a district court so exercises its discretion, and fails to freeze assets that a defendant then uses to pay an attorney, the statute's provision for |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | then uses to pay an attorney, the statute's provision for recapture of *6 forfeitable assets transferred to third parties, 853(c), may not operate on such sums. Petitioner's argument, as it acknowledges, is based on the view of the statute expounded by Judge Winter of the Second Circuit in his concurring opinion in that Court of Appeals' en banc decision, United We reject this interpretation of the statute today in our decision in United ante, p. 600, which reverses the Second Circuit's holding in that case. As we explain in our Monsanto decision, ante, at 611-614, whatever discretion 853(e) provides district court judges to refuse to enter pretrial restraining orders, it does not extend as far as petitioner urges nor does the exercise of that discretion "immunize" nonrestrained assets from subsequent forfeiture under 853(c), if they are transferred to an attorney to pay legal fees. Thus, for the reasons provided in our opinion in Monsanto, we reject petitioner's statutory claim. III We therefore address petitioner's constitutional challenges to the forfeiture law.[3] Petitioner contends that the statute *624 infringes on criminal defendants' Sixth Amendment right to counsel of choice, and upsets the "balance of power" between the Government and the accused in a manner contrary to the Due Process Clause of the Fifth Amendment. We consider these contentions in turn. A Petitioner's first claim is that the forfeiture law makes impossible, or at least impermissibly burdens, a defendant's right "to select and be represented by one's preferred attorney." Petitioner does not, nor could it defensibly do so, assert that impecunious defendants have a Sixth Amendment right to choose their counsel. The Amendment guarantees defendants in criminal cases the right to adequate representation, but those who do not have the means to hire their own lawyers have no cognizable complaint so long as they are adequately represented by attorneys appointed by the courts. "[A] defendant may not insist on representation by an attorney he cannot afford." at Petitioner does not dispute these propositions. Nor does the Government deny that the Sixth Amendment guarantees a defendant the right to be represented by an otherwise qualified attorney whom that defendant can afford to hire, or who is willing to represent the defendant even though he is without *625 funds. Applying these principles to the statute in question here, we observe that nothing in 853 prevents a defendant from hiring the attorney of his choice, or disqualifies any attorney from serving as a defendant's counsel. Thus, unlike this case does not involve a situation where the Government has asked a court to prevent a defendant's |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | the Government has asked a court to prevent a defendant's chosen counsel from representing the accused. Instead, petitioner urges that a violation of the Sixth Amendment arises here because of the forfeiture, at the instance of the Government, of assets that defendants intend to use to pay their attorneys. Even in this sense, of course, the burden the forfeiture law imposes on a criminal defendant is limited. The forfeiture statute does not prevent a defendant who has nonforfeitable assets from retaining any attorney of his choosing. Nor is it necessarily the case that a defendant who possesses nothing but assets the Government seeks to have forfeited will be prevented from retaining counsel of choice. Defendants like Reckmeyer may be able to find lawyers willing to represent them, hoping that their fees will be paid in the event of acquittal, or via some other means that a defendant might come by in the future. The burden placed on defendants by the forfeiture law is therefore a limited one. Nonetheless, there will be cases where a defendant will be unable to retain the attorney of his choice, when that defendant would have been able to hire that lawyer if he had access to forfeitable assets, and if there was no risk that fees paid by the defendant to his counsel would later be recouped under 853(c).[4] It is in these cases, petitioner argues, that the Sixth Amendment puts limits on the forfeiture statute. *626 This submission is untenable. Whatever the full extent of the Sixth Amendment's protection of one's right to retain counsel of his choosing, that protection does not go beyond "the individual's right to spend his own money to obtain the advice and assistance of counsel." A defendant has no Sixth Amendment right to spend another person's money for services rendered by an attorney, even if those funds are the only way that that defendant will be able to retain the attorney of his choice. A robbery suspect, for example, has no Sixth Amendment right to use funds he has stolen from a bank to retain an attorney to defend him if he is apprehended. The money, though in his possession, is not rightfully his; the Government does not violate the Sixth Amendment if it seizes the robbery proceeds and refuses to permit the defendant to use them to pay for his defense. "[N]o lawyer, in any case, has the right to accept stolen property, or ransom money, in payment of a fee. The privilege to practice law is not a license to steal." Petitioner appears to concede as much, |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | a license to steal." Petitioner appears to concede as much, see Brief for Petitioner 40, n. 25, as respondent in Monsanto clearly does, see Brief for Respondent in No. 88-454, pp. 36-37. Petitioner seeks to distinguish such cases for Sixth Amendment purposes by arguing that the bank's claim to robbery proceeds rests on "pre-existing property rights," while the Government's claim to forfeitable assets rests on a "penal statute" which embodies the "fictive property-law concept of. relation-back" and is merely "a mechanism for preventing fraudulent conveyances of the defendant's assets, not a device for determining true title to property." Brief for Petitioner 40-41. In light of this, petitioner contends, the burden placed on defendant's Sixth Amendment rights by the forfeiture statute outweighs the Government's interest in forfeiture. *627 The premises of petitioner's constitutional analysis are unsound in several respects. First, the property rights given the Government by virtue of the forfeiture statute are more substantial than petitioner acknowledges. In 853(c), the so-called "relation-back" provision, Congress dictated that "[a]ll right, title and interest in property" obtained by criminals via the illicit means described in the statute "vests in the United States upon the commission of the act giving rise to forfeiture." 21 U.S. C. 853(c) (1982 ed., Supp. V). As Congress observed when the provision was adopted, this approach, known as the "taint theory," is one that "has long been recognized in forfeiture cases," including the decision in United See S. Rep. No. 98-225, p. 200, and n. 27 In the Court explained the operation of a similar forfeiture provision (for violations of the Internal Revenue Code) as follows: "As soon as [the possessor of the forfeitable asset committed the violation] of the internal revenue laws, the forfeiture under those laws took effect, and (though needing judicial condemnation to perfect it) operated from that time as a statutory conveyance to the United States of all the right, title and interest then remaining in the [possessor]; and was as valid and effectual, against all the world, as a recorded deed. The right so vested in the United States could not be defeated or impaired by any subsequent dealings of the [possessor]." In sum, 853(c) reflects the application of the long-recognized and lawful practice of vesting title to any forfeitable assets, in the United States, at the time of the criminal act giving rise to forfeiture. Concluding that Reckmeyer cannot give good title to such property to petitioner because he did not hold good title is neither extraordinary or novel. Nor does petitioner claim, as a general proposition that the relation-back provision is unconstitutional, |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | as a general proposition that the relation-back provision is unconstitutional, or that Congress cannot, as a general matter, vest title to assets derived from the crime in *628 the Government, as of the date of the criminal act in question. Petitioner's claim is that whatever part of the assets that is necessary to pay attorney's fees cannot be subjected to forfeiture. But given the Government's title to Reckmeyer's assets upon conviction, to hold that the Sixth Amendment creates some right in Reckmeyer to alienate such assets, or creates a right on petitioner's part to receive these assets, would be peculiar. There is no constitutional principle that gives one person the right to give another's property to a third party, even where the person seeking to complete the exchange wishes to do so in order to exercise a constitutionally protected right. While petitioner and its supporting amici attempt to distinguish between the expenditure of forfeitable assets to exercise one's Sixth Amendment rights, and expenditures in the pursuit of other constitutionally protected freedoms, see, e. g., Brief for American Bar Association as Amicus Curiae 6, there is no such distinction between, or hierarchy among, constitutional rights. If defendants have a right to spend forfeitable assets on attorney's fees, why not on exercises of the right to speak, practice one's religion, or travel? The full exercise of these rights, too, depends in part on one's financial wherewithal; and forfeiture, or even the threat of forfeiture, may similarly prevent a defendant from enjoying these rights as fully as he might otherwise. Nonetheless, we are not about to recognize an antiforfeiture exception for the exercise of each such right; nor does one exist for the exercise of Sixth Amendment rights.[5] *629 Petitioner's "balancing analysis" to the contrary rests substantially on the view that the Government has only a modest interest in forfeitable assets that may be used to retain an attorney. Petitioner takes the position that, in large part, once assets have been paid over from client to attorney, the principal ends of forfeiture have been achieved: dispossessing a drug dealer or racketeer of the proceeds of his wrongdoing. See Brief for Petitioner 39; see -925. We think that this view misses the mark for three reasons. First, the Government has a pecuniary interest in forfeiture that goes beyond merely separating a criminal from his ill-gotten gains; that legitimate interest extends to recovering all forfeitable assets, for such assets are deposited in a Fund that supports law-enforcement efforts in a variety of important and useful ways. See 28 U.S. C. 524(c), which establishes the Department |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | ways. See 28 U.S. C. 524(c), which establishes the Department of Justice Assets Forfeiture Fund. The sums of money that can be raised for law-enforcement activities this way are substantial,[6] and the Government's interest in using the profits of crime to fund these activities should not be discounted. Second, the statute permits "rightful owners" of forfeited assets to make claims for forfeited assets before they are retained by the Government. See 21 U.S. C. 853(n)(6)(A). The Government's interest in winning undiminished forfeiture thus includes the objective of returning property, in full, to those wrongfully deprived or defrauded of it. Where the Government pursues this restitutionary end, the Government's interest in forfeiture is virtually indistinguishable from its interest in returning to a bank the proceeds of a bank robbery; and a forfeiture-defendant's claim of right to use *630 such assets to hire an attorney, instead of having them returned to their rightful owners, is no more persuasive than a bank robber's similar claim. Finally, as we have recognized previously, a major purpose motivating congressional adoption and continued refinement of the racketeer influenced and corrupt organizations (RICO) and CCE forfeiture provisions has been the desire to lessen the economic power of organized crime and drug enterprises. See This includes the use of such economic power to retain private counsel. As the Court of Appeals put it: "Congress has already underscored the compelling public interest in stripping criminals such as Reckmeyer of their undeserved economic power, and part of that undeserved power may be the ability to command high-priced legal talent." The notion that the Government has a legitimate interest in depriving criminals of economic power, even insofar as that power is used to retain counsel of choice, may be somewhat unsettling. See, e. g., Tr. of Oral Arg. 50-52. But when a defendant claims that he has suffered some substantial impairment of his Sixth Amendment rights by virtue of the seizure or forfeiture of assets in his possession, such a complaint is no more than the reflection of "the harsh reality that the quality of a criminal defendant's representation frequently may turn on his ability to retain the best counsel money can buy." Again, the Court of Appeals put it aptly: "The modern day Jean Valjean must be satisfied with appointed counsel. Yet the drug merchant claims that his possession of huge sums of money entitles him to something more. We reject this contention, and any notion of a constitutional right to use the proceeds of crime to finance an expensive defense."[7] *631 It is our view that there is a strong |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | *631 It is our view that there is a strong governmental interest in obtaining full recovery of all forfeitable assets, an interest that overrides any Sixth Amendment interest in permitting criminals to use assets adjudged forfeitable to pay for their defense. Otherwise, there would be an interference with a defendant's Sixth Amendment rights whenever the Government freezes or takes some property in a defendant's possession before, during, or after a criminal trial. So-called "jeopardy assessments" Internal Revenue Service (IRS) seizures of assets to secure potential tax liabilities, see 26 U.S. C. 6861 may impair a defendant's ability to retain counsel in a way similar to that complained of here. Yet these assessments have been upheld against constitutional attack,[8] and we note that the respondent in Monsanto concedes their constitutionality, see Brief for Respondent in No. 88-454, p. 37, n. 20. Moreover, petitioner's claim to a share of the forfeited assets postconviction would suggest that the Government could never impose a burden on assets within a defendant's control that could be used to pay a lawyer.[9] Criminal defendants, however, are not exempted *632 from federal, state, and local taxation simply because these financial levies may deprive them of resources that could be used to hire an attorney. We therefore reject petitioner's claim of a Sixth Amendment right of criminal defendants to use assets that are the Government's assets adjudged forfeitable, as Reckmeyer's were to pay attorney's fees, merely because those assets are in their possession.[10] See Monsanto, ante, at 613, *633 which rejects a similar claim with respect to pretrial orders and assets not yet judged forfeitable. B Petitioner's second constitutional claim is that the forfeiture statute is invalid under the Due Process Clause of the Fifth Amendment because it permits the Government to upset the "balance of forces between the accused and his accuser." We are not sure that this contention adds anything to petitioner's Sixth Amendment claim, because, while "[t]he Constitution guarantees a fair trial through the Due Process Clauses it defines the basic elements of a fair trial largely through the several provisions of the Sixth Amendment," We have concluded above that the Sixth Amendment is not offended by the forfeiture provisions at issue here. Even if, however, the Fifth Amendment provides some added protection not encompassed in the Sixth Amendment's more specific provisions, we find petitioner's claim based on the Fifth Amendment unavailing. *634 Forfeiture provisions are powerful weapons in the war on crime; like any such weapons, their impact can be devastating when used unjustly. But due process claims alleging such abuses |
Justice White | 1,989 | 6 | majority | Caplin & Drysdale, Chartered v. United States | https://www.courtlistener.com/opinion/112311/caplin-drysdale-chartered-v-united-states/ | when used unjustly. But due process claims alleging such abuses are cognizable only in specific cases of prosecutorial misconduct (and petitioner has made no such allegation here) or when directed to a rule that is inherently unconstitutional. "The fact that the Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it invalid," United Petitioner's claim that the power available to prosecutors under the statute could be abused proves too much, for many tools available to prosecutors can be misused in a way that violates the rights of innocent persons. As the Court of Appeals put it, in rejecting this claim when advanced below: "Every criminal law carries with it the potential for abuse, but a potential for abuse does not require a finding of facial invalidity." We rejected a claim similar to petitioner's last Term, in In the petitioner argued that permitting a court to disqualify a defendant's chosen counsel because of conflicts of interest over that defendant's objection to the disqualification would encourage the Government to "manufacture" such conflicts to deprive a defendant of his chosen attorney. While acknowledging that this was possible, we declined to fashion the per se constitutional rule petitioner sought in instead observing that "trial courts are undoubtedly aware of [the] possibility" of abuse, and would have to "take it into consideration," when dealing with disqualification motions. A similar approach should be taken here. The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them, e. g., by attempting to impose them on persons who should not be subjected to that punishment. Cf. Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise. IV For the reasons given above, we find that petitioner's statutory and constitutional challenges to the forfeiture imposed here are without merit. The judgment of the Court of Appeals is therefore Affirmed. |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | The First Amendment's Establishment Clause prohibits Congress (and, by incorporation, the States) from making any law respecting an establishment of It has been *868 held to prohibit not only the institution of an official church, but any government act favoring a particular or for that matter ir. Thus, it bars the use of public funds for religious aid. The establishment prohibition of government religious funding serves more than one end. It is meant to guarantee the right of individual conscience against compulsion, to protect the integrity of against the corrosion of secular support, and to preserve the unity of political society against the implied exclusion of the less favored and the antagonism of controversy over public support for religious causes. These objectives are always in some jeopardy since the substantive principle of no aid to is not the only limitation on government action toward Because the First Amendment also bars any prohibition of individual free exercise of and because religious organizations cannot be isolated from the basic government functions that create the civil environment, it is as much necessary as it is difficult to draw lines between forbidden aid and lawful benefit. For more than 50 years, this Court has been attempting to draw these lines. Owing to the variety of factual circumstances in which the lines must be drawn, not of the points creating the boundary have enjoyed self-evidence. So far as the line drawn has addressed government aid to education, a few fundamental generalizations are nonetheless possible. There may be no aid supporting a sectarian school's religious exercise or the discharge of its religious mission, while aid of a secular character with no discernible benefit to such a sectarian objective is owable. Because the religious and secular spheres largely overlap in the life of many such schools, the Court has tried to identify some facts likely to reveal the relative religious or secular intent or effect of the government benefits in particular circumstances. We have asked whether the government is acting neutry in distributing its money, and about the form of the aid itself, its path from government to religious institution, *869 its divertibility to religious nurture, its potential for reducing traditional expenditures of religious institutions, and its relative importance to the recipient, among other things. In the years of its effort, the Court has isolated no single test of constitutional sufficiency, and the question in every case addresses the substantive principle of no aid: what reasons are there to characterize this benefit as aid to the sectarian school in discharging its religious mission? Particular factual circumstances control, |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | school in discharging its religious mission? Particular factual circumstances control, and the answer is a matter of judgment. In what follows I will flesh out this summary, for this case comes at a time when our judgment requires perspective on how the Establishment Clause has come to be understood and applied. It is not just that a majority today mistakes the significance of facts that have led to conclusions of unconstitutionality in earlier cases, though I believe the Court commits error in failing to recognize the divertibility of funds to the service of religious objectives. What is more important is the view revealed in the plurality opinion, which espouses a new conception of neutrality as a practicy sufficient test of constitutionality that would, if adopted by the Court, eliminate enquiry into a law's effects. The plurality position breaks fundamenty with Establishment Clause principle, and with the methodology painstakingly worked out in support of it. I mean to revisit that principle and describe the methodology at some length, lest there be any question about the rupture that the plurality view would cause. From that new view of the law, and from a majority's mistaken application of the old, I respectfully dissent. I The prohibition that "Congress sh make no law respecting an establishment of" U. S. Const., Amdt. 1, eludes elegant conceptualization simply because the prohibition applies to such distinct phenomena as state churches and aid to religious schools, and as applied to school aid has *870 prompted chenges to programs ranging from construction subsidies to hearing aids to textbook loans. Any criteria, moreover, must not only define the margins of the establishment prohibition, but must respect the succeeding Clause of the First Amendment guaranteeing 's free exercise. It is no wonder that the complementary constitutional provisions and the inexhaustably various circumstances of their applicability have defied any simple test and have instead produced a combination of general rules often in tension at their edges. If coherence is to be had, the Court has to keep in mind the principal objectives served by the Establishment Clause, and its application to school aid, and their recollection may help to explain the misunderstandings that underlie the majority's result in this case. A At least three concerns have been expressed since the founding and run throughout our First Amendment jurisprudence. First, compelling an individual to support violates the fundamental principle of freedom of conscience. Madison's and Jefferson's now familiar words establish clearly that liberty of personal conviction requires freedom from coercion to support[1] and this means that the government can compel no aid to |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | this means that the government can compel no aid to fund it. Madison put it simply: "[T]he same authority which can force a citizen to *871 contribute three pence only of his property for the support of any one establishment, may force him to conform to any other establishment." Memorial and Remonstrance ¶ 3, reprinted in Any tax to establish is antithetical to the command "that the minds of men always be wholly free." ; (noting Jefferson's belief that "compel[ling] a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical; even the forcing him to support this or that teacher of his own religious persuasion, is depriving him of the comfortable liberty of giving his contributions to the particular pastor, whose morals he would make his pattern" (internal quotation marks omitted)); see also Second, government aid corrupts See ; Madison argued that establishment of weakened the beliefs of adherents so favored, strengthened their opponents, and generated "pride and indolence in the Clergy; ignorance and servility in the laity; [and] in both, superstition, bigotry and persecution." Memorial and Remonstrance ¶ 7, quoted in "[E]xperience witnesseth that ecclesiastical establishments, instead of maintaining the purity and efficacy of Religion, have had a contrary operation." In a variant of Madison's concern, we have repeatedly that a government's favor to a particular or sect threatens to taint it with "corrosive secularism." ; see also Illinois ex rel. "[G]overnment and have discrete interests which are mutuy best served when each avoids too close a proximity to the other. It is not only the nonbeliever who fears the injection of sectarian doctrines and controversies into the civil polity, but in as high degree it is the devout believer who fears the secularization of a creed which becomes too deeply involved with and dependent upon the government." School Dist. of Abing- ton See also Third, government establishment of is inextricably linked with conflict. ; ; In our own history, the turmoil thus produced has led to a rejection of the idea that government should subsidize religious education, (discussing history of rejection of support for religious schools); a position that illustrates the Court's understanding that any implicit endorsement of is unconstitutional, see of[2] *873 B These concerns are reflected in the Court's classic summation delivered in v. Board of its first opinion directly addressing standards governing aid to religious schools:[3] "The `establishment of ' clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws which |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | can set up a church. Neither can pass laws which aid one aid s, or prefer one over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or sm, can be levied to support any religious activities or institutions, whatever they may be ced, or whatever form they may adopt to teach or practice Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa In the words of Jefferson, the clause against establishment of by law was intended to erect `a w of separation between church and State.' " -16 ). The most directly pertinent doctrinal statements here are these: no government "can pass laws which aid one *874 [or] s No tax in any amount can be levied to support any religious activities or institutions whatever form they may adopt to teach" Thus, the principle of "no aid," with which no one in disagreed.[4] Immediately, however, there was the difficulty over what might amount to "aid" or "support." The problem for the Court was not merely the imprecision of the words, but the "other language of the [First Amendment that] commands that [government] cannot hamper its citizens in the free exercise of their own" ib with the consequence that government must "be a neutral in its relations with groups of religious believers and non-believers," Since withholding some public benefits from religious groups could be said to "hamper" religious exercise indirectly, and extending other benefits said to aid it, an argument-proof formulation of the no-aid principle was impossible, and the Court wisely chose not to attempt any such thing. Instead it gave definitive examples of public benefits provided pervasively throughout society that would be of some value to organized but not in a way or to a degree that could sensibly be described as giving it aid or violating the neutrality requirement: there was no Establishment Clause concern with "such general government services as ordinary police and fire protection, connections for sewage disposal, public highways and sidewalks." These "benefits of public welfare legislation," extended in modern times to virtuy every member of the population and valuable to every person and association, were the paradigms of advantages that religious organizations *875 could enjoy consistently with the prohibition against aid, and that |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | could enjoy consistently with the prohibition against aid, and that governments could extend without deserting their required position of neutrality. But paradigms are not perfect fits very often, and government spending resists easy classification as between universal general service or subsidy of favoritism. The 5-to-4 division of the Court turned on the inevitable question whether reimbursing parents for the cost of transporting their children to school was close enough to police protection to tolerate its indirect benefit in some degree to religious schools, with the majority in thinking the reimbursement statute fell on the lawful side of the line. Although the state scheme reimbursed parents for transporting children to sectarian schools, among others, it gave "no money to the schools. It [did] not support them. Its legislation [did] no more than provide a general program to help parents get their children, regardless of their safely and expeditiously to and from accredited schools." The dissenters countered with factual analyses showing the limitation of the law's benefits in fact to school pupils who were Roman Catholics, and indicating the inseparability of transporting pupils to school from support for the religious instruction that was the school's raison d'être, is usefully understood in the light of a successor case two decades later, Board of Ed. of Central School Dist. No. in which the chenged government practice was lending textbooks to pupils of schools both public and including religious ones (as to which there was no evidence that they had previously supplied books to their classes and some evidence that they had not, ). By the time of the problem of classifying the state benefit, as between aid to and general public service consistent with government neutrality, *876 had led to the formulation of a "test" that required secular, primary intent and effect as necessary conditions of any permissible scheme. Again the Court split, upholding the state law in issue, but with ' s majority author, Justice Black, now in dissent. What is remarkable about today, however, is not so much its division as its methodology, for the consistency in the way the Justices went about deciding the case transcended their different conclusions. Neither side rested on any facile application of the "test" or any simplistic reliance on the generality or evenhandedness of the state law. Disagreement concentrated on the true intent inferrable behind the law, the feasibility of distinguishing in fact between religious and secular teaching in church schools, and the reality or sham of lending books to pupils instead of supplying books to schools. The majority, to be sure, cited the provision for |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | schools. The majority, to be sure, cited the provision for books to schoolchildren, regardless of 392 U.S., just as the majority had spoken of the transportation reimbursement as going to in each case for the sake of analogy to the provision of police and fire services.[5] But the stress was on the practical significance of the actual benefits received by the schools. As had rested on the understanding that no money and no support went to the school, emphasized that the savings to parents were devoid of any measurable effect in teaching 392 U.S., -244. Justice Harlan, concurring, summed up the approach with his observations that the required government "[n]eutrality is a coat of many colors," and quoted Justice Goldberg's conclusion, that there was "`no simple and clear measure' by which this or any [religious school aid] case may readily be decided," (quoting ). *877 After and the state of the law applying the Establishment Clause to public expenditures producing some benefit to religious schools was this: 1. Government aid to is forbidden, and tax revenue may not be used to support a religious school or religious teaching. 2. Government provision of such paradigms of universy general welfare benefits as police and fire protection does not count as aid to 3. Whether a law's benefit is sufficiently close to universy general welfare paradigms to be classified with them, as distinct from religious aid, is a function of the purpose and effect of the chenged law in its particularity. The judgment is not reducible to the application of any formula. Evenhandedness of distribution as between religious and secular beneficiaries is a relevant factor, but not a sufficiency test of constitutionality. There is no rule of religious equal protection to the effect that any expenditure for the benefit of religious school students is necessarily constitutional so long as public school pupils are favored on ostensibly identical terms. 4. Government must maintain neutrality as to "neutrality" being a conclusory label for the required position of government as neither aiding nor impeding religious exercise by believers. "Neutrality" was not the name of any test to identify permissible action, and in particular, was not synonymous with evenhandedness in conferring benefit on the secular as well as the religious. Today, the substantive principle of no aid to religious mission remains the governing understanding of the Establishment Clause as applied to public benefits inuring to religious schools. The governing opinions on the subject in the 35 years since have never chenged this principle. The *878 cases have, however, recognized that in actual Establishment Clause litigation over school |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | however, recognized that in actual Establishment Clause litigation over school aid legislation, there is no pure aid to and no purely secular welfare benefit; the effects of the laws f somewhere in between, with the judicial task being to make a realistic ocation between the two possibilities. The Court's decisions demonstrate its repeated attempts to isolate considerations relevant in classifying particular benefits as between those that do not discernibly support or threaten support of a school's religious mission, and those that cross or threaten to cross the line into support for II A The most deceptively familiar of those considerations is "neutrality," the presence or absence of which, in some sense, we have addressed from the moment of itself. I say "some sense," for we have used the term in at least three ways in our cases, and an understanding of the term's evolution will help to explain the concept as it is understood today, as well as the limits of its significance in Establishment Clause analysis. "Neutrality" has been employed as a term to describe the requisite state of government equipoise between the forbidden encouragement and discouragement of ; to characterize a benefit or aid as secular; and to indicate evenhandedness in distributing it. As already mentioned, the Court first referred to neutrality in simply stating that government is required "to be a neutral" among s and between and non. 330 U.S., Although "neutral" may have carried a hint of inaction when we indicated that the First Amendment "does not require the state to be [the] adversary" of religious believers, ib or to cut off general government services from religious organizations, provided no explicit definition of the term or further indication of what the government was required to do or not do to be *879 "neutral" toward In practical terms, "neutral" in was simply a term for government in its required median position between aiding and handicapping The second major case on aid to religious schools, used "neutrality" to describe an adequate state of balance between government as y and as adversary to see (discussing line between "state neutrality to and state support of "). The term was not further defined, and a few subsequent school cases used "neutrality" simply to designate the required relationship to without explaining how to attain it. See, e. g., ; ("Neutrality is what is required. The State must confine itself to secular objectives, and neither advance nor impede religious activity. Of course, that principle is more easily stated than applied"); see also Committee for Public Ed. & Religious (describing "neutral posture" toward ); |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | for Public Ed. & Religious (describing "neutral posture" toward ); ("The Court has enforced a scrupulous neutrality by the State, as among s, and also as between religious and other activities"); cf. The Court began to employ "neutrality" in a sense different from equipoise, however, as it explicated the distinction between "religious" and "secular" benefits to religious schools, the latter being in some circumstances permissible. See infra, at 884-899 (discussing considerations). Even though both and had anticipated some such distinction, neither case had used the term "neutral" in this way. In Justice Black indicated that providing *880 police, fire, and similar government services to religious institutions was permissible, in part because they were "so separate and so indisputably marked off from the religious function." 330 U.S., similarly focused on the fact that the textbooks lent out were "secular" and approved by secular and assumed that the secular textbooks and the secular elements of education they supported were not so intertwined with religious instruction as "in fact [to be] instrumental in the teaching of" Such was the Court's premise in for shifting the use of the word "neutral" from labeling the required position of the government to describing a benefit that was nonreligious. We spoke of "[o]ur decisions from to [as] permitt[ing] the States to provide church-related schools with secular, neutral, or nonideological services, facilities, or materials," and thereafter, we regularly used "neutral" in this second sense of "secular" or "nonreligious." See, e. g., ; ; ; (describing `s approved buildings as "neutral or nonideological in nature"); ; ; ; cf. ; (quoting ). The shift from equipoise to secular was not, however, our last redefinition, for the Court again transformed the sense of "neutrality" in the 1980's. Reexamining and reinterpreting and we began to use the word "neutral" to mean "evenhanded," in the sense of ocating aid on some common basis to religious and secular recipients. Again, neither nor explicitly used "neutral" in this manner, but just as the label for equipoise had lent itself to referring to the secular characteristic of what a government might provide, it was readily adaptable to referring to the generality of government services, as in `s paradigms, to which permissible benefits were compared. The increased attention to a notion of evenhanded distribution was evident in where the Court distinguished the program under consideration from the government services approved in and in part because "the class of beneficiaries [in and ] included schoolchildren, those in public as well as those in schools." 413 U. S., at n. 38. then reserved the question whether "some form |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | at n. 38. then reserved the question whether "some form of public assistance made available genery without regard to the sectarian-nonsectarian, or public-nonpublic nature of the institution benefitted" would be permissible. Subsequent cases continued the focus on the "generality" of the approved government services as an important characteristic. for example, characterized and as approving "a general program" to pay bus fares and to lend school books, respectively, ; and upheld diagnostic services described as "`general welfare services for children,' " 433 U.S., (quoting ). *882 Justice Blackmun, writing in first ced such a "general" or evenhanded program "neutral," in speaking of "facial neutrality" as a relevant consideration in determining whether there was an Establishment Clause violation. "[R]eligious institutions need not be quarantined from public benefits that are neutry available to" -; see also (discussing buses in and school books in as examples of "neutry available" aid). In the Court adopted the redefinition of neutrality as evenhandedness, citing 413 U. S., at n. 38, and uding to our discussion of equal access in The Court upheld a system of tax deductions for sectarian educational expenses, in part because such a "faciy neutral law," made the deduction available for " parents, including those whose children attend public schools and those whose children attend nonsectarian schools or sectarian schools," Subsequent cases carried the point forward. See, e. g., (quoting and characterizing program as making aid "available genery"); (discussing "government programs that neutry provide benefits to a broad class of citizens defined without reference to " and citing and ); (discussing aid ocated on the basis of "neutral, secular criteria that neither favor nor disfavor made available to both religious and secular beneficiaries on a nondiscriminatory basis"); see also In sum, "neutrality" originy entered this field of jurisprudence as a conclusory term, a label for the required relationship *883 between the government and as a state of equipoise between government as y and government as adversary. Reexamining `s paradigm cases to derive a prescriptive guideline, we first determined that "neutral" aid was secular, nonideological, or unrelated to religious education. Our subsequent reexamination of and beginning in and culminating in and most recently in recast neutrality as a concept of "evenhandedness." There is, of course, good reason for considering the generality of aid and the evenhandedness of its distribution in making close cs between benefits that in purpose or effect support a school's religious mission and those that do not. This is just what did. Even when the disputed practice fs short of `s paradigms, the breadth of evenhanded distribution is one pointer toward the |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | the breadth of evenhanded distribution is one pointer toward the law's purpose, since on the face of it aid distributed genery and without a religious criterion is less likely to be meant to aid than a benefit going only to religious institutions or people. And, depending on the breadth of distribution, looking to evenhandedness is a way of asking whether a benefit can reasonably be seen to aid in fact; we do not regard the postal system as aiding even though parochial schools get mail. Given the legitimacy of considering evenhandedness, then, there is no reason to avoid the term "neutrality" to refer to it. But one crucial point must be borne in mind. In the days when "neutral" was used in `s sense of equipoise, neutrality was tantamount to constitutionality; the term was conclusory, but when it applied it meant that the government's position was constitutional under the Establishment Clause. This is not so at however, under the most recent use of "neutrality" to refer to generality or evenhandedness of distribution. This kind of neutrality is relevant in judging whether a benefit scheme so characterized should be seen as aiding a sectarian school's religious *884 mission, but this neutrality is not alone sufficient to qualify the aid as constitutional. It is to be considered only along with other characteristics of aid, its administration, its recipients, or its potential that have been emphasized over the years as indicators of just how religious the intent and effect of a given aid scheme rey is. See, e. g., 403 U. S., at -678 (acknowledging "no single constitutional caliper"); -359 ; School Dist. of Grand Rapids v. B, (quoting ), overruled in part by 521 U. S., 3; Board of Ed. of Kiryas Joel Village School ("Experience proves that the Establishment Clause, like the Free Speech Clause, cannot easily be reduced to a single test"); -849 (discussing need for linedrawing); (noting lack of a single "Grand Unified Theory" for Establishment Clause and citing Kiryas Joel ); cf. at -233 Thus, the basic principle of establishment scrutiny of aid remains the principle as stated in that there may be no public aid to or support for the religious mission of any institution. B The insufficiency of evenhandedness neutrality as a standalone criterion of constitutional intent or effect has been clear from the beginning of our interpretative efforts, for an obvious reason. Evenhandedness in distributing a benefit approaches the equivalence of constitutionality in this area only when the term refers to such universality of distribution that it makes no sense to think of the benefit |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | that it makes no sense to think of the benefit as going to any discrete group. Conversely, when evenhandedness refers to distribution to limited groups within society, like groups of schools or schoolchildren, it does make sense to regard the benefit as aid to the recipients. See, e. g., 330 U. S., *885 (discussing aid that approaches the "verge" of forbidden territory); ; 761 (noting the "most perplexing questions" presented in this area and acknowledging "`entangl[ing] precedents' "); (quoting ); (quoting ). Hence, if we looked no further than evenhandedness, and failed to ask what activities the aid might support, or in fact did support, religious schools could be blessed with government funding as massive as expenditures made for the benefit of their public school counterparts, and religious missions would thrive on public money. This is why the consideration of less than universal neutrality has never been recognized as dispositive and has always been teamed with attention to other facts bearing on the substantive prohibition of support for a school's religious objective. At least three main lines of enquiry addressed particularly to school aid have emerged to complement evenhandedness neutrality. First, we have that two types of aid recipients heighten Establishment Clause concern: pervasively religious schools and primary and secondary religious schools. Second, we have identified two important characteristics of the method of distributing aid: directness or indirectness of distribution and distribution by genuinely independent choice. Third, we have found relevance in at least five characteristics of the aid itself: its religious content; its cash form; its divertibility or actuy diversion to religious support; its supplantation of traditional items of religious school expense; and its substantiality. 1 Two types of school aid recipients have raised special concern. First, we have recognized the fact that the overriding religious mission of certain schools, those sometimes ced *886 "pervasively sectarian," is not confined to a discrete element of the curriculum, -24 ; but permeates their ; ("A school which operates to commingle with other instruction plainly cannot completely secularize its instruction. Parochial schools, in large measure, do not accept the assumption that secular subjects should be unrelated to religious teaching"); see also U.S. 589, (discussing pervasively sectarian schools). Based on record evidence and long experience, we have concluded that religious teaching in such schools is at the core of the instructors' individual and personal obligations, cf. Canon 803, 2, Text & Commentary 568 ("It is necessary that the formation and education given in a Catholic school be based upon the principles of Catholic doctrine; teachers are to be outstanding for their correct |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | Catholic doctrine; teachers are to be outstanding for their correct doctrine and integrity of life"), and that individual religious teachers will teach religiously.[7], -620; at 635 *887 641 (Douglas, J., concurring); ; -371; 433 U. S., -250 ; B, -400 overruled in part by As religious teaching cannot be separated from secular education in such schools or by such teachers, we have concluded that direct government subsidies to such schools are prohibited because they will inevitably and impermissibly support religious indoctrination. 509 U. S., (discussing and B ). Second, we have expressed special concern about aid to primary and secondary religious schools. -686. On the one hand, we have understood how the youth of the students in such schools makes them highly susceptible to religious indoctrination. On the other, we have recognized that the religious element in the education offered in most sectarian primary and secondary schools is far more intertwined with the secular than in university teaching, where the natural and academic skepticism of most older students may separate the two, see ; Thus, government benefits accruing to these pervasively religious primary and secondary schools raise special dangers of diversion into support for the religious indoctrination of children and the involvement of government in religious training and practice. *888 2 We have also evaluated the portent of support to an organization's religious mission that may be inherent in the method by which aid is granted, finding pertinence in at least two characteristics of distribution. First, we have asked whether aid is direct or indirect, observing distinctions between government schemes with individual beneficiaries and those whose beneficiaries in the first instance might be religious schools. ; -244, and n. 6 (textbooks go to benefit children and parents, not schools); ; ; 474 U. S., at -488 Direct aid obviously raises greater risks, although recent cases have discounted this risk factor, looking to other features of the distribution mechanism.[8] *889 Second, we have distinguished between indirect aid that reaches religious schools only incidenty as a result of numerous individual choices and aid that is in reality directed to religious schools by the government or in practical terms selected by religious schools themselves. ; ; at In these cases, we have declared the constitutionality of programs providing aid directly to parents or students as tax deductions or scholarship money, where such aid may pay for education at some sectarian institutions, ; 474 U. S., but only as the result of "genuinely independent and choices of aid recipients," at We distinguished this path of aid from the route in B and where the |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | of aid from the route in B and where the opinions indicated that "[w]here no meaningful distinction can be made between aid to the student and aid to the school, the concept of a loan to individuals is a transparent fiction." 474 U.S., at n. 4[9] 3 In addition to the character of the school to which the benefit accrues, and its path from government to school, a number of features of the aid itself have figured in the classifications *890 we have made. First, we have barred aid with actual religious content, which would obviously run afoul of the ban on the government's participation in 330 U. S., ; ; cf. In cases where we have permitted aid, we have regularly characterized it as "neutral" in the sense ( at 879 881) of being without religious content. See, e. g., ; 509 U. S., at ; 521 U. S., at See also ante, at 820 (barring aid with religious content).[] Second, we have long held government aid invalid when circumstances would ow its diversion to religious education. The risk of diversion is obviously high when aid in the form of government funds makes its way into the coffers of religious organizations, and so from the start we have understood the Constitution to bar outright money grants of aid to[11] See 330 U. S., ("[The State] *891 cannot consistently with the `establishment of ' clause of the First Amendment contribute tax-raised funds to the support of an institution which teaches the tenets and faith of any church"); ; 392 U. S., -244 ; ; (identifying "three main evils" against which Establishment Clause was to protect as "sponsorship, financial support, and active involvement of the sovereign in religious activity," citing ); 403 U.S., (distinguishing direct financial aid program from and and noting problems with required future surveillance); 774 ; 482 ;[12] v. *892 McNair, ; and n. 7 (noting that "statute does not authorize any payment to nonpublic school personnel for the costs of administering the tests"); 521 U. S., at -229 (emphasizing that approved services are not "distributed `directly to the religious schools.' No Title I funds ever reach the coffers of religious schools, and Title I services may not be provided to religious schools on a schoolwide basis" ); U. S., at 614-615; ; cf. -620 ; -757 ; B, -393 overruled in part by ; 474 U. S., at ("It is equy well-settled that the State may not grant aid to a religious school, whether cash or in kind, where the effect of the aid is that of |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | kind, where the effect of the aid is that of a direct subsidy to the religious school" ); (noting that student fee was not a tax). Divertibility is not, of course, a characteristic of cash alone, and when examining provisions for ostensibly secular supplies we have considered their susceptibility to the service of religious ends.[13] In upholding a scheme to provide students with secular textbooks, we emphasized that "each book loaned must be approved by the public school ; only secular books may receive approval." -245; see also -362 ; By the same token, we could not sustain provisions for instructional materials adaptable to teaching a variety of subjects.[14], ; -250. While the textbooks had a known and fixed secular content not readily divertible *894 to religious teaching purposes, the adaptable materials did not.[15] So, too, we explained the permissibility of busing on public routes to schools but not busing for field trips designed by religious specificy because the latter trips were components of teaching in a pervasively religious school. Compare with 433 U. S., at ("The field trips are an integral part of the educational experience, and where the teacher works within and for a sectarian institution, an unacceptable risk of fostering of is an inevitable byproduct" (citation omitted)). We likewise were able to uphold underwriting the expenses of standard state testing in religious schools while being forced to strike down aid for testing designed by the school officials, because the latter tests could be used to reinforce religious teaching. Compare ("[T]he State provides both the schools and the school district with the means of ensuring that the minimum standards are met. The nonpublic school does not control the content of the test or its result. This serves to prevent the use of the test as part of religious teaching, and thus avoids that kind of direct aid to found present in "); Committee for Public Ed. and Religious with *895 With the same point in mind, we held that buildings constructed with government grants to universities with religious affiliation must be barred from religious use indefinitely to prevent the diversion of government funds to religious objectives. ("If, at the end of 20 years, the building is, for example, converted into a chapel or otherwise used to promote religious interests, the original federal grant will in part have the effect of advancing To this extent the Act therefore trespasses on the Religion Clauses"); see also -744. We were accordingly constrained to strike down aid for repairing buildings of nonpublic schools because they could be used for religious education. -777. |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | schools because they could be used for religious education. -777. Divertibility was, again, the issue in an order remanding an as-applied chenge to a grant supporting counseling on teenage sexuality for findings that the aid had not been used to support religious education. U. S., ; see also at And the most recent example of attention to the significance of divertibility occurred in our explanation that public school teachers could be assigned to provide limited instruction in religious schools in -227, a majority of the Court rejecting the factual assumption that public school teachers could be readily lured into providing religious instruction.[16] *896 Third, our cases have recognized the distinction, adopted by statute in the Chapter 2 legislation, between aid that merely supplements and aid that supplants expenditures for offerings at religious schools, the latter being Although we have never adopted the position that any benefit that flows to a religious school is impermissible because it frees up resources for the school to engage in religious indoctrination, from our first decision holding it permissible to provide textbooks for religious schools we have repeatedly explained the unconstitutionality of aid that supplants an item of the school's traditional expense. See, e. g., ; 330 U. S., (specificy noting that bus fare program did not support or fund religious schools); ; *897 (explicitly recognizing that "the record contains no evidence that any of the schools in appellants' districts previously provided textbooks for their students"); (noting no aid to schools was involved in ). We ignored this prohibition only once, in ; see also ante, n. 7, where reimbursement for budgeted expenses of required testing was not struck down, but we then quickly returned to the rule as a guideline for permissible aid.[17] In 509 U. S., the Court specificy distinguished and B by explaining that the invalid programs in those cases "relieved sectarian schools of costs they otherwise would have borne in educating their students." In the Court made a point of noting that the objects of the aid were "by law supplemental to the regular curricula" and, citing explained that the remedial education services did not relieve the religious schools of costs they would otherwise have 521 U.S., at (citing ). The Court explicitly stated that the *898 services in question did not "supplant the remedial instruction and guidance counseling already provided in New York City's sectarian schools." Finy, we have recognized what is obvious (however imprecise), in holding "substantial" amounts of aid to be unconstitutional whether or not a plaintiff can show that it supplants a specific item of expense a |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | show that it supplants a specific item of expense a religious school would have [18] In we invalidated the loan of instructional materials to religious schools because "faced with the substantial amounts of direct support authorized by [the program], it would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and then characterize [the program] as channeling aid to the secular without providing direct aid to the sectarian." See ; see also ; -251. In 474 U. S., the Court asked whether the aid in question was a direct subsidy to religious schools and addressed the substantiality of the aid obliquely in noting that "nothing in the record indicates that any significant portion of the *899 aid expended under the Washington program as a whole will end up flowing to religious education." In the Court spoke of the substantiality test in noting that "[d]isabled children, not sectarian schools, are the primary beneficiaries of the [Individuals with Disabilities Act (IDEA)]; to the extent sectarian schools benefit at from the IDEA, they are only incidental beneficiaries." C This stretch of doctrinal history leaves one point clear beyond peradventure: together with James Madison we have consistently understood the Establishment Clause to impose a substantive prohibition against public aid to and, hence, to the religious mission of sectarian schools. Evenhandedness neutrality is one, nondispositive pointer toward an intent and (to a lesser degree) probable effect on the permissible side of the line between forbidden aid and general public welfare benefit. Other pointers are facts about the religious mission and education level of benefited schools and their pupils, the pathway by which a benefit travels from public treasury to educational effect, the form and content of the aid, its adaptability to religious ends, and its effects on school budgets. The object of enquiries into such matters is the same whatever the particular circumstances: is the benefit intended to aid in providing the religious element of the education and is it likely to do so? The substance of the law has thus not changed since Emphasis on one sort of fact or another has varied depending on the perceived utility of the enquiry, but that has been added is repeated explanation of relevant considerations, confirming that our predecessors were right in their prophecies that no simple test would emerge to ow easy application of the establishment principle. The plurality, however, would reject that lesson. The majority misapplies it. *900 III A The nub of the plurality's new position is this: |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | A The nub of the plurality's new position is this: "[I]f the government, seeking to further some legitimate secular purpose, offers aid on the same terms, without regard to to who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose. The government, in crafting such an aid program, has had to conclude that a given level of aid is necessary to further that purpose among secular recipients and has provided no more than that same level to religious recipients." Ante, at 8 (citation omitted). As a break with consistent doctrine the plurality's new criterion is unequaled in the history of Establishment Clause interpretation. Simple on its face, it appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid. Even on its own terms, its errors are manifold, and attention to at least three of its mistaken assumptions will show the degree to which the plurality's proposal would replace the principle of no aid with a formula for generous religious support. First, the plurality treats an external observer's attribution of religious support to the government as the sole impermissible effect of a government aid scheme. See, e. g., ante, at 809 ("[N]o one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government"). While perceived state endorsement of is undoubtedly a relevant concern under the Establishment Clause, see, e. g., Allegheny 492 U. S., at ; see also Capitol Square Review and Advisory ; it is certainly not the only one. made this clear from the start: secret aid to by the government is also State aid not attributed to the government would still violate a taxpayer's liberty of conscience, threaten to corrupt and generate disputes over aid. In any event, since the same-terms feature of the scheme would, on the plurality's view, rule out the attribution or perception of endorsement, adopting the plurality's rule of facial evenhandedness would convert neutrality into a dispositive criterion of establishment constitutionality and eliminate the effects enquiry directed by and other cases. Under the plurality's rule of neutrality, if a program met the first part of the enquiry, by declining to define a program's recipients by it would automaticy satisfy the second, in supposedly having no impermissible effect of aiding[19] Second, the plurality apparently assumes as a fact that equal amounts of aid to religious and nonreligious schools will have exclusively secular and equal |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | religious and nonreligious schools will have exclusively secular and equal effects, on both external perception and on incentives to attend different schools. See ante, at 809-8, 813-814. But there is no reason to believe that this will be the case; the effects of same-terms aid may not be confined to the secular sphere at This is the reason that we have long recognized that unrestricted aid to religious schools will support religious teaching in addition *902 to secular education, a fact that would be true no matter what the supposedly secular purpose of the law might be. Third, the plurality assumes that per capita distribution rules safeguard the same principles as independent, choices. But that is clearly not so. We approved university scholarships in because we found them close to giving a government employee a paycheck and owing him to spend it as he chose, but a per capita aid program is a far cry from awarding scholarships to individuals, one of whom makes an independent choice. Not the least of the significant differences between per capita aid and aid individuy determined and directed is the right and genuine opportunity of the recipient to choose not to give the aid.[20] To hold otherwise would be to license the government to donate funds to churches based on the number of their members, on the patent fiction of independent choice. The plurality's mistaken assumptions explain and underscore its sharp break with the Framers' understanding of establishment and this Court's consistent interpretative course. Under the plurality's regime, little would be left of the right of conscience against compelled support for ; the more massive the aid the more potent would be the influence of the government on the teaching mission; the more generous the support, the more divisive would be the resentments of those resisting religious support, and those s without school systems ready to claim their fair share. B The plurality's conception of evenhandedness does not, however, control the case, whose disposition turns on the misapplication of accepted categories of school aid analysis. The facts most obviously relevant to the Chapter 2 scheme *903 in Jefferson Parish are those showing divertibility and actual diversion in the circumstance of pervasively sectarian religious schools. The type of aid, the structure of the program, and the lack of effective safeguards clearly demonstrate the divertibility of the aid. While little is known about its use, owing to the anemic enforcement system in the parish, even the thin record before us reveals that actual diversion occurred. The aid that the government provided was highly susceptible to unconstitutional |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | aid that the government provided was highly susceptible to unconstitutional use. Much of the equipment provided under Chapter 2 was not of the type provided for individual students, App. to Pet. for Cert. 140a; App. 262a 278a, but included "slide projectors, movie projectors, overhead projectors, television sets, tape recorders, projection screens, maps, globes, filmstrips, cassettes, computers," and computer software and peripherals, ; App. to Pet. for Cert. 140a; App. 90a, 262a278a, as well as library books and materials, at 56a, 126a, 280a284a. The videocassette players, overhead projectors, and other instructional aids were of the sort that we have found can easily be used by religious teachers for religious purposes. 421 U. S., ; 433 U. S., -250. The same was true of the computers, which were as readily employable for religious teaching as the other equipment, and presumably as immune to any countervailing safeguard, App. 90a, 118a, a165a. Although library books, like textbooks, have fixed content, religious teachers can assign secular library books for religious critique, and books for libraries may be religious, as any divinity school library would demonstrate. The sheer number and variety of books that could be and were ordered gave ample opportunity for such diversion. The divertibility thus inherent in the forms of Chapter 2 aid was enhanced by the structure of the program in Jefferson Parish. Requests for specific items under Chapter 2 came not from secular officials, cf. *904 245, but from officials of the religious schools (and even parents of religious school pupils), see ante, at 803 (noting that religious schools submitted their orders to the government for specific requested items); App. 156a158a. The sectarian schools decided what they wanted and often ordered the supplies, at 156a159a, 171a172a, to be forwarded directly to themselves, at 156a159a. It was easy to select whatever instructional materials and library books the schools wanted, just as it was easy to employ computers for the support of the religious content of the curriculum infused with religious instruction. The concern with divertibility thus predicated is underscored by the fact that the religious schools in question here covered the primary and secondary grades, the grades in which the sectarian nature of instruction is characteristicy the most pervasive, see 403 U. S., ; cf. 403 U. S., and in which pupils are the least critical of the schools' religious objectives, see No one, indeed, disputes the trial judge's findings, based on a detailed record, that the Roman Catholic schools,[21] which made up the majority of the schools participating,[22] were pervasively sectarian,[23] that *905 their common objective and mission was to |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | sectarian,[23] that *905 their common objective and mission was to engage in religious education,[24] and that their teachers taught religiously,[25] making them precisely the kind of primary and *906 secondary religious schools that raise the most serious Establishment Clause concerns. See 397 U. S., at ; ; The threat to Establishment Clause values was accordingly at its highest in the circumstances of this case. Such precautionary features as there were in the Jefferson Parish scheme were grossly inadequate to counter the threat. To be sure, the disbursement of the aid was subject to statutory admonitions against diversion, see, e. g., 20 U.S. C. 7332, 8897, and was supposedly subject to a variety of safeguards, see ante, at 802-803, 832-834. But the provisions for on site monitoring visits, labeling of government property, and government oversight cannot be accepted as sufficient in the face of record evidence that the safeguard provisions proved to be empty phrases in Jefferson Parish. Cf. 521 U. S., at -229; 509 U. S., The plurality has already at length the ineffectiveness of the government's monitoring program. Ante, at 832-834; see also App. 111a ("A system to monitor nonpublic schools was often not in operation and therefore the [local educational agency] did not always know: (a) what was purchased or (b) how it was utilized"). Monitors visited a nonpublic school only sporadicy, discussed the program with a single contact person, observed nothing more than attempts at recordkeeping, and failed to inform the teachers of the restrictions involved. at 154a155a. Although Chapter 2 required labeling of government property, it occurred haphazardly at best, at 113a, and the government's sole monitoring system for computer use amounted to nothing more *907 than questioning school officials and examining the location of computers at the schools, at 118a. No records of software and computer use were kept, and no such recordkeeping was even planned. at 118a, a166a. State and local officials in Jefferson Parish admitted that nothing prevented the Chapter 2 computers from being used for religious instruction, at 2a, 118a, a166a, and although they knew of methods of monitoring computer usage, such as locking the computer functions, 5a166a, they implemented no particular policies, instituted no systems, and employed no technologies to minimize the likelihood of diversion to religious uses,[26] at 118a, 165a166a. The watchdogs did require the religious schools to give not so much as an assurance that they would use Chapter 2 computers solely for secular purposes, amended, ; App. 94a95a. Government officials themselves admitted that there was no way to tell whether instructional materials had been diverted, at 118a, 139a, |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | tell whether instructional materials had been diverted, at 118a, 139a, 144a145a, and, as the plurality notes, the only screening mechanism in the library book scheme was a review of titles by a single government official, ante, at 832-833, n. 15; see App. 137a. The government did not even have a policy on the consequences of noncompliance. at 145a. The risk of immediate diversion of Chapter 2 benefits had its complement in the risk of future diversion, against which the Jefferson Parish program had absolutely no protection. By statute purchases with Chapter 2 aid were to remain the property of the United States, 20 U.S. C. 7372(c)(1), merely being "lent" to the recipient nonpublic schools. In actuality, however, the record indicates that nothing in the *908 Jefferson Parish program stood in the way of giving the Chapter 2 property outright to the religious schools when it became older. Although old equipment remained the property of the local education agency, a local government administrative body, one agency employee testified that there was no set policy for dealing with old computers, which were probably given outright to the religious schools. App. 161a 162a. The witness said that government-funded instructional materials, too, were probably left with the religious schools when they were old, and that it was unclear whether library books were ever to be returned to the government. Providing such governmental aid without effective safeguards against future diversion itself offends the Establishment Clause, -684; -777, and even without evidence of actual diversion, our cases have repeatedly held that a "substantial risk" of it suffices to invalidate a government aid program on establishment grounds. See, e. g., 433 U. S., at (invalidating aid for transportation on teacher-accompanied field trips because an "unacceptable risk of fostering of " was "an inevitable by product"); 421 U. S., (striking down program because of a "potential for impermissible fostering of "); (invalidating aid for tests designed by religious teachers because of "the substantial risk that examinations, prepared by teachers under the authority of religious institutions, will be drafted with an eye, unconsciously or otherwise, to inculcate students in the religious precepts of the sponsoring church"); (finding invalid aid with a "potential for impermissible fostering of "); cf. U. S., (noting that where diversion risk is less clearly made out, a case may be remanded for findings on actual diversion of aid to religious indoctrination); A substantial risk of diversion in this case was more than clear, as the plurality has conceded. The First Amendment was violated. But the record here goes beyond risk, to instances of actual diversion. |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | record here goes beyond risk, to instances of actual diversion. What one would expect from such paltry efforts at monitoring and enforcement natury resulted, and the record strongly suggests that other, undocumented diversions probably occurred as well. First, the record shows actual diversion in the library book program. App. 132a133a. Although only limited evidence exists, it contrasts starkly with the records of the numerous textbook programs that we have repeatedly upheld, where there was no evidence of any actual diversion. See -245; ; at 237 238. Here, discovery revealed that under Chapter 2, nonpublic schools requested and the government purchased at least 191 religious books with taxpayer funds by December 1985.[27] App. 133a. Books such as A Child's Book of Prayers, at 84a, and The Illustrated Life of Jesus, 2a, *9 were discovered among others that had been ordered under the program. See also at 59a62a. The evidence persuasively suggests that other aid was actuy diverted as well. The principal of one religious school testified, for example, that computers lent with Chapter 2 funds were joined in a network with other non-Chapter 2 computers in some schools, and that religious officials and teachers were owed to develop their own unregulated software for use on this network. at 77a. She admitted that the Chapter 2 computer took over the support of the computing system whenever there was a breakdown of the master computer purchased with the religious school's own funds. Moreover, as the plurality observes, ante, at 833-834, n. 17, comparing the records of considerable federal funding of audiovisual equipment in religious schools with records of the schools' use of unidentified audiovisual equipment in classes strongly suggests that film projectors and videotape machines purchased with public funds were used in religious indoctrination over a period of at least seven years. App. 205a, 2a, 206a207a; see also at 8a (statement of second-grade teacher indicating that she used audiovisual materials in classes). Indeed, the plurality readily recognizes that the aid in question here was divertible and that substantial evidence of actual diversion exists. Ante, at 832-834, and nn. 14-17. Although Justice O'Connor attributes limited significance to the evidence of divertibility and actual diversion, she also recognizes that it exists. Ante, at 864-865 (opinion concurring in judgment). The Court has no choice but to hold that the program as applied violated the Establishment Clause.[28] *911 IV The plurality would break with the law. The majority misapplies it. That misapplication is, however, the only consolation in the case, which reaches an erroneous result but does not stage a doctrinal coup. But there is no mistaking |
Justice Souter | 2,000 | 20 | dissenting | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | not stage a doctrinal coup. But there is no mistaking the abandonment of doctrine that would occur if the plurality were to become a majority. It is beyond question that the plurality's notion of evenhandedness neutrality as a practical guarantee of the validity of aid to sectarian schools would be the end of the principle of no aid to the schools' religious mission. And if that were not so obvious it would become so after reflecting on the plurality's thoughts about diversion *912 and about giving attention to the pervasiveness of a school's sectarian teaching. The plurality is candid in pointing out the extent of actual diversion of Chapter 2 aid to religious use in the case before us, ante, at 832-834, and n. 17, and equy candid in saying it does not matter, ante, at 820-825, 833-834. To the plurality there is nothing wrong with aiding a school's religious mission; the only question is whether religious teaching obtains its tax support under a formy evenhanded criterion of distribution. The principle of no aid to religious teaching has no independent significance. And if this were not enough to prove that no aid in religious school aid is dead under the plurality's First Amendment, the point is nailed down in the plurality's attack on the legitimacy of considering a school's pervasively sectarian character when judging whether aid to the school is likely to aid its religious mission. Ante, at 826-829. The relevance of this consideration is simply a matter of common sense: where religious indoctrination pervades school activities of children and adolescents, it takes great care to be able to aid the school without supporting the doctrinal effort. This is obvious. The plurality nonetheless condemns any enquiry into the pervasiveness of doctrinal content as a remnant of anti-Catholic bigotry (as if evangelical Protestant schools and Orthodox Jewish yeshivas were never pervasively sectarian [29]), and it equates a refusal to aid religious schools with hostility to (as if aid to religious teaching were not *913 opposed in this very case by at least one religious respondent [30] and numerous religious amici curiae[31] in a tradition claiming descent from Roger Williams). My concern with these arguments goes not so much to their details[32] as it does to the fact that the plurality's choice to employ imputations of bigotry and ir as terms in the Court's debate makes one point clear: that in rejecting the principle of no aid to a school's religious mission the plurality is attacking the most fundamental assumption underlying the Establishment Clause, that government can in fact operate with neutrality |
Justice Stevens | 2,007 | 16 | dissenting | Tellabs, Inc. v. Makor Issues & Rights, Ltd. | https://www.courtlistener.com/opinion/145709/tellabs-inc-v-makor-issues-rights-ltd/ | As the Court explains, when Congress enacted a heightened pleading requirement for private actions to enforce the federal securities laws, it "left the key term `strong inference' undefined." Ante, *2517 at 2504-2505. It thus implicitly delegated significant lawmaking authority to the Judiciary in determining how that standard should operate in practice. Today the majority crafts a perfectly workable definition of the term, but I am persuaded that a different interpretation would be both easier to apply and more consistent with the statute. The basic purpose of the heightened pleading requirement in the context of securities fraud litigation is to protect defendants from the costs of discovery and trial in unmeritorious cases. Because of its intrusive nature, discovery may also invade the privacy interests of the defendants and their executives. Like citizens suspected of having engaged in criminal activity, those defendants should not be required to produce their private effects unless there is probable cause to believe them guilty of misconduct. Admittedly, the probable-cause standard is not capable of precise measurement, but it is a concept that is familiar to judges. As a matter of normal English usage, its meaning is roughly the same as "strong inference." Moreover, it is most unlikely that Congress intended us to adopt a standard that makes it more difficult to commence a civil case than a criminal case.[1] In addition to the benefit of its grounding in an already familiar legal concept, using a probable-cause standard would avoid the unnecessary conclusion that "in determining whether the pleaded facts give rise to a `strong' inference of scienter, the court must take into account plausible opposing inferences." Ante, at 2509 (emphasis added). There are times when an inference can easily be deemed strong without any need to weigh competing inferences. For example, if a known drug dealer exits a building immediately after a confirmed drug transaction, carrying a suspicious looking package, a judge could draw a strong inference that the individual was involved in the aforementioned drug transaction without debating whether the suspect might have been leaving the building at that exact time for another unrelated reason. If, using that same methodology, we assume (as we must, see ante, at 2509-2510, 2511) the truth of the detailed factual allegations attributed to 27 different confidential informants described in the complaint, App. 91-93, and view those allegations collectively, I think it clear that they establish probable cause to believe that Tellabs' chief executive officer "acted with the required intent," as the Seventh Circuit held.[2] *2518 Accordingly, I would affirm the judgment of the Court of Appeals. |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | This case presents the question whether, under the s set out in our decision in is retroactive to cases already final on direct review. We hold that it is not. I A Respondent Marvin Bockting lived in Las Vegas, Nevada, with his wife, Laura Bockting, their 3-year-old daughter Honesty, and Laura's 6-year-old daughter from a previous relationship, Autumn. One night, while respondent was at work, Autumn awoke from a dream crying, but she refused to tell her mother what was wrong, explaining: "`[D]addy said you would make him leave and that he would beat my butt if I told you.'" App. 119. After her mother reassured her, Autumn said that respondent had frequently forced her to engage in numerous and varied sexual acts with him. The next day, Laura Bockting confronted respondent and asked him to leave the house. He did so but denied any wrongdoing. Two days later, Laura called a rape crisis hotline and brought Autumn to the hospital for an examination. At the hospital, Detective Charles Zinovitch from the Las Vegas Metropolitan Police Department Sexual Assault Unit attempted to interview Autumn but found her too distressed to discuss the assaults. Detective Zinovitch then ordered a rape examination, which revealed strong physical evidence of sexual assaults. See Findings of Fact and Conclusions of Law and Order in Nevada v. Bockting, Case No. C-83110 ; App. 47, 119. Two days later, Detective Zinovitch interviewed Autumn in the presence of her mother, and at that time, Autumn provided a detailed description of acts of sexual assault carried out by respondent; Autumn also demonstrated those acts using anatomically correct dolls. ; 119. Respondent was then arrested, and a state grand jury indicted him on four counts of sexual assault on a minor under 14 years of age. At respondent's preliminary hearing, Autumn testified that she understood the difference between a truth and a lie, but she became upset when asked about the assaults. Although she initially agreed that respondent had touched her in a way that "[she] didn't think he was supposed to touch [her]," she later stated that she could not remember how respondent had touched her or what she had told her mother or the detective, The trial court, however, found the testimony of Laura Bockting and Detective Zinovitch to be sufficient to hold respondent for trial. At trial, the court held a hearing outside the presence of the jury to determine whether Autumn could testify. After it became apparent that Autumn was too distressed to be sworn in, the State moved under Nev.Rev.Stat. 51.385 (2003)[1] to allow Laura |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | the State moved under Nev.Rev.Stat. 51.385 (2003)[1] to allow Laura Bockting and Detective *1178 Zinovitch to recount Autumn's statements regarding the sexual assaults. App. 25-27. Under the Nevada statute, out-of-court statements made by a child under 10 years of age describing acts of sexual assault or physical abuse of the child may be admitted if the court finds that the child is unavailable or unable to testify and that "the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness." 51.385(1)(a). Over defense counsel's objection that admission of this testimony would violate the Confrontation Clause, the trial court found sufficient evidence of reliability to satisfy 51.385. As a result of this ruling, Laura Bockting and Detective Zinovitch were permitted at trial to recount Autumn's out-of-court statements about the assaults. Laura Bockting also testified that respondent was the only male who had had the opportunity to assault Autumn. In addition, the prosecution introduced evidence regarding Autumn's medical exam. Respondent testified in his own defense and denied the assaults, and the defense brought out the fact that Autumn, unlike many children her age, had acquired some knowledge about sexual acts, since she had seen respondent and her mother engaging in sexual intercourse and had become familiar with sexual terms. The jury found respondent guilty of three counts of sexual assault on a minor under the age of 14, and the trial court imposed two consecutive life sentences and another concurrent life sentence. B Respondent took an appeal to the Nevada Supreme Court, which handed down its final decision in more than a decade before[2] In analyzing respondent's contention that the admission of Autumn's out-of-court statements had violated his Confrontation Clause rights, the Nevada Supreme Court looked to which was then the governing precedent of this Court. See Roberts had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant who was unavailable to testify if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were "particularized guarantees of trustworthiness" relating to the statement in question. Applying Roberts, the Nevada Supreme Court held that the admission of Autumn's statements was constitutional because the circumstances surrounding the making of the statements provided particularized guarantees of *1179 trustworthiness. The Court cited the "natural spontaneity" of Autumn's initial statements to her mother, her reiteration of the same account to Detective Zinovitch several days later, her use of anatomically correct dolls to demonstrate the assaults, and her detailed descriptions of sexual acts with which a 6-year-old |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | her detailed descriptions of sexual acts with which a 6-year-old would generally not be familiar. Bockting, -1370. C Respondent then filed a petition for a writ of habeas corpus with the United States District Court for the District of Nevada, arguing that the Nevada Supreme Court's decision violated his Confrontation Clause rights. The District Court denied the petition, holding that respondent was not entitled to relief under the habeas statute, 28 U.S.C. 2254(d), because the Nevada Supreme Court's decision was not "contrary to" and did not "involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Order in No. CV-N-98-0764-ECR App. 69-70. Respondent then appealed to the United States Court of Appeals for the Ninth Circuit. While this appeal was pending, we issued our opinion in in which we overd Roberts and held that "[t]estimonial statements of witnesses absent from trial" are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." We noted that the outcome in Robertsas well as the outcome in all similar cases decided by this Courtwas consistent with the announced in but we concluded that the interpretation of the Confrontation Clause set out in Roberts was unsound in several respects. See ("Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales"). First, we observed that Roberts potentially excluded too much testimony because it imposed Confrontation Clause restrictions on nontestimonial hearsay not governed by that Clause. 541 U.S., At the same time, we noted, the Roberts test was too "malleable" in permitting the admission of ex parte testimonial 541 U.S., We concluded: "Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the s of evidence, much less to amorphous notions of `reliability.' Admitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." D On appeal from the denial of his petition for writ of |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | appeal from the denial of his petition for writ of habeas corpus, respondent contended that if the in had been applied to his case, Autumn's out-of-court statements could not have been admitted into evidence and the jury would not have convicted him. Respondent further *1180 argued that should have been applied to his case because the was either (1) an old in existence at the time of his conviction or (2) a "`watershed'" that implicated "the fundamental fairness and accuracy of the criminal proceeding." (quoting (plurality opinion)). A divided panel of the Ninth Circuit reversed the District Court, holding that applies retroactively to cases on collateral review. In the panel's lead opinion, Judge McKeown concluded that announced a new of criminal -1016, but that the decision was nevertheless retroactive on collateral review because it announced a watershed that "rework[ed] our understanding of bedrock criminal"[3] Judge Noonan concurred, but his preferred analysis differed from Judge McKeown's. Judge Noonan believed that did not announce a new -1024, but "[a]s an alternative to [this] analysis and in order to provide a precedent for [the] court," he "also concur[red] in Judge McKeown's analysis and opinion," Judge Wallace, concurring and dissenting, agreed with Judge McKeown that announced a new procedural but arguing that did not rise to the level of a watershed under this Court's jurisprudence. The Ninth Circuit denied rehearing en banc, with nine judges dissenting. The panel's decision that is retroactive to cases on collateral review conflicts with the decision of every other Court of Appeals and State Supreme Court that has addressed this issue.[4] We granted certiorari to resolve this conflict. 547 U.S. II A In and subsequent cases, we have laid out the framework to be used in determining whether a announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review. Under the framework, an old applies both on direct and collateral review, but a new is generally applicable only to cases that are still on direct review. See A new applies retroactively in a collateral proceeding only if (1) the is substantive or (2) the is a "`watershed rul[e] of criminal ' implicating the fundamental fairness and accuracy of the criminal proceeding." at (quoting *1181 (plurality opinion)). B In this case, it is undisputed that respondent's conviction became final on direct appeal well before was decided. We therefore turn to the question whether applied an old or announced a new one. A new is defined as "a that was not `dictated by precedent existing at the time the |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | was not `dictated by precedent existing at the time the defendant's conviction became final.'" (quoting (plurality opinion); emphasis in original). Applying this definition, it is clear that announced a new The was not "dictated" by prior precedent. Quite the opposite is true: The is flatly inconsistent with the prior governing precedent, Roberts, which overd. See Davis, 547 U.S., at "The explicit overruling of an earlier holding no doubt creates a new" In concluding that merely applied an old Judge Noonan relied on our observation in that the holdings in our prior decisions, including those that applied the Roberts had been generally consistent with the announced in (and with the Framers' understanding of the meaning of the Confrontation Clause, which provided the basis for the decision). See -59, But the Court was quick to note that "the rationales" of our prior decisions had been inconsistent with the "`The "new " principle validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.'" ). And it is stating the obvious to say that, prior to "reasonable jurists," could have reached the conclusion that the Roberts was the that governed the admission of hearsay statements made by an unavailable declarant. Because the was not dictated by the governing precedent existing at the time when respondent's conviction became final, the is a new III A Because announced a "new " and because it is clear and undisputed that the is procedural and not substantive, that cannot be applied in this collateral attack on respondent's conviction unless it is a "`watershed rul[e] of criminal ' implicating the fundamental fairness and accuracy of the criminal proceeding." 494 U.S., at (quoting (plurality opinion)). This exception is "extremely narrow," We have observed that it is "`unlikely'" that any such s "`ha[ve] yet to emerge,'" ; internal quotation marks omitted); see also ; ; (plurality opinion). And in the years since *1182 we have rejected every claim that a new satisfied the requirements for watershed status. See, e.g., ); ; O', ); (rejecting retroactivity for a new relating to jury instructions on homicide); In order to qualify as watershed, a new must meet two requirements. First, the must be necessary to prevent "an `"impermissibly large risk"'" of an inaccurate conviction. ; see also Second, the must "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." We consider each of these requirements in turn. B The does not satisfy the first requirement relating to an impermissibly large risk of an inaccurate conviction. To |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | to an impermissibly large risk of an inaccurate conviction. To be sure, the reflects the Framers' preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused. But in order for a new to meet the accuracy requirement at issue here, "[i]t is not enough to say that [the] is aimed at improving the accuracy of trial," or that the "is directed toward the enhancement of reliability and accuracy in some sense," Instead, the question is whether the new remedied "an `"impermissibly large risk"'" of an inaccurate conviction. Guidance in answering this question is provided by to which we have repeatedly referred in discussing the meaning of the exception at issue here. See, e.g., ; at ; (Blackmun, J., dissenting). In the only case that we have identified as qualifying under this exception, the Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant who wishes to be represented by counsel is denied representation, held, the risk of an unreliable verdict is intolerably high. See ; United ; The new announced in eliminated this risk. The is in no way comparable to the The is much more limited in scope, and the relationship of that to the accuracy of the factfinding process is far less direct and profound. overd Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the would *1183 be to improve the accuracy of fact finding in criminal trials. Indeed, in we recognized that even under the Roberts this Court had never specifically approved the introduction of testimonial hearsay -60, Accordingly, it is not surprising that the overall effect of with regard to the accuracy of fact-finding in criminal cases is not easy to assess. With respect to testimonial out-of-court statements, is more restrictive than was Roberts, and this may improve the accuracy of fact-finding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable. But see (observing that it is unlikely that this occurred "in anything but the exceptional case"). But whatever improvement in reliability produced in this respect must be considered together with 's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under on the other hand, the Confrontation Clause has no application to such |
Justice Alito | 2,007 | 8 | majority | Whorton v. Bockting | https://www.courtlistener.com/opinion/145755/whorton-v-bockting/ | other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability. It is thus unclear whether on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials. But the question here is not whether resulted in some net improvement in the accuracy of fact finding in criminal cases. Rather, "the question is whether testimony admissible under Roberts is so much more unreliable than that admissible under that the is `one without which the likelihood of an accurate conviction is seriously diminished.'" (quoting 542 U.S., at ) (internal quotation marks omitted; emphasis in original). did not effect a change of this magnitude. C The also did not "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." (internal quotations marks omitted and emphasis in original). Contrary to the suggestion of the Court of Appeals, see this requirement cannot be met simply by showing that a new procedural is based on a "bedrock" right. We have frequently held that the bar to retroactivity applies to new s that are based on "bedrock" constitutional rights. See, e.g., Similarly, "[t]hat a new procedural is `fundamental' in some abstract sense is not enough." 542 U.S., at Instead, in order to meet this requirement, a new must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again have looked to the example of and "we have not hesitated to hold that less sweeping and fundamental s" do not qualify. In this case, it is apparent that the announced in while certainly important, *1184 is not in the same category with effected a profound and "`sweeping'" change. (quoting O', ). The simply lacks the "primacy" and "centrality" of the 494 U.S., at and does not qualify as a that "alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding," IV In sum, we hold that announced a "new " of criminal and that this does not fall within the exception for watershed s. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | We consider the reach of the private right of action the Court has found implied in 10(b) of the Securities Exchange Act of 1934, as amended, 15 U.S.C. 78j(b), and SEC Rule 10b-5, CFR 240.10b-5 In this suit investors alleged losses after purchasing common stock. They sought to impose liability on entities who, acting both as customers and suppliers, agreed to arrangements that allowed the investors' company to mislead its auditor and issue a misleading financial statement affecting the stock price. We conclude the implied right of action does not reach the customer/supplier companies because the investors did not rely upon their statements or representations. We affirm the judgment of the Court of Appeals. I This class-action suit by investors was filed against Charter Communications, Inc., in the United States District Court for the Eastern District of Missouri. Stoneridge Investment Partners, LLC, a limited liability company organized under the laws of Delaware, was the lead plaintiff and is petitioner here. Charter issued the financial statements and the securities in question. It was a named defendant along with some of its executives and Arthur Andersen LLP, Charter's independent auditor during the period in question. We are concerned, though, with two other defendants, respondents here. Respondents are Scientific-Atlanta, Inc., and Motorola, Inc. They were suppliers, and later customers, of Charter. For purposes of this proceeding, we take these facts, alleged by petitioner, to be true. Charter, a cable operator, engaged in a variety of fraudulent practices so its quarterly reports would meet Wall Street expectations for cable subscriber growth and operating cash flow. The fraud included misclassification of its customer base; delayed reporting of terminated customers; improper capitalization of costs that should have been shown as expenses; and manipulation of the company's billing cutoff dates to inflate reported revenues. In late Charter executives realized that, despite these efforts, the company would miss projected operating cash flow numbers by $15 to $20 million. To help meet the shortfall, Charter decided to alter its existing arrangements with respondents, Scientific-Atlanta and Motorola. Petitioner's theory as to whether Arthur Andersen was altogether misled or, on the other hand, knew the structure of the contract arrangements and was complicit to some degree, is not clear at this stage of the case. The point, however, is neither controlling nor significant for our present disposition, and in our decision we assume it was misled. Respondents supplied Charter with the digital cable converter (set top) boxes that Charter furnished to its customers. Charter arranged to overpay respondents $20 for each set top box it purchased until the end of the |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | set top box it purchased until the end of the year, with the understanding that respondents would return the overpayment by purchasing advertising from Charter. The transactions, it is alleged, had no economic substance; but, because Charter would then record the advertising purchases as revenue and capitalize its purchase of the set top boxes, in violation of generally accepted accounting principles, the transactions would enable Charter to fool its auditor into approving a financial statement showing it met projected revenue and operating cash flow numbers. Respondents agreed to the arrangement. *767 So that Arthur Andersen would not discover the link between Charter's increased payments for the boxes and the advertising purchases, the companies drafted documents to make it appear the transactions were unrelated and conducted in the ordinary course of business. Following a request from Charter, Scientific-Atlanta sent documents to Charter statingfalsely that it had increased production costs. It raised the price for set top boxes for the rest of by $20 per box. As for Motorola, in a written contract Charter agreed to purchase from Motorola a specific number of set top boxes and pay liquidated damages of $20 for each unit it did not take. The contract was made with the expectation Charter would fail to purchase all the units and pay Motorola the liquidated damages. To return the additional money from the set top box sales, Scientific-Atlanta and Motorola signed contracts with Charter to purchase advertising time for a price higher than fair value. The new set top box agreements were backdated to make it appear that they were negotiated a month before the advertising agreements. The backdating was important to convey the impression that the negotiations were unconnected, a point Arthur Andersen considered necessary for separate treatment of the transactions. Charter recorded the advertising payments to inflate revenue and operating cash flow by approximately $ million. The inflated number was shown on financial statements filed with the Securities and Exchange Commission (SEC) and reported to the public. Respondents had no role in preparing or disseminating Charter's financial statements. And their own financial statements booked the transactions as a wash, under generally accepted accounting principles. It is alleged respondents knew or were in reckless disregard of Charter's intention to use the transactions to inflate its revenues and knew the resulting financial statements issued by Charter would be relied upon by research analysts and investors. Petitioner filed a securities fraud class action on behalf of purchasers of Charter stock alleging that, by participating in the transactions, respondents violated 10(b) of the Securities Exchange Act of 1934 and SEC |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | 10(b) of the Securities Exchange Act of 1934 and SEC Rule 10b-5. The District Court granted respondents' motion to dismiss for failure to state a claim on which relief can be granted. The United States Court of Appeals for the Eighth Circuit affirmed. In re Charter Communications, Inc., Securities Litigation, In its view the allegations did not show that respondents made misstatements relied upon by the public or that they violated a duty to disclose; and on this premise it found no violation of 10(b) by respondents. At most, the court observed, respondents had aided and abetted Charter's misstatement of its financial results; but, it noted, there is no private right of action for aiding and abetting a 10(b) violation. See Central of Denver, The court also affirmed the District Court's denial of petitioner's motion to amend the complaint, as the revised pleading would not change the court's conclusion on the Decisions of the Courts of Appeals are in conflict respecting when, if ever, an injured investor may rely upon 10(b) to recover from a party that neither makes a public misstatement nor violates a duty to disclose but does participate in a scheme to violate 10(b). Compare with Regents of Univ. of We granted certiorari. 549 U.S. II Section 10(b) of the Securities Exchange Act makes it "unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange [to use or employ, in connection with the purchase or sale of any security any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe as necessary or appropriate in the public interest or for the protection of investors." 15 U.S.C. 78j. The SEC, pursuant to this section, promulgated Rule 10b-5, which makes it unlawful "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security." CFR 240.10b-5. Rule 10b-5 encompasses only conduct already prohibited by 10(b). United Though the text of the Securities Exchange Act does not provide for a private cause of action for 10(b) violations, the Court |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | a private cause of action for 10(b) violations, the Court has found a right of action implied in the words of the statute and its implementing regulation. Superintendent of Ins. of In a typical 10(b) private action a plaintiff must prove (1) a material misrepresentation or omission by the defendant; (2) scienter; (3) a connection between the misrepresentation or omission and the purchase or sale of a security; (4) reliance upon the misrepresentation or omission; (5) economic loss; and (6) loss causation. See Pharmaceuticals, In Central the Court determined that 10(b) liability did not extend to aiders and abettors. The Court found the scope of 10(b) to be delimited by the text, which makes no mention of aiding and abetting The Court doubted the implied 10(b) action should extend to aiders and abettors when none of the express causes of action in the securities Acts included that It added the following: "Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor's statements or actions. See also Chiarella [v. United States, Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b-5 recovery mandated by our earlier cases." The decision in Central led to calls for Congress to create an express cause of action for aiding and abetting within the Securities Exchange Act. Then-SEC Chairman Arthur Levitt, testifying before the Senate Securities Subcommittee, cited Central and recommended that aiding *769 and abetting liability in private claims be established. S. Hearing No. 103-759, pp. 13-14 Congress did not follow this course. Instead, in 104 of the Private Securities Litigation Reform Act of 1995 (PSLRA), it directed prosecution of aiders and abettors by the SEC. 15 U.S.C. 78t(e). The 10(b) implied private right of action does not extend to aiders and abettors. The conduct of a secondary actor must satisfy each of the elements or preconditions for liability; and we consider whether the allegations here are sufficient to do so. III The Court of Appeals concluded petitioner had not alleged that respondents engaged in a deceptive act within the reach of the 10(b) private right of action, noting that only misstatements, omissions by one who has a duty to disclose, and manipulative trading practices ) are deceptive within the meaning of the 443 F.3d, If this conclusion were read to suggest there must be a specific oral or written statement before there could be liability under 10(b) or Rule 10b-5, it would be erroneous. Conduct itself can be deceptive, as |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | it would be erroneous. Conduct itself can be deceptive, as respondents concede. In this case, moreover, respondents' course of conduct included both oral and written statements, such as the backdated contracts agreed to by Charter and respondents. A different interpretation of the holding from the Court of Appeals opinion is that the court was stating only that any deceptive statement or act respondents made was not actionable because it did not have the requisite proximate relation to the investors' harm. That conclusion is consistent with our own determination that respondents' acts or statements were not relied upon by the investors and that, as a result, liability cannot be imposed upon respondents. A Reliance by the plaintiff upon the defendant's deceptive acts is an essential element of the 10(b) private cause of action. It ensures that, for liability to arise, the "requisite causal connection between a defendant's misrepresentation and a plaintiff's injury" exists as a predicate for Basic ; see also Affiliated Ute Citizens of We have found a rebuttable presumption of reliance in two different circumstances. First, if there is an omission of a material fact by one with a duty to disclose, the investor to whom the duty was owed need not provide specific proof of reliance. at 153-, Second, under the fraud-on-the-market doctrine, reliance is presumed when the statements at issue become public. The public information is reflected in the market price of the security. Then it can be assumed that an investor who buys or sells stock at the market price relies upon the statement. Basic, Neither presumption applies here. Respondents had no duty to disclose; and their deceptive acts were not communicated to the public. No member of the investing public had knowledge, either actual or presumed, of respondents' deceptive acts during the relevant times. Petitioner, as a result, cannot show reliance upon any of respondents' actions except in an indirect chain that we find too remote for *770 B Invoking what some courts call "scheme liability," see, e.g., In re Enron Corp. Securities, Derivative & "ERISA" Litigation, petitioner nonetheless seeks to impose liability on respondents even absent a public statement. In our view this approach does not answer the objection that petitioner did not in fact rely upon respondents' own deceptive conduct. Liability is appropriate, petitioner contends, because respondents engaged in conduct with the purpose and effect of creating a false appearance of material fact to further a scheme to misrepresent Charter's revenue. The argument is that the financial statement Charter released to the public was a natural and expected consequence of respondents' deceptive acts; |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | was a natural and expected consequence of respondents' deceptive acts; had respondents not assisted Charter, Charter's auditor would not have been fooled, and the financial statement would have been a more accurate reflection of Charter's financial condition. That causal link is sufficient, petitioner argues, to apply Basic's presumption of reliance to respondents' acts. See, e.g., -1052; In re Parmalat Securities Litigation, In effect petitioner contends that in an efficient market investors rely not only upon the public statements relating to a security but also upon the transactions those statements reflect. Were this concept of reliance to be adopted, the implied cause of action would reach the whole marketplace in which the issuing company does business; and there is no authority for this As stated above, reliance is tied to causation, leading to the inquiry whether respondents' acts were immediate or remote to the injury. In considering petitioner's arguments, we note 10(b) provides that the deceptive act must be "in connection with the purchase or sale of any security." 15 U.S.C. 78j(b). Though this phrase in part defines the statute's coverage rather than causation (and so we do not evaluate the "in connection with" requirement of 10(b) in this case), the emphasis on a purchase or sale of securities does provide some insight into the deceptive acts that concerned the enacting Congress. See Black, Securities Commentary: The Second Circuit's Approach to the "In Connection With" Requirement of Rule 10b-5, 53 Brooklyn L.Rev. 539, 541 (1987) ("[While the `in connection with' and causation requirements are analytically distinct, they are related to each other, and discussion of the first requirement may merge with discussion of the second"). In all events we conclude respondents' deceptive acts, which were not disclosed to the investing public, are too remote to satisfy the requirement of reliance. It was Charter, not respondents, that misled its auditor and filed fraudulent financial statements; nothing respondents did made it necessary or inevitable for Charter to record the transactions as it did. The petitioner invokes the private cause of action under 10(b) and seeks to apply it beyond the securities marketsthe realm of financing businessto purchase and supply contractsthe realm of ordinary business operations. The latter realm is governed, for the most part, by state law. It is true that if business operations are used, as alleged here, to affect securities markets, the SEC enforcement power may reach the culpable actors. It is true as well that a dynamic, free economy presupposes a high degree of integrity in all of its parts, an integrity that must be underwritten by rules enforceable in |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | an integrity that must be underwritten by rules enforceable in fair, independent, accessible courts. Were the implied cause of action to be extended to the practices described here, however, *771 there would be a risk that the federal power would be used to invite litigation beyond the immediate sphere of securities litigation and in areas already governed by functioning and effective state-law guarantees. Our precedents counsel against this extension. See Marine ; Santa -480, ("There may well be a need for uniform federal fiduciary standards But those standards should not be supplied by judicial extension of 10(b) and Rule 10b-5 to `cover the corporate universe'" )). Though 10(b) is "not `limited to preserving the integrity of the securities markets,'" ers it does not reach all commercial transactions that are fraudulent and affect the price of a security in some attenuated way. These considerations answer as well the argument that if this were a common-law action for fraud there could be a finding of reliance. Even if the assumption is correct, it is not controlling. Section 10(b) does not incorporate common-law fraud into federal law. See, e.g., ; Central ("Even assuming a deeply rooted background of aiding and abetting tort liability, it does not follow that Congress intended to apply that kind of liability to the private causes of action in the securities Acts"); see also Just as 10(b) "is surely badly strained when construed to provide a cause of action to the world at large," Blue 421 U.S. 95 S. Ct. 7, it should not be interpreted to provide a private cause of action against the entire marketplace in which the issuing company operates. Petitioner's theory, moreover, would put an unsupportable interpretation on Congress' specific response to Central in 104 of the PSLRA. Congress amended the securities laws to provide for limited coverage of aiders and abettors. Aiding and abetting liability is authorized in actions brought by the SEC but not by private parties. See 15 U.S.C. 78t(e). Petitioner's view of primary liability makes any aider and abettor liable under 10(b) if he or she committed a deceptive act in the process of providing assistance. Reply Brief for Petitioner 6, n. 2; Tr. of Oral Arg. 24. Were we to adopt this construction of 10(b), it would revive in substance the implied cause of action against all aiders and abettors except those who committed no deceptive act in the process of facilitating the fraud; and we would undermine Congress' determination that this class of defendants should be pursued by the SEC and not by private litigants. See ; ; see |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | SEC and not by private litigants. See ; ; see also Seatrain Shipbuilding This is not a case in which Congress has enacted a regulatory statute and then has accepted, over a long period of time, broad judicial authority to define substantive standards of conduct and Cf. Leegin Creative Leather Products, And in accord with the nature of the cause of action at issue here, we give weight to Congress' amendment to the Act restoring aiding and abetting liability in certain cases but not others. The amendment, in our view, supports the conclusion that there is no The practical consequences of an expansion, which the Court has considered appropriate to examine in circumstances like these, see Virginia shares, ; Blue 95 S. Ct. 7, provide a further reason to reject petitioner's approach. In Blue the Court noted that extensive discovery and the potential for uncertainty and disruption in a lawsuit allow plaintiffs with weak claims to extort settlements from innocent companies. 95 S. Ct. 7. Adoption of petitioner's approach would expose a new class of defendants to these risks. As noted in Central contracting parties might find it necessary to protect against these threats, raising the costs of doing business. See Overseas firms with no other exposure to our securities laws could be deterred from doing business here. See Brief for Organization for International Investment et al. as Amici Curiae -20. This, in turn, may raise the cost of being a publicly traded company under our law and shift securities offerings away from domestic capital markets. Brief for NASDAQ Stock Market, Inc., et al. as Amici Curiae 12-14. C The history of the 10(b) private right and the careful approach the Court has taken before proceeding without congressional direction provide further reasons to find no liability here. The 10(b) private cause of action is a judicial construct that Congress did not enact in the text of the relevant statutes. See Lampf, Pleva, Lipkind, Prupis & ; Blue 95 S. Ct. 7 it is settled that there is an implied cause of action only if the underlying statute can be interpreted to disclose the intent to create one, see, e.g., ; Virginia shares, This is for good reason. In the absence of congressional intent the Judiciary's recognition of an implied private right of action "necessarily extends its authority to embrace a dispute Congress has not assigned it to resolve. This runs contrary to the established principle that `[the jurisdiction of the federal courts is carefully guarded against expansion by judicial interpretation,' American Fire & Casualty and conflicts with the authority of |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | American Fire & Casualty and conflicts with the authority of Congress under Art. III to set the limits of federal jurisdiction." (citations and footnote omitted). The determination of who can seek a remedy has significant consequences for the reach of federal power. See n. 9, Concerns with the judicial creation of a private cause of action caution against its expansion. The decision to extend the cause of action is for Congress, not for us. Though it remains the law, the 10(b) private right should not be extended beyond its present boundaries. See Virginia shares, ("[The breadth of the [private right of action once recognized should not, as a general matter, grow beyond the scope congressionally intended"); see also Central at 3, (determining that the scope of conduct prohibited is limited by the text of 10(b)). This restraint is appropriate in light of the PSLRA, which imposed heightened pleading requirements and a loss causation requirement upon "any private action" arising from the Securities Exchange Act. See 15 U.S.C. 78u-4(b). It is clear these requirements touch upon the implied right of action, which is now a prominent feature of federal securities regulation. See Merrill Lynch, Pierce, nner & Smith 164 L. Ed. 2d 9 ; -346, U.S.Code Cong. & Admin.News 1995, pp. 679, 684 (recognizing the 10(b) implied cause of action, and indicating the PSLRA was intended to have "Congress reassert its authority in this area"); (indicating the pleading standards covered 10(b) actions). Congress thus ratified the implied right of action after the Court moved away from a broad willingness to imply private rights of action. See Merrill Lynch, Pierce, nner & Smith, ; cf. It is appropriate for us to assume that when 78u-4 was enacted, Congress accepted the 10(b) private cause of action as then defined but chose to extend it no further. IV Secondary actors are subject to criminal penalties, see, e.g., 15 U.S.C. 78ff, and civil enforcement by the SEC, see, e.g., 78t(e). The enforcement power is not toothless. Since September 30, SEC enforcement actions have collected over $10 billion in disgorgement and penalties, much of it for distribution to injured investors. See SEC, Performance and Accountability Report, p. 26, http://www.sec.gov/about/secpar.shtml (as visited Jan. 2, 2008, and available in Clerk of Court's case file). And in this case both parties agree that criminal penalties are a strong deterrent. See Brief for Respondents 48; Reply Brief for Petitioner In addition some state securities laws permit state authorities to seek fines and restitution from aiders and abettors. See, e.g., Del.Code Ann., Tit. 6, 7325 All secondary actors, furthermore, are not |
Justice Kennedy | 2,008 | 4 | majority | Stoneridge Inv. Partners v. Scientific-Atl. | https://www.courtlistener.com/opinion/145837/stoneridge-inv-partners-v-scientific-atl/ | Ann., Tit. 6, 7325 All secondary actors, furthermore, are not necessarily immune from private suit. The securities statutes provide an express private right of action against accountants and underwriters in certain circumstances, see 15 U.S.C. 77k, and the implied right of action in 10(b) continues to cover secondary actors who *774 commit primary violations. Central at Here respondents were acting in concert with Charter in the ordinary course as suppliers and, as matters then evolved in the not so ordinary course, as customers. Unconventional as the arrangement was, it took place in the marketplace for goods and services, not in the investment sphere. Charter was free to do as it chose in preparing its books, conferring with its auditor, and preparing and then issuing its financial statements. In these circumstances the investors cannot be said to have relied upon any of respondents' deceptive acts in the decision to purchase or sell securities; and as the requisite reliance cannot be shown, respondents have no liability to petitioner under the implied right of action. This conclusion is consistent with the narrow dimensions we must give to a right of action Congress did not authorize when it first enacted the statute and did not expand when it revisited the law. The judgment of the Court of Appeals is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Thomas | 2,003 | 1 | second_dissenting | Barnhart v. Peabody Coal Co. | https://www.courtlistener.com/opinion/122253/barnhart-v-peabody-coal-co/ | I fully agree with JUSTICE SCALIA's analysis in these cases and, accordingly, join his opinion. I write separately, however, to reiterate a seemingly obvious rule: Unless Congress explicitly states otherwise, "we construe a statutory term in accordance with its ordinary or natural meaning." Thus, absent a congressional directive to the contrary, "shall" must be construed as a mandatory command, see American Heritage Dictionary 1598 (4th ed. 2000) (defining "shall" as (1)a. "Something that will take place or exist in the future b. Something, such as an order, promise, requirement, or obligation: You shall leave now. He shall answer for his misdeeds. The penalty shall not exceed two years in prison"). If Congress desires *185 for this Court to give "shall" a nonmandatory meaning, it must say so explicitly by specifying the consequences for noncompliance or explicitly defining the term "shall" to mean something other than a mandatory directive. Indeed, Congress is perfectly free to signify the hortatory nature of its wishes by choosing among a wide array of words that do, in fact, carry such meaning; "should," "preferably," and "if possible" readily come to mind. Given the foregoing, I disagree with U.S. 253 and its progeny, to the extent they are taken, perhaps erroneously, see ante, at 177-179 (SCALIA, J., dissenting), to suggest that (1) "shall" is not mandatory and that (2) a failure to specify a consequence for noncompliance preserves the power to act in the face of such noncompliance, even where, as here, the grant of authority to act is coterminous with the mandatory command. I fail to see any reason for eviscerating the clear meaning of "shall," other than the impermissible goal of saving Congress from its own choices in the name of achieving better policy. But Article III does not vest judges with the authority to rectify those congressional decisions that we view as imprudent. I also note that, under the Court's current interpretive approach, there is no penalty at all for failing to comply with a duty if Congress does not specify consequences for noncompliance. The result is most irrational: If Congress indicates a lesser penalty for noncompliance (i. e., less than a loss of power to act), we will administer it; but if there is no lesser penalty and "shall" stands on its own, we will let government officials shirk their duty with impunity. Rather than depriving the term "shall" of its ordinary meaning, I would apply the term as a mandatory directive to the Commissioner. The conclusion then is obvious: The Commissioner has no power to make initial assignments after October 1, 1993. |
Justice Stevens | 1,989 | 16 | dissenting | Rodriguez De Quijas v. Shearson/American Express, Inc. | https://www.courtlistener.com/opinion/112261/rodriguez-de-quijas-v-shearsonamerican-express-inc/ | The Court of Appeals refused to follow a controlling precedent of this Court. As the majority correctly acknowledges, ante, at 484, the Court of Appeals therefore engaged in an indefensible brand of judicial activism.[1] We, of course, are not subject to the same restraint when asked to upset one of our own precedents. But when our earlier opinion gives a statutory provision concrete meaning, which Congress elects not to amend during the ensuing 3 1/2 decades, our duty to respect Congress' work product is strikingly similar to the duty of other federal courts to respect our work product.[2] *487 In the final analysis, a Justice's vote in a case like this depends more on his or her views about the respective lawmaking responsibilities of Congress and this Court than on conflicting policy interests. Judges who have confidence in their own ability to fashion public policy are less hesitant to change the law than those of us who are inclined to give wide latitude to the views of the voters' representatives on non-constitutional matters. Cf. As I pointed out years ago, Alberto-Culver rev'd, there are valid policy and textual arguments on both sides regarding the interrelation of federal securities and arbitration Acts.[3] See ante, at 479-484. None of these arguments, however, carries sufficient weight to tip the balance between judicial and legislative authority and overturn an interpretation of an Act of Congress that has been settled for many years. I respectfully dissent. |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | Since the early days of the Republic, the Federal Government's compact with each new State has granted the State land for the support of education and allowed the State to *521 select land of equal acreage as indemnity for deficiencies in the original grant. Today, the Court holds that the Taylor Grazing Act abrogated those compacts by approving selection requirements completely at odds with the equal acreage principle. Nothing in the Court's opinion persuades me that Congress meant so lightly to breach compacts that it has respected and enforced throughout our Nation's history. I therefore dissent. The Court's decision rests on three fundamental misconceptions. First, the Court reasons from the accepted proposition that indemnity lands compensate the for gaps in the original grants to the mistaken conclusion that the have no right to lands of equal acreage. Ante, at 507-510. This argument ignores the clear meaning of statutes spanning about two centuries in which Congress specifically adopted an equal acreage principle as the standard for making compensation. Second, the Court believes that the establishment of grazing districts under the Taylor Grazing Act has the same effect as a withdrawal of lands under the Pickett Act. Ante, at 513-519. This belief manifests a serious misunderstanding of both the history of federal land management and the language of the Taylor Grazing Act. Third, the Court assumeswithout discussionthat the Taylor Grazing Act gives the Secretary of the Interior discretion to reject indemnity selections under standards inconsistent with the criteria set out in the statutes authorizing the selections. Every federal court that has considered the Secretary's authority under the Taylor Grazing Act has rejected this assumption. A correct understanding of this case requires careful examination of a labyrinth of compacts and statutes dating back to the early years of our national history. Part I of this opinion reviews the unbroken succession of laws that undercut the Court's construction of the school indemnity selection statutes. Part II explains the development of the Taylor Grazing Act and its relationship to the Executive Orders withdrawing land under the Pickett Act. Finally, through a detailed consideration *522 of the Taylor Grazing Act's critical provisions, Part III demonstrates that the Act will not permit the construction that the Court has given it. I When the first 13 formed the Union, each State had sovereign authority over the lands within its borders. These lands provided a tax base for the support of education and other governmental functions. When settlers sought to carve the State of Ohio from the Northwest Territory in 1802, they encountered a different situation. Vast tracts within |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | in 1802, they encountered a different situation. Vast tracts within the boundaries of the proposed State belonged to the Federal Government. Thus, the new State's potential revenue base would be restricted severely unless the Federal Government waived its immunity from taxation.[1] In order to place Ohio on an equal footing with the original Congress enacted a compromise drawn from the Land Ordinance of 1785[2] and the Northwest Ordinance of 1787.[3] The compromise set a pattern followed in the admission of virtually every other State.[4] Specific details varied from State to State, but the *523 basic plan persisted. As consideration for each new State's pledge not to tax federal lands, Congress granted the State a fixed proportion of the lands within its borders for the support of public education. E. g., Act of Apr. 30, 1802, 7, (Ohio); Act of Jan. 29, 1861, 3, -128 (Kansas); Act of July 16, 1894, 3, 6, -109 (Utah); see United[5] These agreements were solemn bilateral compacts between each State and the Federal Government. See ante, at 507; United at -202; For its part, the Government granted the State specific sections of land within each township laid out by federal survey. The granted sections were specified by number to ensure that the State would receive a random cross section of the public land. Title to the sections vested in the State upon approval of the survey. United ; Should these grants in place prove unavailable, the Federal Government promised to grant the State indemnity in other lands of equal acreage. In return, Congress required the State to memorialize its pledge not to tax federal lands "by ordinance irrevocable without the consent of the United" E. g., Act of July 16, 1894, 3, (Utah). Congress also imposed upon the State a binding and perpetual obligation to use the granted lands for the support of public education. All revenue from the sale or lease of the school grants was impressed with a *524 trust in favor of the public schools. No State could divert school lands to other public uses without compensating the trust for the full market value of the interest taken. ; see Alamo Land & Cattle A long line of statutes dating from the early 1800's evidences Congress' consistent respect for the federal obligation to replace unavailable school sections with indemnity lands of equal acreage. See United at -202. In 1826, the first general indemnity selection statute appropriated additional tracts to compensate the for lands lost when fractional townships were found not to contain the numbered section originally granted. The statute directed the Secretary |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | the numbered section originally granted. The statute directed the Secretary of the Treasury to select "out of any unappropriated public land" within the township where the section had been lost the "quantity" of land to which the State was entitled. Act of May 20, 1826, ch. 83, When private claims against unsurveyed public lands increased as the Nation moved west, Congress also acted to indemnify for school sections occupied by settlers. The earliest statutes authorized officials in particular or Territories to select "other lands to an equal amount in lieu of [the] sections so occupied." E. g., Act of Mar. 2, 1853, 20,[6] In 1859, a second statute of general applicability appropriated "other lands of like quantity" to replace school sections pre-empted by prior settlement, "fractional in quantity," missing from a township, or lost "from any natural cause whatever." Act of Feb. 26, 1859, ch. 58, Although the statute incorporated by reference the selection provisions of the 1826 Act, a more particular statute passed on the same day expressly empowered local officials in one western *525 county to make their own indemnity selection. Upon filing with the local federal register, the statute declared, "the land so selected shall belong to the school fund in all respects the same as other school lands." Act of Feb. 26, 1859, ch. 59, The general statutes of 1826 and 1859, consolidated and codified as 2275 and 2276 in the Revised Statutes of 1874, underwent extensive revision in 1891. The resulting law appropriated additional land to replace school sections lost because they were mineral in character, included within a federal reservation, or "otherwise disposed of by the United" In lieu of unavailable school sections, each State was entitled to such "other lands of equal acreage [as] may be selected by said State." Act of Feb. 28, 1891, ch. 384, The could make their indemnity selections from "any unappropriated, surveyed public lands, not mineral in character, within the State." The 1891 revision had at least four effects. First, it reaffirmed the ' unquestioned right to replace lost school sections with lands of equal acreage. Second, it removed the restriction that had limited indemnity selections to land within the township where the school section was unavailable. Third, it appeared to confirm this Court's earlier decision that school grants did not convey mineral lands to the[7] Fourth, it expressly conformed the general indemnity selection statutes to the mid-19th-century enactments that gave certain the right to make their own indemnity selections. Even where the earlier statutes gave a State the power of selection, however, it had become accepted practice |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | the power of selection, however, it had become accepted practice for the State to submit its selections for the approval of the Secretary of the Interior.[8] State Enabling Acts passed in 1889 *526 and 1890 sanctioned the practice explicitly.[9] The 1891 revision of the general indemnity selection laws did not mention the need for federal approval, but the inclusion of an approval requirement in the Utah Enabling Act passed three years later suggests that the revision authorized no departure from the accepted practice. See Act of July 16, 1894, 6, By the end of the 19th century, the ' right to select land of equal acreage in lieu of lost school sections had been established for nearly 100 years. The only unsettled question was whether the Secretary of the Interior had discretion to disapprove the selections. In this Court resolved that question in the ' favor. New Mexico had selected alternative land in exchange for school sections lying within a national forest. Before the Secretary approved the selection, the grants in place were restored to the public domain. The Secretary found that the restoration of the grants in place defeated the basis for the exchange selection. The Court held, however, that equitable title to properly selected land vested in the State when the selection was filed. If the selection satisfied the requirement of the general school grant statutes, the Secretary had no power to annul the State's title. Three weeks later, the Court made the same point even more emphatically in In that case, the land selected by Wyoming in exchange for a school section lying within a national forest later was withdrawn by the Federal Government "as possible oil land." The Court again concluded that equitable title to the chosen land vested in the State on the date the selection was filed. It was not, the Court said, "as if the selection was merely a proposal by the State *527 which the [federal] land officers could accept or reject. They had no such option to exercise. The power confided to them was not that of granting or denying a privilege to the State, but of determining whether an existing privilege conferred by Congress had been lawfully exercised." In the years after Payne and Wyoming, Congress further expanded the ' rights to land for the support of public education. A 1927 statute declared that school grants were "to embrace numbered school sections mineral in character." Act of Jan. 25, 1927, 1, 44 Stat., pt. 2, p. 1026. A 1958 amendment to the indemnity selection statutes, by then found in their |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | to the indemnity selection statutes, by then found in their present places as 43 U.S. C. 851, 852, permitted to select mineral lands as indemnity for lost school sections that were mineral in character. Act of Aug. 27, 1958, This provision reflected a congressional judgment that the ban on mineral land indemnity for lost mineral lands had denied the the fair cross section of land values contemplated by the original numbered grants.[10] Congress also found that a rule which kept the from replacing nonmineral land with mineral land "amply protected" the federal interest in preventing a windfall to the Congress therefore declined to depart from the fundamental equal acreage principle accepted since 1802. H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2, 3-4 (1958). Indeed, Congress always has adhered to the equal acreage principle as its standard for just indemnification. As recently as 1966, when it amended 43 U.S. C. 852 to allow indemnity selections from unsurveyed as well as surveyed public land. Congress rejected the Secretary of the Interior's proposal to import an "equal value concept" into the indemnity statutes. *528 See Act of June 24, 1966, Stat. 220; S. Rep. No. 1213, 89th Cong., 2d Sess., 2, 4-5 (1966).[11] II The Utah Enabling Act of 1894 grants to the State four numbered sections within each township for the support of public education. If those sections "have been sold or otherwise disposed of" by the Federal Government, the Act like other statutes of its kinddirects school grant indemnity lands "to be selected within said State in such manner as the legislature may provide, with the approval of the Secretary of the Interior." Act of July 16, 1894, 6, In accordance with this direction, Utah has selected 194 tracts of mineral land as indemnity for lost school sections said to be mineral in character. Utah alleges that the tracts selected are unappropriated public land equal in acreage to the unavailable sections. Thus, the tracts appear to satisfy the basic indemnity selection requirements of 43 U.S. C. 851, 852. The Secretary, however, has refused to determine whether the selections satisfy the indemnity statutes. Instead, he claims that the Taylor Grazing Act of 1934, as amended, 43 U.S. C. 315 et seq., gives him discretion to disapprove the selection of indemnity lands "where the value of those lands greatly exceeds the value of the lost school lands for which the State seeks indemnity." App. 61. The Court today agrees. In an unprecedented departure, the Court concludes that Congress intended the Taylor Grazing Act to abrogate the equal acreage principle that Congress |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | Grazing Act to abrogate the equal acreage principle that Congress has reaffirmed repeatedly since 1802. The conclusion is implausible on its face, and the Taylor Grazing Act belies it. A full review of the Act's history and structure shows that this land management legislation *529 affects only the ' right to make land exchanges. Indeed, the language of the Actanalyzed more closely in Part III of this opinionexpressly protects the ' indemnity selection rights from any impairment whatever. The Taylor Grazing Act was intended to protect the public lands from spoliation while providing for the orderly satisfaction of valid claims against them. By the mid-1930's, the public ranges in the Western were seriously endangered. Overgrazing had destroyed the better grasses, erosion had bared the steep hillsides, and silt had filled the waterholes. Homesteading on the better watered grounds aggravated the situation by leaving other lands without access to water. Finally, the disastrous decline of livestock prices during the Great Depression drove stockmen to make even greater use of free grazing on the already depleted public domain.[12] It was against this background that Congress in 1934 enacted the Taylor Grazing Act "to promote the highest use of the public lands pending its final disposal." 1, Section 1 of the Act authorized the Secretary of the Interior "in his discretion, to establish grazing districts of vacant, unappropriated, and unreserved lands from any part of the public domain which in his opinion are chiefly valuable for grazing and raising forage crops." [13] Land noticed for inclusion within a grazing district was withdrawn from "all forms of entry [or] settlement" until hearings could be conducted. Congress carefully provided, however, that the Act was not to impede orderly disposition of the public lands. When some objected *530 to an earlier draft of the Act "upon the theory that the establishment of a grazing district would restrict [a] State in its indemnity selections," Congress recast 1 to declare expressly that "[n]othing in this Act shall be constructed in any way to diminish, restrict, or impair any right which has been heretofore or may be hereafter initiated under existing law validly affecting the public lands except as otherwise expressly provided in this Act, nor to affect any land heretofore or hereafter surveyed which, except for the provisions of this Act, would be a part of any grant to any State."[14] *531 Section 7 also gave the Secretary discretion to reclassify land within a grazing district as "more valuable and suitable for the production of agricultural crops than native grasses and forage plants." Upon reclassification, such land again |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | native grasses and forage plants." Upon reclassification, such land again became "subject to settlement or occupation as homesteads." The Act contained critically important provisions for land exchanges. Section 8 authorized the Secretary to accept private and state land within a grazing district in exchange for any surveyed public land of no more than "equal value." -1273. The section showed special solicitude for the by directing the Secretary to proceed with stateinitiated exchanges "at the earliest practicable date, and to cooperate fully with the State to that end." The Western however, objected to the discretionary exchange provisions. The Governor of Wyoming, for example, opposed the Act because he feared that 8 would impair the State's right to exchange school sections isolated inside a federal reservation or a grazing district for other, better situated acreage. In testimony before the Senate Committee, he argued that the Secretary might not allow enough exchanges to permit the removal of state land from inside federally administered areas. The Governor therefore urged that the Act's exchange provisions should be mandatory.[15] Testimony given by the Executive Secretary of the Utah Land Board expressed the same concerns.[16] The State Land Commissioner of Arizona also suggested that the Act would prevent private citizens from exercising their legitimate rights *532 against lands included in a grazing district.[17] Although the Secretary argues that these witnesses opposed the Act because it impaired the ' right to make indemnity selections, nothing in their testimony supports that conclusion. Indeed, the testimony of all three witnesses is most remarkable for its failure to suggest that they thought the Taylor Grazing Act would interfere with school grant indemnity selections by the Western Five months after the Act went into effect, President Roosevelt issued Executive Order No. 6910 (1934). Invoking his authority under the Pickett Act of 1910,[18] the President withdrew all unreserved and unappropriated public lands in 12 Western "from settlement, location, sale or entry pending determination of the most useful purpose to which such land may be put." The effect of this Pickett Act withdrawal was far-reaching. Although homesteading and other activities continued under existing claims, new entries upon the public domain came to a halt. See 55 I. D. 205 (1935). The withdrawal also forestalled and private citizens from exercising their exchange, scrip, or indemnity rights to appropriate public land. See State of Arizona, 55 I. D. 249, 253-254 (1935).[19] *533 Only months after the Order issued, the Senators from Arizona began hearings on a proposal to undercut the withdrawal by broadening the Secretary's powers under 7 and 8 of the Taylor Grazing Act.[20] The |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | under 7 and 8 of the Taylor Grazing Act.[20] The bill suffered a pocket veto, but an almost identical bill became law in 1936. Act of June 26, 1936, Title I, In the meantime, Executive Order No. 7274 (1936) excluded from the operation of the earlier Order "all lands which are now, or may hereafter be, included within grazing districts." Thus, by the time the bill was enacted, the Pickett Act withdrawal had no further effect on lands administered under the Taylor Grazing Act.[21] The 1936 enactment significantly amended 7 and 8 of the Taylor Grazing Act. The amendment to 7 authorized the Secretary of the Interior to classify lands withdrawn by Executive Order No. 6910 or "within a grazing district" as "more valuable or suitable" for uses other than grazing or as "proper for acquisition in satisfaction of any outstanding lieu, exchange or script [sic] rights or land grant."[22] Such land would be open "to entry, selection, or *534 location" under the applicable public land laws. The statute directed the Secretary to respond to an application for entry by classifying the subject land, but no lands were to be appropriated "until after the same have been classified and opened to entry." The amendment to 8 made mandatory the Taylor Grazing Act's provisions for the exchange of state-owned land.[23] Upon the receipt of any State's application for an exchange, the statute now provided, the Secretary "shall, and is hereby, directed to proceed with such exchange at the earliest practicable date and to cooperate fully with the State to that end." Furthermore, the Secretary was authorized to make exceptions to the equal value requirement that remained applicable to exchanges of private land. The federal land exchanged for state land could be "either of equal value or of equal acreage." III Two specific provisions of the Taylor Grazing Act are critical to the Court's resolution of this case. The Court first must demonstrate that 1 of the Act, 43 U.S. C. 315, does not exclude the State's school grant indemnity rights from the reach of the statute. The Court then must establish that 7 of the Act, 43 U.S. C. 315f, gives the Secretary of the Interior power to disapprove the selection of lands that satisfy *535 all requirements of the school grant indemnity statutes, 43 U.S. C. 851, 852. The Court fails to clear either hurdle because neither section of the Act permits the construction that the Court would give it. The plain language of 1 protects school grant indemnity rights from the operation of the statute. And even if the |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | from the operation of the statute. And even if the Act applied to school grants, 7 would not give the Secretary discretion to reject otherwise proper indemnity selections. A Section 1 of the Taylor Grazing Act provides that nothing in the statute shall "affect any land which [otherwise] would be a part of any grant to any State." The exemption is transparently clear. All grants made by the compacts between the and the Federal Government are completely unaffected by the Taylor Grazing Act. Thus, the establishment of a grazing district is not a federal "reservation" or "disposition" of land that can prevent title to numbered school sections from vesting in the See 43 U.S. C. 851. Furthermore, designated grazing land remains "unappropriated" and available for the satisfaction of school grants under the terms of the indemnity statutes. See 43 U.S. C. 852 (a) and (d). The purpose of the Act is simply to provide that unsurveyed or unselected school land, like other public land, can be included in grazing districts "[i]n order to promote [its] highest use pending its final disposal." 43 U.S. C. 315. The Court gives the unqualified exemption in 1 a construction that is inconsistent with its plain language and the stated purpose of the Act. The Court concedes that the inclusion of numbered school sections within a grazing district is not a federal disposition of the land that can defeat the grants in place. Ante, at 513.[24] It holds, however, that the *536 inclusion of other lands within a grazing district is a federal appropriation that can defeat a State's otherwise clear right to replace lost school sections with lands of equal acreage. Ante, at 519. Thus, the Court thinks the Taylor Grazing Act does "affect land which [otherwise] would be part of" a grant to a State. Indeed, the Court concludes that the Act gives the Secretary of the Interior power to nullify an earlier congressional "disposal" of public land. This construction is wholly at odds with the express language and the clear history of the Act. B Even if I could agree with the Court that 1 of the Taylor Grazing Act exempts only numbered school sections from the operation of the Act, I could not agree with the Court's unexplained conclusion that 7 allows the Secretary of the Interior to review school grant indemnity selections under a comparative value standard. Section 7 of the Act, 43 U.S. C. 315f, gives the Secretary discretion to reclassify designated grazing lands as "[i] more valuable or suitable for the production of agricultural crops than for the |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | suitable for the production of agricultural crops than for the production of native grasses and forage plants, or [ii] more valuable or suitable for any other use than for [grazing], or [iii] proper *537 for acquisition in satisfaction of any outstanding lieu, exchange or script [sic] rights or land grant, and to open such lands to entry, selection, or location for disposal in accordance with such classification under applicable public-land laws." The Courts of Appeals have concluded that this section gives the Secretary substantial discretion to conserve the public lands. Thus, the Secretary may reject private applications for land that he finds suitable for more efficient uses. See ; The courts also have upheld administrative determinations that certain land is not proper for private acquisition because the relevant land grant did not convey lands of that character. See ; cert. denied, But these federal courts agree that 7 of the Taylor Grazing Act does not give the Secretary authority to review a land selection under standards fundamentally inconsistent with the terms of the relevant land grant statutes. See (CA9), cert. denied, ; The word "proper" in the third clause of 7 quoted above cannot mean proper under whatever criteria the Secretary sees fit to devise. Nothing in this general provision, concerned with the satisfaction of private as well as state claims, suggests that Congress intended to authorize a comparative value standard at odds with the equal acreage principle found in every school grant indemnity statute since the beginning of the 19th century. When a specific statute grants fixed acreages, the Secretary cannot defeat the grant by applying a comparative value test based on the general provisions of 7. Broken v. This rule should apply with special force where the *538 Federal Government has granted fixed quantities of land to a State as part of the bilateral compact under which the State was admitted to the Union. Even the exchange provisions in 8 of the Taylor Grazing Act acknowledged the equal acreage principle. The section allowed the Secretary to accept private lands only in return for public lands of no more than "equal value," 43 U.S. C. 315g (b) (1970 ed.), but it authorized him to take state-owned lands in exchange for "land either of equal value or of equal acreage," 315g (c). Having expressly acknowledged the equal acreage principle in a section dealing with the exchange of lands to which the already hold title, the Act could not silently have authorized departures from that principle in a section dealing with indemnity for deficiencies in the original land grants. The Congress |
Justice Powell | 1,980 | 17 | dissenting | Andrus v. Utah | https://www.courtlistener.com/opinion/110262/andrus-v-utah/ | indemnity for deficiencies in the original land grants. The Congress that passed the indemnity provision under which Utah has made its selections found that a law permitting the selection of mineral lands as indemnity for other mineral lands of equal acreage "amply protected" the federal interest. H. R. Rep. No. 2347, 85th Cong., 2d Sess., 2 (1958). The sponsors of the legislation and the Department of the Interior did not concludeas the Court doesthat such selections would allow the to secure an unfair advantage. Instead, they agreed that the selection of mineral lands on an equal acreage basis was necessary to guarantee the public schools a "fair cross section of land values." ; 104 Cong. Rec. 11921 (1958) (remarks of Sen. Watkins); see No later Congress has receded from this view, despite the Secretary's invitation to do so. See S. Rep. No. 1213, 89th Cong., 2d Sess., 2, 4 (1966); -528. For nearly 180 years, Congress has adhered to the equal acreage principle embodied in the specific statutes most relevant to this case. The Court has no basis for surmising that a general statute addressed to different issues has given the Secretary authority to adopt an inconsistent position. *539 IV Utah has selected land in satisfaction of grants made to support the public education of its citizens. Those grants are part of the bilateral compact under which Utah was admitted to the Union. They guarantee the State a specific quantity of the public lands within its borders. and require the Secretary of the Interior to approve Utah's indemnity selections if they designate tracts equal in acreage to the lands replaced and otherwise satisfy the requirements of 43 U.S. C. 851, 852. Nothing in the Taylor Grazing Act empowers the Secretary to review Utah's selections under a comparative value standard explicitly at odds with principles consistently respected since the early days of our Republic. For a decade or longer, however, the Secretary has refused to determine whether Utah's selections satisfy 851 and 852. Indeed, he has refused to make any determination at all. Rather, the Secretary has claimed that the Taylor Grazing Act gives him discretion to disapprove the selection of indemnity lands more valuable than Utah's lost school sections. In the five years since Utah took issue with that claim, the registry of the District Court has swollen with the proceeds of oil shale leases on the selected landproceeds which the Federal Government now claims on the ground that the Secretary has not approved the indemnity selections. The District Court brought this matter to a just conclusion. It ordered the |
Justice Rehnquist | 1,974 | 19 | majority | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | In February 1971 respondent Thomas E. Maze moved to Louisville, Kentucky, and there shared an apartment with Charles L. Meredith. In the spring of that year respondent's fancy lightly turned to thoughts of the sunny Southland, and he thereupon took Meredith's BankAmericard and his 1968 automobile and headed for Southern California. By presenting the BankAmericard and signing Meredith's name, respondent obtained food and lodging at motels located in California, Florida, and Louisiana. Each of these establishments transmitted to the Citizens Fidelity Bank & Trust Co. in Louisville, which had issued the BankAmericard to Meredith, the invoices representing goods and services furnished to respondent. Meredith, meanwhile, on the day after respondent's departure from Louisville, notified the Louisville bank that his credit card had been stolen. Upon respondent's return to Louisville he was indicted on four counts of violation of the federal mail fraud statute, 18 U.S. C. 1341, and one count of violation of the Dyer Act, 18 U.S. C. 2312. The mail fraud counts of the indictment charged that respondent had devised a scheme to defraud the Louisville bank, Charles L. Meredith, and several merchants in different by unlawfully obtaining possession of the BankAmericard issued by the Louisville bank to Meredith, and using the card to obtain goods and services. The indictment charged that respondent had obtained goods and services *397 at four specified motels by presenting Meredith's BankAmericard for payment and representing himself to be Meredith, and that respondent knew that each merchant would cause the sales slips of the purchases to be delivered by mail to the Louisville bank which would in turn mail them to Meredith for payment. The indictment also charged that the delay in this mailing would enable the respondent to continue purchasing goods and services for an appreciable period of time. Respondent was tried by a jury in the United District Court for the Western District of Kentucky. At trial, representatives of the four motels identified the sales invoices from the transactions on Meredith's BankAmericard which were forwarded to the Louisville bank by their motels. An official of the Louisville bank testified that all of the sales invoices for those transactions were received by the bank in due course through the mail, and that this was the customary method by which invoices representing BankAmericard purchases were transmitted to the Louisville bank. The jury found respondent guilty as charged on all counts, and he appealed the judgment of conviction to the Court of Appeals for the Sixth Circuit. That court reversed the judgment as to the mail fraud statute, but affirmed it as to the |
Justice Rehnquist | 1,974 | 19 | majority | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | the mail fraud statute, but affirmed it as to the Dyer Act.[1] Because of an apparent conflict among the courts of appeals as to the circumstances under which the *398 fraudulent use of a credit card may violate the mail fraud statute,[2] we granted the Government's petition for certiorari. For the reasons stated below, we affirm the judgment of the Court of Appeals. The applicable parts of the mail fraud statute provide as follows:[3] "Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining *399 money or property by means of false or fraudulent pretenses, representations, or promises for the purpose of executing such scheme or artifice or attempting so to do knowingly causes to be delivered by mail according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any [matter or thing whatever to be sent or delivered by the Postal Service] shall be fined not more than $1,000 or imprisoned not more than five years, or both." 18 U.S. C. 1341. In the Court held that one "causes" the mails to be used where he "does an act with knowledge that the use of the mails will follow in the ordinary course of business, or where such use can reasonably be foreseen, even though not actually intended" We assume, as did the Court of Appeals, that the evidence would support a finding by the jury that Maze "caused" the mailings of the invoices he signed from the out-of-state motels to the Louisville bank. But the more difficult question is whether these mailings were sufficiently closely related to respondent's scheme to bring his conduct within the statute.[4] *400 Under the statute, the mailing must be "for the purpose of executing the scheme, as the statute requires," but "[i]t is not necessary that the scheme contemplate the use of the mails as an essential element," The Government relies on and United v. to support its position, while respondent relies on and v. United In corporate officers and directors were accused of having set up a dummy corporation through which to divert profits of their own corporation to their own use. As a part of the scheme, the defendants were accused of having fraudulently obtained checks payable to them which were cashed or deposited at a bank and then mailed for collection to the drawee bank. This Court held that the fraud was completed at the point at which defendants cashed the checks: "The scheme in each case had reached |
Justice Rehnquist | 1,974 | 19 | majority | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | cashed the checks: "The scheme in each case had reached fruition. The persons intended to receive the money had received it irrevocably. It was immaterial to them, or to any consummation of the scheme, how the bank which paid or credited the check would collect from the drawee bank. It cannot be said that the mailings in question were for the purpose of executing the scheme, as the statute requires." 323 U.S., at In the defendants were charged, inter alia, with having obtained gasoline and other products and services for their own purposes by the unauthorized use of a gasoline credit card issued to the school district which employed them. The oil company which furnished products and services to the defendants would *401 mail invoices to the school district for payment, and the school district's payment was made by check sent in the mail. Relying on the Court again found that there was not a sufficient connection between the mailing and the execution of the defendants' scheme, because it was immaterial to the defendants how the oil company went about collecting its payment. The defendant in was charged with having defrauded a wealthy widow of her property after marrying her. The Court describes the conduct of defendant in these words: " asked his then wife if she would join him in the hotel venture and advance $35,000 toward the purchase price of $78,000. She agreed. It was then agreed, between her and that she would sell some securities that she possessed in Los Angeles, and bank the money in a bank of his choosing in El Paso. On June 15, she received the check for $35,000 on the Citizens National Bank of Los Angeles from her brokers in Los Angeles, and gave it to who endorsed it for collection to the State National Bank of El Paso. The check cleared, and on June 18, a cashier's check for $35,000 was drawn in favor of" Thus the mailings in played a significant part in enabling the defendant in that case to acquire dominion over the $35,000, with which he ultimately absconded.[5]*402 Unlike the mailings in the mailings here were directed to the end of adjusting accounts between the motel proprietor, the Louisville bank, and Meredith, all of whom had to a greater or lesser degree been the victims of respondent's scheme. Respondent's scheme reached fruition when he checked out of the motel, and there is no indication that the success of his scheme depended in any way on which of his victims ultimately bore the loss.[6] Indeed, from his point of |
Justice Rehnquist | 1,974 | 19 | majority | United States v. Maze | https://www.courtlistener.com/opinion/108900/united-states-v-maze/ | victims ultimately bore the loss.[6] Indeed, from his point of view, he probably would have preferred to have the invoices misplaced by the various motel personnel and never mailed at all. The Government, however, relying on United v. argues that essential to the success of any fraudulent credit-card scheme is the "delay" caused by use of the mails "which aids the perpetrator in the continuation of a fraudulent credit card scheme and the postponement of its detection." In various employees of a nationwide corporation were charged with a scheme to defraud businessmen by obtaining advance fees on the promise that the defendants would either help the businessmen to obtain loans or to sell their businesses. Even after the checks representing the fees had been deposited to the accounts of *403 the defendants, however, the plan called for the mailing of the accepted application together with a form letter assuring the victims that the services for which they had contracted would be performed. The Court found that and did not preclude the application of the mail fraud statute to "a deliberate, planned use of the mails after the victims' money had been obtained." 371 U.S., 0. We do not believe that sustains the Government's position. The subsequent mailings there were designed to lull the victims into a false sense of security, postpone their ultimate complaint to the authorities, and therefore make the apprehension of the defendants less likely than if no mailings had taken place. But the successful completion of the mailings from the motel owners here to the Louisville bank increased the probability that respondent would be detected and apprehended. There was undoubtedly delay in transmitting invoices to the Louisville bank, as there is in the physical transmission of any business correspondence between cities separated by large distances. Mail service as a means of transmitting such correspondence from one city to another is designed to overcome the effect of the distance which separates the places. But it is the distance, and not the mail service,[7] which causes the time lag in the physical transmission of such correspondence.[8] *404 Congress has only recently passed an amendment to the Truth in Lending Act[9] which makes criminal the use of a fraudulently obtained credit card in a "transaction *405 affecting interstate or foreign commerce." 15 U.S. C. 1644. Congress could have drafted the mail fraud statute so as to require only that the mails be in fact used as a result of the fraudulent scheme.[10] But it did not do this; instead, it required that the use of the mails be "for the |
Justice Breyer | 2,004 | 2 | second_dissenting | Doe v. Chao | https://www.courtlistener.com/opinion/131163/doe-v-chao/ | I agree with JUSTICE GINSBURG and join her opinion. I emphasize JUSTICE GINSBURG's view that the statute (as *642 we interpret it) is not likely to produce "massive recoveries" against the Government recoveries that "Congress did not endorse." Ante, at 636 (dissenting opinion). I concede that the statute would lead to monetary recoveries whenever the Government's violation of the Privacy Act of 1974 is "intentional or willful." 5 U.S. C. 552a(g)(4). But the Government at oral argument pointed out that the phrase "`intentional or willful' has been construed by the lower courts as essentially a term of art, and the prevailing test is akin to the standard that would prevail in a Bivens action[:] `[C]ould a reasonable officer in this person's position have believed what he was doing was legal?'" Tr. of Oral Arg. 33-34 (internal quotation marks added). That is to say, the lower courts have interpreted the phrase restrictively, essentially applying it where the Government's violation of the Act is in bad faith. See, e. g., ; see also, e. g., ; ; ; overruled in part on other grounds, ; ; But cf. Given this prevailing interpretation, the Government need not fear liability based upon a technical, accidental, or good-faith violation of the statute's detailed provisions. Hence *643 JUSTICE GINSBURG's interpretation would not risk injury to the public fisc. And I consequently find no support in any of the statute's basic purposes for the majority's restrictive reading of the damages provision. |
Justice Stevens | 1,990 | 16 | concurring | Department of Labor v. Triplett | https://www.courtlistener.com/opinion/112399/department-of-labor-v-triplett/ | The Government unquestionably has a legitimate interest in preventing lawyers from overcharging program beneficiaries. It may, therefore, enforce regulations prohibiting unreasonable fees. For the reasons stated in my dissent in *728 however, I remain convinced that such regulation may not be so pervasive as to deny the individual the right to consult and retain independent counsel. In this action I agree with the Court that respondent Triplett has failed to prove that the regulations have this effect. With regard to my colleagues' comments on ASARCO I add this observation. In that case we carefully considered the question "whether, under federal standards, the case was nonjusticiable at its outset because the original plaintiffs lacked standing to sue," ; only thereafter did we address the separate question whether, in the circumstances of that case, the entry of a state-court judgment that caused concrete injury to the parties made it appropriate to examine justiciability at a later stage in the proceedings. It is entirely appropriate for the Court to follow the same procedure in this action. Accordingly, I join the Court's opinion and judgment. JUSTICE MARSHALL, with whom JUSTICE BRENNAN joins as to Part II, concurring in the judgment. In the context of an attorney disciplinary action, the West Virginia Supreme Court of Appeals held the provision of the Black Lung Benefits Act of 1972 that governs attorney's fees awarded to counsel for a successful claimant, as amended, 30 U.S. C. 932(a) (1982 ed., Supp. V), unconstitutional as applied. I agree with the Court's decision to reverse this judgment because the evidence supporting it does not establish that the Department of Labor's regulation of attorney's fees deprives black lung claimants of adequate legal assistance. Ante, at 726. Nevertheless, I write separately to underscore the limited nature of the Court's holding. I Before the Court proceeds to the merits of this litigation, it discusses the standing of petitioners and respondent Triplett (hereinafter respondent). I agree that we must examine the *729 standing of one of the petitioners and that petitioners can seek review in this Court. Ante, at 719. I am bewildered, however, by the Court's lengthy discussion of respondent's standing to assert the due process rights of black lung Ante, at 720-721. As long as one of the petitioners has standing and the litigation presents a live case or controversy, this Court has jurisdiction on certiorari from a state-court judgment even if, had the state court applied federal standing requirements, the respondent would have lacked standing. ASARCO The rule we announced so recently in ASARCO renders examination of respondent's standing in the state |
Justice Stevens | 1,990 | 16 | concurring | Department of Labor v. Triplett | https://www.courtlistener.com/opinion/112399/department-of-labor-v-triplett/ | in ASARCO renders examination of respondent's standing in the state courts through the lens of federal standing principles completely irrelevant. To the extent that the Court's extended treatment of the issue implies otherwise, it is blatantly inconsistent with our precedent. In ASARCO, the petitioners sought review of a state-court decision on a federal issue in favor of the respondents, who were the plaintiffs in state court. The United States as amicus curiae argued that this Court should dismiss the case because the respondents would not have satisfied the standing requirements for bringing the suit in a federal district court. This Court held, however, that the respondents were not required to meet federal standing requirements. Rather, only the parties "first invoking the authority of the federal courts in th[at] case," the petitioners, were required to prove standing. See also The ASARCO Court began its analysis with the well-established rule that "state courts are not bound to adhere to federal standing requirements [even though] they possess the authority, absent a provision for exclusive federal jurisdiction, to render binding judicial decisions that rest on their own interpretations of federal law." The Court then reasoned that if it were to examine the respondents' standing and determine that the respondents failed to satisfy federal standing requirements, the only logical course would be to dismiss the case, leaving the state-court judgment intact. *730 See -621.[1] The unavailability of federal review of such a state-court judgment would undermine the preclusive effect of that judgment on subsequent litigation between the parties in federal court, because a state-court judgment on a federal issue normally has collateral-estoppel effect in federal court only if the state-court judgment was subject to federal review. A state court that sought to render a binding decision on a federal issue would be forced to adhere to federal standing requirements to ensure the availability of federal review. The ASARCO Court concluded, therefore, that dismissing the case on the ground that the respondents lacked standing under federal principles would effectively impose those federal requirements on state courts. The Court's decision in ASARCO clearly forecloses the need for any examination of whether respondent here satisfies federal standing requirements. It is of no importance that the standing issue raised in this case is whether respondent can raise the claims of third parties, whereas the issue in ASARCO was whether the respondent taxpayers and teachers association had shown distinct, concrete injury fairly *731 traceable to the state statute and likely to be redressed by the requested relief. The general principle that a party must raise his own legal rights and |
Justice Stevens | 1,990 | 16 | concurring | Department of Labor v. Triplett | https://www.courtlistener.com/opinion/112399/department-of-labor-v-triplett/ | that a party must raise his own legal rights and interests and not those of third parties, and the limited exceptions to that principle, are part of the same set of standing requirements devised by this Court to limit the category of parties who may seek relief in federal court. See Valley Forge Christian Nothing in ASARCO suggests that some of the federal standing requirements are applicable to the States, while others are not.[2] *732 Because respondent has not invoked the authority of any federal court, then, federal standing principles are simply inapplicable to him. Under this Court's clear pronouncement in ASARCO, the only relevant question for us here is whether one of the petitioners has standing to seek review by this Court of the state court's judgment. As in ASARCO, these petitioners have standing because "[t]he state proceedings ended in a judgment adverse to petitioners, an adjudication of legal rights which constitutes the kind of injury cognizable in this Court on review from the state courts." ASARCO, The injury to the Committee on Legal Ethics is the nonenforcement of its disciplinary action. This injury is directly traceable to the state high court's judgment and can be redressed by a decision of this Court. *733 II Turning to the merits, I find it readily apparent that attorneys are necessary to vindicate claimants' rights under the Black Lung Benefits Act. As the West Virginia Supreme Court of Appeals noted, a black lung claimant must negotiate through a complex regulatory system to receive benefits from either the Black Lung Disability Trust Fund or the responsible mine operator. The complexity of the system is well documented. See, e. g., on Investigation of Backlog in Black Lung Cases before the Subcommittee on Labor Standards of the House Committee on Education and Labor, 99th Cong., 1st Sess., 186 (statement of attorney Thomas Makowski) ("Through the years, the standards have gotten more rigorous with regard to the sufficiency of evidence needed to prove a claim that a miner has black lung. As Congress made standards stricter, the regulations became more and more confusing, not only to the claimants, but to the attorneys and the administrative law judges as well"); (describing the difficult task of developing evidence necessary to support a benefits award); Smith & Newman, The Basics of Federal Black Lung Litigation, More significantly, the black lung process is highly adversarial. Attorneys representing either the Department of Labor or the responsible mine operator actively oppose the award of benefits to a claimant at all levels of the black lung system. Because an operator faces the prospect |
Justice Stevens | 1,990 | 16 | concurring | Department of Labor v. Triplett | https://www.courtlistener.com/opinion/112399/department-of-labor-v-triplett/ | the black lung system. Because an operator faces the prospect of paying significant awards, it is often willing to pay substantial legal fees to defend against black lung claims. See As we acknowledged in (), participation of *734 counsel in administrative proceedings " `inevitably give[s] the proceedings a more adversary cast.' " ). The black lung benefits system is thus qualitatively different from the Veterans' Administration system, which "is designed to function throughout with a high degree of informality and solicitude for the claimant." By specifically providing for lawyers and for the payment of reasonable attorney's fees in black lung cases, 30 U.S. C. 932(a) (1982 ed., Supp. V) (incorporating 33 U.S. C. 928(a) (1982 ed.)), Congress acknowledged that legal representation is crucial to black lung claimants' success in this complex, adversarial process. Cf. An unsophisticated and desperately ill miner, unfamiliar with legal concepts and practices, is at a severe disadvantage when he faces the expert lawyers of the Government or operators without professional assistance of his own. If the system operates so that claimants cannot obtain representation, it undoubtedly denies those claimants their right to due process. Although representation is necessary to protect claimants' rights under the Act, I agree with the Court that the West Virginia Supreme Court of Appeals had insufficient grounds for holding that the Department of Labor's regulation of attorney's fees deprives claimants of adequate legal assistance.[3] The Court's holding today, however, in no way precludes *735 a future constitutional challenge to the Department's implementation of the Act, founded on a more developed factual record. Finally, I emphasize the Court's observation that the current fee structure should compensate attorneys for any delay in payment and for the contingent nature of claims. Ante, at 725-726. See also Risden v. Director, OWCP, 11 BRBS 819, 824 (1980) (Benefits Review Board holding that fee should account for contingency). The West Virginia Supreme Court of Appeals identified delay and the absence of premiums to offset the risk of loss as the cause of the dearth of attorneys willing to represent When fee awards do not adequately account for these factors, individual attorneys can challenge the awards in the courts of appeals as violative of the Act's requirement of "reasonable" fees. Ante, at 725. If an attorney or claimant alleges that the regulations governing attorneys' fees do not allow the Department to award "reasonable" fees as required by the Black Lung Benefits Act, those regulations also may be challenged. Although the allegations in the sparse record before us raise legitimate concerns that black lung claimants may not be able to |
Justice Stevens | 1,990 | 16 | concurring | Department of Labor v. Triplett | https://www.courtlistener.com/opinion/112399/department-of-labor-v-triplett/ | concerns that black lung claimants may not be able to retain legal counsel and the suspicion that this inability may stem from the Department of Labor's regulation of attorney's fees, concerns and suspicions are insufficient to justify striking down on constitutional grounds "the duly enacted and carefully considered decision of a coequal and representative branch of our Government." Accordingly, I concur in the Court's decision today to reverse the judgment of the West Virginia Supreme Court of Appeals. *736 Separate statement of JUSTICE BRENNAN. I write separately to explain why it is prudent that we not resolve the issue whether respondent Triplett (hereinafter respondent) has standing in these cases. As JUSTICE MARSHALL explains, see ante, at 728-732, we held in ASARCO that if a petitioner in a case arising from a state court satisfies Article III's core standing requirements, we need not inquire whether the respondent also satisfies these requirements. Nevertheless, today the Court still inquires whether respondent is entitled to " `rest his claim on the legal rights or interests of third parties,' " ante, at 720 (citations omitted), an inquiry heretofore characterized as a "prudential" standing limitation on the jurisdiction of federal courts.[1] The Court suggests that there might be a "third-party claim" exception to the rule of ASARCO because the question whether a litigant may assert the rights of a third party is " `closely related to the question whether a person in the litigant's position would have a right of action on the claim.' " Ante, at 721, n., quoting I take the Court to be suggesting that the traditional "third-party standing" inquiry might be reformulated as a straightforward question of substantive federal law: whether the litigant is entitled to raise the legal claim asserted, either because her own legal rights are at stake or because principles of federal law justify her status as a "private attorney general" on behalf of those absent parties whose rights are at stake. Perhaps the Court's suggestion may provide a more coherent explanation for what is now perceived as a confusing area of standing doctrine.[2] But this suggested recharacterization, even if ultimately persuasive, would seem to depart from *737 our present understanding,[3] and the issue has been neither briefed nor argued here. Because the requisites of "third-party standing" doctrine are satisfied, ante, at 720-721, it is prudent that we not decide today whether to distinguish ASARCO on the basis of this recharacterization.[4] |
Justice Thomas | 1,999 | 1 | dissenting | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | Title II of the Americans with Disabilities Act of 1990 (ADA), as set forth in 42 U.S. C. 12132, provides: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities *616 of a public entity, or be subjected to discrimination by any such entity." (Emphasis added.) The majority concludes that petitioners "discriminated" against respondentsas a matter of lawby continuing to treat them in an institutional setting after they became eligible for community placement. I disagree. Temporary exclusion from community placement does not amount to "discrimination" in the traditional sense of the word, nor have respondents shown that petitioners "discriminated" against them "by reason of" their disabilities. Until today, this Court has never endorsed an interpretation of the term "discrimination" that encompassed disparate treatment among members of the same protected class. Discrimination, as typically understood, requires a showing that a claimant received differential treatment visà-vis members of a different group on the basis of a statutorily described characteristic. This interpretation comports with dictionary definitions of the term discrimination, which means to "distinguish," to "differentiate," or to make a "distinction in favor of or against, a person or thing based on the group, class, or category to which that person or thing belongs rather than on individual merit." Random House Dictionary 564 (2d ed. 1987); see also Webster's Third New International Dictionary 648 (1981) (defining "discrimination" as "the making or perceiving of a distinction or difference" or as "the act, practice, or an instance of discriminating categorically rather than individually"). Our decisions construing various statutory prohibitions against "discrimination" have not wavered from this path. The best place to begin is with Title VII of the Civil Rights Act of 1964, as amended, the paradigmatic antidiscrimination law.[1] Title VII makes it "an unlawful employment *617 practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S. C. 2000e2(a)(1) (emphasis added). We have explained that this language is designed "to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees."[2] Under Title VII, a finding of discrimination requires a comparison of otherwise similarly situated persons who are in different groups by reason of certain characteristics provided by statute. See, e. g., Newport News Shipbuilding & Dry Dock ). For this reason, we |
Justice Thomas | 1,999 | 1 | dissenting | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | News Shipbuilding & Dry Dock ). For this reason, we have described as "nonsensical" the comparison of the racial composition of different classes of job categories in determining whether there existed disparate impact discrimination with respect to a particular job category. Wards Cove Packing[3] Courts interpreting Title VII have held that a plaintiff cannot prove "discrimination" by demonstrating that one member of a particular protected group has been favored over another member of that same group. See, e. g., cert. denied, Our cases interpreting 504 of the Rehabilitation Act of 1973, as amended, which prohibits "discrimination" against certain individuals with disabilities, have applied this commonly understood meaning of discrimination. Section 504 provides: "No otherwise qualified handicapped individual shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected *619 to discrimination under any program or activity receiving Federal financial assistance." In keeping with the traditional paradigm, we have always limited the application of the term "discrimination" in the Rehabilitation Act to a person who is a member of a protected group and faces discrimination "by reason of his handicap." Indeed, we previously rejected the argument that 504 requires the type of "affirmative efforts to overcome the disabilities caused by handicaps," Southeastern Community that the majority appears to endorse today. Instead, we found that 504 required merely "the evenhanded treatment of handicapped persons" relative to those persons who do not have disabilities. Our conclusion was informed by the fact that some provisions of the Rehabilitation Act envision "affirmative action" on behalf of those individuals with disabilities, but 504 itself "does not refer at all" to such action. Therefore, "[a] comparison of these provisions demonstrates that Congress understood accommodation of the needs of handicapped individuals may require affirmative action and knew how to provide for it in those instances where it wished to do so." Similarly, in we found no discrimination under 504 with respect to a limit on inpatient hospital care that was "neutral on its face" and did not "distinguish between those whose coverage will be reduced and those whose coverage will not on the basis of any test, judgment, or trait that the handicapped as a class are less capable of meeting or less likely of having," at We said that 504 does "not guarantee the handicapped equal results from the provision of state Medicaid, even assuming some measure of equality of health could be constructed." Likewise, in we reiterated that the purpose of 504 is to guarantee that individuals with disabilities receive "evenhanded treatment" *620 relative to those |
Justice Thomas | 1,999 | 1 | dissenting | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | individuals with disabilities receive "evenhanded treatment" *620 relative to those persons without disabilities. In Traynor, the Court upheld a Veterans' Administration regulation that excluded "primary alcoholics" from a benefit that was extended to persons disabled by alcoholism related to a mental disorder. In so doing, the Court noted that "[t]his litigation does not involve a program or activity that is alleged to treat handicapped persons less favorably than nonhandicapped persons." at Given the theory of the case, the Court explicitly held: "There is nothing in the Rehabilitation Act that requires that any benefit extended to one category of handicapped persons also be extended to all other categories of handicapped persons." This same understanding of discrimination also informs this Court's constitutional interpretation of the term. See General Motors ; Yick ; see also Adarand Constructors, ; Despite this traditional understanding, the majority derives a more "comprehensive" definition of "discrimination," as that term is used in Title II of the ADA, one that includes "institutional isolation of persons with disabilities." Ante, at 600. It chiefly relies on certain congressional findings contained within the ADA. To be sure, those findings appear to equate institutional isolation with segregation, and thereby discrimination. See (quoting 12101(a)(2) and 12101(a)(5), both of which explicitly identify "segregation" of persons with disabilities as a form of "discrimination"); see also ante, at 588-589. The congressional findings, however, are written in general, hortatory terms and provide *621 little guidance to the interpretation of the specific language of 12132. See National Organization for Women, In my view, the vague congressional findings upon which the majority relies simply do not suffice to show that Congress sought to overturn a well-established understanding of a statutory term (here, "discrimination").[4] Moreover, the majority fails to explain why terms in the findings should be given a medical content, pertaining to the place where a mentally retarded person is treated. When read in context, the findings instead suggest that terms such as "segregation" were used in a more general sense, pertaining to matters such as access to employment, facilities, and transportation. Absent a clear directive to the contrary, we must read "discrimination" in light of the common understanding of the term. We cannot expand the meaning of the term "discrimination" in order to invalidate policies we may find unfortunate. Cf.[5] Elsewhere in the ADA, Congress chose to alter the traditional definition of discrimination. Title I of the ADA, 12112(b)(1), defines discrimination to include "limiting, segregating, or classifying a job applicant or employee in a way that adversely affects the opportunities or status of such applicant or employee." Notably, however, |
Justice Thomas | 1,999 | 1 | dissenting | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | opportunities or status of such applicant or employee." Notably, however, Congress did not provide that this definition of discrimination, unlike other aspects of the ADA, applies to Title II. Ordinary canons of construction require that we respect the limited applicability of this definition of "discrimination" and not import it into other parts of the law where Congress did not see fit. See, e. g., ). The majority's definition of discriminationalthough not specifically delineatedsubstantially imports the definition of Title I into Title II by necessarily assuming that it is sufficient to focus exclusively on members of one particular *6 group. Under this view, discrimination occurs when some members of a protected group are treated differently from other members of that same group. As the preceding discussion emphasizes, absent a special definition supplied by Congress, this conclusion is a remarkable and novel proposition that finds no support in our decisions in analogous areas. For example, the majority's conclusion that petitioners "discriminated" against respondents is the equivalent to finding discrimination under Title VII where a black employee with deficient management skills is denied in-house training by his employer (allegedly because of lack of funding) because other similarly situated black employees are given the inhouse training. Such a claim would fly in the face of our prior case law, which requires more than the assertion that a person belongs to a protected group and did not receive some benefit. See, e. g., -431 At bottom, the type of claim approved of by the majority does not concern a prohibition against certain conduct (the traditional understanding of discrimination), but rather concerns imposition of a standard of care.[6] As such, the majority *624 can offer no principle limiting this new species of "discrimination" claim apart from an affirmative defense because it looks merely to an individual in isolation, without comparing him to otherwise similarly situated persons, and determines that discrimination occurs merely because that individual does not receive the treatment he wishes to receive. By adopting such a broad view of discrimination, the majority drains the term of any meaning other than as a proxy for decisions disapproved of by this Court. Further, I fear that the majority's approach imposes significant federalism costs, directing States how to make decisions about their delivery of public services. We previously have recognized that constitutional principles of federalism erect limits on the Federal Government's ability to direct state officers or to interfere with the functions of state governments. See, e. g., ; New We have suggested that these principles specifically apply to whether States are required to provide a certain |
Justice Thomas | 1,999 | 1 | dissenting | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | apply to whether States are required to provide a certain level of benefits to individuals with disabilities. As noted in in rejecting a similar theory under 504 of the Rehabilitation Act: "[N]othing suggests that Congress desired to make major inroads on the States' longstanding discretion to choose the proper mix of amount, scope, and duration limitations on services". See also ("[N]othing in [ 504] authorizes [the Secretary of Health and Human Services (HHS)] to commandeer state agencies[These] agencies are *625 not field offices of the HHS bureaucracy, and they may not be conscripted against their will as the foot soldiers in a federal crusade"). The majority's affirmative defense will likely come as cold comfort to the States that will now be forced to defend themselves in federal court every time resources prevent the immediate placement of a qualified individual. In keeping with our traditional deference in this area, see the appropriate course would be to respect the States' historical role as the dominant authority responsible for providing services to individuals with disabilities. The majority may remark that it actually does properly compare members of different groups. Indeed, the majority mentions in passing the "[d]issimilar treatment" of persons with and without disabilities. Ante, at 601. It does so in the context of supporting its conclusion that institutional isolation is a form of discrimination. It cites two cases as standing for the unremarkable proposition that discrimination leads to deleterious stereotyping, ante, at 600 ; n. 13)), and an amicus brief which indicates that confinement diminishes certain everyday life activities, ante, at 601 (citing Brief for American Psychiatric Association et al. as Amici Curiae 20-22). The majority then observes that persons without disabilities "can receive the services they need without" institutionalization and thereby avoid these twin deleterious effects. Ante, at 601. I do not quarrel with the two general propositions, but I fail to see how they assist in resolving the issue before the Court. Further, the majority neither specifies what services persons with disabilities might need nor contends that persons without disabilities need the same services as those with disabilities, leading to the inference that the dissimilar treatment the majority observes results merely from the fact that different classes of persons receive different servicesnot from "discrimination" as traditionally defined. *626 Finally, it is also clear petitioners did not "discriminate" against respondents "by reason of [their] disabili[ties]," as 12132 requires. We have previously interpreted the phrase "by reason of" as requiring proximate causation. See, e. g., ; see also Such an interpretation is in keeping with the vernacular understanding of the phrase. See |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | This case concerns the time within which a defendant named in a state-court action may remove the action to a federal court. The governing provision is 28 U.S. C. 1446(b), which specifies, in relevant part, that the removal notice "shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the [complaint]." The question presented is whether the named defendant must be officially summoned to appear in the action before the time to remove begins to run. Or, may the 30-day period start earlier, on the named defendant's receipt, before service of official process, of a "courtesy copy" of the filed complaint faxed by counsel for the plaintiff? We read Congress' provisions for removal in light of a bedrock principle: An individual or entity named as a defendant is not obliged to engage in litigation unless notified of the action, and brought under a court's authority, by formal process. Accordingly, we hold that a named defendant's time to *348 remove is triggered by simultaneous service of the summons and complaint, or receipt of the complaint, "through service or otherwise," after and apart from service of the summons, but not by mere receipt of the complaint unattended by any formal service. I On January 26, 1996, respondent Michetti Pipe Stringing, Inc. (Michetti), filed a complaint in Alabama state court seeking damages for an alleged breach of contract and fraud by petitioner Murphy Bros., Inc. (Murphy). Michetti did not serve Murphy at that time, but three days later it faxed a "courtesy copy" of the file-stamped complaint to one of Murphy's vice presidents. The parties then engaged in settlement discussions until February 12, 1996, when Michetti officially served Murphy under local law by certified mail. On March 13, 1996 (30 days after service but 44 days after receiving the faxed copy of the complaint), Murphy removed the case under 28 U.S. C. 1441 to the United States District Court for the Northern District of Alabama.[1] Michetti moved to remand the case to the state court on the ground that Murphy filed the removal notice 14 days too late. The notice of removal had not been filed within 30 days of the date on which Murphy's vice president received the facsimile transmission. Consequently, Michetti asserted, the removal was untimely under 28 U.S. C. 1446(b), which provides: "The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant *349 if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter." (Emphasis added.) The District Court denied the remand motion on the ground that the 30-day removal period did not commence until Murphy was officially served with a summons. The court observed that the phrase "or otherwise" was added to 1446(b) in 1949 to govern removal in States where an action is commenced merely by the service of a summons, without any requirement that the complaint be served or even filed contemporaneously. See App. A-24. Accordingly, the District Court said, the phrase had "no field of operation" in States such as Alabama, where the complaint must be served along with the summons. See On interlocutory appeal permitted pursuant to 28 U.S. C. 1292(b), the Court of Appeals for the Eleventh Circuit reversed and remanded, instructing the District Court to remand the action to state court. The Eleventh Circuit held that "the clock starts to tick upon the defendant's receipt of a copy of the filed initial pleading." "By and large," the appellate court wrote, "our analysis begins and ends with" the words "receipt or otherwise." -1398 Because lower courts have divided on the question whether service of process is a prerequisite for the running of the 30-day removal period under 1446(b),[2] we granted certiorari. *350 II Service of process, under longstanding tradition in our system of justice, is fundamental to any procedural imposition on a named defendant. At common law, the writ of capias ad respondendum directed the sheriff to secure the defendant's appearance by taking him into custody. See 1 J. Moore, Moore's Federal Practice ¶ 0.6[2.2], p. 212 (2d ed. 1996) ("[T]he three royal courts, Exchequer, Common Pleas, and King's Bench obtained an in personam jurisdiction over the defendant in the same manner through the writ of capias ad respondendum. "). The requirement that a defendant be brought into litigation by official service is the contemporary counterpart to that writ. See International Shoe In the absence of service of process (or waiver of service by the defendant), a court ordinarily may not exercise power over a party the complaint names as defendant. See Omni Capital Int'l, ; Mississippi Publishing Accordingly, one becomes a party officially, and is required to take action in that capacity, only upon service of a summons or other authority-asserting |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | capacity, only upon service of a summons or other authority-asserting measure stating the time within which the party served must appear and defend. See Fed. Rule Civ. Proc. 4(a) ("[The summons] shall state the time within which the defendant must appear and defend, and notify the defendant that failure to do so will result in a judgment by default against the defendant."); Rule 12(a)(1)(A) (a defendant shall serve an answer within 20 days of being *351 served with the summons and complaint). Unless a named defendant agrees to waive service, the summons continues to function as the sine qua non directing an individual or entity to participate in a civil action or forgo procedural or substantive rights. III When Congress enacted 1446(b), the legislators did not endeavor to break away from the traditional understanding. Prior to 1948, a defendant could remove a case any time before the expiration of her time to respond to the complaint under state law. See, e. g., 28 U.S. C. 72 (1940 ed.). Because the time limits for responding to the complaint varied from State to State, however, the period for removal correspondingly varied. To reduce the disparity, Congress in 1948 enacted the original version of 1446(b), which provided that "[t]he petition for removal of a civil action or proceeding may be filed within twenty days after commencement of the action or service of process, whichever is later." Act of June 25, 1948, as amended, 28 U.S. C. 1446(b). According to the relevant House Report, this provision was intended to "give adequate time and operate uniformly throughout the Federal jurisdiction." H. R. Rep. No. 308, 80th Cong., 1st Sess., A135 (1947). Congress soon recognized, however, that 1446(b), as first framed, did not "give adequate time and operate uniformly" in all States. In States such as New York, most notably, service of the summons commenced the action, and such service could precede the filing of the complaint. Under 1446(b) as originally enacted, the period for removal in such a State could have expired before the defendant obtained access to the complaint. To ensure that the defendant would have access to the complaint before commencement of the removal period, Congress in 1949 enacted the current version of 1446(b): "The petition for removal of a civil action or proceeding shall be *352 filed within twenty days [now thirty days][3] after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based." Act of May 24, 1949, 83(a), The accompanying |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | is based." Act of May 24, 1949, 83(a), The accompanying Senate Report explained: "In some States suits are begun by the service of a summons or other process without the necessity of filing any pleading until later. As the section now stands, this places the defendant in the position of having to take steps to remove a suit to Federal court before he knows what the suit is about. As said section is herein proposed to be rewritten, a defendant is not required to file his petition for removal until 20 days after he has received (or it has been made available to him) a copy of the initial pleading filed by the plaintiff setting forth the claim upon which the suit is based and the relief prayed for. It is believed that this will meet the varying conditions of practice in all the States." S. Rep. No. 303, 81st Cong., 1st Sess., 6 (1949). See also H. R. Rep. No. 352, 81st Cong., 1st Sess., 14 (1949) ("The first paragraph of the amendment to subsection (b) corrects [the New York problem] by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading.").[4] Nothing in the legislative history of the 1949 *353 amendment so much as hints that Congress, in making changes to accommodate atypical state commencement and complaint filing procedures, intended to dispense with the historic function of service of process as the official trigger for responsive action by an individual or entity named defendant.[5] IV The Eleventh Circuit relied on the "plain meaning" of 1446(b) that the panel perceived. See In the Eleventh Circuit's view, because the term "`[r]eceipt' is the nominal form of `receive,' which means broadly `to come into possession of' or to `acquire,' " the phrase "`[receipt] through service or otherwise' opens a universe of means besides service for putting the defendant in possession of the complaint." What are the dimensions of that "universe"? The Eleventh Circuit's opinion is uninformative. Nor can one tenably maintain that the words "or otherwise" provide a clue. Cf. ; Apache Nitrogen Products, Inc. v. *354 Harbor Ins. Co., 145 F. R. D. 674, 679 (Ariz. 1993) ("[I]f in fact the words `service or otherwise' had a plain meaning, the cases would not be so hopelessly split over their proper interpretation."). The interpretation of 1446(b) adopted here adheres to tradition, makes sense of the phrase "or otherwise," and assures defendants adequate time to decide whether to remove an action to federal court. As the court |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | to remove an action to federal court. As the court in Potter observed, the various state provisions for service of the summons and the filing or service of the complaint fit into one or another of four main categories. See 186 F. Supp., at In each of the four categories, the defendant's period for removal will be no less than 30 days from service, and in some categories, it will be more than 30 days from service, depending on when the complaint is received. As summarized in Potter, the possibilities are as follows. First, if the summons and complaint are served together, the 30-day period for removal runs at once. Second, if the defendant is served with the summons but the complaint is furnished to the defendant sometime after, the period for removal runs from the defendant's receipt of the complaint. Third, if the defendant is served with the summons and the complaint is filed in court, but under local rules, service of the complaint is not required, the removal period runs from the date the complaint is made available through filing. Finally, if the complaint is filed in court prior to any service, the removal period runs from the service of the summons. See Notably, Federal Rule of Civil Procedure 81(c), amended in 1949, uses the identical "receipt through service or otherwise" language in specifying the time the defendant has to answer the complaint once the case has been removed: "In a removed action in which the defendant has not answered, the defendant shall answer or present the other defenses or objections available under these rules *355 within 20 days after the receipt through service or otherwise of a copy of the initial pleading setting forth the claim for relief upon which the action or proceeding is based." Rule 81(c) sensibly has been interpreted to afford the defendant at least 20 days after service of process to respond. See In Silva, the Seventh Circuit Court of Appeals observed that "nothing would justify our concluding that the drafters, in their quest for evenhandedness and promptness in the removal process, intended to abrogate the necessity for something as fundamental as service of process." In reaching this conclusion, the court distinguished an earlier decision, which held that a defendant need not receive service of process before his time for removal under 1446(b) begins to run. See 69 F.3d, But, as the United States maintains in its amicus curiae brief, the Silva court "did not adequately explain why one who has not yet lawfully been made a party to an action should be |
Justice Ginsburg | 1,999 | 5 | majority | Murphy Brothers, Inc. v. Michetti Pipe Stringing, Inc. | https://www.courtlistener.com/opinion/118279/murphy-brothers-inc-v-michetti-pipe-stringing-inc/ | lawfully been made a party to an action should be required to decide in which court system the case should be heard." Brief for United States as Amicus Curiae 13, n. 4. If, as the Seventh Circuit rightly determined, the "service or otherwise" language was not intended to abrogate the service requirement for purposes of Rule 81(c), that same language also was not intended to bypass service as a starter for 1446(b)'s clock. The fact that the Seventh Circuit could read the phrase "or otherwise" differently in Silva and Roe, moreover, undercuts the Eleventh Circuit's position that the phrase has an inevitably "plain meaning."[6] *356 Furthermore, the so-called "receipt rule"starting the time to remove on receipt of a copy of the complaint, however informally, despite the absence of any formal service could, as the District Court recognized, operate with notable unfairness to individuals and entities in foreign nations. See App. A-24. Because facsimile machines transmit instantaneously, but formal service abroad may take much longer than 30 days,[7] plaintiffs "would be able to dodge the requirements of international treaties and trap foreign opponents into keeping their suits in state courts." * * * In sum, it would take a clearer statement than Congress has made to read its endeavor to extend removal time (by adding receipt of the complaint) to effect so strange a changeto set removal apart from all other responsive acts, to render removal the sole instance in which one's procedural rights slip away before service of a summons, i. e., before one is subject to any court's authority. Accordingly, for the reasons stated in this opinion, the judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | We are asked to determine whether the Federal Power Commission exceeded its statutory authorization when it asserted jurisdiction over the Florida Power & Light Co. Section 201 (b) of the Federal Power Act, as amended, 16 U.S. C. 824 (b), grants the Federal Power Commission jurisdiction over "the transmission of electric energy in interstate commerce and the sale of electric energy at wholesale in interstate commerce, but not [over] any other sale of electric energy" Section 201 (c) defines energy transmitted in interstate commerce as energy "transmitted from a State and consumed at any point outside thereof."[1] In Connecticut Light & Power we noted that by this definition the initial jurisdictional determination "was to follow the flow of electric energy, an engineering and scientific, rather than a legalistic or governmental, test." ; In the case now before us the FPC hearing examiner and the Commission itself, utilizing two scientific tests, determined that the Florida Power & Light Co. (FP&L) generates energy that is transmitted in interstate commerce. They therefore held the company subject to the Commission's jurisdiction. Respondent FP&L argues that an alternative model better represents the flow of its electricity; by use of this model it purports to demonstrate that its power has not flowed in interstate commerce. The Court of Appeals for the Fifth Circuit rejected the FPC's tests as "not sufficient to prove the actual transmission of energy interstate." It did not approve FP&L's test ("Both [the FPC and the FP&L tests] suffer from the same vice," ), but because the FPC must shoulder the burden of proof, its finding of jurisdiction was set aside. We granted certiorari to determine if either of the FPC's tests provides an acceptable basis at law and a sufficient basis in fact for the establishment of jurisdiction. *456 I FP&L is Florida's largest electric utility. At the time relevant to this litigation it served nearly one million customers, ranked ninth nationally among electric companies in revenues, 14th in investment in gross utility electric plant, and 16th in kilowatt-hour sales. Despite this significant size, the peninsular nature of Florida, the concentration of the company's sales in the southern part of the State,[2] and the recurrent threat of hurricanes which might sever power lines combine to make the operations of the company unusually insular and independent of the operations of like companies in other States. All of FP&L's equipment, including transmission lines, is confined to Florida and none of its lines directly connect with those of out-of-state companies. FP&L does, however, indirectly connect with out-of-state companies. As a member of the Florida Pool, |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | with out-of-state companies. As a member of the Florida Pool, it is interconnected with the Florida Power Corp. (Corp),[3] the Tampa Electric Co., the Orlando Utilities Commission, and the City of Jacksonville. These interconnected utilities and authorities coordinate their activities and exchange power as circumstances require.[4] In 19 FP&L transferred over 107 million kwh to Corp *457 and received over 61 million kwh from Corp.[5] If power from FP&L flows in interstate commerce it is because Corp interconnects just short of Florida's northern border with Georgia Power Co.[6] and regularly exchanges power with it.[7] Georgia's lines transmit the power out of or into Florida. There are numerous instances in which transfers between Georgia and Corp are recorded as coinciding with transfers between Corp and FP&L.[8] The Georgia-Corp interconnection serves another function. Corp, FP&L, and the other Florida Pool participants are members of the Interconnected Systems Group (ISG), a national interlocking of utilities that automatically provides power in case of emergencies. In time of emergency this power also would flow through Corp's links with Georgia. To date FP&L has had no occasion to call for ISG power. But when a midwestern utility sustained a 580-megawatt generating loss, a regularly scheduled 8-megawatt FP&L contribution to the Florida Pool coincided with an 8-megawatt contribution from the pool to the ISG system. *458 These relationships establish the focal issue in this case. The FPC may exercise jurisdiction only if there is substantial evidentiary support for the Commission's conclusion that FP&L power has reached Georgia via Corp or that Georgia's power has reached FP&L because of exchanges with Corp. What happens when FP&L gives power to Corp and Corp gives power to Georgia (or vice versa)? Is FP&L power commingled with Corp's own supply, and thus passed on with that supply, as the Commission contends? Or is it diverted to handle Corp's independent power needs, displacing a like amount of Corp power that is then passed on, as respondent argues? Or, as the Commission also contends, do changes in FP&L's load or generation, or that of others in the interconnected system, stimulate a reaction up and down the line by a signal or a chain reaction that is, in essence, electricity moving in interstate commerce? Upon answer to these questions, jurisdiction rides. If FP&L were directly involved in power exchanges with Georgia, there would be no serious question about the resolution of this case. Section 201 of the Federal Power Act owes its origin to the determination of this Court that a direct transfer of power from a utility in Rhode Island to a utility |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | power from a utility in Rhode Island to a utility in Massachusetts is in interstate commerce. See Public Utilities "Part II [of the Act] is a direct result of Attleboro." United There can be no doubt that 201 achieves its end and fills the "Attleboro gap" by giving the FPC jurisdiction over direct exchanges. Connecticut Light & Power Nor would there be any difficulty in resolving this case if the company or companies that stood between FP&L and the out-of-state power companies could be shown to be sometimes no more than a funnel. In *459 Jersey Central Power & Light the first of the major FPC jurisdictional cases to be considered by this Court, Jersey Central supplied power to the Public Service Electric & Gas Co. (also a New Jersey company), which in turn had exchange arrangements with Staten Island Edison Corp. (a New York company). The transfer from PSE&G to Staten Island was effected through a "bus"a transmission line of three conductors into which a number of subsidiary lines connect. The FPC showed through extensive sampling of the logs of the relevant companies, that on at least a dozen occasions when Staten Island drew power from the bus only Jersey Central was supplying the bus. Thus, the intermediate presence of PSE&G was shown to be, in some circumstances, a null factor, and it was established that Jersey Central energy was moving in interstate commerce. In the litigation before us the record does not disclose situations in which Corp operated as a null or insufficient factor. Thus, the FPC has not in this litigation demonstrated with the clarity and certainty obtaining in the Jersey Central case that the energy flows that are a prerequisite to jurisdiction occurred. This is not, however, the equivalent of saying that the flows did not occur or that there was not substantial evidence for concluding that they did. The Court of Appeals was hardly less emphatic than the Federal Power Commission in its conclusion that FP&L's "proof" that the flows did not occur was unconvincing. The court purported to have no opinion whether the flows had actually occurred. The question that must be resolved, therefore, is whether the evidence presented, though not so certain and convincing as that which the FPC offered in Jersey Central, was nonetheless adequate to establish jurisdiction. We turn first to the conflicting contentions of the parties. *460 II The Federal Power Commission followed alternate routes to its conclusion that FP&L energy moved in interstate commerce. The first course, based on what the Commission called the electromagnetic unity of response of |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | what the Commission called the electromagnetic unity of response of interconnected electrical systems, is best represented in the words of the hearing examiner: "[N]one of the connected electric systems including that of Florida, Corp, and Georgia has any control over the actual transfers of power at each point of interconnection because of the free flow characteristics of electric networks. "An electric utility system such as Florida [Power & Light] is essentially an electro-mechanical system to which all operating generators on the interconnected network are interlocked electromagnetically. This means that electric generators, under ordinary operating conditions run either at exactly the same speed or at speeds which will result in a frequency of 60 cycles. No operating generator can change its speed by itself as long as it operates connected to the network. All generators connected to the same network must follow each other as to speed and frequency whenever there is a change in frequency, and the frequency of all interlocked generators is always exactly the same. "If a housewife in Atlanta on the Georgia system turns on a light, every generator on Florida's system almost instantly is caused to produce some quantity of additional electric energy which serves to maintain the balance in the interconnected system between generation and load. If sensitive enough instruments were available and were to be placed throughout Florida's system the increase in generation by every generator on Florida [Power & Light] could be precisely measured." *461 The hearing examiner concluded: "The cause and effect relationship in electric energy occurring throughout every generator and point on the Georgia, Corp and Florida systems constitutes interstate transmission of electric energy by, to, and from Florida. It is the electromagnetic unity of response of Florida, Corp, Georgia and other interconnecting systems that constitutes the interstate transmission of electric energy by Florida."[9] By this analysis a change in FP&L's load or generating pattern depletes or adds to the force available in out-of-state lines; therefore FP&L is transmitting energy in interstate commerce. The alternative analysis by the Commission and its staff experts concentrates on power flow within the "Turner bus"the point of connection between Corp's and FP&L's systems. Power supplied to the bus from a variety of sources is said to merge at a point and to be commingled just as molecules of water from different sources (rains, streams, etc.) would be commingled in a reservoir. On this basis the FPC need only show (1) FP&L power entering the bus and (2) power leaving the bus for out-of-state destinations at the same moment, in order to establish the fact that |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | the same moment, in order to establish the fact that some FP&L power goes out of State.[10] The FPC purported to make this demonstration by a series of tracing studies.[11] FP&L objects. The first approach is said to be technologically *462 sound, but legally insufficient in that it does not demonstrate that any FP&L power flows in interstate commerce, but only that it affects interstate commerce. Congress, it is argued, could have chosen to grant the FPC jurisdiction over activities affecting commerce, but it clearly did not do so.[12] The second approach of the FPC purports to meet the standard at law, but according to FP&L it is technologically unsound. A bus is not a point, but rather a tangible, physical three-strand power line, in this case 225 feet in length. It is argued that it is not a general reservoir. Power, according to this argument, enters and is drawn off the line at discrete identifiable points. Power from any given source will not flow further along the line than loads of wattage cumulatively equal to the wattage of the power source. The distribution of entry lines and wattage loads on the Turner bus is said to demonstrate that all of the FP&L's power will be exhausted by Corp's load lines before the point, further down the line, where Georgia's load intervenes. When power flows in the opposite direction (i. e., north to south) again the effect is one of displacement: Georgia's power goes to Corp's loads and the output of Corp's generators is thus displaced to FP&L. III We do not find it necessary to approve or disapprove the Federal Power Commission's analysis based on unity *463 of electromagnetic response. Its alternative assertion that energy commingles in a bus is, in our opinion, sufficient to sustain jurisdiction. In evaluating this second approach, the courts are called upon to do no more than assess the Commission's judgment of technical facts. If the Commission's conclusion of commingling is not overturned, then the legal consequences are clear. The conclusion of the FPC that FP&L energy commingled with that of Corp and was transmitted in commerce rested on the testimony of expert witnesses. The major points expounded by these witnesses were probed, and in our opinion not undercut, by the hearing examiner's questions, FP&L's cross-examination, and rebuttal testimony of FP&L witnesses. The hearing examiner found the testimony persuasive and held that his conclusions could be independently reached upon it. A majority of the Commission, reasoning similarly, endorsed these conclusions. A court must be reluctant to reverse results supported by such a weight of |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | reluctant to reverse results supported by such a weight of considered and carefully articulated expert opinion. Particularly when we consider a purely factual question within the area of competence of an administrative agency created by Congress, and when resolution of that question depends on "engineering and scientific" considerations, we recognize the relevant agency's technical expertise and experience, and defer to its analysis unless it is without substantial basis in fact. An appreciation of such different institutional capacities is reflected in the congressional directive defining the terms of judicial review of FPC action: "The finding of the Commission as to the facts, if supported by substantial evidence, shall be conclusive." Federal Power Act 313 (b), 16 U.S. C. 825l (b). See Gainesville Utilities *4 The Court of Appeals appears to have rejected the Commission's conclusions for two reasons. First, it apparently regarded these conclusions as supported by mere speculation rather than evidence. In its view, expert opinion about the nature of reality, however logically compelling, is not fact.[13] Second, even if the Commission's views might be said to be supported by substantial evidence, the Court of Appeals apparently thought it important that the Commission acknowledged that its conclusions rest upon representations of a reality imperfectly understood. From this the Court of Appeals concluded that it was dealing with a "simplified characterization" that, despite the frequent use of that same characterization by other courts of appeals,[14] was too uncertain in its application to any particular situation to be used as the basis for establishing jurisdiction. We reverse and reinstate the FPC's order because we do not think these points are well taken. As to the Court of Appeals' first reservation, we hold that well-reasoned expert testimonybased on what is known and uncontradicted by empirical evidencemay in and of itself be "substantial evidence" when first-hand evidence on the question (in this case how electricity moves within *465 a bus) is unavailable.[15] This proposition has been so long accepted,[16] and indeed has been so often applied specifically to challenges to the FPC's determination of *466 technical matters, that we do not consider it fairly in dispute. See, e. g., ; Travelers' Indemnity ; United States ex rel. aff'd, As Judge Parker said in the Court of Appeals' opinion in the latter case: "The [substantial-evidence] rule is no different because the questions involve matters of scientific knowledge and the evidence consists largely of the opinion of experts. The court may not, for that reason, ignore the conclusions of the experts and the Commission and put itself in the absurd position of substituting its judgment for |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | itself in the absurd position of substituting its judgment for theirs on controverted matters of hydraulic engineering. It is in just such matters that the findings of the Commission, because of its experience and the assistance of its technical staff, should be accorded the greatest weight and the courts should be most hesitant to substitute their judgment for that of the Commission." 191 F.2d, at On affirming, this Court noted, "[W]e cannot say, within the limited scope of review open to us, that the Commission's findings were not warranted. Judgment upon these conflicting engineering and economic issues is precisely that which the Commission exists to determine, so long as it cannot be said, as it cannot, that the judgment which it exercised had no basis in evidence and so was devoid of reason." The elusive nature of electrons renders experimental evidence that might draw the fine distinctions required by this case practically unobtainable. That does not *467 mean that expert testimony is insubstantial and that FP&L is beyond federal regulation. We think the second, related, concern expressed by the Court of Appeals exaggerates the standard of proof required in civil cases such as this. The lower court would apparently require tracing studies showing an energy flow-through like that demonstrated in Jersey Central. We do not think Jersey Central sets such high jurisdictional standards. Special circumstances in that case (the occasional operation of PSE&G as a null factor) permitted the FPC to present clear and compelling proof of interstate transactions. But we assessed the FPC's determination, not by the standards of certainty, but rather by the substantial-evidence test.[17] The fact that the FPC was exceptionally convincing in that leading case does not raise the standard that it must meet in all future cases. Finding no reason in the case law for imposing a standard of certainty, we are not willing to construct one. It is not true, as argued by respondent, that an engineering test of certainty is needed to reserve an area of state jurisdiction. On top of the "engineering and scientific test" that controls this case, the Federal Power Act imposes a "legalistic or governmental" test. Federal jurisdiction may not reach "facilities used in local distribution" of energy. 16 U.S. C. 824 (b). Thus, state jurisdiction is clearly demarcated and preserved. Connecticut Light & Power A requirement of tracing studies of the sort demanded by the Court of Appealsif they are feasible at *468 all[18]would take one to two years to conduct.[19] Even under the FPC's supposedly too easily met criteria of jurisdiction, the FP&L matter took almost four |
Justice White | 1,972 | 6 | majority | FPC v. Florida Power & Light Co. | https://www.courtlistener.com/opinion/108428/fpc-v-florida-power-light-co/ | met criteria of jurisdiction, the FP&L matter took almost four years to pass through Commission proceedings;[20] it has been before the courts for four more years. If the congressionally mandated system is to function meaningfully, the judiciary cannot overwhelm it with unworkably high standards of proof. New England Divisions Case, ; Railroad Comm'n of We note, moreover, that Jersey Central type tracing studies become less feasible as interconnections grow more complicated. Arkansas Power & Light quoting 34 F. P. C. 747, 751. The requirement of Jersey Central type tracing might encourage the artificial and wasteful complication of interconnections for the purpose of avoiding federal jurisdiction. More important, as interconnections proliferate and energy pools grow larger, jurisdictional hurdles like those erected by the Court of Appeals would become ever more difficult to clear. Thus, the greater the need for regulation, the more likely it would become (under the Court of Appeals' rule) that regulation would not be achieved. As pointed out by the Court of Appeals for the Seventh *469 Circuit in an FPC case similar to this one, even in a criminal prosecution where the highest standards of proof are required, guilt may be shown by circumstantial evidence.[21] The FPC has used tracing studies to show what went into and out of the Turner bus at a given moment; it has marshaled expert opinion to suggest what may reasonably be said to have occurred in the bus at the instant of transmission; it has presented this evidence in a closely reasoned and empirically uncontradicted opinion. Recognizing that the men responsible do not now fully understand electricity,[22] though they know how to use it, and use it on an ever-expanding basis, we do not demand more of the Commission than that its conclusions be substantially supported by expert opinion that is in accord with the facts known for certain. The Commission has done enough to establish its jurisdiction. The decision of the Court of Appeals is reversed and the case is remanded for reinstatement of the order of the Federal Power Commission. MR. JUSTICE STEWART, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. MR. |
Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | This case raises the question of whether a party to a collective-bargaining contract may be required to arbitrate a contractual dispute over severance pay pursuant to the arbitration clause of that agreement even though the dispute, although governed by the contract, arises after its termination. Only the issue of arbitrability is before us. (1) In 1970, petitioner Nolde Brothers, Inc., entered into a collective-bargaining agreement with respondent Local No. *245 358, of the Bakery & Confectionery Workers Union, AFLCIO, covering petitioner's Norfolk, Va., bakery employees. Under the contract, "any grievance" arising between the parties was subject to binding arbitration.[1] In addition, the contract contained a provision which provided for severance pay on termination of employment for all employees having three or more years of active service.[2] Vacation rights were *246 also granted employees by the agreement;[3] like severance pay, these rights were geared to an employee's length of service and the amount of his earnings. By its terms, the contract was to remain in effect until July 21, 1973, and thereafter, until such time as either a new agreement was executed between the parties, or the existing agreement was terminated upon seven days' written notice by either party. *247 In May 1973, the parties resumed bargaining after the Union advised Nolde, pursuant to 8 (d) of the National Labor Relations Act, 29 U.S. C. 158 (d) (1970 ed., and Supp. V), of its desire to negotiate certain changes in the existing agreement. These negotiations continued without resolution up to, and beyond, the July 21 contract expiration date. On August 20, the Union served the requisite seven days' written notice of its decision to cancel the existing contract. The Union's termination of the contract became effective August 27, 1973. Despite the contract's cancellation, negotiations continued. They ended, however, on August 31, when Nolde, faced by a threatened strike after the Union had rejected its latest proposal, informed the Union of its decision to close permanently its Norfolk bakery, effective that day. Operations at the plant ceased shortly after midnight on August 31. Nolde then paid employees their accrued wages and accrued vacation pay under the canceled contract; in addition, wages were paid for work performed during the interim between the contract's termination on August 27 and the bakery's closing four days later. However, the company rejected the Union's demand for the severance pay called for in the collective-bargaining agreement. It also declined to arbitrate the severance-pay claim on the ground that its contractual obligation to arbitrate disputes terminated with the collective-bargaining agreement. The Union then instituted this action in the District |
Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | agreement. The Union then instituted this action in the District Court under 301 of the Labor Management Relations Act, 29 U.S. C. 185, seeking to compel Nolde to arbitrate the severance-pay issue, or in the alternative, judgment for the severance pay due. The District Court granted Nolde's motion for summary judgment on both issues. It held that the employees' right to severance pay expired with the Union's voluntary termination of the collective-bargaining contract and that, as a result, there was no longer any severance-pay *248 issue to arbitrate. It went on to note that even if the dispute had been otherwise arbitrable, the duty to arbitrate terminated with the contract that had created it. On appeal, the United States Court of Appeals for the Fourth Circuit reversed. It took the position that the District Court had approached the case from the wrong direction by determining that Nolde's severance-pay obligations had expired with the collective-bargaining agreement before determining whether Nolde's duty to arbitrate the claim survived the contract's termination. Turning to that latter question first, the Court of Appeals concluded that the parties' arbitration duties under the contract survived its termination with respect to claims arising by reason of the collective-bargaining agreement. Having thus determined that the severance-pay issue was one for the arbitrator, the Court of Appeals expressed no views on the merits of the dispute. We granted certiorari to review its determination that the severance-pay claim was arbitrable. (2) In arguing that Nolde's displaced employees were entitled to severance pay upon the closing of the Norfolk bakery, the Union maintained that the severance wages provided for in the collective-bargaining agreement were in the nature of "accrued" or "vested" rights, earned by employees during the term of the contract on essentially the same basis as vacation pay, but payable only upon termination of employment. In support of this claim, the Union noted that the severance-pay clause is found in the contract under an article entitled "Wages." The inclusion within that provision, it urged, was evidence that the parties considered severance pay as part of the employees' compensation for services performed during the life of the agreement.[4] In addition, the Union *249 pointed out that the severance-pay clause itself contained nothing to suggest that the employees' right to severance pay expired if the events triggering payment failed to occur during the life of the contract. Nolde, on the other hand, argued that since severance pay was a creation of the collective-bargaining agreement, its substantive obligation to provide such benefits terminated with the Union's unilateral cancellation of the contract. As the parties' |
Justice Burger | 1,977 | 12 | majority | Nolde Brothers, Inc. v. Bakery Workers | https://www.courtlistener.com/opinion/109613/nolde-brothers-inc-v-bakery-workers/ | the Union's unilateral cancellation of the contract. As the parties' arguments demonstrate, both the Union's claim for severance pay and Nolde's refusal to pay the same are based on their differing perceptions of a provision of the expired collective-bargaining agreement. The parties may have intended, as Nolde maintained, that any substantive claim to severance pay must surface, if at all, during the contract's term. However, there is also "no reason why parties could not if they so chose agree to the accrual of rights during the term of an agreement and their realization after the agreement had expired." John Wiley &[5] Of course, in determining the arbitrability of the dispute, the merits of the underlying claim for severance pay are not before us. However, it is clear that, whatever the outcome, the resolution of that claim hinges on the interpretation ultimately given the contract clause providing for severance pay. The dispute therefore, although arising after the expiration of the collective-bargaining contract, clearly arises under that contract. There can be no doubt that a dispute over the meaning of the severance-pay clause during the life of the agreement *250 would have been subject to the mandatory grievance-arbitration procedures of the contract. Indeed, since the parties contracted to submit "all grievances" to arbitration, our determination that the Union was "making a claim which on its face is governed by the contract" would end the matter had the contract not been terminated prior to the closing of the plant. Here, however, Nolde maintains that a different rule must prevail because the event giving rise to the contractual dispute, i. e., the employees' severance upon the bakery's closing, did not occur until after the expiration of the collective-bargaining agreement. (3) Nolde contends that the duty to arbitrate, being strictly a creature of contract, must necessarily expire with the collective-bargaining contract that brought it into existence. Hence, it maintains that a court may not compel a party to submit any post-contract grievance to arbitration for the simple reason that no contractual duty to arbitrate survives the agreement's termination. Any other conclusion, Nolde argues, runs contrary to federal labor policy which prohibits the imposition of compulsory arbitration upon parties except when they are bound by an arbitration agreement. In so arguing, Nolde relies on numerous decisions of this Court which it claims establish that "arbitration is a matter of contract and [that] a party cannot be required to submit to arbitration any dispute which he has not agreed so to submit." ; e. g., Gateway Coal ; John Wiley & ; Our prior decisions have indeed |
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