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Justice Sotomayor | 2,011 | 24 | dissenting | Cullen v. Pinholster | https://www.courtlistener.com/opinion/213842/cullen-v-pinholster/ | with Pinholster’s family revealed that he and his siblings were “raised like animals, wild animals,” at ER–94, and he opined that Pinholster’s upbringing was a risk factor for antisocial personality disorder. See (Pinholster’s upbringing “would speak volumes, looking at it from a mitigation point of view”). And he agreed that the mitigation evidence presented at trial was “profoundly misleading.” at ER–966. Dr. Rudnick testified that Pinholster suffered from antisocial personality disorder. The State also introduced into evidence the 97 proba tion report that Pinholster’s counsel had in their posses sion at the time of his trial. The report demonstrated that counsel were aware that Pinholster was in classes for educationally handicapped children, that he was commit ted to a state hospital for emotionally handicapped chil dren, and that he suffered two “severe head injuries.” at SER–243. B Much of the evidence presented at the federal hearing —————— 2 Before the hearing, Dr. Stalberg had opined that Pinholster was “substantially impaired by a bipolar mood disorder operating synergis tically with intoxication and a seizure disorder at the time the crime was committed.” Record ER–7. At a prehearing deposition, however, Dr. Stalberg revised his opinion and stated that he continued to believe that Pinholster suffered from psychopathic personality traits. After the deposition, Pinholster elected to proceed with a different expert, pre sumably in light of Dr. Stalberg’s unexpected change in position. The State then retained Dr. Stalberg as its own expert. Cite as: 63 U. S. (20) 4 SOTOMAYOR, J., dissenting was duplicative of the evidence submitted to the California Supreme Court. The additional evidence presented at the hearing only confirmed that the California Supreme Court could not reasonably have rejected Pinholster’s claim.29 For example, the probation report presented by the State confirmed that counsel had in their possession in formation that would have led any reasonable attorney “to investigate further.” 39 U.S., at 27. Counsel nevertheless took no action to investigate these leads. Pinholster’s experts opined that his childhood head traumas likely resulted in brain injury and conferred a risk of epilepsy. Although the State presented testimony that Pinholster had antisocial personality disorder, it was not clear error for the District Court to conclude that jurors could have credited Pinholster’s experts. Even the —————— 29 The State argues that the District Court was not entitled to rely on the evidence adduced at the hearing because Pinholster was not dili gent in developing his claims in state court and the hearing was there fore barred by 2 U.S. C. This argument is somewhat imprecise. Pinholster’s allegations in his amended federal petition were |
Justice Sotomayor | 2,011 | 24 | dissenting | Cullen v. Pinholster | https://www.courtlistener.com/opinion/213842/cullen-v-pinholster/ | somewhat imprecise. Pinholster’s allegations in his amended federal petition were “identical” to the allegations he presented to the California Supreme Court, ante, at 6, and he diligently requested a hearing in state court. The State presumably means to argue that Pinholster’s new expert testimony changed “the factual basis” of his claim such that, by the time of the evidentiary hearing, he no longer satisfied However, at oral argument, the State suggested that Pinholster was presenting an altogether new claim in the federal court. See Tr. of Oral Arg. If that is the case, does not apply at all, and the State should be arguing lack of exhaustion or procedural default. I do not understand Pinholster to have presented a new claim to the District Court. In any event, Pinholster satisfied in this case. He made “a reasonable attempt, in light of the information available at the time, to investigate and pursue claims in state court.” Michael 29 U.S., at 43. His experts relied on the very same facts and evidence. I cannot read to impose a strict requirement that petitioners must use the same experts they presented to the state court. This rule would result in numerous practical problems, for example in the case of the unanticipated death of an expert. 42 CULLEN v. PINHOLSTER SOTOMAYOR, J., dissenting State’s own expert, Dr. Stalberg, testified to the “volumi nous” mitigation evidence in Pinholster’s case. Record ER– 926. In sum, the evidence confirmed what was already ap parent from the state-court record: Pinholster’s counsel failed to conduct an adequate mitigation investigation, and there was a reasonable probability that at least one juror confronted with the “voluminous” mitigating evi dence counsel should have discovered would have voted to spare Pinholster’s life. Accordingly, whether on the basis of the state- or federal-court record, the courts below correctly concluded that Pinholster had shown that the California Supreme Court’s decision reflected an unrea sonable application of30 * * * I cannot agree with either aspect of the Court’s ruling. I fear the consequences of the Court’s novel interpretation of for diligent state habeas petitioners with compelling evidence supporting their claims who were unable, through no fault of their own, to present that evidence to the state court that adjudicated their claims. And the Court’s conclusion that the California Supreme Court reasonably denied Pinholster’s ineffective assistance-of-counsel claim overlooks counsel’s failure to investigate obvious avenues of mitigation and the contrast between the woefully inadequate mitigation case they presented and the evidence they should and would have discovered. I respectfully dissent. —————— 30 The State’s challenge in this Court |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | Since the decision in Virginia Pharmacy in which the Court held for the first time that the First Amendment precludes certain forms of regulation of purely commercial speech, we have on a number of occasions addressed the constitutionality of restraints on advertising and solicitation by attorneys. See In re R. M. ; In re Primus, ; ; This case presents additional unresolved questions regarding the regulation of commercial speech by attorneys: whether a State may discipline an attorney for soliciting business by running newspaper advertisements containing nondeceptive illustrations and legal advice, and whether a State may seek to prevent potential deception of the public by requiring attorneys to disclose in their advertising certain information regarding fee arrangements. I Appellant is an attorney practicing in Columbus, Ohio. Late in 1981, he sought to augment his practice by advertising in local newspapers. His first effort was a modest one: he ran a small advertisement in the Columbus Citizen Journal advising its readers that his law firm would represent defendants in drunken driving cases and that his clients' "[f]ull legal fee [would be] refunded if [they were] convicted *630 of DRUNK DRIVING."[1] The advertisement appeared in the Journal for two days; on the second day, Charles Kettlewell, an attorney employed by the Office of Disciplinary Counsel of the Supreme Court of Ohio (appellee) telephoned appellant and informed him that the advertisement appeared to be an offer to represent criminal defendants on a contingent-fee basis, a practice prohibited by Disciplinary Rule 2-106(C) of the Ohio Code of Professional Responsibility. Appellant immediately withdrew the advertisement and in a letter to Kettlewell apologized for running it, also stating in the letter that he would decline to accept employment by persons responding to the ad. Appellant's second effort was more ambitious. In the spring of 1982, appellant placed an advertisement in 36 Ohio newspapers publicizing his willingness to represent women who had suffered injuries resulting from their use of a contraceptive device known as the Dalkon Shield Intrauterine Device.[2] The advertisement featured a line drawing of the Dalkon Shield accompanied by the question, "DID YOU USE THIS IUD?" The advertisement then related the following information: *631 "The Dalkon Shield Interuterine [sic] Device is alleged to have caused serious pelvic infections resulting in hospitalizations, tubal damage, infertility, and hysterectomies. It is also alleged to have caused unplanned pregnancies ending in abortions, miscarriages, septic abortions, tubal or ectopic pregnancies, and full-term deliveries. If you or a friend have had a similar experience do not assume it is too late to take legal action against the Shield's manufacturer. Our law |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | to take legal action against the Shield's manufacturer. Our law firm is presently representing women on such cases. The cases are handled on a contingent fee basis of the amount recovered. If there is no recovery, no legal fees are owed by our clients." The ad concluded with the name of appellant's law firm, its address, and a phone number that the reader might call for "free information." The advertisement was successful in attracting clients: appellant received well over 200 inquiries regarding the advertisement, and he initiated lawsuits on behalf of 106 of the women who contacted him as a result of the advertisement. The ad, however, also aroused the interest of the Office of Disciplinary Counsel. On July 29, 1982, the Office filed a complaint against appellant charging him with a number of disciplinary violations arising out of both the drunken driving and Dalkon Shield advertisements. The complaint, as subsequently amended, alleged that the drunken driving ad violated Ohio Disciplinary Rule 2-101(A) in that it was "false, fraudulent, misleading, and deceptive to the public"[3] because it offered representation on a contingent-fee basis in a criminal case an offer that could not be carried out under Disciplinary Rule 2-106(C). With *632 respect to the Dalkon Shield advertisement, the complaint alleged that in running the ad and accepting employment by women responding to it, appellant had violated the following Disciplinary Rules: DR 2-101(B), which prohibits the use of illustrations in advertisements run by attorneys, requires that ads by attorneys be "dignified," and limits the information that may be included in such ads to a list of 20 items;[4]*633 DR 2-103(A), which prohibits an attorney from "recommend[ing] employment, as a private practitioner, of himself, his partner, or associate to a non-lawyer who has not sought his advice regarding employment of a lawyer"; and DR 2-104(A), which provides (with certain exceptions not applicable here) that "[a] lawyer who has given unsolicited advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice." The complaint also alleged that the advertisement violated DR 2-101(B)(15), which provides that any advertisement that mentions contingent-fee rates must "disclos[e] whether percentages are computed before or after deduction of court costs and expenses," and that the ad's failure to inform clients that they would be liable for costs (as opposed to legal fees) even if their claims were unsuccessful rendered the advertisement "deceptive" in violation of DR 2-101(A). The complaint did not allege that the Dalkon Shield advertisement was false or deceptive in any respect other than its *634 |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | false or deceptive in any respect other than its *634 omission of information relating to the contingent-fee arrangement; indeed, the Office of Disciplinary Counsel stipulated that the information and advice regarding Dalkon Shield litigation was not false, fraudulent, misleading, or deceptive and that the drawing was an accurate representation of the Dalkon Shield. The charges against appellant were heard by a panel of the of Commissioners on Grievances and Discipline of the Supreme Court of Ohio. Appellant's primary defense to the charges against him was that Ohio's rules restricting the content of advertising by attorneys were unconstitutional under this Court's decisions in and In re R. M. In support of his contention that the State had not provided justification for its rules sufficient to withstand the First Amendment scrutiny called for by those decisions, appellant proffered the testimony of expert witnesses that unfettered advertising by attorneys was economically beneficial and that appellant's advertising in particular was socially valuable in that it served to inform members of the public of their legal rights and of the potential health hazards associated with the Dalkon Shield. Appellant also put on the stand two of the women who had responded to his advertisements, both of whom testified that they would not have learned of their legal claims had it not been for appellant's advertisement. The panel found that appellant's use of advertising had violated a number of Disciplinary Rules. The panel accepted the contention that the drunken driving advertisement was deceptive, but its reasoning differed from that of the Office of Disciplinary Counsel: the panel concluded that because the advertisement failed to mention the common practice of plea bargaining in drunken driving cases, it might be deceptive to potential clients who would be unaware of the likelihood that they would both be found guilty (of a lesser offense) and be liable for attorney's fees (because they had not been convicted of drunken driving). The panel also found that the use of an illustration in appellant's Dalkon Shield advertisement *635 violated DR 2-101(B), that the ad's failure to disclose the client's potential liability for costs even if her suit were unsuccessful violated both DR 2-101(A) and DR 2-101 (B)(15), that the advertisement constituted self-recommendation in violation of DR 2-103(A), and that appellant's acceptance of offers of employment resulting from the advertisement violated DR 2-104(A).[5] The panel rejected appellant's arguments that Ohio's regulations regarding the content of attorney advertising were unconstitutional as applied to him. The panel noted that neither Bates nor In re R. M. had forbidden all regulation of attorney advertising and that both |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | had forbidden all regulation of attorney advertising and that both of those cases had involved advertising regulations substantially more restrictive than Ohio's. The panel also relied heavily on in which this Court upheld Ohio's imposition of discipline on an attorney who had engaged in in-person The panel apparently concluded that the interests served by the application of Ohio's rules to advertising that contained legal advice and solicited clients to pursue a particular legal claim were as substantial as the interests at stake in Accordingly, the panel rejected appellant's constitutional defenses and recommended that he be publicly reprimanded for his violations. The of Commissioners adopted the panel's findings in full, but recommended the sanction of indefinite suspension from the practice of law rather than the more lenient punishment proposed by the panel. The Supreme Court of Ohio, in turn, adopted the 's findings that appellant's advertisements had violated the Disciplinary Rules specified by the hearing panel. The court also agreed with the that the application of Ohio's rules to appellant's advertisements did not offend the First Amendment. The *636 court pointed out that Bates and In re R. M. permitted regulations designed to prevent the use of deceptive advertising and that R. M. had recognized that even non-deceptive advertising might be restricted if the restriction was narrowly designed to achieve a substantial state interest. The court held that disclosure requirements applicable to advertisements mentioning contingent-fee arrangements served the permissible goal of ensuring that potential clients were not misled regarding the terms of the arrangements. In addition, the court held, it was "allowable" to prevent attorneys form claiming expertise in particular fields of law in the absence of standards by which such claims might be assessed, and it was "reasonable" to preclude the use of illustrations in advertisements and to prevent attorneys from offering legal advice in their advertisements, although the court did not specifically identify the interests served by these restrictions. Having determined that appellant's advertisements violated Ohio's Disciplinary Rules and that the First Amendment did not forbid the application of those rules to appellant, the court concluded that appellant's conduct warranted a public reprimand. Contending that Ohio's Disciplinary Rules violate the First Amendment insofar as they authorize the State to discipline him for the content of his Dalkon Shield advertisement, appellant filed this appeal. Appellant also claims that the manner in which he was disciplined for running his drunken driving advertisement violated his right to due process. We noted probable jurisdiction, and now affirm in part and reverse in part.[6] *637 II There is no longer any room to doubt |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | *637 II There is no longer any room to doubt that what has come to be known as "commercial speech" is entitled to the protection of the First Amendment, albeit to protection somewhat less extensive than that afforded "noncommercial speech." ; In re R. M. ; Central Hudson Gas & More subject to doubt, perhaps, are the precise bounds of the category of expression that may be termed commercial speech, but it is clear enough that the speech at issue in this case advertising pure and simple falls within those bounds. Our commercial speech doctrine rests heavily on "the `common-sense' distinction between speech proposing a commercial transaction and other varieties of speech," and appellant's advertisements undeniably propose a commercial transaction. Whatever else the category of commercial speech may encompass, see Central Hudson Gas & v. Public Service Comm'n of New it must include appellant's advertisements.[7] *638 Our general approach to restrictions on commercial speech is also by now well settled. The States and the Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading, see or that proposes an illegal transaction, see Pittsburgh Press Commercial speech that is not false or deceptive and does not concern unlawful activities, however, may be restricted only in the service of a substantial governmental interest, and only through means that directly advance that interest. Central Hudson Gas & Our application of these principles to the commercial speech of attorneys has led us to conclude that blanket bans on price advertising by attorneys and rules preventing attorneys from using non-deceptive terminology to describe their fields of practice are impermissible, see ; In re R. M. but that rules prohibiting in-person solicitation of clients by attorneys are, at least under some circumstances, permissible, see To resolve this appeal, we must apply the teachings of these cases to three separate forms of regulation Ohio has imposed on advertising by its attorneys: prohibitions on soliciting legal business through advertisements containing advice and information regarding specific legal problems; restrictions on the use of illustrations in advertising by lawyers; and disclosure requirements relating to the terms of contingent fees.[8] *639 III We turn first to the Ohio Supreme Court's finding that appellant's Dalkon Shield advertisement (and his acceptance of employment resulting from it) ran afoul of the rules against self-recommendation and accepting employment resulting from unsolicited legal advice. Because all advertising is at least implicitly a plea for its audience's custom, a broad reading of the rules applied by the Ohio court (and particularly the rule against self-recommendation) might suggest that |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | court (and particularly the rule against self-recommendation) might suggest that they forbid all advertising by attorneys a result obviously not in keeping with our decisions in Bates and In re R. M. But the Ohio court did not purport to give its rules such a broad reading: it held only that the rules forbade soliciting or accepting legal employment through advertisements containing information or advice regarding a specific legal problem. The interest served by the application of the Ohio self-recommendation and solicitation rules to appellant's advertisement is not apparent from a reading of the opinions of the Ohio Supreme Court and its of Commissioners. The advertisement's information and advice concerning the Dalkon Shield were, as the Office of Disciplinary Counsel stipulated, neither false nor deceptive: in fact, they were entirely accurate. The advertisement did not promise readers that *640 lawsuits alleging injuries caused by the Dalkon Shield would be successful, nor did it suggest that appellant had any special expertise in handling such lawsuits other than his employment in other such litigation.[9] Rather, the advertisement reported the indisputable fact that the Dalkon Shield has spawned an impressive number of lawsuits[10] and advised readers that appellant was currently handling such lawsuits and was willing to represent other women asserting similar claims. In addition, the advertisement advised women that they should not assume that their claims were time-barred advice that seems completely unobjectionable in light of the trend in many States toward a "discovery rule" for determining when a cause of action for latent injury or disease accrues.[11]*641 The State's power to prohibit advertising that is "inherently misleading," see In re R. M. thus cannot justify Ohio's decision to discipline appellant for running advertising geared to persons with a specific legal problem. Because appellant's statements regarding the Dalkon Shield were not false or deceptive, our decisions impose on the State the burden of establishing that prohibiting the use of such statements to solicit or obtain legal business directly advances a substantial governmental interest. The extensive citations in the opinion of the of Commissioners to our opinion in suggest that the believed that the application of the rules to appellant's advertising served the same interests that this Court found sufficient to justify the ban on in-person solicitation at issue in We cannot agree. Our decision in was largely grounded on the substantial differences between face-to-face solicitation and the advertising we had held permissible in Bates. In-person solicitation by a lawyer, we concluded, was a practice rife with possibilities for overreaching, invasion of privacy, the exercise of undue influence, and outright fraud. |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | of privacy, the exercise of undue influence, and outright fraud. -465. In addition, we noted that in-person solicitation presents unique regulatory difficulties because it is "not visible or otherwise open to public scrutiny." These unique features of in-person solicitation by lawyers, we held, justified a prophylactic rule prohibiting lawyers from engaging in such solicitation for pecuniary gain, but we were careful to point out that "in-person solicitation of *642 professional employment by a lawyer does not stand on a par with truthful advertising about the availability and terms of routine legal services." It is apparent that the concerns that moved the Court in are not present here. Although some sensitive souls may have found appellant's advertisement in poor taste, it can hardly be said to have invaded the privacy of those who read it. More significantly, appellant's advertisement and print advertising generally poses much less risk of over-reaching or undue influence. Print advertising may convey information and ideas more or less effectively, but in most cases, it will lack the coercive force of the personal presence of a trained advocate. In addition, a printed advertisement, unlike a personal encounter initiated by an attorney, is not likely to involve pressure on the potential client for an immediate yes-or-no answer to the offer of representation. Thus, a printed advertisement is a means of conveying information about legal services that is more conducive to reflection and the exercise of choice on the part of the consumer than is personal solicitation by an attorney. Accordingly, the substantial interests that justified the ban on in-person solicitation upheld in cannot justify the discipline imposed on appellant for the content of his advertisement. Nor does the traditional justification for restraints on solicitation the fear that lawyers will "stir up litigation" justify the restriction imposed in this case. In evaluating this proffered justification, it is important to think about what it might mean to say that the State has an interest in preventing lawyers from stirring up litigation. It is possible to describe litigation itself as an evil that the State is entitled to combat: after all, litigation consumes vast quantities of social resources to produce little of tangible value but much discord and unpleasantness. "[A]s a litigant," Judge Learned Hand once observed, "I should dread a lawsuit beyond almost anything else short of sickness and death." L. Hand, The Deficiencies of Trials to Reach the Heart of the Matter, in *643 3 Association of the Bar of the City of New Lectures on Legal Topics 89, 105 But we cannot endorse the proposition |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | Legal Topics 89, 105 But we cannot endorse the proposition that a lawsuit, as such, is an evil. Over the course of centuries, our society has settled upon civil litigation as a means for redressing grievances, resolving disputes, and vindicating rights when other means fail. There is no cause for consternation when a person who believes in good faith and on the basis of accurate information regarding his legal rights that he has suffered a legally cognizable injury turns to the courts for a remedy: "we cannot accept the notion that it is always better for a person to suffer a wrong silently than to redress it by legal action." That our citizens have access to their civil courts is not an evil to be regretted; rather, it is an attribute of our system of justice in which we ought to take pride. The State is not entitled to interfere with that access by denying its citizens accurate information about their legal rights. Accordingly, it is not sufficient justification for the discipline imposed on appellant that his truthful and nondeceptive advertising had a tendency to or did in fact encourage others to file lawsuits. The State does not, however, argue that the encouragement of litigation is inherently evil, nor does it assert an interest in discouraging the particular form of litigation that appellant's advertising solicited. Rather, the State's position is that although appellant's advertising may itself have been harmless may even have had the salutary effect of informing some persons of rights of which they would otherwise have been unaware the State's prohibition on the use of legal advice and information in advertising by attorneys is a prophylactic rule that is needed to ensure that attorneys, in an effort to secure legal business for themselves, do not use false or misleading advertising to stir up meritless litigation against innocent defendants. Advertising by attorneys, the State claims, presents regulatory difficulties that are different in kind from those presented by other forms of advertising. *644 Whereas statements about most consumer products are subject to verification, the indeterminacy of statements about law makes it impractical if not impossible to weed out accurate statements from those that are false or misleading. A prophylactic rule is therefore essential if the State is to vindicate its substantial interest in ensuring that its citizens are not encouraged to engage in litigation by statements that are at best ambiguous and at worst outright false. The State's argument that it may apply a prophylactic rule to punish appellant notwithstanding that his particular advertisement has none of the |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | appellant notwithstanding that his particular advertisement has none of the vices that allegedly justify the rule is in tension with our insistence that restrictions involving commercial speech that is not itself deceptive be narrowly crafted to serve the State's purposes. See Central Hudson Gas & -571. Indeed, in In re R. M. we went so far as to state that "the States may not place an absolute prohibition on certain types of potentially misleading information if the information also may be presented in a way that is not " The State's argument, then, must be that this dictum is incorrect that there are some circumstances in which a prophylactic rule is the least restrictive possible means of achieving a substantial governmental interest. Cf. We need not, however, address the theoretical question whether a prophylactic rule is ever permissible in this area, for we do not believe that the State has presented a convincing case for its argument that the rule before us is necessary to the achievement of a substantial governmental interest. The State's contention that the problem of distinguishing deceptive and nondeceptive legal advertising is different in kind from the problems presented by advertising generally is unpersuasive. The State's argument proceeds from the premise that it is intrinsically difficult to distinguish advertisements containing legal advice that is false or deceptive from those that are *645 truthful and helpful, much more so than is the case with other goods or services.[12] This notion is belied by the facts before us: appellant's statements regarding Dalkon Shield litigation were in fact easily verifiable and completely accurate. Nor is it true that distinguishing deceptive from nondeceptive claims in advertising involving products other than legal services is a comparatively simple and straightforward process. A brief survey of the body of case law that has developed as a result of the Federal Trade Commission's efforts to carry out its mandate under 5 of the Federal Trade Commission Act to eliminate "unfair or deceptive acts or practices in commerce," 15 U.S. C. 45(a)(1), reveals that distinguishing deceptive from nondeceptive advertising in virtually any field of commerce may require resolution of exceedingly complex and technical factual issues and the consideration of nice questions of semantics. See, e. g., Warner-Lambert ; National Comm'n on Egg In short, assessment of the validity of legal advice and information contained in attorneys' advertising is *646 not necessarily a matter of great complexity; nor is assessing the accuracy or capacity to deceive of other forms of advertising the simple process the State makes it out to be. The qualitative distinction the |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | State makes it out to be. The qualitative distinction the State has attempted to draw eludes us.[13] Were we to accept the State's argument in this case, we would have little basis for preventing the government from suppressing other forms of truthful and nondeceptive advertising simply to spare itself the trouble of distinguishing such advertising from false or deceptive advertising. The First Amendment protections afforded commercial speech would mean little indeed if such arguments were allowed to prevail. Our recent decisions involving commercial speech have been grounded in the faith that the free flow of commercial information is valuable enough to justify imposing on would-be regulators the costs of distinguishing the truthful from the false, the helpful from the misleading, and the harmless from the harmful. The value of the information presented in appellant's advertising is no less than that contained in other forms of advertising indeed, insofar as appellant's advertising tended to acquaint persons with their legal rights who might otherwise be shut off from effective access to the legal system, it was undoubtedly more valuable than many other forms of advertising. Prophylactic restraints that would be *647 unacceptable as applied to commercial advertising generally are therefore equally unacceptable as applied to appellant's advertising. An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive information and advice regarding the legal rights of potential clients. IV The application of DR 2-101(B)'s restriction on illustrations in advertising by lawyers to appellant's advertisement fails for much the same reasons as does the application of the self-recommendation and solicitation rules. The use of illustrations or pictures in advertisements serves important communicative functions: it attracts the attention of the audience to the advertiser's message, and it may also serve to impart information directly. Accordingly, commercial illustrations are entitled to the First Amendment protections afforded verbal commercial speech: restrictions on the use of visual media of expression in advertising must survive scrutiny under the Central Hudson test. Because the illustration for which appellant was disciplined is an accurate representation of the Dalkon Shield and has no features that are likely to deceive, mislead, or confuse the reader, the burden is on the State to present a substantial governmental interest justifying the restriction as applied to appellant and to demonstrate that the restriction vindicates that interest through the least restrictive available means. The text of DR 2-101(B) strongly suggests that the purpose of the restriction on the use of illustrations is to ensure that attorneys advertise "in a dignified manner." There is, of course, no suggestion that the |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | dignified manner." There is, of course, no suggestion that the illustration actually used by appellant was undignified; thus, it is difficult to see how the application of the rule to appellant in this case directly advances the State's interest in preserving the dignity of attorneys. More fundamentally, although the State undoubtedly *6 has a substantial interest in ensuring that its attorneys behave with dignity and decorum in the courtroom, we are unsure that the State's desire that attorneys maintain their dignity in their communications with the public is an interest substantial enough to justify the abridgment of their First Amendment rights. Even if that were the case, we are unpersuaded that undignified behavior would tend to recur so often as to warrant a prophylactic rule. As we held in the mere possibility that some members of the population might find advertising embarrassing or offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity. In its arguments before this Court, the State has asserted that the restriction on illustrations serves a somewhat different purpose, akin to that supposedly served by the prohibition on the offering of legal advice in advertising. The use of illustrations in advertising by attorneys, the State suggests, creates unacceptable risks that the public will be misled, manipulated, or confused. Abuses associated with the visual content of advertising are particularly difficult to police, because the advertiser is skilled in subtle uses of illustrations to play on the emotions of his audience and convey false impressions. Because illustrations may produce their effects by operating on a subconscious level, the State argues, it will be difficult for the State to point to any particular illustration and prove that it is misleading or manipulative. Thus, once again, the State's argument is that its purposes can only be served through a prophylactic rule. We are not convinced. The State's arguments amount to little more than unsupported assertions: nowhere does the State cite any evidence or authority of any kind for its contention that the potential abuses associated with the use of illustrations in attorneys' advertising cannot be combated by any means short of a blanket ban. Moreover, none of the *649 State's arguments establish that there are particular evils associated with the use of illustrations in attorneys' advertisements. Indeed, because it is probably rare that decisions regarding consumption of legal services are based on a consumer's assumptions about qualities of the product that can be represented visually, illustrations in lawyer's advertisements will probably be less likely to lend themselves |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | lawyer's advertisements will probably be less likely to lend themselves to material misrepresentations than illustrations in other forms of advertising. Thus, acceptance of the State's argument would be tantamount to adoption of the principle that a State may prohibit the use of pictures or illustrations in connection with advertising of any product or service simply on the strength of the general argument that the visual content of advertisements may, under some circumstances, be deceptive or manipulative. But as we stated above, broad prophylactic rules may not be so lightly justified if the protections afforded commercial speech are to retain their force. We are not persuaded that identifying deceptive or manipulative uses of visual media in advertising is so intrinsically burden-some that the State is entitled to forgo that task in favor of the more convenient but far more restrictive alternative of a blanket ban on the use of illustrations. The experience of the FTC is, again, instructive. Although that agency has not found the elimination of deceptive uses of visual media in advertising to be a simple task, neither has it found the task an impossible one: in many instances, the agency has succeeded in identifying and suppressing visually deceptive advertising. See, e. g., See generally E. Kintner, A Primer on the Law of Deceptive Practices 158-173 Given the possibility of policing the use of illustrations in advertisements on a case-by-case basis, the prophylactic approach taken by Ohio cannot stand; hence, appellant may not be disciplined for his use of an accurate and nondeceptive illustration. *650 V Appellant contends that assessing the validity of the Ohio Supreme Court's decision to discipline him for his failure to include in the Dalkon Shield advertisement the information that clients might be liable for significant litigation costs even if their lawsuits were unsuccessful entails precisely the same inquiry as determining the validity of the restrictions on advertising content discussed above. In other words, he suggests that the State must establish either that the advertisement, absent the required disclosure, would be false or deceptive or that the disclosure requirement serves some substantial governmental interest other than preventing deception; moreover, he contends that the State must establish that the disclosure requirement directly advances the relevant governmental interest and that it constitutes the least restrictive means of doing so. Not surprisingly, appellant claims that the State has failed to muster substantial evidentiary support for any of the findings required to support the restriction. Appellant, however, overlooks material differences between disclosure requirements and outright prohibitions on speech. In requiring attorneys who advertise their willingness to represent clients on |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | requiring attorneys who advertise their willingness to represent clients on a contingent-fee basis to state that the client may have to bear certain expenses even if he loses, Ohio has not attempted to prevent attorneys from conveying information to the public; it has only required them to provide somewhat more information than they might otherwise be inclined to present. We have, to be sure, held that in some instances compulsion to speak may be as violative of the First Amendment as prohibitions on speech. See, e. g., ; Miami Herald Publishing Indeed, in West Virginia State of the Court went so far as to state that "involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence." *651 But the interests at stake in this case are not of the same order as those discussed in Wooley, Tornillo, and Barnette. Ohio has not attempted to "prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." The State has attempted only to prescribe what shall be orthodox in commercial advertising, and its prescription has taken the form of a requirement that appellant include in his advertising purely factual and uncontroversial information about the terms under which his services will be available. Because the extension of First Amendment protection to commercial speech is justified principally by the value to consumers of the information such speech provides, see Virginia Pharmacy appellant's constitutionally protected interest in not providing any particular factual information in his advertising is minimal. Thus, in virtually all our commercial speech decisions to date, we have emphasized that because disclosure requirements trench much more narrowly on an advertiser's interests than do flat prohibitions on speech, "warning[s] or disclaimer[s] might be appropriately required in order to dissipate the possibility of consumer confusion or deception." In re R. M. Accord, Central Hudson Gas & ; ; Virginia Pharmacy We do not suggest that disclosure requirements do not implicate the advertiser's First Amendment rights at all. We recognize that unjustified or unduly burdensome disclosure requirements might offend the First Amendment by chilling protected commercial speech. But we hold that an advertiser's rights are adequately protected as long as disclosure requirements are reasonably related to the State's interest in preventing deception of consumers.[14] *652 The State's application to appellant of the requirement that an attorney advertising his availability on a contingent-fee basis disclose that clients will have to pay costs even if their lawsuits are unsuccessful (assuming that to be the case) easily passes muster |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | unsuccessful (assuming that to be the case) easily passes muster under this standard. Appellant's advertisement informed the public that "if there is no recovery, no legal fees are owed by our clients." The advertisement makes no mention of the distinction between "legal fees" and "costs," and to a layman not aware of the meaning of these terms of art, the advertisement would suggest that employing appellant would be a no-lose proposition in that his representation in a losing cause would come entirely free of charge. The assumption that substantial numbers of potential clients would be so misled is hardly a speculative one: it is a commonplace that members of the public are often unaware of the technical meanings of such terms as "fees" and "costs" terms that, in ordinary usage, might well be virtually interchangeable. When the possibility of deception is as self-evident as it is in this case, we need not require *653 the State to "conduct a survey of the public before it [may] determine that the [advertisement] had a tendency to mislead." -392. The State's position that it is deceptive to employ advertising that refers to contingent-fee arrangements without mentioning the client's liability for costs is reasonable enough to support a requirement that information regarding the client's liability for costs be disclosed.[15] *654 VI Finally, we address appellant's argument that he was denied procedural due process by the manner in which discipline was imposed on him in connection with his drunken driving advertisement. Appellant's contention is that the theory relied on by the Ohio Supreme Court and its of Commissioners as to how the advertisement was deceptive was different from the theory asserted by the Office of Disciplinary Counsel in its complaint.[16] We cannot agree that this discrepancy violated the constitutional guarantee of due process. Under the law of Ohio, bar discipline is the responsibility of the Ohio Supreme Court. Ohio Const., Art. IV, 2(B)(1)(g). The of Commissioners on Grievances and Discipline formally serves only as a body that recommends discipline to the Supreme Court; it has no authority to impose discipline itself. See Govt. Bar Rule V(2), (16)-(20). That the of Commissioners chose to make its recommendation of discipline on the basis of reasoning different from that of the Office of Disciplinary Counsel is of little moment: what is important is that the 's recommendations put appellant on notice of the charges he had to answer to the satisfaction of the Supreme Court of Ohio. Appellant does not contend that he was afforded no opportunity to respond to the 's recommendation; indeed, the Ohio rules |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | to respond to the 's recommendation; indeed, the Ohio rules appear to provide ample opportunity for response to recommendations, and it appears that appellant availed himself of that opportunity.[17]*655 The notice and opportunity to respond afforded appellant were sufficient to satisfy the demands of due process.[18] VII The Supreme Court of Ohio issued a public reprimand incorporating by reference its opinion finding that appellant had violated Disciplinary Rules 2-101(A), 2-101(B), 2-101 (B)(15), 2-103(A), and 2-104(A). That judgment is affirmed to the extent that it is based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement. But insofar as the reprimand was based on appellant's use of an *656A illustration in his advertisement in violation of DR 2-101(B) and his offer of legal advice in his advertisement in violation of DR 2-103(A) and 2-104(A), the judgment is reversed. It is so ordered. JUSTICE POWELL took no part in the decision of this case. *656B JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part, concurring in the judgment in part, and dissenting in part. I fully agree with the Court that a State may not discipline attorneys who solicit business by publishing newspaper advertisements that contain "truthful and nondeceptive information and advice regarding the legal rights of potential clients" and "accurate and nondeceptive illustration[s]." Ante, at 647, 649. I therefore join Part I-IV of the Court's opinion, and I join the Court's judgment set forth in Part VII to the extent it reverses the Supreme Court of Ohio's public reprimand of the appellant Philip Q. Zauderer for his violations of Disciplinary Rules 2-101(B), 2-103(A), and 2-104(A). With some qualifications, I also agree with the conclusion in Part V of the Court's opinion that a State may impose commercial-advertising disclosure requirements that are "reasonably related to the State's interest in preventing deception of consumers." Ante, at 651. I do not agree, however, that the State of Ohio's vaguely expressed disclosure requirements fully satisfy this standard, and in any event I believe that Ohio's punishment of Zauderer for his alleged infractions of those requirements violated important due process and First Amendment guarantees. In addition, I believe the manner in which Ohio has punished Zauderer for publishing the "drunk driving" advertisement violated fundamental principles of procedural due process. I therefore concur in part and dissent in part from Part V of the Court's opinion, dissent from Part VI, and dissent from the judgment set forth in Part VII insofar as it affirms the Supreme Court *657 |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | Part VII insofar as it affirms the Supreme Court *657 of Ohio's public reprimand "based on appellant's advertisement involving his terms of representation in drunken driving cases and on the omission of information regarding his contingent-fee arrangements in his Dalkon Shield advertisement." Ante, at 655. I A The Court concludes that the First Amendment's protection of commercial speech is satisfied so long as a disclosure requirement is "reasonably related" to preventing consumer deception, and it suggests that this standard "might" be violated if a disclosure requirement were "unjustified" or "unduly burdensome." Ante, at 651. I agree with the Court's somewhat amorphous "reasonable relationship" inquiry only on the understanding that it comports with the standards more precisely set forth in our previous commercial-speech cases. Under those standards, regulation of commercial speech whether through an affirmative disclosure requirement or through outright suppression[1] is "reasonable" only *658 to the extent that a State can demonstrate a legitimate and substantial interest to be achieved by the regulation. In re R. M. ; Central Hudson Gas & Moreover, the regulation must directly advance the state interest and "may extend only as far as the interest it serves." See also at Where the State imposes regulations to guard against "the potential for deception and confusion" in commercial speech, those regulations "may be no broader than reasonably necessary to prevent the deception." In re R. M. at See also Virginia Pharmacy ;[2] Because of the First Amendment values at stake, courts must exercise careful scrutiny in applying these standards. Thus a State may not rely on "highly speculative" or "tenuous" *659 arguments in carrying its burden of demonstrating the legitimacy of its commercial-speech regulations. Central Hudson Gas & Where a regulation is addressed to allegedly deceptive advertising, the State must instead demonstrate that the advertising either "is inherently likely to deceive" or must muster record evidence showing that "a particular form or method of advertising has in fact been deceptive," In re R. M. and it must similarly demonstrate that the regulations directly and proportionately remedy the deception. Where States have failed to make such showings, we have repeatedly struck down the challenged regulations.[3] As the Court acknowledges, it is "somewhat difficult" to apply these standards to Ohio's disclosure requirements "in light of the Ohio court's failure to specify precisely what disclosures were required." Ante, at 653, n. 15. It is also somewhat difficult to determine precisely what disclosure requirements the Court approves today. The Supreme Court of Ohio appears to have imposed three overlapping requirements, each of which must be analyzed under the First |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | requirements, each of which must be analyzed under the First *660 Amendment standards set forth above. First, the court concluded that "a lawyer advertisement which refers to contingent fees" should indicate whether "additional costs might be assessed the client." The report of the of Commissioners on Grievances and Discipline of the Ohio Supreme Court explained that such a requirement is necessary to guard against "the impression that if there were no recovery, the client would owe nothing." App. to Juris. Statement 14a. I agree with the Court's conclusion that, given the general public's unfamiliarity with the distinction between fees and costs, a State may require an advertising attorney to include a costs disclaimer so as to avoid the potential for misunderstanding, ante, at 653 provided the required disclaimer is "no broader than reasonably necessary to prevent the deception," In re R. M. at Second, the report and opinion provide that an attorney advertising his availability on a contingent-fee basis must "specifically expres[s]" his 10 Ohio St. 3d, at 461 N. E. 2d, at ; see also App. to Juris. Statement 14a. The Court's analysis of this requirement which the Court characterizes as a "suggest[ion]," ante, at 653, n. 15 is limited to the passing observation that the requirement does not "see[m] intrinsically burdensome," The question of burden, however, is irrelevant unless the State can first demonstrate that the rate-publication requirement directly and proportionately furthers a "substantial interest." In re R. M. Yet an attorney's failure to specify a particular percentage rate when advertising that he accepts cases on a contingent-fee basis can in no way be said to be "inherently likely to deceive," and the voluminous record in this case fails to reveal a single instance suggesting that such a failure has in actual experience proved [4] Nor has Ohio at any point identified any other *661 "substantial interest" that would be served by such a requirement. Although a State might well be able to demonstrate that rate publication is necessary to prevent deception or to serve some other substantial interest, it must do so pursuant to the carefully structured commercial-speech standards in order to ensure the full evaluation of competing considerations and to guard against impermissible discrimination among different categories of commercial speech. See n. 7, infra.[5] Ohio has made no such demonstration here. Third, the Supreme Court of Ohio agreed with the of Commissioners that Zauderer had acted unethically "by failing fully to disclose the terms of the contingent fee arrangement which was intended to be entered into at the time of publishing the advertisement." |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | be entered into at the time of publishing the advertisement." 461 *662 N. E. 2d, at ; see App. to Juris. Statement 14a, 19a. The record indicates that Zauderer enters into a comprehensive contract with personal injury clients, one that spells out over several pages the various terms and qualifications of the contingent-fee relationship.[6] If Ohio *663 seriously means to require Zauderer "fully to disclose the[se] terms," this requirement would obviously be so "unduly burdensome" as to violate the First Amendment. Ante, at 651. Such a requirement, compelling the publication of detailed fee information that would fill far more space than the advertisement itself, would chill the publication of protected commercial speech and would be entirely out of proportion *664 to the State's legitimate interest in preventing potential deception. See In re R. M. ; Central Hudson Gas & 447 U. S., at ; Virginia Pharmacy -. Given the Court's explicit endorsement of Ohio's other disclosure provisions, I can only read the Court's telling silence respecting this apparent requirement as an implicit acknowledgment that it could not possibly pass constitutional muster.[7] B Ohio's glaring failure "to specify precisely what disclosures were required," ante, at 653, n. 15, is relevant in another important respect. Even if a State may impose particular disclosure requirements, an advertiser may not be punished for failing to include such disclosures "unless his failure is in violation of valid state statutory or decisional law requiring the [advertiser] to label or take other precautions to prevent confusion of customers." Compco Corp. v. Day-Brite Lighting, Whether or not Ohio may properly impose the disclosure requirements discussed above, it failed to provide Zauderer with sufficient notice that he was expected to include such disclosures in his Dalkon Shield advertisement. The State's punishment of Zauderer therefore violated basic due process and First Amendment guarantees. *665 Neither the published rules, state authorities, nor governing precedents put Zauderer on notice of what he was required to include in the advertisement. As the Court acknowledges, Ohio's Disciplinary Rules do not "on [their] face require any disclosures except when an advertisement mentions contingent-fee rates which appellant's advertisement did not do." Ante, at 653, n. 15. In light of the ambiguity of the rules, Zauderer contracted the governing authorities before publishing the advertisement and unsuccessfully sought to determine whether it would be ethically objectionable. He met with representatives of the Office of Disciplinary Counsel, reviewed the advertisement with them, and asked whether the Office had any objections or recommendations concerning the form or content of the advertisement. The Office refused to advise Zauderer whether "he |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | the advertisement. The Office refused to advise Zauderer whether "he should or should not publish the advertisement," informing him that it "does not have authority to issue advisory opinions nor to approve or disapprove legal service advertisements." Stipulation of Fact Between Relator and Respondent ¶¶ 22, 27, App. 16. And even after full disciplinary proceedings, Ohio still has failed, as the Court acknowledges, "to specify precisely what disclosures were required," and therefore to specify precisely how Zauderer violated the law and what reasonable precautions he can take to avoid future disciplinary actions. Ante, at 653, n. 15. A regulation that "either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law." Connally v. General Construction The Fourteenth Amendment's Due Process Clause "insist[s] that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly." This requirement "applies with particular force in review of laws dealing with speech," Hynes ; "a man may be the less required to act at his peril here, because the free dissemination of ideas may be the loser,"[8] These guarantees apply fully to attorney disciplinary proceedings. In re Given the traditions of the legal profession and an attorney's specialized professional training, there is unquestionably some room for enforcement of standards that might be impermissibly vague in other contexts; an attorney in many instances may properly be punished for "conduct which all responsible attorneys would recognize as improper for a member of the profession." (WHITE, concurring in result).[9] But where "[t]he appraisal of [an attorney's] conduct is one about which reasonable men differ, not one immediately apparent to any scrupulous citizen who confronts the question," and where the State has not otherwise proscribed the conduct in reasonably clear terms, the Due Process Clause forbids punishment of the attorney for that conduct. -556.[10] *667 I do not believe that Zauderer's Dalkon Shield advertisement can be said to be so obviously misleading as to justify punishment in the absence of a reasonably clear contemporaneous rule requiring the inclusion of certain disclaimers. The advertisement's statement that "[i]f there is no recovery, no legal fees are owed by our clients" was accurate on its face, and "[t]here is nothing in the record to indicate that the inclusion of this information was misleading" in actual practice because of the failure to include a costs disclaimer. In re R. M. -206.[11] Moreover, although the statement |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | disclaimer. In re R. M. -206.[11] Moreover, although the statement might well be viewed by many attorneys as carrying the potential for deception, the Office of Disciplinary Counsel itself stipulated that "[t]he Dalkon Shield advertisement published by [Zauderer] does not contain a false, fraudulent, misleading, deceptive, self-laudatory or unfair statement or claim." Stipulation of Fact Between Relator and Respondent ¶ 30, App. 17. Several other States have approved the publication of Dalkon Shield advertisements containing the identical no-legal-fees statement, without even a suggestion that the statement might be [12]*668 And the Office of Disciplinary Counsel's refusal to respond to Zauderer's prepublication inquiries concerning the propriety of the advertisement wholly undermines one of the basic justifications for allowing punishment for violations of imprecise commercial regulations that a businessperson can clarify the meaning of an arguably vague regulation by consulting with government administrators.[13] Although I agree that a State may upon a proper showing require a costs disclaimer as a prophylactic measure to guard against potential deception, see and may thereafter discipline attorneys who fail to include such disclaimers, Ohio had imposed no such requirement at the time Zauderer published the advertisement, as the Court acknowledges, ante, at 653, n. 15. The State instead has punished Zauderer for violating requirements that did not exist prior to this disciplinary proceeding. The Court appears to concede these serious problems, noting that "it may well be that for Ohio actually to disbar an attorney on the basis of its disclosure requirements as they have been worked out to this point would raise significant due process concerns." The Court *669 "see[s] no infirmity" in this case, however, because the Supreme Court of Ohio publicly reprimanded Zauderer rather than disbarring him. Ante, at 654, n. 15. This distinction is thoroughly unconvincing. When an attorney's constitutional rights have been violated, we have not hesitated in the past to reverse disciplinary sanctions that were even less severe than a public reprimand.[14] Moreover, a public reprimand in Ohio exacts a potentially severe deprivation of liberty and property interests that are fully protected by the Due Process Clause. The reprimand brands Zauderer as an unethical attorney who has violated his solemn oath of office and committed a "willful breach" of the Code of Professional Responsibility, and it has been published in statewide professional journals and the official reports of the Ohio Supreme Court.[15] This Court's casual indifference to the gravity of this injury inflicted on an attorney's good name demeans the entire legal profession.[16] In addition, under Ohio law "[a] person who has been publicly reprimanded for misconduct, upon being |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | person who has been publicly reprimanded for misconduct, upon being found guilty of subsequent misconduct, shall be suspended for an indefinite period from the practice of law or permanently disbarred." Govt. Bar Rule V(7). In light of Ohio's vague rules, the governing authorities' refusal to provide clarification and *670 guidance to Zauderer, and the Ohio Supreme Court's "failure to specify precisely what disclosures [are] required," ante, at 653, n. 15, Zauderer will hereafter publish advertisements mentioning contingent fees only at his peril. No matter what disclaimers he includes, Ohio may decide after the fact that further information should have been included and might, under the force of its rules, attempt to suspend him indefinitely from his livelihood. Such a potential trap for an unwary attorney acting in good faith not only works a significant due process deprivation, but also imposes an intolerable chill upon the exercise of First Amendment rights. See and n. 8.[17] II The Office of Disciplinary Counsel charged that Zauderer's drunken driving advertisement was deceptive because it proposed a contingent fee in a criminal case an unlawful arrangement under Ohio law. Amended Complaint ¶¶ 3-7, App. 22-23. Zauderer defended on the ground that the offer of a refund did not constitute a proposed contingent fee. This was the sole issue concerning the drunken driving advertisement that the Office complained of, and the evidence and arguments presented to the of Commissioners were limited to this question. The however, did not *671 even mention the contingent-fee issue in its certified report. Instead, it found the advertisement "misleading and deceptive" on the basis of a completely new theory that as a matter of "general knowledge" as discerned from certain "Municipal Court reports," drunken driving charges are "in many cases reduced and a plea of guilty or no contest to a lesser included offense is entered and received by the court," so that in such circumstances "the legal fee would not be refundable." App. to Juris. Statement 11a. Although Zauderer argued before the Supreme Court of Ohio that this theory had never been advanced by the Office of Disciplinary Counsel, that he had never had any opportunity to object to the propriety of judicial notice or to present opposing evidence, and that there was no evidence connecting him to the alleged practice, the court adopted the 's findings without even acknowledging his objections. 10 Ohio St. 3d, at 461 N.E.2d, at Zauderer of course might not ultimately be able to disprove the 's theory. The question before the Court, however, is not one of prediction but one of process. |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | however, is not one of prediction but one of process. "A person's right to reasonable notice of a charge against him, and an opportunity to be heard in his defense a right to his day in court are basic in our system of jurisprudence." In re Oliver, (19). Under the Due Process Clause, "reasonable notice" must include disclosure of "the specific issues [the party] must meet," In re Gault, and appraisal of "the factual material on which the agency relies for decision so that he may rebut it," Bowman Transportation, v. Arkansas-Best Freight System, These guarantees apply fully to attorney disciplinary proceedings because, obviously, "lawyers also enjoy first-class citizenship." Where there is an "absence of fair notice as to the reach of the grievance procedure and the precise nature of the charges," so that the attorney is not given a meaningful opportunity to present evidence in his defense, the proceedings *672 violate due process. In re[18] The Court acknowledges these guarantees, but argues that the 's change of theories after the close of evidence was "of little moment" because Zauderer had an opportunity to object to the 's certified report before the Supreme Court of Ohio. Ante, at 654. This reasoning is untenable. Although the Supreme Court of Ohio made the ultimate determination concerning discipline, it held no de novo hearing and afforded Zauderer no opportunity to present evidence opposing the 's surprise exercise of judicial notice. Under Ohio procedure, the court's role was instead limited to a record review of the 's certified findings to determine whether they were "against the weight of the evidence" or made in violation of legal and procedural guarantees. Cincinnati Bar v. Fennell,[19] All that Zauderer could do was to argue that the 's report was grounded on a theory that he had never been notified of and that he never had an opportunity to challenge with evidence of his own, and to request that proper procedures be followed.[20] *673 The court completely ignored these objections.[21] To hold that this sort of procedure constituted a meaningful "chance to be heard in a trial of the issues," (19), is to make a mockery of the due process of law that is guaranteed every citizen accused of wrongdoing. JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE REHNQUIST join, concurring in part, concurring in the judgment in part, and dissenting in part. I join Parts I, II, V, and VI of the Court's opinion, and its judgment except insofar as it reverses the reprimand based on appellant Zauderer's use of unsolicited legal advice in |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | based on appellant Zauderer's use of unsolicited legal advice in violation of DR 2-103(A) and 2-104(A). I agree that appellant was properly reprimanded for his drunken driving advertisement and for his omission of contingent fee information from his Dalkon Shield advertisement. I also concur in the Court's judgment in Part IV. At least in the context of print media, the task of monitoring illustrations in attorney advertisements is not so unmanageable as to justify Ohio's blanket ban.[1] I dissent from Part III of the Court's opinion. In my view, the use of unsolicited legal advice to entice clients poses enough of a risk of overreaching and undue influence to warrant Ohio's rule. Merchants in this country commonly offer free samples of their wares. Customers who are pleased by the sample are likely to return to purchase more. This effective marketing technique may be of little concern when applied to many products, but it is troubling when the product being dispensed *674 is professional advice. Almost every State restricts an attorney's ability to accept employment resulting from unsolicited legal advice. At least two persuasive reasons can be advanced for the restrictions. First, there is an enhanced possibility for confusion and deception in marketing professional services. Unlike standardized products, professional services are by their nature complex and diverse. See Virginia Pharmacy Faced with this complexity, a lay person may often lack the knowledge or experience to gauge the quality of the sample before signing up for a larger purchase. Second, and more significantly, the attorney's personal interest in obtaining business may color the advice offered in soliciting a client. As a result, a potential customer's decision to employ the attorney may be based on advice that is neither complete nor disinterested. These risks are of particular concern when an attorney offers unsolicited advice to a potential client in a personal encounter. In that context, the legal advice accompanying an attorney's pitch for business is not merely apt to be complex and colored by the attorney's personal interest. The advice is also offered outside of public view, and in a setting in which the prospective client's judgment may be more easily intimidated or overpowered. See For these reasons, most States expressly bar lawyers from accepting employment resulting from in person unsolicited advice.[2] Some States, like the American Bar Association in its Model Rules of Professional Conduct, extend the prohibition to employment resulting *675 from unsolicited advice in telephone calls, letters, or communications directed to a specific recipient.[3] Ohio and 14 other States go a step further. They do not limit their rules to |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | a step further. They do not limit their rules to certain methods of communication, but instead provide that, with limited exceptions, a "lawyer who has given unsolicited legal advice to a layman that he should obtain counsel or take legal action shall not accept employment resulting from that advice."[4] The issue posed and decided in Part III of the Court's opinion is whether such a rule can be applied to punish the use of legal advice in a printed advertisement soliciting business. The majority's conclusion is a narrow one: "An attorney may not be disciplined for soliciting legal business through printed advertising containing truthful and nondeceptive advice regarding the legal rights of potential clients." Ante, at 647. The Court relies on its commercial speech analysis in Central Hudson Gas & and In re R. M. As the Court notes, Central Hudson Gas & establishes that a State can prohibit truthful and nondeceptive commercial speech only if the restriction directly advances a substantial government interest. In re R. M. went further, stating that a State cannot place an absolute prohibition on certain types of potentially misleading information if the information may also be presented in a way that is not Given these holdings, the Court rejects Ohio's ban on the legal advice contained in Zauderer's Dalkon Shield advertisement: *676 "do not assume it is too late to take legal action against the manufacturer." App. 15. Surveying Ohio law, the majority concludes that this advice "seems completely unobjectionable," ante, at 640. Since the statement is not misleading, the Court turns to the asserted state interests in restricting it, and finds them all wanting. The Court perceives much less risk of overreaching or undue influence here than in simply because the solicitation does not occur in person. The State's interest in discouraging lawyers from stirring up litigation is denigrated because lawsuits are not evil, and States cannot properly interfere with access to our system of justice. Finally, the Court finds that there exist less restrictive means to prevent attorneys from using misleading legal advice to attract clients: just as the Federal Trade Commission has been able to identify unfair or deceptive practices in the marketing of mouthwash and eggs, Warner-Lambert National Comm'n on Egg the States can identify unfair or deceptive legal advice without banning that advice entirely. Ante, at 645-646. The majority concludes that "[t]he qualitative distinction the State has attempted to draw eludes us." Ante, at 646. In my view, state regulation of professional advice in advertisements is qualitatively different from regulation of claims concerning commercial goods and merchandise, and is |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | regulation of claims concerning commercial goods and merchandise, and is entitled to greater deference than the majority's analysis would permit. In its prior decisions, the Court was better able to perceive both the importance of state regulation of professional conduct, and the distinction between professional services and standardized consumer products. See, e. g., The States understandably require more of attorneys than of others engaged in commerce. Lawyers are professionals, and as such they have greater obligations. As Justice Frankfurter once observed, "[f]rom a profession charged with [constitutional] responsibilities there must be *677 exacted qualities of truth-speaking, of a high sense of honor, of granite discretion." The legal profession has in the past been distinguished and well served by a code of ethics which imposes certain standards beyond those prevailing in the marketplace and by a duty to place professional responsibility above pecuniary gain. While some assert that we have left the era of professionalism in the practice of law, see Florida (opinion of Ehrlich, ), substantial state interests underlie many of the provisions of the state codes of ethics, and justify more stringent standards than apply to the public at large. The Court's commercial speech decisions have repeatedly acknowledged that the differences between professional services and other advertised products may justify distinctive state regulation. See Virginia Pharmacy 425 U. S., at ; (opinion of BURGER, C. ); 383- ; In re R. M. Most significantly, in the Court found that the strong state interest in maintaining standards among members of licensed professions and in preventing fraud, overreaching, or undue influence by attorneys justified a prophylactic rule barring in person -462. Although the antisolicitation rule in would in some circumstances preclude an attorney from honestly and fairly informing a potential client of his or her legal rights, the Court nevertheless deferred to the State's determination that risks of undue influence or overreaching justified a blanket ban. See also At a minimum, these cases demonstrate that States are entitled under some circumstances to encompass truthful, nondeceptive speech within a ban of a type of advertising that threatens substantial state interests. *678 In my view, a State could reasonably determine that the use of unsolicited legal advice "as bait with which to obtain agreement to represent [a client] for a fee," poses a sufficient threat to substantial state interests to justify a blanket prohibition. As the Court recognized in the State has a significant interest in preventing attorneys from using their professional expertise to overpower the will and judgment of laypeople who have not sought their advice. While it is true that a |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | not sought their advice. While it is true that a printed advertisement presents a lesser risk of overreaching than a personal encounter, the former is only one step removed from the latter. When legal advice is employed within an advertisement, the layperson may well conclude there is no means to judge its validity or applicability short of consulting the lawyer who placed the advertisement. This is particularly true where, as in appellant's Dalkon Shield advertisement, the legal advice is phrased in uncertain terms. A potential client who read the advertisement would probably be unable to determine whether "it is too late to take legal action against the manufacturer" without directly consulting the appellant. And at the time of that consultation, the same risks of undue influence, fraud, and overreaching that were noted in are present. The State also has a substantial interest in requiring that lawyers consistently exercise independent professional judgment on behalf of their clients. Given the exigencies of the marketplace, a rule permitting the use of legal advice in advertisements will encourage lawyers to present that advice most likely to bring potential clients into the office, rather than that advice which it is most in the interest of potential clients to hear. In a recent case in New for example, an attorney wrote unsolicited letters to victims of a massive disaster advising them that, in his professional opinion, the liability of the potential defendants is clear. Matter of Von Wiegen, cert. pending, *679 No. 84-1120. Of course, under the Court's opinion claims like this might be reached by branding the advice misleading or by promulgating a state rule requiring extensive disclosure of all relevant liability rules whenever such a claim is advanced. But even if such a claim were completely accurate even if liability were in fact clear and the attorney actually thought it to be so I believe the State could reasonably decide that a professional should not accept employment resulting from such unsolicited advice. See Ohio and other States afford attorneys ample opportunities to inform members of the public of their legal rights. See, e. g., Ohio DR 2-104(A)(4) (permitting attorneys to speak and write publicly on legal topics as long as they do not emphasize their own experience or reputation). Given the availability of alternative means to inform the public of legal rights, Ohio's rule against legal advice in advertisements is an appropriate means to assure the exercise of independent professional judgment by attorneys. A State might rightfully take pride that its citizens have access to its civil courts, ante, at 643, while |
Justice White | 1,985 | 6 | majority | Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio | https://www.courtlistener.com/opinion/111434/zauderer-v-office-of-disciplinary-counsel-of-supreme-court-of-ohio/ | have access to its civil courts, ante, at 643, while at the same time opposing the use of self-interested legal advice to solicit clients. In the face of these substantial and legitimate state concerns, I cannot agree with the majority that Ohio DR 2-104(A) is unnecessary to the achievement of those interests. The Ohio rule may sweep in some advertisements containing helpful legal advice within its general prohibition. Nevertheless, I am not prepared to second-guess Ohio's longstanding and careful balancing of legitimate state interests merely because appellant here can invent a less restrictive rule. As the Iowa Supreme Court recently observed, "[t]he professional disciplinary system would be in chaos if violations could be defended on the ground the lawyer involved could think of a better rule." Committee On Professional *680 Ethics and Conduct of Ohio State Bar v. Humphrey, cert. pending, No. 84-1150. Because I would defer to the judgment of the States that have chosen to preclude use of unsolicited legal advice to entice clients, I respectfully dissent from Part III of the Court's opinion. |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | The Court concedes, as of course it must, that Congress enacted the 4 amendments pursuant to its exclusive power under Art I, 8, cl 3, of the Constitution *857 "[t]o regulate Commerce among the several " It must therefore be surprising that my Brethren should choose this bicentennial year of our independence to repudiate principles governing judicial interpretation of our Constitution settled since the time of Mr Chief Justice John Marshall, discarding his postulate that the Constitution contemplates that restraints upon exercise by Congress of its plenary commerce power lie in the political process and not in the judicial process For 152 years ago Mr Chief Justice Marshall enunciated that principle to which, until today, his successors on this Court have been faithful "[T]he power over commerce is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the power as are found in the constitution of the United The wisdom and the discretion of Congress, their identity with the people, and the influence which their constituents possess at elections, are the sole restraints on which they have relied, to secure them from its abuse They are the restraints on which the people must often rely solely, in all representative governments" [1] Only 34 years ago, reaffirmed that "[a]t the beginning Chief Justice Marshall made emphatic the embracing and penetrating nature of [Congress' commerce] power by *858 warning that effective restraints on its exercise must proceed from political rather than from judicial processes" My Brethren do not successfully obscure today's patent usurpation of the role reserved for the political process by their purported discovery in the Constitution of a restraint derived from sovereignty of the on Congress' exercise of the commerce power Mr Chief Justice Marshall recognized that limitations "prescribed in the constitution," restrain Congress' exercise of the power See ; ; United Thus laws within the commerce power may not infringe individual liberties protected by the First Amendment, ; the Fifth Amendment, ; or the Sixth Amendment, United But there is no restraint based on state sovereignty requiring or permitting judicial enforcement anywhere expressed in the Constitution; our decisions over the last century and a half have explicitly rejected the existence of any such restraint on the commerce power[2] *859 We said in United for example: "The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution [T]he power of the state is subordinate to the constitutional exercise of the granted federal |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | is subordinate to the constitutional exercise of the granted federal power" This but echoed another principle emphasized by Mr Chief Justice Marshall: "If any one proposition could command the universal assent of mankind, we might expect it would be thisthat the government of the Union, though limited in its powers, is supreme within its sphere of action This would seem to result necessarily from its nature It is the government of all; its powers are delegated by all; it represents all, and acts for all "The government of the United then, though limited in its powers, is supreme; and its laws, when made in pursuance of the constitution, form the supreme law of the land, `any thing in the constitution or laws of any State to the contrary notwithstanding' " "[It] is not a controversy between equals" when the Federal Government "is asserting its sovereign power to regulate commerce [T]he interests of the nation are more important than those of any State" Sanitary The commerce power "is an affirmative power commensurate with the national needs" North American The Constitution reserves to the "only that authority which is consistent with and not opposed to the grant to Congress There is no room in our scheme of government for the assertion of state power in hostility to the authorized *860 exercise of Federal power" The Minnesota Rate Cases, (3) "The framers of the Constitution never intended that the legislative power of the nation should find itself incapable of disposing of a subject matter specifically committed to its charge" In re Rahrer, My Brethren thus have today manufactured an abstraction without substance, founded neither in the words of the Constitution nor on precedent An abstraction having such profoundly pernicious consequences is not made less so by characterizing the 4 amendments as legislation directed against the " qua " Ante, at 847 See ante, at 845, 854 Of course, regulations that this Court can say are not regulations of "commerce" cannot stand, Santa Cruz Fruit Packing and in this sense "[t]he Court has ample power to prevent `the utter destruction of the State as a sovereign political entity' " [3] But my *861 Brethren make no claim that the 4 amendments are not regulations of "commerce"; rather they overrule Wirtz in disagreement with historic principles that United reaffirmed: "[W]hile the commerce power has limits, valid general regulations of commerce do not cease to be regulations of commerce because a State is involved If a State is engaging in economic activities that are validly regulated by the Federal Government when engaged in by private persons, |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | by the Federal Government when engaged in by private persons, the State too may be forced to conform its activities to federal regulation" Wirtz, - Clearly, therefore, my Brethren are also repudiating the long line of our precedents holding that a judicial finding that Congress has not unreasonably regulated a subject matter of "commerce" brings to an end the judicial role "Let the end be legitimate, let it be within the scope of the constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the constitution, are constitutional" The reliance of my Brethren upon the Tenth Amendment as "an express declaration of [a state sovereignty] limitation," ante, at 842,[4] not only suggests that they *862 overrule governing decisions of this Court that address this question but must astound scholars of the Constitution For not only early decisions, 9 Wheat, ; ; and hold that nothing in the Tenth Amendment constitutes a limitation on congressional exercise of powers delegated by the Constitution to Congress See F Frankfurter, The Commerce Clause Under Marshall, Taney and Waite 39-40 Rather, as the Tenth Amendment's significance was more recently summarized: "The amendment states but a truism that all is retained which has not been surrendered There is nothing in the history of its adoption to suggest that it was more than declaratory of the relationship between the national and state governments as it had been established by the Constitution before the amendment or that its purpose was other than to allay fears that the new national government might seek to exercise powers not granted, and that the states might not be able to exercise fully their reserved powers "From the beginning and for many years the amendment has been construed as not depriving the national government of authority to resort to all means for the exercise of a granted power which are appropriate and plainly adapted to the permitted *863 end" United [5] My Brethren purport to find support for their novel state-sovereignty doctrine in the concurring opinion of Mr Chief Justice Stone in New That reliance is plainly misplaced That case presented the question whether the Constitution either required immunity of New York State's mineral water business from federal taxation or denied to the Federal Government power to lay the tax The Court sustained the federal tax Mr Chief Justice Stone observed in his concurring opinion that "a federal tax which is not discriminatory as to the subject matter may nevertheless so affect the State, merely because it |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | matter may nevertheless so affect the State, merely because it is a State that is being taxed, as to interfere unduly with the State's performance of its sovereign functions of government" But the Chief Justice was addressing not the question of a state-sovereignty restraint upon the exercise of the commerce power, but rather the principle of implied immunity of the *864 and Federal Government from taxation by the other: "The counterpart of such undue interference has been recognized since Marshall's day as the implied immunity of each of the dual sovereignties of our constitutional system from taxation by the other" In contrast, the apposite decision that Term to the question whether the Constitution implies a state-sovereignty restraint upon congressional exercise of the commerce power is The question there was whether the Emergency Price Control Act could apply to the sale by the State of Washington of timber growing on lands granted by Congress to the State for the support of common schools The State contended that "there is a doctrine implied in the Federal Constitution that `the two governments, national and state, are each to exercise its powers so as not to interfere with the free and full exercise of the powers of the other' [and] that the Act cannot be applied to this sale because it was `for the purpose of gaining revenue to carry out an essential governmental functionthe education of its citizens' " The Court emphatically rejected that argument, in an opinion joined by Mr Chief Justice Stone, reasoning: "Since the Emergency Price Control Act has been sustained as a congressional exercise of the war power, the [State's] argument is that the extent of that power as applied to state functions depends on whether these are `essential' to the state government The use of the same criterion in measuring the constitutional power of Congress to tax has proved to be unworkable, and we reject it as a guide in the field here involved Cf United -185" [6] *865 The footnote to this statement rejected the suggested dichotomy between essential and nonessential state governmental functions as having "proved to be unworkable" by referring to "the several opinions in New " n 7 Even more significant for our purposes is the Court's citation of United a case concerned with Congress' power to regulate commerce, as supporting the rejection of the State's contention that state sovereignty is a limitation on Congress' war power directly presented the question whether any state-sovereignty restraint precluded application of the Federal Safety Appliance Act to a state owned and operated railroad The State argued "that |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | a state owned and operated railroad The State argued "that as the state is operating the railroad without profit, for the purpose of facilitating the commerce of the port, and is using the net proceeds of operation for harbor improvement, it is engaged in performing a public function in its sovereign capacity and for that reason cannot constitutionally be subjected to the provisions of the federal Act" 297 US, at 183 Mr Justice Stone rejected the contention in an opinion *866 for a unanimous Court His rationale is a complete refutation of today's holding: "That in operating its railroad [the State] is acting within a power reserved to the states cannot be doubted The only question we need consider is whether the exercise of that power, in whatever capacity, must be in subordination to the power to regulate interstate commerce, which has been granted specifically to the national government The sovereign power of the states is necessarily diminished to the extent of the grants of power to the federal government in the Constitution "The analogy of the constitutional immunity of state instrumentalities from federal taxation, on which [] relies, is not illuminating That immunity is implied from the nature of our federal system and the relationship within it of state and national governments, and is equally a restriction on taxation by either of the instrumentalities of the other Its nature requires that it be so construed as to allow to each government reasonable scope for its taxing power which would be unduly curtailed if either by extending its activities could withdraw from the taxing power of the other subjects of taxation traditionally within it Hence we look to the activities in which the states have traditionally engaged as marking the boundary of the restriction upon the federal taxing power But there is no such limitation upon the plenary power to regulate commerce The state can no more deny the power if its exercise has been authorized by Congress than can an individual" [7] *867 Today's repudiation of this unbroken line of precedents that firmly reject my Brethren's ill-conceived abstraction can only be regarded as a transparent cover for invalidating a congressional judgment with which they disagree[8] The only analysis even remotely resembling that *868 adopted today is found in a line of opinions dealing with the Commerce Clause and the Tenth Amendment that ultimately provoked a constitutional crisis for the Court in the 1930's E g, Carter v Carter Coal Co, 298 US 238 ; United v Butler, 297 US 1 ; Hammer v Dagenhart, 247 US 251 (8) See |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | 1 ; Hammer v Dagenhart, 247 US 251 (8) See Stern, The Commerce Clause and the National Economy, 1933-1946, 59 Harv L Rev 645 We tend to forget that the Court invalidated legislation during the Great Depression, not solely under the Due Process Clause, but also and primarily under the Commerce Clause and the Tenth Amendment It may have been the eventual abandonment of that overly restrictive construction of the commerce power that spelled defeat for the Courtpacking plan, and preserved the integrity of this institution, id, see, e g, United ; Mulford v 307 US 38 ; NLRB v Jones & Laughlin Steel Corp, 301 US 1 but my Brethren today are transparently trying to cut back on that recognition of the scope of the commerce power My Brethren's approach to this case is not far different from the dissenting opinions in the cases that averted the crisis See, e g, Mulford v (Butler, J, dissenting); NLRB v Jones & Laughlin Steel Corp, (McReynolds, J, dissenting)[9] *869 That no precedent justifies today's result is particularly clear from the awkward extension of the doctrine of state immunity from federal taxationan immunity conclusively distinguished by Mr Justice Stone in and an immunity that is "narrowly limited" because "the people of all the states have created the national government and are represented in Congress," Helvering v 304 US 405, (Stone, J)[10]to fashion a judicially enforceable restraint on *870 Congress' exercise of the commerce power that the Court has time and again rejected as having no place in our constitutional jurisprudence[11] "[W]here [Congress] *871 keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere" 379 U S, at To argue, as do my Brethren, that the 4 amendments are directed at the " qua" and "displac[e] state policies regarding the manner in which they will structure delivery of those governmental services which their citizens require," ante, at 847, and therefore "directly penaliz[e] the for choosing to hire governmental employees on terms different from those which Congress has sought to impose," ante, at 849, is only to advance precisely the unsuccessful arguments made by the State of Washington in and the State of in United The 4 amendments are, however, an entirely legitimate exercise of the commerce power, not in the slightest restrained by any doctrine of state sovereignty cognizable in this Court, as United and our other pertinent precedents squarely and definitively establish Moreover, since is overruled, the Fair Labor Standards Act |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | establish Moreover, since is overruled, the Fair Labor Standards Act is invalidated in its application to all state employees "in [any areas] that the have regarded as integral parts of their governmental activities" Ante, at 854 n 18 This standard is a meaningless limitation on the Court's state-sovereignty doctrine, and thus today's holding goes beyond even what the of Washington and urged in and United and by its logic would overrule those cases and with them and certain reasoning in Employees v Missouri Public Health Dept, 411 US 279, (3) I cannot recall another instance in the Court's history when the reasoning of so many decisions covering so long a span of time has been *872 discarded in such a roughshod manner That this is done without any justification not already often advanced and consistently rejected, clearly renders today's decision an ipse dixit reflecting nothing but displeasure with a congressional judgment My Brethren's treatment of Fry v United 421 US 542 (5), further illustrates the paucity of legal reasoning or principle justifying today's result Although the Economic Stabilization Act "displace[d] the ' freedom," ante, at 852the reason given for invalidating the 4 amendmentsthe result in Fry is not disturbed since the interference was temporary and only a national program enforced by the Federal Government could have alleviated the country's economic crisis Thus, although my Brethren by fiat strike down the 4 amendments without analysis of countervailing national considerations, Fry by contrary logic remains undisturbed because, on balance, countervailing national considerations override the interference with the State's freedom Moreover, it is sophistry to say the Economic Stabilization Act "displaced no state choices," ante, at 853, but that the 4 amendments do, ante, at 848 Obviously the Stabilization Actno less than every exercise of a national power delegated to Congress by the Constitution displaced the State's freedom It is absurd to suggest that there is a constitutionally significant distinction between curbs against increasing wages and curbs against paying wages lower than the federal minimum Today's holding patently is in derogation of the sovereign power of the Nation to regulate interstate commerce Can the engage in businesses competing with the private sector and then come to the courts arguing that withdrawing the employees of those businesses from the private sector evades the power of the Federal Government to regulate commerce? See New York v *873 United 326 U S, at 582 (opinion of Frankfurter, J) No principle given meaningful content by my Brethren today precludes the from doing just that Our historic decisions rejecting all suggestions that the stand in a different position |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | rejecting all suggestions that the stand in a different position from affected private parties when challenging congressional exercise of the commerce power reflect that very concern ; United Fry only last Term emphasized "that are not immune from all federal regulation under the Commerce Clause merely because of their sovereign status" 421 US, at 548 For "[b]y empowering Congress to regulate commerce the necessarily surrendered any portion of their sovereignty that would stand in the way of such regulation" ; see Employees v Missouri Public Health Dept, Employment relations of that subject themselves to congressional regulation by participating in regulable commerce are subject to congressional regulation v Taylor, 353 US 553, Plainly it has gotten no earlier since we declared it "too late in the day to question the power of Congress under the Commerce Clause to regulate activities and instrumentalities [in interstate commerce] whether they be the activities and instrumentalities of private persons or of public agencies" v United 320 US 577, Also devoid of meaningful content is my Brethren's argument that the 4 amendments "displac[e] State policies" Ante, at 847 The amendments neither impose policy objectives on the nor deny the complete freedom to fix their own objectives My Brethren boldly assert that the decision as to wages and hours is an "undoubted attribute of state sovereignty," *874 ante, at 845, and then never say why Indeed, they disclaim any reliance on the costs of compliance with the amendments in reaching today's result Ante, at 846, 851 This would enable my Brethren to conclude that, however insignificant that cost, any federal regulation under the commerce power "will nonetheless significantly alter or displace the ' abilities to structure employer-employee relationships" Ante, at 851[12]*875 This then would mean that, whether or not state wages are paid for the performance of an "essential" state function (whatever that may mean), the newly discovered state-sovereignty constraint could operate as a flat and absolute prohibition against congressional regulation of the wages and hours of state employees under the Commerce Clause The portent of such a sweeping holding is so ominous for our constitutional jurisprudence as to leave one incredulous Certainly the paradigm of sovereign actionaction qua Stateis in the enactment and enforcement of state laws Is it possible that my Brethren are signaling abandonment of the heretofore unchallenged principle that Congress "can, if it chooses, entirely displace the to the full extent of the far-reaching Commerce Clause"? Bethlehem Steel Co v New York State Board, 330 US 767, (opinion of Frankfurter, J) Indeed, that principle sometimes invalidates state laws regulating subject matter of national |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | principle sometimes invalidates state laws regulating subject matter of national importance even when Congress has been silent ; see Sanitary 266 U S, at 426 In either case the ouster of state laws obviously curtails or prohibits the ' prerogatives to make policy choices respecting subjects clearly of greater significance to the "State qua State" than the minimum wage paid to state employees The Supremacy Clause dictates this result under "the federal system of government embodied in the Constitution" Ante, at 852 My Brethren do more than turn aside longstanding constitutional jurisprudence that emphatically rejects today's conclusion More alarming is the startling restructuring of our federal system, and the role they create therein for the federal judiciary This Court is simply not at liberty to erect a mirror of its own conception of a desirable governmental structure If the 4 amendments *876 have any "vice," ante, at 849, my Brother STEVENS is surely right that it represents "merely a policy issue which has been firmly resolved by the branches of government having power to decide such questions" Post, at 881 It bears repeating "that effective restraints on exercise [of the commerce power] must proceed from political rather than from judicial processes" 317 U S, at It is unacceptable that the judicial process should be thought superior to the political process in this area Under the Constitution the Judiciary has no role to play beyond finding that Congress has not made an unreasonable legislative judgment respecting what is "commerce" My Brother BLACKMUN suggests that controlling judicial supervision of the relationship between the and our National Government by use of a balancing approach diminishes the ominous implications of today's decision Such an approach, however, is a thinly veiled rationalization for judicial supervision of a policy judgment that our system of government reserves to Congress Judicial restraint in this area merely recognizes that the political branches of our Government are structured to protect the interests of the as well as the Nation as a whole, and that the are fully able to protect their own interests in the premises Congress is constituted of representatives in both the Senate and House elected from the The No 45, pp 311-312, No 46, pp 317-318 (J Cooke ed 1) (J Madison) Decisions upon the extent of federal intervention under the Commerce Clause into the affairs of the are in that sense decisions of the themselves Judicial redistribution of powers granted the National Government by the terms of the Constitution violates the fundamental tenet of our federalism *877 that the extent of federal intervention into the ' |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | *877 that the extent of federal intervention into the ' affairs in the exercise of delegated powers shall be determined by the ' exercise of political power through their representatives in Congress See Wechsler, The Political Safeguards of Federalism: The Role of the in the Composition and Selection of the National Government, 54 Colo L Rev 543 (1954) There is no reason whatever to suppose that in enacting the 4 amendments Congress, even if it might extensively obliterate state sovereignty by fully exercising its plenary power respecting commerce, had any purpose to do so Surely the presumption must be to the contrary Any realistic assessment of our federal political system, dominated as it is by representatives of the people elected from the yields the conclusion that it is highly unlikely that those representatives will ever be motivated to disregard totally the concerns of these [13] The No 46, Certainly this was the premise upon which the Constitution, as authoritatively explicated in was founded Indeed, though the are represented in *878 the National Government, national interests are not similarly represented in the ' political processes Perhaps my Brethren's concern with the Judiciary's role in preserving federalism might better focus on whether Congress, not the is in greater need of this Court's protection See New 326 U S, at 582 (opinion of Frankfurter, J); Helvering v 304 U S, at A sense of the enormous impact of ' political power is gained by brief reference to the federal budget The largest estimate by any of the appellants of the cost impact of the 4 amendments$1 billionpales in comparison with the financial assistance the receive from the Federal Government In fiscal 7 the President's proposed budget recommends $605 billion in federal assistance to the exclusive of loans Office of Management and Budget, Special Analyses: Budget of the United Government, Fiscal Year 7, p 255 Appellants complain of the impact of the amended FLSA on police and fire departments, but the 7 budget contemplates outlays for law enforcement assistance of $716 million Concern is also expressed about the diminished ability to hire students in the summer if must pay them a minimum wage, but the Federal Government's "summer youth program" provides $400 million for 670,000 jobs Given this demonstrated ability to obtain funds from the Federal Government for needed state services, there is little doubt that the ' influence in the political process is adequate to safeguard their sovereignty[14] *879 My Brethren's disregard for precedents recognizing these long-settled constitutional principles is painfully obvious in their cavalier treatment of Without even a passing reference to |
Justice Brennan | 1,976 | 13 | dissenting | National League of Cities v. Usery | https://www.courtlistener.com/opinion/109499/national-league-of-cities-v-usery/ | their cavalier treatment of Without even a passing reference to the doctrine of stare decisis, Wirtzregarded as controlling only last Term, Fry v United 421 U S, at 548, and as good law in Employees v Missouri Public Health Dept, 411 U S, at 283is by exercise of raw judicial power overruled No effort is made to distinguish the FLSA amendments sustained in Wirtz from the 4 amendments We are told at the outset that "the `far-reaching implications' of Wirtz should be overruled," ante, at 840; later it is said that the "reasoning in Wirtz" is no longer "authoritative," ante, at 854 My Brethren then merely restate their essential-function test and say that Wirtz must "therefore" be overruled Ante, at 855-856 There is no analysis whether Wirtz reached the correct result, apart from any flaws in reasoning, even though we are told that "there are obvious differences" between this case and Wirtz Ante, at 855[15] Are state and federal *880 interests being silently balanced, as in the discussion of Fry, ante, at 853? The best I can make of it is that the 6 FLSA amendments are struck down and Wirtz is overruled on the basis of the conceptually unworkable essential-function test; and that the test is unworkable is demonstrated by my Brethren's inability to articulate any meaningful distinctions among state-operated railroads, see ante, at 854-855, n 18, state-operated schools and hospitals, and state-operated police and fire departments We are left then with a catastrophic judicial body blow at Congress' power under the Commerce Clause Even if Congress may nevertheless accomplish its objectives for example, by conditioning grants of federal funds upon compliance with federal minimum wage and overtime standards, cf Oklahoma v CSC, 330 US 127, there is an ominous portent of disruption of our constitutional structure implicit in today's mischievous decision I dissent MR |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | This case concerns the Black Hills of South Dakota, the Great Sioux Reservation, and a colorful, and in many respects tragic, chapter in the history of the 's West. Although the litigation comes down to a claim of interest since 1877 on an award of over $17 million, it is necessary, in order to understand the controversy, to review at some length the chronology of the case and its factual setting. For over a century now the Sioux has claimed that the United States unlawfully abrogated the Fort Laramie Treaty of April 29, 1868, in Art. of which the United States pledged that the Great Sioux Reservation, including the Black Hills, would be "set apart for the absolute and undisturbed use and occupation of the ndians herein named." The Fort Laramie Treaty was concluded at the culmination of the Powder River War of 1866-, a series of military engagements in which the Sioux tribes, led by their great chief, Red Cloud, fought to protect the integrity of earlier-recognized treaty lands from the incursion of white settlers.[1] The Fort Laramie Treaty included several agreements central to the issues presented in this First, it established the Great Sioux Reservation, a tract of land bounded on the east by the Missouri River, on the south by the northern border of the State of Nebraska, on the north by the forty-sixth parallel of north latitude, and on the west by the one *37 hundred and fourth meridian of west longitude,[2] in addition to certain reservations already existing east of the Missouri. The United States "solemnly agree[d]" that no unauthorized persons "shall ever be permitted to pass over, settle upon, or reside in [this] territory." Second, the United States permitted members of the Sioux tribes to select lands within the reservation for cultivation. n order to assist the Sioux in becoming civilized farmers, the Government promised to provide them with the necessary services and materials, and with subsistence rations for four years.[3] Third, in exchange for the benefits conferred by the treaty, the Sioux agreed to relinquish their rights under the Treaty of September 17, 181, to occupy territories outside the reservation, while reserving their "right to hunt on any lands north of North Platte, and on the Republican Fork of the Smoky Hill river, so long as the buffalo may range thereon in such numbers as to justify the chase." The ndians also expressly agreed to withdraw all opposition to the building *376 of railroads that did not pass over their reservation lands, not to engage in attacks on settlers, and to withdraw their |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | to engage in attacks on settlers, and to withdraw their opposition to the military posts and roads that had been established south of the North Platte River. Fourth, Art. X of the treaty provided: "No treaty for the cession of any portion or part of the reservation herein described which may be held in common shall be of any validity or force as against the said ndians, unless executed and signed by at least three fourths of all the adult male ndians, occupying or interested in the same." [4] The years following the treaty brought relative peace to the Dakotas, an era of tranquility that was disturbed, however, by renewed speculation that the Black Hills, which were included in the Great Sioux Reservation, contained vast quantities of gold and silver.[] n 1874 the Army planned and undertook an exploratory expedition into the Hills, both for the purpose of establishing a military outpost from which to control those Sioux who had not accepted the terms of the Fort Laramie Treaty, and for the purpose of investigating "the country about which dreamy stories have been told." D. Jackson, Custer's Gold (1966) (quoting the 1874 annual report of Lieutenant General Philip H. Sheridan, as Commander of the Military Division of the Missouri, to the Secretary of War). Lieutenant Colonel George Armstrong Custer led the expedition of close to 1,000 soldiers and teamsters, and a substantial number of military and civilian aides. *377 Custer's journey began at Fort Abraham Lincoln on the Missouri River on July 2, 1874. By the end of that month they had reached the Black Hills, and by mid-August had confirmed the presence of gold fields in that region. The discovery of gold was widely reported in newspapers across the country.[6] Custer's florid descriptions of the mineral and timber resources of the Black Hills, and the land's suitability for grazing and cultivation, also received wide circulation, and had the effect of creating an intense popular demand for the "opening" of the Hills for settlement.[7] The only obstacle to "progress" was the Fort Laramie Treaty that reserved occupancy of the Hills to the Sioux. Having promised the Sioux that the Black Hills were reserved to them, the United States Army was placed in the position of having to threaten military force, and occasionally to use it, to prevent prospectors and settlers from trespassing on lands reserved to the ndians. For example, in September 1874, General Sheridan sent instructions to Brigadier General Alfred H. Terry, Commander of the Department of Dakota, at Saint Paul, directing him to use force to prevent companies |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | Saint Paul, directing him to use force to prevent companies of prospectors from trespassing on the Sioux Reservation. At the same time, Sheridan let it be known that *378 he would "give a cordial support to the settlement of the Black Hills," should Congress decide to "open up the country for settlement, by extinguishing the treaty rights of the ndians." App. 62-63. Sheridan's instructions were published in local newspapers. See[8] Eventually, however, the Executive Branch of the Government decided to abandon the 's treaty obligation to preserve the integrity of the Sioux territory. n a letter dated November 9, 187, to Terry, Sheridan reported that he had met with President Grant, the Secretary of the nterior, and the Secretary of War, and that the President had decided that the military should make no further resistance to the occupation of the Black Hills by miners, "it being his belief that such resistance only increased their desire and complicated the troubles." These orders were to be enforced "quietly," ib and the President's decision was to remain "confidential." -60 With the Army's withdrawal from its role as enforcer of the Fort Laramie Treaty, the influx of settlers into the Black Hills increased. The Government concluded that the only practical course was to secure to the citizens of the United States the right to mine the Black Hills for gold. Toward *379 that end, the Secretary of the nterior, in the spring of 187, appointed a commission to negotiate with the Sioux. The commission was headed by William B. Allison. The tribal leaders of the Sioux were aware of the mineral value of the Black Hills and refused to sell the land for a price less than $70 million. The commission offered the ndians an annual rental of $400,000, or payment of $6 million for absolute relinquishment of the Black Hills. The negotiations broke down.[9] n the winter of 187-1876, many of the Sioux were hunting in the unceded territory north of the North Platte River, reserved to them for that purpose in the Fort Laramie Treaty. On December 6, 187, for reasons that are not entirely clear, the Commissioner of ndian Affairs sent instructions to the ndian agents on the reservation to notify those hunters that if they did not return to the reservation agencies by January 31, 1876, they would be treated as "hostiles." Given the severity of the winter, compliance with these instructions was impossible. On February 1, the Secretary of the nterior nonetheless relinquished jurisdiction over all hostile Sioux, including those ndians exercising their treaty-protected hunting rights, to the War |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | those ndians exercising their treaty-protected hunting rights, to the War Department. The Army's campaign against the "hostiles" led to Sitting Bull's notable victory over Custer's forces at the battle of the Little Big Horn on June 2. That victory, of course, was short-lived, and those ndians who surrendered to the Army were returned to the reservation, and deprived of their weapons and horses, leaving them completely dependent for survival on rations provided them by the Government.[10] *380 n the meantime, Congress was becoming increasingly dissatisfied with the failure of the Sioux living on the reservation to become self-sufficient.[] The Sioux' entitlement to subsistence rations under the terms of the Fort Laramie Treaty *381 had expired in 1872. Nonetheless, in each of the two following years, over $1 million was appropriated for feeding the Sioux. n August 1876, Congress enacted an appropriations bill providing that "hereafter there shall be no appropriation made for the subsistence" of the Sioux, unless they first relinquished their rights to the hunting grounds outside the reservation, ceded the Black Hills to the United States, and reached some accommodation with the Government that would be calculated to enable them to become self-supporting. Act of Aug. 1, 1876, 192.[12] Toward this end, Congress requested the President to appoint another commission to negotiate with the Sioux for the cession of the Black Hills. This commission, headed by George Manypenny, arrived in the Sioux country in early September and commenced meetings with the head men of the various tribes. The members of the commission impressed upon the ndians that the United States no longer had any obligation to provide them with subsistence rations. The commissioners brought with them the text of a treaty that had been prepared in advance. The principal provisions of this treaty were that the Sioux would relinquish their rights to the Black Hills and other lands west of the one hundred and third meridian, and their rights to hunt in the unceded territories to the north, in exchange for subsistence rations for as long as they would be needed to ensure the Sioux' survival. n setting out to obtain the tribes' agreement to this treaty, the commission ignored the stipulation of the Fort Laramie Treaty that any cession of the lands contained within the Great Sioux Reservation would have to be joined in by three-fourths of the adult males. nstead, the treaty was presented just to Sioux *382 chiefs and their leading men. t was signed by only 10% of the adult male Sioux population.[13] Congress resolved the impasse by enacting the 1876 "agreement" into law |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | resolved the impasse by enacting the 1876 "agreement" into law as the Act of Feb. 28, 1877 (1877 Act). The Act had the effect of abrogating the earlier Fort Laramie Treaty, and of implementing the terms *383 of the Manypenny Commission's "agreement" with the Sioux leaders.[] The passage of the 1877 Act legitimized the settlers' invasion of the Black Hills, but throughout the years it has been regarded by the Sioux as a breach of this 's solemn obligation to reserve the Hills in perpetuity for occupation by the ndians. One historian of the Sioux commented on ndian reaction to the Act in the following words: "The Sioux thus affected have not gotten over talking about that treaty yet, and during the last few years they have maintained an organization called the Black Hills Treaty Association, which holds meetings each year at the various agencies for the purpose of studying the *3 treaty with the intention of presenting a claim against the government for additional reimbursements for the territory ceded under it. Some think that Uncle Sam owes them about $9,000,000 on the deal, but it will probably be a hard matter to prove it." F. Fiske, The Taming of the Sioux 132 (1917). Fiske's words were to prove prophetic. Prior to 19, Congress had not enacted any mechanism of general applicability by which ndian tribes could litigate treaty claims against the United States.[1] The Sioux, however, after years of lobbying, succeeded in obtaining from Congress the passage of a special jurisdictional Act which provided them a forum for adjudication of all claims against the United States "under any treaties, agreements, or laws of Congress, or for the misappropriation of any of the funds or lands of said tribe or band or bands thereof." Act of June 3, 1920, ch. 222, Pursuant to this statute, the Sioux, in 1923, filed a petition with the Court of Claims alleging that the Government had taken the Black Hills without just compensation, in violation of the Fifth Amendment. This claim was dismissed by that court in n a lengthy and unanimous opinion, the court concluded that it was not authorized by the Act of June 3, 1920, to question whether the compensation afforded the Sioux by Congress in 1877 was an adequate price for the Black Hills, and that the Sioux' claim in this regard was a moral claim not protected by the Just Compensation Clause. Sioux cert. denied, n 19, Congress passed the ndian Claims Commission Act, 2 U.S. C. 70 et seq., creating a new forum to hear and determine all |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | seq., creating a new forum to hear and determine all tribal grievances that had *38 arisen previously. n 190, counsel for the Sioux resubmitted the Black Hills claim to the ndian Claims Commission. The Commission initially ruled that the Sioux had failed to prove their Sioux 2 nd. Cl. Comm'n 6 (194), aff'd, The Sioux filed a motion with the Court of Claims to vacate its judgment of affirmance, alleging that the Commission's decision had been based on a record that was inadequate, due to the failings of the Sioux' former counsel. This motion was granted and the Court of Claims directed the Commission to consider whether the case should be reopened for the presentation of additional evidence. On November 19, 198, the Commission entered an order reopening the case and announcing that it would reconsider its prior judgment on the merits of the Sioux claim. App. 26-266; see Sioux Following the Sioux' filing of an amended petition, claiming again that the 1877 Act constituted a taking of the Black Hills for which just compensation had not been paid, there ensued a lengthy period of procedural sparring between the ndians and the Government. Finally, in October the Commission set down three questions for briefing and determination: (1) What land and rights did the United States acquire from the Sioux by the 1877 Act? (2) What, if any, consideration was given for that land and those rights? And (3) if there was no consideration for the Government's acquisition of the land and rights under the 1877 Act, was there any payment for such acquisition? App. 266. Six years later, by a 4-to-1 vote, the Commission reached a preliminary decision on these questions. Sioux 33 nd. Cl. Comm'n (1974). The Commission first held that the Court of Claims decision did not bar the Sioux' Fifth Amendment taking claim through application of the doctrine of res judicata. The Commission concluded that the Court of Claims had dismissed the earlier *386 suit for lack of jurisdiction, and that it had not determined the merits of the Black Hills claim. The Commission then went on to find that Congress, in 1877, had made no effort to give the Sioux full value for the ceded reservation lands. The only new obligation assumed by the Government in exchange for the Black Hills was its promise to provide the Sioux with subsistence rations, an obligation that was subject to several limiting conditions. See n. Under these circumstances, the Commission concluded that the consideration given the ndians in the 1877 Act had no relationship to the value of the |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | 1877 Act had no relationship to the value of the property acquired. Moreover, there was no indication in the record that Congress ever attempted to relate the value of the rations to the value of the Black Hills Applying the principles announced by the Court of Claims in Three Tribes of Fort the Commission concluded that Congress had acted pursuant to its power of eminent domain when it passed the 1877 Act, rather than as a trustee for the Sioux, and that the Government must pay the ndians just compensation for the taking of the Black Hills.[] The Government filed an appeal with the Court of Claims *387 from the Commission's interlocutory order, arguing alternatively that the Sioux' Fifth Amendment claim should have been barred by principles of res judicata and collateral estoppel, or that the 1877 Act did not effect a taking of the Black Hills for which just compensation was due. Without reaching the merits, the Court of Claims held that the Black Hills claim was barred by the res judicata effect of its decision. United The court's majority recognized that the practical impact of the question presented was limited to a determination of whether or not an award of interest would be available to the ndians. This followed from the Government's failure to appeal the Commission's holding that it had acquired the Black Hills through a course of unfair and dishonorable dealing for which the Sioux were entitled to damages, without interest, under 2 of the ndian Claims Commission Act, 2 U.S. C. 70a (). Only if the acquisition of the Black Hills amounted to an unconstitutional taking would the Sioux be entitled to 18 F. 2d, at 1299.[17] *388 The court affirmed the Commission's holding that a want of fair and honorable dealings in this case was evidenced, and held that the Sioux thus would be entitled to an award of at least $17. million for the lands surrendered and for the gold taken by trespassing prospectors prior to passage of the 1877 Act. See n. The court also remarked upon President Grant's duplicity in breaching the Government's treaty obligation to keep trespassers out of the Black Hills, and the pattern of duress practiced by the Government on the starving Sioux to get them to agree to the sale of the Black Hills. The court concluded: "A more ripe and rank case of dishonorable dealings will never, in all probability, be found in our history, which is not, taken as a whole, the disgrace it now pleases some persons to believe." 18 F. 2d, at 1302. |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | pleases some persons to believe." 18 F. 2d, at 1302. Nonetheless, the court held that the merits of the Sioux' taking claim had been reached in and whether resolved "rightly or wrongly," the claim was now barred by res judicata. The court observed that interest could not be awarded the Sioux on judgments obtained pursuant to the ndian Claims Commission Act, and that while Congress could correct this situation, the court could not. [18] The Sioux petitioned this Court for a writ of certiorari, but that petition was denied. 423 U.S. 10 The case returned to the ndian Claims Commission, where the value of the rights-of-way obtained by the Government through the 1877 Act was determined to be $3,4, and where it was decided that the Government had made no payments to the Sioux that could be considered as offsets. App. 3. *389 The Government then moved the Commission to enter a final award in favor of the Sioux in the amount of $17. million, see n. but the Commission deferred entry of final judgment in view of legislation then pending in Congress that dealt with the On March 13, 1978, Congress passed a statute providing for Court of Claims review of the merits of the ndian Claims Commission's judgment that the 1877 Act effected a taking of the Black Hills, without regard to the defenses of res judicata and collateral estoppel. The statute authorized the Court of Claims to take new evidence in the case, and to conduct its review of the merits de novo. Stat. 13, amending 20 (b) of the ndian Claims Commission Act. See 2 U.S. C. 70s (b) (1976 ed., Supp. ). Acting pursuant to that statute, a majority of the Court of Claims, sitting en banc, in an opinion by Chief Judge Friedman, affirmed the Commission's holding that the 1877 Act effected a taking of the Black Hills and of rights-of-way across the reservation.[19] n doing so, the court applied the test it had earlier articulated in Fort asking whether Congress had made "a good faith effort to give the ndians the full value of the land," 601 F. 2d, at 12, in order to decide whether the 1877 Act had effected a taking or whether it had been a noncompensable act of congressional guardianship over tribal property. The court characterized the Act as a taking, an exercise of Congress' power of eminent domain over ndian property. t distinguished broad statements seemingly leading to a contrary *390 result in Lone as inapplicable to a case involving a claim for just 601 F. 2d, at |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | case involving a claim for just 601 F. 2d, at 70.[20] The court thus held that the Sioux were entitled to an award of interest, at the annual rate of %, on the principal sum of $17.1 million, dating from 1877.[21] We granted the Government's petition for a writ of certiorari, in order to review the important constitutional questions presented by this case, questions not only of longstanding concern to the Sioux, but also of significant economic import to the Government. Having twice denied petitions for certiorari in this litigation, see ; 423 U.S. 10 we are confronted with it for a third time as a result of the amendment, above noted, to the ndian Claims Commission Act of 19, 2 U.S. C. 70s (b) (1976 ed., Supp. ), which *391 directed the Court of Claims to review the merits of the Black Hills takings claim without regard to the defense of res judicata. The amendment, approved March 13, 1978, provides: "Notwithstanding any other provision of law, upon application by the claimants within thirty days from the date of the enactment of this sentence, the Court of Claims shall review on the merits, without regard to the defense of res judicata or collateral estoppel, that portion of the determination of the ndian Claims Commission entered February 1, 1974, adjudging that the Act of February 28, 1877 (), effected a taking of the Black Hills portion of the Great Sioux Reservation in violation of the fifth amendment, and shall enter judgment accordingly. n conducting such review, the Court shall receive and consider any additional evidence, including oral testimony, that either party may wish to provide on the issue of a fifth amendment taking and shall determine that issue de novo." Before turning to the merits of the Court of Claims' conclusion that the 1877 Act effected a taking of the Black Hills, we must consider the question whether Congress, in enacting this 1978 amendment, "has inadvertently passed the limit which separates the legislative from the judicial power." United 7 A There are two objections that might be raised to the constitutionality of this amendment, each framed in terms of the doctrine of separation of powers. The first would be that Congress impermissibly has disturbed the finality of a judicial decree by rendering the Court of Claims' earlier judgments in this case mere advisory opinions. See Hayburn's Case, 410-4 (setting forth the views of three Circuit Courts, including among their complements Mr. Chief *392 Justice Jay, and Justices Cushing, Wilson, Blair, and redell, that the Act of Mar. 23, 1792, was unconstitutional |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | redell, that the Act of Mar. 23, 1792, was unconstitutional because it subjected the decisions of the Circuit Courts concerning eligibility for pension benefits to review by the Secretary of War and the Congress). The objection would take the form that Congress, in directing the Court of Claims to reach the merits of the Black Hills claim, effectively reviewed and reversed that court's judgment that the claim was barred by res judicata, or its judgment that the claim was not cognizable under the Fifth Amendment. Such legislative review of a judicial decision would interfere with the independent functions of the Judiciary. The second objection would be that Congress overstepped its bounds by granting the Court of Claims jurisdiction to decide the merits of the Black Hills claim, while prescribing a rule for decision that left the court no adjudicatory function to perform. See United 13 Wall., at 6; 321 U.S. 4, Of course, in the context of this amendment, that objection would have to be framed in terms of Congress' removal of a single issue from the Court of Claims' purview, the question whether res judicata or collateral estoppel barred the Sioux' claim. For in passing the amendment, Congress left no doubt that the Court of Claims was free to decide the merits of the takings claim in accordance with the evidence it found and applicable rules of law. See n. 23, infra. These objections to the constitutionality of the amendment were not raised by the Government before the Court of At oral argument in this Court, counsel for the United States, upon explicit questioning, advanced the position that the amendment was not beyond the limits of legislative power.[22] The question whether the amendment *393 impermissibly interfered with judicial power was debated, however, in the House of Representatives, and that body concluded that the Government's waiver of a "technical legal defense" in order to permit the Court of Claims to reconsider the merits of the Black Hills claim was within Congress' power to enact.[23] *394 The question debated on the floor of the House is one the answer to which is not immediately apparent. t requires us to examine the proper role of Congress and the courts in *39 recognizing and determining claims against the United States, in light of more general principles concerning the legislative and judicial roles in our tripartite system of government. Our examination of the amendment's effect, and of this Court's precedents, leads us to conclude that neither of the two separation-of-powers objections described above is presented by this legislation. B Our starting point is Cherokee |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | presented by this legislation. B Our starting point is Cherokee That decision concerned the Special Act of Congress, dated March 3, 1919, 40 Stat. 13, conferring jurisdiction upon the Court of Claims "to hear, consider, and determine the claim of the Cherokee against the United States for interest, in addition to all other interest heretofore allowed and paid, alleged to be owing from the United States to the Cherokee on the funds arising from the judgment of the Court of Claims of May eighteenth, nineteen hundred and five." n the judgment referred to by the Act, the Court of Claims had allowed % simple interest on four Cherokee claims, to accrue from the date of liability. Cherokee This Court had affirmed that judgment, including the interest award. United Thereafter, and following payment of the judgment, the Cherokee presented to Congress a new claim that they were entitled to compound interest on the lump sum of principal and interest that had accrued up to 189. t was this claim that prompted Congress, in 1919, to reconfer jurisdiction on the Court of Claims to consider the Cherokee's entitlement to that additional Ultimately, this Court held that the Cherokee were not entitled to the payment of compound interest on the original judgment awarded by the Court of -496. Before turning to the merits of the interest claim, however, the Court considered "the effect of the Act of 1919 in referring the issue in this case to the Court of " The Court's conclusion concerning that question bears close examination: "The judgment of this Court in the suit by the Cherokee against the United States, in April, 1906 (), already referred to, awarded a large amount of The question of interest was considered and decided, and it is quite clear that but for the special Act of 1919, above quoted, the question here mooted would have been foreclosed as res judicata. n passing the Act, Congress must have been well advised of this, and the only possible construction therefore to be put upon it is that Congress has therein expressed its desire, so far as the question of interest is concerned, to waive the effect of the judgment as res judicata, and to direct the Court of Claims to re-examine it and determine whether the interest therein allowed was all that should have been allowed, or whether it should be found to be as now claimed by the Cherokee The Solicitor General, representing the Government, properly concedes this to be the correct view. The power of Congress to waive such an adjudication of course |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | power of Congress to waive such an adjudication of course is clear." *397 The holding in Cherokee that Congress has the power to waive the res judicata effect of a prior judgment entered in the Government's favor on a claim against the United States is dispositive of the question considered here. Moreover, that holding is consistent with a substantial body of precedent affirming the broad constitutional power of Congress to define and "to pay the Debts of the United States." U. S. Const., Art. 8, cl. 1. That precedent speaks directly to the separation-of-powers objections discussed above. The scope of Congress' power to pay the 's debts seems first to have been construed by this Court in United 3 U.S. 427 There, the Court stated: "The term `debts' includes those debts or claims which rest upon a merely equitable or honorary obligation, and which would not be recoverable in a court of law if existing against an individual. The nation, speaking broadly, owes a `debt' to an individual when his claim grows out of general principles of right and justice; when, in other words, it is based upon considerations of a moral or merely honorary nature, such as are binding on the conscience or the honor of an individual, although the debt could obtain no recognition in a court of law. The power of Congress extends at least as far as the recognition and payment of claims against the government which are thus founded." Other decisions clearly establish that Congress may recognize its obligation to pay a moral debt not only by direct appropriation, but also by waiving an otherwise valid defense to a legal claim against the United States, as Congress did in this case and in Cherokee Although the Court in Cherokee did not expressly tie its conclusion that Congress had the power to waive the res judicata effect of a judgment in favor of the United States to Congress' constitutional *398 power to pay the 's debts, the Cherokee opinion did rely on the decision in See 270 U.S., n Nock, the Court of Claims was confronted with the precise question whether Congress invaded judicial power when it enacted a joint resolution, Stat. 608, directing that court to decide a damages claim against the United States "in accordance with the principles of equity and justice," even though the merits of the claim previously had been resolved in the Government's favor. The court rejected the Government's argument that the joint resolution was unconstitutional as an exercise of "judicial powers" because it had the effect of setting aside the |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | powers" because it had the effect of setting aside the court's prior judgment. Rather, the court concluded: "t is unquestionable that the Constitution has invested Congress with no judicial powers; it cannot be doubted that a legislative direction to a court to find a judgment in a certain way would be little less than a judgment rendered directly by Congress. But here Congress do not attempt to award judgment, nor to grant a new trial judicially; neither have they reversed a decree of this court; nor attempted in any way to interfere with the administration of justice. Congress are here to all intents and purposes the defendants, and as such they come into court through this resolution and say that they will not plead the former trial in bar, nor interpose the legal objection which defeated a recovery before." -48 The Nock court thus expressly rejected the applicability of separation-of-powers objections to a congressional decision to waive the res judicata effect of a judgment in the Government's favor.[24] *399 The principles set forth in Cherokee and Nock were substantially reaffirmed by this Court in There Congress had enacted special legislation conferring jurisdiction upon the Court of *400 Claims, "notwithstanding any prior determination, any statute of limitations, release, or prior acceptance of partial allowance, to hear, determine, and render judgment upon" certain claims against the United States arising out of a construction contract. Special Act of Feb. 27, 1, The court was also directed to determine Pope's claims and render judgment upon them according to a particular formula for measuring the value of the work that he had performed. The Court of Claims construed the Special Act as deciding the questions of law presented by the case, and leaving it the role merely of computing the amount of the judgment for the claimant according to a mathematical formula. Based upon that reading of the Act, and this Court's decision in United the Court of Claims held that the Act unconstitutionally interfered with judicial -73. t distinguished Cherokee as a case in which Congress granted a claimant a new trial, without directing the courts how to decide the and n. and n. This Court reversed the Court of Claims' judgment. n *401 doing so, the Court differed with the Court of Claims' interpretation of the effect of the Special Act. First, the Court held that the Act did not disturb the earlier judgment denying Pope's claim for damages. "While inartistically drawn the Act's purpose and effect seem rather to have been to create a new obligation of the Government to pay petitioner's |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | create a new obligation of the Government to pay petitioner's claims where no obligation existed before." Second, the Court held that Congress' recognition of Pope's claim was within its power to pay the 's debts, and that its use of the Court of Claims as an instrument for exercising that power did not impermissibly invade the judicial function: "We perceive no constitutional obstacle to Congress' imposing on the Government a new obligation where there had been none before, for work performed by petitioner which was beneficial to the Government and for which Congress thought he had not been adequately compensated. The power of Congress to provide for the payment of debts, conferred by 8 of Article of the Constitution, is not restricted to payment of those obligations which are legally binding on the Government. t extends to the creation of such obligations in recognition of claims which are merely moral or honorary. United 3 U.S. 427. Congress, by the creation of a legal, in recognition of a moral, obligation to pay petitioner's claims plainly did not encroach upon the judicial function which the Court of Claims had previously exercised in adjudicating that the obligation was not legal. [Footnote citing Nock and other cases omitted.] Nor do we think it did so by directing that court to pass upon petitioner's claims in conformity to the particular rule of liability prescribed by the Special Act and to give judgment accordingly. See Cherokee" *402 n explaining its holding that the Special Act did not invade the judicial province of the Court of Claims by directing it to reach its judgment with reference to a specified formula, the Court stressed that Pope was required to pursue his claim in the usual manner, that the earlier factual findings made by the Court of Claims were not necessarily rendered conclusive by the Act, and that, even if Congress had stipulated to the facts, it was still a judicial function for the Court of Claims to render judgment on consent. To be sure, the Court in Pope specifically declined to consider "just what application the principles announced in the case could rightly be given to a case in which Congress sought, pendente lite, to set aside the judgment of the Court of Claims in favor of the Government and to require relitigation of the suit." The case before us might be viewed as presenting that question. We conclude, however, that the separation-of-powers question presented in this case has already been answered in Cherokee and that that answer is completely consistent with the principles articulated in The decision |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | is completely consistent with the principles articulated in The decision in United arose from the following facts: was the administrator of the estate of V. F. Wilson, the deceased owner of property that had been sold by agents of the Government during the War Between the States. sued the United States in the Court of Claims for the proceeds of that sale. His lawsuit was based on the Abandoned and Captured Property Act of March 3, 1863, which afforded such a cause of action to noncombatant property owners upon proof that they had "never given any aid or comfort to the present rebellion." Following the enactment of this legislation, President Lincoln had issued a proclamation granting "a full pardon" to certain persons engaged "in the existing rebellion" who desired to resume their allegiance to the Government, upon the condition that they take and maintain a prescribed *403 oath. This pardon was to have the effect of restoring those persons' property rights. See The Court of Claims held that Wilson's taking of the amnesty oath had cured his participation in "the rebellion," and that his administrator. was thus entitled to the proceeds of the sale. 4 Ct. Cl. 9 The Court of Claims' decision in 's case was consistent with this Court's later decision in a similar case, United 9 Wall. 31 holding that the Presidential pardon purged a participant "of whatever offence against the laws of the United States he had committed and relieved [him] from any penalty which he might have incurred." at 43. Following the Court's announcement of the judgment in Padelford, however, Congress enacted a proviso to the appropriations bill for the Court of The proviso had three effects: First, no Presidential pardon or amnesty was to be admissible in evidence on behalf of a claimant in the Court of Claims as the proof of loyalty required by the Abandoned and Captured Property Act. Second, the Supreme Court was to dismiss, for want of jurisdiction, any appeal from a judgment of the Court of Claims in favor of a claimant who had established his loyalty through a pardon. Third, the Court of Claims henceforth was to treat a claimant's receipt of a Presidential pardon, without protest, as conclusive evidence that he had given aid and comfort to the rebellion, and to dismiss any lawsuit on his behalf for want of jurisdiction. Act of July 12, 1870, ch. 21, Stat. 230, 23. The Government's appeal from the judgment in 's case was decided by this Court following the enactment of the appropriations proviso. This Court held the proviso |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | enactment of the appropriations proviso. This Court held the proviso unconstitutional notwithstanding Congress' recognized power "to make `such exceptions from the appellate jurisdiction' [of the Supreme Court] as should seem to it expedient." 13 Wall., at See U. S. Const., Art. 2, cl. 2. This *404 holding followed from the Court's interpretation of the proviso's effect: "[T]he language of the proviso shows plainly that it does not intend to withhold appellate jurisdiction except as a means to an end. ts great and controlling purpose is to deny to pardons granted by the President the effect which this court had adjudged them to have." 13 Wall., at Thus construed, the proviso was unconstitutional in two respects: First, it prescribed a rule of decision in a case pending before the courts, and did so in a manner that required the courts to decide a controversy in the Government's favor. "The court is required to ascertain the existence of certain facts and thereupon to declare that its jurisdiction on appeal has ceased, by dismissing the bill. What is this but to prescribe a rule for the decision of a cause in a particular way? n the case before us, the Court of Claims has rendered judgment for the claimant and an appeal has been taken to this court. We are directed to dismiss the appeal, if we find that the judgment must be affirmed, because of a pardon granted to the intestate of the claimants. Can we do so without allowing one party to the controversy to decide it in its own favor? Can we do so without allowing that the legislature may prescribe rules of decision to the Judicial Department of the government in cases pending before it? ". Can [Congress] prescribe a rule in conformity with which the court must deny to itself the jurisdiction thus conferred, because and only because its decision, in accordance with settled law, must be adverse to the government and favorable to the suitor? This question seems to us to answer itself." at 6-7. Second, the rule prescribed by the proviso "is also liable to just exception as impairing the effect of a pardon, and thus *40 infringing the constitutional power of the Executive." at 7. The Court held that it would not serve as an instrument toward the legislative end of changing the effect of a Presidential pardon. at 8. t was, of course, the former constitutional objection held applicable to the legislative proviso in that the Court was concerned about in Pope. But that objection is not applicable to the case before us for |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | objection is not applicable to the case before us for two reasons. First, of obvious importance to the holding was the fact that Congress was attempting to decide the controversy at issue in the Government's own favor. Thus, Congress' action could not be grounded upon its broad power to recognize and pay the 's debts. Second, and even more important, the proviso at issue in had attempted "to prescribe a rule for the decision of a cause in a particular way." 13 Wall., at 6. The amendment at issue in the present case, however, like the Special Act at issue in Cherokee waived the defense of res judicata so that a legal claim could be resolved on the merits. Congress made no effort in either instance to control the Court of Claims' ultimate decision of that claim. See n. 23, [2] *406 C When Congress enacted the amendment directing the Court of Claims to review the merits of the Black Hills claim, it neither brought into question the finality of that court's earlier judgments, nor interfered with that court's judicial function in deciding the merits of the claim. When the Sioux returned to the Court of Claims following passage of the *407 amendment, they were there in pursuit of judicial enforcement of a new legal right. Congress had not "reversed" the Court of Claims' holding that the claim was barred by res judicata, nor, for that matter, had it reviewed the decision rejecting the Sioux' claim on the merits. As Congress explicitly recognized, it only was providing a forum so that a new judicial review of the Black Hills claim could take place. This review was to be based on the facts found by the Court of Claims after reviewing all the evidence, and an application of generally controlling legal principles to those facts. For these reasons, Congress was not reviewing the merits of the Court of Claims' decisions, and did not interfere with the finality of its judgments. Moreover, Congress in no way attempted to prescribe the outcome of the Court of Claims' new review of the merits. That court was left completely free to reaffirm its judgment that the Black Hills claim was not cognizable under the Fifth Amendment, if upon its review of the facts and law, such a decision was warranted. n this respect, the amendment before us is a far cry from the legislatively enacted "consent judgment" called into question in Pope, yet found constitutional as a valid exercise of Congress' broad power to pay the 's debts. And, for the same reasons, this amendment |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | the 's debts. And, for the same reasons, this amendment clearly is distinguishable from the proviso to this Court's appellate jurisdiction held unconstitutional in n sum, as this Court implicitly held in Cherokee Congress' mere waiver of the res judicata effect of a prior judicial decision rejecting the validity of a legal claim against the United States does not violate the doctrine of separation of powers. V A n reaching its conclusion that the 1877 Act effected a taking of the Black Hills for which just compensation was due the Sioux under the Fifth Amendment, the Court of Claims *408 relied upon the "good faith effort" test developed in its earlier decision in Three Tribes of Fort The Fort test had been designed to reconcile two lines of cases decided by this Court that seemingly were in conflict. The first line, exemplified by Lone recognizes "that Congress possesse[s] a paramount power over the property of the ndians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the ndians." at 6. The second line, exemplified by the more recent decision in Shoshone concedes Congress' paramount power over ndian property, but holds, nonetheless, that "[t]he power does not extend so far as to enable the Government `to give the tribal lands to others, or to appropriate them to its own purposes, without rendering, or assuming an obligation to render, just '" (quoting United 29 U.S. 103, (193)). n Shoshone Tribe, Mr. Justice Cardozo, in speaking for the Court, expressed the distinction between the conflicting principles in a characteristically pithy phrase: "Spoliation is not management." The Fort test distinguishes between cases in which one or the other principle is applicable: "t is obvious that Congress cannot simultaneously (1) act as trustee for the benefit of the ndians, exercising its plenary powers over the ndians and their property, as it thinks is in their best interests, and (2) exercise its sovereign power of eminent domain, taking the ndians' property within the meaning of the Fifth Amendment to the Constitution. n any given situation in which Congress has acted with regard to ndian people, it must have acted either in one capacity or the other. Congress can own two hats, but it cannot wear them both at the same time. *409 "Some guideline must be established so that a court can identify in which capacity Congress is acting. The following guideline would best give recognition to the basic distinction between the two types of congressional action: |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | the basic distinction between the two types of congressional action: Where Congress makes a good faith effort to give the ndians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee." Applying the Fort test to the facts of this case, the Court of Claims concluded that, in passing the 1877 Act, Congress had not made a good-faith effort to give the Sioux the full value of the Black Hills. The principal issue presented by this case is whether the legal standard applied by the Court of Claims was erroneous.[26] B The Government contends that the Court of Claims erred insofar as its holding that the 1877 Act effected a taking of the Black Hills was based on Congress' failure to indicate affirmatively that the consideration given the Sioux was of *410 equivalent value to the property rights ceded to the Government. t argues that "the true rule is that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 2. The Government derives support for this rule principally from this Court's decision in Lone n Lone Wolf, representatives of the Kiowa, Comanche, and Apache Tribes brought an equitable action against the Secretary of the nterior and other governmental officials to enjoin them from enforcing the terms of an Act of Congress that called for the sale of lands held by the ndians pursuant to the Medicine Lodge Treaty of 1 Stat. 81. That treaty, like the Fort Laramie Treaty of 1868, included a provision that any future cession of reservation lands would be without validity or force "unless executed and signed by at least three fourths of all the adult male ndians occupying the same." at 8. The legislation at issue, Act of June 6, 1900, was based on an agreement with the ndians that had not been signed by the requisite number of adult males residing on the reservation. This Court's principal holding in Lone Wolf was that "the legislative power might pass laws in conflict with treaties made with the ndians." 187 U.S., at 66. The Court stated: "The power exists to abrogate the provisions of an ndian treaty, though presumably such power will be exercised only when circumstances arise which will not only justify the government in disregarding the stipulations |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | will not only justify the government in disregarding the stipulations of the treaty, but may demand, in the interest of the country and the ndians themselves, that it should do so. When, therefore, treaties were entered into between the United States and a tribe of ndians it was never doubted that the power to abrogate existed in Congress, *4 and that in a contingency such power might be availed of from considerations of governmental policy, particularly if consistent with perfect good faith towards the ndians." [27] The Court, therefore, was not required to consider the contentions of the ndians that the agreement ceding their lands had been obtained by fraud, and had not been signed by the requisite number of adult males. "[A]ll these matters, in any event, were solely within the domain of the legislative authority and its action is conclusive upon the courts." at 68. n the penultimate paragraph of the opinion, however, the Court in Lone Wolf went on to make some observations seemingly directed to the question whether the Act at issue might constitute a taking of ndian property without just The Court there stated: "The act of June 6, 1900, which is complained of in the bill, was enacted at a time when the tribal relations between the confederated tribes of Kiowas, Comanches and Apaches still existed, and that statute and the statutes supplementary thereto dealt with the disposition of tribal property and purported to give an adequate consideration for the surplus lands not allotted among the ndians or reserved for their benefit. ndeed, the controversy which this case presents is concluded by the decision in Cherokee decided at this term, where it was held that full administrative power was possessed by Congress over ndian *412 tribal property. n effect, the action of Congress now complained of was but an exercise of such power, a mere change in the form of investment of ndian tribal property, the property of those who, as we have held, were in substantial effect the wards of the government. We must presume that Congress acted in perfect good faith in the dealings with the ndians of which complaint is made, and that the legislative branch of the government exercised its best judgment in the premises. n any event, as Congress possessed full power in the matter, the judiciary cannot question or inquire into the motives which prompted the enactment of this legislation. f injury was occasioned, which we do not wish to be understood as implying, by the use made by Congress of its power, relief must be sought by |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | by Congress of its power, relief must be sought by an appeal to that body for redress and not to the courts. The legislation in question was constitutional." The Government relies on the italicized sentence in the quotation above to support its view "that Congress must be assumed to be acting within its plenary power to manage tribal assets if it reasonably can be concluded that the legislation was intended to promote the welfare of the tribe." Brief for United States 2. Several adjoining passages in the paragraph, however, lead us to doubt whether the Lone Wolf Court meant to state a general rule applicable to cases such as the one before us. First, Lone Wolf presented a situation in which Congress "purported to give an adequate consideration" for the treaty lands taken from the ndians. n fact, the Act at issue set aside for the ndians a sum certain of $2 million for surplus reservation lands surrendered to the United States. ; see 187 U.S., at n contrast, the background of the 1877 Act "reveals a situation where Congress did not `purport' to provide `adequate consideration,' nor was there * any meaningful negotiation or arm's-length bargaining, nor did Congress consider it was paying a fair price." 220 Ct. Cl., at 47, 601 F. 2d, at 76 (concurring opinion). Second, given the provisions of the Act at issue in Lone Wolf, the Court reasonably was able to conclude that "the action of Congress now complained of was but a mere change in the form of investment of ndian tribal property." Under the Act of June 6, 1900, each head of a family was to be allotted a tract of land within the reservation of not less than 320 acres, an additional 480,000 acres of grazing land were set aside for the use of the tribes in common, and $2 million was paid to the ndians for the remaining surplus. -678. n contrast, the historical background to the opening of the Black Hills for settlement, and the terms of the 1877 Act itself, see Part would not lead one to conclude that the Act effected "a mere change in the form of investment of ndian tribal property." Third, it seems significant that the views of the Court in Lone Wolf were based, in part, on a holding that "Congress possessed full power in the matter." Earlier in the opinion the Court stated: "Plenary authority over the tribal relations of the ndians has been exercised by Congress from the beginning, and the power has always been deemed a political one, not subject |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | power has always been deemed a political one, not subject to be controlled by the judicial department of the government." 187 U.S., at 6. Thus, it seems that the Court's conclusive presumption of congressional good faith was based in large measure on the idea that relations between this and the ndian tribes are a political matter, not amenable to judicial review. That view, of course, has long since been discredited in takings cases, and was expressly laid to rest in Delaware Tribal Business[28] *4 Fourth, and following up on the political question holding, the Lone Wolf opinion suggests that where the exercise of congressional power results in injury to ndian rights, "relief must be sought by an appeal to that body for redress and not to the courts." Unlike Lone Wolf, this case is one in which the Sioux have sought redress from Congress, and the Legislative Branch has responded by referring the matter to the courts for resolution. See Parts and Where Congress waives the Government's sovereign immunity, and expressly directs the courts to resolve a taking claim on the merits, there would appear to be far less reason to apply Lone Wolf's principles of deference. See United The foregoing considerations support our conclusion that the passage from Lone Wolf here relied upon by the Government has limited relevance to this More significantly, Lone Wolf's presumption of congressional good faith has little to commend it as an enduring principle for deciding questions *41 of the kind presented here. n every case where a taking of treaty-protected property is alleged,[29] a reviewing court must recognize that tribal lands are subject to Congress' power to control and manage the tribe's affairs. But the court must also be cognizant that "this power to control and manage [is] not absolute. While extending to all appropriate measures for protecting and advancing the tribe, it [is] subject to limitations inhering in a guardianship and to pertinent constitutional restrictions." United 29 U. S., at 109-. Accord: Menominee ; FPC v. Tuscarora ndian ; United States v. Klamath ndians, ; United -1 ; Shoshone As the Court of Claims recognized in its decision below, the question whether a particular measure was appropriate for protecting and advancing the tribe's interests, and therefore not subject to the constitutional command of the Just Compensation Clause, is factual in nature. The answer must be based on a consideration of all the evidence presented. We do not mean to imply that a reviewing court is to second-guess, from the perspective of hindsight, a legislative judgment that a particular measure would serve the |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | a legislative judgment that a particular measure would serve the best interests of the tribe. We do mean to require courts, in considering whether a particular congressional action was taken in pursuance of Congress' power to manage and control tribal lands *4 for the ndians' welfare, to engage in a thoroughgoing and impartial examination of the historical record. A presumption of congressional good faith cannot serve to advance such an inquiry. C We turn to the question whether the Court of Claims' inquiry in this case was guided by an appropriate legal standard. We conclude that it was. n fact, we approve that court's formulation of the inquiry as setting a standard that ought to be emulated by courts faced with resolving future cases presenting the question at issue here: "n determining whether Congress has made a good faith effort to give the ndians the full value of their lands when the government acquired [them], we therefore look to the objective facts as revealed by Acts of Congress, congressional committee reports, statements submitted to Congress by government officials, reports of special commissions appointed by Congress to treat with the ndians, and similar evidence relating to the acquisition. "The `good faith effort' and `transmutation of property' concepts referred to in Fort are opposite sides of the same coin. They reflect the traditional rule that a trustee may change the form of trust assets as long as he fairly (or in good faith) attempts to provide his ward with property of equivalent value. f he does that, he cannot be faulted if hindsight should demonstrate a lack of precise equivalence. On the other hand, if a trustee (or the government in its dealings with the ndians) does not attempt to give the ward the fair equivalent of what he acquires from him, the trustee to that extent has taken rather than transmuted the property of the ward. n other words, an essential element of the inquiry under the Fort guideline is determining the adequacy of the consideration the government gave for the ndian lands it acquired. That inquiry *417 cannot be avoided by the government's simple assertion that it acted in good faith in its dealings with the ndians." 220 Ct. Cl., at 41, 601 F. 2d, at 12.[30] D We next examine the factual findings made by the Court of Claims, which led it to the conclusion that the 1877 Act effected a taking. First, the Court found that "[t]he only item of `consideration' that possibly could be viewed as showing an attempt by Congress to give the Sioux the `full |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | an attempt by Congress to give the Sioux the `full value' of the land the government took from them was the requirement to furnish them with rations until they became self-sufficient." 220 Ct. Cl., at 48, 601 F. 2d, at This finding is fully supported by the record, and the Government does not seriously contend otherwise.[31] *418 Second, the court found, after engaging in an exhaustive review of the historical record, that neither the Manypenny Commission, nor the congressional Committees that approved the 1877 Act, nor the individual legislators who spoke on its behalf on the floor of Congress, ever indicated a belief that the Government's obligation to provide the Sioux with rations constituted a fair equivalent for the value of the Black Hills and the additional property rights the ndians were forced to *419 surrender. See at 48-2, 601 F.2d, at -18. This finding is unchallenged by the Government. A third finding lending some weight to the Court's legal conclusion was that the conditions placed by the Government on the Sioux' entitlement to rations, see n. "further show that the government's undertaking to furnish rations to the ndians until they could support themselves did not reflect a congressional decision that the value of the rations was the equivalent of the land the ndians were giving up, but instead was an attempt to coerce the Sioux into capitulating to congressional demands." 220 Ct. Cl., at 1, 601 F. 2d, at 18. We might add only that this finding is fully consistent with similar observations made by this Court nearly a century ago in an analogous n Choctaw 3 the Court held, over objections by the Government, that an earlier award made by the Senate on an ndian tribe's treaty claim "was fair, just, and equitable." The treaty at issue had called for the removal of the Choctaw from treaty-protected lands in exchange for payments for the tribe's subsistence for one year, payments for cattle and improvements on the new reservation, an annuity of $20,000 for 20 years commencing upon removal, and the provision of educational and agricultural services. Some years thereafter the Senate had awarded the ndians a substantial recovery based on the latter treaty's failure to compensate the Choctaw for the lands they had ceded. Congress later enacted a jurisdictional statute which permitted the United States to contest the fairness of the Senate's award as a settlement of the ndian's treaty claim. n rejecting the Government's arguments, and accepting the Senate's award as "furnish[ing] the nearest approximation to the justice and right of the case," at 3, this Court |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | justice and right of the case," at 3, this Court observed: "t is notorious as a historical fact, as it abundantly appears from the record in this case, that great pressure *420 had to be brought to bear upon the ndians to effect their removal, and the whole treaty was evidently and purposely executed, not so much to secure to the ndians the rights for which they had stipulated, as to effectuate the policy of the United States in regard to their removal. The most noticeable thing, upon a careful consideration of the terms of this treaty, is, that no money consideration is promised or paid for a cession of lands, the beneficial ownership of which is assumed to reside in the Choctaw and computed to amount to over ten millions of acres." As for the payments that had been made to the ndians in order to induce them to remove themselves from their treaty lands, the Court, in words we find applicable to the 1877 Act, concluded: "t is nowhere expressed in the treaty that these payments are to be made as the price of the lands ceded; and they are all only such expenditures as the government of the United States could well afford to incur for the mere purpose of executing its policy in reference to the removal of the ndians to their new homes. As a consideration for the value of the lands ceded by the treaty, they must be regarded as a meagre pittance." These conclusions, in light of the historical background to the opening of the Black Hills for settlement, see Part seem fully applicable to Congress' decision to remove the Sioux from that valuable tract of land, and to extinguish their off-reservation hunting rights. Finally, the Court of Claims rejected the Government's contention that the fact that it subsequently had spent at least $43 million on rations for the Sioux (over the course of three-quarters of a century) established that the 1877 Act was an act of guardianship taken in the Sioux' best The court concluded: "The critical inquiry is what Congress *421 didand how it viewed the obligation it was assumingat the time it acquired the land, and not how much it ultimately cost the United States to fulfill the obligation." 220 Ct. Cl., at 2, 601 F. 2d, at 18. t found no basis for believing that Congress, in 1877, anticipated that it would take the Sioux such a lengthy period of time to become self-sufficient, or that the fulfillment of the Government's obligation to feed the Sioux would entail the |
Justice Blackmun | 1,980 | 11 | majority | United States v. Sioux Nation | https://www.courtlistener.com/opinion/110335/united-states-v-sioux-nation/ | the Government's obligation to feed the Sioux would entail the large expenditures ultimately made on their behalf. We find no basis on which to question the legal standard applied by the Court of Claims, or the findings it reached, concerning Congress' decision to provide the Sioux with rations. E The aforementioned findings fully support the Court of Claims' conclusion that the 1877 Act appropriated the Black Hills "in circumstances which involved an implied undertaking by [the United States] to make just compensation to the tribe."[32]United 29 U. S., at 1. *422 We make only two additional observations about this First, dating at least from the decision in Cherokee v. Southern Kansas R. Co., 13 U.S. 641, 67 this Court has recognized that ndian lands, to which a tribe holds recognized title, "are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner." n the same decision the Court emphasized that the owner of such lands "is entitled to reasonable, certain and adequate provision for obtaining compensation before his occupancy is disturbed." at 69. The Court of Claims gave effect to this principle when it held that the Government's uncertain and indefinite obligation to provide the Sioux with rations until they became self-sufficient did not constitute adequate consideration for the Black Hills. Second, it seems readily apparent to us that the obligation to provide rations to the Sioux was undertaken in order to ensure them a means of surviving their transition from the nomadic life of the hunt to the agrarian lifestyle Congress had chosen for them. Those who have studied the Government's reservation policy during this period of our 's history agree. See n. t is important to recognize *423 that the 1877 Act, in addition to removing the Black Hills from the Great Sioux Reservation, also ceded the Sioux' hunting rights in a vast tract of land extending beyond the boundaries of that reservation. See n. Under such circumstances, it is reasonable to conclude that Congress' undertaking of an obligation to provide rations for the Sioux was a quid pro quo for depriving them of their chosen way of life, and was not intended to compensate them for the taking of the Black Hills.[33] V n sum, we conclude that the legal analysis and factual findings of the Court of Claims fully support its conclusion that the terms of the 1877 Act did not effect "a mere |
per_curiam | 1,986 | 200 | per_curiam | Newport v. Iacobucci | https://www.courtlistener.com/opinion/111776/newport-v-iacobucci/ | In 1982, the City Commission of Newport, Ky., enacted Ordinance No. 0-82-85. This ordinance prohibited nude or nearly nude dancing in local establishments licensed to sell *93 liquor for consumption on the premises.[1] A state law imposing an almost identical prohibition on nude dancing was upheld by this Court in New York State Liquor as being within the State's broad power under the Twenty-first Amendment[2] to regulate the sale of liquor within its boundaries. Respondents, proprietors of Newport liquor establishments that offered nude or nearly nude entertainment, challenged the ordinance in federal court. They contended that the ordinance deprived them of their rights under the First and Fourteenth Amendments, and they sought declaratory and injunctive relief under 42 U.S. C. 1983 against its enforcement.[3] The District Court ruled that the ordinance was constitutional, stating that it "is squarely within the doctrine *94 of Bellanca and must be upheld on that basis." App. to Pet. for Cert. 50a. A divided panel of the United States Court of Appeals for the Sixth Circuit reversed that judgment. It found the decision in Bellanca inapplicable because in Kentucky local voters, rather than the city or the Commonwealth, determine whether alcohol may be sold. Pursuant to the authority granted by the Commonwealth's Constitution,[4] Kentucky expressly authorizes a city to conduct a popular election on a question of local prohibition when a specified proportion of qualified voters petition for such an election. See Ky. Rev. Stat. 242.010-242.990 Noting this Court's statement in Bellanca that "[t]he State's power to ban the sale of alcoholic beverages entirely includes the lesser power to ban the sale of liquor on premises where topless dancing occurs," the Court of Appeals' majority nevertheless concluded that the ordinance could not be justified under the broad authority bestowed by the Twenty-first Amendment. It stated that this case does not fall within the Bellanca "doctrine" or "rationale" because the city "cannot exercise in part a power it does not hold in full." The court remanded the case for a determination, among other things, of the city's authority to enact the ordinance under its police power. The dissenting judge argued that the majority read Bellanca too narrowly, and he contended that the city is not restricted solely to the exercise of the police power to regulate the liquor industry. We agree with the dissent's conclusion that this case is controlled by Bellanca, and we therefore reverse. The reach of *95 the Twenty-first Amendment is certainly not without limit,[5] but previous decisions of this Court have established that, in the context of liquor licensing, the Amendment confers |
per_curiam | 1,986 | 200 | per_curiam | Newport v. Iacobucci | https://www.courtlistener.com/opinion/111776/newport-v-iacobucci/ | that, in the context of liquor licensing, the Amendment confers broad regulatory powers on the States. "While the States, vested as they are with general police power, require no specific grant of authority in the Federal Constitution to legislate with respect to matters traditionally within the scope of the police power, the broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals." This regulatory authority includes the power to ban nude dancing as part of a liquor license control program. "In we concluded that the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and that a State could therefore ban such dancing as a part of its liquor license program." In Bellanca, the Court upheld a state statute imposing just such a ban. The Court of Appeals misperceived this broad base for the ruling in Bellanca and seized upon a single sentence, characterizing it as the "doctrine" or "rationale" of Bellanca. Because a Kentucky city cannot ban the sale of alcohol without election approval, the court concluded that it similarly cannot *96 regulate nude dancing in bars. In holding that a State "has broad power to regulate the times, places, and circumstances under which liquor may be sold," Bellanca, this Court has never attached any constitutional significance to a State's division of its authority over alcohol. The Twenty-first Amendment has given broad power to the States and generally they may delegate this power as they see fit.[6] There is certainly no constitutional requirement that the same governmental unit must grant liquor licenses, revoke licenses, and regulate the circumstances under which liquor may be sold. Indeed, while Kentucky provides that the question of local prohibition is to be decided by popular election, the parties are in agreement that the city is vested with the power to revoke a liquor license upon a finding of a violation of state law, a state liquor regulation, or a city ordinance. See Brief in Opposition 7. Yet, the rationale of the opinion of the Court of Appeals implies that, because of the Kentucky Constitution, neither the State nor the city may revoke a liquor license under the authority of the Twenty-first Amendment. Only a strained reading of Bellanca would require each licensing decision to be made by plebiscite. Moreover, there is no statutory provision that gives the voters direct authority, once the sale of alcohol is permitted, to determine the manner of regulation. Thus, if |
per_curiam | 1,986 | 200 | per_curiam | Newport v. Iacobucci | https://www.courtlistener.com/opinion/111776/newport-v-iacobucci/ | is permitted, to determine the manner of regulation. Thus, if respondents were to prevail in their argument that only voters can ban nudity because only voters have the authority to ban the sale of alcohol, it is possible that nude dancing in bars would be immune from any regulation. The Newport City Commission, in the preamble to the ordinance, determined that nude dancing in establishments serving liquor was "injurious to the citizens" of the city. It found the ordinance necessary to a range of purposes, including "prevent[ing] blight and the deterioration of the City's neighborhoods" *97 and "decreas[ing] the incidence of crime, disorderly conduct and juvenile delinquency." See "Given the added presumption in favor of the validity of the regulation in this area that the Twenty-first Amendment requires," -119, it is plain that, as in Bellanca, the interest in maintaining order outweighs the interest in free expression by dancing nude. The fact that the Commonwealth of Kentucky has delegated one portion of its power under the Twenty-first Amendment to the electorate the power to decide if liquor may be served in local establishments does not differentiate this case from Bellanca. The petition for certiorari is granted, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE SCALIA would grant the petition for a writ of certiorari and set the case for oral argument. JUSTICE MARSHALL dissents from this summary disposition, which has been ordered without affording the parties prior notice or an opportunity to file briefs on the merits. See, e. g., |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | The federal priority statute, 31 U.S. C. 3713, accords first priority to the United States with respect to a bankrupt debtor's obligations. An Ohio statute confers only fifth priority upon claims of the United States in proceedings to liquidate an insolvent insurance company. Ohio Rev. Code Ann. 3903.42 The federal priority statute preempts the inconsistent Ohio law unless the latter is exempt from pre-emption under the McCarran-Ferguson Act, as amended, 15 U.S. C. 1011 et seq. In order to resolve this case, we must decide whether a state statute establishing the priority of creditors' claims in a proceeding to liquidate an insolvent insurance company is a law enacted "for the purpose of regulating the business of insurance," within the meaning of 2(b) of the McCarran-Ferguson Act, 15 U.S. C. 1012(b). We hold that the Ohio priority statute escapes preemption to the extent that it protects policyholders. Accordingly, Ohio may effectively afford priority, over claims of the United States, to the insurance claims of policyholders and to the costs and expenses of administering the liquidation. *494 But when Ohio attempts to rank other categories of claims above those pressed by the United States, it is not free from federal pre-emption under the McCarran-Ferguson Act. I The Ohio priority statute was enacted as part of a complex and specialized administrative structure for the regulation of insurance companies from inception to dissolution. The statute proclaims, as its purpose, "the protection of the interests of insureds, claimants, creditors, and the public generally." 3903.02(D). Chapter 3903 broadly empowers the State's Superintendent of Insurance to place a financially impaired insurance company under his supervision, or into rehabilitation, or into liquidation. The last is authorized when the superintendent finds that the insurer is insolvent, that placement in supervision or rehabilitation would be futile, and that "further transaction of business would be hazardous, financially or otherwise, to [the insurer's] policyholders, its creditors, or the public." 3903.17(C). As liquidator, the superintendent is entitled to take title to all assets, 3903.18(A); to collect and invest moneys due the insurer, 3903.21(A)(6); to continue to prosecute and commence in the name of the insurer any and all suits and other legal proceedings, 3903.21(A)(12); to collect reinsurance and unearned premiums due the insurer, 3903.32 and 3903.33; to evaluate all claims against the estate, 3903.43; and to make payments to claimants to the extent possible, 3903.44. It seems fair to say that the effect of all this is to empower the liquidator to continue to operate the insurance company in all ways but onethe issuance of new policies. Pursuant to this statutory framework, the |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | issuance of new policies. Pursuant to this statutory framework, the Court of Common Pleas for Franklin County, Ohio, on April 30, 1986, declared American gists' Insurance Company insolvent. The court directed that the company be liquidated, and it appointed respondent, Ohio's Superintendent of Insurance, to serve as liquidator. The United States, as obligee *495 on various immigration, appearance, performance, and payment bonds issued by the company as surety, filed claims in excess of $10.7 million in the state liquidation proceedings. The United States asserted that its claims were entitled to first priority under the federal statute, 31 U.S. C. 3713(a)(1)(A)(iii), which provides: "A claim of the United States Government shall be paid first when a person indebted to the Government is insolvent and an act of bankruptcy is committed."[1] Respondent Superintendent brought a declaratory judgment action in the United States District Court for the Southern District of Ohio seeking to establish that the federal priority statute does not pre-empt the Ohio law designating the priority of creditors' claims in insuranceliquidation proceedings. Under the Ohio statute, as noted above, claims of federal, state, and local governments are entitled only to fifth priority, ranking behind (1) administrative expenses, (2) specified wage claims, (3) policyholders' claims, and (4) claims of general creditors. 3903.42.[2]*496 Respondent argued that the Ohio priority scheme, rather than the federal priority statute, governs the priority of claims of the United States because it falls within the antipre-emption *497 provisions of the McCarran-Ferguson Act, 15 U.S. C. 1012.[3] The District Court granted summary judgment for the United States. Relying upon the tripartite standard for divining what constitutes the "business of insurance," as articulated in Union Labor Life Ins. the court considered three factors: "`first, whether the practice has the effect of transferring or spreading a policyholder's risk; second, whether the practice is an integral part of the policy relationship between the insurer and the insured; and third, whether the practice is limited to entities within the insurance *498 industry.'" App. to Pet. for Cert. 36a (quoting ). Reasoning that the liquidation of an insolvent insurer possesses none of these attributes, the court concluded that the Ohio priority statute does not involve the "business of insurance." App. to Pet. for Cert. 45a. A divided Court of Appeals reversed. The court held that the Ohio priority scheme regulates the "business of insurance" because it protects the interests of the insured. Applying the court determined that the Ohio statute (1) transfers and spreads the risk of insurer insolvency; (2) involves an integral part of the policy relationship because it is designed to maintain |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | of the policy relationship because it is designed to maintain the reliability of the insurance contract; and (3) focuses upon the protection of policyholders by diverting the scarce resources of the liquidating entity away from other creditors. -352.[4] Relying upon the same test to reach a different result, one judge dissented. He reasoned that the liquidation of insolvent insurers is not a part of the "business of insurance" because it (1) has nothing to do with the transfer of risk between insurer and insured that is effected by means of the insurance contract and that is complete at the time the contract is entered; (2) does not address the relationship between insurer and the insured, but the relationship among those left at the demise of the insurer; and (3) is not confined to policyholders, but governs the rights of all creditors. We granted certiorari, to resolve the conflict among the Courts of Appeals on the question whether a state statute governing the priority of claims *499 against an insolvent insurer is a "law enacted for the purpose of regulating the business of insurance," within the meaning of 2(b) of the McCarran-Ferguson Act.[5] II The McCarran-Ferguson Act was enacted in response to this Court's decision in United Prior to that decision, it had been assumed that "[i]ssuing a policy of insurance is not a transaction of commerce," subject to federal regulation. Accordingly, "the States enjoyed a virtually exclusive domain over the insurance industry." St. Paul Fire & Marine Ins. The emergence of an interconnected and interdependent national economy, however, prompted a more expansive jurisprudential image of interstate commerce. In the intervening years, for example, the Court held that interstate commerce encompasses the movement of lottery tickets from State to State, Lottery Case, the transport of five quarts of whiskey across state lines in a private automobile, United and the transmission of an electrical impulse over a wire between Alabama and Florida, Pensacola Telegraph It was not long before the Court was forced to come to terms with these decisions in the insurance context. Thus, in South-Eastern Underwriters, it held that an insurance company that conducted a substantial part of its business across state lines was engaged in interstate commerce and thereby was subject to the antitrust This result, naturally, was widely perceived as a threat to state power to tax and regulate the *500 insurance industry. To allay those fears, Congress moved quickly to restore the supremacy of the States in the realm of insurance regulation. It enacted the McCarran-Ferguson Act within a year of the decision in South-Eastern Underwriters. The |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | within a year of the decision in South-Eastern Underwriters. The first section of the McCarran-Ferguson Act makes its mission very clear: "Congress hereby declares that the continued regulation and taxation by the several States of the business of insurance is in the public interest, and that silence on the part of the Congress shall not be construed to impose any barrier to the regulation or taxation of such business by the several States." 15 U.S. C. 1011. Shortly after passage of the Act, the Court observed: "Obviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance." Prudential Ins. Congress achieved this purpose in two ways. The first "was by removing obstructions which might be thought to flow from [Congress'] own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation." at -430. The second "was by declaring expressly and affirmatively that continued state regulation and taxation of this business is in the public interest and that the business and all who engage in it `shall be subject to' the laws of the several states in these respects." III "[T]he starting point in a case involving construction of the McCarran-Ferguson Act, like the starting point in any case involving the meaning of a statute, is the language of the statute itself." Group Life & Health Ins. Section 2(b) of the McCarran-Ferguson Act provides: "No Act of Congress shall be construed to invalidate, impair, or supersede any law enacted by any State for the purpose of regulating the business *501 of insurance unless such Act specifically relates to the business of insurance." 15 U.S. C. 1012(b). The parties agree that application of the federal priority statute would "invalidate, impair, or supersede" the Ohio priority scheme and that the federal priority statute does not "specifically relat[e] to the business of insurance." All that is left for us to determine, therefore, is whether the Ohio priority statute is a law enacted "for the purpose of regulating the business of insurance." This Court has had occasion to construe this phrase only once. On that occasion, it observed: "Statutes aimed at protecting or regulating this relationship [between insurer and insured], directly or indirectly, are laws regulating the `business of insurance,'" within the meaning of the phrase. The opinion emphasized that the focus of McCarran-Ferguson is upon the relationship between the insurance company and its policyholders: "The relationship between insurer and insured, the type of policy which could be issued, its reliability, interpretation, and enforcementthese were |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | which could be issued, its reliability, interpretation, and enforcementthese were the core of the `business of insurance.' Undoubtedly, other activities of insurance companies relate so closely to their status as reliable insurers that they too must be placed in the same class. But whatever the exact scope of the statutory term, it is clear where the focus wasit was on the relationship between the insurance company and the policyholder." In that case, two Arizona insurance companies merged and received approval from the Arizona Director of Insurance, as required by state law. The Securities and Exchange Commission sued to rescind the merger, alleging that the merger-solicitation papers contained material misstatements, in violation of federal law. This Court held that, insofar as the Arizona law was an attempt to protect the interests *502 of an insurance company's shareholders, it did not fall within the scope of the McCarran-Ferguson Act. The Arizona statute, however, also required the Director, before granting approval, to make sure that the proposed merger "would not `substantially reduce the security of and service to be rendered to policyholders.'" The Court observed that this section of the statute "clearly relates to the `business of insurance.'" But because the "paramount federal interest in protecting shareholders [was] perfectly compatible with the paramount state interest in protecting policyholders," the Arizona statute did not preclude application of the federal securities In the present case, on the other hand, there is a direct conflict between the federal priority statute and Ohio law. Under the terms of the McCarran-Ferguson Act, 15 U.S. C. 1012(b), therefore, federal law must yield to the extent the Ohio statute furthers the interests of policyholders. Minimizing the analysis of National Securities, petitioners invoke Royal and in support of their argument that the liquidation of an insolvent insurance company is not part of the "business of insurance" exempt from pre-emption under the McCarran-Ferguson Act. Those cases identified the three criteria, noted above, that are relevant in determining what activities constitute the "business of insurance." See Petitioners argue that the Ohio priority statute satisfies none of these criteria. According to petitioners, the Ohio statute merely determines the order in which creditors' claims will be paid, and has nothing to do with the transfer of risk from insured to insurer. Petitioners also contend that the Ohio statute is not an integral part of the policy relationship between insurer and insured and is not limited to entities within the insurance industry because it addresses only the relationship between policyholders and other creditors of the defunct corporation. To be sure, the Ohio statute does not directly |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | corporation. To be sure, the Ohio statute does not directly regulate the "business of insurance" by prescribing the terms of the *503 insurance contract or by setting the rate charged by the insurance company. But we do not read to suggest that the business of insurance is confined entirely to the writing of insurance contracts, as opposed to their performance. and Royal held only that "ancillary activities" that do not affect performance of the insurance contract or enforcement of contractual obligations do not enjoy the antitrust exemption for laws regulating the "business of insurance." n. 8. In we held that use of a peer review committee to advise the insurer as to whether charges for chiropractic services were reasonable and necessary was not part of the business of insurance. The peer review practice at issue in that case had nothing to do with whether the insurance contract was performed; it dealt only with calculating what fell within the scope of the contract's coverage. We found the peer review process to be "a matter of indifference to the policyholder, whose only concern is whether his claim is paid, not why it is paid" (emphases in original). Similarly, in Royal we held that an insurer's agreements with participating pharmacies to provide benefits to policyholders was not part of the business of insurance. "The benefit promised to Blue Shield policyholders is that their premiums will cover the cost of prescription drugs except for a $2 charge for each prescription. So long as that promise is kept, policyholders are basically unconcerned with arrangements made between Blue Shield and participating pharmacies." -214 There can be no doubt that the actual performance of an insurance contract falls within the "business of insurance," as we understood that phrase in and Royal To hold otherwise would be mere formalism. The Court's statement in that the "transfer of risk from insured to insurer is effected by means of the contract between the parties and is complete at the time that the contract is entered," 458 U.S., presumes that the insurance *504 contract in fact will be enforced. Without performance of the terms of the insurance policy, there is no risk transfer at all. Moreover, performance of an insurance contract also satisfies the remaining prongs of the test: It is central to the policy relationship between insurer and insured and is confined entirely to entities within the insurance industry. The Ohio priority statute is designed to carry out the enforcement of insurance contracts by ensuring the payment of policyholders' claims despite the insurance company's intervening bankruptcy. Because it is integrally |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | despite the insurance company's intervening bankruptcy. Because it is integrally related to the performance of insurance contracts after bankruptcy, Ohio's law is one "enacted by any State for the purpose of regulating the business of insurance." 15 U.S. C. 1012(b). Both Royal and moreover, involved the scope of the antitrust immunity located in the second clause of 2(b). We deal here with the first clause, which is not so narrowly circumscribed. The language of 2(b) is unambiguous: The first clause commits laws "enacted for the purpose of regulating the business of insurance" to the States, while the second clause exempts only "the business of insurance" itself from the antitrust To equate laws "enacted for the purpose of regulating the business of insurance" with the "business of insurance" itself, as petitioners urge us to do, would be to read words out of the statute. This we refuse to do.[6] *505 The broad category of laws enacted "for the purpose of regulating the business of insurance" consists of laws that possess the "end, intention, or aim" of adjusting, managing, or controlling the business of insurance. Black's Law Dictionary 1236, 1286 (6th ed. 1990). This category necessarily encompasses more than just the "business of insurance." For the reasons expressed above, we believe that the actual performance of an insurance contract is an essential part of the "business of insurance." Because the Ohio statute is "aimed at protecting or regulating" the performance of an insurance contract, National Securities, 393 U. S., at it follows that it is a law "enacted for the purpose of regulating the business of insurance," within the meaning of the first clause of 2(b). Our plain reading of the McCarran-Ferguson Act also comports with the statute's purpose. As was stated in Royal the first clause of 2(b) was intended to further Congress' primary objective of granting the States broad regulatory authority over the business of insurance. The second clause accomplishes Congress' secondary goal, which was to carve out only a narrow exemption for "the business of insurance" from the federal antitrust n. 18. Cf. D. Howard, Uncle Sam versus the Insurance Commissioners: A Multi-Level Approach to Defining the "Business of Insurance" Under the McCarran-Ferguson Act, ; Note, The Definition of "Business of Insurance" Under the McCarran-Ferguson Act After Royal Petitioners, however, also contend that the Ohio statute is not an insurance law but a bankruptcy law because it comes into play only when the insurance company has become insolvent and is in liquidation, at which point the insurance company no longer exists. We disagree. The primary purpose of a statute |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | longer exists. We disagree. The primary purpose of a statute that distributes the insolvent insurer's assets to *506 policyholders in preference to other creditors is identical to the primary purpose of the insurance company itself: the payment of claims made against policies. And "mere matters of form need not detain us." National Securities, 393 U. S., at The Ohio statute is enacted "for the purpose of regulating the business of insurance" to the extent that it serves to ensure that, if possible, policyholders ultimately will receive payment on their claims. That the policyholder has become a creditor and the insurer a debtor is not relevant. IV Finding little support in the plain language of the statute, petitioners resort to its legislative history. Petitioners rely principally upon a single statement in a House Report: "It is not the intention of Congress in the enactment of this legislation to clothe the States with any power to regulate or tax the business of insurance beyond that which they had been held to possess prior to the decision of the United States Supreme Court in the Southeastern Underwriters Association case." H. R. Rep. No. 143, 79th Cong., 1st Sess., 3 From this statement, petitioners argue that the McCarranFerguson Act was an attempt to "turn back the clock" to the time prior to South-Eastern Underwriters. At that time, petitioners maintain, the federal priority statute would have superseded any inconsistent state law. Even if we accept petitioners' premise, the state of the law prior to South-Eastern Underwriters is far from clear. Petitioners base their argument upon United which involved the use and disposition of funds placed with the Florida treasurer as a condition of an insurer's conducting business in the State. According to petitioners, Knott stands for the proposition that the federal priority statute pre-empted inconsistent state laws even before South-Eastern Underwriters. But this proffered analogy to Knott unravels upon closer inspection. In that case, *507 the Court applied the federal priority statute only when the State had not specifically legislated the priority of claims. -550 ("But it is settled that an inchoate lien is not enough to defeat the [Federal Government's] priority Unless the law of Florida effected either a transfer of title from the company, or a specific perfected lien in favor of the Florida creditors, the United States is entitled to priority"). Moreover, other cases issued at the same time reached a different result. See, e. g., More importantly, petitioners' interpretation of the statute is at odds with its plain language. The McCarran-Ferguson Act did not simply overrule South-Eastern Underwriters and restore the |
Justice Blackmun | 1,993 | 11 | majority | Department of Treasury v. Fabe | https://www.courtlistener.com/opinion/112880/department-of-treasury-v-fabe/ | Act did not simply overrule South-Eastern Underwriters and restore the status quo. To the contrary, it transformed the legal landscape by overturning the normal rules of preemption. Ordinarily, a federal law supersedes any inconsistent state law. The first clause of 2(b) reverses this by imposing what is, in effect, a clear-statement rule, a rule that state laws enacted "for the purpose of regulating the business of insurance" do not yield to conflicting federal statutes unless a federal statute specifically requires otherwise. That Congress understood the effect of its language becomes apparent when we examine other parts of the legislative history.[7] The second clause of 2(b) also broke new ground: It *508 "embod[ied] a legislative rejection of the concept that the insurance industry is outside the scope of the antitrust lawsa concept that had prevailed before the South-Eastern Underwriters decision." Royal Petitioners' argument appears to find its origin in the Court's statement in National Securities that "[t]he McCarran-Ferguson Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." The Court was referring to the primary purpose underlying the Act, namely, to restore to the States broad authority to tax and regulate the insurance industry. Petitioners would extrapolate from this general statement an invitation to engage in a detailed point-by-point comparison between the regime created by McCarran-Ferguson and the one that existed before. But it is impossible to compare our present world to the one that existed at a time when the business of insurance was believed to be beyond the reach of Congress' power under the Commerce Clause. V We hold that the Ohio priority statute, to the extent that it regulates policyholders, is a law enacted for the purpose of regulating the business of insurance. To the extent that it is designed to further the interests of other creditors, however, it is not a law enacted for the purpose of regulating the business of insurance. Of course, every preference accorded to the creditors of an insolvent insurer ultimately may redound to the benefit of policyholders by enhancing the reliability of the insurance company. This argument, however, goes too far: "But in that sense, every business decision made by an insurance company has some impact on its reliability. and its status as a reliable insurer." Royal -217. Royal rejected the notion that such *509 indirect effects are sufficient for a state law to avoid preemption under the McCarran-Ferguson Act.[8] We also hold that the preference accorded by Ohio to the expenses of administering |
Justice Stevens | 1,988 | 16 | second_dissenting | Pennsylvania v. Bruder | https://www.courtlistener.com/opinion/112152/pennsylvania-v-bruder/ | The Court explains why it reverses the decision of the Superior Court of Pennsylvania in this drunken driving case, but it does not explain why it granted certiorari. In the Court concluded that Miranda warnings are not required during a traffic stop unless the citizen is taken into custody; that there is no bright-line rule for determining when detentions short of formal arrest constitute custody; and that "the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation," The rule applied in Pennsylvania is strikingly similar to this Court's statement in Berkemer. As the Pennsylvania Superior Court explained in this case: "In Pennsylvania, `custodial interrogation does not require that police make a formal arrest, nor that the police intend to make an arrest. Rather, the test of custodial interrogation is whether the individual being interrogated reasonably believes his freedom of action is being restricted.' "In the Pennsylvania Supreme Court ruled that the driver of a car involved in an accident who was suspected of driving under the influence of alcohol and who was told by police to wait at the scene until additional police arrived was in custody for *13 purposes of Miranda. The Meyer court reasoned that because the defendant had a reasonable belief that his freedom of action had been restricted, statements elicited before he received his Miranda warnings should have been 488 Pa. at" In its Berkemer opinion, this Court cited the Pennsylvania Supreme Court's opinion in with n. 34. Thus, there appears to be no significant difference between the rule of law that is generally applied to traffic stops in Pennsylvania and the rule that this Court would approve in other States. There is, however, a difference of opinion on the question whether the rule was correctly applied in this case. The Superior Court of Pennsylvania was divided on the issue. See It was therefore quite appropriate for the prosecutor to seek review in the Supreme Court of Pennsylvania. That court summarily denied review without opinion. See That action was quite appropriate for the highest court of a large State like Pennsylvania because such a court is obviously much too busy to review every arguable misapplication of settled law in cases of this kind. For reasons that are unclear to me, however, this Court seems to welcome the opportunity to perform an error-correcting function in cases that do not merit the attention of the highest court of a sovereign State. See, e. g., ; Although there are cases in which "there are special and important reasons" for correcting an |
Justice Stevens | 1,988 | 16 | second_dissenting | Pennsylvania v. Bruder | https://www.courtlistener.com/opinion/112152/pennsylvania-v-bruder/ | which "there are special and important reasons" for correcting an error that is committed by another court, see this Court's Rule 17.1, this surely is not such a case. The Court does not suggest that this case involves an *14 important and unsettled question of federal law or that there is confusion among the state and federal courts concerning what legal rules govern the application of Miranda to ordinary traffic stops. Rather, the Court simply holds that the Superior Court of Pennsylvania misapplied our decision in Berkemer to "[t]he facts in this record." Ante, at 11. In my judgment this Court's scarce resources would be far better spent addressing cases that are of some general importance "beyond the facts and parties involved," than in our acting as "self-appointed supervisors of the administration of justice in the state judicial systems," Accordingly, because I would not disturb the decision of the Supreme Court of Pennsylvania which, incidentally, is the court to which the petitioner asks us to direct the writ of certiorari I respectfully dissent. |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may *4 be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by the Supreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal. I On August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled "An Act to protect unborn children and maternal health within present constitutional limits." The Act, Mass. Acts and Resolves 1974, c. 706, 1, amended Mass. Gen. Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding 12H through 12R.[1] Section 12P provides: "(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior *5 court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother. "If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient. "(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files. "Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R." All nonemergency abortions are made subject to the provisions of 12P by 12N.[2] Violations of 12N are *6 punishable under 12Q by a fine of not less than $100 |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | under 12Q by a fine of not less than $100 nor more than $2,000.[3] Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.[4] II On October 30, 1974, one day prior to the effective date of the Act,[5] plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U.S. C. 43 (3), 31, and 2201, and 42 U.S. C. 1983, and claiming that 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U.S. C. 2281 and 2284. On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of 12P, and accepting the request for a three-judge court.[6] Record Doc. 2. *7 The plaintiffs, and the they purported to represent, are: 1. William Baird, a citizen of New York. 2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 43. 3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents.[7] at 16-18, 19-22. The Moes claimed to represent all pregnant minors capable *8 of, and willing to give, informed consent to an abortion, but who decline to seek the consent of both parents, as required by 12P. App. 43. 4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth. Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated.[8] App. 24. On November appellants filed a "Motion to dismiss and/or for summary judgment," arguing, inter alia, that the District Court "should abstain from deciding any issue in this case." In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that 12P, particularly in view of its judicial-review provision, "was *9 susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question." Record Doc. 5, p. 12. They cited Railroad and Lake Carriers' for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained. The District Court held hearings on the motion for a preliminary injunction; these were later merged into the trial on the merits. It received testimony from various experts and from parties to the case, including Mary Moe I. On April 28, the three-judge District Court, by a divided vote, handed down a decision holding 12P unconstitutional and void. An order was entered declaring 12P "and such other portions of the chapter [112] insofar as they make specific reference thereto" void, and enjoining the defendants from enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34. The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and Parents Aid had standing to challenge the operation of the statute, individually and as representatives of their proposed -852,[9] and that the intervenor-appellant had standing to represent the interests of parents of unmarried minor women of childbearing age, It found that "a substantial number of females under the age of 18 are capable of forming a valid consent," and viewed the overall question as "whether the state can be permitted *140 to restrain the free exercise of that consent, to the extent that it has endeavored to do so." In regard to the meaning of 12P, the majority made the following comments: "1. The statute does not purport to require simply that parents be notified and given an opportunity to communicate with the minor, her chosen physician, or others. We mention this obvious fact because of the persistence of defendants and intervenor in arguing that the legislature could properly enact such a statute. Whether it |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | the legislature could properly enact such a statute. Whether it could is not before us, and there is no reason for our considering it. "2. The statute does not exclude those capable of forming an intelligent consent, but applies to all minors. The statute's provision calling for the minor's own consent recognizes that at least some minors can consent, but the minor's consent must be supplemented in every case, either by the consent of both parents, or by a court order. "4. The statute does not purport simply to provide a check on the validity of the minor's consent and the wisdom of her decision from the standpoint of her interests alone. Rather, it recognizes and provides rights in both parents, independent of, and hence potentially at variance with, her own personal interests." 393 F. Supp., "The dissent is seemingly of the opinion that a reviewing Superior Court Judge would consider only the interests of the minor. We find no room in the statute for so limited an interpretation." n. 10. "The parents not only must be consulted, they are given a veto." The majority observed that " `neither the Fourteenth *141 Amendment nor the Bill of Rights is for adults alone,' In re Gault, 1967," ib and, accordingly, held that the State cannot control a minor's abortion in the first trimester any more than it can control that of an adult. Re-emphasizing that "the statute is cast not in terms of protecting the minor but in recognizing independent rights of parents," the majority concluded that "[t]he question comes, accordingly, do parents possess, apart from right to counsel and guide, competing rights of their own?" The majority found that in the instant situation, unlike others, the parents' interests often are adverse to those of the minor and, specifically rejecting the contrary result in Planned Parenthood of Central 392 F. Supp. 62 see ante, p. 52, concluded: "But even if it should be found that parents may have rights of a Constitutional dimension vis-a-vis their child that are separate from the child's, we would find that in the present area the individual rights of the minor outweigh the rights of the parents, and must be protected." The dissent argued that the parents of Mary Moe I, by not being informed of the action or joined as parties, "have been deprived of their legal rights without due process of law," ib that the majority erred in refusing to appoint a guardian ad litem for Moe I, and that it erred in finding that she had the capacity to give a valid and |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | that she had the capacity to give a valid and informed consent to an abortion. The dissent further argued that parents possess constitutionally cognizable rights in guiding the upbringing of their children, and that the statute is a proper exercise of state power in protection of those parental rights. Most important, however, the dissent's view of the *142 statute differed markedly from the interpretation adopted by the majority. The dissent stated: "I find, therefore, no conceivable constitutional objection to legislation providing in the case of a pregnant minor an additional condition designed to make certain that she receive parental or judicial guidance and counselling before having the abortion. The requirement of consent of both parents[[*]] ensures that both parents will provide counselling and guidance, each according to his or her best judgment. The statute expressly provides that the parents' refusal to consent is not final. The statute expressly gives the state courts the right to make a final determination. If the state courts find that the minor is mature enough to give an informed consent to the abortion and that she has been adequately informed about the nature of an abortion and its probable consequences to her, then we must assume that the courts will enter the necessary order permitting her to exercise her constitutional right to the abortion." The indicated footnote reads: "The majority speculate concerning possible interpretations of the `for good cause shown' language. There is also some doubt whether the statute requires consent of one or both parents. The construction of the statute is a matter of state law. If the majority believe the only constitutional infirmities arise from their interpretation of the statute, the majority should certify questions of state law to the Supreme Judicial Court of Massachusetts pursuant to Rule 3:21 of that court in order to receive a definitive interpretation of the statute." n. 15. *143 Both appellants and intervenor-appellant appealed. We noted probable jurisdiction of each appeal and set the cases for oral argument with Planned Parenthood of Central ante, p. 52, and its companion cross-appeal. III Appellants and intervenor-appellant attack the District Court's majority decision on a number of grounds. They argue, inter alia, and each in their or her own way, that 12P properly preserves the primacy of the family unit by reinforcing the role of parents in fundamental decisions affecting family members; that the District Court erred in failing to join Moe I's parents; that it abused its discretion by failing to appoint a guardian ad litem; and that it erred in finding the statute facially invalid when it was |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | erred in finding the statute facially invalid when it was capable of a construction that would withstand constitutional analysis. The interpretation placed on the statute by appellants in this Court is of some importance and merits attention, for they are the officials charged with enforcement of the statute.[10] *144 Appellants assert, first, that under the statute parental consent may not be refused on the basis of concerns exclusively of the parent. Indeed, "the `competing' parental right consists exclusively of the right to assess independently, for their minor child, what will serve that child's best interest. [I]n operation, the parents' actual deliberation must range no further than would that of a pregnant adult making her own abortion decision." Brief for Appellants 23. And the superior court's review will ensure that parental objection based upon other considerations will not operate to bar the minor's abortion. See also Brief for Intervenor-Appellant 26. Second, appellants argue that the last paragraph of 12P[11] preserves the "mature minor" rule in Massachusetts, under which a child determined by a court to be capable of giving informed consent will be allowed to do so. Appellants argue that under this rule a pregnant minor could file a complaint in superior court seeking authorization for an abortion, and, "[i]mportantly, such a complaint could be filed regardless of whether the parents had been consulted or had withheld their consent." Brief for Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the intervenor-appellant assert that the procedure employed would be structured *145 so as to be speedy and nonburdensome, and would ensure anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26. Finally, appellants argue that under 12P, a judge of the superior court may permit an abortion without parental consent for a minor incapable of rendering informed consent, provided that there is "good cause shown." Brief for Appellants 38. "Good cause" includes a showing that the abortion is in the minor's best interests. The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a "parental veto."[12] Appellees, however, on their part, take an entirely |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | "parental veto."[12] Appellees, however, on their part, take an entirely different view of the statute. They argue that the statute *146 creates a right to a parental veto,[] that it creates an irrebuttable presumption that a minor is incapable of informed consent,[14] and that the statute does not permit abortion without parental consent in the case of a mature minor or, in the case of a minor incapable of giving consent, where the parents are irrationally opposed to abortion.[15] Appellees specifically object to abstention. Their objection is based upon their opinion that "the statute gives to parents of minors an unbridled veto," Brief for Appellees 49, and that once that veto is exercised, the minor has the burden of proving to the superior court judge that "good cause" exists. They view the "good cause" hearing as forcing the judge to choose "between the privacy rights of the young woman and the rights of the parents as established by the statute." Assuming that "good cause" has a broader meaning, appellees argue that the hearing itself makes the statute unconstitutional, because of the burden it imposes and the delay it entails. IV In deciding this case, we need go no further than the claim that the District Court should have abstained pending construction of the statute by the Massachusetts courts. As we have held on numerous occasions, abstention *147 is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary "which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem." See also Colorado River Cons. 8-814 ; ; ; Lake Carriers' 406 U. S., at ; ; Railroad We do not accept appellees' assertion that the Supreme Judicial Court of Massachusetts inevitably will interpret the statute so as to create a "parental veto," require the superior court to act other than in the best interests of the minor, or impose undue burdens upon a minor capable of giving an informed consent. In Planned Parenthood of Central we today struck down a statute that created a parental veto. Ante, at 72-75. At the same time, however, we held that a requirement of written consent on the part of a pregnant adult is not unconstitutional unless it unduly burdens the right to seek an abortion. In this case, we are concerned with a statute directed toward minors, as to whom there are unquestionably greater risks of inability to give an informed consent. Without holding that a requirement of a court hearing would not unduly burden |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | a requirement of a court hearing would not unduly burden the rights of a mature adult, cf. we think it clear that in the instant litigation adoption of appellants' interpretation would "at least materially change the nature of the problem" that appellants claim is presented. 360 U. S., at Whether the Supreme Judicial Court will so interpret *148 the statute, or whether it will interpret the statute to require consideration of factors not mentioned above, impose burdens more serious than those suggested, or create some unanticipated interference with the doctor-patient relationship, we cannot now determine.[16] Nor need we determine what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome. It is sufficient that the statute is susceptible of the interpretation offered by appellants, and we so find, and that such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute, as it clearly would. Indeed, in the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented. Appellees also raise, however, a claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion, and the consent required in regard to other medical procedures. This issue has come to the fore through the advent of a Massachusetts statute, enacted subsequent to the decision of the District Court, dealing with consent by minors to medical procedures other than abortion and sterilization.[17] As *149 we hold today in Planned Parenthood, however, not all distinction between abortion and other procedures is forbidden. Ante, at 80-81. The constitutionality of such *150 distinction will depend upon its degree and the justification for it. The constitutional issue cannot now be defined, however, for the degree of distinction between the consent procedure for abortions and the consent procedures for other medical procedures cannot be established until the nature of the consent required for abortions is established. In these circumstances, the federal court should stay its hand to the same extent as in a challenge directly to the burdens created by the statute. Finally, we note that the Supreme Judicial Court of Massachusetts has adopted a Rule of Court under which an issue of interpretation of Massachusetts law may be certified directly to that court for prompt resolution. Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 This Court often has remarked that the equitable practice of abstention is limited by considerations of " `the delay and expense to which application of the abstention doctrine inevitably gives rise.' " Lake Carriers' quoting |
Justice Blackmun | 1,976 | 11 | majority | Bellotti v. Baird | https://www.courtlistener.com/opinion/109531/bellotti-v-baird/ | the abstention doctrine inevitably gives rise.' " Lake Carriers' quoting See As we have also noted, however, the availability of an adequate certification procedure[18] "does, of course, in the long run save time, *151 energy, and resources and helps build a cooperative judicial federalism." Lehman This Court has utilized certification procedures in the past, as have courts of appeals. and cases cited therein 0 nn. 5 and 6. The importance of speed in resolution of the instant litigation is manifest. Each day the statute is in effect, irretrievable events, with substantial personal consequences, occur. Although we do not mean to intimate that abstention would be improper in this case were certification not possible, the availability of certification greatly simplifies the analysis. Further, in light of our disapproval of a "parental veto" today in Planned Parenthood, we must assume that the lower Massachusetts courts, if called upon to enforce the statute pending interpretation by the Supreme Judicial Court, will not impose this most serious barrier. Insofar as the issue thus ceases to become one of total denial of access and becomes one rather of relative burden, the cost of abstention is reduced and the desirability of that equitable remedy accordingly increased. V We therefore hold that the District Court should have certified to the Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of 12P and the procedure it imposes. In regard to the claim of impermissible discrimination due to the statute, a claim not raised in the District Court but subject to inquiry through an amended complaint, or perhaps by other means, we believe that it would not be inappropriate for the District Court, when any procedural requirement *152 has been complied with, also to certify a question concerning the meaning of the new statute, and the extent to which its procedures differ from the procedures that must be followed under 12P. The judgment of the District Court is vacated, and the cases are remanded to that court for proceedings consistent with this opinion. It is so ordered. |
Justice Scalia | 2,011 | 9 | majority | Thompson v. North American Stainless, LP | https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/ | Until 2003, both petitioner Eric Thompson and his fiancée, Miriam Regalado, were employees of respondent North American Stainless (NAS). In February 2003, the Equal Employment Opportunity Commission (EEOC) notified NAS that Regalado had filed a charge alleging sex discrimination. Three weeks later, NAS fired Thompson. Thompson then filed a charge with the EEOC. After conciliation efforts proved unsuccessful, he sued NAS in the United States District Court for the Eastern District of Kentucky under Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., claiming that NAS had fired him in order to retaliate against Regalado for filing her charge with the EEOC. The District Court granted summary judgment to NAS, concluding that Title VII “does not permit third party retaliation claims.” 435 F. Supp. 2d 633, 639 After a panel of the Sixth Circuit reversed the District Court, the Sixth Circuit granted rehearing en banc and affirmed by a 10-to-6 vote. The court reasoned that because Thompson did not “engag[e] in any statutorily protected 2 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court activity, either on his own behalf or on behalf of Miriam Regalado,” he “is not included in the class of persons for whom Congress created a retaliation cause of action.” at 807–808. We granted certiorari. 561 U. S. (2010). I Title VII provides that “[i]t shall be an unlawful em ployment practice for an employer to discriminate against any of his employees because he has made a charge” under Title VII. 42 U.S. C. –3(a). The statute permits “a person claiming to be aggrieved” to file a charge with the EEOC alleging that the employer committed an unlawful employment practice, and, if the EEOC declines to sue the employer, it permits a civil action to “be brought by the person claiming to be aggrieved by the al leged unlawful employment practice.” –5(b), (f)(1). It is undisputed that Regalado’s filing of a charge with the EEOC was protected conduct under Title VII. In the procedural posture of this case, we are also required to assume that NAS fired Thompson in order to retaliate against Regalado for filing a charge of discrimination. This case therefore presents two questions: First, did NAS’s firing of Thompson constitute unlawful retaliation? And second, if it did, does Title VII grant Thompson a cause of action? II With regard to the first question, we have little diffi culty concluding that if the facts alleged by Thompson are true, then NAS’s firing of Thompson violated Title VII. In N. & S. F. R. we held that Title VII’s |
Justice Scalia | 2,011 | 9 | majority | Thompson v. North American Stainless, LP | https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/ | N. & S. F. R. we held that Title VII’s antiretaliation provision must be construed to cover a broad range of employer conduct. We reached that conclusion by contrasting the text of Title Cite as: 562 U. S. (2011) 3 Opinion of the Court VII’s antiretaliation provision with its substantive antidis crimination provision. Title VII prohibits discrimination on the basis of race, color, religion, sex, and national origin “ ‘with respect to compensation, terms, conditions, or privileges of employment,’ ” and discriminatory practices that would “ ‘deprive any individual of employment oppor tunities or otherwise adversely affect his status as an employee.’ ” (quoting 42 U.S. C. –2(a) (emphasis deleted)). In contrast, Title VII’s antiretaliation provision prohibits an employer from “ ‘discriminat[ing] against any of his employees’ ” for engaging in protected conduct, without specifying the employer acts that are 548 U.S., (quoting –3(a) (empha sis deleted)). Based on this textual distinction and our understanding of the antiretaliation provision’s purpose, we held that “the antiretaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employ ment.” Rather, Title VII’s antiretaliation pro vision prohibits any employer action that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” (internal quotation marks omitted). We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired. Indeed, NAS does not dispute that Thompson’s firing meets the standard set forth in Tr. of Oral Arg. 30. NAS raises the concern, however, that prohibiting reprisals against third parties will lead to difficult line-drawing problems con cerning the types of relationships entitled to protection. Perhaps retaliating against an employee by firing his fiancée would dissuade the employee from engaging in protected activity, but what about firing an employee’s girlfriend, close friend, or trusted co-worker? Applying the standard to third-party reprisals, NAS argues, 4 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court will place the employer at risk any time it fires any em ployee who happens to have a connection to a different employee who filed a charge with the EEOC. Although we acknowledge the force of this point, we do not think it justifies a categorical rule that third-party reprisals do not violate Title VII. As explained above, we adopted a broad standard in because Title VII’s antiretaliation provision is worded broadly. We think there is no textual basis for making an exception to it for third-party reprisals, and a preference for clear rules cannot justify |
Justice Scalia | 2,011 | 9 | majority | Thompson v. North American Stainless, LP | https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/ | third-party reprisals, and a preference for clear rules cannot justify departing from statutory text. We must also decline to identify a fixed class of relation ships for which third-party reprisals are unlawful. We expect that firing a close family member will almost al ways meet the standard, and inflicting a milder reprisal on a mere acquaintance will almost never do so, but beyond that we are reluctant to generalize. As we explained in “the signifi cance of any given act of retaliation will often depend upon the particular circumstances.” Given the broad statutory text and the variety of workplace contexts in which re taliation may occur, Title VII’s antiretaliation provision is simply not reducible to a comprehensive set of clear rules. We emphasize, however, that “the provision’s standard for judging harm must be objective,” so as to “avoi[d] the uncertainties and unfair discrepancies that can plague a judicial effort to determine a plaintiff’s unusual subjective feelings.” –69. III The more difficult question in this case is whether Thompson may sue NAS for its alleged violation of Title VII. The statute provides that “a civil action may be brought by the person claiming to be aggrieved.” 42 U.S. C. –5(f)(1). The Sixth Circuit concluded that this provision was merely a reiteration of the requirement Cite as: 562 U. S. (2011) 5 Opinion of the Court that the plaintiff have Article III standing. 567 F.3d, at 808, n. 1. We do not understand how that can be. The provision unquestionably permits a person “claiming to be aggrieved” to bring “a civil action.” It is arguable that the aggrievement referred to is nothing more than the mini mal Article III standing, which consists of injury in fact caused by the defendant and remediable by the court. See 560–561 (1992). But Thompson’s claim undoubtedly meets those requirements, so if that is indeed all that aggrievement consists of, he may sue. We have suggested in dictum that the Title VII ag grievement requirement conferred a right to sue on all who satisfied Article III standing. involved the “person aggrieved” provision of Title VIII (the Fair Hous ing Act) rather than Title VII. In deciding the case, how ever, we relied upon, and cited with approval, a Third Circuit opinion involving Title VII, which, we said, “con cluded that the words used showed ‘a congressional intention to define standing as broadly as is permitted by Article III of the Constitution.’ ” ). We think that dictum regarding Title VII was too expan sive. Indeed, the Trafficante opinion did not adhere to it in expressing its Title |
Justice Scalia | 2,011 | 9 | majority | Thompson v. North American Stainless, LP | https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/ | opinion did not adhere to it in expressing its Title VIII holding that residents of an apartment complex could sue the owner for his racial discrimination against prospective tenants. The opinion said that the “person aggrieved” of Title VIII was coexten sive with Article III “insofar as tenants of the same hous ing unit that is charged with discrimination are con cerned.” 409 U.S., Later opinions, we must acknowledge, reiterate that the term “aggrieved” in Title VIII reaches as far as Article III per mits, see ; Gladstone, 6 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court 109 (1979), though the holdings of those cases are com patible with the “zone of interests” limitation that we discuss below. In any event, it is Title VII rather than Title VIII that is before us here, and as to that we are surely not bound by the Trafficante dictum. We now find that this dictum was ill-considered, and we decline to follow it. If any person injured in the Article III sense by a Title VII violation could sue, absurd conse quences would follow. For example, a shareholder would be able to sue a company for firing a valuable employee for racially discriminatory reasons, so long as he could show that the value of his stock decreased as a consequence. At oral argument Thompson acknowledged that such a suit would not lie, Tr. of Oral Arg. 5–6. We agree, and there fore conclude that the term “aggrieved” must be construed more narrowly than the outer boundaries of Article III. At the other extreme from the position that “person aggrieved” means anyone with Article III standing, NAS argues that it is a term of art that refers only to the em ployee who engaged in the protected activity. We know of no other context in which the words carry this artificially narrow meaning, and if that is what Congress intended it would more naturally have said “person claiming to have been discriminated against” rather than “person claiming to be aggrieved.” We see no basis in text or prior practice for limiting the latter phrase to the person who was the subject of unlawful retaliation. Moreover, such a reading contradicts the very holding of Trafficante, which was that residents of an apartment complex were “person[s] ag grieved” by discrimination against prospective tenants. We see no reason why the same phrase in Title VII should be given a narrower meaning. In our view there is a common usage of the term “person aggrieved” that avoids the extremity of equating it with Article III |
Justice Scalia | 2,011 | 9 | majority | Thompson v. North American Stainless, LP | https://www.courtlistener.com/opinion/183480/thompson-v-north-american-stainless-lp/ | that avoids the extremity of equating it with Article III and yet is fully consistent with our application of the term in Trafficante. The Administrative Procedure Cite as: 562 U. S. (2011) 7 Opinion of the Court Act, 5 U.S. C. et seq., authorizes suit to challenge a federal agency by any “person adversely affected or aggrieved within the meaning of a relevant statute.” We have held that this language establishes a regime under which a plaintiff may not sue unless he “falls within the ‘zone of interests’ sought to be protected by the statutory provision whose violation forms the legal basis for his complaint.” We have described the “zone of interests” test as denying a right of review “if the plaintiff’s interests are so marginally related to or in consistent with the purposes implicit in the statute that it cannot reasonably be assumed that Congress intended to permit the suit.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399–400 (1987). We hold that the term “ag grieved” in Title VII incorporates this test, enabling suit by any plaintiff with an interest “arguably [sought] to be protected by the statutes,” National Credit Union Admin. v. First Nat. Bank & Trust Co., (internal quotation marks omitted), while excluding plain tiffs who might technically be injured in an Article III sense but whose interests are unrelated to the statutory prohibitions in Title VII. Applying that test here, we conclude that Thompson falls within the zone of interests protected by Title VII. Thompson was an employee of NAS, and the purpose of Title VII is to protect employees from their employers’ unlawful actions. Moreover, accepting the facts as alleged, Thompson is not an accidental victim of the retaliation— collateral damage, so to speak, of the employer’s unlawful act. To the contrary, injuring him was the employer’s intended means of harming Regalado. Hurting him was the unlawful act by which the employer punished her. In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII. He is a person aggrieved with standing to sue. 8 THOMPSON v. NORTH AMERICAN STAINLESS, LP Opinion of the Court * * * The judgment of the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of this case. Cite as: 562 U. S. (2011) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 09–291 ERIC L. THOMPSON, PETITIONER v. |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | Respondent Javaid Iqbal is a citizen of Pakistan and a Muslim. In the wake of the September 11, terrorist attacks he was arrested in the United States on criminal charges and detained by federal officials. Respondent s he was deprived of various constitutional protections while in federal custody. To redress the alleged deprivations, respondent filed a complaint against numerous federal officials, including John Ashcroft, the former Attorney General of the United States, and Robert Mueller, the Director of the Federal Bureau of Investigation (FBI). Ashcroft and Mueller are the petitioners in the case now before us. As to these two petitioners, the complaint alleges that they adopted an unconstitutional policy that subjected respondent to harsh conditions of confinement on account of his race, religion, or national origin. In the District Court petitioners raised the defense of qualified immunity and moved to dismiss the suit, contending the complaint was not sufficient to state a against them. The District Court denied the motion to dismiss, concluding the complaint was sufficient to state a despite petitioners' official status at the times in question. Petitioners brought an interlocutory appeal in the Court of Appeals for the Second Circuit. The court, without discussion, assumed it had jurisdiction over the order denying the motion to dismiss; and it affirmed the District Court's decision. Respondent's account of his prison ordeal could, if proved, demonstrate unconstitutional misconduct by some governmental actors. But the allegations and pleadings with respect to these actors are not before us here. This case instead turns on a narrower question: Did respondent, as the plaintiff in the District Court, *1943 plead factual matter that, if taken as true, states a that petitioners deprived him of his clearly established constitutional We hold respondent's pleadings are insufficient. I Following the attacks, the FBI and other entities within the Department of Justice began an investigation of vast reach to identify the assailants and prevent them from attacking anew. The FBI dedicated more than 4,000 special agents and 3,000 support personnel to the endeavor. By September 18 "the FBI had received more than 96,000 tips or potential leads from the public." Dept. of Justice, Office of Inspector General, The September 11 Detainees: A Review of the Treatment of Aliens Held on Immigration Charges in Connection with the Investigation of the September 11 Attacks 1, 11-12 (Apr.2003) (hereinafter OIG Report), http://www.usdoj.gov/oig/special/ 0306/ full.pdf?bcsi_scan_61073EC0F74759AD=0 & bcsi_scan_filename=full.pdf (as visited May 14, 2009, and available in Clerk of Court's case file). In the ensuing months the FBI questioned more than 1,000 people with suspected links to the attacks in particular or to |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | with suspected links to the attacks in particular or to terrorism in general. Of those individuals, some 762 were held on immigration charges; and a 184-member subset of that group was deemed to be "of `high interest'" to the investigation. 11. The high-interest detainees were held under restrictive conditions designed to prevent them from communicating with the general prison population or the outside world. 12-113. Respondent was one of the detainees. According to his complaint, in November agents of the FBI and Immigration and Naturalization Service arrested him on charges of fraud in relation to identification documents and conspiracy to defraud the United States. Pending trial for those crimes, respondent was housed at the Metropolitan Detention Center (MDC) in Brooklyn, New York. Respondent was designated a person "of high interest" to the September 11 investigation and in January was placed in a section of the MDC known as the Administrative Maximum Special Housing Unit (ADMAX SHU). 48. As the facility's name indicates, the ADMAX SHU incorporates the maximum security conditions allowable under Federal Bureau of Prison regulations. ADMAX SHU detainees were kept in lockdown 23 hours a day, spending the remaining hour outside their cells in handcuffs and leg irons accompanied by a four-officer escort. Respondent pleaded guilty to the criminal charges, served a term of imprisonment, and was removed to his native Pakistan. 49. He then filed a Bivens action in the United States District Court for the Eastern District of New York against 34 current and former federal officials and 19 "John Doe" federal corrections officers. See The defendants range from the correctional officers who had day-to-day contact with respondent during the term of his confinement, to the wardens of the MDC facility, all the way to petitionersofficials who were at the highest level of the federal law enforcement hierarchy. First Amended Complaint in No. 04-CV-1809 (JG)(JA), ¶-11, App. to Pet. for Cert. 157a (hereinafter Complaint). The 21-cause-of-action complaint does not challenge respondent's arrest or his confinement in the MDC's general prison population. Rather, it concentrates on his *1944 treatment while confined to the ADMAX SHU. The complaint sets forth various s against defendants who are not before us. For instance, the complaint alleges that respondent's jailors "kicked him in the stomach, punched him in the face, and dragged him across" his cell without justification, App. to Pet. for Cert. 176a; subjected him to serial strip and body-cavity searches when he posed no safety risk to himself or others, App. to Pet. for Cert. 182a; and refused to let him and other Muslims pray because there would be |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | let him and other Muslims pray because there would be "[n]o prayers for terrorists," App. to Pet. for Cert. 184a. The allegations against petitioners are the only ones relevant here. The complaint contends that petitioners designated respondent a person of high interest on account of his race, religion, or national origin, in contravention of the First and Fifth Amendments to the Constitution. The complaint alleges that "the [FBI], under the direction of Defendant MUELLER, arrested and detained thousands of Arab Muslim men as part of its investigation of the events of September 11." 64a. It further alleges that "[t]he policy of holding post-September-11th detainees in highly restrictive conditions of confinement until they were `cleared' by the FBI was approved by Defendants ASHCROFT and MUELLER in discussions in the weeks after September 11," 68a. Lastly, the complaint posits that petitioners "each knew of, condoned, and willfully and maliciously agreed to subject" respondent to harsh conditions of confinement "as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest." 72a-173a. The pleading names Ashcroft as the "principal architect" of the policy, 57a, and identifies Mueller as "instrumental in [its] adoption, promulgation, and implementation." 57a. Petitioners moved to dismiss the complaint for failure to state sufficient allegations to show their own involvement in clearly established unconstitutional conduct. The District Court denied their motion. Accepting all of the allegations in respondent's complaint as true, the court held that "it cannot be said that there [is] no set of facts on which [respondent] would be entitled to relief as against" petitioners. 36a-137a ). Invoking the collateral-order doctrine petitioners filed an interlocutory appeal in the United States Court of Appeals for the Second Circuit. While that appeal was pending, this Court decided Bell Atlantic which discussed the standard for evaluating whether a complaint is sufficient to survive a motion to dismiss. The Court of Appeals considered 's applicability to this case. Acknowledging that retired the Conley no-set-of-facts test relied upon by the District Court, the Court of Appeals' opinion discussed at length how to apply this Court's "standard for assessing the adequacy of pleadings." 490 F.3d, 55. It concluded that called for a "flexible `plausibility standard,' which obliges a pleader to amplify a with some factual allegations in those contexts where such amplification is needed to render the plausible." 57-158. The court found that petitioners' appeal did not present one of "those contexts" requiring amplification. As a consequence, it held respondent's pleading adequate to allege petitioners' personal involvement in discriminatory decisions which, if true, violated clearly |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | personal involvement in discriminatory decisions which, if true, violated clearly established constitutional 74. *1945 Judge Cabranes concurred. He agreed that the majority's "discussion of the relevant pleading standards reflect[ed] the uneasy compromise between a qualified immunity privilege rooted in the need to preserve the effectiveness of government as contemplated by our constitutional structure and the pleading requirements of Rule 8(a) of the Federal Rules of Civil Procedure." 78 Judge Cabranes nonetheless expressed concern at the prospect of subjecting high-ranking Government officialsentitled to assert the defense of qualified immunity and charged with responding to "a national and international security emergency unprecedented in the history of the American Republic"to the burdens of discovery on the basis of a complaint as nonspecific as respondent's. 79. Reluctant to vindicate that concern as a member of the Court of Appeals, ib Judge Cabranes urged this Court to address the appropriate pleading standard "at the earliest opportunity." 78. We granted certiorari, 554 U.S. and now reverse. II We first address whether the Court of Appeals had subject-matter jurisdiction to affirm the District Court's order denying petitioners' motion to dismiss. Respondent disputed subject-matter jurisdiction in the Court of Appeals, but the court hardly discussed the issue. We are not free to pretermit the question. Subjectmatter jurisdiction cannot be forfeited or waived and should be considered when fairly in doubt. According to respondent, the District Court's order denying petitioners' motion to dismiss is not appealable under the collateral-order doctrine. We disagree. A With exceptions inapplicable here, Congress has vested the courts of appeals with "jurisdiction of appeals from all final decisions of the district courts of the United States." Though the statute's finality requirement ensures that "interlocutory appealsappeals before the end of district court proceedingsare the exception, not the rule," it does not prevent "review of all prejudgment orders." Under the collateral-order doctrine a limited set of district-court orders are reviewable "though short of final judgment." The orders within this narrow category "are immediately appealable because they `finally determine s of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.'" ). A district-court decision denying a Government officer's of qualified immunity can fall within the narrow class of appealable orders despite "the absence of a final judgment." This is so because qualified immunitywhich shields Government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights," is both a defense to liability |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | statutory or constitutional rights," is both a defense to liability and a limited "entitlement not to stand trial or face the other burdens of litigation." Provided it "turns on an issue of law," at a district-court order denying qualified immunity "`conclusively determine[s]'" that the defendant must bear the burdens of discovery; is "conceptually distinct from the merits of the plaintiff's "; and would prove "effectively unreviewable on appeal from a final judgment." at 527-528 (citing at ). As a general matter, the collateral-order doctrine may have expanded beyond the limits dictated by its internal logic and the strict application of the criteria set out in But the applicability of the doctrine in the context of qualified-immunity s is well established; and this Court has been careful to say that a district court's order rejecting qualified immunity at the motion-to-dismiss stage of a proceeding is a "final decision" within the meaning of 1291. B Applying these principles, we conclude that the Court of Appeals had jurisdiction to hear petitioners' The District Court's order denying petitioners' motion to dismiss turned on an issue of law and rejected the defense of qualified immunity. It was therefore a final decision "subject to immediate " Respondent says that "a qualified immunity appeal based solely on the complaint's failure to state a and not on the ultimate issues relevant to the qualified immunity defense itself, is not a proper subject of interlocutory jurisdiction." Brief for Respondent Iqbal 15 (hereinafter Iqbal Brief). In other words, respondent contends the Court of Appeals had jurisdiction to determine whether his complaint avers a clearly established constitutional violation but that it lacked jurisdiction to pass on the sufficiency of his pleadings. Our opinions, however, make clear that appellate jurisdiction is not so strictly confined. In the Court reviewed an interlocutory decision denying qualified immunity. The legal issue decided in concerned the elements a plaintiff "must plead and prove in order to win" a First Amendment retaliation the Court considered another interlocutory order denying qualified immunity. The legal issue there was whether a Bivens action can be employed to challenge interference with property n. 4, These cases cannot be squared with respondent's argument that the collateralorder doctrine restricts appellate jurisdiction to the "ultimate issu[e]" whether the legal wrong asserted was a violation of clearly established law while excluding the question whether the facts pleaded establish such a violation. Iqbal Brief 15. Indeed, the latter question is even more clearly within the category of appealable decisions than the questions presented in and since whether a particular complaint sufficiently alleges a clearly established violation |
Justice Kennedy | 2,009 | 4 | majority | Ashcroft v. Iqbal | https://www.courtlistener.com/opinion/145875/ashcroft-v-iqbal/ | whether a particular complaint sufficiently alleges a clearly established violation of law cannot be decided in isolation from the facts pleaded. In that sense the sufficiency of respondent's pleadings is both "inextricably intertwined with," U.S. 35, and "directly implicated by," n. *1947 5, the qualified immunity defense. Respondent counters that our holding in Johnson, confirms the want of subjectmatter jurisdiction here. That is incorrect. The allegation in Johnson was that five defendants, all of them police officers, unlawfully beat the plaintiff. Johnson considered "the appealability of a portion of" the District Court's summary judgment order that, "though entered in a `qualified immunity' case, determine[d] only" that there was a genuine issue of material fact that three of the defendants participated in the beating. In finding that order not a "final decision" for purposes of 1291, the Johnson Court cited for the proposition that only decisions turning "`on an issue of law'" are subject to immediate 5 U.S., Though determining whether there is a genuine issue of material fact at summary judgment is a question of law, it is a legal question that sits near the law-fact divide. Or as we said in Johnson, it is a "factrelated" legal inquiry. To conduct it, a court of appeals may be required to consult a "vast pretrial record, with numerous conflicting affidavits, depositions, and other discovery materials." That process generally involves matters more within a district court's ken and may replicate inefficiently questions that will arise on appeal following final judgment. Finding those concerns predominant, Johnson held that the collateral orders that are "final" under turn on "abstract," rather than "fact-based," issues of 5 U.S., at 317, The concerns that animated the decision in Johnson are absent when an appellate court considers the disposition of a motion to dismiss a complaint for insufficient pleadings. True, the categories of "factbased" and "abstract" legal questions used to guide the Court's decision in Johnson are not well defined. Here, however, the order denying petitioners' motion to dismiss falls well within the latter class. Reviewing that order, the Court of Appeals considered only the allegations contained within the four corners of respondent's complaint; resort to a "vast pretrial record" on petitioners' motion to dismiss was unnecessary. And determining whether respondent's complaint has the "heft" to state a is a task well within an appellate court's core competency. Evaluating the sufficiency of a complaint is not a "fact-based" question of law, so the problem the Court sought to avoid in Johnson is not implicated here. The District Court's order denying petitioners' motion to dismiss is a final decision |
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