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Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | the OFCCP and its compliance agencies. Those regulations state that notwithstanding exemption from mandatory disclosure under the FOIA, 5 U.S. C. 552, "records obtained or generated pursuant to Executive Order 11246 (as amended) shall be made available for inspection and copying if it is determined that the requested inspection or copying furthers the public interest and does not impede any of the functions of the OFCC[P] or the Compliance Agencies except in the case of records disclosure of which is prohibited by law."[5] It is the voluntary disclosure contemplated by this regulation, over and above that mandated by the FOIA, which is the gravamen of Chrysler's complaint in this case. This controversy began on May 14, when the DLA informed Chrysler that third parties had made an FOIA request for disclosure of the 1974 AAP for Chrysler's Newark, Del., assembly plant and an October 1974 CIR for the same facility. Nine days later, Chrysler objected to release of the requested information, relying on OFCCP's disclosure regulations and on exemptions to the FOIA. Chrysler also requested a copy of the CIR, since it had never seen it. DLA responded the following week that it had determined that the requested material was subject to disclosure under the FOIA and the OFCCP disclosure rules, and that both documents would be released five days later. On the day the documents were to be released, Chrysler filed a complaint in the United States District Court for Delaware *288 seeking to enjoin release of the Newark documents. The District Court granted a temporary restraining order barring disclosure of the Newark documents and requiring that DLA give five days' notice to Chrysler before releasing any similar documents. Pursuant to this order, Chrysler was informed on July 1, that DLA had received a similar request for information about Chrysler's Hamtramck, Mich., plant. Chrysler amended its complaint and obtained a restraining order with regard to the Hamtramck, disclosure as well. Chrysler made three arguments in support of its prayer for an injunction: that disclosure was barred by the FOIA; that it was inconsistent with 18 U.S. C. 15, 42 U.S. C. 2000e-8 (e), and 44 U.S. C. 3508, which for ease of reference will be referred to as the "confidentiality statutes"; and finally that disclosure was an abuse of agency discretion insofar as it conflicted with OFCCP rules. The District Court held that it had jurisdiction under 28 U.S. C. 1331 to subject the disclosure decision to review under the Administrative Procedure Act (APA). 5 U.S. C. 701-706. It conducted a trial de novo on all of Chrysler's claims; |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | conducted a trial de novo on all of Chrysler's claims; both sides presented extensive expert testimony during August On April 20, 1976, the District Court issued its opinion. It held that certain of the requested information, the "manning" tables, fell within Exemption 4 of the FOIA.[6] The District Court reasoned from this holding that the tables may or must be withheld, depending on applicable agency regulations, and that here a governing regulation required that the information be withheld. Pursuant to 5 U.S. C. 301, the enabling statute which gives federal department heads control over department records, the Secretary of Labor has promulgated a regulation, 29 CFR 70.21 stating that no officer or employee of the Department is to violate 18 U.S. C. 15. That section imposes criminal sanctions on Government employees *289 who make unauthorized disclosure of certain classes of information submitted to a Government agency, including trade secrets and confidential statistical data. In essence, the District Court read 15 as not merely a prohibition of unauthorized disclosure of sensitive information by Government employees, but as a restriction on official agency actions taken pursuant to promulgated regulations. Both sides appealed, and the Court of Appeals for the Third Circuit vacated the District Court's judgment. Chrysler It agreed with the District Court that the FOIA does not compel withholding of information that falls within its nine exemptions. It also, like the District Court, rejected Chrysler's reliance on the confidentiality statutes, either because there was no implied private right of action to proceed under the statute, or because the statute, by its terms, was not applicable to the information at issue in this case. It agreed with the District Court that analysis must proceed under the APA. But it disagreed with that court's interpretation of 29 CFR 70.21 By the terms of that regulation, the specified disclosures are only proscribed if "not authorized by law," the standard of 18 U.S. C. 15. In the Court of Appeals' view, disclosures made pursuant to OFCCP disclosure regulations are "authorized by law" by virtue of those regulations. Therefore, it held that 29 CFR 70.21 was inapplicable. The Court of Appeals also disagreed with the District Court's view of the scope of review under the APA. It held that the District Court erred in conducting a de novo review; review should have been limited to the agency record. However, the Court of Appeals found that record inadequate in this case and directed that the District Court remand to the agency for supplementation. Because of a conflict in the Circuits[7] and the general importance of these "reverse-FOIA" |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | in the Circuits[7] and the general importance of these "reverse-FOIA" *2 cases, we granted certiorari, and now vacate the judgment of the Third Circuit and remand for further proceedings. II We have decided a number of FOIA cases in the last few years.[8] Although we have not had to face squarely the question whether the FOIA ex proprio vigore forbids governmental agencies from disclosing certain classes of information to the public, we have in the course of at least one opinion intimated an answer.[9] We have, moreover, consistently recognized that the basic objective of the Act is disclosure.[10] *291 In contending that the FOIA bars disclosure of the requested equal employment opportunity information, Chrysler relies on the Act's nine exemptions and argues that they require an agency to withhold exempted material. In this case it relies specifically on Exemption 4: "(b) [FOIA] does not apply to matters that are "(4) trade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S. C. 552 (b) (4). Chrysler contends that the nine exemptions in general, and Exemption 4 in particular, reflect a sensitivity to the privacy interests of private individuals and nongovernmental entities. That contention may be conceded without inexorably requiring the conclusion that the exemptions impose affirmative duties on an agency to withhold information sought.[11] In fact, that conclusion is not supported by the language, logic, or history of the Act. The organization of the Act is straightforward. Subsection *292 5 U.S. C. 552 places a general obligation on the agency to make information available to the public and sets out specific modes of disclosure for certain classes of information. Subsection (b), 5 U.S. C. 552 (b), which lists the exemptions, simply states that the specified material is not subject to the disclosure obligations set out in subsection By its terms, subsection (b) demarcates the agency's obligation to disclose; it does not foreclose disclosure. That the FOIA is exclusively a disclosure statute is, perhaps, demonstrated most convincingly by examining its provision for judicial relief. Subsection (4) (B) gives federal district courts "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." 5 U.S. C. 552 (4) (B). That provision does not give the authority to bar disclosure, and thus fortifies our belief that Chrysler, and courts which have shared its view, have incorrectly interpreted the exemption provisions of the FOIA. The Act is an attempt to meet the demand for open government while preserving workable confidentiality in governmental decision-making.[12] Congress appreciated that, |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | while preserving workable confidentiality in governmental decision-making.[12] Congress appreciated that, with the expanding sphere of governmental regulation and enterprise, much of the information within Government files has been submitted by private entities seeking Government contracts or responding to unconditional reporting obligations imposed by law. There was sentiment that Government agencies should have the latitude, in certain circumstances, to afford the confidentiality desired by these submitters.[13] But the congressional concern *293 was with the agency's need or preference for confidentiality; the FOIA by itself protects the submitters' interest in confidentiality only to the extent that this interest is endorsed by the agency collecting the information. Enlarged access to governmental information undoubtedly cuts against the privacy concerns of nongovernmental entities, and as a matter of policy some balancing and accommodation may well be desirable. We simply hold here that Congress did not design the FOIA exemptions to be mandatory bars to disclosure.[14] This conclusion is further supported by the legislative history. The FOIA was enacted out of dissatisfaction with 3 of the APA, which had not resulted in as much disclosure by the agencies as Congress later thought desirable.[15] Statements in both the Senate and House Reports on the effect of the exemptions support the interpretation that the exemptions *294 were only meant to permit the agency to withhold certain information, and were not meant to mandate nondisclosure. For example, the House Report states: "[The FOIA] sets up workable standards for the categories of records which may be exempt from public disclosure" ". There may be legitimate reasons for nondisclosure and [the FOIA] is designed to permit nondisclosure in such cases." "[The FOIA] lists in a later subsection the specific categories of information which may be exempted from disclosure."[16] We therefore conclude that Congress did not limit an agency's discretion to disclose information when it enacted the FOIA. It necessarily follows that the Act does not afford Chrysler any right to enjoin agency disclosure. III Chrysler contends, however, that even if its suit for injunctive relief cannot be based on the FOIA, such an action can be premised on the Trade Secrets Act, 18 U.S. C. 15. The Act provides: "Whoever, being an officer or employee of the United States or of any department or agency thereof, publishes, divulges, discloses, or makes known in any manner or to any extent not authorized by law any information coming to him in the course of his employment or official duties or by reason of any examination or investigation made by, or return, report or record made to or filed with, such *295 department or |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | record made to or filed with, such *295 department or agency or officer or employee thereof which information concerns or relates to the trade secrets, processes, operations, style of work, or apparatus, or to the identity, confidential statistical data, amount or source of any income, profits, losses, or expenditures of any person, firm, partnership, corporation, or association; or permits any income return or copy thereof or any book containing any abstract or particulars thereof to be seen or examined by any person except as provided by law; shall be fined not more than $1,000, or imprisoned not more than one year, or both; and shall be removed from office or employment." There are necessarily two parts to Chrysler's argument: that 15 is applicable to the type of disclosure threatened in this case, and that it affords Chrysler a private right of action to obtain injunctive relief. A The Court of Appeals held that 15 was not applicable to the agency disclosure at issue here because such disclosure was "authorized by law" within the meaning of the Act. The court found the source of that authorization to be the OFCCP regulations that DLA relied on in deciding to disclose information on the Hamtramck and Newark plants.[17] Chrysler contends here that these agency regulations are not "law" within the meaning of 15. It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the "force and effect of law."[18] This doctrine is so well established that agency regulations implementing federal statutes have been *296 held to pre-empt state law under the Supremacy Clause.[19] It would therefore take a clear showing of contrary; legislative intent before the phrase "authorized by law" in 15 could be held to have a narrower ambit than the traditional understanding. The origins of the Trade Secrets Act can be traced to Rev. Stat. 3167, an Act which barred unauthorized disclosure of specified business information by Government revenue officers. There is very little legislative history concerning the original bill, which was passed in 1864.[20] It was re-enacted numerous times, with some modification, and remained part of the revenue laws until 1948.[21] Congressional statements made at the time of these re-enactments indicate that Congress was primarily concerned with unauthorized disclosure of business information by feckless or corrupt revenue agents,[22] for *297 in the early days of the Bureau of Internal Revenue, it was the field agents who had substantial contact with confidential financial information.[23] In 1948, Rev. Stat. 3167 was consolidated with two other statutesinvolving the Tariff Commission and the Department of Commerceto form the |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | the Tariff Commission and the Department of Commerceto form the Trade Secrets Act.[24] The statute governing the Tariff Commission was very similar to Rev. Stat. 3167, and it explicitly bound members of the Commission as well as Commission employees.[25] The Commerce *298 Department statute embodied some differences in form. It was a mandate addressed to the Bureau of Foreign and Domestic Commerce and to its Director, but there was no reference to Bureau employees and it contained no criminal sanctions.[26] Unlike the other statutes, it also had no exception for disclosures "authorized by law." In its effort to "consolidat[e]" the three statutes, Congress enacted 15 and the essentially borrowed the from of Rev. Stat. 3167 and the Tariff Commission statute.[27] We find nothing in the legislative history of 15 and its predecessors which lends support to Chrysler's contention that Congress intended the phrase "authorized by law," as used in 15, to have a special, limited meaning. Nor do we find anything in the legislative history to support the respondents' suggestion that 15 does not address formal agency actioni. e., that it is essentially an "antileak" statute that does not bind the heads of governmental departments or agencies. That would require an expansive and unprecedented holding that any agency action directed or approved by an agency head is "authorized by law," regardless *299 of the statutory authority for that action. As Attorney General Brownell recognized not long after 15 was enacted, such a reading is difficult to reconcile with Congress' intent to consolidate the Tariff Commission and Commerce Department statutes, both of which explicitly addressed ranking officials, with Rev. Stat. 3167.[28] It is also inconsistent with a settled understandingpreviously shared by the Department of Justicethat has been continually articulated and relied upon in Congress during the legislative efforts in the last three decades to increase public access to Government information.[29] Although the existence of this understanding *300 is not by any means dispositive, it does shed some light on the intent of the enacting Congress. See Red Lion Broadcasting ; FHA In sum, we conclude that 15 does address formal agency action and that the appropriate inquiry is whether OFCCP's regulations provide the "authoriz[ation] by law" required by the statute. In order for a regulation to have the "force and effect of law," it must have certain substantive characteristics and be the product of certain procedural requisites. The central distinction among agency regulations found in the APA is that between "substantive rules" on the one hand and "interpretive rules, general statements of policy, or rules of agency organization, procedure, or practice" |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | of policy, or rules of agency organization, procedure, or practice" on the other.[30] A "substantive *302 rule" is not defined in the APA, and other authoritative sources essentially offer definitions by negative inference.[31] But in we noted a characteristic inherent in the concept of a "substantive rule." We described a substantive ruleor a "legislative-type rule," at 236as one "affecting individual rights and obligations." This characteristic is an important touchstone for distinguishing those rules that may be "binding" or have the "force of law." That an agency regulation is "substantive," however, does not by itself give it the "force and effect of law." The legislative power of the United States is vested in the Congress, and the exercise of quasi-legislative authority by governmental departments and agencies must be rooted in a grant of such power by the Congress and subject to limitations which that body imposes. As this Court noted in : "Legislative, or substantive, regulations are `issued by an agency pursuant to statutory authority and implement *303 the statute, as, for example, the proxy rules issued by the Securities and Exchange Commission Such rules have the force and effect of law.' "[32] Likewise the promulgation of these regulations must conform with any procedural requirements imposed by Congress. For agency discretion is limited not only by substantive, statutory grants of authority, but also by the procedural requirements which "assure fairness and mature consideration of rules of general application." The pertinent procedural limitations in this case are those found in the APA. The regulations relied on by the respondents in this case as providing "authoriz[ation] by law" within the meaning of 15 certainly affect individual rights and obligations; they govern the public's right to information in records obtained under Executive Order 11246 and the confidentiality rights of those who submit information to OFCCP and its compliance agencies. It is a much closer question, however, whether they are the product of a congressional grant of legislative authority. In his published memorandum setting forth the disclosure regulations at issue in this case, the Secretary of Labor states that the authority upon which he relies in promulgating the regulations are 201 of Executive Order 11246, as amended, and 29 CFR 70.71 which permits units in the Department of Labor to promulgate supplemental disclosure regulations consistent with 29 CFR pt. 70 and the FOIA. -3194 (1973). Since materials that are exempt from disclosure under the FOIA are by virtue of Part II of this opinion outside the ambit of that Act, the Government cannot rely on the FOIA as congressional authorization for *304 disclosure regulations that |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | the FOIA as congressional authorization for *304 disclosure regulations that permit the release of information within the Act's nine exemptions. Section 201 of Executive Order 11246 directs the Secretary of Labor to "adopt such rules and regulations and issue such orders as he deems necessary and appropriate to achieve the purposes thereof." But in order for such regulations to have the "force and effect of law," it is necessary to establish a nexus between the regulations and some delegation of the requisite legislative authority by Congress. The origins of the congressional authority for Executive Order 11246 are somewhat obscure and have been roundly debated by commentators and courts.[33] The Order itself as amended establishes a program to eliminate employment discrimination by the Federal Government and by those who benefit from Government contracts. For purposes of this case, it is not necessary to decide whether Executive Order 11246 as amended is authorized by the Federal Property and Administrative Services Act of 1949,[34] Titles VI *305 and VII of the Civil Rights Act of 1964,[35] the Equal Employment Opportunity Act of 1972,[36] or some more general notion that the Executive can impose reasonable contractual requirements *306 in the exercise of its procurement authority.[37] The pertinent inquiry is whether under any of the arguable statutory grants of authority the OFCCP disclosure regulations relied on by the respondents are reasonably within the contemplation of that grant of authority. We think that it is clear that when it enacted these statutes, Congress was not concerned with public disclosure of trade secrets or confidential business information, and, unless we were to hold that any federal statute that implies some authority to collect information must grant legislative authority to disclose that information to the public, it is simply not possible to find in these statutes a delegation of the disclosure authority asserted by the respondents here.[38] *307 The relationship between any grant of legislative authority and the disclosure regulations becomes more remote when one examines 201 of the Executive Order. It speaks in terms of rules and regulations "necessary and appropriate" to achieve the purposes of the Executive Order. Those purposes are an end to discrimination in employment by the Federal Government and those who deal with the Federal Government. One cannot readily pull from the logic and purposes of the Executive Order any concern with the public's access to information in Government files or the importance of protecting trade secrets or confidential business statistics. The "purpose and scope" section of the disclosure regulations indicates two underlying rationales: OFCCP's general policy "to disclose information to the public," |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | rationales: OFCCP's general policy "to disclose information to the public," and its policy "to cooperate with other public agencies as well as private parties seeking to eliminate discrimination in employment." 41 CFR 60-.1 The respondents argue that "[t]he purpose of the Executive Order is to combat discrimination in employment, and a disclosure policy designed to further this purpose is consistent with the Executive Order and an appropriate subject for regulation under its aegis." Brief for Respondents 48. Were a grant of legislative authority as a basis for Executive Order 11246 more clearly identifiable, we might agree with the respondents that this "compatibility" gives the disclosure regulations the necessary legislative force. But the thread between these regulations and any grant of *308 authority by the Congress is so strained that it would do violence to established principles of separation of powers to denominate these particular regulations "legislative" and credit them with the "binding effect of law." This is not to say that any grant of legislative authority to a federal agency by Congress must be specific before regulations promulgated pursuant to it can be binding on courts in a manner akin to statutes. What is important is that the reviewing court reasonably be able to conclude that the grant of authority contemplates the regulations issued. Possibly the best illustration remains Mr. Justice Frankfurter's opinion for the Court in National Broadcasting 319 U.S. 1 There the Court rejected the argument that the Communications Act of 1934 did not give the Federal Communications Commission authority to issue regulations governing chain broadcasting beyond the specification of technical, engineering requirements. Before reaching that conclusion, however, the Court probed the language and logic of the Communications Act and its legislative history. Only after this careful parsing of authority did the Court find that the regulations had the force of law and were binding on the courts unless they were arbitrary or not promulgated pursuant to prescribed procedures. "Our duty is at an end when we find that the action of the Commission was based upon findings supported by evidence, and was made pursuant to authority granted by Congress. It is not for us to say that the `public interest' will be furthered or retarded by the Chain Broadcasting Regulations. The responsibility belongs to the Congress for the grant of valid legislative authority and to the Commission for its exercise." The respondents argue, however, that even if these regulations do not have the force of law by virtue of Executive Order 11246, an explicit grant of legislative authority for such *309 regulations can be found in 5 |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | authority for such *309 regulations can be found in 5 U.S. C. 301, commonly referred to as the "housekeeping statute."[39] It provides: "The head of an Executive department or military department may prescribe regulations for the government of his department, the conduct of its employees, the distribution and performance of its business, and the custody, use, and preservation of its records, papers, and property. This section does not authorize withholding information from the public or limiting the availability of records to the public." The antecedents of 301 go back to the beginning of the Republic, when statutes were enacted to give heads of early Government departments authority to govern internal departmental affairs. Those laws were consolidated into one statute in 1874 and the current version of the statute was enacted in 1958. Given this long and relatively uncontroversial history, and the terms of the statute itself, it seems to be simply a grant of authority to the agency to regulate its own affairs. What is clear from the legislative history of the 1958 amendment to 301 is that this section was not intended to provide authority for limiting the scope of 15.[] *310 The 1958 amendment to 301 was the product of congressional concern that agencies were invoking 301 as a source of authority to withhold information from the public. Congressman Moss sponsored an amendment that added the last sentence to 301, which specifically states that this section "does not authorize withholding information from the public." The Senate Report accompanying the amendment stated: "Nothing in the legislative history of [ 301] shows that Congress intended this statute to be a grant of authority to the heads of the executive departments to withhold information from the public or to limit the availability of records to the public." S. Rep. No. 1621, 85th Cong., 2d Sess., 2 The logical corollary to this observation is that there is nothing in the legislative history of 301 to indicate it is a substantive grant of legislative power to promulgate rules authorizing the release of trade secrets or confidential business information. It is indeed a "housekeeping statute," authorizing what the APA terms "rules of agency organization, procedure or practice" as opposed to "substantive rules."[41] *311 This would suggest that regulations pursuant to 301 could not provide the "authoriz[ation] by law" required by 15. But there is more specific support for this position. During the debates on the 1958 amendment Congressman Moss assured the House that the amendment would "not affect the confidential status of information given to the Government and carefully detailed in title 18, United |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | to the Government and carefully detailed in title 18, United States Code, section 15." 104 Cong. Rec. 6550 The respondents argue that this last statement is of little significance, because it is only made with reference to the amendment. But that robs Congressman Moss' statement of any substantive import. If Congressman Moss thought that records within the terms of 15 could be released on the authority of a 301 regulation, why was he (and presumably the House) concerned with whether the amendment affected 15? Under the respondents' interpretation, records released pursuant to 301 are outside 15 by virtue of the first sentence of 301. The remarks of a single legislator, even the sponsor, are not controlling in analyzing legislative history. Congressman Moss' statement must be considered with the Reports of both Houses and the statements of other Congressmen, all of which refute the respondents' interpretation of the relationship between 301 and 15.[42] Of greatest significance, however, *312 is the "housekeeping" nature of 301 itself. On the basis of this evidence of legislative intent, we agree with the Court of Appeals for the District of Columbia Circuit that "[s]ection 301 does not authorize regulations limiting the scope of section 15." Charles River Park "A," There is also a procedural defect in the OFCCP disclosure regulations which precludes courts from affording them the force and effect of law. That defect is a lack of strict compliance with the APA. Recently we have had occasion to examine the requirements of the APA in the context of "legislative" or "substantive" rulemaking. In Vermont Yankee Nuclear Power we held that courts could only in "extraordinary circumstances" impose procedural requirements on an agency beyond those specified in the APA. It is within *313 an agency's discretion to afford parties more procedure, but it is not the province of the courts to do so. In Vermont Yankee, we recognized that the APA is " `a formula upon which opposing social and political forces have come to rest.' " ). Courts upset that balance when they override informed choice of procedures and impose obligations not required by the APA. By the same token, courts are charged with maintaining the balance: ensuring that agencies comply with the "outline of minimum essential rights and procedures" set out in the APA. H. R. Rep. No. 1980, 79th Cong., 2d Sess., 16 (1946); see Vermont Yankee Nuclear Power at 549 n. 21. Certainly regulations subject to the APA cannot be afforded the "force and effect of law" if not promulgated pursuant to the statutory procedural minimum found in that Act.[43] Section 4 |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | the statutory procedural minimum found in that Act.[43] Section 4 of the APA, 5 U.S. C. 553, specifies that an agency shall afford interested persons general notice of proposed rulemaking and an opportunity to comment before a substantive rule is promulgated.[44] "Interpretive rules, general *314 statements of policy or rules of agency organization, procedure or practice" are exempt from these requirements. When the Secretary of Labor published the regulations pertinent in this case, he stated: "As the changes made by this document relate solely to interpretive rules, general statements of policy, and to rules of agency procedure and practice, neither notice of proposed rule making nor public participation therein is required by 5 U.S. C. 553. Since the changes made by this document either relieve restrictions or are interpretative rules, no delay in effective date is required by 5 *315 U. S. C. 553 (d). These rules shall therefore be effective immediately. "In accordance with the spirit of the public policy set forth in 5 U.S. C. 553, interested persons may submit written comments, suggestions, data, or arguments to the Director, Office of Federal Contract Compliance" (1973). Thus, the regulations were essentially treated as interpretative rules and interested parties were not afforded the notice of proposed rulemaking required for substantive rules under 5 U.S. C. 553 (b). As we observed in 432 U. S., at : "[A] court is not required to give effect to an interpretative regulation. Varying degrees of deference are accorded to administrative interpretations, based on such factors as the timing and consistency of the agency's position, and the nature of its expertise." We need not decide whether these regulations are properly characterized as "interpretative rules." It is enough that such regulations are not properly promulgated as substantive rules, and therefore not the product of procedures which Congress prescribed as necessary prerequisites to giving a regulation the binding effect of law.[45] An interpretative regulation or general statement *316 of agency policy cannot be the "authoriz[ation] by law" required by 15. This disposition best comports with both the purposes underlying the APA and sound administrative practice. Here important interests are in conflict: the public's access to information in the Government's files and concerns about personal privacy and business confidentiality. The OFCCP's regulations attempt to strike a balance. In enacting the APA, Congress made a judgment that notions of fairness and informed administrative decisionmaking require that agency decisions be made only after affording interested persons notice and an opportunity to comment. With the consideration that is the necessary and intended consequence of such procedures, OFCCP might have decided that |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | intended consequence of such procedures, OFCCP might have decided that a different accommodation was more appropriate. B We reject, however, Chrysler's contention that the Trade Secrets Act affords a private right of action to enjoin disclosure in violation of the statute. In we noted that this Court has rarely implied a private right of action under a criminal statute, and where it has done so "there was at least a statutory basis for inferring that a civil cause of action of some sort lay in favor of someone."[46] Nothing in 15 prompts such an inference. Nor are other pertinent circumstances outlined in Cort present here. As our review of the legislative history of 15or *317 lack of samemight suggest, there is no indication of legislative intent to create a private right of action. Most importantly, a private right of action under 15 is not "necessary to make effective the congressional purpose," J. I. Case for we find that review of DLA's decision to disclose Chrysler's employment data is available under the APA.[47] IV While Chrysler may not avail itself of any violations of the provisions of 15 in a separate cause of action, any such violations may have a dispositive effect on the outcome of judicial review of agency action pursuant to 10 of the APA. Section 10 of the APA provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action is entitled to judicial review thereof." 5 U.S. C. 702. Two exceptions to this general rule of reviewability are set out in 10. Review is not available where "statutes preclude judicial review" or where "agency action is committed to agency discretion by law." 5 U.S. C. 701 (1), (2). In Citizens to Preserve Overton Park, 1 U.S. 2, the Court held that the latter exception applies "where `statutes are drawn in such broad terms that in a given case there is no law to apply,' " quoting S. Rep. No. 752, 79th Cong., 1st Sess., 26 (1945). Were we simply confronted with the authorization in 5 U.S. C. 301 to prescribe regulations regarding "the custody, use, and preservation of [agency] records, papers, and property," it would be difficult to derive any standards limiting agency conduct which might constitute "law to apply." But our discussion in Part III demonstrates *318 that 15 and any "authoriz[ation] by law" contemplated by that section place substantive limits on agency action.[48] Therefore, we conclude that DLA's decision to disclose the Chrysler reports is reviewable agency action and Chrysler is a person "adversely affected or aggrieved" |
Justice Rehnquist | 1,979 | 19 | majority | Chrysler Corp. v. Brown | https://www.courtlistener.com/opinion/110062/chrysler-corp-v-brown/ | action and Chrysler is a person "adversely affected or aggrieved" within the meaning of 10 Both Chrysler and the respondents agree that there is APA review of DLA's decision. They disagree on the proper scope of review. Chrysler argues that there should be de novo review, while the respondents contend that such review is only available in extraordinary cases and this is not such a case. The pertinent provisions of 10 (e) of the APA, 5 U.S. C. 706, state that a reviewing court shall "(2) hold unlawful and set aside agency action, findings and conclusions found to be "(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; "(F) unwarranted by the facts to the extent that the facts are subject to trial de novo by the reviewing court." For the reasons previously stated, we believe any disclosure that violates 15 is "not in accordance with law" within the meaning of 5 U.S. C. 706 (2) (A). De novo review by the District Court is ordinarily not necessary to decide whether a contemplated disclosure runs afoul of 15. The District Court in this case concluded that disclosure of some of Chrysler's documents was barred by 15, but the Court of Appeals did not reach the issue. We shall therefore vacate the Court of Appeals' judgment and remand for further proceedings consistent with this opinion in order that the Court *319 of Appeals may consider whether the contemplated disclosures would violate the prohibition of 15.[49] Since the decision regarding this substantive issuethe scope of 15will necessarily have some effect on the proper form of judicial review pursuant to 706 (2), we think it unnecessary, and therefore unwise, at the present stage of this case for us to express any additional views on that issue. Vacated and remanded. MR. |
Justice Rehnquist | 1,988 | 19 | dissenting | Tulsa Professional Collection Services, Inc. v. Pope | https://www.courtlistener.com/opinion/112038/tulsa-professional-collection-services-inc-v-pope/ | In Texaco, the Court upheld against challenge under the Due Process Clause an Indiana statute providing that severed mineral interests which had not been used for a period of 20 years lapsed and reverted to the surface owner unless the mineral owner filed a statement of claim in the appropriate county office. In the present case Oklahoma has enacted a statute providing that a contractual claim against a decedent's estate is barred if not presented as a claim within two months of the publication of notice advising creditors of the commencement of probate proceedings. The Court holds the Oklahoma statute unconstitutional. Obviously there is a great difference between the 20-year time limit in the Indiana statute and the 2-month time limit in the Oklahoma statute, but the Court does not rest the constitutional distinction between the cases on this fact. Instead, the constitutional distinction is premised on the absence in Texaco, Inc., of the "significant state action" present in this case. In the words of the Court: "The nonclaim statute becomes operative only after probate proceedings have been commenced in state court. The court must appoint the executor or executrix before notice, which triggers the time bar, can be given. Only after this court appointment is made does the statute provide for any notice; 331 directs the executor or executrix to publish notice `immediately' after appointment." Ante, at 487. Just why the due process implications of these two cases should turn upon the "activity" of the Oklahoma probate court is not made clear. Surely from the point of view of the claimant for whom, after all, the Due Process Clause is designed to benefit the difference between having the time bar to his claim activated by a notice published by a court-appointed executor, as it was here, and having the time bar *493 activated by acquisition of the mineral interest, as it was in Indiana, makes little if any difference. The owner of a mineral interest in Indiana who neither made any use of it for 20 years nor filed a statement of claim, would lose a quiet title action brought in the Indiana courts against him by the surface owner because those courts would apply the 20-year statute of limitations. The appellant in the present case lost a suit in the Oklahoma courts because those courts applied the 2-month statute of limitations contained in the Oklahoma probate statute. Why there is "state action" in the latter case, but not in the former, remains a mystery which is in no way elucidated by the Court's opinion. The factual |
Justice Rehnquist | 1,988 | 19 | dissenting | Tulsa Professional Collection Services, Inc. v. Pope | https://www.courtlistener.com/opinion/112038/tulsa-professional-collection-services-inc-v-pope/ | in no way elucidated by the Court's opinion. The factual differences which the Court points out, showing that the probate court is "intimately involved" in the application of the Oklahoma nonclaim statute, seem to me trivial. Probate proceedings have been traditionally uncontested and administrative, designed to transfer assets from someone who has died to his successors. Before making these transfers, probate codes universally require that the estate settle the debts of the decedent, and to do this it is necessary that claims against the estate be marshaled and proved. Ante, at 479-480. Once the debts of the estate are paid, the necessary steps can be taken to distribute the remainder of the property. Occasionally there may be a disputed claim against the estate, which is then in most jurisdictions tried like any other civil suit. Occasionally there may be a dispute over the validity of the will, with a resultant will contest. Occasionally there may be objections to the account of the executor or the administrator, which are then in most jurisdictions heard and decided by the probate court. But by and large, the typical probate proceeding and the one involved in the instant case seems to have followed that pattern is uncontested, and the publication of notice to creditors simply shortens the otherwise applicable statute of limitations. *494 The "intimate involvement" of the probate court in the present case was entirely of an administrative nature. Would this Court have struck down the Indiana mineral lapse statute involved in Texaco, Inc., if that statute had provided as an additional protection to mineral owners that a state official should publish notice to all mineral owners of the effect of the operation of the lapse statute? I find it difficult to believe that would be the case, and yet the thrust of the Court's reasoning today points in that direction. Virtually meaningless state involvement, or lack of it, rather than the effect of the statute in question on the rights of the party whose claim is cut off, is held dispositive. The Court observes that in Oklahoma, it is the court-ordered publication of notice that triggers the running of the statute of limitations. This judicial involvement, the Court concludes, is inconsistent with the "self-executing feature," of the time bar in Texaco, Inc. Ante, at 487. This reading of the term "self-executing" is, I believe, out of context and contrary to common sense. That term refers only to the absence of a judicial or other determination that itself extinguishes the claimant's rights. This is made clear by the Texaco, |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | This case raises questions as to the United Border Patrol's authority to stop automobiles in areas near the Mexican border. It differs from our decision in in that the Border Patrol does not claim authority to search cars, but only to question the occupants about their citizenship and immigration status. I As part of its regular traffic-checking operations in southern California, the Border Patrol operates a fixed checkpoint on Interstate Highway 5 south of San Clemente. On the evening of March 11, the checkpoint was closed because of inclement weather, but two officers were observing northbound traffic from a patrol *875 car parked at the side of the highway. The road was dark, and they were using the patrol car's headlights to illuminate passing cars. They pursued respondent's car and stopped it, saying later that their only reason for doing so was that its three occupants appeared to be of Mexican descent. The officers questioned respondent and his two passengers about their citizenship and learned that the passengers were aliens who had entered the country illegally. All three were then ed, and respondent was charged with two counts of knowingly transporting illegal immigrants, a violation of 274 (2) of the Immigration and Nationality Act, 8 U.S. C. 1324 (2). At trial respondent moved to suppress the testimony of and about the two passengers, claiming that this evidence was the fruit of an illegal seizure. The trial court denied the motion, the aliens testified at trial, and respondent was convicted on both counts. Respondent's appeal was pending in the Court of Appeals for the Ninth Circuit when we announced our decision in holding that the Fourth Amendment prohibits the use of roving patrols to search vehicles, without a warrant or probable cause, at points removed from the border and its functional equivalents. The Court of Appeals, sitting en banc, held that the stop in this case more closely resembled a roving-patrol stop than a stop at a traffic checkpoint, and applied the principles of[1]*876 The court held that the Fourth Amendment, as interpreted in forbids stopping a vehicle, even for the limited purpose of questioning its occupants, unless the officers have a "founded suspicion" that the occupants are aliens illegally in the country. The court refused to find that Mexican ancestry alone supported such a "founded suspicion" and held that respondent's motion to suppress should have been granted.[2] We granted certiorari and set the case for oral argument with No. 73-2050, United v. Ortiz, post, p. 891, and No. 73-6848, Bowen v. United post, p. 916. The Government does not challenge |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | v. United post, p. 916. The Government does not challenge the Court of Appeals' factual conclusion that the stop of respondent's car was a roving-patrol stop rather than a checkpoint stop. Brief for United 8. Nor does it challenge the retroactive application of Brief for United 9, or contend that the San Clemente checkpoint is the functional equivalent of the border. The only issue presented for decision is whether a roving patrol may stop a vehicle in an area near the border and question its occupants when the only ground for suspicion is that the occupants appear to be of Mexican ancestry. For the reasons that follow, we affirm the decision of the Court of Appeals. II The Government claims two sources of statutory authority *877 for stopping cars without warrants in the border areas. Section 287 (1) of the Immigration and Nationality Act, 8 U.S. C. 1357 (1), authorizes any officer or employee of the Immigration and Naturalization Service (INS) without a warrant, "to interrogate any alien or person believed to be an alien as to his right to be or to remain in the United" There is no geographical limitation on this authority. The Government contends that, at least in the areas adjacent to the Mexican border, a person's apparent Mexican ancestry alone justifies belief that he or she is an alien and satisfies the requirement of this statute. Section 287 (3) of the Act, 8 U.S. C. 1357 (3), authorizes agents, without a warrant, "Within a reasonable distance from any external boundary of the United to board and search for aliens any vessel within the territorial waters of the United and any railway car, aircraft, conveyance, or vehicle" Under current regulations, this authority may be exercised anywhere within 100 miles of the border. 8 CFR 287.1 (1975). The Border Patrol interprets the statute as granting authority to stop moving vehicles and question the occupants about their citizenship, even when its officers have no reason to believe that the occupants are aliens or that other aliens may be concealed in the vehicle.[3] But "no Act of Congress can authorize a violation of the Constitution." *878 and we must decide whether the Fourth Amendment allows such random vehicle stops in the border areas. III The Fourth Amendment applies to all seizures of the person, including seizures that involve only a brief detention short of traditional ; "[W]henever a police officer accosts an individual and restrains his freedom to walk away, he has `seized' that person," and the Fourth Amendment requires that the seizure be "reasonable." As with other categories |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | requires that the seizure be "reasonable." As with other categories of police action subject to Fourth Amendment constraints, the reasonableness of such seizures depends on a balance between the public interest and the individual's right to personal security free from arbitrary interference by law officers. ; The Government makes a convincing demonstration that the public interest demands effective measures to prevent the illegal entry of aliens at the Mexican border. Estimates of the number of illegal immigrants in the United vary widely. A conservative estimate in 1972 produced a figure of about one million, but the INS now suggests there may be as many as 10 or 12 million aliens illegally in the country.[4] Whatever the number, these aliens create significant economic and social problems, competing with citizens and legal resident *879 aliens for jobs, and generating extra demand for social services. The aliens themselves are vulnerable to exploitation because they cannot complain of substandard working conditions without risking deportation. See generally Hearings on Illegal Aliens before Subcommittee No. 1 of the House Committee on the Judiciary, 92d Cong., 1st and 2d Sess., ser. 13, pts. 1-5 The Government has estimated that 85% of the aliens illegally in the country are from Mexico. United v. Baca,[5] The Mexican border is almost 2,000 miles long, and even a vastly reinforced Border Patrol would find it impossible to prevent illegal border crossings. Many aliens cross the Mexican border on foot, miles away from patrolled areas, and then purchase transportation from the border area to inland cities, where they find jobs and elude the immigration authorities. Others gain entry on valid temporary border-crossing permits, but then violate the conditions of their entry. Most of these aliens leave the border area in private vehicles, often assisted by professional "alien smugglers." The Border Patrol's traffic-checking operations are designed to prevent this inland movement. They succeed in apprehending some illegal entrants and smugglers, and they deter the movement of others by threatening apprehension and increasing the cost of illegal transportation. Against this valid public interest we must weigh the interference with individual liberty that results when an officer stops an automobile and questions its occupants. *880 The intrusion is modest. The Government tells us that a stop by a roving patrol "usually consumes no more than a minute." Brief for United 25. There is no search of the vehicle or its occupants, and the visual inspection is limited to those parts of the vehicle that can be seen by anyone standing alongside.[6] According to the Government, "[a]ll that is required of the vehicle's occupants is a |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | "[a]ll that is required of the vehicle's occupants is a response to a brief question or two and possibly the production of a document evidencing a right to be in the United" Because of the limited nature of the intrusion, stops of this sort may be justified on facts that do not amount to the probable cause required for an In the Court declined expressly to decide whether facts not amounting to probable cause could justify an "investigative `seizure' " short of an n. 16, but it approved a limited searcha pat-down for weaponsfor the protection of an officer investigating suspicious behavior of persons he reasonably believed to be armed and dangerous. The Court approved such a search on facts that did not constitute probable cause to believe the suspects guilty of a crime, requiring only that "the police officer be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant" a belief that his safety or that of others is in danger. ; see We elaborated on Terry in holding that a policeman was justified *881 in approaching the respondent to investigate a tip that he was carrying narcotics and a gun. "The Fourth Amendment does not require a policeman who lacks the precise level of information necessary for probable cause to to simply shrug his shoulders and allow a crime to occur or a criminal to escape. On the contrary, Terry recognizes that it may be the essence of good police work to adopt an intermediate response. 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." These cases together establish that in appropriate circumstances the Fourth Amendment allows a properly limited "search" or "seizure" on facts that do not constitute probable cause to or to search for contraband or evidence of crime. In both Terry and the investigating officers had reasonable grounds to believe that the suspects were armed and that they might be dangerous. The limited searches and seizures in those cases were a valid method of protecting the public and preventing crime. In this case as well, because of the importance of the governmental interest at stake, the minimal intrusion of a brief stop, and the absence of practical alternatives for policing the border, we hold that when an officer's observations lead him reasonably to suspect that a particular vehicle may contain aliens who are illegally |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | that a particular vehicle may contain aliens who are illegally in the country, he may stop the car briefly and investigate the circumstances that provoke suspicion. As in Terry, the stop and inquiry must be "reasonably related in scope to the justification for their initiation." The officer may question the driver and passengers about their citizenship and *882 immigration status, and he may ask them to explain suspicious circumstances, but any further detention or search must be based on consent or probable cause. We are unwilling to let the Border Patrol dispense entirely with the requirement that officers must have a reasonable suspicion to justify roving-patrol stops.[7] In the context of border area stops, the reasonableness requirement of the Fourth Amendment demands something more than the broad and unlimited discretion sought by the Government. Roads near the border carry not only aliens seeking to enter the country illegally, but a large volume of legitimate traffic as well. San Diego, with a metropolitan population of 1.4 million, is located on the border. Texas has two fairly large metropolitan areas directly on the border: El Paso, with a population of 360,000, and the Brownsville-McAllen area, with a combined population of 320,000. We are confident that substantially all of the traffic in these cities is lawful and that relatively few of their residents have any connection with the illegal entry and transportation of aliens. To approve roving-patrol stops of all vehicles in the border area, without any suspicion that a particular vehicle is carrying illegal immigrants, would subject the residents of these and other areas to potentially unlimited interference with their use of the highways, solely at the discretion of Border Patrol officers. The only formal limitation on that discretion appears to be the administrative regulation defining the term "reasonable distance" in 287 (3) to mean within 100 *883 air miles from the border. 8 CFR 287.1 (1975). Thus, if we approved the Government's position in this case, Border Patrol officers could stop motorists at random for questioning, day or night, anywhere within 100 air miles of the 2,000-mile border, on a city street, a busy highway, or a desert road, without any reason to suspect that they have violated any law. We are not convinced that the legitimate needs of law enforcement require this degree of interference with lawful traffic. As we discuss in Part IV, infra, the nature of illegal alien traffic and the characteristics of smuggling operations tend to generate articulable grounds for identifying violators. Consequently, a requirement of reasonable suspicion for stops allows the Government adequate means of guarding |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | suspicion for stops allows the Government adequate means of guarding the public interest and also protects residents of the border areas from indiscriminate official interference. Under the circumstances, and even though the intrusion incident to a stop is modest, we conclude that it is not "reasonable" under the Fourth Amendment to make such stops on a random basis.[8] The Government also contends that the public interest in enforcing conditions on legal alien entry justifies stopping persons who may be aliens for questioning about their citizenship and immigration status. Although we *884 may assume for purposes of this case that the broad congressional power over immigration, see authorizes Congress to admit aliens on condition that they will submit to reasonable questioning about their right to be and remain in the country, this power cannot diminish the Fourth Amendment rights of citizens who may be mistaken for aliens. For the same reasons that the Fourth Amendment forbids stopping vehicles at random to inquire if they are carrying aliens who are illegally in the country, it also forbids stopping or detaining persons for questioning about their citizenship on less than a reasonable suspicion that they may be aliens. IV The effect of our decision is to limit exercise of the authority granted by both 287 (1) and 287 (3). Except at the border and its functional equivalents, officers on roving patrol may stop vehicles only if they are aware of specific articulable facts, together with rational inferences from those facts, that reasonably warrant suspicion that the vehicles contain aliens who may be illegally in the country.[9] Any number of factors may be taken into account in deciding whether there is reasonable suspicion to stop a car in the border area. Officers may consider the characteristics of the area in which they encounter a vehicle. Its proximity to the border, the usual patterns *885 of traffic on the particular road, and previous experience with alien traffic are all relevant. See Carroll v. United ; United v. Jaime-Barrios, (CA9), cert. denied,[10] They also may consider information about recent illegal border crossings in the area. The driver's behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion. See United v. ; Duprez v. United Aspects of the vehicle itself may justify suspicion. For instance, officers say that certain station wagons, with large compartments for fold-down seats or spare tires, are frequently used for transporting concealed aliens. See United v. Bugarin-Casas, cert. denied, ; United v. Wright, The vehicle may appear to be heavily loaded, it may have an |
Justice Powell | 1,975 | 17 | majority | United States v. Brignoni-Ponce | https://www.courtlistener.com/opinion/109311/united-states-v-brignoni-ponce/ | may appear to be heavily loaded, it may have an extraordinary number of passengers, or the officers may observe persons trying to hide. See United v. The Government also points out that trained officers can recognize the characteristic appearance of persons who live in Mexico, relying on such factors as the mode of dress and haircut. Reply Brief for United 12-13, in United v. Ortiz, post, p. 891. In all situations the officer is entitled to assess the facts in light of his experience in detecting illegal entry and smuggling. 392 U. S., In this case the officers relied on a single factor to justify stopping respondent's car: the apparent Mexican ancestry *886 of the occupants.[11] We cannot conclude that this furnished reasonable grounds to believe that the three occupants were aliens. At best the officers had only a fleeting glimpse of the persons in the moving car, illuminated by headlights. Even if they saw enough to think that the occupants were of Mexican descent, this factor alone would justify neither a reasonable belief that they were aliens, nor a reasonable belief that the car concealed other aliens who were illegally in the country. Large numbers of native-born and naturalized citizens have the physical characteristics identified with Mexican ancestry, and even in the border area a relatively small proportion of them are aliens.[12] The likelihood that any given *887 person of Mexican ancestry is an alien is high enough to make Mexican appearance a relevant factor, but standing alone it does not justify stopping all Mexican-Americans to ask if they are aliens. The judgment of the Court of Appeals is Affirmed. [For opinion of THE CHIEF JUSTICE concurring in the judgment, see post, p. 899.] [For opinion of MR. JUSTICE WHITE concurring in the judgment, see post, p. 914.] MR. |
per_curiam | 1,999 | 200 | per_curiam | Stewart v. LaGrand | https://www.courtlistener.com/opinion/1087693/stewart-v-lagrand/ | Walter and Karl were each convicted of first-degree murder, attempted murder in the first degree, attempted armed robbery, and two counts of kidnaping. The Arizona Supreme Court gave a detailed account of the *116 crime in Walter 's appeal. See Following a jury trial, both Karl and Walter were convicted on all charges and sentenced to death. The Arizona Supreme Court affirmed the convictions and sentences. ; Subsequently, we denied the s' petitions for certiorari. See The s then filed petitions for writs of habeas corpus pursuant to 28 U.S. C. 2254. Until then, Walter had been represented by Bruce Burke, a Tucson lawyer. Before appointing Burke as counsel in the habeas proceeding, however, the District Court required Burke to discuss all possible claims of ineffective assistance of counsel with Walter and to file a status report with the court. See Walter informed Burke that he did not desire a new attorney and requested that Burke continue to represent him. Nevertheless, after Burke learned that Karl was pursuing ineffective-assistance-of-counsel claims, Burke moved to withdraw as counsel. The District Court denied this motion on the ground that "Walter entered a waiver of any potential claims of ineffective assistance of counsel and Mr. Burke indicated to the Court that he believes no such grounds existed." v. The Ninth Circuit affirmed, holding that "[w]hen Walter waived the offer of new counsel, he was waiving the benefits of new representation, among which would potentially have been the presentation of this sort of [ineffective-assistance claim]." 133 F. 3d, at Among the claims raised in Walter 's petition for a writ of habeas corpus was the claim that execution by lethal gas constituted cruel and unusual punishment under the Eighth Amendment to the United States Constitution. The *117 District Court found the claim to be procedurally defaulted because Walter had failed to raise it either on direct appeal or in his petition for state postconviction relief, when the sole method of execution was by way of lethal gas. On appeal, the Ninth Circuit did not reach the issue of procedural default because it found the claim was not ripe until and unless chose gas as his method of execution. The petition for writ of habeas corpus was denied. at In February Karl filed a successive state petition for postconviction relief raising the claim that execution by lethal gas constituted cruel and unusual punishment. The trial court found the claim moot and precluded due to Karl 's failure to raise the claim in prior state court proceedings, and the Arizona Supreme Court denied review. Karl again raised |
per_curiam | 1,999 | 200 | per_curiam | Stewart v. LaGrand | https://www.courtlistener.com/opinion/1087693/stewart-v-lagrand/ | and the Arizona Supreme Court denied review. Karl again raised the claim in a second federal habeas corpus petition. The District Court again found the claim procedurally defaulted and concluded that Karl had failed to establish cause and prejudice or a fundamental miscarriage of justice to excuse the default. The District Court denied that petition, but the Court of Appeals reversed. The Ninth Circuit held that Karl 's lethal gas claim was procedurally barred but found cause and prejudice to excuse the default. The court concluded that Karl 's failure to raise the lethal gas claim was excused because there was no legal or factual basis for the claim when he pursued his direct appeal in state court. Prejudice was shown because he was now faced with execution by a method the Ninth Circuit had previously found to be unconstitutional. The Ninth Circuit also addressed the State's argument that Karl 's choice of execution method constituted a waiver of his current claim. According to the Ninth Circuit, its precedent dictated that "Eighth Amendment protections *118 may not be waived, at least in the area of capital punishment." See v.Stewart, As part of its ultimate order, the Court of Appeals stayed Karl 's execution and enjoined Arizona "from executing Karl Hinze or anyone similarly situated, by means oflethal gas." The State filed an application to vacate the stay, which we granted. Subsequently, Karl 's lawyers moved to clarify our order to determine whether the Ninth Circuit's injunction was still in place. We denied this motion. At the last moment, Karl requested the use of lethal injection, which the State allowed, and the validity of the Ninth Circuit's injunction was not tested. This case followed. Like Karl Walter filed a petition for writ of habeas corpus challenging lethal gas as a cruel and unusual form of execution. The District Court declined to follow the Ninth Circuit's previous opinion in v. Stewart, No. 99-99004 concluding that our lifting of the stay of execution necessarily vacated the merits of the Ninth Circuit's decision. The District Court also denied a certificate of appealability, concluding that "the issue of procedural default of Petitioner's lethal gas challenge is not debatable among jurists of reason." Pet. for Cert. 5. The Ninth Circuit panel granted a certificate of appealability and proceeded to the merits of the case. It concluded that our order lifting the stay of execution in v. Stewart, No. 99-99004 did not pass upon the merits of the panel's opinion and concluded that its reasoning remained sound. It then denied the stay of execution but restrained and |
per_curiam | 1,999 | 200 | per_curiam | Stewart v. LaGrand | https://www.courtlistener.com/opinion/1087693/stewart-v-lagrand/ | It then denied the stay of execution but restrained and enjoined the State of Arizona from executing Walter by means of lethal gas. The State has filed a petition for writ of certiorari and an application to lift the Court of Appeals' injunction. We now grant the petition for certiorari, summarily reverse the judgment, and vacate the Court of Appeals' injunctive order. *119 I Walter by his actions, has waived his claim that execution by lethal gas is unconstitutional. At the time Walter was sentenced to death, lethal gas was the only method of execution available in Arizona, but the State now provides inmates a choice of execution by lethal gas or lethal injection, see Ariz. Rev. Stat. Ann. 13-704(B) Walter was afforded this choice and decided to be executed by lethal gas. On March 1, Governor Hull of Arizona offered Walter an opportunity to rescind this decision and select lethal injection as his method of execution. Walter again, insisted that he desired to be executed by lethal gas. By declaring his method of execution, picking lethal gas over the State's default form of executionlethal injectionWalter has waived any objection he might have to it. See, e. g., To hold otherwise, and to hold that Eighth Amendment protections cannot be waived in the capital context, would create and apply a new procedural rule in violation of II In addition, Walter 's claims are procedurally defaulted, and he has failed to show cause to overcome this bar. See At the time of Walter 's direct appeal, there was sufficient debate about the constitutionality of lethal gas executions that Walter cannot show cause for his failure to raise this claim. Arguments concerning the constitutionality of lethal gas have existed since its introduction as a method of execution in Nevada in 1921. See H. The Death Penalty in America 16 (3d ed. 1982). In the period immediately prior to Walter 's direct appeal, a number of States were reconsidering the use of execution by lethal gas, see and two United States Supreme Court Justices had expressed their views that this method of execution was unconstitutional, see In addition, lethal gas executions have been documented since 1937, when San Quentin introduced it as an execution method, and studies of the effect of execution by lethal gas date back to the 1950's. See III Walter 's alternative argument, that his ineffective-assistance-of-counsel claim suffices as cause, also fails. Walter specifically waived the claim that his trial counsel was ineffective, representing to the District Court prior to filing his first federal habeas petition that there was no |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | A beeper is a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver. In this case, a beeper was placed in a five-gallon drum containing chloroform purchased by one of respondent's codefendants. By monitoring the progress of a car carrying the chloroform Minnesota law enforcement agents were able to trace the can of chloroform from its place of purchase in Minneapolis, Minn., to respondent's secluded cabin near Shell Lake, Wis. The issue presented by the case is whether such use of a beeper violated respondent's rights secured by the Fourth Amendment to the United States Constitution. I Respondent and two codefendants were charged in the United States District Court for the District of Minnesota with conspiracy to manufacture controlled substances, including but not limited to methamphetamine, in violation of 21 U.S. C. 846. One of the codefendants, Darryl Petschen, *278 was tried jointly with respondent; the other codefendant, Tristan Armstrong, pleaded guilty and testified for the Government at trial. Suspicion attached to this trio when the 3M Co., which manufactures chemicals in St. Paul, notified a narcotics investigator for the Minnesota Bureau of Criminal Apprehension that Armstrong, a former 3M employee, had been stealing chemicals which could be used in manufacturing illicit drugs. Visual surveillance of Armstrong revealed that after leaving the employ of 3M Co., he had been purchasing similar chemicals from the Hawkins Chemical Co. in Minneapolis. The Minnesota narcotics officers observed that after Armstrong had made a purchase, he would deliver the chemicals to codefendant Petschen. With the consent of the Hawkins Chemicals Co., officers installed a beeper inside a five-gallon container of chloroform, one of the so-called "precursor" chemicals used to manufacture illicit drugs. Hawkins agreed that when Armstrong next purchased chloroform, the chloroform would be placed in this particular container. When Armstrong made the purchase, officers followed the car in which the chloroform had been placed, maintaining contact by using both visual surveillance and a monitor which received the signals sent from the beeper. Armstrong proceeded to Petschen's house, where the container was transferred to Petschen's automobile. Officers then followed that vehicle eastward towards the state line, across the St. Croix River, and into Wisconsin. During the latter part of this journey, Petschen began making evasive maneuvers, and the pursuing agents ended their visual surveillance. At about the same time officers lost the signal from the beeper, but with the assistance of a monitoring device located in a helicopter the approximate location of the signal was picked up again about one hour later. The signal now |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | picked up again about one hour later. The signal now was stationary and the location identified was a cabin occupied by respondent near Shell Lake, Wis. The record before us does not reveal that the beeper was used after the *279 location in the area of the cabin had been initially determined. Relying on the location of the chloroform derived through the use of the beeper and additional information obtained during three days of intermittent visual surveillance of respondent's cabin, officers secured a search warrant. During execution of the warrant, officers discovered a fully operable, clandestine drug laboratory in the cabin. In the laboratory area officers found formulas for amphetamine and methamphetamine, over $10,000 worth of laboratory equipment, and chemicals in quantities sufficient to produce pounds of pure amphetamine. Under a barrel outside the cabin, officers located the five-gallon container of chloroform. After his motion to suppress evidence based on the warrantless monitoring of the beeper was denied, respondent was convicted for conspiring to manufacture controlled substances in violation of 21 U.S. C. 846. He was sentenced to five years' imprisonment. A divided panel of the United States Court of Appeals for the Eighth Circuit reversed the conviction, finding that the monitoring of the beeper was prohibited by the Fourth Amendment because its use had violated respondent's reasonable expectation of privacy, and that all information derived after the location of the cabin was a fruit of the illegal beeper monitoring.[*] We granted certiorari, and we now reverse the judgment of the Court of Appeals. II In this Court held that the wiretapping of a defendant's private telephone line did not violate the Fourth Amendment because the wiretapping had been effectuated without a physical trespass by the Government. Justice Brandeis, joined by Justice Stone, dissented from that decision, believing that the actions of the Government in that case constituted an "unjustifiable intrusion upon the privacy of the individual," and therefore a violation of the Fourth Amendment. Nearly 40 years later, in the Court overruled Olmstead saying that the Fourth Amendment's reach "cannot turn upon the presence or absence of a physical intrusion into any given enclosure." The Court said: "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a `search and seizure' within the meaning of the Fourth Amendment. The fact that the electronic device employed to achieve that end did not happen to penetrate the wall of the booth can have no constitutional significance." In we elaborated on the principles stated |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | no constitutional significance." In we elaborated on the principles stated in : "Consistently with this Court uniformly has held that the application of the Fourth Amendment depends on whether the person invoking its protection can claim a `justifiable,' a `reasonable,' or a `legitimate expectation of privacy' that has been invaded by government action. [Citations omitted.] This inquiry, as Mr. Justice Harlan aptly noted in his concurrence, normally embraces *281 two discrete questions. The first is whether the individual, by his conduct, has `exhibited an actual (subjective) expectation of privacy,' whether, in the words of the majority, the individual has shown that `he seeks to preserve [something] as private.' The second question is whether the individual's subjective expectation of privacy is `one that society is prepared to recognize as "reasonable," ' at 361 whether, in the words of the majority, the individual's expectation, viewed objectively, is `justifiable' under the circumstances. See Rakas v. -4, n. 12; ; United States v." -741 The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways. We have commented more than once on the diminished expectation of privacy in an automobile: "One has a lesser expectation of privacy in a motor vehicle because its function is transportation and it seldom serves as one's residence or as the repository of personal effects. A car has little capacity for escaping public scrutiny. It travels public thoroughfares where both its occupants and its contents are in plain view." See also Rakas v. ; South A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When Petschen traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular *282 roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property. Respondent Knotts, as the owner of the cabin and surrounding premises to which Petschen drove, undoubtedly had the traditional expectation of privacy within a dwelling place insofar as the cabin was concerned: "Crime, even in the privacy of one's own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also of grave concern, not only to the individual, but to a society which chooses to dwell in reasonable security |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent." quoted with approval in But no such expectation of privacy extended to the visual observation of Petschen's automobile arriving on his premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the "open fields." Visual surveillance from public places along Petschen's route or adjoining Knotts' premises would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but also on the use of the beeper to signal the presence of Petschen's automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case. In United the Court said: *283 "But no search on the high seas is shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that there was any exploration below decks or under hatches. For aught that appears, the cases of liquor were on deck and, like the defendants, were discovered before the motor boat was boarded. Such use of a searchlight is comparable to the use of a marine glass or a field glass. It is not prohibited by the Constitution." We have recently had occasion to deal with another claim which was to some extent a factual counterpart of respondent's assertions here. In we said: "This analysis dictates that [Smith] can claim no legitimate expectation of privacy here. When he used his phone, [Smith] voluntarily conveyed numerical information to the telephone company and `exposed' that information to its equipment in the ordinary course of business. In so doing, [Smith] assumed the risk that the company would reveal to police the numbers he dialed. The switching equipment that processed those numbers is merely the modern counterpart of the operator who, in an earlier day, personally completed calls for the subscriber. [Smith] concedes that if he had placed his calls through an operator, he could claim no legitimate expectation of privacy. [Citation omitted.] We are not inclined to hold that a different constitutional result is required because the telephone company has decided to automate." -745. Respondent does not actually quarrel with |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | decided to automate." -745. Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision." Brief for Respondent 9 But the fact is that the "reality hardly suggests abuse," ; if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now. Respondent specifically attacks the use of the beeper insofar as it was used to determine that the can of chloroform had come to rest on his property at Shell Lake, Wis. He repeatedly challenges the "use of the beeper to determine the location of the chemical drum at Respondent's premises," Brief for Respondent 26; he states that "[t]he government thus overlooks the fact that this case involves the sanctity of Respondent's residence, which is accorded the greatest protection available under the Fourth Amendment." The Court of Appeals appears to have rested its decision on this ground: "As noted above, a principal rationale for allowing warrantless tracking of beepers, particularly beepers in or on an auto, is that beepers are merely a more effective means of observing what is already public. But people pass daily from public to private spheres. When police agents track bugged personal property without first obtaining a warrant, they must do so at the risk that this enhanced surveillance, intrusive at best, might push fortuitously and unreasonably into the private sphere protected by the Fourth Amendment." We think that respondent's contentions, and the above-quoted language from the opinion of the Court of Appeals, to some extent lose sight of the limited use which the government made of the signals from this particular beeper. As we have noted, nothing in this record indicates that the beeper *285 signal was received or relied upon after it had indicated that the drum containing the chloroform had ended its automotive journey at rest on respondent's premises in rural Wisconsin. Admittedly, because of the failure of the visual surveillance, the beeper enabled the law enforcement officials in this case to ascertain the ultimate resting place of the chloroform when they would not have been able to |
Justice Rehnquist | 1,983 | 19 | majority | United States v. Knotts | https://www.courtlistener.com/opinion/110882/united-states-v-knotts/ | the chloroform when they would not have been able to do so had they relied solely on their naked eyes. But scientific enhancement of this sort raises no constitutional issues which visual surveillance would not also raise. A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in neither were they dispositive in We thus return to the question posed at the beginning of our inquiry in discussing did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold it did not. Since it did not, there was neither a "search" nor a "seizure" within the contemplation of the Fourth Amendment. The judgment of the Court of Appeals is therefore Reversed. JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in the judgment. |
Justice Burger | 1,972 | 12 | dissenting | Brooks v. Tennessee | https://www.courtlistener.com/opinion/108551/brooks-v-tennessee/ | This case is an example of the Court's confusing what it does not approve with the demands of the Constitution. As a matter of choice and policyif I were a legislator, for exampleI would not vote for a statute like that the Court strikes down today. But I cannot accept the idea that the Constitution forbids the States to have such a statute. Of course, it is more convenient for a lawyer to defer the decision to have the accused take the stand until he knows how his other witnesses fare. By the same token, it is helpful for an accused to be able to adjust his testimony to what his witnesses have had to say on the matter. No one has seriously challenged the absolute discretion of a trial judge to exclude witnesses, other than the accused, from the courtroom until they are called to the *614 stand. The obvious purpose is to get honest testimony and minimize the prospect that a witness will adjust and "tailor" his version to fit what others have said; it seems somewhat odd to say the Constitution forbids all States to require the accused to give his version before his other witnesses speak, since it is not possible to exclude him from the courtroom, as is the common rule for witnesses who are not parties. The Court's holding under the Fifth Amendment is admittedly unsupported by any authority and cannot withstand analysis. The Constitution provides only that no person shall "be compelled in any criminal case to be a witness against himself." It is undisputed that petitioner was not in fact compelled to be a witness against himself, as he did not take the stand. Nor was the jury authorized or encouraged to draw perhaps unwarranted inferences from his silence, as in Petitioner was clearly not subjected to the obvious compulsion of being held in contempt for his silence, as in nor did the Tennessee procedure subject him to any other significant compulsion to testify other than the compulsion faced by every defendant who chooses not to take the standthe knowledge that in the absence of his testimony the force of the State's evidence may lead the jury to convict. Cases such as and involving loss of employment or disbarment are therefore clearly inapposite. That should end the matter. However, the Court distorts both the context and content of by intimating that the Fifth Amendment may be violated if the defendant is forced to make a difficult choice as to whether to take the stand at some point in time prior to the |
Justice Burger | 1,972 | 12 | dissenting | Brooks v. Tennessee | https://www.courtlistener.com/opinion/108551/brooks-v-tennessee/ | the stand at some point in time prior to the conclusion *615 of a criminal trial. But, as the Court pointed out only last Term in "[a]lthough a defendant may have a right, even of constitutional dimensions, to follow whichever course he chooses, the Constitution does not by that token always forbid requiring him to choose." Indeed, the "choice" we sustained in McGautha was far more difficult than that here, as the procedure there clearly exerted considerable force to compel the defendant to waive the privilege and take the stand in order to avoid the possible imposition of the death penalty. See also There is no such pressure here. The majority's rationale would lead to the absurd result that the State could not even require the defendant to finally decide whether he wishes to take the stand prior to the time the jury retires for deliberations, for, even at that point, he "may not know whether his own testimony will be necessary or even helpful to his cause." Even then, he might "prefer to remain silent putting off his testimony until its value can be realistically assessed." In short, even at the close of the defense case, his decision to take the stand is not unfettered by the difficulty to make the hard choice to waive the privilege. Perhaps the defendant's decision will be easier at the close of all the evidence. Perhaps not. The only "burden" cast on the defendant's choice to take the stand by the Tennessee procedure is the burden to make the choice at a given point in time. That the choice might in some cases be easier if made later is hardly a matter of constitutional dimension. The Court's holding that the Tennessee rule deprives the defendant of the "guiding hand of counsel" at every stage of the proceedings fares no better, as MR. JUSTICE REHNQUIST clearly demonstrates. It amounts to nothing more than the assertion that counsel may not be *616 restricted by ordinary rules of evidence and procedure in presenting an accused's defense if it might be more advantageous to present it in some other way. A rule forbidding defense counsel to ask leading questions of the defendant when he takes the stand may restrict defense counsel in his options and may in many cases bear only remote relationship to the goal of truthful testimony. Yet no one would seriously contend that such a universal rule of procedure is prohibited by the Constitution. The rule that the defendant waives the Fifth Amendment privilege as to any and all relevant matters when he decides |
Justice Burger | 1,972 | 12 | dissenting | Brooks v. Tennessee | https://www.courtlistener.com/opinion/108551/brooks-v-tennessee/ | as to any and all relevant matters when he decides to take the stand certainly inhibits the choices and options of counsel, yet this Court has never questioned such a rule and reaffirmed its validity only last Term. See Countless other rules of evidence and procedure of every State may interfere with the "guiding hand of counsel." The Court does not explain why the rule here differs from those other rules. Perhaps this reflects what is the true, if unspoken, basis for the Court's decision; that is, that in the majority's view the Tennessee rule is invalid because it is followed presently by only two States in our federal system. But differences in criminal procedures among our States do not provide an occasion for judicial condemnation by this Court. This is not a case or an issue of great importance, except as it erodes the important policy of allowing diversity of method and procedure to the States to the end that they can experiment and innovate, and retreat if they find they have taken a wrong path. Long ago, Justice Brandeis spoke of the need to let "a single courageous State" try what others have not tried or will not try. New State Ice ; see In the faltering condition of our machinery of justice this is a singularly inappropriate time to throttle the diversity so essential in the search for improvement. MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | The State of Ohio imposes its general sales and use taxes on natural gas purchases from all sellers, whether in-state or *282 out-of-state, except regulated public utilities that meet Ohio's statutory definition of a "natural gas company." The question here is whether this difference in tax treatment between sales of gas by domestic utilities subject to regulation and sales of gas by other entities violates the Commerce Clause or Equal Protection Clause of the Constitution. We hold that it does not. I During the tax period at issue,1] Ohio levied a 5% tax on the in-state sales of goods, including natural gas, see 5739.025 (Supp. 1990), and it imposed a parallel 5% use tax on goods purchased out-of-state for use in Ohio. See 5741.02 Local jurisdictions were authorized to levy certain additional taxes that increased these sales and use tax rates to as much as 7% in some municipalities. See 5739.025 (Supp. 1990); Reply Brief for Petitioner 13, n. 11. Since 1935, when Ohio's first sales and use taxes were imposed, the State has exempted natural gas sales by "natural gas companies]" from all state and local sales taxes. 5739.02(B)(7).2] Under Ohio law, "a]ny person i]s a natural gas company when engaged in the business of supplying natural gas for lighting, power, or heating purposes to consumers within this state." 5727.01(D)(4) ; see also 5727.01(E)(4) (Supp. 1990); 5727.01(E)(8) It is undisputed that natural gas utilities (generally termed "local distribution companies" or LDC's) located in Ohio satisfy this definition of "natural gas company." The Supreme Court of Ohio has, however, interpreted the statutory term to exclude non-LDC gas sellers, such as producers and independent marketers, see Chrysler and the State has accordingly treated their sales as outside the exemption and so subject to the tax. The very question of such an exclusion, and consequent taxation of gas sales or use, reflects a recent stage of evolution in the structure of the natural gas industry. Traditionally, the industry was divisible into three relatively distinct segments: producers, interstate pipelines, and LDC's. This market structure was possible largely because the Natural Gas Act of 1938 (NGA), 15 U.S. C. 717 et seq., failed to require interstate pipelines to offer transportation services to third parties wishing to ship gas. As a result, "interstate pipelines were able] to use their monopoly power over gas transportation to create and maintain monopsony power in the market for the purchase of gas at the wellhead and monopoly power in the market for the sale of gas to LDCs." Pierce, The Evolution of Natural Gas Regulatory Policy, 10 Nat. Resources |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | The Evolution of Natural Gas Regulatory Policy, 10 Nat. Resources & Env't 53, 53-54 (hereinafter Pierce). For the most part, then, producers sold their gas to the pipelines, which resold it to utilities, which in turn provided local distribution to consumers. See, e. g., Associated Gas cert. denied, ; Mogel & Gregg, Appropriateness of Imposing Common Carrier Status on Interstate Natural Gas Pipelines, 4 Energy L. J. 155, 157 Congress took a first step toward increasing competition in the natural gas market by enacting the Natural Gas Policy Act of 1978, 15 U.S. C. et seq., which was designed to phase out regulation of wellhead prices charged by producers of natural gas, and to "promote gas transportation by interstate and intrastate pipelines" for third parties. Pipelines were reluctant to provide common carriage, however, when doing so would displace their own sales, see Associated Gas at and in 1985, the Federal *284 Energy Regulatory Commission () took the further step of promulgating Order No. 436, which contained an "open access" rule providing incentives for pipelines to offer gas transportation services, see In 1992, this evolution culminated in 's Order No. 636, which required all interstate pipelines to "unbundle" their transportation services from their own natural gas sales and to provide common carriage services to buyers from other sources that wished to ship gas. See Although did not take the further step of requiring intrastate pipelines to provide local transportation services to ensure that gas sold by producers and independent marketers could get all the way to the point of consumption,3] under the system of open access to interstate pipelines that had emerged in the mid-1980's "larger industrial end-users" began increasingly to bypass utilities' local distribution networks by "constructing] their own pipeline spurs to interstate] pipelines]" Fagan, From Regulation to Deregulation: The Diminishing Role of the Small Consumer Within the Natural Gas Industry, 29 Tulsa L. J. 707, 723 Bypass posed a problem for LDC's, since the departure of large end users from the system left the same fixed costs to be spread over a smaller customer base. The State of Ohio consequently took steps in 1986 to keep some income from large industrial customers within the utility system by adopting regulations that allowed industrial end users in Ohio to buy natural gas from producers or independent marketers, pay interstate pipelines for interstate transportation, and pay LDC's for local transportation. See In re Commis- *285 sion Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800GACOI ; see generally Natural Gas Marketing |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | End-Use Customers, No. 85-800GACOI ; see generally Natural Gas Marketing and Transportation Committee, 1990 Annual Report, in Natural Resources Energy and Environmental Law, 1990 Year in Review 57, 91-92, and n. 207 (1991). This new market structure led to the question whether purchases from non-LDC sellers of natural gas qualified for the state sales tax exemption under Ohio Rev. Code Ann. 5739.02(B)(7) (Supp. 1990). In Chrysler the Ohio Supreme Court held that they do not. The court reasoned that independent marketers do not "supply]" natural gas as required by 5727.01(D)(4), because they do "not own or control any physical assets to distribute natural gas." This determination of state law led in turn to the case before us now. During the tax period in question here, petitioner General Motors Corporation (GMC) bought virtually all the natural gas for its Ohio plants from out-of-state marketers, not LDC's.4] Respondent Tax Commissioner of Ohio applied the State's general use tax to GMC's purchases, and the State Board of Tax Appeals sustained that action. GMC appealed to the Supreme Court of Ohio on two grounds. GMC first contended that its purchases should be exempt from the sales tax because independent marketers fell within the statutory definition of "natural gas company." The State Supreme Court, citing its decision the same day in Chrysler, rejected this argument. See General Motors GMC also argued that denying the tax exemption to sales by marketers violated the Commerce and Equal Protection Clauses. The Ohio court initially concluded that the State's *286 regime did not violate the Commerce Clause because Ohio taxes sales by "companies] that do] not own any production, transportation, or distribution equipment" at the same rate regardless of "whether the companies sell] natural gas instate or out-of-state." The court then stepped back to rule, however, that GMC lacked standing to bring its Commerce Clause challenge: "On close inspection, GM actually argues that the commissioner's application burdens out-of-state vendors of natural gas. However, GM is not a member of that class and lacks standing to challenge the constitutionality of this application on that basis; our further comment on this question is inappropriate." Finally, the court dismissed GMC's equal protection claim as "submerged in its Commerce Clause argument." -32, We granted GMC's petition for certiorari to address the question of standing as well as the Commerce and Equal Protection Clause issues. II The Supreme Court of Ohio held GMC to be without standing to raise this Commerce Clause challenge because the company is not one of the sellers said to suffer discrimination under the challenged tax laws. But cognizable injury |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | suffer discrimination under the challenged tax laws. But cognizable injury from unconstitutional discrimination against interstate commerce does not stop at members of the class against whom a State ultimately discriminates, and customers of that class may also be injured, as in this case where the customer is liable for payment of the tax and as a result presumably pays more for the gas it gets from out-of-state producers and marketers. Consumers who suffer this sort of injury from regulation forbidden under the Commerce Clause satisfy the standing requirements of Article III. See generally *287 On similar facts, we held in Bacchus Imports, that in-state liquor wholesalers had standing to raise a Commerce Clause challenge to a Hawaii tax regime exempting certain alcohols produced in-state from liquor taxes. Although the wholesalers were not among the class of out-of-state liquor producers allegedly burdened by Hawaii's law, we reasoned that the wholesalers suffered economic injury both because they were directly liable for the tax and because the tax raised the price of their imported goods relative to the exempted in-state beverages. ; see also Fulton ; West Lynn Creamery, Bacchus applies with equal force here, and GMC "plainly has] standing to challenge the tax in this Court," Bacchus Imports v. We therefore turn to the merits. III A The negative or dormant implication of the Commerce Clause prohibits state taxation, see, e. g., Quill 2-3 or regulation, see, e. g., Brown-Forman Distillers that discriminates against or unduly burdens interstate commerce and thereby "impedes] free private trade in the national marketplace," Reeves, GMC claims that Ohio's differential tax treatment of natural gas sales by marketers and regulated local utilities constitutes "facial" or "patent" discrimination in violation of the Commerce Clause, and it argues that differences in the nature of the businesses of LDC's and interstate marketers *2 cannot justify Ohio's differential treatment of these in-state and out-of-state entities. Although the claim is not that the Ohio tax scheme distinguishes in express terms between instate and out-of-state entities, GMC argues that by granting the tax exemption solely to LDC's, which are in fact all located in Ohio, the State has "favored] some in-state commerce while disfavoring all out-of-state commerce," Brief for Petitioner 16. That is, because the favored entities are all located within the State, "the tax exemption did not need to be drafted explicitly along state lines in order to demonstrate its discriminatory design," Amerada Hess Assessing these arguments requires an understanding of the historical development of the contemporary retail market for natural gas, to which we referred before and now turn in greater |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | to which we referred before and now turn in greater detail. B Since before the Civil War, gas manufactured from coal and other commodities had been used for lighting purposes, and of course it was understood that natural gas could be used the same way. See Dorner, Initial Phases of Regulation of the Gas Industry, in 1 Regulation of the Gas Industry 2.03-2.06 (hereinafter Dorner). By the early years of this century, areas in "proximity to the gas fields]," did use natural gas for fuel, but it was not until the 1920's that the development of high-tensile steel and electric welding permitted construction of high-pressure pipelines to transport natural gas from gas fields for distant consumption at relatively low cost. Pierce 53. By that time, the States' then-recent experiments with free market competition in the manufactured gas and electricity industries had dramatically underscored the need for comprehensive regulation of the local gas market. Companies supplying manufactured gas proliferated in the latter half of the 19th century *289 and, after initial efforts at regulation by statute at the state level proved unwieldy, the States generally left any regulation of the industry to local governments. See Dorner 2.03, 2.04. Many of those municipalities honored the tenets of laissez-faire to the point of permitting multiple gas franchisees to serve a single area and relying on competition to protect the public interest. The results were both predictable and disastrous, including an initial period of "wasteful competition,"5] followed by massive consolidation and the threat of monopolistic pricing.6] The public suffered through essentially the same evolution in the electric industry.7] Thus, by the time natural gas became a widely marketable *290 commodity, the States had learned from chastening experience that public streets could not be continually torn up to lay competitors' pipes, that investments in parallel delivery systems for different fractions of a local market would limit the value to consumers of any price competition, and that competition would simply give over to monopoly in due course. It seemed virtually an economic necessity for States to provide a single, local franchise with a business opportunity free of competition from any source, within or without the State, so long as the creation of exclusive franchises under state law could be balanced by regulation and the imposition of obligations to the consuming public upon the franchised retailers. Almost as soon as the States began regulating natural gas retail monopolies, their power to do so was challenged by interstate vendors as inconsistent with the dormant Commerce Clause. While recognizing the interstate character of commerce in natural gas, the Court |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | the interstate character of commerce in natural gas, the Court nonetheless affirmed the States' power to regulate, as a matter of local concern, all direct sales of gas to consumers within their borders, absent congressional prohibition of such state regulation. See, e. g., Pennsylvania Gas 28- ; Public Util. Comm'n of 245- At the same time, the Court concluded that the dormant Commerce Clause prevents the States from regulating interstate transportation or sales for resale of natural gas. See, e. g., Missouri ex rel. 7-0 ; See generally Illinois Natural Gas 4 U.S. 498, Thus, the Court never questioned the power of the States to regulate retail *291 sales of gas within their respective jurisdictions. Dorner 2.06.8] When federal regulation of the natural gas industry finally began in 1938, Congress, too, clearly recognized the value of such state-regulated monopoly arrangements for the sale and distribution of natural gas directly to local consumers. Thus, 1(b) of the NGA, 15 U.S. C. 717(b), explicitly exempted "local distribution of natural gas" from federal regulation, even as the NGA authorized the Federal Power *292 Commission (FPC) to begin regulating interstate pipelines. Congress's purpose in enacting the NGA was to fill the regulatory void created by the Court's earlier decisions prohibiting States from regulating interstate transportation and sales for resale of natural gas, while at the same time leaving undisturbed the recognized power of the States to regulate all in-state gas sales directly to consumers. Panhandle Eastern Pipe Line Thus, the NGA "was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way," ; "the scheme was one of cooperative action between federal and state agencies" to "protect consumers against exploitation at the hands of natural gas companies," ; and "Congress' action was an unequivocal recognition of the vital interests of the states and their people, consumers and industry alike, in the regulation of rates and service," ; see also Panhandle Eastern Pipe Line Indeed, the Court has construed 1(b) of the NGA as altogether exempting state regulation of in-state retail sales of natural gas from attack under the dormant Commerce Clause: "The declaration in the NGA], though not identical in terms with the one made by the McCarran Act, 15 U.S. C. 1011, concerning continued state regulation of the insurance business, is in effect equally clear, in view of the NGA's] historical setting, legislative history and objects, to show intention for the states to continue with regulation where Congress has not expressly taken over. Cf. Prudential Ins. ]." And Congress once again acknowledged the |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | Cf. Prudential Ins. ]." And Congress once again acknowledged the important role of the States in regulating intrastate transportation and distribution of natural gas in 1953 when, in the wake of a decision of this Court permitting the FPC to regulate intrastate gas transportation by LDC's, see Congress amended the NGA to "leave] jurisdiction" over "companies engaged in the distribution" of natural gas "exclusively in the States, as always has been intended." S. Rep. No. 817, 83d Cong., 1st Sess., 1-2 (1953); see 15 U.S. C. 717(c). For 40 years, the complementary federal regulation of the interstate market and congressionally approved state regulation of the intrastate gas trade thus endured unchanged in any way relevant to this case. The resulting market structure virtually precluded competition between LDC's and other potential suppliers of natural gas for direct sales to consumers, including large industrial consumers. The simplicity of this dual system of federal and state regulation began to erode in 1978, however, when Congress first encouraged interstate pipelines to provide transportation services to end users wishing to ship gas,9] and thereby moved toward providing a real choice to those consumers who were able to buy gas on the open market and were willing to take it free of state-created obligations to the buyer. The upshot of congressional and regulatory developments over the next 15 years was increasing opportunity for a consumer in that class to choose between gas sold by marketers and gas bundled with rights and benefits mandated by state regulators as sold by LDC's. But amidst such changes, two things remained the same throughout the period involved in this case. Congress *294 did nothing to limit the States' traditional autonomy to authorize and regulate local gas franchises, and the local franchised utilities (though no longer guaranteed monopolies as to all natural gas demand) continued to provide bundled gas to the vast majority of consumers who had neither the capacity to buy on the interstate market nor the resilience to forgo the reliability and protection that state regulation provided. To this day, all 50 States recognize the need to regulate utilities engaged in local distribution of natural gas.10]*295 Ohio's treatment of its gas utilities has been a typical blend of limitation and affirmative obligation. Its natural gas utilities, during the period in question, bore with a variety of *296 requirements: they had to submit annual forecasts of future supply and demand for gas, Ohio Rev. Code Ann. 4905.14 (Supp. 1990), comply with a range of accounting, reporting, and disclosure rules, 4905.14, 4905.15 (1977 and Supp. 1990), and get permission from the |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | 4905.15 (1977 and Supp. 1990), and get permission from the state Public Utilities Commission to issue securities and even to enter certain contracts, 4905.40, 4905.41, 4905.48. The "just and reasonable" rates to which they were restricted, see 4905.22, 4905.32, 4909.15, 4909.17, included a single average cost of gas, see :1-14, Ohio Monthly Record (Nov. 1991), together with a limited return on investment.11]*297 The LDC's could not exact "a greater or lesser compensation for any services rendered than exacted] from any other customer] for doing a like and contemporaneous service under substantially the same circumstances and conditions." Ohio Rev. Code Ann. 4905.33 (Supp. 1990). The State also required LDC's to serve all members of the public, without discrimination, throughout their fields of operations. See, e. g., Industrial Gas They could not "pick out good portions of a particular territory, serve only select customers under private contract, and refuse service to other users," or terminate service except for reasons defined by statute and by following statutory procedures, Ohio Rev. Code Ann. 4933.12, 4933.121 (Supp. 1990). When serving "human needs" consumers including "residential and] other customers where the element of human welfare was] the predominant factor," In re Commission Ordered Investigation of the Availability of Gas Transportation Service Provided by Ohio Gas Distribution Utilities to End-Use Customers, No. 85-800GACOI Ohio LDC's were required to provide a firm backup supply of gas, see ib and administer specific protective schemes, as by helping to assure a degree of continued service to low-income customers despite unpaid bills. See, e. g., :1-18 (Ohio Monthly Record Nov. 1991). The fact that the local utilities continue to provide a product consisting of gas bundled with the services and protections summarized above, a product thus different from the marketer's unbundled gas, raises a hurdle for GMC's claim *298 that Ohio's differential tax treatment of natural gas utilities and independent marketers violates our "`virtually per se rule of invalidity,' " Associated Industries of ), prohibiting facial discrimination against interstate commerce. A Conceptually, of course, any notion of discrimination12] assumes a comparison of substantially similar entities. Although *299 this central assumption has more often than not itself remained dormant in this Court's opinions on state discrimination subject to review under the dormant Commerce Clause, when the allegedly competing entities provide different products, as here, there is a threshold question whether the companies are indeed similarly situated for constitutional purposes. This is so for the simple reason that the difference in products may mean that the different entities serve different markets, and would continue to do so even if the supposedly discriminatory burden |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | continue to do so even if the supposedly discriminatory burden were removed. If in fact that should be the case, eliminating the tax or other regulatory differential would not serve the dormant Commerce Clause's fundamental objective of preserving a national market for competition undisturbed by preferential advantages conferred by a State upon its residents or resident competitors. In Justice Jackson's now-famous words: "Our system, fostered by the Commerce Clause, is that every farmer and every craftsman shall be encouraged to produce by the certainty that he will have free access to every market in the Nation, that no home embargoes will withhold his exports, and no foreign state will by customs duties or regulations exclude them. Likewise, every consumer may look to the free competition from every producing area in the Nation to protect *0 him from exploitation by any. Such was the vision of the Founders; such has been the doctrine of this Court which has given it reality." H. P. Hood & Sons, See also, e. g., 502 U.S. ("Our negative Commerce Clause jurisprudence grew out of the notion that the Constitution implicitly established a national free market"); Reeves, 447 U. S., at ; Thus, in the absence of actual or prospective competition between the supposedly favored and disfavored entities in a single market there can be no local preference, whether by express discrimination against interstate commerce or undue burden upon it, to which the dormant Commerce Clause may apply. The dormant Commerce Clause protects markets and participants in markets, not taxpayers as such. Our cases have, however, rarely discussed the comparability of taxed or regulated entities as operators in arguably distinct markets; the closest approach to the facts here occurred in In Arctic Maid, a 4% tax on the value of salmon taken from territorial waters by so-called freezer ships and frozen for transport and later canning outside the State was challenged as discriminatory in the face of a 1% tax on the value of fish taken from territorial waters and frozen by on-shore cold storage facilities for later sale on the domestic fresh-frozen fish market. The State prevailed on the Court's holding that the claimants and cold storage facilities served separate markets, did not compete with one another, and thus could not properly be compared for Commerce Clause purposes. The proper comparison, the Court held, was between the freezer *1 ships and domestic salmon canners, who shipped interstate into the same markets served by the freezer ships. Since the canners were taxed even more heavily than the freezer ships, there was no unfavorable burden upon the |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | the freezer ships, there was no unfavorable burden upon the latter. Although the Court's opinion did not discuss the possibility that competition in the domestic fresh-frozen market might have occurred in the absence of the tax disparity between the two types of salmon freezers, the freezer ships had made no attempt to compete in that market and neither claimed nor demonstrated an interest in entering it. See Brief for Respondents in O. T. 1960, No. 106, pp. 27-33. Arctic Maid provides a partial analogy to this case. Here, natural gas marketers did not serve the Ohio LDCs' core market of small, captive users, typified by residential consumers who want and need the bundled product. See, e. g., Darr, A State Regulatory Strategy for the Transitional Phase of Gas Regulation, 12 Yale J. Reg. 69, 99 ("T]he large core residential customer base is bound to the LDC in what currently appears to be a natural-monopoly relationship"); App. 199 (a marketer from which GMC purchased gas does not hold itself out to the general public as a gas supplier, but rather selectively contacts industrial end users that it has identified as potentially profitable customers). While this captive market is not geographically distinguished from the area served by the independent marketers, it is defined economically as comprising consumers who are captive to the need for bundled benefits. These are buyers who live on sufficiently tight budgets to make the stability of rate important, and who cannot readily bear the risk of losing a fuel supply in harsh natural or economic weather. See, e. g., Consolidated Edison Co. of N. Y. v. 6 F.2d 3, 6, n. 5 ("R]esidential users of natural gas cannot] switch temporarily to other fuels and so they must endure cold homes" if their gas supply is interrupted); Samuels, Reliability of Natural Gas Service for Captive *2 End-Users Under the Federal Energy Regulatory Commission's Order No. 636, They are also buyers without the high volume requirements needed to make investment in the transaction costs of individual purchases on the open market economically feasible. Pierce, Intrastate Natural Gas Regulation: An Alternative Perspective, 9 Yale J. Reg. 407, 409-410 ("Purchasing gas service from marketers] requires considerable time and expertise. Its benefits are likely to exceed its costs only for consumers who purchase very large quantities of gas"). The demands of this market historically arose free of any influence of differential taxation (since there was none during the pre-1978 period when only LDC's generally served end users), and because the market's economic characteristics appear to be independent of any effect attributable to the |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | appear to be independent of any effect attributable to the State's sales taxation as imposed today, there is good reason to assume that any pricing changes that could result from eliminating the sales tax differential challenged here would be inadequate to create competition between LDC's and marketers for the business of the utilities' core home market. On the other hand, one circumstance of this case is unlike what Arctic Maid assumed, for there is a possibility of competition between LDC's and marketers for the noncaptive market. Although the record before this Court reveals virtually nothing about the details of that competitive market, in the period under examination it presumably included bulk buyers like GMC, which have no need for bundled protection, see, e. g., State Issue: Atlanta Gas Light Takes Step to Abandon Gas Sales by Unbundling Services for Non-Core Customers, Foster Natural Gas Report, June 20, 1996, p. 22 (indicating that prior to "unbundling" marketers accounted for 80% of sales to large commercial and industrial users in Georgia), and consumers of middling volumes of natural gas who found *3 some value in Ohio's state-imposed protections but not enough to offset lower price at some point, see, e. g., Pierobon, Small Customers: The Yellow Brick Road to Deregulation?, 134 Pub. Utils. Fortnightly, No. 6, pp. 14, 15 (marketers' efforts in California are increasingly directed to attracting consumers in the "small commercial sector," including "schools, hospitals, hotels, restaurants, laundromats, and master-metered apartments," which currently purchase bundled gas from utilities); Salpukas, New Choices for Natural Gas: Retailers Find Users Puzzled as Industry Deregulates, N. Y. Times, Oct. 23, 1996, pp. D1, D4 (indicating that some natural gas marketers in New York City are attempting to lure "mom-and-pop businesses like restaurants and dry-cleaners" away from LDC's, with mixed success). Eliminating the sales tax differential at issue here might well intensify competition between LDC's and marketers for customers in this noncaptive market. B In sum, the LDCs' bundled product reflects the demand of a market neither susceptible to competition by the interstate sellers nor likely to be served except by the regulated natural monopolies that have historically supplied its needs. So far as this market is concerned, competition would not be served by eliminating any tax differential as between sellers, and the dormant Commerce Clause has no job to do. There is, however, a further market where the respective sellers of the bundled and unbundled products apparently do compete and may compete further. Thus, the question raised by this case is whether the opportunities for competition between marketers and LDC's in the noncaptive market |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | for competition between marketers and LDC's in the noncaptive market requires treating marketers and utilities as alike for dormant Commerce Clause purposes. Should we accord controlling significance to the noncaptive market in which they compete, or to the noncompetitive, captive market in which the local utilities *4 alone operate? Although there is no a priori answer, a number of reasons support a decision to give the greater weight to the captive market and the local utilities' singular role in serving it, and hence to treat marketers and LDC's as dissimilar for present purposes. First and most important, we must recognize an obligation to proceed cautiously lest we imperil the delivery by regulated LDC's of bundled gas to the noncompetitive captive market. Second, as a Court we lack the expertness and the institutional resources necessary to predict the effects of judicial intervention invalidating Ohio's tax scheme on the utilities' capacity to serve this captive market. Finally, should intervention by the National Government be necessary, Congress has both the resources and the power to strike the balance between the needs of the competitive and captive markets. 1 Where a choice is possible, as it is here, the importance of traditional regulated service to the captive market makes a powerful case against any judicial treatment that might jeopardize LDCs' continuing capacity to serve the captive market. Largely as a response to the monopolistic shakeout that brought an end to the era of unbridled competition among gas utilities, regulation of natural gas for the principal benefit of householders and other consumers of relatively small quantities is the rule in every State in the Union. Congress has also long recognized the desirability of these state regulatory Indeed, half a century ago we concluded that the NGA altogether exempts state regulation of retail sales of natural gas (including in-state sales to large industrial customers) from the strictures of the dormant Commerce Clause, see Panhandle Eastern Pipe Line and to this day, notwithstanding the national regulatory revolution, Congress has done nothing to limit its unbroken recognition of the state regulatory authority that *5 has created and preserved the local monopolies.13] The clear implication is that Congress finds the benefits of the bundled product for captive local buyers well within the realm of what the States may reasonably promote and preserve. This Court has also recognized the importance of avoiding any jeopardy to service of the state-regulated captive market, and in circumstances remarkably similar to those of the present case. In Panhandle Eastern Pipe Line Ford Motor Company had entered a contract with an interstate pipeline for supply |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | had entered a contract with an interstate pipeline for supply of gas at Ford's plant in Dearborn, Michigan, thus bypassing the local distribution company. The Michigan Public Service Commission ordered the pipeline to cease and desist from making direct sales of natural gas to the State's industrial customers without a certificate of public convenience and necessity, and the pipeline brought a Commerce Clause challenge to the commission's action. The Court observed that "a]ppellant asserts a right to compete for the cream of the volume business without regard to the local public convenience or necessity. Were appellant successful in this venture, it would no doubt be reflected adversely in the LDC's] over-all costs of service and its rates to customers whose only source of supply is the LDC]. This clearly presents a situation of vital interest to the State of Michigan." at In view of the economic threat that competition for large industrial consumers posed to gas service to small captive *6 users, the Court again reaffirmed its longstanding doctrine upholding the States' power to regulate all direct in-state sales to consumers, even if such regulation resulted in an outright prohibition of competition for even the largest end users. ; see also14] The continuing importance of the States' interest in protecting the captive market from the effects of competition for the largest consumers is underscored by the common sense of our traditional recognition of the need to accommodate state health and safety regulation in applying dormant Commerce Clause principles. State regulation of natural gas sales to consumers serves important interests in health and safety in fairly obvious ways, in that requirements of dependable supply and extended credit assure that individual buyers of gas for domestic purposes are not frozen out of their houses in the cold months. We have consistently recognized the legitimate state pursuit of such interests as compatible with the Commerce Clause, which was "`never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens, though the legislation might indirectly affect the commerce of the country.' " Huron Portland Cement Co. v. Detroit, 362 U. S. *7 440, 443-444 (1960) (quoting (18)). Just so may health and safety considerations be weighed in the process of deciding the threshold question whether the conditions entailing application of the dormant Commerce Clause are present.15] 2 The size of the captive market, its noncompetitive character, the values served by its traditional regulation: all counsel caution before making a choice that could strain the capacity of the States to continue to demand the |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | the capacity of the States to continue to demand the regulatory benefits that have served the home market of low-volume users since natural gas became readily available. Here we have to assume that any decision to treat the LDC's as similar to the interstate marketers would change the LDCs' position in the noncaptive market in which (we are assuming) they compete, at least at the margins, by affecting the overall size of the LDCs' customer base. As we recognized in Panhandle, a change in the customer base could affect the LDCs' ability to continue to serve the captive market where there is no such competition. To be sure, what in fact would happen as a result of treating the marketers and LDC's alike we do not know. We might assume that eliminating the tax on marketers' sales would leave those sellers stronger competitors in the noncaptive market, especially at the market's boundaries, and that any resulting contraction of the LDCs' total customer base would increase the unit cost of the bundled product. We might also suppose that the State would not respond to our decision by subjecting the LDC's and marketers both to the *8 same sales tax now imposed on marketers alone, since the utilities are already subject to a complicated scheme of property taxation quite different from the tax treatment of the marketers.16] It seems, in fact, far more likely that eliminating the tax challenged here would portend, among other things, some reduction of the total taxes levied against LDC's, in order to strengthen their position in trying to compete with marketers in the noncaptive market. The degree to which these very general suggestions might prove right or wrong, however, is not really significant; the point is simply that all of them are nothing more than suggestions, pointedly couched in terms of assumption or supposition. This is necessarily so, simply because the Court is institutionally unsuited to gather the facts upon which economic predictions can be made, and professionally untrained to make them. See, e. g., Fulton -342, and authorities cited therein; Hunter, Federalism and State Taxation of Multistate Enterprises, 32 Emory L. J. 89, 108 ("It is virtually impossible for a court, with its limited resources, to determine with any degree of accuracy the costs to a town, county, or state of a particular industry"); see also Smith, State Discriminations Against Interstate Commerce, (noting that "e]ven expert economists" may have difficulty determining "whether the overall economic benefits *9 and burdens of a regulation favor local inhabitants against outsiders"). We are consequently ill qualified to develop Commerce Clause |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | outsiders"). We are consequently ill qualified to develop Commerce Clause doctrine dependent on any such predictive judgments, and it behooves us to be as reticent about projecting the effect of applying the Commerce Clause here, as we customarily are in declining to engage in elaborate analysis of real-world economic effects, Fulton Corp., or to consider subtle compensatory tax defenses, Oregon Waste Systems, The most we can say is that modification of Ohio's tax scheme could subject LDC's to economic pressure that in turn could threaten the preservation of an adequate customer base to support continued provision of bundled services to the captive market. The conclusion counsels against taking the step of treating the bundled gas seller like any other, with the consequent necessity of uniform taxation of all gas sales. 3 Prudence thus counsels against running the risk of weakening or destroying a regulatory scheme of public service and protection recognized by Congress despite its noncompetitive, monopolistic character. Still less is that risk justifiable in light of Congress's own power and institutional competence to decide upon and effectuate any desirable changes in the scheme that has evolved. Congress has the capacity to investigate and analyze facts beyond anything the Judiciary could match, joined with the authority of the commerce power to run economic risks that the Judiciary should confront only when the constitutional or statutory mandate for judicial choice is clear. See, e. g., One need not adopt Justice Black's extreme reticence in Commerce Clause jurisprudence to recognize in this instance the soundness of his statement that a challenge *0 like the one before us "calls] for Congressional investigation, consideration, and action. The Constitution gives that branch of government the power to regulate commerce among the states, and until it acts I think we should enter the field with extreme caution." Northwest Airlines, 2 This conclusion applies a fortiori here, because for a half century Congress has been aware of our conclusion in Panhandle Eastern Pipe Line that the NGA exempts state regulation of in-state retail natural gas sales from the dormant Commerce Clause and in the years following that decision has only reaffirmed the power of the States in this regard. * * * Accordingly, we conclude that Ohio's regulatory response to the needs of the local natural gas market has resulted in a noncompetitive bundled gas product that distinguishes its regulated sellers from independent marketers to the point that the enterprises should not be considered "similarly situated" for purposes of a claim of facial discrimination under the Commerce Clause. GMC's argument that the State discriminates between regulated local |
Justice Souter | 1,997 | 20 | majority | General Motors Corp. v. Tracy | https://www.courtlistener.com/opinion/118080/general-motors-corp-v-tracy/ | Clause. GMC's argument that the State discriminates between regulated local gas utilities and unregulated marketers must therefore fail. C GMC also suggests that Ohio's tax regime "facially discriminates" because the State's sales and use tax exemption would not apply to sales by out-of-state LDC's. See, e. g. Reply Brief for Petitioner 2, n. 1. As respondent points out, however, the Ohio courts might well extend the challenged exemption to out-of-state utilities if confronted with the question. Indeed, in Carnegie Natural Gas Co. v. Tracy, No. 94K-526 reported in CCH Ohio Tax Rep. ¶ 402-254, the Ohio Board of Tax Appeals accepted the argument of a Pennsylvania public utility *1 that insofar as the out-of-state utility sold natural gas to Ohio consumers it qualified as a utility under Ohio Rev. Code Ann. 5727.01 and was therefore exempt from the State's corporate franchise tax. Out-of-state public utilities may therefore also qualify for Ohio's sales and use tax exemption. Because "we have never deemed a hypothetical possibility of favoritism to constitute discrimination that transgresses constitutional commands," Associated Industries of this argument, too, must be rejected. V Finally, GMC claims that Ohio's tax regime violates the Equal Protection Clause by treating LDCs' natural gas sales differently from those of producers and marketers. Once again, the hurdle facing GMC is a high one, since state tax classifications require only a rational basis to satisfy the Equal Protection Clause. See, e. g., Amerada Hess Indeed, "in taxation, even more than in other fields, legislatures possess the greatest freedom in classification." 9 U.S. 83, It is true, of course, that in some peculiar circumstances state tax classifications facially discriminating against interstate commerce may violate the Equal Protection Clause even when they pass muster under the Commerce Clause. See Metropolitan Life Ins. 874 317] But as we explain in Part Ohio's *2 differential tax treatment of LDC and independent marketer sales does not facially discriminate against interstate commerce. And in any event, there is unquestionably a rational basis for Ohio's distinction between these two kinds of entities. * * * We conclude that Ohio's differential tax treatment of public utilities and independent marketers violates neither the Commerce Clause nor the Equal Protection Clause and that petitioner's claims are without merit otherwise. The judgment of the Supreme Court of Ohio is affirmed. It is so ordered. |
per_curiam | 1,973 | 200 | per_curiam | Associated Enterpsies, Inc. v. Toltec Watershed Improvement Dist. | https://www.courtlistener.com/opinion/108746/associated-enterpsies-inc-v-toltec-watershed-improvement-dist/ | In this case, we are confronted with an issue similar to the one determined today in Land Co. v. Tulare Water District, ante, p. 719. Appellee Toltec Watershed Improvement District was established after referendum held pursuant to Wyoming's Watershed Improvement District Act, to 41-354.26 (Supp. 1971). After formation, appellee sought a right of entry onto lands owned by appellant Associated Enterprises, Inc., and leased by Johnston Fuel Liners, for the purpose of carrying out studies to determine the feasibility of constructing a dam and reservoir. When Associated Enterprises resisted, the district sought to enforce its right in state court. Arguing that the statutes *744 authorizing the referendum violated the Equal Protection Clause since under 41-354.9 only landowners are entitled to vote and under 41-354.10 a watershed improvement district cannot be determined to be administratively practicable and feasible unless a majority of the votes cast, representing a majority of the acreage in the district, favor its creation, appellants maintained that the district was illegally formed. The trial court agreed that had the district been formed in violation of the Equal Protection Clause, appellants would have a good defense under state law to the asserted right of entry, but it held against them on the merits. The Wyoming Supreme Court affirmed. Appellants urge here that the provisions entitling only landowners to vote and weighting the vote according to acreage violate the Equal Protection Clause. Like the California water storage district, the Wyoming watershed district is a governmental unit of special or limited purpose whose activities have a disproportionate effect on landowners within the district. The district's operations are conducted through projects and the land is assessed for any benefits received. 7, 41-354.21, 41-354.22. Such assessments constitute a lien on the land until paid. 41-354.23. We cannot agree with the dissent's intimation that the Wyoming Legislature has in any sense abdicated to a wealthy few the ultimate authority over land management in that State. The statute authorizing the establishment of improvement districts was enacted by a legislature in which all of the State's electors have the unquestioned right to be fairly represented. Under the act, districts may be formed only as subdivisions of soil and water conservation districts. 41-354.3. And a precondition to their formation referendum is a determination by a board of supervisors of the affected conservation district, popularly elected by both occupiers *745 and owners of land within the district, that the watershed improvement district is both necessary and administratively practicable. 41-354.7, 41-354.8; Wyoming Conservation Districts Law, Wyo. Stat. Ann. 11-234 et seq., 11-243 (Supp. 1971). As in we hold that |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | This case presents the question whether private individuals may sue to enforce disparate-impact regulations promulgated under Title VI of the Civil Rights Act of 1964. I The Alabama Department of Public Safety (Department), of which petitioner James Alexander is the director, accepted grants of financial assistance from the United States Department of Justice (DOJ) and Department of Transportation (DOT) and so subjected itself to the restrictions of Title VI of the Civil Rights Act of 1964, as amended, 42 U.S. C. 2000d et seq. Section 601 of that Title provides that no person shall, "on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity" covered by Title VI. 42 U.S. C. 2000d. Section 602 authorizes federal agencies "to effectuate the provisions of [ 601] by issuing rules, regulations, or orders of general applicability," 42 U.S. C. 2000d1, and the DOJ in an exercise of this authority promulgated a regulation forbidding funding recipients to "utilize criteria or methods of administration which have the effect of subjecting individuals to discrimination because of their race, color, or national origin" 28 CFR 42.104(b)(2) See also 49 CFR 21.5(b)(2) The State of Alabama amended its Constitution in 1990 to declare English "the official language of the state of *279 Alabama." Amdt. 509. Pursuant to this provision and, petitioners have argued, to advance public safety, the Department decided to administer state driver's license examinations only in English. Respondent Sandoval, as representative of a class, brought suit in the United States District Court for the Middle District of Alabama to enjoin the English-only policy, arguing that it violated the DOJ regulation because it had the effect of subjecting non-English speakers to discrimination based on their national origin. The District Court agreed. It enjoined the policy and ordered the Department to accommodate non-English speakers. Petitioners appealed to the Court of Appeals for the Eleventh Circuit, which affirmed. Both courts rejected petitioners' argument that Title VI did not provide respondents a cause of action to enforce the regulation. We do not inquire here whether the DOJ regulation was authorized by 602, or whether the courts below were correct to hold that the English-only policy had the effect of discriminating on the basis of national origin. The petition for writ of certiorari raised, and we agreed to review, only the question posed in the first paragraph of this opinion: whether there is a private cause of action to enforce the regulation. II Although Title VI has often come to this Court, |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | II Although Title VI has often come to this Court, it is fair to say (indeed, perhaps an understatement) that our opinions have not eliminated all uncertainty regarding its commands. For purposes of the present case, however, it is clear from our decisions, from Congress's amendments of Title VI, and from the parties' concessions that three aspects of Title VI must be taken as given. First, private individuals may sue to enforce 601 of Title VI and obtain both injunctive relief and damages. In the Court held that a private right of action existed to enforce Title IX of the Education Amendments of 1972, as amended, 20 U.S. C. 1681 et seq. The reasoning of that decision embraced the existence of a private right to enforce Title VI as well. "Title IX," the Court noted, "was patterned after Title VI of the Civil Rights Act of 1964." And, "[i]n 1972 when Title IX was enacted, the [parallel] language in Title VI had already been construed as creating a private remedy." That meant, the Court reasoned, that Congress had intended Title IX, like Title VI, to provide a private cause of action. Congress has since ratified Cannon `s holding. Section 1003 of the Rehabilitation Act Amendments of 42 U.S. C. 2000d7, expressly abrogated States' sovereign immunity against suits brought in federal court to enforce Title VI and provided that in a suit against a State "remedies (including remedies both at law and in equity) are available to the same extent as such remedies are available in the suit against any public or private entity other than a State," 2000d7(a)(2). We recognized in that 2000d7 "cannot be read except as a validation of Cannon `s holding." ; see also (same). It is thus beyond dispute that private individuals may sue to enforce Second, it is similarly beyond disputeand no party disagreesthat 601 prohibits only intentional discrimination. In Regents of Univ. of the Court reviewed a decision of the California Supreme Court that had enjoined the University of California Medical School from "according any consideration to race in its admissions process." Essential to the Court's holding reversing that aspect of the California court's decision was the determination that 601 "proscribe[s] only those racial classifications that would violate the Equal Protection *281 Clause or the Fifth Amendment." ; see also In Guardians the Court made clear that under only intentional discrimination was forbidden by -611 ; ; What we said in is true today: "Title VI itself directly reach[es] only instances of intentional discrimination."[1] Third, we must assume for purposes of deciding this case |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | Third, we must assume for purposes of deciding this case that regulations promulgated under 602 of Title VI may validly proscribe activities that have a disparate impact on racial groups, even though such activities are permissible under Though no opinion of this Court has held that, five Justices in Guardians voiced that view of the law at *282 least as alternative grounds for their decisions, see -592 ; ; and dictum in is to the same effect, see 469 U.S., at 295, n. 11. These statements are in considerable tension with the rule of and Guardians that 601 forbids only intentional discrimination, see, e. g., Guardians -613 but petitioners have not challenged the regulations here. We therefore assume for the purposes of deciding this case that the DOJ and DOT regulations proscribing activities that have a disparate impact on the basis of race are valid. Respondents assert that the issue in this case, like the first two described above, has been resolved by our cases. To reject a private cause of action to enforce the disparateimpact regulations, they say, we would "[have] to ignore the actual language of Guardians and Cannon. " Brief for Respondents 13. The language in Cannon to which respondents refer does not in fact support their position, as we shall discuss at length below, see infra, at 288-290. But in any event, this Court is bound by holdings, not language. Cannon was decided on the assumption that the University of had intentionally discriminated against petitioner. See (noting that respondents "admitted arguendo " that petitioner's "applications for admission to medical school were denied by the respondents because she is a woman"). It therefore held that Title IX created a private right of action to enforce its ban on intentional discrimination, but had no occasion to consider whether the right reached regulations barring disparate-impact discrimination.[2] In Guardians, the Court held that private individuals *283 could not recover compensatory damages under Title VI except for intentional discrimination. Five Justices in addition voted to uphold the disparate-impact regulations (four would have declared them invalid, see n. 5 ; -614 ), but of those five, three expressly reserved the question of a direct private right of action to enforce the regulations, saying that "[w]hether a cause of action against private parties exists directly under the regulations[is a] questio[n] that [is] not presented by this case."[3] Thus, only two Justices had cause to reach the issue *284 that respondents say the "actual language" of Guardians resolves. Neither that case,[4] nor any other in this Court, has held that the private right of |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | in this Court, has held that the private right of action exists. Nor does it follow straightaway from the three points we have taken as given that Congress must have intended a private right of action to enforce disparate-impact regulations. We do not doubt that regulations applying 601's ban on intentional discrimination are covered by the cause of action to enforce that section. Such regulations, if valid and reasonable, authoritatively construe the statute itself, see Nations Bank of N. C., N. ; Chevron U. S. and it is therefore meaningless to talk about a separate cause of action to enforce the regulations apart from the statute. A Congress that intends the statute to be enforced through a private cause of action intends the authoritative interpretation of the statute to be so enforced as well. The many cases that respondents say have "assumed" that a cause of action to enforce a statute includes one to enforce its regulations illustrate (to the extent that cases in which an issue was not presented can illustrate anything) only this point; each involved regulations of the type we have just described, as respondents conceded at oral argument, Tr. of Oral Arg. 33. See National Collegiate Athletic ; School Bd. of Nassau (regulations defining the terms "physical impairment" and "major life activities" in 504 of the Rehabilitation Act of 1973); (regulation interpreting Title VI to require "affirmative action" remedying effects of intentional discrimination); 309 (regulations clarifying what sorts of disparate impacts upon the handicapped were covered by 504 of the Rehabilitation Act of 1973, which the Court assumed included some such impacts). Our decision in falls within the same category. The Title VI regulations at issue in Lau, similar to the ones at issue here, forbade funding recipients to take actions which had the effect of discriminating on the basis of race, color, or national origin. Unlike our later cases, however, the Court in Lau interpreted 601 itself to proscribe disparate-impact discrimination, saying that it "rel[ied] solely on 601 to reverse the Court of Appeals," and that the disparate-impact regulations simply "[made] sure that recipients of federal aid conduct[ed] any federally financed projects consistently with 601,"[5] We must face now the question avoided by Lau, because we have since rejected Lau `s interpretation of 601 as reaching beyond intentional discrimination. See at 280 281. It is clear now that the disparate-impact regulations do not simply apply 601since they indeed forbid conduct that 601 permitsand therefore clear that the private right of action to enforce 601 does not include a private right to enforce these regulations. See |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | not include a private right to enforce these regulations. See Central Bank of Denver, *286 N. That right must come, if at all, from the independent force of 602. As stated earlier, we assume for purposes of this decision that 602 confers the authority to promulgate disparate-impact regulations;[6] the question remains whether it confers a private right of action to enforce them. If not, we must conclude that a failure to comply with regulations promulgated under 602 that is not also a failure to comply with 601 is not actionable. Implicit in our discussion thus far has been a particular understanding of the genesis of private causes of action. Like substantive federal law itself, private rights of action to enforce federal law must be created by Congress. Touche Ross & The judicial task is to interpret the statute Congress has passed to determine whether it displays an intent to create not just a private right but also a private remedy. Transamerica Mortgage Advisors, Statutory intent on this latter point is determinative. See, e. g., Virginia Bankshares, ; Merrell Dow Pharmaceuticals Without it, a cause of action does not exist and courts may not *287 create one, no matter how desirable that might be as a policy matter, or how compatible with the statute. See, e. g., Massachusetts Mut. Life Ins. ; Transamerica Mortgage Advisors, ; Touche Ross & "Raising up causes of action where a statute has not created them may be a proper function for commonlaw courts, but not for federal tribunals." Lampf, Pleva, Lipkind, Prupis & Respondents would have us revert in this case to the understanding of private causes of action that held sway 40 years ago when Title VI was enacted. That understanding is captured by the Court's statement in J. I. Case that "it is the duty of the courts to be alert to provide such remedies as are necessary to make effective the congressional purpose" expressed by a statute. We abandoned that understanding in which itself interpreted a statute enacted under the ancien regime and have not returned to it since. Not even when interpreting the same Securities Exchange Act of 1934 that was at issue in Borak have we applied Borak `s method for discerning and defining causes of action. See Central Bank of Denver, N. ; Musick, Peeler & 291- ; Virginia Bankshares, at -1103; Touche Ross & at 576 Having sworn off the habit of venturing beyond Congress's intent, we will not accept respondents' invitation to have one last drink. Nor do we agree with the Government that our cases interpreting |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | do we agree with the Government that our cases interpreting statutes enacted prior to have given "dispositive weight" to the "expectations" that the enacting Congress had formed "in light of the `contemporary legal *288 context.' " Brief for United States 14. Only three of our legion implied-right-of-action cases have found this sort of "contemporary legal context" relevant, and two of those involved Congress's enactment (or reenactment) of the verbatim statutory text that courts had previously interpreted to create a private right of action. See Merrill Lynch, Pierce, Fenner & Smith, 3 379 ; Cannon v. University of -699. In the third case, this sort of "contemporary legal context" simply buttressed a conclusion independently supported by the text of the statute. See We have never accorded dispositive weight to context shorn of text. In determining whether statutes create private rights of action, as in interpreting statutes generally, see 4 legal context matters only to the extent it clarifies text. We therefore begin (and find that we can end) our search for Congress's intent with the text and structure of Title VI.[7] Section 602 authorizes federal agencies "to effectuate the provisions of [ 601] by issuing rules, regulations, or orders of general applicability." 42 U.S. C. 2000d1. It is immediately clear that the "rights-creating" language so critical to the Court's analysis in Cannon of 601, see n. 13, is completely absent from 602. Whereas 601 decrees that "[n]o person shall be subjected to discrimination," 42 U.S. C. 2000d, the text of 602 provides that "[e]ach Federal department and *289 agency is authorized and directed to effectuate the provisions of [ 601]," 42 U.S. C. 2000d1. Far from displaying congressional intent to create new rights, 602 limits agencies to "effectuat[ing]" rights already created by And the focus of 602 is twice removed from the individuals who will ultimately benefit from Title VI's protection. Statutes that focus on the person regulated rather than the individuals protected create "no implication of an intent to confer rights on a particular class of persons." Section 602 is yet a step further removed: It focuses neither on the individuals protected nor even on the funding recipients being regulated, but on the agencies that will do the regulating. Like the statute found not to create a right of action in Universities Research Assn., Coutu, 602 is "phrased as a directive to federal agencies engaged in the distribution of public funds," When this is true, "[t]here [is] far less reason to infer a private remedy in favor of individual persons," Cannon v. University of So far as we can tell, |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | Cannon v. University of So far as we can tell, this authorizing portion of 602 reveals no congressional intent to create a private right of action. Nor do the methods that 602 goes on to provide for enforcing its authorized regulations manifest an intent to create a private remedy; if anything, they suggest the opposite. Section 602 empowers agencies to enforce their regulations either by terminating funding to the "particular program, or part thereof," that has violated the regulation or "by any other means authorized by law," 42 U.S. C. 2000d1. No enforcement action may be taken, however, "until the department or agency concerned has advised the appropriate person or persons of the failure to comply with the requirement and has determined that compliance cannot be secured by voluntary means." And every agency enforcement action is subject to judicial review. 2000d2. If an agency attempts to terminate program funding, still *290 more restrictions apply. The agency head must "file with the committees of the House and Senate having legislative jurisdiction over the program or activity involved a full written report of the circumstances and the grounds for such action." 2000d1. And the termination of funding does not "become effective until thirty days have elapsed after the filing of such report." Whatever these elaborate restrictions on agency enforcement may imply for the private enforcement of rights created outside of 602, compare Cannon v. University of ; Regents of Univ. of n. 26 with Guardians -610 ; Regents of Univ. of they tend to contradict a congressional intent to create privately enforceable rights through 602 itself. The express provision of one method of enforcing a substantive rule suggests that Congress intended to preclude others. See, e. g., ; Northwest Airlines, Transport Workers, ; Transamerica Mortgage Advisors, -20. Sometimes the suggestion is so strong that it precludes a finding of congressional intent to create a private right of action, even though other aspects of the statute (such as language making the would-be plaintiff "a member of the class for whose benefit the statute was enacted") suggest the contrary. Massachusetts Mut. Life Ins. ; see And as our Rev. Stat. 1979, 42 U.S. C. 1983, cases show, some remedial schemes foreclose a private cause of action to enforce even those statutes that admittedly create substantive private rights. See, e. g., Middlesex County Sewerage In the present case, the claim of exclusivity for the *291 express remedial scheme does not even have to overcome such obstacles. The question whether 602's remedial scheme can overbear other evidence of congressional intent is simply not presented, since we |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | evidence of congressional intent is simply not presented, since we have found no evidence anywhere in the text to suggest that Congress intended to create a private right to enforce regulations promulgated under 602. Both the Government and respondents argue that the regulations contain rights-creating language and so must be privately enforceable, see Brief for United States ; Brief for Respondents 31, but that argument skips an analytical step. Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not. Touche Ross & n. 18 Thus, when a statute has provided a general authorization for private enforcement of regulations, it may perhaps be correct that the intent displayed in each regulation can determine whether or not it is privately enforceable. But it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself. The last string to respondents' and the Government's bow is their argument that two amendments to Title VI "ratified" this Court's decisions finding an implied private right of action to enforce the disparate-impact regulations. See Rehabilitation Act Amendments of 1003, 42 U.S. C. 2000d7; Civil Rights Restoration Act of 1987, 6, 42 U.S. C. 2000d4a. One problem with this argument is that, as explained above, none of our decisions establishes (or even assumes) the private right of action at issue here, see which is why in Guardians three Justices were able expressly to reserve the question. See 463 U.S., Incorporating *292 our cases in the amendments would thus not help respondents. Another problem is that the incorporation claim itself is flawed. Section 1003 of the Rehabilitation Act Amendments of on which only respondents rely, by its terms applies only to suits "for a violation of a statute, " 42 U.S. C. 2000d7(a)(2) (emphasis added). It therefore does not speak to suits for violations of regulations that go beyond the statutory proscription of Section 6 of the Civil Rights Restoration Act of 1987 is even less on point. That provision amends Title VI to make the term "program or activity" cover larger portions of the institutions receiving federal financial aid than it had previously covered, see Grove It is impossible to understand what this has to do with implied causes of actionwhich is why we declared in that 6 did not "in any way alte[r] the existing rights of action and the corresponding remedies permissible |
Justice Scalia | 2,001 | 9 | majority | Alexander v. Sandoval | https://www.courtlistener.com/opinion/2620697/alexander-v-sandoval/ | the existing rights of action and the corresponding remedies permissible under Title VI." Respondents point to Merrill Lynch, Pierce, Fenner & Smith, -382, which inferred congressional intent to ratify lower court decisions regarding a particular statutory provision when Congress comprehensively revised the statutory scheme but did not amend that provision. But we recently criticized `s reliance on congressional inaction, saying that "[a]s a general matter [the] argumen[t] deserve[s] little weight in the interpretive process." Central Bank of Denver, N. And when, as here, Congress has not comprehensively revised a statutory scheme but has made only isolated amendments, we have spoken more bluntly: "It is `impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the Court's statutory interpretation." ). Neither as originally enacted nor as later amended does Title VI display an intent to create a freestanding private right of action to enforce regulations promulgated under 602.[8] We therefore hold that no such right of action exists. Since we reach this conclusion applying our standard test for discerning private causes of action, we do not address petitioners' additional argument that implied causes of action against States (and perhaps nonfederal state actors generally) are inconsistent with the clear statement rule of Pennhurst State School and See The judgment of the Court of Appeals is reversed. It is so ordered. |
per_curiam | 1,971 | 200 | per_curiam | Jennings v. Mahoney | https://www.courtlistener.com/opinion/108395/jennings-v-mahoney/ | Appellant, a Utah motorist, was involved in a collision. Both drivers and a police officer who investigated the accident filed accident reports with Utah's Department of Public Safety as required by the Utah Motor Vehicle Safety Responsibility Act. Without affording appellant a hearing on fault, and based solely on the contents of the accident reports, the Director of the Financial Responsibility Division determined that there was a reasonable possibility that appellant was at fault. Appellant did not carry liability insurance and was unable to post security to show financial responsibility. The Director therefore suspended her license. A Utah District Court sustained the Director, and the Supreme Court of Utah affirmed. *26 The proceedings were authorized under and 41-6-35 (1953). Appellant attacks the statutory scheme as not affording the procedural due process required by our decision in We there held that the Georgia version of a motor vehicle responsibility law was constitutionally deficient for failure to afford the uninsured motorist procedural due process. We held that, although a determination that there was a reasonable possibility that the motorist was at fault in the accident sufficed, "before the State may deprive [him] of his driver's license and vehicle registration," the State must provide "a forum for the determination of the question" and a "meaningful `hearing appropriate to the nature of the case.' " Appellant submits that Utah's statutory scheme falls short of these requirements in two respects: (1) by not requiring a stay of the Director's order pending determination of judicial review, the scheme leaves open the possibility of suspension of licenses without prior hearing; (2) in confining judicial review to whether the Director's determination is supported by the accident reports, and not affording the motorist an opportunity to offer evidence and cross-examine witnesses, the motorist is not afforded a "meaningful" hearing. There is plainly a substantial question whether the Utah statutory scheme on its face affords the procedural due process required by This case does not, however, require that we address that question. The District Court in fact afforded this appellant such procedural due process. That court stayed the Director's suspension order pending completion of judicial review, and conducted a hearing at which appellant was afforded the opportunity to present evidence and cross-examine *27 witnesses. Both appellant and the Director testified at that hearing. The testimony of the investigating police officer would also have been heard except that appellant's service of a subpoena upon him to appear was not timely under the applicable court rules. The judgment of the Utah Supreme Court is Affirmed |
Justice Brennan | 1,979 | 13 | concurring | Touche Ross & Co. v. Redington | https://www.courtlistener.com/opinion/110112/touche-ross-co-v-redington/ | I join the Court's opinion. The Court of Appeals implied a cause of action for damages under 17 (a) of the Securities Exchange Act of 1934, 15 U.S. C. 78q (a), in favor of respondents, who purport to represent customers of a bankrupt brokerage firm, against petitioner accounting firm, which allegedly injured those customers by improperly preparing and certifying the reports on the brokerage firm required by 17 (a) and the rules promulgated thereunder. Under the tests established in our prior cases, no cause of action should be implied for respondents under 17 (a). Although analyses of the several factors outlined in may often overlap, I agree that when, as here, a statute clearly *580 does not "create a federal right in favor of the plaintiff," i. e., when the plaintiff is not "`one of the class for whose especial benefit the statute was enacted,'" ib quoting Texas & Pacific R. and when there is also in the legislative history no "indication of legislative intent, explicit or implicit, to create such a remedy," 422 U.S., the remaining two Cort factors cannot by themselves be a basis for implying a right of action. MR. |
Justice Souter | 1,997 | 20 | dissenting | City of Monroe v. United States | https://www.courtlistener.com/opinion/1283337/city-of-monroe-v-united-states/ | In 1968 the Georgia Legislature enacted a Municipal Election Code with the following provisions governing the alternatives of plurality and majority voting: *41 "If the municipal charter provides that a candidate may be nominated or elected by a plurality of the votes castsuch provision shall prevail. Otherwise, no candidate shall be elected to public office in any election unless such candidate shall have received a majority of the votes cast" Georgia Municipal Election Code, 34A-1407(a), as amended, Ga. Code Ann. 21-3407(a) (1993). These provisions were applicable in ways that would result in no changes in election practices in communities whose charters (so far as otherwise enforceable) provided that a plurality would suffice, whose charters provided that a majority was required, or whose charters were silent but whose practices had been to require a majority. The first sentence quoted from the code (deferring to plurality provisions) would confirm the practice in the first class of municipalities, while the second sentence (a default provision requiring a majority in all other cases) would confirm the practices in the second and third classes. The new code would, however, require a change in the practice in any community whose municipal charter (so far as otherwise enforceable) was silent on the plurality-majority issue, but in which the practice had been to accept a plurality as sufficient. The 1968 code was submitted to the Attorney General of the United States for preclearance under 5 of the Voting Rights Act, 42 U.S. C. 1973c (since the entire State of Georgia was, and remains, subject to 5), and the Attorney General approved the provisions in question. In two instances we have been presented with a question whether application of the default provision to effect a change in practice to majority voting was precleared by virtue of the blanket preclearance of the default provision. In the first case, City of we answered no; in the second case, this one, the answer should be the same. In 's case, the charter provision that was valid and enforceable when the 1968 code was precleared provided expressly for plurality voting. Therefore, the code's deference *42 provision applied and the plurality rule remained the rule under the code. argued, however, that the default provision should be applied so as effectively to validate an unprecleared 1966 municipal charter change to an express majority requirement. This Court rejected the argument in these words: "We also reject the appellants' argument that the majority vote, runoff election, and numbered posts provisions of the city's charter have already been precleared by the Attorney General because in 1968 the State |
Justice Souter | 1,997 | 20 | dissenting | City of Monroe v. United States | https://www.courtlistener.com/opinion/1283337/city-of-monroe-v-united-states/ | precleared by the Attorney General because in 1968 the State of Georgia submitted, and the Attorney General precleared, a comprehensive Municipal Election Code that is now Title 34A of the Code of Georgia. Both the relevant regulation, 28 CFR 51.10 and the decisions of this Court require that the jurisdiction `in some unambiguous and recordable manner submit any legislation or regulation in question directly to the Attorney General with a request for his consideration pursuant to the Act,' and that the Attorney General be afforded an adequate opportunity to determine the purpose of the electoral changes and whether they will adversely affect minority voting in that jurisdiction, see United Under this standard, the State's 1968 submission cannot be viewed as a submission of the city's 1966 electoral changes, for, as the District Court noted, the State's submission informed the Attorney General only of `its decision to defer to local charters and ordinances regarding majority voting, runoff elections, and numbered posts,' and `did not submit in an "unambiguous and recordable manner" all municipal charter provisions, as written in 1968 or as amended thereafter, regarding these issues.'" -170, n. 6. *43 Since the Attorney General had never been shown 's 1966 municipal charter change (much less precleared it), he had never had an "adequate opportunity" to determine the purpose and effect of the proposed "electoral chang[e]" from plurality to majority, not in 1966 (because preclearance had not been sought) and not in 1968 (because he was not apprised of the purported 1966 change necessary to produce a majority vote requirement under the 1968 code). Monroe now claims the benefit of the 1968 code's default provision, in circumstances just like 's, with one distinction. Monroe, too, obtained a 1966 charter change purporting to enact a majority requirement, for which Monroe, too, failed to seek preclearance. But Monroe could arguably enforce a majority requirement even if the 1966 unprecleared charter amendment were ignored, simply by applying the code's default provision to the circumstances that preceded the unprecleared 1966 amendment: before that amendment, although Monroe's charter was silent on the pluralitymajority issue, the municipal practice (perfectly valid for purposes of 5) was to accept a plurality as sufficient. Thus, the unprecleared 1966 charter change could be ignored in Monroe's case (as it was in 's) and the default provision of the 1968 code would make Monroe a majority vote municipality. As a predicate for applying the 1968 code to effect majority voting requirements, however, this distinction between 's unprecleared 1966 change and Monroe's valid pre1966 silent charter is not entitled to make any difference. The |
Justice Souter | 1,997 | 20 | dissenting | City of Monroe v. United States | https://www.courtlistener.com/opinion/1283337/city-of-monroe-v-united-states/ | silent charter is not entitled to make any difference. The object of the preclearance requirement is, at a minimum, to apprise the Attorney General of any change in voting practice. Section 5 requires preclearance not only in the case of a change of a voting "standard" that was not in place when the Voting Rights Act took effect, but also of a change in a "practice" or "procedure." 42 U.S. C. 1973c. The point of the preclearance procedure is to determine whether the change proposed reflects either a "purpose" or will have *44 the "effect" of forbidden abridgment of voting rights. A new practice and a new effect could result not only from applying the code's default provision to an invalid (because unprecleared) charter revision, but also from applying it to a perfectly valid charter provision and practice. In either case, on the sensible reasoning of City of there can be no preclearance of a new practice unless the Attorney General is unambiguously put on notice of it. See -170, n. 6. Thus, Monroe is in no different position from Neither nor the State ever disclosed the 1966 charter change on which the default provision might operate to provide a new majority vote requirement; neither Monroe nor the State ever disclosed the pre-1966 charter silence on which the default provision might operate to provide a new majority vote requirement. Alternative analyses, leading to the conclusion that the Attorney General's preclearance of the relevant section of the 1968 code also precleared its undisclosed effects, are not only at odds with the unambiguous language of 5 of the Voting Rights Act, but imply that the Attorney General was quite the cavalier when he approved the default provision in 1968. Since no particular charter provisions were submitted to him along with the 1968 code, City of he was not on notice of any particular effect that might result from application of the default provision. It is therefore unreasonable to suppose that his approval of the code was meant to preclear its undisclosed applications even as to otherwise valid charter provisions and municipal practices.[ |
Justice Stevens | 1,984 | 16 | second_dissenting | Allen v. Wright | https://www.courtlistener.com/opinion/111258/allen-v-wright/ | Three propositions are clear to me: (1) respondents have adequately alleged "injury in fact"; (2) their injury is fairly traceable to the conduct that they claim to be unlawful; and (3) the "separation of powers" principle does not create a jurisdictional obstacle to the consideration of the merits of their claim. I Respondents, the parents of black schoolchildren, have alleged that their children are unable to attend fully desegregated schools because large numbers of white children in the areas in which respondents reside attend private schools which do not admit minority children. The Court, JUSTICE BRENNAN, and I all agree that this is an adequate allegation of "injury in fact." The Court is quite correct when it writes: "The injury they identify their children's diminished ability to receive an education in a racially integrated school is, beyond any doubt, not only judicially cognizable but, as shown by cases from to Bob Jones one of the most serious injuries recognized in our legal system." Ante, at 756. This kind of injury may be actionable whether it is caused by the exclusion of black children from public schools or by an official policy of encouraging white children to attend nonpublic *784 schools. A subsidy for the withdrawal of a white child can have the same effect as a penalty for admitting a black child. II In final analysis, the wrong respondents allege that the Government has committed is to subsidize the exodus of white children from schools that would otherwise be racially integrated. The critical question in these cases, therefore, is whether respondents have alleged that the Government has created that kind of subsidy. In answering that question, we must of course assume that respondents can prove what they have alleged. Furthermore, at this stage of the litigation we must put to one side all questions about the appropriateness of a nationwide class action.[1] The controlling issue is whether the causal connection between the injury and the wrong has been adequately alleged. An organization that qualifies for preferential treatment under 501(c)(3) of the Internal Revenue Code, because it is "operated exclusively for charitable purposes," 26 *785 U. S. C. 501(c)(3), is exempt from paying federal income taxes, and under 170 of the Code, 26 U.S. C. 170, persons who contribute to such organizations may deduct the amount of their contributions when calculating their taxable income. Only last Term we explained the effect of this preferential treatment: "Both tax exemptions and tax deductibility are a form of subsidy that is administered through the tax system. A tax exemption has much the |
Justice Stevens | 1,984 | 16 | second_dissenting | Allen v. Wright | https://www.courtlistener.com/opinion/111258/allen-v-wright/ | through the tax system. A tax exemption has much the same effect as a cash grant to the organization of the amount of tax it would have to pay on its income. Deductible contributions are similar to cash grants of the amount of a portion of the individual's contributions." The purpose of this scheme, like the purpose of any subsidy, is to promote the activity subsidized; the statutes "seek to achieve the same basic goal of encouraging the development of certain organizations through the grant of tax benefits." Bob Jones If the granting of preferential tax treatment would "encourage" private segregated schools to conduct their "charitable" activities, it must follow that the withdrawal of the treatment would "discourage" them, and hence promote the process of desegregation.[2] *786 We have held that when a subsidy makes a given activity more or less expensive, injury can be fairly traced to the subsidy for purposes of standing analysis because of the resulting increase or decrease in the ability to engage in the activity.[3] Indeed, we have employed exactly this causation analysis in the same context at issue here subsidies given private schools that practice racial discrimination. Thus, in we easily recognized the causal connection between official policies that enhanced the attractiveness of segregated schools and the failure to bring about or maintain a desegregated public school system.[4] Similarly, in we concluded that the provision of textbooks to discriminatory private schools "has a significant tendency to facilitate, reinforce, and support private discrimination." The Court itself appears to embrace this reading of Gilmore and Norwood. It describes Gilmore as holding that a city's policy of permitting segregated private schools to use public parks "would impede the integration of the public schools. Exclusive availability of the public parks `significantly enhanced the attractiveness of segregated private schools by enabling them to offer complete athletic programs.' " Ante, at 762, n. 27 (quoting ). It characterizes Norwood as having concluded that the provision of textbooks to such schools would impede court-ordered desegregation. Ante, at 763. Although the form of the subsidy for segregated private schools involved in Gilmore and Norwood was different from the "cash grant" that flows from a tax exemption, the economic effect and causal connection between the subsidy and the impact on the complaining litigants was precisely the same in those cases as it is here. *788 This causation analysis is nothing more than a restatement of elementary economics: when something becomes more expensive, less of it will be purchased. Sections 170 and 501(c)(3) are premised on that recognition. If racially discriminatory private schools |
Justice Stevens | 1,984 | 16 | second_dissenting | Allen v. Wright | https://www.courtlistener.com/opinion/111258/allen-v-wright/ | are premised on that recognition. If racially discriminatory private schools lose the "cash grants" that flow from the operation of the statutes, the education they provide will become more expensive and hence less of their services will be purchased. Conversely, maintenance of these tax benefits makes an education in segregated private schools relatively more attractive, by decreasing its cost. Accordingly, without tax-exempt status, private schools will either not be competitive in terms of cost, or have to change their admissions policies, hence reducing their competitiveness for parents seeking "a racially segregated alternative" to public schools, which is what respondents have alleged many white parents in desegregating school districts seek.[5] In either event the process of desegregation will be advanced in the same way that it was advanced in Gilmore and Norwood the withdrawal of the subsidy for segregated schools means the incentive structure facing white parents who seek such schools for their children will be altered. Thus, the laws of economics, not to mention the laws of Congress embodied in 170 and 501(c)(3), compel the conclusion that the injury respondents have alleged the increased segregation of their children's schools because of the ready availability of private schools that admit whites only will be redressed if these schools' operations are inhibited through the denial of preferential tax treatment.[6] *789 III Considerations of tax policy, economics, and pure logic all confirm the conclusion that respondents' injury in fact is fairly traceable to the Government's allegedly wrongful conduct. The Court therefore is forced to introduce the concept of "separation of powers" into its analysis. The Court writes that the separation of powers "explains why our cases preclude the conclusion" that respondents' injury is fairly traceable to the conduct they challenge. Ante, at 759. The Court could mean one of three things by its invocation of the separation of powers. First, it could simply be expressing the idea that if the plaintiff lacks Art. III standing to bring a lawsuit, then there is no "case or controversy" *790 within the meaning of Art. III and hence the matter is not within the area of responsibility assigned to the Judiciary by the Constitution. As we have written in the past, through the standing requirement "Art. III limit[s] the federal judicial power `to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.' " Valley Forge Christian[7] While there can be no quarrel with this proposition, in itself it provides no guidance for |
Justice Stevens | 1,984 | 16 | second_dissenting | Allen v. Wright | https://www.courtlistener.com/opinion/111258/allen-v-wright/ | with this proposition, in itself it provides no guidance for determining if the injury respondents have alleged is fairly traceable to the conduct they have challenged. Second, the Court could be saying that it will require a more direct causal connection when it is troubled by the separation of powers implications of the case before it. That approach confuses the standing doctrine with the justiciability of the issues that respondents seek to raise. The purpose of the standing inquiry is to measure the plaintiff's stake in the outcome, not whether a court has the authority to provide it with the outcome it seeks: "[T]he standing question is whether the plaintiff has `alleged such a personal stake in the outcome of the controversy' as to warrant his invocation of federal-court jurisdiction and to justify the exercise of the court's remedial powers on his behalf." (15) ).[8] *791 Thus, the " `fundamental aspect of standing' is that it focuses primarily on the party seeking to get his complaint before the federal court rather than `on the issues he wishes to have adjudicated,' " United (quoting ). The strength of the plaintiff's interest in the outcome has nothing to do with whether the relief it seeks would intrude upon the prerogatives of other branches of government; the possibility that the relief might be inappropriate does not lessen the plaintiff's stake in obtaining that relief. If a plaintiff presents a nonjusticiable issue, or seeks relief that a court may not award, then its complaint should be dismissed for those reasons, and not because the plaintiff lacks a stake in obtaining that relief and hence has no standing.[9] Imposing an undefined but clearly more rigorous standard for redressability for reasons unrelated to the causal nexus between the injury and the challenged conduct *792 can only encourage undisciplined, ad hoc litigation, a result that would be avoided if the Court straightforwardly considered the justiciability of the issues respondents seek to raise, rather than using those issues to obfuscate standing analysis.[10] Third, the Court could be saying that it will not treat as legally cognizable injuries that stem from an administrative decision concerning how enforcement resources will be allocated. This surely is an important point. Respondents do seek to restructure the IRS's mechanisms for enforcing the legal requirement that discriminatory institutions not receive tax-exempt status. Such restructuring would dramatically *793 affect the way in which the IRS exercises its prosecutorial discretion. The Executive requires latitude to decide how best to enforce the law, and in general the Court may well be correct that the exercise of that |
Justice Stevens | 1,984 | 16 | second_dissenting | Allen v. Wright | https://www.courtlistener.com/opinion/111258/allen-v-wright/ | Court may well be correct that the exercise of that discretion, especially in the tax context, is unchallengeable. However, as the Court also recognizes, this principle does not apply when suit is brought "to enforce specific legal obligations whose violation works a direct harm," ante, at 761. For example, despite the fact that they were challenging the methods used by the Executive to enforce the law, citizens were accorded standing to challenge a pattern of police misconduct that violated the constitutional constraints on law enforcement activities in[11] Here, respondents contend that the IRS is violating a specific constitutional limitation on its enforcement discretion. There is a solid basis for that contention. In Norwood, we wrote: "A State's constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination." Gilmore echoed this theme: "[A]ny tangible State assistance, outside the generalized services government might provide to private segregated schools in common with other schools, and with all citizens, is constitutionally prohibited if it has `a significant tendency to facilitate, reinforce, and support private discrimination.' The constitutional obligation of the State `requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial *794 or other invidious discrimination.'" -569. Respondents contend that these cases limit the enforcement discretion enjoyed by the IRS. They establish, respondents argue, that the IRS cannot provide "cash grants" to discriminatory schools through preferential tax treatment without running afoul of a constitutional duty to refrain from "giving significant aid" to these institutions. Similarly, respondents claim that the Internal Revenue Code itself, as construed in Bob Jones, constrains enforcement discretion.[12] It has been clear since that "[i]t is emphatically the province and duty of the judicial department to say what the law is." Deciding whether the Treasury has violated a specific legal *795 limitation on its enforcement discretion does not intrude upon the prerogatives of the Executive, for in so deciding we are merely saying "what the law is." Surely the question whether the Constitution or the Code limits enforcement discretion is one within the Judiciary's competence, and I do not believe that the question whether the law, as enunciated in Gilmore, Norwood, and Bob Jones, imposes such an obligation upon the IRS is so insubstantial that respondents' attempt to raise it should be defeated for lack of subject-matter jurisdiction on the ground that it infringes the Executive's prerogatives.[13] In short, |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | The Age Discrimination in Employment Act of 967 (ADEA or Act), 29 U.S. C. 62 et seq., forbids discriminatory preference for the young over the old. The question in this case is whether it also prohibits favoring the old over the young. We hold it does not. I In 997, a collective-bargaining agreement between petitioner General Dynamics and the United Auto Workers eliminated the company's obligation to provide health benefits to subsequently retired employees, except as to then-current workers at least 50 years old. Respondents (collectively, Cline) were then at least 40 and thus protected by the Act, see 29 U.S. C. 63(a), but under 50 and so without promise of the benefits. All of them objected to the new terms, although some had retired before the change in order to get *585 the prior advantage, some retired afterwards with no benefit, and some worked on, knowing the new contract would give them no health coverage when they were through. Before the Equal Employment Opportunity Commission (EEOC or Commission) they claimed that the agreement violated the ADEA, because it "discriminate[d against them] with respect to compensation, terms, conditions, or privileges of employment, because of [their] age," 623(a)(). The EEOC agreed, and invited General Dynamics and the union to settle informally with Cline. When they failed, Cline brought this action against General Dynamics, combining claims under the ADEA and state law. The District Court called the federal claim one of "reverse age discrimination," upon which, it observed, no court had ever granted relief under the It dismissed in reliance on the Seventh Circuit's opinion in that "the ADEA `does not protect the younger against the older,'" (quoting (CA7), cert. denied sub nom. ). A divided panel of the Sixth Circuit reversed, with the majority reasoning that the prohibition of 623(a)(), covering discrimination against "any individual. because of such individual's age," is so clear on its face that if Congress had meant to limit its coverage to protect only the older worker against the younger, it would have said so. The court acknowledged the conflict of its ruling with earlier cases, including Hamilton and F.2d 276 from the First Circuit, but it criticized the cases going the other way for paying too much attention to the "hortatory, generalized language" of the congressional findings incorporated in the The Sixth Circuit *586 drew support for its view from the position taken by the EEOC in an interpretive regulation.[] at 47. Judge Cole, concurring, saw the issue as one of plain meaning that produced no absurd result, although he acknowledged a degree of tension with |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | absurd result, although he acknowledged a degree of tension with in which this Court spoke of age discrimination as giving better treatment to a "`substantially younger'" 296 F.3d, Judge Williams dissented in preference for Hamilton and the consensus of the federal courts, thinking it "obvious that the older a person is, the greater his or her needs become." We granted certiorari to resolve the conflict among the Circuits, and now reverse. II The common ground in this case is the generalization that the ADEA's prohibition covers "discriminat[ion] because of [an] individual's age," 29 U.S. C. 623(a)(), that helps the younger by hurting the older. In the abstract, the phrase is open to an argument for a broader construction, since reference to "age" carries no express modifier and the word could be read to look two ways. This more expansive possible understanding does not, however, square with the natural reading of the whole provision prohibiting discrimination, and in fact Congress's interpretive clues speak almost unanimously to an understanding of discrimination as directed against workers who are older than the ones getting treated better. Congress chose not to include age within discrimination forbidden by Title VII of the Civil Rights Act of 964, 75, *587 being aware that there were legitimate reasons as well as invidious ones for making employment decisions on age. Instead it called for a study of the issue by the Secretary of Labor, ib who concluded that age discrimination was a serious problem, but one different in kind from discrimination on account of race.[2] The Secretary spoke of disadvantage to older individuals from arbitrary and stereotypical employment distinctions (including then-common policies of age ceilings on hiring), but he examined the problem in light of rational considerations of increased pension cost and, in some cases, legitimate concerns about an older person's ability to do the job. Wirtz Report 2. When the Secretary ultimately took the position that arbitrary discrimination against older workers was widespread and persistent enough to call for a federal legislative remedy, he placed his recommendation against the background of common experience that the potential cost of employing someone rises with age, so that the older an employee is, the greater the inducement to prefer a younger substitute. The report contains no suggestion that reactions to age level off at some point, and it was devoid of any indication that the Secretary had noticed unfair advantages accruing to older employees at the expense of their juniors. Congress then asked for a specific proposal, Fair Labor Standards Amendments of 966, 606, which the Secretary provided in January 967. |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | of 966, 606, which the Secretary provided in January 967. 3 Cong. Rec. 377 (967); see also Public Papers of the Presidents, Lyndon *588 B. Johnson, Vol. Jan. 23, 967, p. 37 (968) (message to Congress urging that "[o]pportunity be opened to the many Americans over 45 who are qualified and willing to work"). Extensive House and Senate hearings ensued. See Age Discrimination in Employment: Hearings on H. R. 365 et al. before the General Subcommittee on Labor of the House Committee on Education and Labor, 90th Cong., st Sess. (967) (hereinafter House Hearings); Age Discrimination in Employment: Hearings on S. 830 and S. 788 before the Subcommittee on Labor of the Senate Committee on Labor and Public Welfare, 90th Cong., st Sess. (967) (hereinafter Senate Hearings). See generally The testimony at both hearings dwelled on unjustified assumptions about the effect of age on ability to work. See, e. g., House Hearings 5 (statement of Rep. Joshua Eilberg) ("At age 40, a worker may find that age restrictions become common By age 45, his employment opportunities are likely to contract sharply; they shrink more severely at age 55 and virtually vanish by age 65"); ("We must provide meaningful opportunities for employment to the thousands of workers 45 and over who are well qualified but nevertheless denied jobs which they may desperately need because someone has arbitrarily decided that they are too old"); Senate Hearings 34 (statement of Sen. George Murphy) ("[A]n older worker often faces an attitude on the part of some employers that prevents him from receiving serious consideration or even an interview in his search for employment").[3] The hearings specifically *589 addressed higher pension and benefit costs as heavier drags on hiring workers the older they got. See, e. g., House Hearings 45 (statement of Norman Sprague) (Apart from stereotypes, "labor market conditions, seniority and promotion-from-within policies, job training costs, pension and insurance costs, and mandatory retirement policies often make employers reluctant to hire older workers"). The record thus reflects the common facts that an individual's chances to find and keep a job get worse over time; as between any two people, the younger is in the stronger position, the older more apt to be tagged with demeaning stereotype. Not surprisingly, from the voluminous records of the hearings, we have found (and Cline has cited) nothing suggesting that any workers were registering complaints about discrimination in favor of their seniors. Nor is there any such suggestion in the introductory provisions of the ADEA, which begins with statements of purpose and findings that mirror the Wirtz Report and the |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | purpose and findings that mirror the Wirtz Report and the committee transcripts. 2. The findings stress the impediments suffered by "older workers in their efforts to retain and especially to regain employment," 2(a)(); "the [burdens] of arbitrary age limits regardless of potential for job performance," 2(a)(2); the costs of "otherwise desirable practices [that] may work to the disadvantage of older persons," ; and "the incidence of unemployment, especially long-term unemployment[, which] is, relative to the younger ages, high among older workers," 2(a)(3). The statutory objects were "to promote employment of older persons based on their ability rather than age; to prohibit arbitrary age discrimination in employment; [and] *590 to help employers and workers find ways of meeting problems arising from the impact of age on employment." 2(b). In sum, except on one point, all the findings and statements of objectives are either cast in terms of the effects of age as intensifying over time, or are couched in terms that refer to "older" workers, explicitly or implicitly relative to "younger" ones. The single subject on which the statute speaks less specifically is that of "arbitrary limits" or "arbitrary age discrimination." But these are unmistakable references to the Wirtz Report's finding that "[a]lmost three out of every five employers covered by [a] 965 survey have in effect age limitations (most frequently between 45 and 55) on new hires which they apply without consideration of an applicant's other qualifications." Wirtz Report 6. The ADEA's ban on "arbitrary limits" thus applies to age caps that exclude older applicants, necessarily to the advantage of younger ones. Such is the setting of the ADEA's core substantive provision, 4 (as amended, 29 U.S. C. 623), prohibiting employers and certain others from "discriminat[ion] because of [an] individual's age," whenever (as originally enacted) the individual is "at least forty years of age but less than sixty-five years of age," 2,[4] The prefatory provisions and their legislative history make a case that we think is beyond reasonable doubt, that the ADEA was concerned *59 to protect a relatively old worker from discrimination that works to the advantage of the relatively young. Nor is it remarkable that the record is devoid of any evidence that younger workers were suffering at the expense of their elders, let alone that a social problem required a federal statute to place a younger worker in parity with an older one. Common experience is to the contrary, and the testimony, reports, and congressional findings simply confirm that Congress used the phrase "discriminat[ion] because of [an] individual's age" the same way that ordinary people in common |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | individual's age" the same way that ordinary people in common usage might speak of age discrimination any day of the week. One commonplace conception of American society in recent decades is its character as a "youth culture," and in a world where younger is better, talk about discrimination because of age is naturally understood to refer to discrimination against the older. This same, idiomatic sense of the statutory phrase is confirmed by the statute's restriction of the protected class to those 40 and above. If Congress had been worrying about protecting the younger against the older, it would not likely have ignored everyone under 40. The youthful deficiencies of inexperience and unsteadiness invite stereotypical and discriminatory thinking about those a lot younger than 40, and prejudice suffered by a 40-year-old is not typically owing to youth, as 40-year-olds sadly tend to find out. The enemy of 40 is 30, not 50. See H. R. Rep. No. 805, 90th Cong., st Sess., 6 (967) ("[T]estimony indicated [40] to be the age at which age discrimination in employment becomes evident"). Even so, the 40-year threshold was adopted over the objection that some discrimination against older people begins at an even younger age; female flight attendants were not fired at 32 because they were too young, See also Senate Hearings 47 (statement of Sec'y Wirtz) (lowering the minimum age limit "would change the nature of the proposal from an over-age employment discrimination measure"). Thus, the 40-year threshold makes sense as identifying a class requiring *592 protection against preference for their juniors, not as defining a class that might be threatened by favoritism toward seniors.[5] The federal reports are as replete with cases taking this position as they are nearly devoid of decisions like the one reviewed here. To start closest to home, the best example is Hazen Paper in which we held there is no violation of the ADEA in firing an employee because his pension is about to vest, a basis for action that we took to be analytically distinct from age, even though it would never occur without advanced years. We said that "the very essence of age discrimination [is] for an older employee to be fired because the employer believes that productivity and competence decline with old age," whereas discrimination on the basis of pension status "would not constitute discriminatory treatment on the basis of age [because t]he prohibited stereotype [of *593 the faltering worker] would not have figured in this decision, and the attendant stigma would not ensue," And we have relied on this same reading of the statute |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | we have relied on this same reading of the statute in other cases. See, e. g., O', ; Western Air Lines, While none of these cases directly addresses the question presented here, all of them show our consistent understanding that the text, structure, and history point to the ADEA as a remedy for unfair preference based on relative youth, leaving complaints of the relatively young outside the statutory concern. The Courts of Appeals and the District Courts have read the law the same way, and prior to this case have enjoyed virtually unanimous accord in understanding the ADEA to forbid only discrimination preferring young to old. So the Seventh Circuit held in Hamilton, and the First Circuit said in Schuler, and so the District Courts have ruled in cases too numerous for citation here in the text.[6] The very *594 strength of this consensus is enough to rule out any serious claim of ambiguity, and congressional silence after years of judicial interpretation supports adherence to the traditional view.[7] III Cline and amicus EEOC proffer three rejoinders in favor of their competing view that the prohibition works both ways. First, they say (as does JUSTICE THOMAS, post, at 602-605) that the statute's meaning is plain when the word "age" receives its natural and ordinary meaning and the statute is read as a whole giving "age" the same meaning throughout. And even if the text does not plainly mean what they say it means, they argue that the soundness of their version is shown by a colloquy on the floor of the Senate involving Senator Yarborough, a sponsor of the bill that became the Finally, they fall back to the position (fortified by JUSTICE SCALIA's dissent) that we should defer to the EEOC's reading of the statute. On each point, however, we think the argument falls short of unsettling our view of the natural meaning of the phrase speaking of discrimination, read in light of the statute's manifest purpose. A The first response to our reading is the dictionary argument that "age" means the length of a person's life, with the *595 phrase "because of such individual's age" stating a simple test of causation: "discriminat[ion] because of [an] individual's age" is treatment that would not have occurred if the individual's span of years had been longer or shorter. The case for this reading calls attention to the other instances of "age" in the ADEA that are not limited to old age, such as 29 U.S. C. 623(f), which gives an employer a defense to charges of age discrimination when "age is a |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | defense to charges of age discrimination when "age is a bona fide occupational qualification." Cline and the EEOC argue that if "age" meant old age, 623(f) would then provide a defense (old age is a bona fide qualification) only for an employer's action that on our reading would never clash with the statute (because preferring the older is not forbidden). The argument rests on two mistakes. First, it assumes that the word "age" has the same meaning wherever the ADEA uses it. But this is not so, and Cline simply misemploys the "presumption that identical words used in different parts of the same act are intended to have the same meaning." Atlantic Cleaners & Dyers, Cline forgets that "the presumption is not rigid and readily yields whenever there is such variation in the connection in which the words are used as reasonably to warrant the conclusion that they were employed in different parts of the act with different intent." ; see also United ; The presumption of uniform usage thus relents[8] when a word used *596 has several commonly understood meanings among which a speaker can alternate in the course of an ordinary conversation, without being confused or getting confusing. "Age" is that kind of word. As JUSTICE THOMAS (post, at 603) agrees, the word "age" standing alone can be readily understood either as pointing to any number of years lived, or as common shorthand for the longer span and concurrent aches that make youth look good. Which alternative was probably intended is a matter of context; we understand the different choices of meaning that lie behind a sentence like "Age can be shown by a driver's license," and the statement, "Age has left him a shut-in." So it is easy to understand that Congress chose different meanings at different places in the ADEA, as the different settings readily show. Hence the second flaw in Cline's argument for uniform usage: it ignores the cardinal rule that "[s]tatutory language must be read in context [since] a phrase `gathers meaning from the words around it.'" The point here is that we are not asking an abstract question about the meaning of "age"; we are seeking the meaning of the whole phrase "discriminate because of such individual's age," where it occurs in the ADEA, 29 U.S. C. 623(a)(). As we have said, social history emphatically reveals an understanding of age discrimination as aimed against the old, and the statutory reference to age discrimination in this idiomatic sense is confirmed by legislative history. For the very reason that reference to context shows that "age" |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | the very reason that reference to context shows that "age" means "old age" when teamed with "discrimination," the provision of an affirmative defense when age is a bona fide occupational qualification readily shows that "age" as a qualification means comparative youth. As *597 context tells us that "age" means one thing in 623(a)() and another in 623(f),[9] so it also tells us that the presumption of uniformity cannot sensibly operate here.[0] The comparisons JUSTICE THOMAS urges, post, at 608-62, to and serve to clarify our position. Both cases involved Title VII of the Civil Rights Act of 964, 42 U.S. C. e et seq., and its prohibition on employment discrimination "because of [an] individual's race [or] sex," e-2(a)() (emphasis added). The term "age" employed by the ADEA is not, however, comparable to the terms "race" or "sex" employed by Title VII. "Race" and "sex" are general terms that in every day usage require modifiers to indicate *598 any relatively narrow application. We do not commonly understand "race" to refer only to the black race, or "sex" to refer only to the female. But the prohibition of age discrimination is readily read more narrowly than analogous provisions dealing with race and sex. That narrower reading is the more natural one in the textual setting, and it makes perfect sense because of Congress's demonstrated concern with distinctions that hurt older people. B The second objection has more substance than the first, but still not enough. The record of congressional action reports a colloquy on the Senate floor between two of the legislators most active in pushing for the ADEA, Senators Javits and Yarborough. Senator Javits began the exchange by raising a concern mentioned by Senator Dominick, that "the bill might not forbid discrimination between two persons each of whom would be between the ages of 40 and 65." 3 Cong. Rec. 3255 (967). Senator Javits then gave his own view that, "if two individuals ages 52 and 42 apply for the same job, and the employer selected the man aged 42 solely. because he is younger than the man 52, then he will have violated the act," and asked Senator Yarborough for his opinion. Senator Yarborough answered that "[t]he law prohibits age being a factor in the decision to hire, as to one age over the other, whichever way [the] decision went." Although in the past we have given weight to Senator Yarborough's views on the construction of the ADEA because he was a sponsor, see, e. g., Public Employees Retirement System of his side of this exchange is not enough to |
Justice Souter | 2,004 | 20 | majority | General Dynamics Land Systems, Inc. v. Cline | https://www.courtlistener.com/opinion/131162/general-dynamics-land-systems-inc-v-cline/ | of his side of this exchange is not enough to unsettle our reading of the statute. It is not merely that the discussion was prompted by the question mentioned in the possibility of a 52-year-old suing over a preference for someone *599 younger but in the over-40 protected class. What matters is that the Senator's remark, "whichever way [the] decision went," is the only item in all the 967 hearings, reports, and debates going against the grain of the common understanding of age discrimination.[] Even from a sponsor, a single outlying statement cannot stand against a tide of context and history, not to mention 30 years of judicial interpretation producing no apparent legislative qualms. See Consumer Product Safety C The third objection relies on a reading consistent with the Yarborough comment, adopted by the agency now charged with enforcing the statute, as set out at 29 CFR 625.2(a) and quoted in full, n. When the EEOC adopted 625.2(a) in 98, shortly after assuming administrative responsibility for the ADEA, it gave no reasons for the view expressed, beyond noting that the provision was carried forward from an earlier Department of Labor regulation, see (979); (98); that earlier regulation itself gave no reasons, see 33 Fed. Reg. 972 (968) (reprinting 29 CFR 860.9, rescinded by (98)). *600 The parties contest the degree of weight owed to the EEOC's reading, with General Dynamics urging us that 323 U.S. 34 (944), sets the limit, while Cline and the EEOC say that 625.2(a) deserves greater deference under U. S. A. (984). Although we have devoted a fair amount of attention lately to the varying degrees of deference deserved by agency pronouncements of different sorts, see United 533 U.S. 28 ; the recent cases are not on point here. In 535 U.S. 06, 4 we found no need to choose between Skidmore and or even to defer, because the EEOC was clearly right; today, we neither defer nor settle on any degree of deference because the Commission is clearly wrong. Even for an agency able to claim all the authority possible under deference to its statutory interpretation is called for only when the devices of judicial construction have been tried and found to yield no clear sense of congressional intent. 480 U.S. 42, (987) Here, regular interpretive method leaves no serious question, not even about purely textual ambiguity in the The word "age" takes on a definite meaning from being in the phrase "discriminat[ion] because of such individual's age," occurring as that phrase does in a statute structured and manifestly intended to protect the older from |
Justice Stewart | 1,974 | 18 | majority | Blackledge v. Perry | https://www.courtlistener.com/opinion/109042/blackledge-v-perry/ | While serving a term of imprisonment in a North Carolina penitentiary, the respondent Perry became involved in an altercation with another inmate. A warrant issued, charging Perry with the misdemeanor of assault with a deadly weapon, N. C. Gen. Stat. 14-33 (b) (1) (1969). Under North Carolina law, the District Court Division of the General Court of Justice has exclusive jurisdiction for the trial of misdemeanors. N. C. Gen. Stat. 7A-272. Following a trial without a jury in the District Court of Northampton County, Perry was convicted of this misdemeanor and given a six-month sentence, to be served after completion of the prison term he was then serving. Perry then filed a notice of appeal to the Northampton County Superior Court. Under North Carolina law, a person convicted in the District Court has a right to a trial de novo in the Superior Court. N. C. Gen. Stat. 7A-290, 15-177.1. The right to trial de novo is absolute, there being no need for the appellant to allege error in the original proceeding. When an appeal is taken, the statutory scheme provides that the slate is wiped clean; the prior conviction is annulled, and the prosecution and the defense begin anew in the Superior Court.[1] *23 After the filing of the notice of appeal, but prior to the respondent's appearance for trial de novo in the Superior Court, the prosecutor obtained an indictment from a grand jury, charging Perry with the felony of assault with a deadly weapon with intent to kill and inflict serious bodily injury, N. C. Gen. Stat. 14-32 (a) (1969). The indictment covered the same conduct for which Perry had been tried and convicted in the District Court. Perry entered a plea of guilty to the indictment in the Superior Court, and was sentenced to a term of five to seven years in the penitentiary, to be served concurrently with the identical prison sentence he was then serving.[2] A number of months later, the respondent filed an application for a writ of habeas corpus in the United States District Court for the Eastern District of North Carolina. He claimed that the indictment on the felony charge in the Superior Court constituted double jeopardy and also deprived him of due process of law. In an unreported opinion, the District Court dismissed the petition for failure to exhaust available state remedies. The United States Court of Appeals for the Fourth Circuit *24 reversed, holding that resort to the state courts would be futile, because the Supreme Court of North Carolina had consistently rejected the constitutional claims presented by Perry |
Justice Stewart | 1,974 | 18 | majority | Blackledge v. Perry | https://www.courtlistener.com/opinion/109042/blackledge-v-perry/ | Carolina had consistently rejected the constitutional claims presented by Perry in his petition.[3] The case was remanded to the District Court for further proceedings. On remand, the District Court granted the writ. It held that the bringing of the felony charge after the filing of the appeal violated Perry's rights under the Double Jeopardy Clause of the Fifth Amendment, made applicable to the States through the Fourteenth Amendment, The District Court further held that the respondent had not, by his guilty plea in the Superior Court, waived his right to raise his constitutional claims in the federal habeas corpus proceeding. The Court of Appeals affirmed the judgment in a brief per curiam opinion. We granted certiorari, to consider the seemingly important issues presented by this case. I As in the District Court, Perry directs two independent constitutional attacks upon the conduct of the *25 State in haling him into court on the felony charge after he took an appeal from the misdemeanor conviction. First, he contends that the felony indictment in the Superior Court placed him in double jeopardy, since he had already been convicted on the lesser included misdemeanor charge in the District Court. Second, he urges that the indictment on the felony charge constituted a penalty for his exercising his statutory right to appeal, and thus contravened the Due Process Clause of the Fourteenth Amendment.[4] We find it necessary to reach only the latter claim. Perry's due process arguments are derived substantially from North and its progeny. In Pearce, the Court considered the constitutional problems presented when, following a successful appeal and reconviction, a criminal defendant was subjected to a greater punishment than that imposed at the first trial. While we concluded that such a harsher sentence was not absolutely precluded by either the Double Jeopardy or Due Process Clause, we emphasized that "imposition of a penalty upon the defendant for having successfully pursued a statutory right of appeal or collateral remedy would be a violation of due process of law." Because "vindictiveness against a defendant for having successfully attacked his first conviction must play no part in the sentence he receives *26 after a new trial," we held that an increased sentence could not be imposed upon retrial unless the sentencing judge placed certain specified findings on the record. In the Court was called upon to decide the applicability of the Pearce holding to Kentucky's two-tiered system of criminal adjudication. Kentucky, like North Carolina, allows a misdemeanor defendant convicted in an inferior trial court to seek a trial de novo in a court of general jurisdiction.[5] The |
Justice Stewart | 1,974 | 18 | majority | Blackledge v. Perry | https://www.courtlistener.com/opinion/109042/blackledge-v-perry/ | trial de novo in a court of general jurisdiction.[5] The appellant in Colten claimed that the Constitution prevented the court of general jurisdiction, after trial de novo, from imposing a sentence in excess of that imposed in the court of original trial. This Court rejected the Pearce analogy. Emphasizing that Pearce was directed at insuring the absence of "vindictiveness" against a criminal defendant who attacked his initial conviction on appeal, the Court found such dangers greatly minimized on the facts presented in Colten. In contrast to Pearce, the court that imposed the increased sentence after retrial in Colten was not the one whose original judgment had prompted an appellate reversal; thus, there was little possibility that an increased sentence on trial de novo could have been motivated by personal vindictiveness on the part of the sentencing judge. Hence, the Court thought the prophylactic rule of Pearce unnecessary in the de novo trial and sentencing context of Colten. The Pearce decision was again interpreted by this Court last Term in in the setting of Georgia's system under which sentencing responsibility is entrusted to the jury. Upon retrial following the reversal of his original conviction, the *27 defendant in Chaffin was reconvicted and sentenced to a greater term than had been imposed by the initial jury. Concentrating again on the issue of vindictiveness, the Court found no violation of the Pearce rule. It was noted that the second jury was completely unaware of the original sentence, and thus could hardly have sought to "punish" Chaffin for his successful appeal. Moreover, the jury, unlike a judge who had been reversed on appeal, could hardly have a stake in the prior conviction or any motivation to discourage criminal defendants from seeking appellate review. Hence, it was concluded that the danger of vindictiveness under the circumstances of the case was "de minimis," and did not require adoption of the constitutional rule set out in Pearce. The lesson that emerges from Pearce, Colten, and Chaffin is that the Due Process Clause is not offended by all possibilities of increased punishment upon retrial after appeal, but only by those that pose a realistic likelihood of "vindictiveness." Unlike the circumstances presented by those cases, however, in the situation here the central figure is not the judge or the jury, but the prosecutor. The question is whether the opportunities for vindictiveness in this situation are such as to impel the conclusion that due process of law requires a rule analogous to that of the Pearce case. We conclude that the answer must be in the affirmative. A prosecutor clearly |
Justice Stewart | 1,974 | 18 | majority | Blackledge v. Perry | https://www.courtlistener.com/opinion/109042/blackledge-v-perry/ | the answer must be in the affirmative. A prosecutor clearly has a considerable stake in discouraging convicted misdemeanants from appealing and thus obtaining a trial de novo in the Superior Court, since such an appeal will clearly require increased expenditures of prosecutorial resources before the defendant's conviction becomes final, and may even result in a formerly convicted defendant's going free. And, if the prosecutor has the means readily at hand to discourage such *28 appealsby "upping the ante" through a felony indictment whenever a convicted misdemeanant pursues his statutory appellate remedythe State can insure that only the most hardy defendants will brave the hazards of a de novo trial. There is, of course, no evidence that the prosecutor in this case acted in bad faith or maliciously in seeking a felony indictment against Perry. The rationale of our judgment in the Pearce case, however, was not grounded upon the proposition that actual retaliatory motivation must inevitably exist. Rather, we emphasized that "since the fear of such vindictiveness may unconstitutionally deter a defendant's exercise of the right to appeal or collaterally attack his first conviction, due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge." 395 U.S., We think it clear that the same considerations apply here. A person convicted of an offense is entitled to pursue his statutory right to a trial de novo, without apprehension that the State will retaliate by substituting a more serious charge for the original one, thus subjecting him to a significantly increased potential period of incarceration.[6] Cf. United Due process of law requires that such a potential for vindictiveness must not enter into North Carolina's two-tiered appellate process. We hold, therefore, that it was not constitutionally permissible for the State to respond *29 to Perry's invocation of his statutory right to appeal by bringing a more serious charge against him prior to the trial de novo.[7] II The remaining question is whether, because of his guilty plea to the felony charge in the Superior Court, Perry is precluded from raising his constitutional claims in this federal habeas corpus proceeding. In contending that such is the case, petitioners rely chiefly on this Court's decision last Term in The precise issue presented in Tollett was "whether a state prisoner, pleading guilty with the advice of counsel, may later obtain release through federal habeas corpus by proving only that the indictment to which he pleaded was returned by an unconstitutionally selected grand jury." 0. The Court answered that question in the negative. Relying primarily |
Justice Stewart | 1,974 | 18 | majority | Blackledge v. Perry | https://www.courtlistener.com/opinion/109042/blackledge-v-perry/ | The Court answered that question in the negative. Relying primarily on the guilty-plea trilogy of and the Court characterized the guilty plea as "a break in the chain of events which has preceded it in the criminal process." 411 U.S., 7. Accordingly, the Court held that when a criminal defendant enters a guilty plea, "he may not thereafter raise independent claims relating to the deprivation of constitutional *30 rights that occurred prior to the entry of the guilty plea." Rather, a person complaining of such "antecedent constitutional violations," 6, is limited in a federal habeas corpus proceeding to attacks on the voluntary and intelligent nature of the guilty plea, through proof that the advice received from counsel was not "within the range of competence demanded of attorneys in criminal cases." See While petitioners' reliance upon the Tollett opinion is understandable, there is a fundamental distinction between this case and that one. Although the underlying claims presented in Tollett and the Brady trilogy were of constitutional dimensions, none went to the very power of the State to bring the defendant into court to answer the charge brought against him. The defendants in for example, could surely have been brought to trial without the use of the allegedly coerced confessions, and even a tainted indictment of the sort alleged in Tollett could have been "cured" through a new indictment by a properly selected grand jury. In the case at hand, by contrast, the nature of the underlying constitutional infirmity is markedly different. Having chosen originally to proceed on the misdemeanor charge in the District Court; the State of North Carolina was, under the facts of this case, simply precluded by the Due Process Clause from calling upon the respondent to answer to the more serious charge in the Superior Court. Unlike the defendant in Tollett, Perry is not complaining of "antecedent constitutional violations" or of a "deprivation of constitutional rights that occurred prior to the entry of the guilty plea." 411 U.S., 6, 267. Rather, the right that he asserts and that we today accept is the right not to be haled into court at all upon the felony charge. The very initiation of the proceedings against *31 him in the Superior Court thus operated to deny him due process of law. Last Term in in explaining why the Double Jeopardy Clause is distinctive, the Court noted that "its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial." While our judgment today is not based upon |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | [*] I I dissent from the judgments of the Court for the reasons stated in many of my prior opinions. See, e. g., ; In my view the First Amendment denies Congress the power to act as censor and determine what books our citizens may read and what pictures they may watch. I particularly regret to see the Court revive the doctrine of 354 U.S. that "obscenity" is speech for some reason unprotected by the First Amendment. As the Court's many decisions *380 in this area demonstrate, it is extremely difficult for judges or any other citizens to agree on what is "obscene." Since the distinctions between protected speech and "obscenity" are so elusive and obscure, almost every "obscenity" case involves difficult constitutional issues. After Roth our docket and those of other courts have constantly been crowded with cases where judges are called upon to decide whether a particular book, magazine, or movie may be banned. I have expressed before my view that I can imagine no task for which this Court of lifetime judges is less equipped to deal. In view of the difficulties with the Roth approach, it is not surprising that many recent decisions have at least implicitly suggested that it should be abandoned. See ; Despite the proved shortcomings of Roth, the majority in Reidel today reaffirms the validity of that dubious decision. Thus, for the foreseeable future this Court must sit as a Board of Supreme Censors, sifting through books and magazines and watching movies because some official fears they deal too explicitly with sex. I can imagine no more distasteful, useless, and time-consuming task for the members of this Court than perusing this material to determine whether it has "redeeming social value." This absurd spectacle could be avoided if we would adhere to the literal command of the First Amendment that "Congress shall make no law abridging the freedom of speech, or of the press" II Wholly aside from my own views of what the First Amendment demands, I do not see how the reasoning of MR. JUSTICE WHITE'S opinion today in Thirty-Seven Photographs can be reconciled with the holdings of *381 earlier cases. That opinion insists that the trial court erred in reading "as immunizing from seizure obscene materials possessed at a port of entry for the purpose of importation for private use." Ante, at 376. But it is never satisfactorily explained just why the trial court's reading of Stanley was erroneous. It would seem to me that if a citizen had a right to possess "obscene" material in the privacy of his |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | right to possess "obscene" material in the privacy of his home he should have the right to receive it voluntarily through the mail. Certainly when a man legally purchases such material abroad he should be able to bring it with him through customs to read later in his home. The mere act of importation for private use can hardly be more offensive to others than is private perusal in one's home. The right to read and view any literature and pictures at home is hollow indeed if it does not include a right to carry that material privately in one's luggage when entering the country. The plurality opinion seems to suggest that Thirty-Seven Photographs differs from Stanley because "Customs officers characteristically inspect luggage and their power to do so is not questioned in this case" Ante, at 376. But surely this observation does not distinguish Stanley, because police frequently search private homes as well, and their power to do so is unquestioned so long as the search is reasonable within the meaning of the Fourth Amendment. Perhaps, however, the plurality reasons silently that a prohibition against importation of obscene materials for private use is constitutionally permissible because it is necessary to prevent ultimate commercial distribution of obscenity. It may feel that an importer's intent to distribute obscene materials commercially is so difficult to prove that all such importation may be outlawed without offending the First Amendment. A very similar argument was made by the State in Stanley when it urged *382 that enforcement of a possession law was necessary because of the difficulties of proving intent to distribute or actual distribution. However, the Court unequivocally rejected that argument because an 's right to "read or observe what he pleases" is so "fundamental to our scheme of liberty." Furthermore, any argument that all importation may be banned to stop possible commercial distribution simply ignores numerous holdings of this Court that legislation touching on First Amendment freedoms must be precisely and narrowly drawn to avoid stifling the expression the Amendment was designed to protect. Certainly the Court has repeatedly applied the rule against overbreadth in past censorship cases, as in where we held that the State could not quarantine "the general reading public against books not too rugged for grown men and women in order to shield juvenile innocence." Cf. ; United Since the plurality opinion offers no plausible reason to distinguish private possession of "obscenity" from importation for private use, I can only conclude that at least four members of the Court would overrule Stanley. Or perhaps in the future that |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | Court would overrule Stanley. Or perhaps in the future that case will be recognized as good law only when a man writes salacious books in his attic, prints them in his basement, and reads them in his living room. The plurality opinion appears to concede that the customs obscenity statute is unconstitutional on its face after the Court's decision in because this law specifies no time limits within which forfeiture proceedings must be started against seized books or pictures, and it does not require a prompt final judicial hearing on obscenity. Ante, at 368-369. Once the plurality has reached this determination, the proper course would be to affirm the lower court's decision. *383 But the plurality goes on to rewrite the statute by adding specific time limits. The plurality then notes that the Government here has conveniently stayed within these judicially manufactured limits by one day, and on that premise it concludes the statute may be enforced in this case. In my view the plurality's action in rewriting this statute represents a seizure of legislative power that we simply do not possess under the Constitution. Certainly claimant Luros has standing to raise the claim that the customs statute's failure to provide for prompt judicial decision renders it unconstitutional. Our previous decisions make clear that such censorship statutes may be challenged on their face as a violation of First Amendment rights "whether or not [a defendant's] conduct could be proscribed by a properly drawn statute." This is true because of the "danger of tolerating, in the area of First Amendment freedoms, the existence of a penal statute susceptible of sweeping and improper application." Since this censorship statute is unconstitutional on its face, and claimant has standing to challenge it as such, that should end the case without further ado. But the plurality nimbly avoids this result by writing a new censorship statute. I simply cannot understand how the plurality determines it has the power to substitute the new statute for the one that the duly elected representatives of the people have enacted. The plurality betrays its uneasiness when it concedes that we specifically refused to undertake any such legislative task in and in After holding the movie censorship law unconstitutional in the Court stated: "How or whether is to incorporate the required procedural safeguards in the statutory *384 scheme is, of course, for the State to decide." With all deference, I would suggest that the decision whether and how the customs obscenity law should be rewritten is a task for the Congress, not this Court. Congress might decide to write an |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | Congress, not this Court. Congress might decide to write an entirely different law, or even decide that the Nation can well live without such a statute. The plurality claims to find power to rewrite the customs obscenity law in the statute's legislative history and in the rule that statutes should be construed to avoid constitutional questions. Ante, at 373. I agree, of course, that statutes should be construed to uphold their constitutionality when this can be done without misusing the legislative history and substituting a new statute for the one that Congress has passed. But this rule of construction does not justify the plurality's acting like a legislature or one of its committees and redrafting the statute in a manner not supported by the deliberations of Congress or by our previous decisions in censorship cases. The plurality relies principally on statements made by Senators Swanson and Pittman when the customs obscenity legislation was under discussion on the Senate floor. The defect in the Court's reliance is that the Senators statements did not refer to the version of the law that was passed by Congress. Senator Pittman, objecting to one of the very first drafts of the law, said: "Why would it not protect the public entirely if we were to provide for the seizure as now provided and that the property should be held by the officer seizing, and that he should immediately report to the nearest United States district attorney having authority under the law to proceed to confiscate" 72 Cong. Rec. 5240. *385 A few minutes later Senator Walsh of Montana announced he would propose an amendment "that would meet the suggestion made by the Senator from Nevada [Mr. Pittman]" As Senator Walsh first presented his amendment it read: "Upon the appearance of any such book or other matter at any customs office the collector thereof shall immediately transmit information thereof to the district attorney of the district in which such port is situated, who shall immediately institute proceedings in the district court for the forfeiture and destruction of the same" Senator Swanson was referring to this first draft of the Walsh amendment when he made the remarks cited by the plurality that officers would be required to go to court "immediately" and that there would be a "prompt" decision on the matter. But just after Swanson's statement the Walsh amendment was changed on the Senate floor to read as follows: "Upon the seizure of such book or matter the collector shall transmit information thereof to the district attorney of the district in which is situated the office |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | attorney of the district in which is situated the office at which such seizure has taken place, who shall institute proceedings in the district court for the forfeiture, confiscation, and destruction of the book or matter seized." Thus the requirement that officers go to court "immediately" was dropped in the second draft of the Walsh amendment, and the language of this second draft was enacted into law. The comments quoted and relied upon by the plurality were made with reference to an amendment draft that was not adopted by the Senate and is not now the law. This legislative history just referred *386 to provides no support that I can see for the Court's action today. To the extent that these debates tell us anything about the Senate's attitude toward prompt judicial review of censorship decisions they show simply that the issue was put before the Senate but that it did not choose to require prompt judicial review. The plurality concedes that in previous censorship cases we have considered the validity of the statutes before us on their face, and we have refused to rewrite them. Although some of these cases did involve state statutes, in we specifically declined to attempt to save a federal obscenity mail-blocking statute by redrafting it. The Court there plainly declared: "it is for Congress, not this Court, to rewrite the statute." The plurality in its opinion now seeks to distinguish Blount because saving the mail-blocking statute by requiring prompt judicial review "would have required its complete rewriting in a manner inconsistent with the expressed intentions of some of its authors." Ante, at 369. But the only "expressed intention" cited by the plurality to support this argument is testimony by the Postmaster General that he wanted to forestall judicial review pending completion of administrative mail-blocking proceedings. Ante, at 370. That insignificant piece of legislative history would have posed no obstacle to the Court's saving the mail-blocking statute by requiring prompt judicial review after prompt administrative proceedings. Yet the Court in Blount properly refused to undertake such a legislative task, just as it did in the cases involving state censorship statutes. The plurality also purports to justify its judicial legislation by pointing to the severability provisions contained in 19 U.S. C. 1652. It is difficult to see how this distinguishes earlier cases, since the statutes struck down in and Teitel Film also contained *387 severability provisions. See Md. Ann. Code, Art. 66A, 24 Municipal Code of Chicago -7.4 (1961). The plurality is not entirely clear whether the time limits it imposes stem from the legislative history |
Justice Black | 1,971 | 21 | dissenting | United States v. Thirty-Seven Photographs | https://www.courtlistener.com/opinion/108332/united-states-v-thirty-seven-photographs/ | the time limits it imposes stem from the legislative history of the customs law or from the demands of the First Amendment. At one point we are told that 14 days and 60 days are not the "only constitutionally permissible time limits," and that if Congress imposes new rules this would present a new constitutional question. Ante, at 374. This strongly suggests the time limits stem from the Court's power to "interpret" or "construe" federal statutes, not from the Constitution. But since the Court's action today has no support in the legislative history or the wording of the statute, it appears much more likely that the time limits are derived from the First Amendment itself. If the plurality is really drawing its rules from the First Amendment, I find the process of derivation both peculiar and disturbing. The rules are not derived by considering what the First Amendment demands, but by surveying previously litigated cases and then guessing what limits would not pose an "undue hardship" on the Government and the lower federal courts. Ante, at 373. Scant attention is given to the First Amendment rights of persons entering the country. Certainly it gives little comfort to an American bringing a book home to Colorado or Alabama for personal reading to be informed without explanation that a 74-day delay at New York harbor is not "undue." Faced with such lengthy legal proceedings and the need to hire a lawyer far from home, he is likely to be coerced into giving up his First Amendment rights. Thus the whims of customs clerks or the congestion of their business will determine what Americans may read. I would simply leave this statute as the Congress wrote it and affirm the judgment of the District Court. *388 I do not understand why the plurality feels so free to abandon previous precedents protecting the cherished freedoms of press and speech. I cannot, of course, believe it is bowing to popular passions and what it perceives to be the temper of the times. As I have said before, "Our Constitution was not written in the sands to be washed away by each wave of new judges blown in by each successive political wind that brings new political administrations into temporary power." In any society there come times when the public is seized with fear and the importance of basic freedoms is easily forgotten. I hope, however, "that in calmer times, when present pressures, passions and fears subside, this or some later Court will restore the First Amendment liberties to the high preferred place where they belong |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | This original case, which is here for the fourth time, involves the construction and enforcement of the 1949 Compact[1] between New Mexico and Texas dividing the water of the Pecos River between the two Because of the irregular flow of the Pecos River, the Compact did not specify a particular amount of water to be delivered by New Mexico to Texas each year. Instead, Article III(a) of the Compact provides that "New Mexico shall not deplete by man's activities the flow of the Pecos River at the New Mexico-Texas state line below an amount which will give to Texas a quantity of water equivalent to that available to Texas under the 1947 condition." Pecos River Compact, S. Doc. No. 109, 81st Congress, 1st Sess., Art. III(a) (1949). The parties have had different views with respect to the "1947 condition" as well as other matters that could not be resolved through the Pecos River Commission, which Article V of the Compact established to carry out its provisions and which can effectively act only by mutual agreement of the two[2] After years of relatively fruitless negotiation, Texas filed this original action in June 1974. We granted leave to file the *127 complaint, and appointed a Special Master, the Honorable Jean Breitenstein, now deceased, who was then a judge of the Court of Appeals for the Tenth Circuit and a recognized expert in western water law. In 1979, the Special Master filed a report defining "the 1947 condition" and proposed a river routing study and adoption of a new inflow-outflow manual to be used in determining how much water Texas should be expected to receive over any particular period for any particular level of precipitation under the consumption conditions prevailing in New Mexico in 1947. We adopted that report in its entirety. When the case was next here, we decided against attempting to restructure the Commission to enable it to determine the method for allocating river water, preferring that the case continue in the litigation mode.[3] On June 11, 1984, we summarily approved the Special Master's report specifying the inflow-outflow methodology to be used in calculating Texas' entitlement.[4] Special Master Charles Meyers, Judge Breitenstein's successor, then held hearings on the question whether New Mexico had fulfilled its obligation under Article III(a) of the Compact. He issued a report containing his findings and conclusion that for the years 1950-1983, New Mexico should have delivered 340,100 acre-feet more water at the state line than Texas had received over those years. The Master recommended that in addition to performing its ongoing obligation under the Compact, New |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | addition to performing its ongoing obligation under the Compact, New Mexico be ordered to make up the accumulated shortfall by delivering *1 34,010 acre-feet of water each year for 10 years, with a penalty in kind, i. e., "water interest," for any bad-faith failure to deliver these additional amounts. Both sides excepted to the Master's report, and we have heard oral argument. We find no merit in and reject the exceptions filed by Texas and New Mexico with respect to the Master's calculation of the shortfall that is chargeable to New Mexico.[5] New Mexico also excepts to the proposed remedy for the short deliveries in past years. We find no merit in its submission that we may order only prospective relief, that is, requiring future performance of compact obligations without a remedy for past breaches. If that were the case, New Mexico's defaults could never be remedied. This was not our approach when the case was here in 1983. We then affirmed our authority to hear and decide Texas' claim and remanded the case to the Master for a determination of the shortfall. As we said then, a compact when approved by Congress becomes a law of the United but "[a] Compact is, after all, a contract." It remains a legal document that must be construed and applied in accordance with its terms. West ex rel. ; There is nothing in the nature of compacts generally or of this Compact in particular that counsels against rectifying a failure to perform in the past as well as ordering future performance called for by the Compact. By ratifying the Constitution, the gave this Court complete judicial power to adjudicate disputes among them, Rhode and this power includes the capacity to provide one State a remedy for the breach of another. *129 New Mexico, however, argues that it has no obligation to deliver water that it, in good faith, believed it had no obligation to refrain from using. It is true that Texas and New Mexico have been at odds on the interpretation of the Compact and that their respective views have not been without substantial foundation. Both Special Masters recognized that New Mexico acted in good faith, and as Judge Breitenstein said in his 1982 report, New Mexico's "obligation is still uncertain because the definition of the 1947 condition must be translated into water quantities to provide a numerical standard." Report of Special Master 18. The basic meaning of the 1947 condition was not defined until 1979 in the course of this litigation; and a workable methodology for translating New Mexico's obligation |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | litigation; and a workable methodology for translating New Mexico's obligation into quantities of water was not achieved until 1984, also in this litigation.[6] But good-faith differences about the scope of contractual undertakings do not relieve either party from performance. A court should provide a remedy if the parties intended to make a contract and the contract's terms provide a sufficiently certain basis for determining both that a breach has in fact occurred and the nature of the remedy called for. Restatement (Second) of Contracts 33(2), and Comment b There is often a retroactive impact when courts resolve contract disputes about the scope of a promisor's undertaking; parties must perform today or pay damages for what a court decides they promised to do yesterday and did not. In our view, New Mexico cannot escape liability for what has been adjudicated to be past failures to perform its duties under the Compact. New Mexico submits that in the event Texas is found to be entitled to a remedy for the past shortages now ascertained, it should be afforded the option of paying money damages rather than paying in kind. New Mexico's Exceptions to the Report of the Special Master 40-41. This possibility was discussed to some extent in hearings before the Master, who *130 more than once stated that damages might be best for both parties. New Mexico "stipulated" that if relief was to be awarded, damages were preferable. Tr. of Hearing Before the Special Master 94 (Apr. 16, 1985). The Special Master's report also states that both sides would possibly be better off with monetary repayment but refers to difficulties suggested by counsel and observes that the Compact contains no explicit provision for monetary relief. The Master concluded that the Compact contemplated delivery of water and that the Court could not order relief inconsistent with the Compact terms. The State of Texas supports the Master's view. The Special Master was rightfully cautious, but the lack of specific provision for a remedy in case of breach does not, in our view, mandate repayment in water and preclude damages. Nor does our opinion in necessarily foreclose such relief. There, we asserted our authority in this original action to resolve the case judicially, rather than by restructuring the administrative mechanism established by the Compact. That authority extended to devising a method by which New Mexico's obligation could be ascertained and then quantifying New Mexico's past obligation, as the Master has now done. We have now agreed with him that New Mexico has not fully performed, and we are quite sure that the Compact itself |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | performed, and we are quite sure that the Compact itself does not prevent our ordering a suitable remedy, whether in water or money. The Court has recognized the propriety of money judgments against a State in an original action, South 192 U.S. 6 ; United v. Michigan, ; and specifically in a case involving a compact, In proper original actions, the Eleventh Amendment is no barrier, for by its terms, it applies only to suits by citizens against a State. ; United v. Mississippi, 380 U.S. 1, ; South That there may be difficulties in enforcing judgments against *131 counsels caution but does not undermine our authority to enter judgments against defendant in cases over which the Court has undoubted jurisdiction, authority that is attested to by the fact that almost invariably the " against which judgments were rendered, conformably to their duty under the Constitution, voluntarily respected and gave effect to the same." In any event, that concern is insubstantial here, for if money damages were to be awarded, it would only be on the basis that if the sum awarded is not forthcoming in a timely manner, a judgment for repayment in water would be entered. As we understand the Master, he did not pursue the matter of monetary relief because he thought it foreclosed by the Compact, not because he thought it inadequate, unfair, or impractical. As we have said, the issue was raised in the hearings, but the record does not permit a confident judgment as to whether a remedy in money, rather than water, would be equitable or feasible. To order making up the shortfalls by delivering more water has all the earmarks of specific performance, an equitable remedy that requires some attention to the relative benefits and burdens that the parties may enjoy or suffer as compared with a legal remedy in damages. "[S]pecific performance is never demandable as a matter of absolute right, but as one which rests entirely in judicial discretion, to be exercised, it is true, according to the settled principles of equity, but not arbitrarily and capriciously, and always with reference to the facts of the particular case." Specific performance will not be compelled "if under all the circumstances it would be inequitable to do so." It might be said that those users who have suffered the water shortages caused by New Mexico's underdeliveries over the years, rather than the State, should be the recipients of damages, and that they would be difficult if not impossible *132 to identify. But repayment in water would also likely fail to benefit all |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | repayment in water would also likely fail to benefit all those who were deprived in the past.[7] It might also be said that awarding only a sum of money would permit New Mexico to ignore its obligation to deliver water as long as it is willing to suffer the financial penalty. But in light of the authority to order remedying shortfalls to be made up in kind, with whatever additional sanction might be thought necessary for deliberate failure to perform, that concern is not substantial in our view. We conclude that the matter of remedying past shortages should be returned to the Special Master for such further proceedings as he deems necessary and for his ensuing recommendation as to whether New Mexico should be allowed to elect a monetary remedy and, if so, to suggest the size of the payment and other terms that New Mexico must satisfy.[8]*133 Meanwhile, a decree in the form discussed below will issue with respect to New Mexico's current and future obligation to deliver water pursuant to Article III(a) of the Pecos River Compact as interpreted and applied by the judgments of this Court. The attached decree enjoins New Mexico to comply with its Article III(a) obligation under the Pecos River Compact and to determine the extent of its obligation in accordance with the formula approved by the decisions of this Court. That formula was fashioned in the course of this litigation, which was occasioned by the inability of the Pecos River Commission, on which Texas and New Mexico have the only votes, to agree on how river water should be divided. Neither this opinion nor the decree, however, displaces the authority of the Commission to perform what it has not been able to perform before, namely, an agreed upon and mutually satisfactory formula for division and utilization of Pecos River water. If history repeats itself, the Commission will not come forth with an apportionment different from that which the Court has now approved. If it does, the parties should petition the Court to terminate or appropriately modify its decree as the case may be. Even if the Commission takes no action, it may be that because of the unpredictability and peculiarities of the Pecos, the inflow-outflow methodology we have ordered implemented will not reflect the realities of the river. In that event, it would be appropriate to seek an amendment of the decree, as has been done in other original actions. *134 The decree now issued goes no further, but the Master has recommended that because applying the approved apportionment formula is not entirely |
Justice White | 1,987 | 6 | majority | Texas v. New Mexico | https://www.courtlistener.com/opinion/111906/texas-v-new-mexico/ | that because applying the approved apportionment formula is not entirely mechanical and involves a degree of judgment, an additional enforcement mechanism be supplied. We accept his recommendation and also his preferred solution: the appointment of a River Master to make the required periodic calculations. In 1983, because we thought the Compact foreclosed it, we declined to order a tie breaker in order that the Commission itself could arrive at a method to allocate water. We accordingly proceeded in the litigative mode to construe and enforce the Compact, asserting our authority to do so in unequivocal terms. We have arrived at what we deem to be a fair and equitable solution that is consistent with the Compact terms, and we are quite sure that our jurisdiction over original actions like this provides us with ample authority to appoint a master and to enforce our judgment. In exercising this power, we have taken a distinctly jaundiced view of appointing an agent or functionary to implement our decrees. emphatically expressed this reluctance. But as we recognized, that solution, or a like one, has been employed when the occasion demands. New 3 U.S. 805 ; 1 U.S. 179 This is one of those occasions when such a mechanism should be employed. The natural propensity of these two to disagree if an allocation formula leaves room to do so cannot be ignored. Absent some disinterested authority to make determinations binding on the parties, we could anticipate a series of original actions to determine the periodic division of the water flowing in the Pecos. A River Master should therefore be appointed to make the calculations provided for in this decree, annually and as promptly as possible as data are available, and to report the calculations *135 to appropriate representatives of New Mexico and of Texas. His calculations will include determinations of negative or positive departures from New Mexico's delivery obligation and such shortfalls or credits will be reflected in that State's later delivery obligations. Provision for a River Master will occasion an amendment to the decree. On remand, the Special Master is requested to recommend an amendment to the decree, specifying as he deems necessary the duties of the River Master and the consequences of his determinations. Any other suggestions for amendments should also be called to our attention. The River Master's compensation shall be borne equally by the parties. The parties, as well as the Special Master, are welcome to suggest candidates for appointment as River Master.[9] DECREE It is Ordered, Adjudged, and Decreed that the State of New Mexico, its officers, attorneys, agents, and |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | 1 The question presented by this case is whether the reception of a radio broadcast of a copyrighted musical composition can constitute copyright infringement, when the copyright owner has licensed the broadcaster to perform the composition publicly for profit. 2 * The respondent George Aiken owns and operates a small fast-service food shop in downtown Pittsburgh, Pa., known as 'George Aiken's Chicken.' Some customers carry out the food they purchase, while others remain and eat at counters or booths. Usually the 'carry-out' customers are in the restaurant for less than five minutes, and those who eat there seldom remain longer than 10 or 15 minutes. 3 A radio with outlets to four speakers in the ceiling receives broadcasts of music and other normal radio programing at the restaurant. Aiken usually turns on the radio each morning at the start of business. Music, news, entertainment, and commercial advertising broadcast by radio stations are thus heard by Aiken, his employees, and his customers during the hours that the establishment is open for business. 4 On March 11, 1972, broadcasts of two copyrighted musical compositions were received on the radio from a local station while several customers were in Aiken's establisment. Petitioner Twentieth Century Music Corp. owns the copyright on one of these songs, 'The More I See You'; petitioner Mary Bourne the copyright on the other, 'Me and My Shadow.' Petitioners are members of the American Society of Composers, Authors and Publishers (ASCAP), an association that licenses the performing rights of its members to their copyrighted works. The station that broadcast the petitioners' songs was licensed by ASCAP to broadcast them.1 Aiken, however, did not hold a license from ASCAP. 5 The petitioners sued Aiken in the United States District Court for the Western District of Pennsylvania to recover for copyright infringement. Their complaint alleged that the radio reception in Aiken's restaurant of the licensed broadcasts infringed their exclusive rights to 'perform' their copyrighted works in public for profit. The District Judge agreed, and granted statutory monetary awards for each infringement. D.C., The United States Court of Appeals for the Third Circuit reversed that judgment, holding that the petitioners' claims against the respondent were foreclosed by this Court's decisions in Fortnightly and Teleprompter We granted certiorari. II 6 The Copyright Act of 1909, as amended, et seq.,2 gives to a copyright holder a monopoly limited to specified 'exclusive' rights in his copyrighted works.3 As the Court explained in Fortnightly 7 'The Copyright Act does not give a copyright holder control over all uses of his copyrighted work. Instead, 1 of the Act |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | uses of his copyrighted work. Instead, 1 of the Act enumerates several 'rights' that are made 'exclusive' to the holder of the copyright. If a person, without authorization from the copyright holder, puts a copyrighted work to a use within the scope of one of these 'exclusive rights,' he infringes the copyright. If he puts the work to a use not enumerated in 1, he does not infringe.' —, 8 Accordingly, if an unlicensed use of a copyrighted work does not conflict with an 'exclusive' right conferred by the statute, it is no infringement of the holder's rights. No license is required by the Copyright Act, for example, to sing a copyrighted lyric in the shower.4 9 The limited scope of the copyright holder's statutory monopoly, like the limited copyright duration required by the Constitution,5 reflects a balance of competing claims upon the public interest: Creative work is to be encouraged and rewarded, but private motivation must ultimately serve the cause of promoting broad public availability of literature, music, and the other arts.6 10 The immediate effect of our copyright law is to secure a fair return for an 'author's' creative labor. But the ultimate aim is, by this incentive, to stimulate artistic creativity for the general public good. 'The sole interest of the United States and the primary object in conferring the monopoly,' this Court has said, 'lie in the general benefits derived by the public from the labors of authors.' Fox Film See 327—328, ; 241—242, When technological change has rendered its literal terms ambiguous, the Copyright Act must be construed in light of this basic purpose.7 11 The precise statutory issue in the present case is whether Aiken infringed upon the petitioners' exclusive right, under the Copyright Act of 1909, (e), '(t)o perform the copyrighted work publicly for profit.'8 We may assume that the radio reception of the musical compositions in Aiken's restaurant occurred 'publicly for profit.' See The dispositive question, therefore, is whether this radio reception constituted a 'performance' of the copyrighted works. 12 When this statutory provision was enacted in 1909, its purpose was to prohibit unauthorized performances of copyrighted musical compositions in such public places as concert halls, theaters, restaurants, and cabarets. See H.R.Rep. No. 2222, 60th Cong., 2d Sess. (1909). An orchestra or individual instrumentalist or singer who performs a copyrighted musical composition in such a public place without a license is thus clearly an infringer under the statute. The entrepreneur who sponsors such a public performance for profit is also an infringer—direct or contributory. See generally 1 & 2 M. Nimmer, Copyright |
Justice Stewart | 1,975 | 18 | majority | Twentieth Century Music Corporation v. George Aiken | https://www.courtlistener.com/opinion/109288/twentieth-century-music-corporation-v-george-aiken/ | or contributory. See generally 1 & 2 M. Nimmer, Copyright 102, 134 But it was never contemplated that the members of the audience who heard the composition would themselves also be simultaneously 'performing,' and thus also guilty of infringement. This much is common ground. 13 With the advent of commercial radio, a broadcast musical composition could be heard instantaneously by an enormous audience of distant and separate persons operating their radio receiving sets to reconvert the broadcast to audible form.9 Although Congress did not revise the statutory language, copyright law was quick to adapt to prevent the exploitation of protected works through the new electronic technology. In short, it was soon established in the federal courts that the broadcast of a copyrighted musical composition by a commercial radio station was a public performance of that composition for profit—and thus an infringement of the copyright if not licensed. In one of the earliest cases to holding, the Court of Appeals for the Sixth Circuit said: 14 'While the fact that the radio was not developed at the time the Copyright Act was enacted may raise some question as to whether it properly comes within the purview of the statute, it is not by that fact alone excluded from the statute. In other words, the statute may be applied to new situations not anticipated by Congress, if, fairly construed, such situations come within its intent and meaning. While statutes should not be stretched to apply to new situations not fairly within their scope they should not be so narrowly construed as to permit their evasion because of changing habits due to new inventions and discoveries. 15 'A performance, in our judgment, is no less public because the listeners are unable to communicate with one another, or are not assembled within an inclosure, or gathered together in some open stadium or park or other public place. Nor can a performance, in our judgment, be deemed private because each listener may enjoy it alone in the privacy of his home. Radio broadcasting is intended to, and in fact does, reach a very much larger number of the public at the moment of the rendition than any other medium of performance. The artist is consciously addressing a great, though unseen and widely scattered, audience, and is therefore participating in a public performance.' Jerome H. Remick & 411—412. 16 See also M. Witmark & (NJ); Jerome H. Remick & (SDNY); Jerome H. Remick & (SDNY); Associated Music Publishers, (CA2). Cf. Chappell & Ltd. v. Associated Radio of Australia, Ltd., (1925) Vict.L.R. 350; Messager v. British Broadcasting |
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