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Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | and spent over $29 million on domestic promotion The Board also funds overseas marketing efforts; market and food-science research, such as evaluations of the nutritional value of beef; and informational *555 campaigns for both consumers and beef See 7 US C 2902(6), (9), (15), 2904(4)(B) Many promotional messages funded by the checkoff (though not all, see App 52-53) bear the attribution "Funded by America's Beef Producers" E g, Most print and television messages also bear a Beef Board logo, usually a checkmark with the word "BEEF" E g, B Respondents are two associations whose members collect and pay the checkoff, and several individuals who raise and sell cattle subject to the checkoff They sued the Secretary, the Department of Agriculture, and the Board in Federal District Court on a number of constitutional and statutory grounds not before usin particular, that the Board impermissibly used checkoff funds to send communications supportive of the beef program to beef Petitioners in No 03-1165, a state beef producers' association and two individual producers, intervened as defendants to argue in support of the program The District Court granted a limited preliminary injunction, which forbade the continued use of checkoff funds to laud the beef program or to lobby for governmental action relating to the checkoff While the litigation was pending, we held in United that a mandatory checkoff for generic mushroom advertising violated the First Amendment Noting that the mushroom program closely resembles the beef program,[2] respondents amended their *556 complaint to assert a First Amendment challenge to the use of the beef checkoff for promotional activity ; App 30-32 Respondents noted that the advertising promotes beef as a generic commodity, which, they contended, impedes their efforts to promote the superiority of, inter alia, American beef, grain-fed beef, or certified Angus or Hereford beef After a bench trial, the District Court ruled for respondents on their First Amendment claim It declared that the Beef Act and Beef Order unconstitutionally compel respondents to subsidize speech to which they object, and rejected the Government's contention that the checkoff survives First Amendment scrutiny because it funds only government speech -1007 The court entered a permanent injunction barring any further collection of the beef checkoff, even from producers willing to pay (allowing continued collection of voluntary checkoffs, the court thought, would require "rewrit[ing]" the Beef Act) Believing that the cost of calculating the share of the checkoff attributable to the compelled subsidy would be too great, the court also declined to order a refund of checkoff funds already collected Finally, the court made permanent its earlier injunction against "producer |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | Finally, the court made permanent its earlier injunction against "producer communications" praising the beef program or seeking to influence governmental policy The court did not rule on respondents' other claims, but certified its resolution of the First Amendment claim as final pursuant to Federal Rule of Civil Procedure 54(b) 207 F Supp 2d, The Court of Appeals for the Eighth Circuit affirmed 335 F3d 711 Unlike the District Court, the Court of Appeals did not dispute that the challenged advertising is government speech; instead, it held that government speech status is relevant only to First Amendment challenges to the speech's content, not to challenges to its compelled funding See Compelled funding of speech, it held, *557 may violate the First Amendment even if the speech in question is the government's We granted certiorari 541 US 1062 II We have sustained First Amendment challenges to allegedly compelled expression in two categories of cases: true "compelled-speech" cases, in which an individual is obliged personally to express a message he disagrees with, imposed by the government; and "compelled-subsidy" cases, in which an individual is required by the government to subsidize a message he disagrees with, expressed by a private entity We have not heretofore considered the First Amendment consequences of government-compelled subsidy of the government's own speech We first invalidated an outright compulsion of speech in West Virginia Bd of Ed v Barnette, 319 US 624 The State required every schoolchild to recite the Pledge of Allegiance while saluting the American flag, on pain of expulsion from the public schools We held that the First Amendment does not "le[ave] it open to public authorities to compel [a person] to utter" a message with which he does not agree Likewise, in v Maynard, 430 US 705 we held that requiring a New Hampshire couple to bear the State's motto, "Live Free or Die," on their cars' license plates was an impermissible compulsion of expression Obliging people to "use their private property as a `mobile billboard' for the State's ideological message" amounted to impermissible compelled expression The reasoning of these compelled-speech cases has been carried over to certain instances in which individuals are compelled not to speak, but to subsidize a private message with which they disagree Thus, although we have upheld state-imposed requirements that lawyers be members of the state bar and pay its annual dues, and that public school *558 teachers either join the labor union representing their "shop" or pay "service fees" equal to the union dues, we have invalidated the use of the compulsory fees to fund speech on political matters |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | of the compulsory fees to fund speech on political matters See v State Bar of Cal, 496 US 1 ; v Detroit Bd of Ed, 431 US 209 Bar or union speech with such content, we held, was not germane to the regulatory interests that justified compelled membership, and accordingly, making those who disagreed with it pay for it violated the First Amendment See ; These latter cases led us to sustain a compelled-subsidy challenge to an assessment very similar to the beef checkoff, imposed to fund mushroom advertising United see 335 F3d, at 717 ("[W]e agree with the district court that `[t]he beef checkoff is, in all material respects, identical to the mushroom checkoff'" at issue in United ) Deciding the case on the assumption that the advertising was private speech, not government speech, see 533 US,[3] we concluded that and were controlling As in those cases, mushroom producers were obliged by "law or necessity" to pay the checkoff; although and would permit the mandatory fee if it were "germane" to a "broader regulatory scheme," in *559 United the only regulatory purpose was the funding of the advertising 533 US, at 413, 415-416 In all of the cases invalidating exactions to subsidize speech, the speech was, or was presumed to be, that of an entity other than the government itself See ; ; United ; see also Board of Regents of Univ of Wis System v 529 US 217, (because "[t]he University ha[s] disclaimed that the speech is its own," and "provide the beginning point for our analysis"); cf v Rector and Visitors of Univ of Va, 515 US 819, (O'CONNOR, J, concurring) (university's Student Activities Fund likely does not unconstitutionally compel speech because it "represents not government resources but a fund that simply belongs to the students") Our compelled-subsidy cases have consistently respected the principle that "[c]ompelled support of a private association is fundamentally different from compelled support of government" at 259, n 13 (Powell, J, concurring in judgment) "Compelled support of government" even those programs of government one does not approveis of course perfectly constitutional, as every taxpayer must attest And some government programs involve, or entirely consist of, advocating a position "The government, as a general rule, may support valid programs and policies by taxes or other exactions binding on protesting parties Within this broader principle it seems inevitable that funds raised by the government will be spent for speech and other expression to advocate and defend its own policies" 529 U S, We have generally assumed, though not yet squarely held, that compelled funding |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | generally assumed, though not yet squarely held, that compelled funding of government speech does not alone raise First Amendment concerns See ibid; ; ; see also 430 U S, at 721 (REHNQUIST, J, dissenting) *560 III Respondents do not seriously dispute these principles, nor do they contend that, as a general matter, their First Amendment challenge requires them to show only that their checkoff dollars pay for speech with which they disagree Rather, they assert that the challenged promotional campaigns differ dispositively from the type of government speech that, our cases suggest, is not susceptible to First Amendment challenge They point to the role of the Beef Board and its Operating Committee in designing the promotional campaigns, and to the use of a mandatory assessment on beef producers to fund the advertising We consider each in turn A The Secretary of Agriculture does not write ad copy himself Rather, the Beef Board's promotional campaigns are designed by the Beef Board's Operating Committee, only half of whose members are Beef Board members appointed by the Secretary ) Respondents contend that speech whose content is effectively controlled by a nongovernmental entitythe Operating Committeecannot be considered "government speech" We need not address this contention, because we reject its premise: The message of the promotional campaigns is effectively controlled by the Federal Government itself[4] The message set out in the beef promotions is from beginning to end the message established by the Federal Government[5]*561 Congress has directed the implementation of a "coordinated program" of promotion, "including paid advertising, to advance the image and desirability of beef and beef products" 7 US C 2901(b), 2902(13) Congress and the Secretary have also specified, in general terms, what the promotional campaigns shall contain, see, e g, 2904(4)(B)(i) (campaigns "shall take into account" different types of beef products), and what they shall not, see, e g, 7 CFR 1169(d) Thus, Congress and the Secretary have set out the overarching message and some of its elements, and they have left the development of the remaining details to an entity whose members are answerable to the Secretary (and in some cases appointed by him as well) Moreover, the record demonstrates that the Secretary exercises final approval authority over every word used in every promotional campaign All proposed promotional messages are reviewed by Department officials both for substance and for wording, and some proposals are rejected or rewritten by the Department App 114, 118-121, 274-275 Nor is the Secretary's role limited to final approval or rejection: Officials of the Department also attend and participate in the open meetings at which proposals |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | attend and participate in the open meetings at which proposals are developed This degree of governmental control over the message funded by the checkoff distinguishes these cases from *562 There the state bar's communicative activities to which the plaintiffs objected were not prescribed by law in their general outline and not developed under official government supervision Indeed, many of them consisted of lobbying the state legislature on various issues See 496 US, at 5, and n 2 When, as here, the government sets the overall message to be communicated and approves every word that is disseminated, it is not precluded from relying on the government-speech doctrine merely because it solicits assistance from nongovernmental sources in developing specific messages B Respondents also contend that the beef program does not qualify as "government speech" because it is funded by a targeted assessment on beef producers, rather than by general revenues This funding mechanism, they argue, has two relevant effects: It gives control over the beef program not to politically accountable legislators, but to a narrow interest group that will pay no heed to respondents' dissenting views, and it creates the perception that the advertisements speak for beef producers such as respondents We reject the first point The compelled-subsidy analysis is altogether unaffected by whether the funds for the promotions are raised by general taxes or through a targeted assessment Citizens may challenge compelled support of private speech, but have no First Amendment right not to fund government speech And that is no less true when the funding is achieved through targeted assessments devoted exclusively to the program to which the assessed citizens object Cf United States v Lee, 455 US 252, ("There is no principled way to distinguish between general taxes and those imposed under the Social Security Act" in evaluating the burden on the right to free exercise of religion) The First Amendment does not confer a right to pay one's taxes *563 into the general fund, because the injury of compelled funding (as opposed to the injury of compelled speech) does not stem from the Government's mode of accounting Cf Bowen v Roy, 476 US 693, ("The Free Exercise Clause does not afford an individual a right to dictate the conduct of the Government's internal procedures"); (STEVENS, J, concurring in part and concurring in result) Some of our cases have justified compelled funding of government speech by pointing out that government speech is subject to democratic accountability See, e g, 431 U S, at 259, n 13 (Powell, J, concurring in judgment); 529 U S, at 235 But our references |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | in judgment); 529 U S, at 235 But our references to "traditional political controls," do not signify that the First Amendment duplicates the Appropriations Clause, U S Const, Art I, 9, cl 7, or that every instance of government speech must be funded by a line item in an appropriations bill Here, the beef advertisements are subject to political safeguards more than adequate to set them apart from private messages The program is authorized and the basic message prescribed by federal statute, and specific requirements for the promotions' content are imposed by federal regulations promulgated after notice and comment The Secretary of Agriculture, a politically accountable official, oversees the program, appoints and dismisses the key personnel, and retains absolute veto power over the advertisements' content, right down to the wording[6] And Congress, of course, retains oversight authority, not to mention *564 the ability to reform the program at any time No more is required[7] As to the second point, respondents' argument proceeds as follows: They contend that crediting the advertising to "America's Beef Producers" impermissibly uses not only their money but also their seeming endorsement to promote a message with which they do not agree Communications cannot be "government speech," they argue, if they are attributed to someone other than the government; and the person to whom they are attributed, when he is, by compulsory funding, made the unwilling instrument of communication, may raise a First Amendment objection We need not determine the validity of this argument which relates to compelled speech rather than compelled *565 subsidy[8] with regard to respondents' facial challenge Since neither the Beef Act nor the Beef Order requires attribution, neither can be the cause of any possible First Amendment harm The District Court's order enjoining the enforcement of the Act and the Order thus cannot be sustained on this theory On some set of facts, this second theory might (again, we express no view on the point) form the basis for an as-applied challengeif it were established, that is, that individual beef advertisements were attributed to respondents The record, however, includes only a stipulated sampling of these promotional materials, see App 47, and none of the exemplars provides any support for this attribution theory except for the tagline identifying the funding Respondents apparently presented no other evidence of attribution at trial, and the District Court made no factual findings on the point Indeed, in the only trial testimony on the subject that any party has identified, an employee of one of the respondent associations said he did not think the beef promotions would *566 |
Justice Scalia | 2,005 | 9 | majority | Johanns v. Livestock Marketing Assn. | https://www.courtlistener.com/opinion/142895/johanns-v-livestock-marketing-assn/ | said he did not think the beef promotions would *566 be attributed to his group[9] Whether the individual respondents who are beef producers would be associated with speech labeled as coming from "America's Beef Producers" is a question on which the trial record is altogether silent We have only the funding tagline itself, a trademarked term[10] that, standing alone, is not sufficiently specific to convince a reasonable factfinder that any particular beef producer, or all beef producers, would be tarred with the content of each trademarked ad[11] We therefore conclude that *567 on the record before us an as-applied First Amendment challenge to the individual advertisements affords no basis on which to sustain the Eighth Circuit's judgment, even in part * * * Respondents' complaint asserted a number of other grounds for declaring the Beef Act, the Beef Order, or both invalid in their entirety The District Court, having enjoined the Act and the Order on the basis of the First Amendment, had no occasion to address these other grounds Respondents may now proceed on these other claims The judgment of the Court of Appeals is vacated, and the cases are remanded for further proceedings consistent with this opinion It is so ordered |
Justice Scalia | 1,992 | 9 | concurring | United States v. RLC | https://www.courtlistener.com/opinion/112709/united-states-v-rlc/ | In my view it is not consistent with the rule of lenity to construe a textually ambiguous penal statute against a criminal defendant on the basis of legislative history. Because Justice Souter's opinion assumes the contrary, I join only Parts I, IIA, and III, and concur in the judgment. The Court begins its analysis, quite properly, by examining the language of 18 U.S. C. 5037(c)(1)(B)which proves to be ambiguous. Reasonable doubt remains, the Court concludes, as to whether the provision refers (i) to the maximum punishment that could be imposed if the juvenile were being sentenced under the United States Sentencing Guidelines (15-21 months) or (ii) to the maximum punishment authorized by the statute defining the offense, see 18 U.S. C. 1112(a) (36 months). Ante, at 298. With that conclusion I agreeand that conclusion should end the matter. The rule of lenity, in my view, prescribes the result when a criminal *308 statute is ambiguous: The more lenient interpretation must prevail. Yet the plurality continues. Armed with its warrant of textual ambiguity, the plurality conducts a search of 5037's legislative history to determine whether that clarifies the statute. Happily for this defendant, the plurality's extra textual inquiry is benign: It uncovers evidence that the "better understood" reading of 5037 is the more lenient one. Ante, at 305. But this methodology contemplates as well a different ending, one in which something said in a Committee Report causes the criminal law to be stricter than the text of the law displays. According to the plurality, "`[W]e have always reserved [the rule of] lenity for those situations in which a reasonable doubt persists about a statute's intended scope even after resort to "the language and structure, legislative history, and motivating policies" of the statute.' " Ante, at 305-306 ). I doubt that Moskal accurately characterizes the law in this area, and I am certain that its treatment of "the venerable rule of lenity," ante, at 305, does not venerate the important values the old rule serves. The Moskal formulation of the rule, in approving reliance on a statute's "motivating policies" (an obscure phrase), seems contrary to our statement in that "[e]ven [where] the statutory language [is] ambiguous, longstanding principles of lenity. preclude our resolution of the ambiguity against [the criminal defendant] on the basis of general declarations of policy in the statute and legislative history." And insofar as Moskal requires consideration of legislative history at all, it compromises what we have described to be purposes of the lenity rule. "[A] fair warning," we have said, "should be given to the world in language |
Justice Scalia | 1,992 | 9 | concurring | United States v. RLC | https://www.courtlistener.com/opinion/112709/united-states-v-rlc/ | have said, "should be given to the world in language that the common world will understand, of what the law intends to do if a certain line is passed. To make the warning fair, so far as possible the line *309 should be clear." "[T]he rule of lenity ensures that criminal statutes will provide fair warning concerning conduct rendered illegal." 4 It may well be true that in most cases the proposition that the words of the United States Code or the Statutes at Large give adequate notice to the citizen is something of a fiction, see at albeit one required in any system of law; but necessary fiction descends to needless farce when the public is charged even with knowledge of Committee Reports. Moskal `s mode of analysis also disserves the rule of lenity's other purpose: assuring that the society, through its representatives, has genuinely called for the punishment to be meted out. "[B]ecause of the seriousness of criminal penalties, and because criminal punishment usually represents the moral condemnation of the community, legislatures and not courts should define criminal activity." United See also at 4; United The rule reflects, as the plurality acknowledges, "` "the instinctive distaste against men languishing in prison unless the lawmaker has clearly said they should."` " Ante, at 305 (quoting at and H. Friendly, Benchmarks 209 (1967)). But legislative history can never provide assurance against that unacceptable result. After all, "[a] statute is a statute," ante, at 305, n. 5, and no matter how "authoritative" the history may beeven if it is that veritable Rosetta Stone of legislative archaeology, a crystal clear Committee Reportone can never be sure that the legislators who voted for the text of the bill were aware of it. The only thing that was authoritatively adopted for sure was the text of the enactment; the rest is necessarily speculation. Where it is doubtful whether the text includes the penalty, the penalty ought not be imposed. "[T]he moral condemnation of the community," at is no more reflected *310 in the views of a majority of a single committee of congressmen (assuming, of course, they have genuinely considered what their staff has produced) than it is reflected in the views of a majority of an appellate court; we should feel no less concerned about "men languishing in prison" at the direction of the one than of the other. We have in a number of cases other than Moskal done what the plurality has done here: inquired into legislative history and invoked it to support or at least permit the more lenient reading. |
Justice Scalia | 1,992 | 9 | concurring | United States v. RLC | https://www.courtlistener.com/opinion/112709/united-states-v-rlc/ | to support or at least permit the more lenient reading. But only once, to my knowledge, have we relied on legislative history to "clarify" a statute, explicitly found to be facially ambiguous, against the interest of a criminal defendant. In the Court relied on legislative history to determine that defendants, officers of a corporation responsible for administering federal block grants, were "public officials" within the meaning of 18 U.S. C. 201(a). The opinion does not trouble to discuss the "fair warning" or "condemnation of the community" implications of its decision, and both of the cases it cites in supposed support of its holding found the statute at hand not to be facially ambiguous. See United ("By its terms 841 reaches `any person' " and "does not exempt (as it could have) `all registrants' or `all persons registered under this Act' "); United I think Dixson weak (indeed, utterly unreasoned) foundation for a rule of construction that permits legislative history to satisfy the ancient requirement that criminal statutes speak "plainly and unmistakably," United ; see also at In sum, I would not embrace, as the plurality does, the Moskal formulation of this canon of construction, lest lower *311 courts take the dictum to heart. I would acknowledge the tension in our precedents, the absence of an examination of the consequences of the Moskal mode of analysis, and the consequent conclusion that Moskal may not be good law. Justice Thomas, concurring in part and concurring in the judgment. I agree with Justice Scalia that the use of legislative history to construe an otherwise ambiguous penal statute against a criminal defendant is difficult to reconcile with the rule of lenity. I write separately, however, to emphasize that the rule is not triggered merely because a statute appears textually ambiguous on its face. Just last Term, we reaffirmed that the rule operates only "`at the end of the process' " of construction, if ambiguity remains "even after a court has "`seize[d] every thing from which aid can be derived,"` " in turn quoting United ). Thus, although we require Congress to enact "clear and definite" penal statutes, United 1-2 (12), we also consult our own "well-established principles of statutory construction," 498 U.S. 3, in determining whether the relevant text is clear and definite. See, e. g., that statutes become effective immediately); These cases, I think, demonstrate that we must presume familiarity not only with the United States Code, see ante, at 309, but also with the United States Reports, in which we have developed innumerable rules of construction powerful *312 enough to make clear |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | Fernando the respondent here, was tried in in the Superior Court of the State of California in and for the County of San Joaquin. A jury returned a verdict of murder in the first degree and then determined he should be sentenced to death. The issue before us concerns a jury instruction in the sentencing phase. The trial court, following the statute then in effect, directed the jury, with other instructions and in a context to be discussed in more detail, to consider certain specific factors either as aggravating or mitigating. The trial court further instructed the jury to consider "[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime." App. 184. Under the then-applicable statutory scheme this general or catchall factor was codified at Cal.Penal Code Ann. 190.3(k) ; and it is referred to as "factor (k)." contended, on direct review, in state collateral proceedings, and in the federal habeas proceedings giving rise to this case, that factor (k) and the trial court's other instructions barred the jury from considering his forward-looking mitigation evidencespecifically evidence that he likely would lead a constructive life if incarcerated instead of executed. The alleged limitation, in his view, prevented the jury from considering relevant mitigation evidence, in violation of his Eighth Amendment right to present all mitigating evidence in capital sentencing proceedings. See, e.g., ; ; The California Supreme Court, affirming the judgment and sentence, rejected this contention and other challenges. In February after exhausting state remedies, respondent filed an amended federal habeas petition. The United States District Court for the Eastern District of California denied relief, App. to Pet. for Cert. 140a-141a, 145a, but a divided panel of the United States Court of Appeals for the Ninth Circuit reversed in relevant part, Over the dissent of eight judges, the Court of Appeals denied rehearing en banc. This Court granted certiorari, vacated the judgment, and remanded for further consideration in light of On remand, a divided panel again invalidated respondent's sentence; it distinguished on the grounds that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), though applicable in that case, does not apply here. Over yet another dissent, the Court of Appeals again denied rehearing en banc. v. Stokes, 427 F.3d *473 663 We granted certiorari, and now reverse. I The evidence at trial showed that in March 1981, while burglarizing a home where two accomplices had attended a party, respondent unexpectedly encountered 19-year-old Steacy McConnell. Respondent killed her by striking her head 15 to 20 times with a steel |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | striking her head 15 to 20 times with a steel dumbbell bar. Respondent had armed himself with the dumbbell bar before entering the victim's home. See -317. In the sentencing phase of his trial introduced mitigating evidence to show, inter alia, that he would make positive contributions to society in a structured prison environment. Respondent testified that, during a previous term under the California Youth Authority (CYA), he had behaved in a constructive way, working his way to the number two position on a fire crew in the CYA fire camp in which he was incarcerated. App. 44-45, 53. About that time he had embraced Christianity and entered into a Christian sponsorship program. He admitted that initially he participated in this program to spend time away from the camp. Later, after forming a good relationship with the married couple who were his Christian sponsors, he pursued a more religious life and was baptized. Although his religious commitment lapsed upon his release from the CYA, he testified that he would once again turn to religion whenever he could rededicate himself fully to it. Finally, he answered in the affirmative when asked if he was "prepared to contribute in anyway [he] can to society if [he was] put in prison for the rest of [his] life." Respondent's former CYA chaplain testified at the sentencing hearing that respondent's conversion appeared genuine. The chaplain, describing respondent as "salvageable," expressed hope that respondent would contribute to prison ministries if given a life sentence. An assistant chaplain similarly testified that, based on past experience, respondent likely would be adept at counseling other prisoners to avoid the mistakes he had made when they leave prison. And respondent's Christian sponsors testified he was like a son to them and had been a positive influence on their own son. They also indicated he had participated in various activities at their church. After respondent presented his mitigating evidence, the parties made closing arguments discussing respondent's mitigating evidence and how the jury should consider it. Respondent was also allowed to provide his own statement. The trial judge included in his instructions the disputed factor (k) language, an instruction that has since been amended, see Cal. Jury Instr., Crim., No. 8.85(k) II In two earlier cases this Court considered a constitutional challenge to the factor (k) instruction. See In the Court rejected a claim that factor (k), with its focus on circumstances "`extenuat[ing] the gravity of the crime,'" precluded consideration of mitigating evidence unrelated to the crime, such as evidence of the defendant's background and character. The "proper inquiry," the Court explained, |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | defendant's background and character. The "proper inquiry," the Court explained, "is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that *474 prevents the consideration of constitutionally relevant evidence." Since the defendant in "had an opportunity through factor (k) to argue that his background and character `extenuated' or `excused' the seriousness of the crime," the Court saw "no reason to believe that reasonable jurors would resist the view, `long held by society,' that in an appropriate case such evidence would counsel imposition of a sentence less than death." ). During the sentencing phase in moreover, the defense had presented extensive evidence regarding background and character, so construing factor (k) to preclude consideration of that evidence would have required the jurors not only to believe that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" ), but also to disregard another instruction requiring the jury to "`consider all of the evidence which has been received during any part of the trial of this case,'" In the Court again evaluated arguments that factor (k) barred consideration of constitutionally relevant evidencethis time, evidence relating to postcrime rehabilitation, rather than precrime background and character. See -136, did not come to this Court, as had on direct review, but rather by federal habeas petition subject to AEDPA. Relief was available only if "the state court's adjudication of the claim `resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.'" (quoting 28 U.S.C. 2254(d)(1)). Although the prosecutor in had argued to the juryincorrectlythat factor (k) did not permit consideration of postcrime rehabilitation evidence, this Court concluded that the California Supreme Court reasonably applied in finding no Eighth Amendment 146-147, Accepting the prosecutor's reading would have required "the surprising conclusion that remorse could never serve to lessen or excuse a crime." Furthermore, countering any misimpression created by the prosecution's argument, the defense in had presented extensive evidence and argument regarding a postcrime religious conversion and other good behavior. The trial court had instructed the jury to consider all evidence admitted "`during any part of the trial in this case, except as you may be hereafter instructed,'" and the prosecution itself "devoted substantial attention to discounting [the postcrime evidence's] importance as compared to the aggravating factors." Hence, the state court in could reasonably have concluded that, as in there was no reasonable likelihood that the jury understood the instruction to preclude consideration of the postcrime mitigation evidence it |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | instruction to preclude consideration of the postcrime mitigation evidence it had III As the Court directed in we inquire "whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence." 494 U.S., Here, as in respondent argues that factor (k) prevented the *475 jury from giving effect to his forward-looking evidence. And, as in respondent's case comes to this Court in federal habeas proceedings collaterally attacking the state court's ruling. Unlike in however, the federal petition in this case was filed before AEDPA's effective date. AEDPA and its deferential standards of review are thus inapplicable. See The Court of Appeals distinguished on this ground. See 414 F.3d, at It was mistaken, however, to find a "reasonable probability" that the jury did not consider respondent's future potential. A The Court of Appeals erred by adopting a narrow and, we conclude, an unrealistic interpretation of factor (k). "Most naturally read," the Court of Appeals reasoned, "this instruction allows the jury to consider evidence that bears upon the commission of the crime by the defendant and excuses or mitigates his culpability for the offense." As both and explain, however, this interpretation is too confined. "The instruction did not limit the jury's consideration to `any other circumstance of the crime which extenuates the gravity of the crime.' The jury was directed to consider any other circumstance that might excuse the crime." ; see also -142, And just as precrime background and character () and postcrime rehabilitation () may "extenuat[e] the gravity of the crime," so may some likelihood of future good conduct count as a circumstance tending to make a defendant less deserving of the death penalty. -5, )). The Court of Appeals failed to heed the full import of 's holding, a holding that has significance even where AEDPA is inapplicable. indicated that reading factor (k) to preclude consideration of postcrime evidence would require "the surprising conclusion that remorse could never serve to lessen or excuse a crime." So, too, would it be counterintuitive if a defendant's capacity to redeem himself through good works could not extenuate his offense and render him less deserving of a death sentence. In any event, since respondent sought to extrapolate future behavior from precrime conduct, his mitigation theory was more analogous to the good-character evidence examined in and held to fall within factor (k)'s purview. See (describing the evidence at issue as including evidence of the defendant's "strength of character"). Both types of evidence suggest the crime stemmed more from adverse circumstances than |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | evidence suggest the crime stemmed more from adverse circumstances than from an irredeemable character. See -1142 ; cf. B Our interpretation of factor (k) is the one most consistent with the evidence presented *476 to the jury, the parties' closing arguments, and the other instructions provided by the trial court. Each of these will be discussed in turn. As the Court of Appeals recognized, future-conduct evidence was central to the mitigation case presented by the defense. See 414 F.3d, Indeed, although the defense also adduced evidence of a troubled upbringing, respondent testified that he could not use his difficult life "as a crutch to say I am in a situation right now, I'm here now because of that." App. 40. Given this assertion, and considering the extensive forward-looking evidence presented at sentencingevidence including testimony from two prison chaplains, respondent's church sponsors, and respondent himselfthe jurors could have disregarded respondent's future potential only if they drew the unlikely inference that "the court's instructions transformed all of this `favorable testimony into a virtual charade,'" (quoting 479 U.S., at ). It is improbable the jurors believed that the parties were engaging in an exercise in futility when respondent presented (and both counsel later discussed) his mitigating evidence in open court. Arguments by the prosecution and the defense assumed the evidence was The prosecutor initially discussed the various factors that were to guide the jury. He referred to factor (k) as "a catchall." App. 153. He then discussed respondent's religious experience in some detail. With respect to whether this experience fit within factor (k), he indicated: "I'm not sure it really fits in there. I'm not sure it really fits in any of them. But I think it appears to be a proper subject of consideration." These seemingly contradictory statements are explained by the prosecutor's following comments. The prosecutor suggested (quite understandably on the record) that respondent's religious evidence was weak. He stated: "You know, first of all, it's no secret that the evidence upon which the defendant's religious experience rests is somewhat shaky." He also opined that the experience had to be taken "with a grain of salt." The jury would have realized that, when the prosecutor suggested respondent's religious experience did not fit within factor (k), he was discussing the persuasiveness of the evidence, not the jury's ability to consider it. After all, he thought religion was "a proper subject of consideration." The prosecutor then discussed how the jury should weigh respondent's "religious awakening": "I suppose you can say it would be appropriate becausein this fashion: The defendant may be of value |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | appropriate becausein this fashion: The defendant may be of value to the community later. You recall the people talking about how he would have the opportunity to work with other prisoners in prison. And I think that value to the community is something that you have to weigh in. There's something to that. "On the other hand, the fact that someone has religion as opposed to someone doesn't should be no grounds for either giving or withholding life. I mean let's turn it around and look at the other side of the coin. Suppose someone said he didn't belong to a church and didn't talk to a minister. Would that man deserve to die merely because of that? So if he says he has religion, does he deserve the other penalty, life? I don't think that that should be an influencing factor at all in that respect. I don't think the law contemplates that and I don't think it's right." *477 These remarks confirmed to the jury that it should analyze respondent's future potential, his future "value to the community." This is what respondent himself wanted it to do. And while the prosecutor commented that the law did not contemplate jury consideration of respondent's religious conversion, respondent did not argue that the jury should consider the mere fact that he had discovered religion. Rather, as manifested by his arguments on appeal, respondent wanted to use this religious evidence to demonstrate his future "value to the community," not to illustrate his past religious awakening. Nothing the prosecutor said would have convinced the jury that it was forbidden from even considering respondent's religious conversion, though surely the jury could discount it; and nothing the prosecutor said would have led the jury to think it could not consider respondent's future potential, especially since he indicated that this is exactly what the jury had "to weigh" in its deliberation. After the prosecutor concluded his arguments, the trial judge allowed respondent to speak on his own behalf. Respondent, while not showing any remorse, suggested that life imprisonment offered "an opportunity to achieve goals and try to better yourself." He also stated: "I myself would really like to have my life and try to improve myself." Respondent's personal pleas were consistent with a trial in which the jury would assess his future prospects in determining what sentence to impose. Defense counsel's closing arguments confirm this analysis. To be sure, commenting on the mitigating evidence, he initially indicated: "I'm not going to insult you by telling you I think [the mitigating evidence] excuses in any way what |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | I think [the mitigating evidence] excuses in any way what happened here. That is not the reason I asked these people to come in." Read in context defense counsel's remarks did not imply the jury should ignore the mitigating evidence. Rather, conforming to the dichotomy within factor (k) itself, his remarks merely distinguished between a legal excuse and an extenuating circumstance. Cal.Penal Code Ann. 190.3(k) ("[a]ny other circumstance which extenuates the gravity of the crime even though it is not a legal excuse for the crime"). That defense counsel did, in fact, want the jury to take into account respondent's future potential became manifest near the end of his argument. He suggested that the "people who came in here [and] told you about [respondent]" provided the jury with "a game plan" for what respondent could do with his life. App. 170. He continued: "We're just suggesting the tip of the iceberg because who knows in 20, 30, 40, 50 years what sorts of things he can do, as he fits into the system, as he learns to set his goals, to contribute something in whatever way he can." This would have left the jury believing it could and should contemplate respondent's potential. Other instructions from the trial court make it quite implausible that the jury would deem itself foreclosed from considering respondent's full case in mitigation. Before enumerating specific factors for considerationfactors including the circumstances of the crime, the defendant's age, and "[t]he presence or absence of any prior felony conviction," as well as the factor (k) catchallthe judge told the jury: "In determining which penalty is to be imposed on the defendant you shall consider all of the evidence which has been received during any part of the trial of this case, except as you may be hereafter instructed." After listing the factors, he indicated: "After having heard all of the evidence and after having heard and considered *478 the arguments of counsel, you shall consider, take into account and be guided by the applicable factors of aggravating and mitigating circumstances upon which you have been instructed. "If you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death. However, if you determine that the mitigating circumstances outweigh the aggravating circumstances, you shall impose a sentence of confinement in the state prison for life without the possibility of parole." The judge then gave a supplemental instruction regarding aggravating and mitigating factors: "I have previously read to you the list of aggravating circumstances which the law permits you to consider if you find that |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | the law permits you to consider if you find that any of them is established by the evidence. These are the only aggravating circumstances that you may consider. You are not allowed to take account of any other facts or circumstances as the basis for deciding that the death penalty would be an appropriate punishment in this case. "However, the mitigating circumstances which I have read for your consideration are given to you merely as examples of some of the factors that you may take into account as reasons for deciding not to impose a death penalty or a death sentence upon Mr. You should pay careful attention to each of these factors. Any one of them standing alone may support a decision that death is not the appropriate punishment in this case." -186. Given the evidence and arguments presented to the jury, these instructions eliminate any reasonable likelihood that a juror would consider respondent's future prospects to be beyond the bounds of proper consideration. The judge told the jury to consider "all of the evidence," and "all of the evidence" included respondent's forward-looking mitigation case. While the judge did end his broad command to appraise all the evidence with the qualifier "except as you may be hereafter instructed," he did not later instruct the jury that it should disregard respondent's future potential in prison. The jury could not fairly read the limitation in the instruction to apply to respondent's central mitigation theory. By contrast, in response to a juror's question, the trial judge specifically instructed the jury not to consider whether respondent could receive psychiatric treatment while in prison. The sharp contrast between the court's instruction on aggravation (that only enumerated factors could be considered) and its instruction on mitigation (that listed factors were "merely examples," ) made it clear that the jury was to take a broad view of mitigating evidence. Coming back to back, the instructions conveyed the message that the jury should weigh the finite aggravators against the potentially infinite mitigators. That the trial judge told the jury to "pay careful attention" to the listed mitigating factors, ib moreover, did not compel the jury to give them sole consideration. For this to be the case, the jury would have had to fail to take the judge at his word. The judge did not advise the jury to pay exclusive attention to the listed mitigating circumstances, and he had told the jury that these circumstances were simply examples. It is implausible that the jury supposed that past deeds pointing to a constructive future could not "extenuat[e] the |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | deeds pointing to a constructive future could not "extenuat[e] the gravity of the crime," as required by factor (k), much less that such evidence could not be considered at all. concludes that in jury deliberations "commonsense understanding *479 of the instructions in the light of all that has taken place at the trial [is] likely to prevail over technical hair-splitting." Here, far from encouraging the jury to ignore the defense's central evidence, the instructions supported giving it due weight. In concluding otherwise, the Court of Appeals cited queries from some of the jurors as evidence of confusion. Although the jury's initial question is not in the record, it appeared to ask the judge about the consequences of failing to reach a unanimous verdict. In response, the judge reread portions of the instructions and stated that "all 12 jurors must agree, if you can." App. 190. Before the judge sent the jury back for further deliberation, the following exchange took place: "JUROR HERN: The statement about the aggravation and mitigation of the circumstances, now, that was the listing? "THE COURT: That was the listing, yes, ma'am. "JUROR HERN: Of those certain factors we were to decide one or the other and then balance the sheet? "THE COURT: That is right. It is a balancing process. Mr. Meyer? "JUROR MEYER: A specific question, would this be an either/or situation, not a one, if you cannot the other? "THE COURT: No. It is not that. "JUROR MEYER: It is an either/or situation? "THE COURT: Exactly. If you can make that either/or decision. If you cannot, then I will discharge you. "JUROR HAILSTONE: Could I ask a question? I don't know if it is permissible. Is it possible that he could have psychiatric treatment during this time? "THE COURT: That is something you cannot consider in making your decision." The Court of Appeals decided Juror Hern's questions indicated she thought (incorrectly) that only listed mitigating factors were on the tablean error, in the Court of Appeals' view, that should have prompted a clarifying instruction confirming that all the mitigating evidence was The Court of Appeals further supposed the response to Juror Hailstone's question compounded the problem, since psychiatric treatment presumably would be necessary only in aid of future rehabilitation. The Court of Appeals' analysis is flawed. To begin with, attributing to Juror Hern a dilemma over the scope of mitigation is only one way to interpret her questions, and, as the California Supreme Court observed on direct review, it is not necessarily the correct one, see It is at least as likely that the |
Justice Kennedy | 2,006 | 4 | majority | Ayers v. Belmontes | https://www.courtlistener.com/opinion/145773/ayers-v-belmontes/ | one, see It is at least as likely that the juror was simply asking for clarification about California's overall balancing process, which requires juries to consider and balance enumerated factors (such as age and criminal history) that are labeled neither as mitigating nor as aggravating. As Juror Hern surmised (but sought to clarify), the jury itself must determine the side of the balance on which each listed factor falls. See Cal.Penal Code Ann. 190.3 (providing that, "[i]n determining the penalty, the trier of fact shall take into account" any relevant listed factors); see generally (noting that the 190.3 sentencing factors "do not instruct the sentencer how to weigh any of the facts it finds in deciding upon the ultimate sentence"). *480 Even assuming the Court of Appeals correctly interpreted Juror Hern's questions, the court's conclusion that this juror likely ignored forward-looking evidence presupposes what it purports to establish, namely, that forward-looking evidence could not fall within factor (k). As discussed earlier, nothing barred the jury from viewing respondent's future prospects as "extenuat[ing] the gravity of the crime," so nothing barred it from considering such evidence under the rubric of the "listing." As for Juror Hailstone's psychiatric-care question, this inquiry shows that, if anything, the jurors were considering respondent's potential. The trial court's response, far from implying a broad prohibition on forward-looking inferences, was readily explicable by the absence of any evidence in the record regarding psychiatric care. In view of our analysis and disposition in this case it is unnecessary to address an argument for reversing the Court of Appeals based on the Court's holding in a subject raised by Judge O'Scannlain in his separate opinion in the Court of Appeals. See -1142 IV In this case, as in and as in the jury heard mitigating evidence, the trial court directed the jury to consider all the evidence presented, and the parties addressed the mitigating evidence in their closing arguments. This Court's cases establish, as a general rule, that a jury in such circumstances is not reasonably likely to believe itself barred from considering the defense's evidence as a factor "extenuat[ing] the gravity of the crime." The factor (k) instruction is consistent with the constitutional right to present mitigating evidence in capital sentencing proceedings. 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 White | 1,985 | 6 | majority | Hayes v. Florida | https://www.courtlistener.com/opinion/111382/hayes-v-florida/ | The issue before us in this case is whether the Fourth to the Constitution of the United States, applicable to the States by virtue of the Fourteenth was properly applied by the District Court of Appeal of Florida, Second District, to allow police to transport a suspect to the station house for fingerprinting, without his consent and without probable cause or prior judicial authorization. A series of burglary-rapes occurred in Punta Gorda, Florida, in 1980. Police found latent fingerprints on the doorknob of the bedroom of one of the victims, fingerprints they believed belonged to the assailant. The police also found a herringbone pattern tennis shoe print near the victim's front porch. Although they had little specific information to tie petitioner Hayes to the crime, after police interviewed him along with 30 to 40 other men who generally fit the description of the assailant, the investigators came to consider petitioner a principal suspect. They decided to visit petitioner's home to obtain his fingerprints or, if he was uncooperative, to arrest him. They did not seek a warrant authorizing this procedure. Arriving at petitioner's house, the officers spoke to petitioner on his front porch. When he expressed reluctance voluntarily to accompany them to the station for fingerprinting, one of the investigators explained that they would therefore arrest him. Petitioner, in the words of the investigator, then "blurted out" that he would rather go with the officers to the station than be arrested. App. 20. While the officers were on the front porch, they also seized a pair of herringbone pattern tennis shoes in plain view. *813 Petitioner was then taken to the station house, where he was fingerprinted. When police determined that his prints matched those left at the scene of the crime, petitioner was placed under formal arrest. Before trial, petitioner moved to suppress the fingerprint evidence, claiming it was the fruit of an illegal detention. The trial court denied the motion and admitted the evidence without expressing a reason. Petitioner was convicted of the burglary and sexual battery committed at the scene where the latent fingerprints were found. The District Court of Appeal of Florida, Second District, affirmed the conviction. The court declined to find consent, reasoning that in view of the threatened arrest it was, "at best, highly questionable" that Hayes voluntarily accompanied the officers to the station. The court also expressly found that the officers did not have probable cause to arrest petitioner until after they obtained his fingerprints. Nevertheless, although finding neither consent nor probable cause, the court held, analogizing to the stop-and-frisk rule of that |
Justice White | 1,985 | 6 | majority | Hayes v. Florida | https://www.courtlistener.com/opinion/111382/hayes-v-florida/ | the court held, analogizing to the stop-and-frisk rule of that the officers could transport petitioner to the station house and take his fingerprints on the basis of their reasonable suspicion that he was involved in the 439 So. 2d, 904. The Florida Supreme Court denied review by a four-to-three decision, We granted certiorari to review this application of Terry, and we now reverse. We agree with petitioner that requires reversal of the judgment below. In Davis, in the course of investigating a rape, police officers brought petitioner Davis to police headquarters on December 3, 1965. He was fingerprinted and briefly questioned before being released. He was later charged and convicted of the rape. An issue there was whether the fingerprints taken on December 3 were the inadmissible fruits of an illegal detention. Concededly, the police at that time were without probable *814 cause for an arrest, there was no warrant, and Davis had not consented to being taken to the station house. The State nevertheless contended that the Fourth did not forbid an investigative detention for the purpose of fingerprinting, even in the absence of probable cause or a warrant. We rejected that submission, holding that Davis' detention for the purpose of fingerprinting was subject to the constraints of the Fourth and exceeded the permissible limits of those temporary seizures authorized by This was so even though fingerprinting, because it involves neither repeated harassment nor any of the probing into private life and thoughts that often marks interrogation and search, represents a much less serious intrusion upon personal security than other types of searches and Nor was it a sufficient answer to the Fourth issue to recognize that fingerprinting is an inherently more reliable and effective crime-solving mechanism than other types of evidence such as lineups and confessions. The Court indicated that perhaps under narrowly confined circumstances, a detention for fingerprinting on less than probable cause might comply with the Fourth but found it unnecessary to decide that question since no effort was made to employ the procedures necessary to satisfy the Fourth Rather, Davis had been detained at police headquarters without probable cause to arrest and without authorization by a judicial officer. Here, as in Davis, there was no probable cause to arrest, no consent to the journey to the police station, and no judicial authorization for such a detention for fingerprinting purposes.[1] Unless later cases have undermined Davis or *815 we now disavow that decision, the judgment below must be reversed. None of our later cases have undercut the holding in Davis that transportation to and investigative detention |
Justice White | 1,985 | 6 | majority | Hayes v. Florida | https://www.courtlistener.com/opinion/111382/hayes-v-florida/ | the holding in Davis that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Indeed, some 10 years later, in we refused to extend to authorize investigative interrogations at police stations on less than probable cause, even though proper warnings under had been given. We relied on and reaffirmed the holding in Davis that in the absence of probable cause or a warrant investigative detentions at the police station for fingerprinting purposes could not be squared with the Fourth -216, while at the same time repeating the possibility that the might permit a narrowly circumscribed procedure for fingerprinting detentions on less than probable cause. Since that time, we have several times revisited and explored the reach of most recently in United States v. Sharpe, ante, p. 675, and United But none of these cases have sustained against Fourth challenge the involuntary removal of a suspect from his home to a police station and his detention there for investigative purposes, whether for interrogation or fingerprinting, absent probable cause or judicial authorization. Nor are we inclined to forswear Davis. There is no doubt that at some point in the investigative process, police procedures *816 can qualitatively and quantitatively be so intrusive with respect to a suspect's freedom of movement and privacy interests as to trigger the full protection of the Fourth and Fourteenth s. Dunaway, ; And our view continues to be that the line is crossed when the police, without probable cause or a warrant, forcibly remove a person from his home or other place in which he is entitled to be and transport him to the police station, where he is detained, although briefly, for investigative purposes. We adhere to the view that such seizures, at least where not under judicial supervision, are sufficiently like arrests to invoke the traditional rule that arrests may constitutionally be made only on probable cause.[2] None of the foregoing implies that a brief detention in the field for the purpose of fingerprinting, where there is only reasonable suspicion not amounting to probable cause, is necessarily impermissible under the Fourth In addressing the reach of a Terry stop in we observed that "[a] brief stop of a suspicious individual, in order to determine his identity or to maintain the status quo momentarily while obtaining more information, may be most reasonable in light of the facts known to the officer at the time." Also, just this Term, we concluded that if there are articulable facts supporting a reasonable suspicion that a person has committed a criminal |
Justice White | 1,985 | 6 | majority | Hayes v. Florida | https://www.courtlistener.com/opinion/111382/hayes-v-florida/ | a reasonable suspicion that a person has committed a criminal offense, that person may be stopped in order to identify him, to question him briefly, or to detain him briefly while attempting to obtain additional information. United Cf. United States ; United ; United There is thus support in our cases for the view that the Fourth would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect's connection with that crime, and if the procedure is carried out with dispatch. Cf. United States v. Of course, neither reasonable suspicion nor probable cause would suffice to permit the officers to make a warrantless entry into a person's house for the purpose of obtaining fingerprint identification. We also do not abandon the suggestion in Davis and Dunaway that under circumscribed procedures, the Fourth might permit the judiciary to authorize the seizure of a person on less than probable cause and his removal to the police station for the purpose of fingerprinting. We do not, of course, have such a case before us.[3] We do note, however, that some States, in reliance on the suggestion in Davis, have enacted procedures for judicially authorized seizures for the purpose of fingerprinting. The state courts are not in accord on the validity of these efforts to insulate investigative seizures from Fourth invalidation. Compare with and In re an Investigation into Death of Abe A., As we have said, absent probable cause and a warrant, requires the *818 reversal of the judgment of the Florida District Court of Appeal. It is so ordered. JUSTICE BLACKMUN concurs in the judgment. JUSTICE POWELL took no part in the consideration or decision in this case. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment. |
Justice O'Connor | 1,994 | 14 | dissenting | Ticor Title Ins. Co. v. Brown | https://www.courtlistener.com/opinion/117835/ticor-title-ins-co-v-brown/ | We granted certiorari to consider one specific question: "Whether a federal court may refuse to enforce a prior federal class action judgment, properly certified under Rule 23, on grounds that absent class members have a constitutional *123 due process right to opt out of any class action which asserts monetary claims on their behalf." Pet. for Cert. i. The Court decides not to answer this question based on its speculation about a nonconstitutional ground for decision that is neither presented on this record nor available to these parties. From that decision I respectfully dissent. Respondents are members of a class that reached a final settlement with petitioners in an antitrust action styled MDL No. 633. In re Real Estate Title and Settlement Services Antitrust Litigation, aff'd, cert. denied, Respondents subsequently brought this action against petitioners, asserting some of the same claims. The District Court held that respondents had been adequately represented in the MDL No. 633 action, and granted summary judgment for petitioners because, given the identity of parties and claims, the MDL No. 633 settlement was res judicata. App. to Pet. for Cert. 20a28a. The Court of Appeals for the Ninth Circuit reversed. The court agreed that respondents had been adequately represented in the MDL No. 633 action, at 390 391, but held that respondents could nevertheless relitigate the same claims against petitioners: "Because [respondents] had no opportunity to opt out of the MDL No. 633 litigation, we hold there would be a violation of minimal due process if [respondents'] damage claims were held barred by res judicata. " The Court concludes that the correctness of the Ninth Circuit's constitutional interpretation "is of no general consequence if, in actions seeking monetary damages, classes can be certified only under Rule 23(b)(3), which permits optout, and not under Rules 23(b)(1) and (b)(2), which do not." Ante, at 121. In other words, the Court declines to answer the constitutional question because the MDL No. 633 action might not have been properly certifiedan issue that was litigated to a final determination in petitioners' favor more *124 than five years ago, and on which we denied certiorari. The nonconstitutional ground for decision about which the Court speculates is therefore unavailable to respondents. The constitutional ground on which the Court of Appeals relied, the one we granted certiorari to review and the parties have briefed and argued, was necessary to the decision in this case. Our prudential rule of avoiding constitutional questions has no application in these circumstances, and the Court errs in relying on it. The Court's assertion that "our resolution of the posited |
Justice O'Connor | 1,994 | 14 | dissenting | Ticor Title Ins. Co. v. Brown | https://www.courtlistener.com/opinion/117835/ticor-title-ins-co-v-brown/ | it. The Court's assertion that "our resolution of the posited constitutional question may be of virtually no practical consequence in fact," ib is unsound. The lower courts have consistently held that the presence of monetary damages claims does not preclude class certification under Rules 23(b)(1)(A) and (b)(2). See 7A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure, Civil 2d 1775, pp. 463-470 Whether or not those decisions are correct (a question we need not, and indeed should not, decide today), they at least indicate that there are a substantial number of class members in exactly the same position as respondents. Under the Ninth Circuit's rationale in this case, every one of them has the right to go into federal court and relitigate their claims against the defendants in the original action. The individuals, corporations, and governments that have successfully defended against class actions or reached appropriate settlements, but are now subject to relitigation of the same claims with individual class members, will rightly dispute the Court's characterization of the constitutional rule in this case as inconsequential. The Court is likewise incorrect in suggesting that a decision in this case "may be quite unnecessary in law." Ante, at 121. Unless and until a contrary rule is adopted, courts will continue to certify classes under Rules 23(b)(1) and (b)(2) notwithstanding the presence of damages claims; the constitutional opt-out right announced by the court below will be *125 implicated in every such action, at least in the Ninth Circuit. Moreover, because the decision below is based on the Due Process Clause, presumably it applies to the States; although we held in Phillips Petroleum that there is a constitutional right to opt out of class actions brought in state court, that holding was expressly "limited to those class actions which seek to bind known plaintiffs concerning claims wholly or predominately for money judgments." The Ninth Circuit's rule, by contrast, applies whenever "substantial damage claims" are asserted. See 982 F.2d, The resolution of a constitutional issue with such broad-ranging consequences is both necessary and appropriate. Finally, I do not agree with the Court's suggestion that the posture of the case could "lead us to the wrong result" with respect to the question whether the Due Process Clause requires an opt-out right in federal class actions involving claims for money damages. See ante, at 121-122. As the case comes to us, we must assume that the MDL No. 633 class was properly certified under Rule 23, notwithstanding the presence of claims for monetary relief. But this assumption, coupled with whatever presumption of constitutionality |
Justice O'Connor | 1,994 | 14 | dissenting | Ticor Title Ins. Co. v. Brown | https://www.courtlistener.com/opinion/117835/ticor-title-ins-co-v-brown/ | relief. But this assumption, coupled with whatever presumption of constitutionality to which the Rules are entitled, will not lead us to "approve. action that neither we nor Congress would independently think constitutional." Ante, at 122. Either an opt-out right is constitutionally required, or it is not. We can decide this issue while reserving the question of how the Rules should be construed. While it might be convenient, and it would certainly accord with our usual practice, to decide the nonconstitutional question first, that option is not available to us in this case. The only question, then, is whether we should dismiss the writ as improvidently granted. In my view, the importance of the constitutional question, as well as the significant expenditures of resources by the litigants, amici, and this Court, outweighs the prudential concerns on which the Court relies. *126 When a constitutional issue is fairly joined, necessary to the decision, and important enough to warrant review, this Court should not avoid resolving itparticularly on the basis of an entirely speculative alternative ground for decision that is neither presented by the record nor available to the parties before the Court. The decision below rests exclusively on a constitutional right to opt out of class actions asserting claims for monetary relief. We granted certiorari to consider whether such a right exists. The issue has been thoroughly briefed and argued by the parties. We should decide it. |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | The Court wholly fails to appreciate both the congressionally created interdependence between the United States Olympic Committee (USOC) and the United States, and the significant extent to which 110 of the Amateur Sports Act of 18, 36 U.S. C. 380, infringes on noncommercial speech. I would find that the action of the USOC challenged here is Government action, and that 110 is both substantially overbroad and discriminates on the basis of content. I therefore dissent. I For two independent reasons, the action challenged here constitutes Government action. First, the USOC performs important governmental functions and should therefore be considered a governmental actor. Second, there exists "a *549 sufficiently close nexus between the [Government] and the challenged action" of the USOC that "the action of the latter may be fairly treated as that of the [Government] itself." A Examination of the powers and functions bestowed by the Government upon the USOC makes clear that the USOC must be considered a Government actor. It is true, of course, that the mere "fact `[t]hat a private entity performs a function which serves the public does not make its acts [governmental]' " in nature. Ante, at 544 ). Such a definition, which might cover "all regulated businesses providing arguably essential goods and services," would sweep too broadly. The Court has repeatedly held, however, that "when private individuals or groups are endowed by the State with powers or functions governmental in nature, they become agencies or instrumentalities of the State and subject to its constitutional limitations." See ; Moreover, a finding of government action is particularly appropriate when the function performed is "traditionally the exclusive prerogative" of government. Patently, Congress has endowed the USOC with traditional governmental powers that enable it to perform a governmental function.[1] *550 The USOC performs a distinctive, traditional governmental function: it represents this Nation to the world community. The USOC is, by virtue of 36 U.S. C. 374 and 375, our country's exclusive representative to the International Olympic Committee (IOC), a highly visible and influential international body. The Court overlooks the extraordinary representational responsibility that Congress has placed on the USOC. As the Olympic Games have grown in international visibility and importance, the USOC's role as our national representative has taken on increasing significance. Although the Olympic ideals are avowedly nonpolitical, Olympic participation is inescapably nationalist. Membership in the IOC is structured not according to athletes or sports, but nations.[2] The athletes the USOC selects are viewed, not as a group of individuals who coincidentally are from the United States, but as the team of athletes that represents our Nation. |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | but as the team of athletes that represents our Nation. During the House debates on the Amateur Sports Act, Representative Michel expressed it well: "American athletes will go into these same [ Olympic] games as products of our way of life. I do not believe that it is the purpose of the games to set one way *551 of life against another. But it cannot be denied that spectators, both in Moscow and all over the world, certainly will have such a thought in mind when the events take place. So it would be good for our nation and for the athletes who represent us if the cooperation, spirit of individuality, and personal freedom that are the great virtues of our system are allowed to exert their full influence in the games." 124 Cong. Rec. 31662 (18). Every aspect of the Olympic Pageant, from the procession of athletes costumed in national uniform, to the raising of national flags and the playing of national anthems at the medal ceremony, to the official tally of medals won by each national team, reinforces the national significance of Olympic participation. Indeed, it was the perception of shortcomings in the Nation's performance that led to the Amateur Sports Act of 18. In the words of the President's Commission, "[t]he fact is that we are competing less well and other nations competing more successfully because other nations have established excellence in international athletics as a national priority." 1 Final Report of the President's Commission on Olympic Sports 15-17, p. ix (17) (Final Report) Private organizations sometimes participate in international conferences resplendent with billowing flags. But the Olympic Games are unique: at stake are significant national interests that stem not only from Pageantry but from politics. Recent experience illustrates the inherent interdependence of national political interests and the decisions of the USOC. In his State of the Union Address of January 23, (a forum, one need hardly add, traditionally reserved for matters of national import), the President announced his opposition to American participation in the summer Olympic Games in Moscow.[3] The opposition was not premised on, e. g., the financial straits of a private corporation, but *552 on the implications of participation for American foreign policy. Echoing the President's concerns, the House of Representatives passed a resolution expressing its opposition to American participation.[4] In a speech on April 10, the President threatened to take "legal actions [if] necessary to enforce the decision not to send a team to Moscow."[5] Shortly thereafter, with the national and international stakes of the USOC's decision set forth by the President and |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | of the USOC's decision set forth by the President and Congress, and with reports in the press of possible cuts in federal aid to the USOC,[6] the USOC announced that the United States would not participate in the Olympic Games.[7]*553 Although the lesson had been learned long before[8] this sequence of events laid bare the impact and interrelationship of USOC decisions on the definition and pursuit of the national interest. There is more to the USOC's public role than representation. The current USOC was born out of governmental dissatisfaction with the performance of the United States in international athletic competition. This dissatisfaction led Congress to grant the USOC unprecedented administrative authority over all private American athletic organizations relating to international competition. The legislative history reveals, contrary to the Court's assumption, ante, at 544-545, that no actor in the private sector had ever performed this function, and indeed never could perform it absent enabling legislation. In 15, President Ford established a Commission on Olympic Sports to investigate the deteriorating performance of America's athletes at the Olympic Games, and to recommend *554 solutions. The Commission traced the problems to a lack of central coordination, and "recommend[ed] the institution of a central sports organization for the United States." 1 Final Report 11-13. In enacting the Amateur Sports Act, Congress gave life to the Commission's primary recommendation, that the USOC be restructured[9] to assume this new role of "central sports organization." See H. R. Rep. No. -1627, pp. 8-9 (18). It greatly expanded the charter of the USOC, giving it "perpetual succession and power to serve as the coordinating body for amateur athletic activity in the United States directly relating to international amateur athletic competition." 36 U.S. C. 375(a)(1). It also granted the USOC with the to recognize an organization as the "national governing body" for a particular sport, and endowed the USOC with the power to resolve all conflicts and disputes that would arise among the multitude of private organizations and individuals over which it would hold sway. See 36 U.S. C. 375(a)(5), 382b.[10] Thus, in the Amateur Sports Act, Congress granted the USOC the authority and ability to govern national amateur athletics related to international competition. The public hearing and reporting requirements of the Act reflect the public nature of the USOC's mission. Under *555 375(b)(2), the USOC may not amend its constitution or bye-laws unless it "gives to all interested persons, prior to the adoption of any amendment, an opportunity to submit written data, views, or arguments concerning the proposed amendment for a period of at least 60 days after the |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | for a period of at least 60 days after the date of publication of the notice." Similarly, the USOC may not recognize a particular amateur sports organization as the "national governing body" for that sport without first holding a public hearing on the matter. 36 U.S. C. 391(a). The Act institutionalizes yet another public check on the USOC by requiring it annually to "transmit simultaneously to the President and to each House of Congress a detailed report of its operations for the preceding calendar year, including a full and complete statement of its receipts and expenditures and a comprehensive description of the activities and accomplishments of the [USOC] during the preceding year." 36 U.S. C. 382a(a). The USOC must also submit annual "detailed" reports to the President and Congress on the expenditures of funds made available to it by Congress, and provide "detailed and comprehensive" descriptions of the programs it expects to finance out of Government grant money in the coming year. 36 U.S. C. 382a(b), 384(b). The function of the USOC is obviously and fundamentally different than that of the private nursing homes in or the private school in or the private Moose Lodge in Moose Lodge No. or even the public utility in Unlike those entities, which merely provided public services, the USOC has been endowed by the Federal Government with the exclusive power to serve a unique national, administrative, adjudicative, and representational role.[11] The better analogy, then, *556 is to the company town in or to the private political party in Like those entities, the USOC is a private organization on whom the Government has bestowed inherently public powers and responsibilities. Its actions, like theirs, ought to be subject to constitutional limits. B Apart from the argument that the USOC is itself a Government actor, there is a second reason to find Government action. At a minimum, this case, like is one in which the Government "has so far insinuated itself into a position of interdependence with [the USOC] that it must be recognized as a joint participant in the challenged activity."[12] The action at issue in Burton was the refusal of a private restaurant that leased space in a public parking facility to serve a black customer. Central to the Court's analysis was what later cases have termed "the symbiotic relationship" of the restaurant to the parking facility. E. g., Moose Lodge, ; This relationship provided the "sufficiently close nexus between the State and the challenged action of the [private] entity so that the action of the latter may be fairly treated as that of the |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | the latter may be fairly treated as that of the State itself." at The USOC and the Federal Government exist in a symbiotic relationship sufficient to provide a nexus between the *557 USOC's challenged action and the Government. First, as in Burton, the relationship here confers a variety of mutual benefits.[13] As the Act gave the USOC authority and responsibilities that no private organization in this country had ever held. The Act also conferred substantial financial resources on the USOC, authorizing it to seek up to $16 million annually in grants from the Secretary of Commerce, 113(a), and affording it unprecedented power to control the use of the word "Olympic" and related emblems to raise additional funds, 110. As a result of the Act, the United States obtained, for the first time in its history, an exclusive and effective organization to coordinate and administer all amateur athletics related to international competition, and to represent that program abroad. Second, in the eye of the public, both national and international, the connection between the decisions of the United States Government and those of the United States Olympic Committee is profound.[14] The President of the United States has served as the Honorary President of the USOC. The national flag flies both literally and figuratively over the central product of the USOC, the United States Olympic Team. The connection is not lost on the athletes: who can *558 imagine an Olympic hopeful postponing a lucrative professional career with the explanation, "I can't pass up this chance to represent the United States Olympic Committee"? More fundamentally, as Representative Michael observed, it is through our participation in the Games that we display "the great virtues of our system." 124 Cong. Rec. 31662 (18). Even more importantly, there is a close financial and legislative link between the USOC's alleged discriminatory exercise of its word-use authority and the financial success of both the USOC and the Government.[15] It would certainly be "irony amounting to grave injustice" if, to finance the team that is to represent the virtues of our political system, the USOC were free to employ Government-created economic leverage to prohibit political speech. Burton, Yet that is exactly what petitioners allege. In 110 of the Act, Congress granted the USOC not a "normal trademark" but an unprecedented right of "exclusive use of the word `Olympic' without regard to whether use of the word tends to cause confusion," and without "incorporat[ing] defenses available under the Lanham Act." Ante, at 530; see Part II-A, infra. The purpose of this grant of unique discretion was to enhance the fundraising ability |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | grant of unique discretion was to enhance the fundraising ability of the USOC. The Court puts it well: "Section 110 directly advances these governmental interests [promoting the USOC's activities] by supplying the USOC with the means to raise money to support the Olympics and encourages the USOC's activities by ensuring that it will receive the benefits of its efforts." Ante, at 538-539[16] *559 If petitioner is correct in its allegation that the USOC has used its discretion to discriminate against certain groups, then the situation here, as in Burton, is that "profits earned by discrimination not only contribute to, but also are indispensable elements in, the financial success of a governmental agency." Burton, 365 U. S., Indeed, the required nexus between the challenged action and the Government appears even closer here than in Burton. While in Burton the restaurant was able to pursue a policy of discrimination because the State had failed to impose upon it a policy of nondiscrimination, the USOC could pursue its alleged policy of selective enforcement only because Congress affirmatively granted it power that it would not otherwise have to control the use of the word "Olympic." I conclude, then, that the close nexus between the Government and the challenged action compels a finding of Government action. C A close examination of the USOC and the Government thus reveals a unique interdependence between the two. Although at one time amateur sports was a concern merely of private entities, and the Olympic Games an event of significance only to individuals with a particular interest in athletic competition, that era is passed. In the Amateur Sports Act of 18, Congress placed the power and prestige of the United States Government behind a single, central sports organization. Congress delegated to the USOC functions *560 that Government actors traditionally perform the representation of the Nation abroad and the administration of all private organizations in a particular economic sector. The representation function is of particular significance here, in my view, because an organization that need not adhere to the Constitution cannot meaningfully represent this Nation. The Government is free, of course, to "privatize" some functions it would otherwise perform. But such privatization ought not automatically release those who perform Government functions from constitutional obligations. Because the USOC performs a Government function, and because its challenged action is inextricably intertwined with the Government, I would reverse the Court of Appeals finding of no Government action, and remand to the District Court for further proceedings.[17] II Section 110(a)(4) prohibits "any person" from using the word "Olympic" "[w]ithout the consent of the [USOC] |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | using the word "Olympic" "[w]ithout the consent of the [USOC] for the purpose of trade, to induce the sale of any goods or services, or to promote any theatrical exhibition, athletic performance, or competition."[18] The Court construes this section to give *561 the USOC authority over use of the word "Olympic" which far surpasses that provided by a standard trademark. The Court ignores the serious First Amendment problems created by its interpretation. It holds that 110(a)(4) regulates primarily commercial speech, and that this section imposes only those incidental restrictions on expressive speech necessary to further a substantial governmental interest. Ante, at 535-541.[19] I disagree. The statute is overbroad on its face because it is susceptible of application to a substantial amount of noncommercial speech, and vests the USOC with unguided discretion to approve and disapprove others' noncommercial use of "Olympic." Moreover, by eliminating even noncommercial uses of a particular word, it unconstitutionally infringes on the SFAA's right to freedom of expression. The Act also restricts speech in a way that is not content neutral. The Court's justifications of these infringements on First Amendment rights are flimsy. The statute cannot be characterized as a mere regulation of the "manner" of speech, and does not serve any Government purpose that would not effectively be protected by giving the USOC a standard commercial trademark. Therefore, as construed by the Court, 110(a)(4) cannot withstand the First Amendment challenge presented by petitioners. A The USOC has held a trademark in the word "Olympic" since 1896, ante, at 533, and 110(a)(3) of the Amateur Sports *562 Act perpetuates the USOC's protection against infringement of its trademarks. To be more than statutory surplusage, then, 110(a)(4) must provide something more than a normal trademark. Thus, the Court finds that 110(a)(4) grants to the USOC a novel and expansive word-use authority.[20] In my view, the Act, as interpreted by the Court, is substantially overbroad, violating the First Amendment because it prohibits "a substantial amount of constitutionally protected conduct." Hoffman The Amateur Sports Act is substantially overbroad in two respects. First, it grants the USOC the remedies of a commercial trademark to regulate the use of the word "Olympic," but refuses to interpret the Act to incorporate the defenses to trademark infringement provided in the Lanham Act. These defenses are essential safeguards which prevent trademark power from infringing upon constitutionally protected speech. Second, the Court construes 110(a)(4) to grant the USOC unconstitutional authority to prohibit use of "Olympic" in the "promotion of theatrical and athletic events," even if the promotional activities are noncommercial or expressive. Ante, at 535, 540-541.[21] *563 |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | activities are noncommercial or expressive. Ante, at 535, 540-541.[21] *563 1 The first part of 110 prohibits use of the word "Olympic" "for the purpose of trade" or "to induce the sale of any goods or services." There is an important difference between the word-use authority granted by this portion of 110 and a Lanham Act trademark: the former primarily affects noncommercial speech,[22] while the latter does not.[23] Charitable solicitation and political advocacy by organizations such as the SFAA[24] may in part consist of commercial *564 speech regulated by trademark law, but the expressive element of such speech has been sheltered from unconstitutional harm by Lanham Act defenses. Without them, the Amateur Sports Act prohibits a substantial amount of noncommercial speech. Trademark protection has been carefully confined to the realm of commercial speech by two important limitations in the Lanham Act. First, the danger of substantial regulation of noncommercial speech is diminished by denying enforcement of a trademark against uses of words that are not likely "to cause confusion, to cause mistake, or to deceive." See 15 U.S. C. 1066. Confusion occurs when consumers make an incorrect mental association between the involved commercial products or their producers. See E. Vandenburgh, Trademark Law and Procedure 5.20, p. 139 (2d ed. 1968). In contrast, 110(a)(4) regulates even nonconfusing uses of "Olympic." For example, it may be that while SFAA's use of the word "Olympic" would draw attention to certain similarities between the "Gay Olympic Games" and the "Olympic Games," its use might nevertheless not confuse consumers. Because 110 does not incorporate the requirement that a defendant's use of the word be confusing to consumers, it regulates an extraordinary range of noncommercial speech.[25] *565 The fair-use defense also prevents the award of a trademark from regulating a substantial amount of noncommercial speech. See 15 U.S. C. 1115(b)(4). The Lanham Act allows "the use of the name, term, or device which is descriptive of and used fairly and in good faith only to describe to users the goods or services of such party." Ibid.[26] Again, a wide array of noncommercial speech may be characterized as merely descriptive of the goods or services of a party, and thus not intended to propose a commercial transaction. For example, the SFAA's description of its community services appears to be regulated by 110, although the main purpose of such speech may be to educate the public about the social and political views of the SFAA. Congress' failure to incorporate this important defense in 110(a)(4) confers an unprecedented right on the USOC. See Park 'N Fly,[27] *566 In sum, |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | on the USOC. See Park 'N Fly,[27] *566 In sum, while the USOC's trademark of "Olympic" allows the USOC to regulate use of the word in the "strictly business" context, the USOC's authority under 110(a)(4) to regulate nonconfusing and good-faith descriptive uses of the word "Olympic" grants the USOC discretion to prohibit a substantial amount of noncommercial speech. Section 110(a) (4) is therefore substantially overbroad. See Secretary of State of Md. v. Joseph H. Munson ; 2 A key Lanham Act requirement that limits the impact of trademarks on noncommercial speech is the rule that a trademark violation occurs only when an offending trademark is applied to commercial goods and services. See 15 U.S. C. 1066 and 1127. The Amateur Sports Act is not similarly qualified. Section 110(a)(4) "allows the USOC to prohibit the use of `Olympic' for promotion of theatrical and athletic events,"[28] even if such uses "go beyond the `strictly business' *567 context." Ante, at 535; see also ante, at 540 (statute extends to promotional uses "even if the promotion is not to induce the sale of goods").[29] This provision necessarily regulates only noncommercial speech, since every possible commercial use of the word "Olympic" is regulated by preceding sections of the statute.[30] While the USOC has unquestioned authority to enforce its "Olympic" trademark against the SFAA, 110(a)(4) gives it additional authority to regulate a substantial amount of noncommercial speech that serves to promote social and political ideas. The SFAA sponsors a number of nonprofit-making theatrical and athletic events, including concerts, film screenings, and plays.[31] These public events are aimed at educating the public about society's alleged discrimination based on *568 sexual orientation, age, sex, and nationality. App. 93-99. In conjunction with these events, the SFAA distributes literature describing the meaning of the Gay Olympic Games. References to "Olympic" in this literature were deleted in response to the injunction, because of 110's application to the promotion of athletic and theatrical events. 3 Thus, contrary to the belief of the Court, 110 may prohibit a substantial amount of noncommercial speech, and is therefore unconstitutionally overbroad. at This overbreadth is particularly significant in light of the unfettered discretion the Act affords to the USOC to prohibit other entities from using the word "Olympic." Given the large number of such users,[32] this broad discretion creates the potential for significant suppression of protected speech. "[A] law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." See also "Proof of an abuse of power in the |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | See also "Proof of an abuse of power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license the dissemination of ideas." This broad discretion, with its potential for abuse, also renders 110 unconstitutionally overbroad on its face. B The Court concedes that "some" uses of "Olympic" prohibited under 110 may involve expressive speech. Ante, at *569 535. But it contends that "[b]y prohibiting the use of one word for particular purposes, neither Congress nor the USOC has prohibited the SFAA from conveying its message. Section 110 restricts only the manner in which the SFAA may convey its message." Ante, at 536 Section 110(a)(4) cannot be regarded as a mere time, place, and manner statute, however. By preventing the use of the word "Olympic," the statute violates the First Amendment by prohibiting dissemination of a message for which there is no adequate translation. In (11), we rejected the very notion advanced today by the Court when considering the censorship of a single four-letter expletive: "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able to discern little social benefit that might result from running the risk of opening the door to such grave results." The Amateur Sports Act gives a single entity exclusive control over a wide range of uses of a word with a deep history in the English language and Western culture. Here, the SFAA intended, by use of the word "Olympic," to promote a realistic image of homosexual men and women that would help them move into the mainstream of their communities. As Judge Kozinski observed in dissent in the Court of Appeals, just as a jacket reading "I Strongly Resent the Draft" would not have conveyed Cohen's message, so a title such as "The Best and Most Accomplished Amateur Gay Athletes Competition" would not serve as an adequate translation of petitioners' message. Indeed, because individual words carry "a life and force of their own," translations never fully capture the sense *570 of the original.[33] The First Amendment protects more than the right to a mere translation. By prohibiting use of the word "Olympic," the USOC substantially infringes upon the SFAA's right to communicate ideas. C The Amateur Sports Act also violates the First Amendment because it restricts speech in a way that is not content |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | it restricts speech in a way that is not content neutral. A wide variety of groups apparently wish to express particular sociopolitical messages through the use of the word "Olympic," but the Amateur Sports Act singles out certain of the groups for favorable treatment. As the Court observes, ante, at 542-543, n. 22, Congress encouraged the USOC to allow the use of "Olympic" in athletic competitions held for youth ("Junior Olympics" and "Explorer Olympics") and handicapped persons ("Special Olympics"), 36 U.S. C. 374(13), while leaving to the USOC's unfettered discretion the question whether other groups may use it. See, e. g., USOC v. Golden Age Olympics, Opposition No. 62, 426 (reprinted in App. 383) (denial of use of "Olympic" to senior citizens group); The statute thus encourages the USOC to endorse particular noncommercial messages, while prohibiting others. Such *571 a scheme is unacceptable under the First Amendment.[34] "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Department of See also D Even if 110(a)(4) may fairly be characterized as a statute that directly regulates only commercial speech, its incidental restrictions on First Amendment freedoms are greater than necessary to further a substantial Government interest. The sole Government interest proffered for giving the USOC sweeping powers over the use of "Olympic" is the desire to provide a financial subsidy to the USOC. Brief for Respondents 24. At minimum, it is necessary to consider whether the USOC's interest in use of the word "Olympic" could not adequately be protected by rights coextensive with those in the Lanham Act, or by some other restriction on use of the word. In the absence of 110(a)(4), the USOC would have authority under the Lanham Act to enforce its "Olympic" trademark against commercial uses of the word that might cause *572 consumer confusion and a loss of the mark's distinctiveness.[35] There is no evidence in the record that this authority is insufficient to protect the USOC from economic harm. The record and the legislative history are barren of proof or conclusion that noncommercial, nonconfusing, and nontrademark use of "Olympic" in any way dilutes or weakens the USOC's trademark. See Stop The Olympic No explanation is offered, for instance, as to how the use of "Olympic" in theatrical events in conjunction with a disclaimer "not associated with [the USOC]" harms the economic force of the trademark. See Brief for Petitioners 12. The Court contends that 110 may prohibit uses of "Olympic" because it protects an "image carefully cultivated |
Justice Brennan | 1,987 | 13 | dissenting | San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. | https://www.courtlistener.com/opinion/111950/san-francisco-arts-athletics-inc-v-united-states-olympic-comm/ | uses of "Olympic" because it protects an "image carefully cultivated by the USOC." Ante, at 541. Again, there is no proof in the record that the Lanham Act inadequately protects the USOC's commercial interest in its image or that the SFAA has harmed the USOC's image by its speech.[36] *573 Language, even in a commercial context, properly belongs to the public, unless the Government's asserted interest is substantial, and unless the limitation imposed is no more extensive than necessary to serve that interest. See ante, at 537, n. 16; see also Park 'N Fly, n. 21 citing Otto Roth & v. Universal Foods Corp.,[37] The Lanham Act is carefully crafted to prevent commercial monopolization of language that otherwise belongs in the public domain. See Park 'N Fly, at[38] The USOC demonstrates no need for additional protection. In my view, the SFAA therefore is entitled to use the word "Olympic" in a nonconfusing and nonmisleading manner in the noncommercial promotion of a theatrical or athletic event, absent proof of resultant harm to the USOC. I dissent. |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | I join THE CHIEF JUSTICE's opinion in full, and would hold that this Court has no jurisdiction to decide this case because petitioners lack standing. The Court having decided otherwise, it is appropriate for me to note my dissent on the merits. I A The provision of law at the heart of this case is 202(a)(1) of the Clean Air Act (CAA), which provides that the Administrator of the Environmental Protection Agency (EPA) "shall by regulation prescribe. standards applicable to the emission of any air pollutant from any class or classes of new motor vehicles or new motor vehicle engines, which in his *1472 judgment cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. 7521(a)(1) As the Court recognizes, the statute "condition[s] the exercise of EPA's authority on its formation of a `judgment.'" Ante, at 1462. There is no dispute that the Administrator has made no such judgment in this case. See ante, at 1463 ("We need not and do not reach the question whether on remand EPA must make an endangerment finding"); The question thus arises: Does anything require the Administrator to make a "judgment" whenever a petition for rulemaking is filed? Without citation of the statute or any other authority, the Court says yes. Why is that so? When Congress wishes to make private action force an agency's hand, it knows how to do so. See, e.g., (discussing the Comprehensive Employment and Training Act (CETA), 29 U.S.C. 816(b) (1976 ed., Supp. V), which "provide[d] that the Secretary of Labor `shall' issue a final determination as to the misuse of CETA funds by a grant recipient within 120 days after receiving a complaint alleging such misuse"). Where does the CAA say that the EPA Administrator is required to come to a decision on this question whenever a rulemaking petition is filed? The Court points to no such provision because none exists. Instead, the Court invents a multiple-choice question that the EPA Administrator must answer when a petition for rulemaking is filed. The Administrator must exercise his judgment in one of three ways: (a) by concluding that the pollutant does cause, or contribute to, air pollution that endangers public welfare (in which case EPA is required to regulate); (b) by concluding that the pollutant does not cause, or contribute to, air pollution that endangers public welfare (in which case EPA is not required to regulate); or (c) by "provid[ing] some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether" greenhouse gases endanger public |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | exercise its discretion to determine whether" greenhouse gases endanger public welfare, ante, at 1462, (in which case EPA is not required to regulate). I am willing to assume, for the sake of argument, that the Administrator's discretion in this regard is not entirely unboundedthat if he has no reasonable basis for deferring judgment he must grasp the nettle at once. The Court, however, with no basis in text or precedent, rejects all of EPA's stated "policy judgments" as not "amount[ing] to a reasoned justification," ante, at 1463, effectively narrowing the universe of potential reasonable bases to a single one: Judgment can be delayed only if the Administrator concludes that "the scientific uncertainty is [too] profound." The Administrator is precluded from concluding for other reasons "that it would. be better not to regulate at this time." [1] Such other reasonsperfectly valid reasonswere set forth in the agency's statement. "We do not believe that it would be either effective or appropriate for EPA to establish [greenhouse gas] standards for motor vehicles at this time. As described in detail below, the President has laid out a comprehensive approach *1473 to climate change that calls for near-term voluntary actions and incentives along with programs aimed at reducing scientific uncertainties and encouraging technological development so that the government may effectively and efficiently address the climate change issue over the long term. "[E]stablishing [greenhouse gas] emission standards for U.S. motor vehicles at this time would result in an inefficient, piecemeal approach to addressing the climate change issue. The U.S. motor vehicle fleet is one of many sources of [greenhouse gas] emissions both here and abroad, and different [greenhouse gas] emission sources face different technological and financial challenges in reducing emissions. A sensible regulatory scheme would require that all significant sources and sinks of [greenhouse gas] emissions be considered in deciding how best to achieve any needed emission reductions. "Unilateral EPA regulation of motor vehicle [greenhouse gas] emissions could also weaken U.S. efforts to persuade developing countries to reduce the [greenhouse gas] intensity of their economies. Considering the large populations and growing economies of some developing countries, increases in their [greenhouse gas] emissions could quickly overwhelm the effects of [greenhouse gas] reduction measures in developed countries. Any potential benefit of EPA regulation could be lost to the extent other nations decided to let their emissions significantly increase in view of U.S. emissions reductions. Unavoidably, climate change raises important foreign policy issues, and it is the President's prerogative to address them." 68 Fed.Reg. 52929-52931 (footnote omitted). The Court dismisses this analysis as "rest[ing] on reasoning divorced from the |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | dismisses this analysis as "rest[ing] on reasoning divorced from the statutory text." Ante, at 1462. "While the statute does condition the exercise of EPA's authority on its formation of a `judgment,' that judgment must relate to whether an air pollutant `cause[s], or contribute[s] to, air pollution which may reasonably be anticipated to endanger public health or welfare.'" True but irrelevant. When the Administrator makes a judgment whether to regulate greenhouse gases, that judgment must relate to whether they are air pollutants that "cause, or contribute to, air pollution which may reasonably be anticipated to endanger public health or welfare." 42 U.S.C. 7521(a)(1). But the statute says nothing at all about the reasons for which the Administrator may defer making a judgmentthe permissible reasons for deciding not to grapple with the issue at the present time. Thus, the various "policy" rationales, ante, at 1463, that the Court criticizes are not "divorced from the statutory text," ante, at 1462, except in the sense that the statutory text is silent, as texts are often silent about permissible reasons for the exercise of agency discretion. The reasons the EPA gave are surely considerations executive agencies regularly take into account (and ought to take into account) when deciding whether to consider entering a new field: the impact such entry would have on other Executive Branch programs and on foreign policy. There is no basis in law for the Court's imposed limitation. EPA's interpretation of the discretion conferred by the statutory reference to "its judgment" is not only reasonable, it is the most natural reading of the text. The Court nowhere explains why this interpretation is incorrect, let alone why it is not entitled to deference under U.S.A. As the Administrator acted within the law in declining to make a "judgment" for the policy reasons above set forth, I would uphold the decision to deny the rulemaking petition on that ground alone. B Even on the Court's own terms, however, the same conclusion follows. As mentioned above, the Court gives EPA the option of determining that the science is too uncertain to allow it to form a "judgment" as to whether greenhouse gases endanger public welfare. Attached to this option (on what basis is unclear) is an essay requirement: "If," the Court says, "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming, EPA must say so." Ante, at 1463. But EPA has said precisely thatand at great length, based on information contained in a 2001 report by the National Research Council |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | contained in a 2001 report by the National Research Council (NRC) entitled Climate Change Science: An Analysis of Some Key Questions: "As the NRC noted in its report, concentrations of [greenhouse gases (GHGs)] are increasing in the atmosphere as a result of human activities (pp. 9-12). It also noted that `[a] diverse array of evidence points to a warming of global surface air temperatures' (p. 16). The report goes on to state, however, that `[b]ecause of the large and still uncertain level of natural variability inherent in the climate record and the uncertainties in the time histories of the various forcing agents (and particularly aerosols), a [causal] linkage between the buildup of greenhouse gases in the atmosphere and the observed climate changes during the 20th century cannot be unequivocally established. The fact that the magnitude of the observed warming is large in comparison to natural variability as simulated in climate models is suggestive of such a linkage, but it does not constitute proof of one because the model simulations could be deficient in natural variability on the decadal to century time scale' (p. 17). "The NRC also observed that `there is considerable uncertainty in current understanding of how the climate system varies naturally and reacts to emissions of [GHGs] and aerosols' (p. 1). As a result of that uncertainty, the NRC cautioned that `current estimate of the magnitude of future warming should be regarded as tentative and subject to future adjustments (either upward or downward).' It further advised that `[r]educing the wide range of uncertainty inherent in current model predictions of global climate change will require major advances in understanding and modeling of both (1) the factors that determine atmospheric concentrations of [GHGs] and aerosols and (2) the so-called "feedbacks" that determine the sensitivity of the climate system to a prescribed increase in [GHGs].' "The science of climate change is extraordinarily complex and still evolving. Although there have been substantial advances in climate change science, there continue to be important uncertainties in our understanding of the factors that may affect future climate change and how it should be addressed. As the NRC explained, predicting future climate change necessarily involves a complex web of economic and physical factors including: Our ability to predict future global anthropogenic emissions of GHGs and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed *1475 by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts). The NRC noted, in particular, that `[t]he understanding of the relationships between weather/climate and human health is in its infancy and therefore the health consequences of climate change are poorly understood' (p. 20). Substantial scientific uncertainties limit our ability to assess each of these factors and to separate out those changes resulting from natural variability from those that are directly the result of increases in anthropogenic GHGs. "Reducing the wide range of uncertainty inherent in current model predictions will require major advances in understanding and modeling of the factors that determine atmospheric concentrations of greenhouse gases and aerosols, and the processes that determine the sensitivity of the climate system." 68 Fed.Reg. 52930. I simply cannot conceive of what else the Court would like EPA to say. II A Even before reaching its discussion of the word "judgment," the Court makes another significant error when it concludes that " 202(a)(1) of the Clean Air Act authorizes EPA to regulate greenhouse gas emissions from new motor vehicles in the event that it forms a `judgment' that such emissions contribute to climate change." Ante, at 1459 For such authorization, the Court relies on what it calls "the Clean Air Act's capacious definition of `air pollutant.'" Ante, at 1460. "Air pollutant" is defined by the Act as "any air pollution agent or combination of such agents, including any physical, chemical,. substance or matter which is emitted into or otherwise enters the ambient air." 42 U.S.C. 7602(g). The Court is correct that "[c]arbon dioxide, methane, nitrous oxide, and hydrofluorocarbons," ante, at 1462, fit within the second half of that definition: They are "physical, chemical,. substance[s] or matter which [are] emitted into or otherwise ente[r] the ambient air." But the Court mistakenly believes this to be the end of the analysis. In order to be an "air pollutant" under the Act's definition, the "substance or matter [being] emitted into the ambient air" must also meet the first half of the definitionnamely, it must be an "air pollution agent or combination of such agents." The Court simply pretends this half of the definition does not exist. The Court's analysis faithfully follows the argument advanced by petitioners, which focuses on the word "including" in the statutory definition |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | which focuses on the word "including" in the statutory definition of "air pollutant." See Brief for Petitioners 13-14. As that argument goes, anything that follows the word "including" must necessarily be a subset of whatever precedes it. Thus, if greenhouse gases qualify under the phrase following the word "including," they must qualify under the phrase preceding it. Since greenhouse gases come within the capacious phrase "any physical, chemical,. substance or matter which is emitted into or otherwise enters the ambient air," *1476 they must also be "air pollution agent[s] or combination[s] of such agents," and therefore meet the definition of "air pollutant[s]." That is certainly one possible interpretation of the statutory definition. The word "including" can indeed indicate that what follows will be an "illustrative" sampling of the general category that precedes the word. Federal Land Bank of St. Often, however, the examples standing alone are broader than the general category, and must be viewed as limited in light of that category. The Government provides a helpful (and unanswered) example: "The phrase `any American automobile, including any truck or minivan,' would not naturally be construed to encompass a foreign-manufactured [truck or] minivan." Brief for Federal Respondent 34. The general principle enunciatedthat the speaker is talking about American automobilescarries forward to the illustrative examples (trucks and minivans), and limits them accordingly, even though in isolation they are broader. Congress often uses the word "including" in this manner. In 28 U.S.C. 1782(a), for example, it refers to "a proceeding in a foreign or international tribunal, including criminal investigations conducted before formal accusation." Certainly this provision would not encompass criminal investigations underway in a domestic tribunal. See also, e.g., 2 U.S.C. 54(a) ; 22 U.S.C. 2304(b)(1) In short, the word "including" does not require the Court's (or the petitioners') result. It is perfectly reasonable to view the definition of "air pollutant" in its entirety: An air pollutant can be "any physical, chemical, substance or matter which is emitted into or otherwise enters the ambient air," but only if it retains the general characteristic of being an "air pollution agent or combination of such agents." This is precisely the conclusion EPA reached: "[A] substance does not meet the CAA definition of `air pollutant' simply because it is a `physical, chemical,. substance or matter which is emitted into or otherwise enters the ambient air.' It must also be an `air pollution agent.'" 68 Fed.Reg. 52929, n. 3. See also Once again, in the face of textual ambiguity, the Court's application of deference to EPA's interpretation of the word "including" is nowhere to be found.[2] Evidently, |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | of the word "including" is nowhere to be found.[2] Evidently, the Court defers only to those reasonable interpretations that it favors. B Using (as we ought to) EPA's interpretation of the definition of "air pollutant," we must next determine whether greenhouse gases are "agent[s]" of "air pollution." If so, the statute would authorize *1477 regulation; if not, EPA would lack authority. Unlike "air pollutants," the term "air pollution" is not itself defined by the CAA; thus, once again we must accept EPA's interpretation of that ambiguous term, provided its interpretation is a "permissible construction of the statute." In this case, the petition for rulemaking asked EPA for "regulation of [greenhouse gas] emissions from motor vehicles to reduce the risk of global climate change." 68 Fed.Reg. 52925. Thus, in deciding whether it had authority to regulate, EPA had to determine whether the concentration of greenhouse gases assertedly responsible for "global climate change" qualifies as "air pollution." EPA began with the commonsense observation that the "[p]roblems associated with atmospheric concentrations of CO2," bear little resemblance to what would naturally be termed "air pollution": "EPA's prior use of the CAA's general regulatory provisions provides an important context. Since the inception of the Act, EPA has used these provisions to address air pollution problems that occur primarily at ground level or near the surface of the earth. For example, national ambient air quality standards (NAAQS) established under CAA section 109 address concentrations of substances in the ambient air and the related public health and welfare problems. This has meant setting NAAQS for concentrations of ozone, carbon monoxide, particulate matter and other substances in the air near the surface of the earth, not higher in the atmosphere. CO2, by contrast, is fairly consistent in concentration throughout the world's atmosphere up to approximately the lower stratosphere." In other words, regulating the buildup of CO2 and other greenhouse gases in the upper reaches of the atmosphere, which is alleged to be causing global climate change, is not akin to regulating the concentration of some substance that is polluting the air. We need look no further than the dictionary for confirmation that this interpretation of "air pollution" is eminently reasonable. The definition of "pollute," of course, is "[t]o make or render impure or unclean." Webster's New International Dictionary 1910 (2d ed.1949). And the first three definitions of "air" are as follows: (1) "[t]he invisible, odorless, and tasteless mixture of gases which surrounds the earth"; (2) "[t]he body of the earth's atmosphere; esp., the part of it near the earth, as distinguished from the upper rarefied part"; (3) "[a] |
Justice Scalia | 2,007 | 9 | second_dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | earth, as distinguished from the upper rarefied part"; (3) "[a] portion of air or of the air considered with respect to physical characteristics or as affecting the senses." EPA's conception of "air pollution"focusing on impurities in the "ambient air" "at ground level or near the surface of the earth"is perfectly consistent with the natural meaning of that term. In the end, EPA concluded that since "CAA authorization to regulate is generally based on a finding that an air pollutant causes or contributes to air pollution," 68 Fed.Reg. 52928, the concentrations of CO2 and other greenhouse gases allegedly affecting the global climate are beyond the scope of CAA's authorization to regulate. "[T]he term `air pollution' as used in the regulatory provisions cannot be interpreted to encompass global climate change." Once again, the Court utterly fails to explain why this interpretation is incorrect, let alone so unreasonable as to be unworthy of deference. * * * The Court's alarm over global warming may or may not be justified, but it ought *1478 not distort the outcome of this litigation. This is a straightforward administrative-law case, in which Congress has passed a malleable statute giving broad discretion, not to us but to an executive agency. No matter how important the underlying policy issues at stake, this Court has no business substituting its own desired outcome for the reasoned judgment of the responsible agency. |
Justice Stewart | 1,976 | 18 | concurring | Hines v. Anchor Motor Freight, Inc. | https://www.courtlistener.com/opinion/109392/hines-v-anchor-motor-freight-inc/ | I agree with the Court that proof of breach of the Union's duty of fair representation will remove the bar of finality from the arbitral decision that Anchor did not wrongfully discharge the petitioners. See ; But this is not to say that proof of breach of the Union's representation duty would render Anchor potentially liable for backpay accruing between the time of the "tainted" decision by the arbitration committee *573 and a subsequent "untainted" determination that the discharges were, after all, wrongful. If an employer relies in good faith on a favorable arbitral decision, then his failure to reinstate discharged employees cannot be anything but rightful, until there is a contrary determination. Liability for the intervening wage loss must fall not on the employer but on the union. Such an apportionment of damages is mandated by Vaca's holding that "damages attributable solely to the employer's breach of contract should not be charged to the union, but increases if any in those damages caused by the union's refusal to process the grievance should not be charged to the employer." -198. To hold an employer liable for back wages for the period during which he rightfully refuses to rehire discharged employees would be to charge him with a contractual violation on the basis of conduct precisely in accord with the dictates of the collective agreement. MR. |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | The Court today concludes that Congress did not intend the abandonment provision of the Bankruptcy Code, 11 U.S. C. 554(a), to pre-empt "certain state and local laws." In something of a surprise ending, the Court limits the class of laws that can prevent an otherwise authorized abandonment by a trustee to those "reasonably designed to protect the public health or safety from identified hazards." While this limitation reduces somewhat the scope of my disagreement with the result reached, it renders both the ratio decidendi and the import of the Court's opinion quite unclear. More important, I remain unconvinced by the Court's arguments supporting state power to bar abandonment. The principal and only independent ground offered that Congress codified "well-recognized restrictions of a trustee's abandonment power" is particularly unpersuasive. It rests on a misreading of three pre-Code cases, the elevation of that *508 misreading into a "well-recognized" exception to the abandonment power, and the unsupported assertion that Congress must have meant to codify the exception (or something like it). These specific shortcomings in the Court's analysis, which are addressed in greater detail below, stem at least in part from the Court's failure to discuss even in passing either the nature of abandonment or its role in federal bankruptcy. Abandonment is "the release from the debtor's estate of property previously included in that estate." 2 W. Norton, Bankruptcy Law and Practice 39.01 citing Prior to enactment of the Bankruptcy Code in there was no statutory provision specifically authorizing abandonment in liquidation cases. By analogy to the trustee's statutory power to reject executory contracts, courts had developed a rule permitting the trustee to abandon property that was worthless or not expected to sell for a price sufficiently in excess of encumbrances to offset the costs of administration. 4 L. King, Collier on Bankruptcy ¶ 554.01 (hereinafter Collier).[1] This judge-made rule served the overriding purpose of bankruptcy liquidation: the expeditious reduction of the debtor's property to money, for equitable distribution to creditors, 4 Collier ¶ 554.01. Forcing the trustee to administer burdensome property would contradict this purpose, slowing the administration of the estate and draining its assets. *509 The Bankruptcy Code expressly incorporates the power of abandonment into federal bankruptcy legislation for the first time. The relevant provision bears repeating: "(a) After notice and a hearing, the trustee may abandon any property of the estate that is burdensome to the estate or that is of inconsequential value to the estate." 11 U.S. C. 554(a) This language, absolute in its terms, suggests that a trustee's power to abandon is limited only by considerations |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | a trustee's power to abandon is limited only by considerations of the property's value to the estate. It makes no mention of other factors to be balanced or weighed and permits no easy inference that Congress was concerned about state environmental regulations.[2] Indeed, as the Court notes, when Congress was so concerned it expressed itself clearly, specifically exempting some environmental injunctions from the automatic stay provisions of 362 of the Code, 11 U.S. C. 362(b)(4), (5) (1982 ed. and Supp. II). See Nor does the scant legislative history of 554 support the Court's interpretation. Nowhere does that legislative history *510 suggest that Congress intended to limit the trustee's authority to abandon burdensome property where abandonment might be opposed by those charged with the exercise of state police or regulatory powers. The Court seeks to turn the seemingly unqualified language and the absence of helpful legislative history to its advantage. Adopting the reasoning of the Court of Appeals, the Court argues that in light of Congress' failure to elaborate, 554 must have been intended to codify prior "abandonment" case law, and that under prior law "a trustee could not exercise his abandonment power in violation of certain state and federal laws," ante, at 501. I disagree. We have previously expressed our unwillingness to read into unqualified statutory language exceptions or limitations based upon legislative history unless that legislative history demonstrates with extraordinary clarity that this was indeed the intent of Congress. E. g., I think that upon analysis the "legislative history" relied upon by the Court here falls far short of this standard. The Court relies on just three cases for its claimed "established corollary" to the pre-Code abandonment power. A close reading of those cases, however, reveals that none supports the rule announced today. In the Court of Appeals held that a trustee could not abandon worthless barges obstructing traffic in Baltimore Harbor when the abandonment would have violated federal law. The Court concluded that the "judge-made rule [of abandonment] must give way" to "an Act of Congress in the public interest." Ottenheimer thus depended on the need to reconcile a conflict between a judicial gloss on the Bankruptcy Act and the commands of another federal statute. We implicitly confirmed the validity of such an approach two Terms ago in Here, by contrast, the "conflict" is with the uncertain commands of *511 state laws that the Court declines to identify.[3] In addition, the Court of Appeals relied heavily on the fact that the pre-Code law of abandonment was judge-made, which in turn raises the somewhat Delphic inquiry as to whether |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | in turn raises the somewhat Delphic inquiry as to whether that court would have decided the case the same way under the present Code. In re Lewis Jones, Inc., 1 BCD 277 (Bkrtcy Ct. ED Pa. 1974), was Bankruptcy Court decision concluding that the principle of Ottenheimer did not apply because there was no conflicting statute. But because the right to abandon was based on judge-made law, the court nonetheless found itself free to protect the public interest by requiring a trustee seeking abandonment to first spend funds of the estate to seal manholes and vents in an underground pipe network. While this case admittedly comes closer to supporting the Court's position than does Ottenheimer, it too turns on the judge-made nature of the abandonment power. Moreover, I do not believe that the isolated decision of a single Bankruptcy Court rises to the level of "established law" that we can fairly assume Congress intended to incorporate. See Merrill Lynch, Pierce, Fenner & Smith, In In re Chicago Rapid Transit Co., (CA7), cert. denied sub nom. Chicago Junction R. the District Court sitting in bankruptcy had authorized the bankrupt to abandon a lease of a rail line, and a lessor appealed. The bankrupt did not appeal the District Court's imposition of conditions on the abandonment; the propriety of those conditions thus was not before the *512 Court of Appeals, which affirmed the District Court's authorization of abandonment. So while there may be dicta in the Court of Appeals' opinion that would support some limitation on the power of abandonment, the holding of the case certainly does not. In short, none of these cases supports the Court's view that 554(a) contains an implicit exception for "certain state and local laws." Even assuming these cases stand for the proposition ascribed to them in the Court's opinion, that opinion's brief discussion of the cases, ante, at 500-501, certainly does not support the claim that they reflect an "established corollary" to pre-Code abandonment law. Generally speaking, three rather isolated cases do not constitute the sort of settled law that we can fairly assume Congress intended to codify absent some expression of its intent to do so. Perhaps recognizing this, respondents place substantial reliance for their view that the exception was "well settled" on the following statement in the (pre-Code) 14th edition of Collier on Bankruptcy, accompanying a citation to Ottenheimer and Chicago Rapid Transit: "Recent cases illustrate, however, that the trustee in the exercise of the power to abandon is subject to the application of general regulations of a police nature." 4A J. Moore, Collier |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | general regulations of a police nature." 4A J. Moore, Collier on Bankruptcy ¶ 70.42[2], pp. 502-504 ; see also In re Quanta Resources Corp., Respondents further observe that the section of this treatise addressing abandonment was cited in a note to an early precursor of 554, 4-611 of the proposed Bankruptcy Act of 1973, H. R. Doc. No. 93-137, Part II, p. 181, reprinted in A. Resnick & E. Wypyski, 2 Bankruptcy Reform Act of : A Legislative History, Doc. No. 22 (1979). While resourceful, this argument is wholly unpersuasive. The reference to Collier is not part of the Code's " `legislative history' in any meaningful sense of the term," Board of Governors, FRS v. Dimension Financial Corp., ante, at 372. And the proposition for which the section in Collier is cited is *513 not the view that authority for abandonment is qualified by state police power, but instead the much less remarkable proposition that "[t]he concept of abandonment is well recognized in the case law. See 4A Collier ¶ 70.42[3]." In order to divine that the statutory power to abandon in the proposed Code was to be conditioned on compliance with state police power regulations, therefore, a Senator or Congressman would not merely have had to look at the legislative history of the precursor to the Code, but also would have had to read the several-page treatise section cited in that earlier legislative history. Neither the three cases cited by the Court nor the attenuated reference to the since superseded version of Collier supports the inference that Congress, while writing 554 in unqualified terms, intended to incorporate so ill-defined and uncertain an exception to the abandonment authority of the trustee. After suggesting that "if Congress intends for legislation to change the interpretation of a judicially created concept" it should do so expressly, ante, at 501, the Court concedes that these cases "do not define for us the exact contours of the trustee's abandonment power," The Court never identifies the source from which it draws the "exact contours" of the rule it announces today; congressional intent does not appear to be a likely candidate. Congress knew how to draft an exception covering the exercise of "certain" police powers when it wanted to. See 11 U.S. C. 362(b)(4), (5) (1982 ed. and Supp. II); It also knew how to draft a qualified abandonment provision. See 1170(a)(2) (abandonment of railroad lines permitted only if "consistent with the public interest"). Congress' failure to so qualify 554 indicates that it intended the relevant inquiry at an abandonment hearing to be limited to whether the |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | at an abandonment hearing to be limited to whether the property is burdensome and of inconsequential value to the estate. I find the Court's discussion of 28 U.S. C. 959(b) somewhat difficult to fathom. After suggesting that 959(b) *514 "provides additional evidence" for the self-evident proposition "that Congress did not intend for the Bankruptcy Code to pre-empt all state laws," ante, at 505, the Court concedes that the provision "does not directly apply to an abandonment under 554(a) of the Bankruptcy Code," The precise nature of its indirect application, however, is left unclear. Respondents contend that 959(b) operates to bar abandonment in these cases. Assuming that temporary management or operation of a facility during liquidation is governed by 959(b), I believe that a trustee's filing of a petition to abandon, as opposed to continued operation of a site pending a decision to abandon, does not constitute "manage[ment]" or "opera[tion]" under that provision. Not only would a contrary reading strain the language of 959(b), cf. In re Adelphi Hospital Corp., (in pre-Code liquidation proceeding trustee "is in no sense a manager of an institution's operations"), it also would create an exception to the abandonment power without a shred of evidence that Congress intended one. As one commentator has noted, 554(a) "is among the few provisions in the Bankruptcy Code that do not contain explicit exceptions." Note, I would not read 28 U.S. C. 959(b) as creating an implicit exception. Citing respondents argue that the Bankruptcy Court's equitable powers support the result reached below. I disagree. While the Bankruptcy Court is a court of equity, the Bankruptcy Code "does not authorize freewheeling consideration of every conceivable equity." & The Bankruptcy Court may not, in the exercise of its equitable powers, enforce its view of sound public policy at the expense of the interests the Code is designed to protect. In these cases, it is undisputed that the properties in question were burdensome and of inconsequential value to the estate. Forcing the trustee to expend estate *515 assets to clean up the sites would plainly be contrary to the purposes of the Code. I fully appreciate the Court's concern that abandonment may "aggravat[e] already existing dangers by halting security measures that preven[t] public entry, vandalism, and fire." Ante, at 499, n. 3. But in almost all cases, requiring the trustee to notify the relevant authorities before abandoning will give those authorities adequate opportunity to step in and provide needed security. As the Bankruptcy Court noted in No. 84-805: "The City and State are in a better position in every respect than either the |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | in a better position in every respect than either the Trustee or debtor's creditors to do what needs to be done to protect the public against the dangers posed by the PCB-contaminated facility." App. to Pet. for Cert. 73a. And requiring notice before abandonment in appropriate cases is perfectly consistent with the Code. It advances the State's interest in protecting the public health and safety, and, unlike the rather uncertain exception to the abandonment power propounded by the Court, at the same time allows for the orderly liquidation and distribution of the estate's assets. Here, of course, the trustee provided such notice and the relevant authorities were afforded an opportunity to take appropriate preventative and remedial measures. I likewise would not exclude the possibility that there may be a far narrower condition on the abandonment power than that announced by the Court today, such as where abandonment by the trustee itself might create a genuine emergency that the trustee would be uniquely able to guard against. The United States in its brief as amicus curiae suggests, for example, that there are limits on the authority of a trustee to abandon dynamite sitting on a furnace in the basement of a schoolhouse. Although I know of no situations in which trustees have sought to abandon dynamite under such circumstances, the narrow exception that I would reserve surely would embrace that situation. *516 What the Court fails to appreciate is that respondents' interest in these cases lies not just in protecting public health and safety but also in protecting the public fisc. In No. 84-805, before undertaking cleanup efforts, New York unsuccessfully sought from the Bankruptcy Court a first lien on the Long Island City property to the extent of any expenditures it might make to bring the site into compliance with state and local law. New York did not appeal the court's denial of a first lien, and proceeded to clean up the site (except for the contaminated subsoil). It now presses a claim for reimbursement, maintaining that the trustee should not have been allowed to abandon the site. The New Jersey Department of Environmental Protection, in No. 84-801, apparently seeks to undo the abandonment and force the trustee to expend the estate's remaining assets cleaning up the site, thereby reducing the cleanup costs that must ultimately be borne by the State.[4] The Court states that the "abandonment power is not to be fettered by laws or regulations not reasonably calculated to protect the public health or safety from imminent and identifiable harm." Ante, at 507, n. 9. Because the Court |
Justice Rehnquist | 1,986 | 19 | dissenting | Midlantic Nat. Bank v. New Jersey Dept. of Environmental Protection | https://www.courtlistener.com/opinion/111562/midlantic-nat-bank-v-new-jersey-dept-of-environmental-protection/ | identifiable harm." Ante, at 507, n. 9. Because the Court declines to identify those laws that its deems so "reasonably calculated," I can only speculate about its view of respondents' claim that abandonment can be conditioned on a total cleanup. One might assume, however, that since it affirms the judgments below the Court means to adopt respondents' position. The Court of Appeals, as I read its opinions in these cases, apparently would require the trustee to expend all of Quanta's available assets to clean up the sites.[5] But barring abandonment and forcing a cleanup would effectively *517 place respondents' interest in protecting the public fisc ahead of the claims of other creditors. Congress simply did not intend that 554 abandonment hearings would be used to establish the priority of particular claims in bankruptcy. While States retain considerable latitude to ensure that priority status is allotted to their cleanup claims, see -286 I believe that the Court errs by permitting them to impose conditions on the abandonment power that Congress never contemplated. Accordingly, in each of these cases I would reverse the judgment of the Court of Appeals. |
Justice Rehnquist | 1,994 | 19 | dissenting | Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. | https://www.courtlistener.com/opinion/117834/oregon-waste-systems-inc-v-department-of-environmental-quality-of-ore/ | Landfill space evaporates as solid waste accumulates. State and local governments expend financial and political capital to develop trash control systems that are efficient, lawful, and protective of the environment. The State of Oregon responsibly attempted to address its solid waste disposal problem through enactment of a comprehensive regulatory scheme for the management, disposal, reduction, and recycling of solid waste. For this Oregon should be applauded. The regulatory scheme included a fee charged on out-of-state solid waste. The Oregon Legislature directed the Environmental Quality Commission to determine the appropriate surcharge "based on the costs of disposing of solid waste generated out-of-state." Ore. Rev. Stat.298 (1991). The Commission arrived at a surcharge of $2.25 per ton, compared to the $0.85 per ton charged on *109 in-state solid waste. Ore. Admin. Rule 340-97-110(3) (Sept. 19).[1] The surcharge works out to an increase of about $0.14 per week for the typical out-of-state solid waste producer.[2] Brief for Respondents 26-27, n. 16. This seems a small price to pay for the right to deposit your "garbage, rubbish, refuse ; sewage sludge, septic tank and cesspool pumpings or other sludge; manure, dead animals, [and] infectious waste" on your neighbors. Ore. Rev. Stat.005(27) (1991). Nearly 20 years ago, we held that a State cannot ban all out-of-state waste disposal in protecting themselves from hazardous or noxious materials brought across the State's borders. Two Terms ago in Chemical Waste in striking down the State of Alabama's $72 per ton fee on the disposal of out-of-state hazardous waste, the Court left open the possibility that such a fee could be valid if based on the costs of disposing of waste from other States. Once again, however, as in and Chemical Waste the Court further cranks the dormant Commerce Clause ratchet against the States by striking down such cost-based fees, and by so doing ties the hands of the States in addressing the vexing national problem of solid waste disposal. I dissent. *110 Americans generated nearly 196 million tons of municipal solid waste in 1990, an increase from 128 million tons in 1975. See U. S. Environmental Protection Agency, Characterization of Municipal Solid Waste in the United States: 1992 Update, p. ES-3. Under current projections, Americans will produce 222 million tons of garbage in the year 2000. Generating solid waste has never been a problem. Finding environmentally safe disposal sites has. By 1991, it was estimated that 45 percent of all solid waste landfills in the Nation had reached capacity. (1991). Nevertheless, the Court stubbornly refuses to acknowledge that a clean and healthy environment, unthreatened by the improper disposal |
Justice Rehnquist | 1,994 | 19 | dissenting | Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. | https://www.courtlistener.com/opinion/117834/oregon-waste-systems-inc-v-department-of-environmental-quality-of-ore/ | a clean and healthy environment, unthreatened by the improper disposal of solid waste, is the commodity really at issue in cases such as these, see, e. g., Chemical Waste and Fort Gratiot Sanitary Landfill, Notwithstanding the identified shortage of landfill space in the Nation, the Court notes that it has "little difficulty," ante, at 104, concluding that the Oregon surcharge does not operate as a compensatory tax, designed to offset the loss of available landfill space in the State caused by the influx of out-of-state waste. The Court reaches this nonchalant conclusion because the State has failed "to identify a specific charge on intrastate commerce equal to or exceeding the surcharge." The Court's myopic focus on "differential fees" ignores the fact that in-state producers of solid waste support the Oregon regulatory program through state income taxes and by paying, indirectly, the numerous fees imposed on landfill operators and the dumping fee on in-state waste. Ore. Rev. Stat.005 et seq. (1991). We confirmed in that a State may enact a comprehensive regulatory system to address an environmental problem or *111 a threat to natural resources within the confines of the Commerce Clause. In the context of threatened ground water depletion, we stated that "[o]bviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it seeks to prevent the uncontrolled transfer of water out of the State." The same point could be made about a "clean and safe environment" in these cases: Where a State imposes restrictions on the ability of its own citizens to dispose of solid waste in an effort to promote a "clean and safe environment," it is not discriminating against interstate commerce by preventing the uncontrolled transfer of out-ofstate solid waste into the State. The availability of safe landfill disposal sites in Oregon did not occur by chance. Through its regulatory scheme, the State of Oregon inspects landfill sites, monitors waste streams, promotes recycling, and imposes an $0.85 per ton disposal fee on in-state waste, Ore. Rev. Stat.005 et seq. (1991), all in an effort to curb the threat that its residents will harm the environment and create health and safety problems through excessive and unmonitored solid waste disposal. Depletion of a clean and safe environment will follow if Oregon must accept out-of-state waste at its landfills without a sharing of the disposal costs. The Commerce Clause does not require a State to abide this outcome where the "natural resource has some indicia of a good publicly produced and owned in which a State may favor its |
Justice Rehnquist | 1,994 | 19 | dissenting | Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. | https://www.courtlistener.com/opinion/117834/oregon-waste-systems-inc-v-department-of-environmental-quality-of-ore/ | produced and owned in which a State may favor its own citizens in times of shortage." Sporhase, A shortage of available landfill space is upon us, (1991), and with it comes the accompanying health and safety hazards flowing from the improper disposal of solid wastes. We have long acknowledged a distinction between economic protectionism and health and safety regulation promulgated by Oregon. See H. P. Hood & Sons, *112 Far from neutralizing the economic situation for Oregon producers and out-of-state producers, the Court's analysis turns the Commerce Clause on its head. Oregon's neighbors will operate under a competitive advantage against their Oregon counterparts as they can now produce solid waste with reckless abandon and avoid paying concomitant state taxes to develop new landfills and clean up retired landfill sites. While I understand that solid waste is an article of commerce, -623, it is not a commodity sold in the marketplace; rather it is disposed of at a cost to the State. Petitioners do not buy garbage to put in their landfills; solid waste producers pay petitioners to take their waste. Oregon solid waste producers do not compete with out-of-state businesses in the sale of solid waste. Thus, the fees do not alter the price of a product that is competing with other products for common purchasers. If anything, striking down the fees works to the disadvantage of Oregon businesses. They alone will have to pay the "nondisposal" fees associated with solid waste: landfill siting, landfill cleanup, insurance to cover environmental accidents, and transportation improvement costs associated with out-of-state waste being shipped into the State. While we once recognized that "`the collection and disposal of solid wastes should continue to be primarily the function of State, regional, and local agencies,' " quoting 42 U.S. C. 6901(a)(4) (1976 ed.), the Court today leaves States with only two options: become a dumper and ship as much waste as possible to a less populated State, or become a dumpee, and stoically accept waste from more densely populated States. The Court asserts that the State has not offered "any safety or health reason[s]" for discouraging the flow of solid waste into Oregon. Ante, at 101. I disagree. The availability of environmentally sound landfill space and the proper disposal of solid waste strike me as justifiable "safety or health" rationales for the fee. As far back as the turn of the *113 century, the Court recognized that control over the collection and disposal of solid waste was a legitimate, nonarbitrary exercise of police powers to protect health and safety. See, e. g., California Reduction ; and |
Justice Rehnquist | 1,994 | 19 | dissenting | Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. | https://www.courtlistener.com/opinion/117834/oregon-waste-systems-inc-v-department-of-environmental-quality-of-ore/ | health and safety. See, e. g., California Reduction ; and In exercising its legitimate police powers in regulating solid waste disposal, Oregon is not "needlessly obstruct[ing] interstate trade or attempt[ing] to place itself in a position of economic isolation." (upholding Maine's ban on the importation of live baitfish on the ground that it serves the legitimate governmental interest in protecting Maine's indigenous fish population from parasites prevalent in out-of-state baitfish). Quite to the contrary, Oregon accepts out-of-state waste as part of its comprehensive solid waste regulatory program and it "retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources." Moreover, Congress also has recognized taxes as an effective method of discouraging consumption of natural resources in other contexts. Cf. 26 U.S. C. 4681, 4682 (1988 ed., Supp. IV) (tax on ozone-depleting chemicals); 26 U.S. C. 4064 (1988 ed. and Supp. IV) (gas guzzler excise tax). Nothing should change the analysis when the natural resourcelandfill spacewas created or regulated by the State in the first place. *114 In its sweeping ruling, the Court makes no distinction between publicly and privately owned landfills. It rejects the argument that our "user fee" cases apply in this context since the landfills owned by the petitioners are private and our user fee analysis applies only to "`charge[s] imposed by the State for the use of a state-owned or state-provided transportation or other facilities and services.' " Ante, at 103, n. 6, quoting Commonwealth Edison Rather than stopping there, however, the majority goes on to note that even if the Oregon surcharge could be viewed as a user fee, "it could not be sustained as such, given that it discriminates against interstate commerce." Ante, at 104, n. 6, citing EvansvilleVanderburgh Airport Authority There is no need to make this dubious assertion. We specifically left unanswered the question whether a state or local government could regulate disposal of out-of-state solid waste at landfills owned by the government in We will undoubtedly be faced with this question directly in the future as roughly 80 percent of landfills receiving municipal solid waste in the United States are state or locally owned. U. S. Environmental Protection Agency, Resource Conservation and Recovery Act, Subtitle D Study: Phase 1 Report, p. 4-7 (Table 4-2). We noted in SouthCentral Timber Development, : "[I]f a State is acting as a market participant, rather than as a market regulator, the dormant Commerce Clause places no limitation on its activities." See also Similarly, if the State owned and operated a park or recreational facility, it would |
Justice Rehnquist | 1,994 | 19 | dissenting | Oregon Waste Systems, Inc. v. Department of Environmental Quality of Ore. | https://www.courtlistener.com/opinion/117834/oregon-waste-systems-inc-v-department-of-environmental-quality-of-ore/ | owned and operated a park or recreational facility, it would be allowed to charge differential fees for in-state and out-of-state users of the resource. See, e. g., More recently we upheld such differential fees under a reasonableness standard in Northwest Airlines, despite the fact that the fees were not precisely tied to the costs of the services provided at the publicly owned airport. We relied on our Commerce Clause analysis from Evansville We stated in Evansville: "At least so long as the toll is based on some fair approximation of use or privilege for use, and is neither discriminatory against interstate commerce nor excessive in comparison with the governmental benefit conferred, it will pass constitutional muster, even though some other formula might reflect more exactly the relative use of the state facilities by individual users." at 716-. I think that the $2.25 per ton fee that Oregon imposes on out-of-state waste works out to a similar "fair approximation" of the privilege to use its landfills. Even the Court concedes that our precedents do not demand anything beyond "substantia[l] equivalen[cy]" between the fees charged on in-state and out-of-state waste. Ante, at 103 The $0.14 per week fee imposed on out-of-state waste producers qualifies as "substantially equivalent" under the reasonableness standard of Northwest Airlines and Evansville. The Court begrudgingly concedes that interstate commerce may be made to "pay its way," ante, at 102 yet finds Oregon's nominal surcharge to exact more than a "`just share' " from interstate commerce, It escapes me how an additional $0.14 per week cost for the average solid waste producer constitutes anything but the type of "incidental effects on interstate commerce" endorsed by the majority. Ante, at 99. Evenhanded regulations imposing such incidental effects on interstate commerce must be upheld unless "the burden imposed *116 on such commerce is clearly excessive in relation to the putative local benefits." If the majority finds $0.14 per week beyond the pale, one is left to wonder what the Court possibly could have contemplated when it stated: "`[I]n the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.' " quoting Southern Pacific Surely $0.14 per week falls within even the most crabbed definition of "affect" or "regulate." Today the majority has rendered this "residuum of power" a nullity. The State of Oregon is not prohibiting the export of solid waste from neighboring States; it is only asking that those neighbors pay their |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | I agree that the judgment of the District Court dismissing petitioners' complaint should be affirmed. But I arrive at that conclusion by a different re for I cannot agree that this case, and the jurisdiction of the federal courts over an action for damages brought pursuant to express congressional authority, is to be governed by applying a "principle of comity" grounded solely on this Court's notion of an appropriate division of responsibility between the federal and state judicial systems. Subject only to constitutional constraints, it is exclusively Congress' responsibility to determine the jurisdiction of the federal courts. Federal courts have historically acted within their assigned jurisdiction in accordance with established principles respecting the prudent exercise of equitable power. But this practice lends no credence to the authority which the Court asserts today to renounce jurisdiction over an entire class of damages actions brought pursuant to 42 U.S. C. 1983. I Petitioners J. David Cassilly and Lynn F. Cassilly are owners of real property in St. Louis County, Mo. Petitioner Fair Assessment in Real Estate Association, Inc. (FAIR), is a not-for-profit corporation formed by real estate taxpayers in St. Louis County to promote equitable enforcement of the real property tax laws of the State of Missouri. Respondents are public officials responsible for the execution of the real property tax laws in St. Louis County. On July 2, 1979, *118 petitioners filed this action in the United States District Court for the Eastern District of Missouri, pursuant to 42 U.S. C. 1983, contending that respondents had willfully, intentionally, and systematically deprived them of their rights to due process and equal protection under the Fourteenth Amendment through inequitable property tax assessments. Petitioners alleged that respondents assessed properties with recent improvements at roughly 33 1/3% of current true market value, and older homes on the average of 22 1/2% of current market value. Further they alleged that respondents targeted for reassessment all real property upon which a successful appeal had been prosecuted in the prior year. The Cassillys sought compensatory damages measured by the difference between the taxes which they paid in several years prior to the action, and the amount they contended would have been owing had they been assessed at the average rate. They sought further compensation for expenses they had incurred in their sporadic attempts to remedy the alleged unlawful assessment by resort to the state administrative mechanisms, and substantial punitive damages against each respondent. FAIR sought money damages in the amount of expenses incurred in the course of its efforts to obtain equitable enforcement of the state real property tax |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | to obtain equitable enforcement of the state real property tax law. The District Court dismissed the complaint, holding that the action was barred by the Tax Injunction Act and principles of comity.[1] The judgment of the District Court was affirmed by an equally divided vote of the Court of Appeals for the Eighth Circuit sitting en banc. *119 II The opinion for the Court sets the "principle of comity" against the strong policies of 42 U.S. C. 1983 favoring a federal forum to vindicate deprivations of federal rights, and resolves the issue in favor of comity. In my view, there is no conflict here that could conceivably justify the unprecedented step of renouncing our assigned jurisdiction. Indeed the very cases relied on by the Court in its attempt to find some historic source for its sweeping view of the "principle of comity," reveal the limits of that principle as a source of judicial authority. As employed by the Court in several recent opinions, and in the opinion of the Court today, the "principle of comity" refers to the "proper respect for state functions" that organs of the National Government, most particularly the federal courts, are expected to demonstrate in the exercise of their own legitimate powers. See So employed, the "principle of comity" is nothing more than an encapsulation of policy, albeit policy with roots in the Constitution and our federal system of government.[2] While the "principle of comity" may be a source of judicial policy, it is emphatically no source of judicial power to renounce jurisdiction.[3] The application of the comity principle *120 has thus been limited to a relatively narrow class of cases: Only where a federal court is asked to employ its historic powers as a court of equity, and is called upon to decide whether to exercise the broadest and potentially most intrusive form of judicial authority, does "comity" have an established and substantial role in informing the exercise of the court's discretion.[4] There is little room for the "principle of *121 comity" in actions at law where, apart from matters of administration, judicial discretion is at a minimum.[5] Surely no judicial power to fashion novel doctrine concerning the jurisdiction of the federal courts is to be found in the Constitution itself, which provides that the judicial power "shall be vested *122 in one supreme Court and in such inferior Courts as the Congress may from time to time ordain and establish." U. S. Const., Art. III, 1. The Court relies primarily on Great Lakes Dredge & Dock to support its sweeping view of the comity |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | & Dock to support its sweeping view of the comity principle. Great Lakes presented the question whether the Tax Injunction Act could be "so construed as to prohibit a declaration by federal courts concerning the invalidity of a state tax." We found no need to address that question, holding instead that "those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure." From this the Court today reasons: "Petitioners will not recover damages under 1983 unless a district court first determines that respondents' administration of the County tax system violated petitioners' constitutional rights. In effect, the district court must first enter a declaratory judgment like that barred in Great Lakes. We are convinced that such a determination would be fully as intrusive as the equitable actions that are barred by principles of comity." Ante, at 113. Great Lakes does not support this reasoning. Our opinion there suggests nothing intrusive in bringing a claim involving a question of state taxation to a federal forum. Dismissal of the suit was permissible only because the claim for declaratory relief was designed to gain "an adjudication of rights in anticipation of their threatened infringement."[6] Such a *123 suit, precisely like one for an injunction, would "in every practical respect operate to suspend collection of the state taxes until the litigation is ended."[7] 319 U. S., No similar concern is raised by the present case.[8] The jurisdiction of the federal courts over cases such as the present one reflects a considered congressional judgment. As the Court acknowledges, 1983 "gave a federal cause of action to prisoners, taxpayers, or anyone else who was able to prove that his constitutional or federal rights had been denied by any State." Ante, at 103-104. In addition, 42 U.S. C. 1981 provides that "[a]ll persons shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."[9] (Emphasis added.) Congress has expressly provided jurisdiction over such claims in the district courts.[10] 28 U.S. C. 1343; see *124[11] Where Congress has granted the federal courts jurisdiction, we are not free to repudiate that authority. ;[12]England v. Louisiana State Board of Medical Examiners, In England we said: *125 "There are fundamental objections to any conclusion that a litigant who has properly invoked the jurisdiction of a Federal District Court to consider federal constitutional claims can be compelled, with his consent and through no fault of his own, to accept instead a state |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | no fault of his own, to accept instead a state court's determination of those claims. Such a result would be at war with the unqualified terms in which Congress, pursuant to constitutional authorization, has conferred special categories of jurisdiction upon the federal courts, and with the principle that `When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.'" The power to control the jurisdiction of the lower federal courts is assigned by the Constitution to Congress, not to this Court. In its haste to rid the federal courts of a class of cases that it thinks unfit for federal scrutiny, the Court today departs from this fundamental precept. III Subject of course to constitutional constraints, the jurisdiction of the lower federal courts is subject to the plenary control of Congress. ; As pointed and n. 11, this case appears to fall squarely within the jurisdictional grant of 28 U.S. C. 1343, and perhaps of 28 U.S. C. 1331 as well. The question, then, is whether Congress has anywhere contradicted that presumptive grant of judicial authority. *126 Only one possible source of that contradiction having been suggested, I begin my analysis of the jurisdictional question with the Tax Injunction Act itself. A Title 28 U.S. C. 1341 provides: "The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State." If a suit brought under 1983 for damages is to come within the prohibition of the Act, it would seem necessary to demonstrate that such a suit is one to "enjoin, suspend or restrain the assessment, levy or collection" of a state tax. Respondents argue that the terms "suspend" and "restrain" are words of ordinary usage, and that they are sufficiently broad to bring the present suit for damages, which respondents assert will "chill" state tax collection, within the proscriptions of the Act. In my view, the legislative history of the Act, and the case law background against which it was written, directly refute the suggestion that Congress intended those words to have the encompassing meaning respondents suggest.[13] B The federal courts have for most of their history been scrupulous in the exercise of their equitable powers to avoid unnecessary interference with the administration of state taxation. In Justice Field noted: |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | with the administration of state taxation. In Justice Field noted: * "It is upon taxation that the several States chiefly rely to obtain the means to carry on their respective governments, and it is of the utmost importance to all of them that the modes adopted to enforce the taxes levied should be interfered with as little as possible. Any delay in the proceedings of the officers, upon whom the duty is devolved of collecting the taxes, may derange the operations of government, and thereby cause serious detriment to the public." Thus it was early held that the illegality or unconstitutionality of a state or municipal tax would not in itself provide the foundation for equitable relief in the federal courts. ; see Boise Artesian Water[14] Consistent with equity practice, the federal courts would not enjoin the collection of state taxes, despite the possible unconstitutionality of the exaction, where there existed a "plain, adequate and complete remedy at law." Singer Sewing Machine Although this Court, in the many cases preceding passage of the Tax Injunction Act, affirmed the need for restraint in the exercise of the power of equity in state tax cases, it never intimated that the federal forum was inappropriate where the complaint sought only a remedy in damages, and the case was otherwise within federal jurisdiction. Indeed, the Court repeatedly *128 stated the contrary. See ; Henrietta ; Chicago, B. & Q. R. For example, in Henrietta Mills, a unanimous Court concluded that there was no basis for equitable relief, relying on the fact that there would have been "an adequate remedy at law, not only in the state court, but also in the Federal court if petitioner had been able to show a violation of the Federal Constitution." 281 U.S., at And indeed damages actions for wrongful collection of taxes, brought against both the taxing authority and the taxing officials, were not unknown to the lower federal courts. See, e. g., ; International Paper In only five years prior to the enactment of the Tax Injunction Act, we summarized the federal practice: "Whenever the question has been presented, this Court has uniformly held that the mere illegality or unconstitutionality of a state or municipal tax is not in itself a ground for equitable relief in the courts of the United States. If the remedy at law is plain, adequate, and complete, the aggrieved party is left to that remedy in the state courts, or to his suit at law in the federal courts if the essential elements of federal jurisdiction are present." In sum, while the |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | elements of federal jurisdiction are present." In sum, while the federal courts, prior to the passage of the Tax Injunction Act, would frequently refrain from exercising their equitable powers in state tax cases, damages actions were an established fixture of federal jurisdiction. C Although in 1932 stated a broad principle of restraint in the exercise of federal equity powers, *129 ib the rule was soon honored more in breach than in observance. Purporting to construe these equitable principles in state tax cases, the federal courts had become "free and easy with injunctions."[15] Thus federal remedial practice began to contrast sharply with the limits on state remedial authority, with the result that the federal court became the preferred forum for those who could properly invoke its jurisdiction: principally large -of-state corporations. The legislative history of the Tax Injunction Act makes plain Congress' *130 concern with this disparity, and its effect on local finances. In introducing the bill that ultimately became the Tax Injunction Act, Senator Bone explained: "The existing practice of the Federal courts to entertain tax-injunction suits make[s] it possible for foreign corporations [exercising the diversity jurisdiction] to withhold from a State and its governmental subdivisions taxes in such vast amounts and for such long periods as to disrupt State and county finances, and thus make it possible for such corporations to determine for themselves the amount of taxes they will pay." 81 Cong. Rec. 14 (1937). The Senate Report highlighted the nature of the problem being addressed: "[U]njust discrimination between citizens of the State and foreign corporations doing business in such State has been the cause of much controversy. The controversies arising of the use of the injunctive process in State tax cases would be eliminated by the passage of this bill." S. Rep. No. 1035, 75th Cong., 1st Sess., 2 (1937)[] *131 Not only does the legislative focus belie respondents' suggestion that Congress believed the federal courts not competent to handle matters involving state taxation, but the legislative history addresses directly respondents' principal contention that Congress intended the phrase "enjoin, suspend or restrain" to bar actions for monetary relief from the federal courts. The Report of the House Judiciary Committee appends a "Legal Brief" submitted to the Committee with respect to the proposed bill, which states: "You ask for some assistance on the question of whether the existence of an adequate remedy at law or in equity in the State courts, such as a tax-refund action, would prevent a foreign corporation pursuing the same remedy in the Federal court. In answer, [sic] will say that there might be |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | court. In answer, [sic] will say that there might be circumstances under which the Federal courts would have no jurisdiction of such actions; for instance, where the refund action could be brought only against the State, or against the State officers under such circumstances as to amount to a suit against the State. Under the eleventh amendment to the Federal Constitution, of course, suits against the State, or suits which are in effect suits against the State, are not maintainable in the Federal courts. "But if the refund action is permitted by State legislation or rules of decision against counties or county officers, and the money refunded has not yet reached the State exchequer, such actions, if maintainable in the *132 State courts, could likewise be pursued in the Federal courts if the requisite elements of Federal jurisdiction existed." H. R. Rep. No. 1503, 75th Cong., 1st Sess., 2-3 (1937).[17] The conclusion is thus inescapable that Congress did not intend to bar actions such as this one from the federal courts. On the contrary, Congress clearly intended that the federal forum would continue to remain available in state tax cases for monetary relief despite passage of the Tax Injunction Act. D As understood and applied by this Court prior to the passage of the Tax Injunction Act,[18] and by Congress in enacting the Tax Injunction Act, the "principle of comity" which demanded respect for state tax administration, extended precisely as far as was necessary to ensure that the federal courts not become party to the abuse of their equity power. Congress intended that federal authority be exercised with the same restraint that the States applied in the administration of their own tax system, and thus to restore the parity between the two judicial systems. But there is absolutely no support in either the cases of this Court, or in Congress' *133 action, for total abdication of federal power in this field. It is thus entirely clear that as a jurisdictional matter, the federal courts have jurisdiction over claims seeking monetary relief arising from unconstitutional state taxation. IV Petitioners argue that since their federal claim is brought pursuant to 42 U.S. C. 1983, it was not necessary to exhaust administrative remedies before commencing this action. In First National Bank of we held that before a litigant complaining of alleged overassessment of taxes may bring a damages action grounded on the Constitution or statutes of the United States, that litigant must fully exhaust any administrative remedies afforded by the State.[19] In Weld County, plaintiff in error brought its action under federal question |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | County, plaintiff in error brought its action under federal question jurisdiction to recover the amount of taxes levied for the years 1913 and 1914. It alleged that the taxes were assessed and collected in contravention of the Due Process and Equal Protection Clauses of the Fourteenth Amendment, and a federal statute[20] setting forth certain limitations *134 on state and local taxation in regard to national banks.[21] The Court paused before addressing plaintiff in error's substantive claim: "We are met at the threshold of our consideration of the case with the contention that the plaintiff did not exhaust its remedies before the administrative boards and consequently cannot be heard by a judicial tribunal to assert the invalidity of the tax." Because the plaintiff in error had not exhausted its state administrative remedies, the Court declined to consider the "question whether the tax [was] vulnerable to the challenge in respect of its validity upon any or all of the grounds set forth"[22] at 456. Although the Court did not elaborate on the underpinnings of that holding, it seems clear that it was grounded on the considerations of sound judicial administration[23] and parity between the state and federal judicial systems that had historically *135 guided the federal equity courts and were later embodied in the Tax Injunction Act. Those principles, and Weld County, govern the treatment of actions at law involving state tax matters. Petitioners seek to avoid the reach of Weld County by arguing that this case is to be controlled by the general rule stated in that in cases brought pursuant to 42 U.S. C. 1983, resort to state administrative remedies is not a precondition to federal suit. As a factual matter of course, it is difficult to distinguish Weld County, which raised factual allegations that closely parallel those of the complaint at issue here.[24] More importantly, while this Court has repeatedly reaffirmed that exhaustion of administrative remedies is not a precondition to a suit brought under the Civil Rights Acts, *136 see, e. g., ; ; 5 U.S. 669, ; 4 U.S. 249, ; ; 389 U.S. 4, 4-417 that conclusion rests firmly on the understanding that such was the intention of Congress in enacting 1983. Where Congress has provided that in a particular class of cases the federal courts should refrain from hearing suits brought under 1983 until administrative remedies have been exhausted, see, e. g., 42 U.S. C. 1997e (1976 ed., Supp. IV), there is no doubt that the federal courts are bound by that limitation. Cf. My view has always been that displacement of 1983 remedies can |
Justice Brennan | 1,981 | 13 | concurring | Fair Assessment in Real Estate Assn., Inc. v. McNary | https://www.courtlistener.com/opinion/110581/fair-assessment-in-real-estate-assn-inc-v-mcnary/ | view has always been that displacement of 1983 remedies can only "be justified by a clear statement of congressional intent, or, at the very least, by the presence of the most persuasive considerations of policy."[25] at 518 (BRENNAN, J., dissenting). Surely a somewhat lesser showing is required where, as here, we are concerned not with the displacement of the 1983 remedy, but with the deferral of federal court consideration pending exhaustion of the state administrative process. Where the obligation to require exhaustion of administrative remedies may be fairly understood from congressional action, or is in accord with congressional policy, not only is 1983 no bar, but the federal courts should be alert to further those policies. We plainly have sufficient evidence of such congressional policy here. As noted above, in enacting the Tax Injunction Act, Congress sought to assure that the federal courts would remain open to suits for monetary relief in state tax cases "if *137 the requisite elements of Federal jurisdiction existed." H. R. Rep. No. 1503, 75th Cong., 1st Sess., 3 (1937).[26] In 1937 the requirement of exhaustion of state administrative remedies was certainly a mandatory precondition to suit, and in that sense a "jurisdictional prerequisite." Nevertheless, we need not reach the conclusion that Congress intended by enactment of the Tax Injunction Act to freeze the then-operative jurisdictional practice of the federal courts in order to recognize that the administrative-exhaustion requirement is entirely consonant with the principal purposes of the Act: to provide assurance that federal courts exercise at least the same restraint in dealing with questions of state tax administration as the courts of the State that levied the tax. Where administrative remedies are a precondition to suit for monetary relief in state court, absent some substantial consideration compelling a contrary result in a particular case, those remedies should be deemed a precondition to suit in federal court as well.[27] *138 V Petitioners sought damages arising from what they alleged to be unconstitutional assessments in four tax years. In and 1975, they failed to pursue in any manner the administrative remedies provided by the State. In 1977 they appealed their assessment to the St. Louis County Board of Equalization and gained substantial relief. Although they claim here that the relief granted by the Board of Equalization failed to bring their assessment up to constitutional standards, they failed to appeal the Board's ruling for that year to the State Tax Commission. An appeal of their 1978 assessment was pending before the State Tax Commission at the time they brought this action. Because petitioners failed to exhaust their |
Justice Stewart | 1,979 | 18 | dissenting | Kentucky v. Whorton | https://www.courtlistener.com/opinion/110081/kentucky-v-whorton/ | No principle is more firmly established in our system of criminal justice than the presumption of innocence that is accorded to the defendant in every criminal trial. In In re Winship, the Court held that the Due Process Clause of the Fourteenth Amendment requires proof beyond a reasonable doubt of a defendant's guilt. I believe that the Due Process Clause of the Fourteenth Amendment equally requires the presumption that a defendant is innocent until he has been proved guilty. Almost 85 years ago, the Court said: "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Only three years ago the Court reaffirmed that the presumption of innocence "is a basic component of a fair trial under our system of criminal justice." See also And a fair trial, after all, is what the Due Process Clause of the Fourteenth Amendment above all else guarantees. While an instruction on the presumption of innocence in one sense only serves to remind the jury that the prosecutor has the burden of proof beyond a reasonable doubt, it also has *791 a separate and distinct function. Quite apart from considerations of the burden of proof, the presumption of innocence "cautions the jury to put away from their minds all the suspicion that arises from the arrest, the indictment, and the arraignment, and to reach their conclusion solely from the legal evidence adduced." 9 J. Wigmore, Evidence 2511, p. 407 (3d ed. 1940). And because every defendant, regardless of the totality of the circumstances, is entitled to have his guilt determined only on the basis of the evidence properly introduced against him at trial, I would hold that an instruction on the presumption of innocence is constitutionally required in every case where a timely request has been made.[1] There may be cases where the failure to give such an instruction could not have affected the outcome of the trial. If that conclusion can be drawn beyond a reasonable doubt, failure to give the instruction would be harmless error. Cf. ; Since the Kentucky Supreme Court did not consider this possibility, I would vacate its judgment and remand the case to that court, but only for consideration of whether the failure to give the instruction in the circumstances presented here was harmless error.[2] |
Justice Scalia | 1,997 | 9 | dissenting | De Buono v. NYSA-ILA Medical and Clinical Services Fund | https://www.courtlistener.com/opinion/118119/de-buono-v-nysa-ila-medical-and-clinical-services-fund/ | "[I]t is the duty of this court to see to it that the jurisdiction of the Circuit Court, which is defined and limited by *817 statute, is not exceeded." Louisville & Nashville R. Despite our obligation to examine federal-court jurisdiction even if the issue is not raised by either party, ibid., and despite the Court's explicit acknowledgment, ante, at 810-811, n. 5, of the possibility that jurisdiction over this case is barred by the Tax Injunction Act, 28 U.S. C. 1341, the Court proceeds to decide the merits of respondents' Employee Retirement Income Security Act of 1974 (ERISA) pre-emption challenge. The Court offers two grounds for passing over the threshold question of jurisdiction: our "settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," and petitioners' "active participation in nearly four years of federal litigation with no complaint about federal jurisdiction." Ante, at 811, n. 5. In my view, neither of these factors justifies our proceeding without resolving the issue of jurisdiction. The Tax Injunction Act bars federal-court jurisdiction over an action seeking to enjoin a state tax (such as the one at issue here) where "a plain, speedy and efficient remedy may be had in the courts of such State." 28 U.S. C. 1341; see Arkansas v. Farm Credit Servs. of Central Ark., post, at 825 (describing the Act as a "jurisdictional rule" and "broad jurisdictional barrier"). The District Court in this case suggested that the Tax Injunction Act might not bar jurisdiction here, since New York courts might not afford respondents a "plain" remedy within the meaning of the Act. See NYSA ILA Medical and Clinical Services Fund v. Axelrod, No. 92 Civ. 2779 App. to Pet. for Cert. 19a. That suggestion was not, however, based upon the District Court's resolution of any "issues of state law," as today's opinion intimates, ante, at 811, n. 5; rather, it rested upon the District Court's conclusion that uncertainty over the implications of a federal statute 502(e)(1) of ERISA, 29 U.S. C. 1132(e)(1)might render the availability of a statecourt *818 remedy not "plain." App. to Pet. for Cert. 19a.[*] The Court of Appeals, in turn, made no mention of the jurisdictional issue, presumably because, under controlling Circuit precedent, jurisdiction was secure: The Second Circuit had previously held that state courts could not provide any remedy for ERISA-based challenges to state taxes within the meaning of the Tax Injunction Act, since "Congress has divested the state courts of jurisdiction" over ERISA claims. Travelers Ins. (citing ERISA 502(e)(1), 29 U.S. C. 1132(e)(1)), rev'd on other grounds |
Justice Scalia | 1,997 | 9 | dissenting | De Buono v. NYSA-ILA Medical and Clinical Services Fund | https://www.courtlistener.com/opinion/118119/de-buono-v-nysa-ila-medical-and-clinical-services-fund/ | ERISA 502(e)(1), 29 U.S. C. 1132(e)(1)), rev'd on other grounds sub nom. New York State Conference of Blue Cross & Blue Shield That holding (like the District Court's discussion of the issue in this case) in no way turns on New York state law, so I am at a loss to understand the Court's invocation *819 of "our settled practice of according respect to the courts of appeals' greater familiarity with issues of state law," ante, at 811, n. 5, as a basis for overlooking the question whether the Tax Injunction Act bars federal-court jurisdiction. The second factor relied upon by the Court in support of its treatment of the jurisdictional issue is that petitioners dropped the issue after the District Court failed to adopt their interpretation of the Tax Injunction Act. But the fact that petitioners have "active[ly] participat[ed] in nearly four years of federal litigation with no complaint about federal jurisdiction," ibid., cannot possibly confer upon us jurisdiction that we do not otherwise possess. It is our duty to resolve the jurisdictional question, whether or not it has been preserved by the parties. ; Louisville & Nashville R. at In Sumner we confronted the identical circumstance presented herea jurisdictional argument raised before the District Court but abandoned before the Court of Appeals and felt the need to address the jurisdictional n. 2. I have previously noted the split among the Circuits on the question whether the Tax Injunction Act deprives federal courts of jurisdiction over ERISA-based challenges to state taxes. See In a prior case, we expressly left the question open, saying that "[w]e express no opinion [on] whether a party [can] sue under ERISA to enjoin or to declare invalid a state tax levy, despite the Tax Injunction Act"; we noted that the answer would depend on whether "state law provide[s] no `speedy and efficient remedy' " and on whether "Congress intended 502 of ERISA to be an exception to the Tax Injunction Act." Franchise Tax Bd. of Because I am *820 uncertain of the federal courts' jurisdiction over this case, I would set the jurisdictional issue for briefing and argument, and would resolve that issue before reaching the merits of respondents' ERISA pre-emption claim. Accordingly, I respectfully dissent from today's opinion. |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | Petitioner Dawud Majid Mu'Min was convicted of murdering a woman in Prince William County, Virginia, while out of prison on work detail, and was sentenced to death. The case engendered substantial publicity, and 8 of the 12 venirepersons eventually sworn as jurors answered on voir dire that they had read or heard something about the case. None of those who had read or heard something indicated that they had formed an opinion based on the outside information, or that it would affect their ability to determine petitioner's guilt or innocence based solely on the evidence presented at trial. Petitioner contends, however, that his Sixth Amendment right to an impartial jury and his right to due process under the Fourteenth Amendment were violated because the trial judge refused to question further prospective jurors about the specific contents of the news reports to which they had been exposed. We reject petitioner's submission. *418 Mu'Min was an inmate at the Virginia Department of Corrections' Haymarket Correctional Unit serving a 48-year sentence for a 1973 first-degree murder conviction. On September 22, 19, he was transferred to the Virginia Department of Transportation (VDOT) Headquarters in Prince William County and assigned to a work detail supervised by a VDOT employee. During his lunch break, he escaped over a perimeter fence at the VDOT facility and made his way to a nearby shopping center. Using a sharp instrument that he had fashioned at the VDOT shop, Mu'Min murdered and robbed Gladys Nopwasky, the owner of a retail carpet and flooring store. Mu'Min then returned to his prison work crew at the VDOT, discarding his bloodied shirt and the murder weapon near the highway. About three months before trial, petitioner submitted to the trial court, in support of a motion for a change of venue, 47 newspaper articles relating to the murder.[1] One or more of the articles discussed details of the murder and investigation, and included information about petitioner's prior criminal record, App. 963-969, the fact that he had been rejected for parole six times, accounts of alleged prison infractions, details about the prior murder for which Mu'Min was serving his sentence at the time of this murder, a comment that the death penalty had not been available when Mu'Min was convicted for this earlier murder, and indications that Mu'Min had confessed to killing Gladys Nopwasky, Several articles focused on the alleged laxity in the supervision of work gangs, and argued for reform of the prison work-crew system, The trial judge deferred ruling on the venue motion until after *419 making an attempt to seat a jury, |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | until after *419 making an attempt to seat a jury, Joint Appendix 8-15 (J. A.). Shortly before the date set for trial, petitioner submitted to the trial judge 64 proposed voir dire questions,[2] at 2-7, and filed a motion for individual voir dire. The trial court denied the motion for individual voir dire; it ruled that voir dire would begin with collective questioning of the venire, but the venire would be broken down into panels of four, if necessary, to deal with issues of publicity, The trial court also refused to ask any of petitioner's proposed questions relating to the content of news items that potential jurors might have read or seen. Twenty-six prospective jurors were summoned into the courtroom and questioned as a group, When asked by the judge whether anyone had acquired any information about the alleged offense or the accused from the news media or from any other source, 16 of the potential jurors replied that they had, The prospective jurors were not asked about the source or content of prior knowledge, but the court then asked the following questions: *420 "Would the information that you heard, received, or read from whatever source, would that information affect your impartiality in this case? "Is there anyone that would say what you've read, seen, heard, or whatever information you may have acquired from whatever the source would affect your impartiality so that you could not be impartial? "Considering what the ladies and gentlemen who have answered in the affirmative have heard or read about this case, do you believe that you can enter the Jury box with an open mind and await until the entire case is presented before reaching a fixed opinion or conclusion as to the guilt or innocence of the accused? ". In view of everything that you've seen, heard, or read, or any information from whatever source that you've acquired about this case, is there anyone who believes that you could not become a Juror, enter the Jury box with an open mind and wait until the entire case is presented before reaching a fixed opinion or a conclusion as to the guilt or innocence of the accused?" One of the 16 panel members who admitted to having prior knowledge of the case answered in response to these questions that he could not be impartial, and was dismissed for cause, Petitioner moved that all potential jurors who indicated that they had been exposed to pretrial publicity be excused for cause, This motion was denied, as was petitioner's renewed motion for a change of venue based |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | was petitioner's renewed motion for a change of venue based on the pretrial publicity, The trial court then conducted further voir dire of the prospective jurors in panels of four, Whenever a potential juror indicated that he had read or heard something about the case, the juror was then asked whether he had formed an opinion and whether he could nonetheless be impartial. *421 None of those eventually seated stated that he had formed an opinion or gave any indication that he was biased or prejudiced against the defendant. All swore that they could enter the jury box with an open mind and wait until the entire case was presented before reaching a conclusion as to guilt or innocence. If any juror indicated that he had discussed the case with anyone, the court asked follow-up questions to determine with whom the discussion took place and whether the juror could have an open mind despite the discussion. One juror who equivocated as to whether she could enter the jury box with an open mind was removed sua sponte by the trial judge, One juror was dismissed for cause because she was not "as frank as she could [be]" concerning the effect of her feelings toward members of the Islamic Faith and toward defense counsel, One juror was dismissed because of her inability to impose the death penalty, while another was removed based upon his statement that upon a finding of capital murder, he could not consider a penalty less than death, App. 339-341. The prosecution and the defense each peremptorily challenged 6 potential jurors, and the remaining 14 were seated and sworn as jurors (two as alternates). Petitioner did not renew his motion for change of venue or make any other objection to the composition of the jury. Of the 12 jurors who decided petitioner's case, 8 had at one time or another read or heard something about the case. None had indicated that he had formed an opinion about the case or would be biased in any way. The jury found petitioner guilty of capital murder and recommended that he be sentenced to death. After taking the matter under advisement and reviewing a presentence report, the trial judge accepted the jury's recommendation and sentenced Mu'Min to death. Mu'Min appealed, contending that he was entitled to a new trial as a result of the judge's failure to permit the proposed voir dire questions. By a divided vote, the Supreme Court of Virginia affirmed his conviction *422 and sentence, finding that, while a criminal defendant may properly ask on voir dire whether |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | a criminal defendant may properly ask on voir dire whether a juror has previously acquired any information about the case, the defendant does not have a constitutional right to explore the content of the acquired information. Rather, an accused is only entitled to know whether the juror can remain impartial in light of the previously obtained information. We granted certiorari, and now affirm. Our cases dealing with the requirements of voir dire are of two kinds: those that were tried in federal courts, and are therefore subject to this Court's supervisory power, see ; ; and ; and those that were tried in state courts, with respect to which our authority is limited to enforcing the commands of the United Constitution. See ; ; and A brief review of these cases is instructive. In Connors, we said: "[A] suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases." In counsel for a black defendant sought to have the Court put a question to the jury as to whether any of them might be prejudiced against the defendant because of his race. We held that it was reversible error for the Court not to have put such a question, saying "[t]he Court failed to ask any question which could be *423 deemed to cover the subject." More recently, in we held that such an inquiry as to racial or ethnic prejudice need not be made in every case, but only where the defendant was accused of a violent crime and the defendant and the victim were members of different racial or ethnic groups. We said: "Because the obligation to empanel an impartial jury lies in the first instance with the trial judge, and because he must rely largely on his immediate perceptions, federal judges have been accorded ample discretion in determining how best to conduct the voir dire." Three of our cases dealing with the extent of voir dire examination have dealt with trials in state courts. The first of these was In that case, the defendant was black and had been active in the civil rights movement in South ; his defense at trial was that enforcement officers were "out to get him" because of his civil |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | officers were "out to get him" because of his civil rights activities, and that he had been framed on the charge of marijuana possession of which he was accused. He requested that two questions be asked regarding racial prejudice and one question be asked regarding prejudice against persons, such as himself, who wore beards. We held that the Due Process Clause of the Fourteenth Amendment required the court to ask "either of the brief, general questions urged by the petitioner" with respect to race, but rejected his claim that an inquiry as to prejudice against persons with beards be made, "[g]iven the traditionally broad discretion accorded to the trial judge in conducting voir dire." In we held that the Constitution does not require a state-court trial judge to question prospective jurors as to racial prejudice in every case where the races of the defendant and the victim differ, but in we held that in a capital case involving a *424 charge of murder of a white person by a black defendant such questions must be asked. We enjoy more latitude in setting standards for voir dire in federal courts under our supervisory power than we have in interpreting the provisions of the Fourteenth Amendment with respect to voir dire in state courts. But two parallel themes emerge from both sets of cases: First, the possibility of racial prejudice against a black defendant charged with a violent crime against a white person is sufficiently real that the Fourteenth Amendment requires that inquiry be made into racial prejudice; second, the trial court retains great latitude in deciding what questions should be asked on voir dire. As we said in "Despite its importance, the adequacy of voir dire is not easily subject to appellate review. The trial judge's function at this point in the trial is not unlike that of the jurors later on in the trial. Both must reach conclusions as to impartiality and credibility by relying on their own evaluations of demeanor evidence and of responses to questions." Petitioner asserts that the Fourteenth Amendment requires more in the way of voir dire with respect to pretrial publicity than our cases have held that it does with respect to racial or ethnic prejudice. Not only must the court "cover the subject," but it must make precise inquiries about the contents of any news reports that potential jurors have read. Petitioner argues that these "content" questions would materially assist in obtaining a jury less likely to be tainted by pretrial publicity than one selected without such questions. There is a certain commonsense appeal |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | selected without such questions. There is a certain commonsense appeal to this argument. Undoubtedly, if counsel were allowed to see individual jurors answer questions about exactly what they had read, a better sense of the juror's general outlook on life might be revealed, and such a revelation would be of some use in exercising peremptory challenges. But, since peremptory *425 challenges are not required by the Constitution, v. Oklahoma, this benefit cannot be a basis for making "content" questions about pretrial publicity a constitutional requirement. Such questions might also have some effect in causing jurors to reevaluate their own answers as to whether they had formed any opinion about the case, but this is necessarily speculative. Acceptance of petitioner's claim would require that each potential juror be interrogated individually; even were the interrogation conducted in panels of four jurors, as the trial court did here, descriptions of one juror about pretrial publicity would obviously be communicated to the three other members of the panel being interrogated, with the prospect that more harm than good would be done by the interrogation. Petitioner says that the questioning can be accomplished by juror questionnaires submitted in advance at trial, but such written answers would not give counsel or the court any exposure to the demeanor of the juror in the course of answering the content questions. The trial court in this case expressed reservations about interrogating jurors individually because it might make the jurors feel that they themselves were on trial. While concern for the feelings and sensibilities of potential jurors cannot be allowed to defeat inquiry necessary to protect a constitutional right, we do not believe that "content" questions are constitutionally required. Whether a trial court decides to put questions about the content of publicity to a potential juror or not, it must make the same decision at the end of the questioning: is this juror to be believed when he says he has not formed an opinion about the case? Questions about the content of the publicity to which jurors have been exposed might be helpful in assessing whether a juror is impartial. To be constitutionally compelled, however, it is not enough that such questions might be helpful. Rather, the trial court's failure to ask these *426 questions must render the defendant's trial fundamentally unfair. See was this Court's seminal case requiring inquiry as to racial prejudice, and the opinion makes clear that in reaching that result we relied heavily on a unanimous body of state-court precedents holding that such an inquiry should be 283 U.S., -313. On the subject of |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | inquiry should be 283 U.S., -313. On the subject of pretrial publicity, however, there is no similar consensus, or even weight of authority, favoring petitioner's position. Among the state-court decisions cited to us by the parties, not only Virginia, but South Massachusetts, and Pennsylvania, have refused to adopt such a rule. The Courts of Appeals for the Fifth Circuit, United v. Davis, the Seventh Circuit, United v. Dellinger, cert. denied, and the Ninth Circuit, Silverthorne v. United (8),[3] have held that in some circumstances such an inquiry is required. The Court of Appeals for the Eleventh Circuit has held that it is *427 not. United v. Montgomery, The Courts of Appeals for the Eighth and District of Columbia Circuits appear to take an intermediate position. United v. Poludniak, cert. denied sub nom. Weigand v. United ; United v. Haldeman, 181 U. S. App. D. C. 254, 2-289, cert. denied sub nor. Ehrlichman v. United Even those Federal Courts of Appeals that have required such an inquiry to be made have not expressly placed their decision on constitutional grounds. As noted above, our own cases have stressed the wide discretion granted to the trial court in conducting voir dire in the area of pretrial publicity and in other areas of inquiry that might tend to show juror bias. Particularly with respect to pretrial publicity, we think this primary reliance on the judgment of the trial court makes good sense. The judge of that court sits in the locale where the publicity is said to have had its effect and brings to his evaluation of any such claim his own perception of the depth and extent of news stories that rpight influence a juror. The trial court, of course, does not impute his own perceptions to the jurors who are being examined, but these perceptions should be of assistance to it in deciding how detailed an inquiry to make of the members of the jury venire. Petitioner relies heavily on our opinion in (1), to support his position. In that case, we held that pretrial publicity in connection with a capital trial had so tainted the jury pool in Gibson County, Indiana, that the defendant was entitled as a matter of federal constitutional law to a change of venue to another county. Our opinion in that case details at great length the extraordinary publicity that attended the defendant's prosecution and conviction for murder. "[A] barrage of newspaper headlines, articles, cartoons and pictures was unleashed against [the defendant] during *428 the six or seven months preceding his trial. [T]he newspapers in which the |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | seven months preceding his trial. [T]he newspapers in which the stories appeared were delivered regularly to approximately 95% of the dwellings in Gibson County and the Evansville radio and TV stations, which likewise blanketed that county, also carried extensive newscasts covering the same incidents." Two-thirds of the jurors actually seated had formed an opinion that the defendant was guilty, and acknowledged familiarity with material facts and circumstances of the case. Although each of these jurors said that he could be impartial, we concluded: "With his life at stake, it is not requiring too much that petitioner be tried in an atmosphere undisturbed by so huge a wave of public passion and by a jury other than one in which two-thirds of the members admit, before hearing any testimony, to possessing a belief in his guilt." We believe that this case is instructive, but not in the way petitioner employs it. It did not deal with any constitutional requirement of voir dire inquiry, and it is not clear from our opinion how extensive an inquiry the trial court But the contrast between that case and the present one is marked. In the trial court excused over half of a panel of 430 persons because their opinions of the defendant's guilt were so fixed that they could not be impartial, and 8 of the 12 jurors who sat had formed an opinion as to guilt. In the present case, 8 of the 12 jurors who sat answered that they had read or heard something about the case, but none of those 8 indicated that he had formed an opinion as to guilt, or that the information would affect his ability to judge petitioner solely on the basis of the evidence presented at trial. A trial court's findings of juror impartiality may "be overturned only for `manifest error.'" (quoting at *429 723). In Patton, we acknowledged that "adverse pretrial publicity can create such a presumption of prejudice in a community that the jurors' claims that they can be impartial should not be believed," 467 U.S., at but this is not such a case. Had the trial court in this case been confronted with the "wave of public passion" engendered by pretrial publicity that occurred in connection with 's trial, the Due Process Clause of the Fourteenth Amendment might well have required more extensive examination of potential jurors than it undertook here. But the showings are not comparable; the cases differ both in the kind of community in which the coverage took place and in extent of media coverage. Unlike the community involved in |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | in extent of media coverage. Unlike the community involved in the county in which petitioner was tried, Prince William, had a population in 19 of 182,537, and this was one of nine murders committed in the county that year. It is a part of the metropolitan Washington statistical area, which has a population of over 3 million, and in which, unfortunately, hundreds of murders are committed each year. In news accounts included details of the defendant's confessions to 24 burglaries and six murders, including the one for which he was tried, as well as his unaccepted offer to plead guilty in order to avoid the death sentence. They contained numerous opinions as to his guilt, as well as opinions about the appropriate punishment. While news reports about Mu'Min were not favorable, they did not contain the same sort of damaging information. Much of the pretrial publicity was aimed at the Department of Corrections and the criminal justice system in general, criticizing the furlough and work-release programs that made this and other crimes possible. Any killing that ultimately results in a charge of capital murder will engender considerable media coverage, and this one may have engendered more than most because of its occurrence during the 19 Presidential campaign, when a similar crime committed by a Massachusetts inmate became a subject of national debate. But, while the pretrial publicity in this case appears to have *430 been substantial, it was not of the same kind or extent as that found to exist in Petitioner also relies on the Standards for Criminal Justice 8-3.5 (2d ed. 1980) promulgated by the American Bar Association. These Standards require interrogation of each juror individually with respect to "what the prospective juror has read and heard about the case," "[i]f there is a substantial possibility that individual jurors will be ineligible to serve because of exposure to potentially prejudicial material." These Standards, of course, leave to the trial court the initial determination of whether there is such a substantial possibility. But, more importantly, the Standards relating to voir dire are based on a substantive rule that renders a potential juror subject to challenge for cause, without regard to his state of mind, if he has been exposed to and remembers "highly significant information" or "other incriminating matters that may be inadmissible in evidence." That is a stricter standard of juror eligibility than that which we have held the Constitution to require. Under the ABA Standard, answers to questions about content, without more, could disqualify the juror from sitting. Under the constitutional standard, on the other hand, "[t]he |
Justice Rehnquist | 1,991 | 19 | majority | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | sitting. Under the constitutional standard, on the other hand, "[t]he relevant question is not whether the community remembered the case, but whether the jurors had such fixed opinions that they could not judge impartially the guilt of the defendant." Patton, Under this constitutional standard, answers to questions about content alone, which reveal that a juror remembered facts about the case, would not be sufficient to disqualify a juror. "It is not required that the jurors be totally ignorant of the facts and issues involved." The ABA Standards, as indicated in our previous discussion of state and federal court decisions, have not commended themselves to a majority of the courts that have considered the question. The fact that a particular rule may be thought to be the "better" view does not mean that it is incorporated *431 into the Fourteenth Amendment. The voir dire examination conducted by the trial court in this case was by no means perfunctory. The court asked the entire venire of jurors four separate questions about the effect on them of pretrial publicity or information about the case obtained by other means. One juror admitted to having formed a belief as to petitioner's guilt and was excused for cause. The trial court then conducted further voir dire in panels of four, and each time an individual juror indicated that he had acquired knowledge about the case from outside sources, he was asked whether he had formed an opinion; none of the jurors seated indicated that he had formed an opinion. One juror who equivocated as to her impartiality was excused by the trial court on its own motion. Several other jurors were excused for other reasons. It is quite possible that if voir dire interrogation had revealed one or more jurors who had formed an opinion about the case, the trial court might have decided to question succeeding jurors more extensively. Voir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges. In and Ham we held that the subject of possible racial bias must be "covered" by the questioning of the trial court in the course of its examination of potential jurors, but we were careful not to specify the particulars by which this could be done. We did not, for instance, require questioning of individual jurors about facts or experiences that might have led to racial bias. Petitioner in this case insists, as a matter of constitutional right, not only that the subject of possible bias from pretrial publicity be covered which |
Justice Brennan | 1,971 | 13 | dissenting | Nelson v. O'NEIL | https://www.courtlistener.com/opinion/108349/nelson-v-oneil/ | With all deference, I think the Court asks and answers the wrong question in this case. Under the law of California at the time of respondent's trial, admissions to a police officer by a criminal defendant after his arrest could not be used as substantive evidence against other defendants, whether or not the declarant testified at trial.[1] The question with which we are faced is not, therefore, whether the Sixth Amendment would forbid California from using Runnels' statement as substantive evidence against respondent O'Neil if it chose to do so. California rejected that choice: the jury in the present case was explicitly instructed that Runnels' statement could not be considered as evidence against O'Neil. *633 The question, therefore, is whether California, having determined for whatever reason that the statement involved in this case was inadmissible against respondent, may nevertheless present the statement to the jury that was to decide respondent's guilt, and instruct that jury that it should not be considered against respondent. I think our cases compel the conclusion that it may not. In we reviewed a federal trial in which the extrajudicial confession of one Evans, which implicated both Evans and Bruton in the crime charged, was set before the jury along with instructions that it could be considered as evidence only against Evans. Evans himself did not testify. We held, first, that the Sixth Amendment in those circumstances forbade the use against Bruton of Evans' statement; and second, that since there was a "substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining [Bruton's] guilt," the Sixth Amendment required that Bruton's conviction be reversed. Shortly thereafter, we made clear that the second prong of our holding in Brutonthat instructing juries not to use one defendant's admissions against the other could not, in fact, prevent them from making such a usehad a constitutional basis.[2] In we reviewed a state criminal trial presenting facts substantially identical to those presented in Bruton. Roberts and one Rappe had been jointly tried on charges *634 to which Rappe had confessed to a police officer. Rappe's confession implicated both himself and Roberts; it was presented to the jury together with instructions that Rappe's extrajudicial statements could be considered as evidence only against Rappe, and not against Roberts. As in Bruton, we reversed. therefore, must stand for the proposition that as a constitutional matter, the risk that a jury will not follow instructions to disregard the statements of one codefendant against another is too great to tolerate in a criminal trial. For, as we pointed out |
Justice Brennan | 1,971 | 13 | dissenting | Nelson v. O'NEIL | https://www.courtlistener.com/opinion/108349/nelson-v-oneil/ | tolerate in a criminal trial. For, as we pointed out in Bruton, "If it were true that the jury disregarded the reference to the codefendant, no question would arise under the Confrontation Clause, because by hypothesis the case is treated as if the confessor made no statement inculpating the nonconfessor." 391 U.S., Bruton and Roberts, therefore, compel the conclusion that the Federal Constitution forbids the States to assume that juries can follow instructions that tell them to wipe their minds of highly damaging, incriminating admissions of one defendant that simultaneously incriminate another defendant whose guilt or innocence the jury is told to decide. In the present case, California itself has made the judgment that, although Runnels did take the stand, his extrajudicial statements could not be considered by the jury as evidence against respondent. Under Bruton and Roberts, California having made the determination that Runnels' statement could not be considered as evidence against O'Neil may not subvert its own judgment in some but not all cases by presenting the inadmissible evidence to the jury and telling the jury to disregard it. For the inevitable result of this procedure is that, in fact, different rules of evidence will be applied to different defendants depending solely upon the fortuity of whether they are jointly or *635 separately tried. This is a discrimination that the Constitution forbids. Accordingly, I would affirm the judgment below. In no event, however, would I reach the question decided by the Court in this case. For if we assume that the jury did follow its instructions to disregard Runnels' statement against respondent, his complaint is obviously without foundation. If we assume that it did not, we still need not reach the question whether California could constitutionally allow Runnels' statements to be used as evidence against respondent, for California has not purported to do so.[3] Having made that judgment, California is bound to apply it to all defendants or to none. I dissent. MR. |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | Appellees instituted this federal income tax refund suit, claiming that the 1976 amendments of the minimum tax provisions contained in 56 and 57 of the Internal Revenue Code of 1954. 26 U.S. C. 56 and 57, could not be applied to a transaction that had taken place in 1976, prior to the enactment of the amendments, without violating the Due Process Clause of the Fifth Amendment. *293 Appellees prevailed in the District Court. The United States has taken an appeal to this Court pursuant to 28 U.S. C. 1252, which authorizes a direct appeal from the final judgment of a court of the United States holding an Act of Congress unconstitutional in any civil action to which the United States is a party. And a direct appeal may be taken when, as here, a federal statute has been held unconstitutional as applied to a particular circumstance. See United I The appellees, E. M. Darusmont and B. L. Darusmont, are husband and wife. Mrs. Darusmont is a party to this action solely because she and her husband filed a joint federal income tax return for the calendar year 1976. We hereinafter sometimes refer to the appellees in the singular, either as "appellee" or as "taxpayer." In April 1976, Mr. Darusmont was notified by his employer that he was to be transferred from Houston, Tex., to Bakers-field, Cal. Appellee, accordingly, undertook to dispose of his Houston home. That home was a triplex. One of the three units was occupied by the Darusmonts; taxpayer rented the other two. Appellee retained a real estate firm to list the property and to give him advice as to the most advantageous way to sell it. The firm suggested various alternatives (sale as separate condominium units, or as a whole, and either for cash or on the installment basis). The firm and appellee discussed the income tax consequences of each alternative, including the tax on capital gain, the installment method of reporting, and the possibility of deferring a portion of any capital gain by the timely purchase of a replacement home in California. After considering the several possible methods of structuring the sale, and after computing the projected income tax consequences of each method, appellee decided on an outright *294 sale. That sale was effected on July 15, 1976, for cash. This resulted in a long-term capital gain to the taxpayer. Because, however, appellee purchased a replacement residence in California, he was able, under 1034 of the Code, 26 U.S. C. 1034, to defer recognition of that portion of the gain attributable to the unit of the |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | portion of the gain attributable to the unit of the Texas house that the Darusmonts had occupied. Appellee's recognized gain on the sale of the other two units was $51,332. After taking into account the deduction of 50% of net capital gain then permitted by 12 of the Code, 26 U.S. C. 12, appellee included the remainder of the gain in his reported taxable income. The Darusmonts timely filed their joint federal income tax return for the calendar year 1976. That return showed a tax of $25,384, which was paid. The present controversy concerns $2,280, the portion of appellee's 1976 income tax liability attributable to the minimum tax imposed by 56 of the Code on items of tax preference as defined in 57. These minimum tax provisions, which impose a tax in addition to the regular income tax, first appeared with the enactment of the Tax Reform Act of 1969, Pub. L. 91-172, 301, Originally, the minimum tax equaled 10% of the amount by which the aggregate of enumerated items of tax preference exceeded the sum of a $30,000 exemption plus the taxpayer's regular income tax liability. For an individual, one of the items of tax preference was the deduction under 12 for net capital gain. See 57 (a) (9) (A). Thus, appellee's 12 deduction for 1976 for 50% of the capital gain recognized on the sale of the two units of the Texas triplex was an item of tax preference. If the statute's original formulation, with its base of $30,000 plus the regular income tax liability, had been retained in the statute for 1976, appellee would not have owed any minimum tax as a result of the sale of the Houston house. On October 4, 1976, however, the President signed the Tax Reform Act of 1976, Stat. 15. Section 301 of that Act, amended 56 (a) of the Code *295 so as to increase the rate of the minimum tax and to reduce the amount of the exemption to $10,000 or one-half of the taxpayer's regular income tax liability (with certain adjustments), whichever was the greater. Section 301 (g) (1), with exceptions not pertinent here, then provided that "the amendments made by this section shall apply to items of tax preference for taxable years beginning after December 31, 1975." It is this stated effective date that creates the issue now in controversy for, in a certain sense, the October 4, 1976, amendment of 56 operated "retroactively" to cover the portion of 1976 prior to that date. A result of the statutory change of October 4 was that appellee was |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | the statutory change of October 4 was that appellee was subjected to the now contested minimum tax of $2,280 on the sale of the Texas house the preceding July 15. A proper claim for refund of the minimum tax so paid was duly filed with the Internal Revenue Service. Upon the denial of that claim, the Darusmonts instituted this refund suit in the United States District Court for the Eastern District of California. Taxpayer argued that the 1976 amendments could not be applied constitutionally to a transaction fully consummated prior to their enactment. He further argued that had he known that the sale of the house would have resulted in liability for the minimum tax, he could have structured the sale so as to avoid the tax. He has conceded, however, that when he was considering the various ways in which he could dispose of the Texas property, he was not aware of the existence of the minimum tax. The District Court entered judgment in favor of appellee. It held that the application of the 1976 amendments to a transaction consummated in 1976 prior to October 4 subjected appellee "to a new, separate and distinct tax," and was "so arbitrary and oppressive as to be a denial of due process" guaranteed by the Fifth Amendment. App. to Juris. Statement 3a; 80-2 USTC ¶ 9671. p. 85,8, 47 AFTR 2d ¶ 81-366, p. 81-519. We note that the District Court's ruling is in conflict with the later decision of the United States Court of Appeals *296 for the Eighth Circuit in aff'g[1] II In enacting general revenue statutes, Congress almost without exception has given each such statute an effective date prior to the date of actual enactment. This was true with respect to the income tax provisions of the Tariff Act of Oct. 3, 1913, and the successive Revenue Acts of 1916 through 1938.[2] It was also true with respect to the Internal Revenue Codes of 1939 and 1954.[3] Usually the "retroactive" feature has application only to that portion of the current calendar year preceding the date of enactment, but each of the Revenue Acts of 1918 and 1926 was applicable to an entire calendar year that had expired preceding enactment. This "retroactive" application apparently has been confined *297 to short and limited periods required by the practicalities of producing national legislation. We may safely say that it is a customary congressional practice. The Court consistently has held that the application of an income tax statute to the entire calendar year in which enactment took place does not per se violate |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | in which enactment took place does not per se violate the Due Process Clause of the Fifth Amendment. See ; ; ; ; ; ; United ; ; See also Ballard, Retroactive Federal Taxation, ; Hochman, The Supreme Court and the Constitutionality of Retroactive Legislation, Justice Miller succinctly stated the principle a century ago in writing for the Court in "The right of Congress to have imposed this tax by a new statute, although the measure of it was governed by the income of the past year, cannot be doubted; much less can it be doubted that it could impose such a tax on the income of the current year, though part of that year had elapsed when the statute was passed." Wall., at 331. Justice Van Devanter in writing for the Court in similarly approved the congressional practice: "As respects income tax statutes it long has been the practice of Congress to make them retroactive for relatively short periods so as to include profits from transactions consummated while the statute was in process of enactment, or within so much of the calendar year as preceded the enactment; and repeated decisions of this *298 Court have recognized this practice and sustained it as consistent with the due process clause of the Constitution." The Court has stated the underlying rationale for allowing this "retroactivity": "Taxation is neither a penalty imposed on the taxpayer nor a liability which he assumes by contract. It is but a way of apportioning the cost of government among those who in some measure are privileged to enjoy its benefits and must bear its burdens. Since no citizen enjoys immunity from that burden, its retroactive imposition does not necessarily infringe due process, and to challenge the present tax it is not enough to point out that the taxable event, the receipt of income, ante-dated the statute." -147. Judge Learned Hand also commented upon the point and set forth the answer to the constitutional argument: "Nobody has a vested right in the rate of taxation, which may be retroactively changed at the will of Congress at least for periods of less than twelve months; Congress has done so from the outset. The injustice is no greater than if a man chance to make a profitable sale in the months before the general rates are retroactively changed. Such a one may indeed complain that, could he have foreseen the increase, he would have kept the transaction unliquidated, but it will not avail him; he must be prepared for such possibilities, the system being already in operation. His is a |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | possibilities, the system being already in operation. His is a different case from that of one who, when he takes action, has no reason to suppose that any transactions of the sort will be taxed at all." Appellee concedes that the Court "has held that a retroactive income tax statute does not violate the `due process' *299 clause of the Constitution per se." Motion to Affirm 6. Appellee asserts, however, that three tests have been developed for determining whether a particular tax is so harsh and oppressive as to be a denial of due process, namely, whether the taxpayer could have altered his behavior to avoid the tax if it could have been anticipated by him at the time the transaction was effected; whether the taxpayer had notice of the tax when he engaged in the transaction; and whether the tax is a new tax and not merely an increase in the rate of an existing income tax. Appellee argues that the altered minimum tax fits within these three tests. In support of the first proposition, appellee cites modified, and These, however, are gift tax cases, and the gifts in question were made and completely vested before the enactment of the taxing statute. We do not regard them as controlling authority with respect to any retroactive feature of a federal income tax. See -148. Regarding his second test, appellee states that he had no notice, either actual or constructive, of the forthcoming October changes in the minimum tax when he sold the triplex in July and that, as a consequence, the retroactive imposition of the tax after the sale was arbitrary, harsh, and oppressive. Assuming, for purposes of argument, that personal notice is relevant, appellee is hardly in a position to claim surprise at the 1976 amendments to the minimum tax. The proposed increase in rate had been under public discussion for almost a year before its enactment. See H. R. Rep. No. 94-658, pp. 130-132 (1975); S. Rep. No. 94-938, pp. 108-114 (1976). The Tax Reform Act of 1976 reflected a compromise between the House and Senate proposals. Both bills, however, provided that the changes in the minimum tax were to be effective for taxable years beginning after 1975. Appellee, therefore, had ample advance notice of the increase in the effective minimum rate. *300 Appellee's "new tax" argument is answered completely by the fact that the 1976 amendments to the minimum tax did not create a new tax. To be sure, the minimum tax is described in the statute, 56 (a), as one "[i]n addition to" the regular income |
per_curiam | 1,981 | 200 | per_curiam | United States v. Darusmont | https://www.courtlistener.com/opinion/110369/united-states-v-darusmont/ | 56 (a), as one "[i]n addition to" the regular income tax. But the minimum tax provision was imposed in 1969, and one of the original items of tax preference subjected to the minimum tax was the untaxed portion of any net long-term capital gain. Appellee's position is far different from that of the individual who, as Judge Hand stated in the language quoted above, "has no reason to suppose that any transactions of the sort will be taxed at all." The 1976 changes affected appellee only by decreasing the allowable exemption and increasing the percentage rate of tax. "Congress intended these changes to raise the effective tax rate on tax preference items" Staff of the Joint Committee on Taxation, General Explanation of the Tax Reform Act of 1976, 94th Cong., 2d Sess., 105 (Comm. Print 1976). Congress possessed ample authority to make this kind of change effective as of the beginning of the year of enactment. We are not persuaded by appellee's proffered distinction between his case and that the taxpayer in Buttke, unlike appellee, would have incurred a tax anyway under the prior form of the statute. See Estate of Lewis v. Commissioner, 40 TCM 78, ¶ 80,106 P-H Memo TC (appeal pending CA5). We think is particularly close to this case. There the taxpayer, on November 7, 19, sold stock acquired by gift from her husband a week earlier. On November 23, however, the Revenue Act of 19 was approved and became law. The new Act provided that the income tax basis of property received by gift after December 31, 19, was the same as the donor's basis, instead of being the fair market value of the property at the time of the gift, the rule which had theretofore prevailed. *301 The taxpayer sought to avoid the lower carryover basis in computing her gain on the sale, and argued that the new provision should not be applied "to transactions fully completed before enactment of the statute." at This Court, however, rejected that contention, saying, ibid.: "That the questioned provision can not be declared in conflict with the Federal Constitution merely because it requires gains from prior but recent transactions to be treated as part of the taxpayer's gross income has not been open to serious doubt since and" The judgment of the United States District Court for the Eastern District of California is therefore reversed, and the case is remanded to that court with directions to enter judgment for the United States. It is so ordered. |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | We granted certiorari to consider the availability of federal habeas corpus to review a state convict's claim that testimony was admitted at his trial in violation of his rights under a claim which the Florida courts have previously refused to consider on the merits because of noncompliance with a state contemporaneous-objection rule. Petitioner Wainwright, on behalf of the State of Florida, here challenges a decision of the Court of Appeals for the Fifth Circuit ordering a hearing in state court on the merits of respondent's contention. Respondent Sykes was convicted of third-degree murder after a jury trial in the Circuit Court of DeSoto County. He testified at trial that on the evening of January 8, 1972, he told his wife to summon the police because he had just shot Willie Gilbert. Other evidence indicated that when the police arrived at respondent's trailer home, they found Gilbert dead of a shotgun wound, lying a few feet from the front porch. Shortly after their arrival, respondent came from across the road and volunteered that he had shot Gilbert, and a few minutes later respondent's wife approached the police and told them the same thing. Sykes was immediately arrested and taken to the police station. Once there, it is conceded that he was read his Miranda rights, and that he declined to seek the aid of counsel and indicated a desire to talk. He then made a statement, which was admitted into evidence at trial through the testimony of the two officers who heard it,[1] to the effect that he had shot Gilbert from the front porch of his trailer home. There were several references during the trial to respondent's consumption *75 of alcohol during the preceding day and to his apparent state of intoxication, facts which were acknowledged by the officers who arrived at the scene. At no time during the trial, however, was the admissibility of any of respondent's statements challenged by his counsel on the ground that respondent had not understood the Miranda warnings.[2] Nor did the trial judge question their admissibility on his own motion or hold a factfinding hearing bearing on that issue. Respondent appealed his conviction, but apparently did not challenge the admissibility of the inculpatory statements.[3] He later filed in the trial court a motion to vacate the conviction and, in the State District Court of Appeals and Supreme Court, petitions for habeas corpus. These filings, apparently for the first time, challenged the statements made to police on grounds of involuntariness. In all of these efforts respondent was unsuccessful. Having failed in the Florida courts, respondent |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | respondent was unsuccessful. Having failed in the Florida courts, respondent initiated the present action under 28 U.S. C. 2254, asserting the inadmissibility of his statements by reason of his lack of understanding of the Miranda warnings.[4] The United District Court for the Middle District of Florida ruled that requires a hearing in a state criminal trial prior to the admission of an inculpatory out-of-court statement by the defendant. It held further that respondent had not lost his right to assert such a claim by failing to object at trial or on direct appeal, since only "exceptional circumstances" of "strategic decisions at trial" can create such a bar to raising federal constitutional claims in a federal habeas action. The court stayed issuance of the writ to allow the state court to hold a hearing on the "voluntariness" of the statements. Petitioner warden appealed this decision to the United Court of Appeals for the Fifth Circuit. That court first considered the nature of the right to exclusion of statements made without a knowing waiver of the right to counsel and the right not to incriminate oneself. It noted that Jackson v. guarantees a right to a hearing on whether a defendant has knowingly waived his rights as described to him in the Miranda warnings, and stated that under Florida law "[t]he burden is on the State to secure [a] prima facie determination of voluntariness, not upon the defendant to demand it." The court then directed its attention to the effect on respondent's right of Florida Rule Crim. Proc. 3.190 (i),[5] which it described as "a contemporaneous objection rule" applying to motions to suppress a defendant's inculpatory statements. *77 It focused on this Court's decisions in ; ; and and concluded that the failure to comply with the rule requiring objection at the trial would only bar review of the suppression claim where the right to object was deliberately bypassed for reasons relating to trial tactics. The Court of Appeals distinguished our decision in for the reason that "[a] major tenet of the decision was that no prejudice was shown" to have resulted from the failure to object. It found that prejudice is "inherent" in any situation, like the present one, where the admissibility of an incriminating statement is concerned. Concluding that "[t]he failure to object in this case cannot be dismissed as a trial tactic, and thus a deliberate by-pass," the court affirmed the District Court order that the State hold a hearing on whether respondent knowingly waived his Miranda rights at the time he made the statements. The simple legal question |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | the time he made the statements. The simple legal question before the Court calls for a construction of the language of 28 U.S. C. 2254 (a), which provides that the federal courts shall entertain an application for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a state court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United" But, to put it mildly, we do not write on a clean slate in construing this statutory provision.[6] Its earliest counterpart, applicable only *78 to prisoners detained by federal authority, is found in the Judiciary Act of 1789. Construing that statute for the Court in Ex parte Mr. Chief Justice Marshall said: "An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the Court has general jurisdiction of the subject, although it should be erroneous." See Ex parte Kearney, In 1867, Congress expanded the statutory language so as to make the writ available to one held in state as well as federal custody. For more than a century since the 1867 amendment, this Court has grappled with the relationship between the classical common-law writ of habeas corpus and the remedy provided in 28 U.S. C. 2254. Sharp division within the Court has been manifested on more than one aspect of the perplexing problems which have been litigated in this connection. Where the habeas petitioner challenges a final judgment of conviction rendered by a state court, this Court has been called upon to decide no fewer than four different questions, all to a degree interrelated with one another: (1) What types of federal claims may a federal habeas court properly consider? (2) Where a federal claim is cognizable by a federal habeas court, to what extent must that court defer to a resolution of the claim in prior state proceedings? (3) To what extent must the petitioner who seeks federal habeas exhaust state remedies before resorting to the federal court? (4) In what instances will an adequate and independent state *79 ground bar consideration of otherwise cognizable federal issues on federal habeas review? Each of these four issues has spawned its share of litigation. With respect to the first, the rule laid down in Ex parte was gradually changed by judicial decisions expanding the availability of habeas relief beyond attacks focused narrowly on the jurisdiction of the sentencing court. See Ex parte Wells, ; Ex parte Lange, Ex parte Siebold, authorized |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | parte Wells, ; Ex parte Lange, Ex parte Siebold, authorized use of the writ to challenge a conviction under a federal statute where the statute was claimed to violate the United Constitution. and though in large part inconsistent with one another, together broadened the concept of jurisdiction to allow review of a claim of "mob domination" of what was in all other respects a trial in a court of competent jurisdiction. In an indigent federal prisoner's claim that he was denied the right to counsel at his trial was held to state a contention going to the "power and authority" of the trial court, which might be reviewed on habeas. Finally, in the Court openly discarded the concept of jurisdictionby then more a fiction than anything elseas a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of "disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights." In it was made explicit that a state prisoner's challenge to the trial court's resolution of dispositive federal issues is always fair game on federal habeas. Only last Term in the Court removed from the purview of a federal habeas court challenges resting on the Fourth Amendment, where there has been a full and fair opportunity to raise them *80 in the state court. See The degree of deference to be given to a state court's resolution of a federal-law issue was elaborately canvassed in the Court's opinion in Speaking for the Court, Mr. Justice Reed stated: "[Such] state adjudication carries the weight that federal practice gives to the conclusion of a court of last resort of another jurisdiction on federal constitutional issues. It is not res judicata." The duty of the federal habeas court to hold a factfinding hearing in specific situations, notwithstanding the prior resolution of the issues in state court, was thoroughly explored in this Court's later decision in Congress addressed this aspect of federal habeas in 1966 when it amended 2254 to deal with the problem treated in Townsend. See The exhaustion-of-state-remedies requirement was first articulated by this Court in the case of Ex parte Royall, There, a state defendant sought habeas in advance of trial on a claim that he had been indicted under an unconstitutional statute. The writ was dismissed by the District Court, and this Court affirmed, stating that while there was power in the federal courts to entertain such petitions, as a matter of comity they should usually stay their hand pending consideration of the |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | they should usually stay their hand pending consideration of the issue in the normal course of the state trial. This rule has been followed in subsequent cases, e. g., ; ; ; and has been incorporated into the language of 2254.[7] Like other *81 issues surrounding the availability of federal habeas corpus relief, though, this line of authority has not been without historical uncertainties and changes in direction on the part of the Court. See Ex parte Hawk, ; ; ; There is no need to consider here in greater detail these first three areas of controversy attendant to federal habeas review of state convictions. Only the fourth areathe adequacy of state grounds to bar federal habeas reviewis presented in this case. The foregoing discussion of the other three is pertinent here only as it illustrates this Court's historic willingness to overturn or modify its earlier views of the scope of the writ, even where the statutory language authorizing judicial action has remained unchanged. As to the role of adequate and independent state grounds, it is a well-established principle of federalism that a state decision resting on an adequate foundation of state substantive law is immune from review in the federal courts. Fox Film ; The application of this principle in the context of a federal habeas proceeding has therefore excluded from consideration any questions of state substantive law, and thus effectively barred federal habeas review where questions of that sort are either the only ones raised by a petitioner or are in themselves dispositive of his case. The area of controversy which has developed has concerned the reviewability of federal claims which the state court has declined to pass on *82 because not presented in the manner prescribed by its procedural rules. The adequacy of such an independent state procedural ground to prevent federal habeas review of the underlying federal issue has been treated very differently than where the state-law ground is substantive. The pertinent decisions marking the Court's somewhat tortuous efforts to deal with this problem are: Ex parte ; ; ; ; and In petitioner Daniels' lawyer had failed to mail the appeal papers to the State Supreme Court on the last day provided by law for filing, and hand delivered them one day after that date. Citing the state rule requiring timely filing, the Supreme Court of North Carolina refused to hear the appeal. This Court, relying in part on its earlier decision in Ex parte held that federal habeas was not available to review a constitutional claim which could not have been reviewed on direct |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | constitutional claim which could not have been reviewed on direct appeal here because it rested on an independent and adequate state procedural -487. In respondent sought federal habeas to review a claim that his state-court conviction had resulted from the introduction of a coerced confession in violation of the Fifth Amendment to the United Constitution. While the convictions of his two codefendants were reversed on that ground in collateral proceedings following their appeals, did not appeal and the New York courts ruled that his subsequent coram nobis action was barred on account of that failure. This Court held that petitioner was nonetheless entitled to raise the claim in federal habeas, and thereby overruled its decision 10 years earlier in : "[T]he doctrine under which state procedural defaults are held to constitute an adequate and independent state *83 law ground barring direct Supreme Court review is not to be extended to limit the power granted the federal courts under the federal habeas statute." As a matter of comity but not of federal power, the Court acknowledged "a limited discretion in the federal judge to deny relief to an applicant who had deliberately by-passed the orderly procedure of the state courts and in so doing has forfeited his state court remedies." In so stating, the Court made clear that the waiver must be knowing and actual"`an intentional relinquishment or abandonment of a known right or privilege.'" quoting Noting petitioner's "grisly choice" between acceptance of his life sentence and pursuit of an appeal which might culminate in a sentence of death, the Court concluded that there had been no deliberate bypass of the right to have the federal issues reviewed through a state appeal.[8] *84 A decade later we decided in which a federal prisoner's application under 28 U.S. C. 2255 sought for the first time to challenge the makeup of the grand jury which indicted him. The Government contended that he was barred by the requirement of Fed. Rule Crim. Proc. 12 (b) (2) providing that such challenges must be raised "by motion before trial." The Rule further provides that failure to so object constitutes a waiver of the objection, but that "the court for cause shown may grant relief from the waiver." We noted that the Rule "promulgated by this Court and, pursuant to 18 U.S. C. 3771, `adopted' by Congress, governs by its terms the manner in which the claims of defects in the institution of criminal proceedings may be waived," and held that this standard contained in the Rule, rather than the concept of waiver, should pertain in federal |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | rather than the concept of waiver, should pertain in federal habeas as on direct review. Referring to previous constructions of Rule 12 (b) (2), we concluded that review of the claim should be barred on habeas, as on direct appeal, absent a showing of cause for the noncompliance and some showing of actual prejudice resulting from the alleged constitutional violation. Last Term, in the rule of was applied to the parallel case of a state procedural requirement that challenges to grand jury composition be raised before trial. The Court noted that there was power in the federal courts to entertain an application in such a case, but rested its holding on "considerations of comity and concerns for the orderly administration of criminal justice" -539. While there was no counterpart provision of the state rule which allowed an exception upon some showing of cause, the Court concluded that the standard derived from the Federal Rule should nonetheless be applied in that context since "`[t]here is no reason to give greater preclusive effect to procedural defaults by federal defendants than *85 to similar defaults by state defendants.'" quoting Kaufman v. United As applied to the federal petitions of state convicts, the cause-and-prejudice standard was thus incorporated directly into the body of law governing the availability of federal habeas corpus review. To the extent that the dicta of may be thought to have laid down an all-inclusive rule rendering state contemporaneous-objection rules ineffective to bar review of underlying federal claims in federal habeas proceedingsabsent a "knowing waiver" or a "deliberate bypass" of the right to so objectits effect was limited by Francis, which applied a different rule and barred a habeas challenge to the makeup of a grand jury. Petitioner Wainwright in this case urges that we further confine its effect by applying the principle enunciated in Francis to a claimed error in the admission of a defendant's confession. Respondent first contends that any discussion as to the effect that noncompliance with a state procedural rule should have on the availability of federal habeas is quite unnecessary because in his view Florida did not actually have a contemporaneous-objection rule. He would have us interpret Florida Rule Crim. Proc. 3.190 (i),[9] which petitioner asserts is a traditional "contemporaneous objection rule," to place the burden on the trial judge to raise on his own motion the question of the admissibility of any inculpatory statement. Respondent's approach is, to say the least, difficult to square with the language of the Rule, which in unmistakable terms and with specified exceptions requires that the motion to suppress be |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | with specified exceptions requires that the motion to suppress be raised before trial. Since all of the Florida appellate courts refused to review petitioner's federal claim on the merits after his trial, and since their action in so doing is quite consistent with a line of Florida authorities interpreting *86 the rule in question as requiring a contemporaneous objection, we accept the State's position on this point. See ; ; Respondent also urges that a defendant has a right under Jackson v. to a hearing as to the voluntariness of a confession, even though the defendant does not object to its admission. But we do not read Jackson as creating any such requirement. In that case the defendant's objection to the use of his confession was brought to the attention of the trial court, and n. 4, and nothing in the Court's opinion suggests that a hearing would have been required even if it had not been. To the contrary, the Court prefaced its entire discussion of the merits of the case with a statement of the constitutional rule that was to prove dispositivethat a defendant has a "right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness." Language in subsequent decisions of this Court has reaffirmed the view that the Constitution does not require a voluntariness hearing absent some contemporaneous challenge to the use of the confession.[10] We therefore conclude that Florida procedure did, consistently with the United Constitution, require that respondent's confession be challenged at trial or not at all, and *87 thus his failure to timely object to its admission amounted to an independent and adequate state procedural ground which would have prevented direct review here. See We thus come to the crux of this case. Shall the rule of barring federal habeas review absent a showing of "cause" and "prejudice" attendant to a state procedural waiver, be applied to a waived objection to the admission of a confession at trial?[11] We answer that question in the affirmative. As earlier noted in the opinion, since it has been the rule that the federal habeas petitioner who claims he is detained pursuant to a final judgment of a state court in violation of the United Constitution is entitled to have the federal habeas court make its own independent determination of his federal claim, without being bound by the determination on the merits of that claim reached in the state proceedings. This rule of is in no way changed |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | state proceedings. This rule of is in no way changed by our holding today. Rather, we deal only with contentions of federal law which were not resolved on the merits in the state proceeding due to respondent's failure to raise them there as required by state procedure. We leave open for resolution in future decisions the precise definition of the "cause"-and-"prejudice" standard, and note here only that it is narrower than the standard set forth in dicta in which would make federal habeas review generally available to state convicts absent a knowing and deliberate waiver of the federal constitutional contention. It is the sweeping language of going *88 far beyond the facts of the case eliciting it, which we today reject.[12] The reasons for our rejection of it are several. The contemporaneous-objection rule itself is by no means peculiar to Florida, and deserves greater respect than Fay gives it, both for the fact that it is employed by a coordinate jurisdiction within the federal system and for the many interests which it serves in its own right. A contemporaneous objection enables the record to be made with respect to the constitutional claim when the recollections of witnesses are freshest, not years later in a federal habeas proceeding. It enables the judge who observed the demeanor of those witnesses to make the factual determinations necessary for properly deciding the federal constitutional question. While the 1966 amendment to 2254 requires deference to be given to such determinations made by state courts, the determinations themselves are less apt to be made in the first instance if there is no contemporaneous objection to the admission of the evidence on federal constitutional grounds. A contemporaneous-objection rule may lead to the exclusion of the evidence objected to, thereby making a major contribution to finality in criminal litigation. Without the evidence claimed to be vulnerable on federal constitutional *89 grounds, the jury may acquit the defendant, and that will be the end of the case; or it may nonetheless convict the defendant, and he will have one less federal constitutional claim to assert in his federal habeas petition.[13] If the state trial judge admits the evidence in question after a full hearing, the federal habeas court pursuant to the 1966 amendment to 2254 will gain significant guidance from the state ruling in this regard. Subtler considerations as well militate in favor of honoring a state contemporaneous-objection rule. An objection on the spot may force the prosecution to take a hard look at its hole card, and even if the prosecutor thinks that the state trial judge will |
Justice Rehnquist | 1,977 | 19 | majority | Wainwright v. Sykes | https://www.courtlistener.com/opinion/109717/wainwright-v-sykes/ | if the prosecutor thinks that the state trial judge will admit the evidence he must contemplate the possibility of reversal by the state appellate courts or the ultimate issuance of a federal writ of habeas corpus based on the impropriety of the state court's rejection of the federal constitutional claim. We think that the rule of broadly stated, may encourage "sandbagging" on the part of defense lawyers, who may take their chances on a verdict of not guilty in a state trial court with the intent to raise their constitutional claims in a federal habeas court if their initial gamble does not pay off. The refusal of federal habeas courts to honor contemporaneous-objection rules may also make state courts themselves less stringent in their enforcement. Under the rule of state appellate courts know that a federal constitutional issue raised for the first time in the proceeding before them may well be decided in any event by a federal habeas tribunal. Thus, their choice is between addressing the issue notwithstanding the petitioner's failure to timely object, or else face *90 the prospect that the federal habeas court will decide the question without the benefit of their views. The failure of the federal habeas courts generally to require compliance with a contemporaneous-objection rule tends to detract from the perception of the trial of a criminal case in state court as a decisive and portentous event. A defendant has been accused of a serious crime, and this is the time and place set for him to be tried by a jury of his peers and found either guilty or not guilty by that jury. To the greatest extent possible all issues which bear on this charge should be determined in this proceeding: the accused is in the court-room, the jury is in the box, the judge is on the bench, and the witnesses, having been subpoenaed and duly sworn, await their turn to testify. Society's resources have been concentrated at that time and place in order to decide, within the limits of human fallibility, the question of guilt or innocence of one of its citizens. Any procedural rule which encourages the result that those proceedings be as free of error as possible is thoroughly desirable, and the contemporaneous-objection rule surely falls within this classification. We believe the adoption of the Francis rule in this situation will have the salutary effect of making the state trial on the merits the "main event," so to speak, rather than a "tryout on the road" for what will later be the determinative federal habeas hearing. There is |
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