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Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | The question presented in this case is whether Oklahoma may require cable television operators in that State to delete all advertisements for alcoholic beverages contained in the out-of-state signals that they retransmit by cable to their subscribers. Petitioners contend that Oklahoma's requirement abridges their rights under the First and Fourteenth Amendments and is pre-empted by federal law. Because we conclude that this state regulation is pre-empted, we reverse the judgment of the Court of Appeals for the Tenth Circuit and do not reach the First Amendment question. I Since 1959, it has been lawful to sell and consume alcoholic beverages in Oklahoma. The State Constitution, however, as well as implementing statutes, prohibits the advertising of such beverages, except by means of strictly regulated onpremises signs.[1] For several years, pursuant to this authority, *695 Oklahoma has prohibited television broadcasting stations in the State from broadcasting alcoholic beverage commercials as part of their locally produced programming and has required these stations to block out all such advertising carried on national network programming. See Oklahoma Alcoholic Beverage Control[] At the same time, the Oklahoma Attorney General has ruled principally because of the practical difficulties of enforcement that the ban does not apply to alcoholic beverage advertisements appearing in newspapers, magazines, and other publications printed outside Oklahoma but sold and distributed in the State. Consequently, out-of-state publications may be delivered to Oklahoma subscribers and sold at retail outlets within the State, even though they contain advertisements for alcoholic beverages. Until 1980, Oklahoma applied a similar policy to cable television operators who were permitted to retransmit out-of-state signals containing alcoholic beverage commercials to their subscribers. In March of that year, however, the Oklahoma Attorney General issued an opinion in which he concluded that the retransmission of out-of-state alcoholic beverage commercials by cable television systems operating in the State would be considered a violation of the advertising ban. 11 Op. Okla. Atty. Gen. No. 79-334, p. 550 Respondent Crisp, Director of the Oklahoma Alcoholic Beverage Control Board, thereafter warned Oklahoma cable operators, including petitioners, that they would be criminally prosecuted if they continued to carry such out-of-state advertisements over their App. to Pet. for Cert. 41a; App. 11.[3] Petitioners, operators of several cable television systems in Oklahoma, filed this suit in March in the United States District Court for the Western District of Oklahoma, seeking declaratory and injunctive relief. They alleged that the Oklahoma policy violated the Commerce and Supremacy Clauses, the First and Fourteenth Amendments, and the Equal Protection Clause of the Fourteenth Amendment. Following an evidentiary hearing, the District Court granted petitioners |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | Amendment. Following an evidentiary hearing, the District Court granted petitioners a preliminary injunction and subsequently entered summary judgment and a permanent injunction in December In granting that relief, the District Court found that petitioners regularly carried out-of-state signals containing wine advertisements, that they were prohibited by federal law from altering or modifying these signals, and that "no feasible way" existed for petitioners to delete the wine advertisements. App. to Pet. for Cert. 40a-41a. Addressing petitioners' First Amendment claim, the District Court applied the test set forth in Central Hudson Gas & Electric and concluded that Oklahoma's advertising ban was an unconstitutional restriction on the cable operators' right to engage in protected commercial speech. App. to Pet. for Cert. 47a-50a. On appeal, the Court of Appeals for the *697 Tenth Circuit reversed, holding that, while the wine commercials at issue were protected by the First Amendment, the state ban was a valid restriction on commercial speech. Oklahoma Telecasters[4] Although the Court of Appeals noted that "Federal Communication[s] Commission regulations and federal copyright law prohibit cable operators from altering or modifying the television signals, including advertisements, they relay to subscribers," the court did not discuss the question whether application of the Oklahoma law to these cable operators was pre-empted by the federal regulations. While petitioners' petition for certiorari was pending, a brief was filed for the Federal Communications Commission as amicus curiae in which it was contended that the Oklahoma ban on the retransmission of out-of-state signals by cable operators significantly interfered with the existing federal regulatory framework established to promote cable broadcasting. In granting certiorari, therefore, we ordered the parties, in addition to the questions presented by the petitioners concerning commercial speech, to brief and argue the question whether the State's regulation of liquor advertising, as applied to out-of-state broadcast signals, is valid in light of existing federal regulation of cable broadcasting. Although we do not ordinarily consider questions not specifically passed upon by the lower court, see this rule is not inflexible, particularly in cases coming, as this one does, from the federal courts. See, e. g., ; Blonder-Tongue Laboratories, Here, the conflict between Oklahoma and federal law was plainly raised in petitioners' complaint, it was acknowledged by both the District Court and the Court of Appeals, the District Court made findings on all factual issues necessary to resolve this question, and the parties have briefed and argued the question pursuant to our order. Under these circumstances, we see no reason to refrain from addressing the question whether the Oklahoma ban as applied here so conflicts with the federal regulatory |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | ban as applied here so conflicts with the federal regulatory framework that it is pre-empted. II Petitioners and the contend that the federal regulatory scheme for cable television systems administered by the Commission is intended to pre-empt any state regulation of the signals carried by cable system operators. Respondent apparently concedes that enforcement of the Oklahoma statute in this case conflicts with federal law, but argues that because the State's advertising ban was adopted pursuant to the broad powers to regulate the transportation and importation of intoxicating liquor reserved to the States by the Twenty-first Amendment, the statute should prevail notwithstanding the conflict with federal law.[5] As in California Retail Liquor Dealers where we held that a California wine-pricing program violated the Sherman Act notwithstanding the State's reliance upon the Twenty-first Amendment in establishing that system, we turn first before assessing the impact of the Twenty-first Amendment to consider whether the Oklahoma statute does in fact conflict with federal law. See Our consideration of that question is guided by familiar and well-established principles. Under the Supremacy Clause, U. S. Const., Art. VI, cl. the enforcement of a state regulation *699 may be pre-empted by federal law in several circumstances: first, when Congress, in enacting a federal statute, has expressed a clear intent to pre-empt state law, ; second, when it is clear, despite the absence of explicit pre-emptive language, that Congress has intended, by legislating comprehensively, to occupy an entire field of regulation and has thereby "left no room for the States to supplement" federal law, ; and, finally, when compliance with both state and federal law is impossible, Florida Lime & Avocado Growers, or when the state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." See also Michigan Canners & Freezers Assn. v. Agricultural Marketing and Bargaining Board, ante, at 469. And, as we made clear in Fidelity Federal Savings & Loan : "Federal regulations have no less pre-emptive effect than federal statutes. Where Congress has directed an administrator to exercise his discretion, his judgments are subject to judicial review only to determine whether he has exceeded his statutory authority or acted arbitrarily. When the administrator promulgates regulations intended to pre-empt state law, the court's inquiry is similarly limited: `If [h]is choice represents a reasonable accommodation of conflicting policies that were committed to the agency's care by the statute, we should not disturb it unless it appears from the statute or its legislative history that the accommodation is not one that Congress would have sanctioned.' " quoting United 3 |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | one that Congress would have sanctioned.' " quoting United 3 U.S. 374, The power delegated to the plainly comprises authority to regulate the signals carried by cable television In United the Court found that the Commission had been given "broad responsibilities" to regulate all aspects of interstate communication by wire or radio by virtue of (a) of the Communications Act of 1934, 47 U.S. C. 15(a), and that this comprehensive authority included power to regulate cable communications -. We have since explained that the Commission's authority extends to all regulatory actions "necessary to ensure the achievement of the Commission's statutory responsibilities." Accord, United 665-6 ; at 5 Therefore, if the has resolved to pre-empt an area of cable television regulation and if this determination "represents a reasonable accommodation of conflicting policies" that are within the agency's domain, United at we must conclude that all conflicting state regulations have been precluded.[6] A In contrast to commercial television broadcasters, which transmit video signals to their audience free of charge and derive their income principally from advertising revenues, cable television systems generally operate on the basis of a wholly different entrepreneurial principle. In return for service fees paid by subscribers, cable operators provide their customers with a variety of broadcast and nonbroadcast *701 signals obtained from several sources. Typically, these sources include over-the-air broadcast signals picked up by a master antenna from local and nearby television broadcasting stations, broadcast signals from distant television stations imported by means of communications satellites, and non-broadcast signals that are not originated by television broadcasting stations, but are instead transmitted specifically for cable systems by satellite or microwave relay. Over the past 0 years, pursuant to its delegated authority under the Communications Act, the has unambiguously expressed its intent to pre-empt any state or local regulation of this entire array of signals carried by cable television The Commission began its regulation of cable communication in the 1960's. At that time, it was chiefly concerned that unlimited importation of distant broadcast signals into the service areas of local television broadcasting stations might, through competition, "destroy or seriously degrade the service offered by a television broadcaster," and thereby cause a significant reduction in service to households not served by cable Rules re Microwave-Served CATV, 38 F. C. C. 683, 700 (1965). In order to contain this potential effect, the Commission promulgated rules requiring cable systems[7] to carry the signals of all local stations in their areas, to avoid duplication of the programs of local television stations carried on the system during the same day that such programs were broadcast by |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | during the same day that such programs were broadcast by the local stations, and to limit their importation of distant broadcast signals into the *70 service areas of the local television broadcasting stations. CATV, F. C. C. d 75, 745-746, 781-78 (1966). It was with respect to that initial assertion of jurisdiction over cable signal carriage that we confirmed the 's general authority under the Communications Act to regulate cable television United The Commission further refined and modified these rules governing the carriage of broadcast signals by cable systems in 197. Cable Television Report and Order, 36 F. C. C. d 143, on reconsideration, 36 F. C. C. d 36 aff'd sub nom. American Civil Liberties In marking the boundaries of its jurisdiction, the determined that, in contrast to its regulatory scheme for television broadcasting stations, it would not adopt a system of direct federal licensing for cable Instead, the Commission announced a program of "deliberately structured dualism" in which state and local authorities were given responsibility for granting franchises to cable operators within their communities and for overseeing such local incidents of cable operations as delineating franchise areas, regulating the construction of cable facilities, and maintaining rights of way. Cable Television Report and Order, 36 F. C. C. d, at 07. At the same time, the Commission retained exclusive jurisdiction over all operational aspects of cable communication, including signal carriage and technical standards. See As the explained in a subsequent order clarifying the scope of its 197 cable television rules: "The fact that this Commission has pre-empted jurisdiction of any and all signal carriage regulation is unquestioned. Nonetheless, occasionally we receive applications for certificates of compliance which enclose franchises that attempt to delineate the signals to be carried by the franchisee cable operator. Franchising authorities do not have any jurisdiction or authority *703 relating to signal carriage. While the franchisor might want to include a provision requiring the operator to carry all signals allowable under our rules, that is as far as the franchisor can or should go." Cable Television, 46 F. C. C. d 175, (emphasis added).[8] The Commission has also made clear that its exclusive jurisdiction extends to cable systems' carriage of specialized, nonbroadcast signals a service commonly described as "pay cable." See[9] *704 Although the has recently relaxed its regulation of importation of distant broadcast signals to permit greater access to this source of programming for cable subscribers, it has by no means forsaken its regulatory power in this area. See CATV Syndicated Program Exclusivity Rules, 79 F. C. C. d 663 aff'd sub nom. |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | Rules, 79 F. C. C. d 663 aff'd sub nom. Malrite T. V. of New cert. denied sub nom. National Football Indeed, the Commission's decision to allow unfettered importation of distant broadcast signals rested on its conclusion that "the benefits to existing and potential cable households from permitting the carriage of additional signals are substantial. Millions of households may be afforded not only increased viewing options, but also access to a diversity of services from cable television that presently is unavailable in their communities." 79 F. C. C. d, at 746. See also Besen & Crandall, The Deregulation of Cable Television, 44 Law & Contemp. Prob. 77 As the Court of Appeals for the Second Circuit observed in upholding this decision, "[by] shifting its policy toward a more favorable regulatory climate for the cable industry, the has chosen a balance of television services that should increase program diversity" Malrite T. V. of New Clearly, the full accomplishment of such objectives would be jeopardized if state and local authorities were now permitted to restrict substantially the ability of cable operators to provide these diverse services to their subscribers. Accordingly, to the extent it has been invoked to control the distant broadcast and nonbroadcast signals imported by cable operators, the Oklahoma advertising ban plainly reaches beyond the regulatory authority reserved to local authorities by the Commission's rules, and trespasses into the exclusive domain of the To be sure, Oklahoma may, under current Commission rules, regulate such local aspects of cable systems as franchisee selection and construction oversight, see, e. g., Duplicative and Excessive Over *705 Regulation CATV, 54 F. C. C. d 855, 863 but, by requiring cable television operators to delete commercial advertising contained in signals carried pursuant to federal authority, the State has clearly exceeded that limited jurisdiction and interfered with a regulatory area that the Commission has explicitly pre-empted.[10] B Quite apart from this generalized federal pre-emption of state regulation of cable signal carriage, the Oklahoma advertising ban plainly conflicts with specific federal regulations. These conflicts arise in three principal ways. First, the 's so-called "must-carry" rules require certain cable television operators to transmit the broadcast signals of any local television broadcasting station that is located within a specified 35-mile zone of the cable operator or that is "significantly viewed" in the community served by the operator. 47 CFR 76.59(a)(1) and (6) These "must-carry" rules require many Oklahoma cable operators, including petitioners, to carry signals from broadcast stations located in nearby States such as Missouri and Kansas. See App. 35. In addition, under Commission regulations, the local broadcast |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | App. 35. In addition, under Commission regulations, the local broadcast signals that cable operators are required to carry must be carried "in full, without deletion or alteration of any portion." 47 CFR 76.55(b) Because, in the Commission's view, enforcement of these nondeletion rules serves * to "prevent a loss of revenues to local broadcasters sufficient to result in reduced service to the public," they have been applied to commercial advertisements as well as to regular programming. In re Pugh, 68 F. C. C. d 997, 999 ; WAPA-TV Broadcasting Corp., 59 F. C. C. d 63, 7 ; CATV, 15 F. C. C. d 417, 444 ; CATV, F. C. C. d, at 753, 756. Consequently, those Oklahoma cable operators required by federal law to carry out-of-state broadcast signals in full, including any wine commercials, are subject to criminal prosecution under Oklahoma law as a result of their compliance with federal regulations. Second, current rulings permit, and indeed encourage, cable television operators to import out-of-state television broadcast signals and retransmit those signals to their subscribers. See CATV Syndicated Program Exclusivity Rules, 79 F. C. C. d, at 745-746. For Oklahoma cable operators, this source of cable programming includes signals from television broadcasting stations located in Kansas, Missouri, and Texas, as well as the signals from so-called "superstations" in Atlanta and Chicago. App. 1, 35-36. It is undisputed that many of these distant broadcast signals retransmitted by petitioners contain wine commercials that are lawful under federal law and in the States where the programming originates. Nor is it disputed that cable operators who carry such signals are barred by Commission regulations from deleting or altering any portion of those signals, including commercial advertising. 47 CFR 76.55(b) Under Oklahoma's advertising ban, however, these cable operators must either delete the wine commercials or face criminal prosecution. Since the Oklahoma law, by requiring deletion of a portion of these out-of-state signals, compels conduct that federal law forbids, the state ban clearly "stands as an obstacle to the accomplishment and execution of the full purposes and objectives" of the federal regulatory scheme. 31 U. S., at ; Farmers 360 U.S. *707 Finally, enforcement of the state advertising ban against Oklahoma cable operators will affect a third source of cable programming over which the Commission has asserted exclusive jurisdiction. Aside from relaying local television broadcasting in accordance with the "must-carry" rules, and distant broadcast signals, cable operators also transmit specialized nonbroadcast cable services to their subscribers. This source of programming, often referred to as "pay cable," includes such advertiser-supported national cable programming as the Cable News |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | includes such advertiser-supported national cable programming as the Cable News Network (CNN) and the Entertainment and Sports Programming Network (ESPN). Although the Commission's "must-carry" and nondeletion rules do not apply to such nonbroadcast cable services, the as noted earlier, see has explicitly stated that state regulation of these services is completely precluded by federal law.[11] Petitioners generally receive such signals by antenna, microwave receiver, or satellite dish and restransmit them by wire to their subscribers. But, unlike local television broadcasting stations that transmit only one signal and receive notification from their networks concerning advertisements, cable operators simultaneously receive and channel to their subscribers a variety of signals from many sources without any advance notice about the timing or content of commercial advertisements carried on those signals. Cf. n. As the record of this case indicates, developing the capacity to monitor each signal and delete every wine commercial before it is retransmitted would be a prohibitively burdensome task. App. 5-6, 36-38. Indeed, the District Court specifically found that, in view of these considerations, "[t]here exists no feasible way for [cable operator] to block out the *708 [wine] advertisements." App. to Pet. for Cert. 41a.[1] Accordingly, if the state advertising ban is enforced, Oklahoma cable operators will be compelled either to abandon altogether their carriage of both distant broadcast signals and specialized nonbroadcast cable services or run the risk of criminal prosecution. As a consequence, the public may well be deprived of the wide variety of programming options that cable systems make possible. Such a result is wholly at odds with the regulatory goals contemplated by the Consistent with its congressionally defined charter to "make available, so far as possible, to all the people of the United States a rapid, efficient, Nation-wide and world-wide wire and radio communication service.," 47 U.S. C. 151, the has sought to ensure that "the benefits of cable communications become a reality on a nationwide basis." Duplicative and Excessive Over-Regulation CATV, 54 F. C. C. d, at 865. With that end in mind, the Commission has determined that only federal preemption of state and local regulation can assure cable systems the breathing space necessary to expand vigorously and provide a diverse range of program offerings to potential cable subscribers in all parts of the country. While that judgment may not enjoy universal support, it plainly represents a reasonable accommodation of the competing policies committed to the 's care, and we see no reason to disturb the agency's judgment. And, as we have repeatedly explained, when federal officials determine, as the has here, that restrictive regulation of |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | officials determine, as the has here, that restrictive regulation of a particular area is not in the public interest, "States are not permitted to use their police power to enact such a regulation." Ray v. Atlantic Richfield ; Bethlehem Steel v. New York State Labor Relations Board, 330 U.S. 7, Cf. Fidelity Federal Savings & Loan C Although the has taken the lead in formulating communications policy with respect to cable television, Congress has considered the impact of this new technology, and has, through the Copyright Revision Act of 1976, 90 Stat. 541, 17 U.S. C. 101 et seq., acted to facilitate the cable industry's ability to distribute broadcast programming on a national basis. Prior to the 1976 revision, the Court had determined that the retransmission of distant broadcast signals by cable systems did not subject cable operators to copyright infringement liability because such retransmissions were not "performances" within the meaning of the 1909 Copyright Act. Teleprompter ; Fortnightly 39 U.S. 390 In revising the Copyright Act, however, Congress concluded that cable operators should be required to pay royalties to the owners of copyrighted programs retransmitted by their systems on pain of liability for copyright infringement. At the same time, Congress recognized that "it would be impractical and unduly burdensome to require every cable system to negotiate [appropriate royalty payments] with every copyright owner" in order to secure consent for such retransmissions. Copyright Law Revision, H. R. Rep. No. 94-1476, p. 89[13] Section *710 111 of the 1976 Act codifies the solution devised by Congress. It establishes a program of compulsory copyright licensing that permits cable systems to retransmit distant broadcast signals without securing permission from the copy-right owner and, in turn, requires each system to pay royalty fees to a central royalty fund based on a percentage of its gross revenues.[14] To take advantage of this compulsory licensing scheme, a cable operator must satisfy certain reporting requirements, 111(d)(1) and ()(A), pay specified royalty fees to a central fund administered by the Register of Copyrights, 111(d)()(B)-(D) and (3), and refrain from deleting or altering commercial advertising on the broadcast signals it transmits, 111(c)(3). Failure to comply with these conditions results in forfeiture of the protections of the compulsory licensing system. In devising this system, Congress has clearly sought to further the important public purposes framed in the Copy-right Clause, U. S. Const., Art. I, 8, cl. 8, of rewarding the creators of copyrighted works and of "promoting broad public availability of literature, music, and the other arts." Twentieth Century Music 4 U.S. 151, ; Sony 48-49 Compulsory licensing not only |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | 4 U.S. 151, ; Sony 48-49 Compulsory licensing not only protects the commercial value of copyrighted *711 works but also enhances the ability of cable systems to retransmit such programs carried on distant broadcast signals, thereby allowing the public to benefit by the wider dissemination of works carried on television broadcast signals.[15] By requiring cable operators to delete commercial advertisements for wine, however, the Oklahoma ban forces these operators to lose the protections of compulsory licensing. Of course, it is possible for cable systems to comply with the Oklahoma ban by simply abandoning their importation of the distant broadcast signals covered by the Copyright Act. But such a loss of viewing options would plainly thwart the policy identified by both Congress and the of facilitating and encouraging the importation of distant broadcast signals. III Respondent contends that even if the Oklahoma advertising ban is invalid under normal pre-emption analysis, the fact that the ban was adopted pursuant to the Twenty-first *71 Amendment rescues the statute from pre-emption. A similar claim was advanced in California Retail Liquor Dealers In that case, after finding that a California wine-pricing program violated the Sherman Act, we considered whether of the Twenty-first Amendment, which reserves to the States certain power to regulate traffic in liquor, "permits California to countermand the congressional policy adopted under the commerce power in favor of competition." Here, we must likewise consider whether permits Oklahoma to override the federal policy, as expressed in rulings and regulations, in favor of promoting the widespread development of cable communication. The States enjoy broad power under of the Twenty-first Amendment to regulate the importation and use of intoxicating liquor within their borders. Ziffrin, 308 U.S. 13 At the same time, our prior cases have made clear that the Amendment does not license the States to ignore their obligations under other provisions of the Constitution. See, e. g., 1, n. 5 ; ; ; Department of Revenue v. James B. Beam Distilling Indeed, "[t]his Court's decisions have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause." 49 U.S. 190, 06 Thus, as the Court explained in 377 U.S. 34 reserves to the States power to impose burdens on interstate commerce in intoxicating liquor that, absent the Amendment, would clearly be invalid under the Commerce Clause. ; State Board of Equalization v. Young's Market 99 U.S. 59, 6-63 We have cautioned, however, that "[t]o draw a conclusion that the Twenty-first Amendment has somehow operated to `repeal' the Commerce *713 Clause wherever regulation of intoxicating liquors is concerned would |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | *713 Clause wherever regulation of intoxicating liquors is concerned would be an absurd oversimplification." at 331-33. Notwithstanding the Amendment's broad grant of power to the States, therefore, the Federal Government plainly retains authority under the Commerce Clause to regulate even interstate commerce in liquor. See also California Retail Liquor Dealers ; 37 U.S. 416, 45, n. 15 ; United States v. Frankfort Distilleries, 34 U.S. 93 In rejecting the claim that the Twenty-first Amendment ousted the Federal Government of all jurisdiction over interstate traffic in liquor, we have held that when a State has not attempted directly to regulate the sale or use of liquor within its borders the core power a conflicting exercise of federal authority may prevail. In for example, the Court found that in-state sales of intoxicating liquor intended to be used only in foreign countries could be made under the supervision of the Federal Bureau of Customs, despite contrary state law, because the state regulation was not aimed at preventing unlawful use of alcoholic beverages within the State, but rather was designed "totally to prevent transactions carried on under the aegis of a law passed by Congress in the exercise of its explicit power under the Constitution to regulate commerce with foreign nations." -334. Similarly, in Midcal we found that "the Twenty-first Amendment provides no shelter for the violation of the Sherman Act caused by the State's wine pricing program," because the State's interest in promoting temperance through the program was not substantial and was therefore clearly outweighed by the important federal objectives of the Sherman Act. -114. Of course, our decisions in and Midcal were concerned only with conflicting state and federal efforts to regulate transactions involving liquor. In this case, by contrast, we must resolve a clash between an express *714 federal decision to pre-empt all state regulation of cable signal carriage and a state effort to apply its ban on alcoholic beverage advertisements to wine commercials contained in out-of-state signals carried by cable Nonetheless, the central question presented in those cases is essentially the same as the one before us here: whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies. As in and Midcal resolution of this question requires a "pragmatic effort to harmonize state and federal powers" within the context of the issues and interests at stake in each There can be little doubt that the comprehensive regulations developed over the past 0 years |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | that the comprehensive regulations developed over the past 0 years by the to govern signal carriage by cable television systems reflect an important and substantial federal interest. In crafting this regulatory scheme, the Commission has attempted to strike a balance between protecting noncable households from loss of regular television broadcasting service due to competition from cable systems and ensuring that the substantial benefits provided by cable of increased and diversified programming are secured for the maximum number of viewers. See, e. g., CATV Syndicated Program Exclusivity Rules, 79 F. C. C. d, at 744-746. To accomplish this regulatory goal, the Commission has deemed it necessary to assert exclusive jurisdiction over signal carriage by cable In the Commission's view, uniform national communications policy with respect to cable systems would be undermined if state and local governments were permitted to regulate in piecemeal fashion the signals carried by cable operators pursuant to federal authority. See Community Cable TV, 83-, pp. 1-13 ; Cable Television, 46 F. C. C. d, at On the other hand, application of Oklahoma's advertising ban to out-of-state signals carried by cable operators in that *715 State is designed principally to further the State's interest in discouraging consumption of intoxicating liquor. See 11 Op. Okla. Atty. Gen. No. 79-334, p. 550 Although the District Court found that "[c]onsumption of alcoholic beverages in Oklahoma has increased substantially in the last 0 years despite the ban on advertising of such beverages," App. to Pet. for Cert. 4a, we may nevertheless accept Oklahoma's judgment that restrictions on liquor advertising represent at least a reasonable, albeit limited, means of furthering the goal of promoting temperance in the State. The modest nature of Oklahoma's interests may be further illustrated by noting that Oklahoma has chosen not to press its campaign against alcoholic beverage advertising on all fronts. For example, the State permits both print and broadcast commercials for beer, as well as advertisements for all alcoholic beverages contained in newspapers, magazines, and other publications printed outside of the State. The ban at issue in this case is directed only at wine commercials that occasionally appear on out-of-state signals carried by cable operators. By their own terms, therefore, the State's regulatory aims in this area are narrow. Although a state regulatory scheme obviously need not amount to a comprehensive attack on the problems of alcohol consumption in order to constitute a valid exercise of state power under the Twenty-first Amendment, the selective approach Oklahoma has taken toward liquor advertising suggests limits on the substantiality of the interests it asserts here. In contrast to state regulations |
Justice Brennan | 1,984 | 13 | majority | Capital Cities Cable, Inc. v. Crisp | https://www.courtlistener.com/opinion/111215/capital-cities-cable-inc-v-crisp/ | the interests it asserts here. In contrast to state regulations governing the conditions under which liquor may be imported or sold within the State, therefore, the application of Oklahoma's advertising ban to the importation of distant signals by cable television operators engages only indirectly the central power reserved by of the Twenty-first Amendment that of exercising "control over whether to permit importation or sale of liquor and how to structure the liquor distribution system." Midcal When this limited interest is measured against the significant interference with the federal objective of ensuring widespread *716 availability of diverse cable services throughout the United States an objective that will unquestionably be frustrated by strict enforcement of the Oklahoma statute it is clear that the State's interest is not of the same stature as the goals identified in the 's rulings and regulations. As in Midcal therefore, we hold that when, as here, a state regulation squarely conflicts with the accomplishment and execution of the full purposes of federal law, and the State's central power under the Twenty-first Amendment of regulating the times, places, and manner under which liquor may be imported and sold is not directly implicated, the balance between state and federal power tips decisively in favor of the federal law, and enforcement of the state statute is barred by the Supremacy Clause.[16] IV We conclude that the application of Oklahoma's alcoholic beverage advertising ban to out-of-state signals carried by cable operators in that State is pre-empted by federal law and that the Twenty-first Amendment does not save the regulation from pre-emption. The judgment of the Court of Appeals is Reversed. |
Justice Souter | 2,000 | 20 | majority | Raleigh v. Illinois Dept. of Revenue | https://www.courtlistener.com/opinion/1087664/raleigh-v-illinois-dept-of-revenue/ | The question raised here is who bears the burden of proof on a tax claim in bankruptcy court when the substantive law creating the tax obligation puts the burden on the taxpayer (in this case, the trustee in bankruptcy). We hold that bankruptcy does not alter the burden imposed by the substantive law. I The issue of state tax liability in question had its genesis in the purchase of an airplane by Chandler Enterprises, Inc., a now-defunct Illinois company. William J. Stoecker, for whom petitioner Raleigh is the trustee in bankruptcy, was president of Chandler in when Chandler entered into a lease-purchase agreement for the plane, moved it to Illinois, *18 and ultimately took title under the agreement. See In re Stoecker, According to respondent State Department of Revenue, the transaction was subject to the Illinois use tax, a sales-tax substitute imposed on Illinois residents such as Chandler who buy out of State. If the seller does not remit the tax, the buyer must, and, when buying a plane, must file a return and pay the tax within 30 days after the aircraft enters the State. Ill. Comp. Stat., ch. 35, 105/10 Chandler failed to do this. When the State discovers a failure to file and pay taxes, its Department of Revenue (the respondent here) determines the amount of tax due and issues a Notice of Tax Liability to the taxpayer. 105/12, 120/4. Unless the taxpayer protests within the time provided, the assessment becomes final, though still subject to judicial review in the Illinois circuit court. 120/4, 12. Illinois law also provides that any corporate officer "who has the control, supervision or responsibility of filing returns and making payment of the amount of any tax who wilfully fails to file the return or make the payment shall be personally liable for a penalty equal to the total amount of tax unpaid by the [corporation]." 735/3-7. The department determines the amount, and its determination is "prima facie evidence of a penalty due," ib though a Notice of Penalty Liability issued under this provision is open to challenge much like the antecedent Notice of Tax Liability. By the time the department discovered the unpaid tax in this case, Chandler was defunct and Stoecker was in bankruptcy. The department issued both a Notice of Tax Liability against Chandler and a Notice of Penalty Liability against Stoecker. See The record evidence about Chandler's operations is minimal. A person named Pluhar acted as its financial officer. *19 There is no evidence directly addressing Stoecker's role in the filing of Chandler's tax returns or the payment |
Justice Souter | 2,000 | 20 | majority | Raleigh v. Illinois Dept. of Revenue | https://www.courtlistener.com/opinion/1087664/raleigh-v-illinois-dept-of-revenue/ | in the filing of Chandler's tax returns or the payment of any taxes, and so no affirmative proof that he either was responsible for or willfully evaded the payment of the use tax, see This evidentiary dearth is not necessarily dispositive, however, due to the provision of Illinois law shifting the burden of proof, on both production and persuasion, to the responsible officer once a Notice of Penalty Liability is issued, see The Court of Appeals for the Seventh Circuit accordingly ruled for the Department of 179 F. 3d, The Court of Appeals thought the trustee may have satisfied his burden of production by identifying Pluhar as the financial officer but, in any event, had not satisfied his burden of persuasion. Because Stoecker was the president and, as far as the record showed, he and Pluhar were the only officers, each would have been involved in Chandler's tax affairs. While it is true that failure to pay must be willful (at least grossly negligent) to justify the penalty under Illinois law, see and true that Chandler had an opinion letter from a reputable lawyer that no tax was due because of certain details of the lease-purchase agreement, there was no evidence that Stoecker ever saw the letter or relied on it, and nothing else bearing on the issue of willfulness. See 179 F. 3d, -1. Obviously, the burden of proof was critical to the resolution of the case, which the Department of Revenue won because the Court of Appeals held that the burden remained on the trustee, just as it would have been on the taxpayer had the proceedings taken place outside of bankruptcy. The Courts of Appeals are divided on this point: the Seventh Circuit joined the Third and Fourth Circuits in leaving the burden on the taxpayer. See Resyn ; In re Landbank Equity Corp., The Courts of Appeals for the Fifth, Eighth, Ninth, and Tenth Circuits have come out the other way. See In re Placid Oil Co., ; In re Brown, ; In re Macfarlane, cert. denied, ; In re Fullmer, We granted certiorari to resolve the issue, and now affirm. II Creditors' entitlements in bankruptcy arise in the first instance from the underlying substantive law creating the debtor's obligation, subject to any qualifying or contrary provisions of the Bankruptcy Code. See ; Vanston Bondholders Protective The "basic federal rule" in bankruptcy is that state law governs the substance of claims, Congress having "generally left the determination of property rights in the assets of a bankrupt's estate to state law," "Unless some federal interest requires a |
Justice Souter | 2,000 | 20 | majority | Raleigh v. Illinois Dept. of Revenue | https://www.courtlistener.com/opinion/1087664/raleigh-v-illinois-dept-of-revenue/ | estate to state law," "Unless some federal interest requires a different result, there is no reason why [the state] interests should be analyzed differently simply because an interested party is involved in a bankruptcy proceeding." at In this case, the bankruptcy estate's obligation to the Illinois Department of Revenue is established by that State's tax code, which puts the burden of proof on the responsible officer of the taxpayer, see The scope of the obligation is the issue here. Do the State's right and the taxpayer's obligation include the burden of proof? Our cases point to an affirmative answer. Given its importance to the outcome of cases, we have long held the burden of proof to be a "substantive" aspect of a *21 claim. See, e. g., Director, Office of Workers' Compensation ; ; That is, the burden of proof is an essential element of the claim itself; one who asserts a claim is entitled to the burden of proof that normally comes with it. Tax law is no candidate for exception from this general rule, for the very fact that the burden of proof has often been placed on the taxpayer indicates how critical the burden rule is, and reflects several compelling rationales: the vital interest of the government in acquiring its lifeblood, revenue, see ; the taxpayer's readier access to the relevant information, see United (CA1), cert. denied, ; and the importance of encouraging voluntary compliance by giving taxpayers incentives to self-report and to keep adequate records in case of dispute, see United These are powerful justifications not to be disregarded lightly.[1] Congress of course may do what it likes with entitlements in bankruptcy, but there is no sign that Congress meant to alter the burdens of production and persuasion on tax claims. The Code in several places, to be sure, establishes particular burdens of proof. See, e. g., 11 U.S. C. 362(g) (relief from automatic stay), 363(o ) (adequate protection for creditors), *22 364(d)(2) (same), 547(g) (avoid ability of preferential transfer), 1129(d) (confirmation of plan for purpose of avoiding taxes). But the Code makes no provision for altering the burden on a tax claim, and its silence says that no change was intended.[2] III The trustee looks for an advantage in the very silence of the Code, however, first by arguing that actual, historical practice favored trustees under the Bankruptcy Act of 1898 and various pre-Code revisions up to the current Code's enactment in 1978. He says that courts operating in the days of the Bankruptcy Act, which was silent on the burden to prove the validity |
Justice Souter | 2,000 | 20 | majority | Raleigh v. Illinois Dept. of Revenue | https://www.courtlistener.com/opinion/1087664/raleigh-v-illinois-dept-of-revenue/ | which was silent on the burden to prove the validity of claims, almost uniformly placed the burden on those seeking a share of the bankruptcy estate. Because the Code generally incorporates pre-Code practice in the absence of explicit revision, the argument goes, and because the Code is silent here, we should follow the preCode practice even when this would reverse the burden imposed outside bankruptcy. This tradition makes sense, petitioner urges, because in bankruptcy tax authorities are no longer opposed to the original taxpayer, and the choice is no longer merely whether the tax claim is paid but whether other innocent creditors must share the bankruptcy estate with the taxing government. We, however, find history less availing to the trustee than he says. While some pre-Code cases put the burden of proof *23 on taxing authorities,[3] others put it on the trustee,[4] and still others cannot be fathomed.[5] This state of things is the end of the argument, for without the weight of solid authority on the trustee's side, we cannot treat the Code as predicated on an alteration of the substantive law of obligations once a taxpayer enters bankruptcy. Cf. United Sav. Assn. of The trustee makes a different appeal to Code silence in pointing to language in Vanston Bondholders Protective suggesting that "allowance" of claims is a federal matter. But "allowance" referred to the ordering of valid claims when that case was decided, see at 2-3, and Vanston, in fact, concerned *24 distribution of assets, not the validity of claims in the first instance, see In re Highland Superstores, Inc., ; (CA5 19). The burden of proof rule in question here bears only on validity, and as to that the Vanston opinion specifically states that "[w]hat claims of creditors are valid and subsisting obligations is to be determined by reference to state law." 329 U. S., at 1 Nor is the trustee helped by City of New which mentions "prov[ing]" government claims in the same manner as other debts; the reference was to the procedure by which proof of claim was submitted and not to the validity of the claim. While it is true that federal law has generally evolved to impose the same procedural requirements for claim submission on tax authorities as on other creditors, ib nothing in that evolution has touched the underlying laws on the elements sufficient to prove a valid state claim. Finally, the trustee argues that the Code-mandated priority enjoyed by taxing authorities over other creditors, see 11 U.S. C. 507(a), 503(b)(1)(B), requires a compensating equality of treatment when it comes to demonstrating |
Justice Souter | 2,000 | 20 | majority | Raleigh v. Illinois Dept. of Revenue | https://www.courtlistener.com/opinion/1087664/raleigh-v-illinois-dept-of-revenue/ | a compensating equality of treatment when it comes to demonstrating validity of claims. But we think his argument distorts the legitimate powers of a bankruptcy court and begs the question about the relevant principle of equality. Bankruptcy courts do indeed have some equitable powers to adjust rights between creditors. See, e. g., 510(c) (equitable subordination). That is, within the limits of the Code, courts may reorder distributions from the bankruptcy estate, in whole or in part, for the sake of treating legitimate claimants to the estate equitably. But the scope of a bankruptcy court's equitable power must be understood in the light of the principle of bankruptcy law discussed already, that the validity of a claim is generally a function of underlying substantive law. Bankruptcy courts are not authorized in the name of equity to make wholesale substitution *25 of underlying law controlling the validity of creditors' entitlements, but are limited to what the Bankruptcy Code itself provides. See United ; United Moreover, even on the assumption that a bankruptcy court were to have a free hand, the case for a rule placing the burden of proof uniformly on all bankruptcy creditors is not self-evidently justified by the trustee's invocation of equality. Certainly the trustee has not shown that equal treatment of all bankruptcy creditors in proving debts is more compelling than equal treatment of comparable creditors in and out of bankruptcy. The latter sort of equality can be provided by a bankruptcy court as a matter of course, whereas the trustee's notion of equality could not be uniformly observed consistently with other bankruptcy principles. Consider the case when tax litigation is pending at the time the taxpayer files for bankruptcy. The tax litigation will be subject to an automatic stay, but the stay can be lifted by the bankruptcy court for cause, see 11 U.S. C. 362(d)(1), which could well include, among other things, a lack of good faith in attempting to avoid tax proceedings, or in attempting to favor private creditors who might escape the disadvantage of a priority tax claim under the trustee's proposed rule. See generally 3 Collier on Bankruptcy ¶ 362.07[6][a], pp. 362-101 to 362-102 (noting that bad faith commencement of case justifies lifting stay); Internal Revenue 6 B.R. 611, If the bankruptcy court exercises its discretion to lift the stay, the burden of proof will be on the taxpayer in the pre-existing tax litigation, and a tax liability determination will be final. See 11 U.S. C. 505(a)(2)(A). We see no reason that Congress would have intended the burden of proof (and consequent vindication of |
Justice Brennan | 1,971 | 13 | majority | NLRB v. Natural Gas Util. Dist. of Hawkins Cty. | https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/ | Upon the petition of Plumbers and Steamfitters Local 102, the National Labor Relations Board ordered that a representation election be held among the pipefitters employed by respondent, Natural Gas Utility District of Hawkins County, Tennessee, 167 N. L. R. B. 691 (1967). In the representation proceeding, respondent objected to the Board's jurisdiction on the sole ground that as a "political subdivision" of Tennessee, it was not an "employer" subject to Board jurisdiction under 2 (2) of the National Labor Relations Act, as amended by the Labor Management Relations Act, 1947, 29 U.S. C. 152 (2).[1] When the Union won the election *602 and was certified by the Board as bargaining representative of the pipefitters, respondent refused to comply with the Board's certification and recognize and bargain with the Union. An unfair labor practice proceeding resulted and the Board entered a cease-and-desist order against respondent on findings that respondent was in violation of 8 (a) (1) and 8 (a) (5) of the Act, 29 U.S. C. 158 (a) (1) and 158 (a) (5). 170 N. L. R. B. 1409 (1968). Respondent continued its noncompliance and the Board sought enforcement of the order in the Court of Appeals for the Sixth Circuit. Enforcement was refused, the court holding that respondent was a "political subdivision," as contended. We granted certiorari, We affirm. The respondent was organized under Tennessee's Utility District Law of 1937, Tenn. Code Ann. 6-2601 to 6-2627 (1955). In First Suburban Water Utility the Tennessee Supreme Court held that a utility district organized under this Act was an operation for a state governmental or public purpose. The Court of Appeals held that this decision "was of controlling importance on the question whether the District was a political subdivision of the state" within 2 (2) and "was binding on the Board." The Board, on the other hand, had held that "while such State law declarations and interpretations are given careful consideration they are not necessarily controlling." 167 N. L. R. B., at 691. We disagree with the Court of Appeals and agree with the Board. Federal, *603 rather than state, law governs the determination, under 2 (2), whether an entity created under state law is a "political subdivision" of the State and therefore not an "employer" subject to the Act.[2] The Court of Appeals for the Fourth Circuit dealt with this question in where the Board had determined that Randolph was not a "political subdivision" within 2 (2). We adopt as correct law what was said -63 of the opinion in that case: "There are, of course, instances in which the application |
Justice Brennan | 1,971 | 13 | majority | NLRB v. Natural Gas Util. Dist. of Hawkins Cty. | https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/ | case: "There are, of course, instances in which the application of certain federal statutes may depend on state law. "But this is controlled by the will of Congress. In the absence of a plain indication to the contrary, however, it is to be assumed when Congress enacts a statute that it does not intend to make its application dependent on state law. "The argument of the electric corporations fails to persuade us that Congress intended the result for which they contend. Furthermore, it ignores the teachings of the Supreme Court as to the congressional purpose in enacting the national labor laws. In National Labor Relations the Court dealt with the meaning of the term `employee' as used in the Wagner Act, saying: " `Both the terms and the purposes of the statute, as well as the legislative history, show that Congress had in mind no patchwork plan for securing freedom of employees' organization and of collective bargaining. The Wagner Act is federal legislation, *604 administered by a national agency, intended to solve a national problem on a national scale. Nothing in the statute's background, history, terms or purposes indicates its scope is to be limited by varying local conceptions, either statutory or judicial, or that it is to be administered in accordance with whatever different standards the respective states may see fit to adopt for the disposition of unrelated, local problems.' "Thus, it is clear that state law is not controlling and that it is to the actual operations and characteristics of [respondents] that we must look in deciding whether there is sufficient support for the Board's conclusion that they are not `political subdivisions' within the meaning of the National Labor Relations Act." We turn then to identification of the governing federal law. The term "political subdivision" is not defined in the Act and the Act's legislative history does not disclose that Congress explicitly considered its meaning. The legislative history does reveal, however, that Congress enacted the 2 (2) exemption to except from Board cognizance the labor relations of federal, state, and municipal governments, since governmental employees did not usually enjoy the right to strike.[3] In the light of that purpose, the Board, according to its Brief, p. 11, "has limited the exemption for political subdivisions to entities that are either (1) created directly by the state, so as to constitute departments or administrative arms of the government, or (2) administered by individuals who *605 are responsible to public officials or to the general electorate." The Board's construction of the broad statutory term is, of course, entitled to great respect. |
Justice Brennan | 1,971 | 13 | majority | NLRB v. Natural Gas Util. Dist. of Hawkins Cty. | https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/ | broad statutory term is, of course, entitled to great respect. Randolph This case does not however require that we decide whether "the actual operations and characteristics" of an entity must necessarily feature one or the other of the Board's limitations to qualify an entity for the exemption, for we think that it is plain on the face of the Tennessee statute that the Board erred in its reading of it in light of the Board's own test. The Board found that "the Employer in this case is neither created directly by the State, nor administered by State-appointed or elected officials." 167 N. L. R. B., at 691-692 (footnotes omitted). But the Board test is not whether the entity is administered by "State-appointed or elected officials." Rather, alternative (2) of the test is whether the entity is "administered by individuals who are responsible to public officials or to the general electorate" (emphasis added), and the Tennessee statute makes crystal clear that respondent is administered by a Board of Commissioners appointed by an elected county judge, and subject to removal proceedings at the instance of the Governor, the county prosecutor, or private citizens. Therefore, in the light of other "actual operations and characteristics" under that administration, the Board's holding that respondent "exists as an essentially private venture, with insufficient identity with or relationship to the State of Tennessee," 167 N. L. R. B., at 691, has no "warrant in the record" and no "reasonable basis in law." Respondent is one of nearly 270 utility districts established under the Utility District Law of 1937. Under that statute, Tennessee residents may create districts to provide a wide range of public services such as the *606 furnishing of water, sewers, sewage disposal, police protection, fire protection, garbage collection, street lighting, parks, and recreational facilities as well as the distribution of natural gas. Tenn. Code Ann. 6-2608 Acting under the statute, 38 owners of real property submitted in 1957 a petition to the county court of Hawkins County requesting the incorporation of a utility district to distribute natural gas within a specified portion of the county. The county judge, after holding a required public hearing and making required findings that the "public convenience and necessity requires the creation of the district," and that "the creation of the district is economically sound and desirable," Tenn. Code Ann. 6-2604 entered an order establishing the District. The judge's order and findings were appealable to Tennessee's appellate courts by any party "having an interest in the subject-matter." Tenn. Code Ann. 6-2606 (1955). To carry out its functions, the District is |
Justice Brennan | 1,971 | 13 | majority | NLRB v. Natural Gas Util. Dist. of Hawkins Cty. | https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/ | 6-2606 (1955). To carry out its functions, the District is granted not only all the powers of a private corporation, Tenn. Code Ann. 6-2610 (1955), but also "all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature." Tenn. Code Ann. 6-2612 (1955). This delegation includes the power of eminent domain, which the District may exercise even against other governmental entities. Tenn. Code Ann. 6-2611 (1955). The District is operated on a nonprofit basis, and is declared by the statute to be "a `municipality' or public corporation in perpetuity under its corporate name and the same shall in that name be a body politic and corporate with power of perpetual succession, but without any power to levy or collect taxes." Tenn. Code Ann. 6-2607 The property and revenue of the District are exempted from all state, county, and municipal taxes, and the District's bonds are similarly *607 exempt from such taxation, except for inheritance, transfer, and estate taxes. Tenn. Code Ann. 6-2626 (1955). The District's records are "public records" and as such open for inspection. Tenn. Code Ann. 6-2615 The District is required to publish its annual statement in a newspaper of general circulation, showing its financial condition, its earnings, and its method of setting rates. Tenn. Code Ann. 6-2617 The statute requires the District's commissioners to hear any protest to its rates filed within 30 days of publication of the annual statement at a public hearing, and to make and to publish written findings as to the reasonableness of the rates. Tenn. Code Ann. 6-2618 (1955). The commissioners' determination may be challenged in the county court, under procedures prescribed by the statute. The District's commissioners are initially appointed, from among persons nominated in the petition, by the county judge, who is an elected public official. Tenn. Code Ann. 6-2604 The commissioners serve four-year terms[4] and, contrary to the Board's finding that the State reserves no "power to remove or otherwise discipline those responsible for the Employer's operations," 167 N. L. R. B., at 692, are subject to removal under Tennessee's General Ouster Law, which provides procedures for removing public officials from office for misfeasance or nonfeasance. Tenn. Code Ann. 8-2701 et seq. (1955); First Suburban Water Utility Proceedings under the law may be initiated by the Governor, the state attorney general, the county prosecutor, or ten citizens. Tenn. Code Ann. 8-2708, 8-2709, 8-2710 (1955). When a vacancy occurs, the county *608 judge appoints a new commissioner if the remaining two commissioners cannot agree upon a |
Justice Brennan | 1,971 | 13 | majority | NLRB v. Natural Gas Util. Dist. of Hawkins Cty. | https://www.courtlistener.com/opinion/108347/nlrb-v-natural-gas-util-dist-of-hawkins-cty/ | commissioner if the remaining two commissioners cannot agree upon a replacement. Tenn. Code Ann. 6-2614 In large counties, all vacancies are filled by popular election. The commissioners are generally empowered to conduct the District's business. They have the power to subpoena witnesses and to administer oaths in investigating District affairs, Tenn. Code Ann. 6-2616 (5) (1955), and they serve for only nominal compensation. Tenn. Code Ann. 6-2615 Plainly, commissioners who are beholden to an elected public official for their appointment, and are subject to removal procedures applicable to all public officials, qualify as "individuals who are responsible to public officials or to the general electorate" within the Board's test. In such circumstances, the Board itself has recognized that authority to exercise the power of eminent domain weighs in favor of finding an entity to be a political subdivision. New Jersey Turnpike Authority, 33 L. R. R. M. 1528 (1954). We have noted that respondent's power of eminent domain may be exercised even against other governmental units. And the District is further given an extremely broad grant of "all the powers necessary and requisite for the accomplishment of the purpose for which such district is created, capable of being delegated by the legislature." Tenn. Code Ann. 6-2612 (1955). The District's "public records" requirement and the automatic right to a public hearing and written "decision" by the commissioners accorded to all users betoken a state, rather than a private, instrumentality. The commissioners' power of subpoena and their nominal compensation further suggest the public character of the District. Moreover, a conclusion that the District is a political subdivision finds support in the treatment of the District under other federal laws. Income from its bonds is exempt *609 from federal income tax, as income from an obligation of a "political subdivision" under 26 U.S. C. 103. Social Security benefits for the District's employees are provided through voluntary rather than mandatory coverage since the District is considered a political subdivision under the Social Security Act. 42 U.S. C. 418. Respondent is therefore an entity "administered by individuals [the commissioners] who are responsible to public officials [an elected county judge]" and this together with the other factors mentioned satisfies us that its relationship to the State is such that respondent is a "political subdivision" within the meaning of 2 (2) of the Act. Accordingly, the Court of Appeals' judgment denying enforcement of the Board's order is Affirmed. MR. |
per_curiam | 1,981 | 200 | per_curiam | Schweiker v. Hansen | https://www.courtlistener.com/opinion/110443/schweiker-v-hansen/ | On June 12, 1974, respondent met for about 15 minutes with Don Connelly, a field representative of the Social Security Administration (SSA), and orally inquired of him whether she was eligible for "mother's insurance benefits" under 202 (g) of the Social Security Act (Act), as amended, 42 U.S. C. 402 (g). Connelly erroneously told her that she was not, and she left the SSA office without having filed a written application. By the Act's terms, such benefits are available only to one who, among other qualifications, "has filed application." 42 U.S. C. 402 (g) (1) (D). By a regulation promulgated pursuant to the Act, only written applications satisfy the "filed application" requirement. 20 CFR 404.601 (1974).[1] The SSA's Claims Manual, an internal Administration handbook, instructs field representatives to advise applicants of the advantages of filing written applications and to recommend to applicants who are uncertain about their eligibility that they file written applications. Connelly, however, did not recommend to respondent that she file a written application; nor did he advise her of the advantages of doing so. The question is whether Connelly's erroneous statement and neglect of the Claims Manual estop petitioner, the Secretary of Health and Human Services, from denying retroactive benefits to respondent for a period in which she was eligible for benefits but had not filed a written application. Respondent eventually filed a written application after learning in May 1975 that in fact she was eligible. She then began receiving benefits. Pursuant to 202 (j) (1) of the Act,[2] she also received retroactive benefits for the preceding *787 12 months, which was the maximum retroactive benefit allowed by the Act. Respondent contended, however, that she should receive retroactive benefits for the 12 months preceding her June 1974 interview with Connelly. An Administrative Law Judge rejected this claim, concluding that Connelly's erroneous statement and neglect of the Claims Manual did not estop petitioner from determining respondent's eligibility for benefits only as of the date of respondent's written application. The Social Security Appeals Council affirmed. Respondent then brought this lawsuit in the District Court for the District of Vermont,[3] which held that the written-application requirement was "unreasonably restrictive" as applied to the facts of this case. A divided panel of the Court of Appeals for the Second Circuit affirmed. It agreed with petitioner as an initial matter that the regulation requiring a written application is valid and that the Claims Manual has no legally binding effect. But it considered the written-application requirement a mere "procedural requirement" of lesser import than the fact that respondent in June 1974 had been |
per_curiam | 1,981 | 200 | per_curiam | Schweiker v. Hansen | https://www.courtlistener.com/opinion/110443/schweiker-v-hansen/ | than the fact that respondent in June 1974 had been "substantively eligible" for the benefits. In such circumstances, the majority held, "misinformation provided by a Government official combined with a showing of misconduct (even if it does not rise to the level of a violation of a legally binding rule) should be sufficient to require estoppel." In summarizing its holding, the majority stated that the Government may be estopped "where (a) a procedural not a substantive requirement is involved and (b) an internal procedural manual or guide or some other source of objective *788 standards of conduct exists and supports an inference of misconduct by a Government employee." Judge Friendly dissented. He argued that the majority's conclusion is irreconcilable with decisions of this Court, e. g., Federal Crop Insurance ; ; and with decisions of other Courts of Appeals, ; We agree with the dissent. This Court has never decided what type of conduct by a Government employee will estop the Government from insisting upon compliance with valid regulations governing the distribution of welfare benefits. In two cases involving denial of citizenship, the Court has declined to decide whether even "affirmative misconduct" would estop the Government from denying citizenship, for in neither case was "affirmative misconduct" involved. ; The Court has recognized, however, "the duty of all courts to observe the conditions defined by Congress for charging the public treasury." Federal Crop Insurance Lower federal courts have recognized that duty also, and consistently have relied on in refusing to estop the Government where an eligible applicant has lost Social Security benefits because of possibly erroneous replies to oral inquiries. See ; ; cert. denied, ; Simon v. ; ; This is another in that line of cases,[4] for we *789 are convinced that Connelly's conductwhich the majority conceded to be less than "affirmative misconduct," 619 F.2d, does not justify the abnegation of that duty. Connelly erred in telling respondent that she was ineligible for the benefit she sought. It may be that Connelly erred because he was unfamiliar with a recent amendment which afforded benefits to respondent. Or it may be that respondent gave Connelly too little information for him to know that he was in error. But at worst, Connelly's conduct did not cause respondent to take action, cf. Federal Crop Insurance or fail to take action, cf. that respondent could not correct at any time. Similarly, there is no doubt that Connelly failed to follow the Claims Manual in neglecting to recommend that respondent file a written application and in neglecting to advise her of the advantages of |
per_curiam | 1,981 | 200 | per_curiam | Schweiker v. Hansen | https://www.courtlistener.com/opinion/110443/schweiker-v-hansen/ | and in neglecting to advise her of the advantages of a written application. But the Claims Manual is not a regulation. It has no legal force, and it does not bind the SSA. Rather, it is a 13-volume handbook for internal use by thousands of SSA employees, including the hundreds of employees who receive untold numbers of oral inquiries like respondent's each year. If Connelly's minor breach of such a manual suffices to estop petitioner, then the Government is put "at risk that every alleged failure *790 by an agent to follow instructions to the last detail in one of a thousand cases will deprive it of the benefit of the written application requirement which experience has taught to be essential to the honest and effective administration of the Social Security Laws." 619 F. 2d. at 956 See United[5] Finally, the majority's distinction between respondent's "substantiv[e] eligib[ility]" and her failure to satisfy a "procedural requirement" does not justify estopping petitioner in this case. Congress expressly provided in the Act that only one who "has filed application" for benefits may receive them, and it delegated to petitioner the task of providing by regulation the requisite manner of application. A court is no more authorized to overlook the valid regulation requiring that applications be in writing than it is to overlook any other valid requirement for the receipt of benefits. In sum, Connelly's errors "fal[l] far short" of conduct which would raise a serious question whether petitioner is estopped from insisting upon compliance with the valid regulation. Accordingly, we grant the motion of respondent for leave to proceed in *791 forma pauperis and the petition for certiorari and reverse the judgment of the Court of Appeals. It is so ordered. |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | A provision of the Immigration and Nationality Act, 8 U.S. C. focuses upon potentially deportable noncitizens who have committed certain offenses or have ties to terrorism. It requires the Secretary of Homeland Security to take those aliens into custody “when re- leased” from prison and to hold them without a bail hear- ing until Government authorities decide whether to deport them. The question is whether this provision limits the class of persons in the “no-bail-hearing” category to only those aliens who were taken into custody “when re- leased” from prison, or whether it also places in that “no- bail-hearing” category those aliens who were taken into custody years or decades after their release from prison. The critical statutory language is contained in para- graph (2) of this provision. That paragraph says (with one exception not relevant here) that “an alien described in paragraph (1)” must be held without a bail hearing. Here we must decide what these words mean. Do the words “an 2 NIELSEN v. PREAP BREYER, J., dissenting alien described in paragraph (1)” refer only to those aliens whom the Secretary, following paragraph (1)’s instruc- tions, has “take[n] into custody when the alien is re- leased” from, say, state or federal prison? Or do these words refer instead to all aliens who have ever committed one of the offenses listed in paragraph (1), regardless of when these aliens were “released” from prison? For present purposes, I accept the Court’s holding in v. Rodriguez, 583 U. S. (2018), that para- graph (2) forbids bail hearings for aliens “described in paragraph (1).” But see at (BREYER, J., dissenting) (slip op., at 2) (interpreting paragraph (2) as not forbid- ding bail hearings, as the Constitution likely requires them); at (majority opinion) (slip op., at 29) (declin- ing to reach constitutional question). Here, however, the Court goes much further. The majority concludes that paragraph (2) forbids bail hearings for aliens regardless of whether they are taken into custody “when released” from prison. Under the majority’s view, the statute for- bids bail hearings even for aliens whom the Secretary has detained years or decades after their release from prison. The language of the statute will not bear the broad interpretation the majority now adopts. Rather, the ordi- nary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation all argue convincingly to the contrary. I respectfully dissent. I A The relevant statute, 8 U.S. C. is entitled “Ap- prehension and detention of aliens.” See Appendix A, infra. Its first subsection, subsection (a), is entitled “Ar- rest, detention, and release.” Subsection |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | subsection (a), is entitled “Ar- rest, detention, and release.” Subsection (a) sets forth the background rule. It gives the Secretary of Homeland Security (formerly the Attorney General) the authority to “arres[t] and detai[n]” an “alien pending a decision on Cite as: 586 U. S. (2019) 3 BREYER, J., dissenting whether the alien is to be removed from the United States.” See ante, at 3, n. 2. It adds that the Secretary “may release the alien” on “bond” or “conditional parole.” Federal regulations provide that a person detained under this subsection must receive a bail hearing. (d)(1), 1236.1(d)(1) (2018). With respect to release, however, subsection (a) adds the words “[e]xcept as provided in subsection (c).” 8 U.S. C. The subsection containing the exception to which (a) refers—namely, subsection (c)—is entitled “Detention of criminal aliens.” It consists of two paragraphs. Paragraph (1), entitled “Custody,” says that the Secre- tary “shall take into custody any alien who” is “inadmissi- ble” or “deportable” (by reason of having committed cer- tain offenses or having ties to terrorism) “when the alien is released,” presumably from local, state, or federal criminal (emphasis added). Because the rele- vant offenses are listed in four subparagraphs headed by the letters “A,” “B,” “C,” and “D,” I shall refer to the rele- vant aliens as “ABCD” aliens. Thus, for present purposes, paragraph (1) says that the Secretary “shall take into custody any” ABCD alien “when the alien is released” from criminal Paragraph (2), entitled “Release,” says that the Secre- tary “may release an alien described in paragraph (1) only if ” the alien falls within a special category—not relevant here—related to witness protection. (emphasis added). We held last Term in that paragraph (2) forbids a bail hearing for “an alien described in paragraph (1)” unless the witness protection exception applies. 583 U. S., at – (majority opinion) (slip op., at 20–22). Here we focus on the meaning of a key phrase in para- graph (2): “an alien described in paragraph (1).” This is the phrase that identifies the aliens to whom paragraph (2) (and its “no-bail-hearing” requirement) applies. Does 4 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1) “describ[e]” all ABCD aliens, even those whom the Secretary has “take[n] into custody” many years after their release from prison? Or does it “describ[e]” only those aliens whom the Secretary has “take[n] into cus- tody when the alien [was] released” from prison? B The issue may sound technical. But it is extremely important. That is because the Government’s reading of the statute—namely, that paragraph (2) forbids bail hear- ings for all ABCD aliens |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | paragraph (2) forbids bail hear- ings for all ABCD aliens regardless of whether they were detained “when released” from criminal custody— would significantly expand the Secretary’s authority to deny bail hearings. Under the Government’s view, the aliens subject to detention without a bail hearing may have been released from criminal custody years earlier, and may have established families and put down roots in a community. These aliens may then be detained for months, sometimes years, without the possibility of re- lease; they may have been convicted of only minor crimes—for example, minor drug offenses, or crimes of “moral turpitude” such as illegally downloading music or possessing stolen bus transfers; and they sometimes may be innocent spouses or children of a suspect person. Moreover, for a high percentage of them, it will turn out after months of custody that they will not be removed from the country because they are eligible by statute to receive a form of relief from removal such as cancellation of re- moval. These are not mere hypotheticals. See Appendix B, infra. Thus, in terms of potential consequences and basic American legal traditions, see infra, at 11–12, the question before us is not a “narrow” one, ante, at 2 (KAVANAUGH, J., concurring). Why would Congress have granted the Secretary such broad authority to deny bail hearings, especially when doing so would run contrary to basic American and Cite as: 586 U. S. (2019) 5 BREYER, J., dissenting common-law traditions? See at – (BREYER, J., dissenting) (slip op., at 8–10). The answer is that Congress did not do so. Ordinary tools of statutory interpretation demonstrate that the authority Congress granted to the Secretary is far more limited. II The statute’s language, its structure, and relevant canons of interpretation make clear that the Secretary cannot hold an alien without a bail hearing unless the alien is “take[n] into custody when the alien is re- leased” from criminal A Consider the statute’s language. Paragraph (1) of sub- section (c) provides that the Secretary “shall take into custody” any ABCD alien—that is, any alien who is “in- admissible” or “deportable” under the subparagraphs labeled “A,” “B,” “C,” and “D”—“when the alien is released” from, say, state or federal prison. Paragraph (2), meanwhile, generally forbids a bail hearing for “an alien described in paragraph (1).” The key phrase in paragraph (2) is “an alien described in paragraph (1).” As a matter of ordinary meaning and usage, the words “take into custody when the alien is released” in paragraph (1) form part of the description of the “alien”: An “alien described in paragraph |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | the description of the “alien”: An “alien described in paragraph (1)” is an ABCD alien whom the Secretary has “take[n] into cus- tody when the alien is released” from prison. The majority emphasizes a grammatical point—namely, that ordinarily only adjectives or adjectival phrases “modify” nouns. Ante, at 12. But the statute does not use the word “modify.” It uses the word “described.” While the word “describe” will in some contexts refer only to the words that directly “modify” a noun, normally it has a broader meaning. Compare American Heritage Dictionary 490 6 NIELSEN v. PREAP BREYER, J., dissenting (5th ed. 2011) (to “describe” is to “convey an idea or im- pression of ”) and Webster’s Third New International Dictionary 610 (to “describe” is to “convey an image or notion of ”) with P. The Cambridge Guide to English Usage 355 (2004) (defining a “modifie[r]” as a word that “qualifies” a noun). The common rules of grammar make the broad scope of the word “described” obvious. They demonstrate that a noun often is “described” by more than just the adjectives that modify it. Consider the following sentence: “The well- behaved child was taken by a generous couple to see Ham- ilton.” That sentence, written in the passive voice, de- scribes the “child” not only as “well-behaved” but also as someone “taken by a generous couple to see Hamilton.” The description of the child would not differ were we to write the sentence in the active voice: “The generous couple took the well-behaved child to see Hamilton.” The action taken by the “generous couple” (“took to see Hamilton”) still “describes” the “child,” even though these words do not “modify” the word “child.” That is because a person who has been subjected to an action can be de- scribed by that action no less than by an adjective. See (describing such a person as someone “affected by the action”); B. Garner, The Chicago Guide to Grammar, Usage, and Punctuation 452 (2016) (describing such a person as someone who “is acted on by or receives the action”); see also R. Huddleston & G. Pullum, The Cambridge Grammar of the English Language 1436 (2002) (noting the “large-scale overlap” between adjectives and certain verb forms). An example illustrates how these principles apply to the statute at issue here. Imagine the following cookbook recipe. Instruction (1) says: “(1) Remove the Angus steak from the grill when the steak is cooked to 120 degrees Fahrenheit.” Instruction (4) says: “(4) Let the steak de- scribed in Instruction (1) rest for ten minutes and then Cite as: 586 U. S. |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | for ten minutes and then Cite as: 586 U. S. (2019) 7 BREYER, J., dissenting serve it.” What would we say of a chef who grilled an Angus steak to 185 degrees Fahrenheit, served it, and then appealed to these instructions—particularly the word “described” in Instruction (4)—as a justification? That he was not a good cook? That he had an odd sense of humor? Or simply that he did not understand the instructions? The chef would have no good textual defense: The steak “described in Instruction (1)” is not just an “Angus” steak, but an “Angus” steak that must be “remove[d] when the steak is cooked to 120 degrees Fahrenheit.” By the same logic, the alien in paragraph (1) is “described” not only by the four clauses—A, B, C, and D—that directly modify the word “alien,” but also by the verb (“shall take”) and that verb’s modifier (“when the alien is released”). The majority argues that “the crucial point” is that the phrase “when the alien is released” plays “no role in iden- tifying for the Secretary which aliens she must immediately arrest.” Ante, at 13. That may be so. But why is that a “crucial point” in the majority’s favor? After all, in the example above, the words “[r]emove from the grill when the steak is cooked to 120 degrees Fahrenheit” do not tell our chef what kind of steak to cook in the first place. (The word “Angus” does that.) Even so, those words still “describe” the steak that must be served in Instruction (4). Why? Because by the time our chef gets to Instruction (4), the recipe contemplates that the action in Instruction (1) has been completed. At that point, the “steak described in Instruction (1)” is a steak that has been cooked in the manner mandated by Instruction (1). The same is true of the two paragraphs before us. The key word “described” appears not in paragraph (1), but in paragraph (2). Paragraph (2) refers back to the entirety of paragraph (1). And because paragraph (2) is the release provision, it contemplates that the action mandated by paragraph (1)—namely, detention—has already occurred. Thus, the function of the phrase “an alien described in 8 NIELSEN v. PREAP BREYER, J., dissenting paragraph (1)” is not to describe who must be detained, but instead to describe who must be denied bail. In short, the language demonstrates that an alien is “described in paragraph (1)”—and therefore subject to paragraph (2)’s bar on bail hearings—only if the alien is “take[n] into custody when the alien is released.” B The statute’s structure |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | custody when the alien is released.” B The statute’s structure and context support this reading of the phrase “an alien described in paragraph (1).” First, “Congress often drafts statutes with hierarchical schemes—section, subsection, paragraph, and on down the line.” NLRB v. SW General, Inc., 580 U. S. (2017) (slip op., at 9). Congress employed that structure “to make precise cross-references” throughout the immigration code. As relevant here, in a different detention provision enacted alongside the provision at issue here, Congress said that the Government “may release the alien only if the alien is an alien described in subparagraph (A)(ii) or (A)(iii).” Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), 110 Stat. 3009–587. Yet Congress did not make such a precise cross-reference in paragraph (2): It did not refer to “an alien described in subparagraphs (A)–(D) of paragraph (1),” as it could have—and would have—done had it in- tended the majority’s narrow interpretation. Instead, it referred to aliens “described” in the entirety of paragraph (1). We usually “presume differences in language like this convey differences in meaning.” Henson v. Santander Consumer USA Inc., 582 U. S. (2017) (slip op., at 6). The cross-reference to all of paragraph (1) reinforces that “an alien described in paragraph (1)” is not just an ABCD alien, but an ABCD alien whom (in the words of paragraph (1)) the Secretary “take[s] into custody when the alien is released” from criminal confinement. Cite as: 586 U. S. (2019) 9 BREYER, J., dissenting Second, consider the structural similarity between subsections (a) and (c). See Appendix A, infra. The first sentence of subsection (a) sets forth a detention rule: An “alien may be arrested and detained” pending a decision on the alien’s removal. 8 U.S. C. And the sec- ond sentence sets forth a release rule that allows for re- lease on bond and parole. Subsection (c) has a paral- lel structure. The first sentence (namely, paragraph (1)) says that the Secretary must “take into custody” a subset of those aliens “when the alien is released” from criminal And the second sentence (namely, paragraph (2)) sets forth the rule that “an alien described in paragraph (1)” generally may not be released. It is obvious that the second sentence of (a) applies only to those aliens who are detained following the rule in (a)’s first sentence. Parallel structure suggests that the same is true in (c): The second sentence of (c) applies only to those detained following the rule in (c)’s first sentence. Subsection (a)’s reference to (c) strengthens this structural inference: Subsection (a) says that its release |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | strengthens this structural inference: Subsection (a) says that its release rule applies “[e]xcept as provided in subsection (c)”—that is, except as provided in the whole of subsection (c), not simply para- graph (2) or the few lines the majority picks from (c)’s text. Thus, the release rule in each subsection (the second sentence) applies only if the Secretary complies with the detention rule in that subsection (the first sentence). In light of “the parallel structures of these provisions,” it would “flou[t] the text” to find that an alien is subject to (c)’s release rule, which forbids release, without also find- ing that the alien was detained in accordance with (c)’s detention rule, which requires the alien to be detained “when released.” Chan v. Korean Air Lines, Ltd., 490 U.S. 122, 132 (1989). The majority responds that subsections (a) and (c) do not “establis[h] separate sources of arrest and release 10 NIELSEN v. PREAP BREYER, J., dissenting authority,” and that (c) is merely “a limit” on the authority granted by (a). Ante, at 15. But even if (c) were treated as a “limit” on the authority granted by (a), the parallel structure of the statute would still point to the same con- clusion: The Secretary must comply with the limit on detention in the first sentence of (c) in order to invoke the rule on release in the second sentence of (c). Third, Congress’ enactment of a special “transition” statute strengthens the point. When Congress enacted subsection (c), it recognized that there might be “insuffi- cient detention space” and “personnel” to carry out subsec- tion (c)’s requirements. IIRIRA, 110 Stat. 3009–586. It therefore authorized the Government to delay implementation of subsection (c)—initially for one year, then for a second year. If the majority were correct that the “when released” provision does not set a time limit on the Secretary’s authority to deny bail hearings, then a special transition statute delaying implementation for one year would have been unnecessary. To avoid overcrowding, the Govern- ment simply could have delayed arresting aliens for 1, 2, 5, or 10 years, as the majority believes it can do, and then deny them bail hearings. What need for a 1-year transi- tion period? The majority responds that the transition statute still served a purpose: to “dela[y] the onset of the Secretary’s obligation to begin making arrests.” Ante, at 21. But that just raises the question: Why would Congress have needed to “dela[y] the onset of the Secretary’s obliga- tion” if it thought that the Secretary could detain aliens without a bail hearing after a year-long delay? |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | detain aliens without a bail hearing after a year-long delay? The major- ity offers no good answer. The transition statute therefore strongly suggests that Congress viewed the “when released” provision as a constraint on the Secretary’s authority to deny a bail hearing. The transition statute also supports this conclusion in another respect: It demonstrates that Congress anticipated Cite as: 586 U. S. (2019) 11 BREYER, J., dissenting that subsection (c) would apply only to aliens “released” from state or federal prison. As noted, clauses A, B, C, and D in paragraph (1) cover some aliens who have never been in criminal Even the majority acknowledges that it would be bizarre if these aliens could be detained without a bail hearing. Ante, at 23. The transition statute confirms as much: It indicates that “the provisions of [subsection (c)] shall apply to individuals released after” the transition period concludes. IIRIRA, –586 (emphasis added). From this it follows that Congress saw paragraph (2) as forbid- ding bail hearings only for aliens who have been “re- leased.” That, however, can be true only if the “when released” provision limits the class of aliens subject to paragraph (2)’s “no-bail-hearing” requirement. The major- ity’s contrary reading, under which paragraph (2) applies “regardless of whether the alien was released from criminal custody,” ante, at 25, conflicts with how Congress itself described the scope of subsection (c) when it enacted the statute. C Even if statutory text and structure were not enough to resolve these cases, the Government’s reading would fail for another reason. A well-established canon of statutory interpretation provides that, “if fairly possible,” a statute must be construed “so as to avoid not only the conclusion that it is unconstitutional but also grave doubts upon that score.” United (1916). See Edward J. DeBartolo 575 (1988) (using word “serious” instead of “grave”). The Government’s reading of the statute, which the majority adopts, construes the statute in a way that creates serious constitutional problems. That reading would give the Secretary authority to arrest and detain aliens years after 12 NIELSEN v. PREAP BREYER, J., dissenting they have committed a minor crime and then hold them without a bail hearing for months or years. This possibil- ity is not simply theoretical. See Appendix B, infra. In I explained why I believe the practice of indefinite detention without a bail hearing likely deprives a “person” of his or her “liberty without due process of law.” U. S. Const., Amdt. 5. See 583 U. S., at (dissent- ing opinion) (slip op., at 5). This practice runs counter to “those settled usages |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | at 5). This practice runs counter to “those settled usages and modes of proceeding existing in the common and statute law of England, before the emi- gration of ” the Founders’ “ancestors.” Murray’s Lessee v. Hoboken Land & Improvement Co., (1856). It runs counter to practices well established at the time of the American Revolution. at – (slip op., at 9–10). And it runs counter to common sense: Why would the law grant a bail hearing to a person accused of murder but deny it to a person who many years before committed a crime perhaps no greater than pos- sessing a stolen bus transfer? See Appendix B, infra. I explained much of the constitutional problem in my dissent in Rather than repeat what I wrote there, I refer the reader to that opinion. See at (slip op., at 1). I add only the obvious point that a bail hearing does not mean release on bail. It simply permits the person held to demonstrate that, if released, he will neither run away nor pose a threat. It is especially anomalous to take this opportunity away from an alien who committed a crime many years before and has since reformed, living productively in a community. The majority’s reading also creates other anomalies. As I have said, by permitting the Secretary to hold aliens without a bail hearing even if they were not detained “when released,” the majority’s reading would allow the Secretary to hold indefinitely without bail those who have never been to prison and who received only a fine or probation as 10–11. See, e.g., Cite as: 586 U. S. (2019) 13 BREYER, J., dissenting (A) (incorporating which covers controlled substance offenses for which the maximum penalty exceeds one year); Brief for Advancement Project et al. as Amici Curiae 19, 24, 29 (describing examples). That fact simply aggravates the constitutional problem. III Although the Court of Appeals correctly concluded that paragraph (2)’s prohibition on release applies only to an alien whom the Secretary “take[s] into custody when the alien is released” from criminal custody, it also held that the phrase “when the alien is released” means that the Secretary must grant a bail hearing to any alien who is not “ ‘immediately detained’ when released from crimi- nal ” (CA9 2016). I disagree with the Court of Appeals as to the meaning of the phrase “when the alien is released.” A As an initial matter, the phrase “when the alien is released” imposes an enforceable statutory deadline. I cannot agree with JUSTICE ALITO, who writes for a plurality of the |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | with JUSTICE ALITO, who writes for a plurality of the Court on this point, that our cases holding certain statutory deadlines unenforceable are applicable here. Ante, at 17. See, e.g., v. Peabody Coal Co., 537 U.S. 149, 152 (2003) (holding that the Government’s untimeliness did not bar it from taking action beyond the statutory deadline); United (holding that a provision requiring a detention hearing to “ ‘be held immediately’ ” did not bar detention in the event of a late hearing); Brock v. Pierce County, (holding that the Government’s failure to observe a 120-day statutory deadline did not deprive it of authority under the statute). I disagree with the plurality on this point because our case law makes clear that a statutory deadline against the 14 NIELSEN v. PREAP BREYER, J., dissenting Government must be enforced at least in contexts where “other part[s]” of the relevant statutes indicate that the time limit must be enforced, at 717; see also ; ; where the statute “ ‘specif[ies] a consequence for noncompliance’ ” with the time limit, (quoting United States v. James Daniel Real Property, (1993)); or where the harms caused by the Government’s delay are likely to be serious, see at 615– 616; –720. Here, the special transition statute Congress enacted alongside subsection (c) makes clear that Congress ex- pected that the mandate that an alien be detained “when released” would be enforceable. Congress nei- ther wished for nor expected the Secretary to detain aliens more than a year after their release from criminal IIRIRA, –586. Why else would Congress have enacted a statute permitting the Govern- ment, due to “insufficient detention space and Immigra- tion and Naturalization Service personnel,” to delay im- plementation of the entirety of subsection (c) for one year? As I have said, had Congress read the phrase “when the alien is released” as the plurality now reads it, the Government could have delayed implementation for as long as it liked without the need for any transition statute. The transition statute demonstrates that Congress viewed the phrase “when the alien is released” as imposing a deadline. Based on the transition statute, the Secretary may not delay detention under subsection (c) for longer than one year. Moreover, the statute does “ ‘specify a consequence’ ” for the Secretary’s failure to detain an alien “when the alien is released.” (quoting James Daniel at ). In that case, subsection (c) will not apply, and the Secretary must fall back on subsection (a), Cite as: 586 U. S. (2019) 15 BREYER, J., dissenting the default detention and release provision. Critically, subsection |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | J., dissenting the default detention and release provision. Critically, subsection (a) does not guarantee release. Rather, it leaves much to the Government’s judgment: By regulation, aliens who are subject to subsection (a)’s default detention and release rules will simply receive a hearing at which they can attempt to demonstrate that, if released, they will not pose a risk of flight or a threat to the community. (d)(1), 1236.1(d)(1). Finally, I have already mentioned the many harms that could befall aliens whom the Secretary does not detain “when released.” They range from long periods of detention, to detention years or even decades after the alien’s release from criminal custody, to the risk of split- ting up families that are long established in a community. Thus, unlike some of our prior cases, the harm from a missed deadline hardly can be described as “insignificant.” The plurality objects that “Congress could not have meant for judges to ‘enforce’ ” the mandatory detention requirement “in case of delay by—of all things—forbidding its execution.” Ante, at 19. But treating the “when the alien is released” clause as an enforceable limit does not prohibit the Secretary from detaining the aliens that subsection (c) requires her to detain. Rather, the Secre- tary’s failure to comply with the “when the alien is re- leased” clause carries only one consequence: The Secretary cannot deny a bail hearing. B So what does the phrase “when the alien is released” mean? The word “when” can, but does not always, mean “[a]t the time that,” American Heritage Dictionary, at 1971, or “just after the moment that,” Webster’s Third New International Dictionary, at 2602. But the word only “[s]ometimes impl[ies] suddenness.” 20 Oxford English Dictionary 209 (2d ed. 1989). It often admits of at least 16 NIELSEN v. PREAP BREYER, J., dissenting some temporal delay. A child who is told to “mow the lawn, please, when you get home from school” likely does not have to mow the lawn the second she comes into the house. She can do a few other things first. Mindful of “the greater immigration-related expertise of the Executive Branch” and “the serious administrative needs and concerns inherent in the necessarily extensive [Government] efforts to enforce this complex statute,” I would interpret the word “when” in the same manner as we interpreted other parts of this statute in Zadvydas v. Davis, The words “when the alien is released” require the Secretary to detain aliens under subsection (c) within a reasonable time after their release from criminal custody—presumptively no more than six months. If the Secretary does not do so, |
Justice Breyer | 2,019 | 2 | dissenting | Nielsen v. Preap | https://www.courtlistener.com/opinion/4601079/nielsen-v-preap/ | than six months. If the Secretary does not do so, she must grant a bail hearing. This presumptive 6-month limit is consistent with how long the Government can detain certain aliens while they are awaiting removal from the country. (interpreting a different provi- sion, To insist upon similar treatment in this context would give the Government sufficient time to detain aliens following their release from local, state, or federal criminal It would also ensure that the Government does not fall outside the 1-year maximum dictated by the transition statute. See 14. IV To reiterate: The question before us is not “narrow.” Ante, at 2 (KAVANAUGH, J., concurring). See That is because we cannot interpret the words of this specific statute without also considering basic promises that America’s legal system has long made to all persons. In deciphering the intent of the Congress that wrote this statute, we must decide—in the face of what is, at worst, linguistic ambiguity—whether Congress intended that persons who have long since paid their debt to society Cite as: 586 U. S. (2019) 17 BREYER, J., dissenting would be deprived of their liberty for months or years without the possibility of bail. We cannot decide that question without bearing in mind basic American legal values: the Government’s duty not to deprive any “person” of “liberty” without “due process of law,” U. S. Const., Amdt. 5; the Nation’s original commitment to protect the “unalienable” right to “Liberty”; and, less abstractly and more directly, the longstanding right of virtually all per- sons to receive a bail hearing. I would have thought that Congress meant to adhere to these values and did not intend to allow the Government to apprehend persons years after their release from prison and hold them indefinitely without a bail hearing. In my view, the Court should interpret the words of this statute to reflect Congress’ likely intent, an intent that is con- sistent with our basic values. To speak more technically, I believe that aliens are subject to paragraph (2)’s bar on release only if they are detained “when released” from criminal To speak less technically, I fear that the Court’s contrary interpretation will work serious harm to the principles for which American law has long stood. For these reasons, with respect, I dissent. 18 NIELSEN v. PREAP AppendixBA J., to the REYER dissenting opinion of BREYER, J. |
Justice Stewart | 1,979 | 18 | dissenting | Board of Ed. of City School Dist. of New York v. Harris | https://www.courtlistener.com/opinion/110160/board-of-ed-of-city-school-dist-of-new-york-v-harris/ | The Court holds that the Emergency School Aid Act of 1972 (ESAA)[1] renders ineligible for ESAA funding any school district whose faculty assignment policies have resulted in racial disparities, even in the total absence of any evidence of intentional racial discrimination. I disagree. It is my view that a school district is ineligible to receive ESAA funds only if it has acted with a racially discriminatory motive or intent in its faculty assignment policies. I The controversy in this case turns on the proper construction of 706 (d) (1) (B) of ESAA, which provides: "No educational agency shall be eligible for assistance under this chapter if it has, after June 23, 1972 "(B) had in effect any practice, policy, or procedure which results in the disproportionate demotion or dismissal *153 of instructional or other personnel from minority groups in conjunction with desegregation or the implementation of any plan or the conduct of any activity described in this section, or otherwise engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency." (Emphasis added.) Since the only discriminatory activity alleged in this case involves the assignment of teachers, the inquiry must focus on the second (italicized) clause of 706 (d) (1) (B) The precise question is what Congress intended when it used the phrase "or otherwise engaged in discrimination." In deciding that question, the starting point is the language of the statute itself. See, e. g., Southeastern Community That language, as the positions of the parties to this suit confirm, may be read in two different ways. The first, that urged by the respondents and endorsed by the Court, is that the ineligibility standard under the second clause of 706 (d) (1) (B), like that under the first clause, turns solely on a finding of disparate racial impact. This reading is supported by the argument that the second clause, which renders ineligible for ESAA funding any school district "engaged in discrimination in the hiring, promotion, or assignment of employees" is linked by the word "otherwise" to the first clause, which unambiguously contains a disparate-impact standard. The argument thus is based on the doctrine of ejusdem generis, construing the word "otherwise" to mean "in a similar manner" or "similarly." The second way to read the statute, that urged by the petitioners, is to find different ineligibility standards in the two clauses of 706 (d) (1) (B)disparate impact alone under the first clause, and discriminatory motive or intent under the second. This reading of the statute is supported by the fact that although |
Justice Stewart | 1,979 | 18 | dissenting | Board of Ed. of City School Dist. of New York v. Harris | https://www.courtlistener.com/opinion/110160/board-of-ed-of-city-school-dist-of-new-york-v-harris/ | of the statute is supported by the fact that although the first clause of 706 (d) (1) (B) is explicitly written in terms of disproportionate *154 impact, the second clause is framed in terms that, as the Court today perceives, "possess an overtone of intent."[2]Ante, at 139. Since the meaning of 706 (d) (1) (B) is thus concededly ambiguous, it is necessary to look beyond the statutory words in order to ascertain their meaning. II That inquiry may appropriately focus on whether the intent of Congress can be determined from a consideration of the legislative history of 706 (d) (1) (B) itself, or of other provisions of ESAA.[3] *155 A The legislative history of the specific provision in issue reveals that the language that ultimately was enacted in 706 (d) (1) (B) first appeared in S. 1557, 92d Cong., 1st Sess., a bill reported out of the Senate Committee on Labor and Public Welfare in 1971. In explaining the language at issue here, the Committee noted: "The phrase `disproportionate demotion or dismissal of instructional or other personnel from minority groups' is not modified or in any way diminished by the subsequent phrase `or otherwise engaged in discrimination based upon race, color or national origin,' which renders ineligible local educational agencies which have engaged in other discrimination, including discrimination in hiring, against minority group employees." S. Rep. No. 92-61, p. 19 (1971) (emphasis added). It is thus apparent that the Senate Committee that drafted the language now appearing in 706 (d) (1) (B) not only recognized a distinction between the ineligibility standards under the first and second clauses, but also regarded the standard of ineligibility under the first clause as more burdensome to the applicant than the standard under the second. The purpose of this differentiation is also made clear in the legislative history. Congress singled out staff demotions and dismissals as appropriate for a disparate-impact standard because it was well documented that desegregation activities had in some States resulted in the wholesale firing of Negro faculty members: "HEW statistics indicate that between 1968 *156 and 1970, in the States within the Fifth Judicial Circuit alone, the number of black teachers was reduced by 1,072, while the number of white teachers increased by 5,575." S. Rep. No. 92-61, These statistics so disturbed Congress that it adopted a per se rule of ineligibility for disproportionate demotions or dismissals of Negro faculty members in conjunction with desegregation activities, even at the cost of withholding ESAA funds from school districts that had in no way intentionally discriminated against Negro faculty members. The legislative history |
Justice Stewart | 1,979 | 18 | dissenting | Board of Ed. of City School Dist. of New York v. Harris | https://www.courtlistener.com/opinion/110160/board-of-ed-of-city-school-dist-of-new-york-v-harris/ | way intentionally discriminated against Negro faculty members. The legislative history of 706 (d) (1) (B) thus strongly suggests that the petitioners have advanced the proper interpretation of the statute. This reading of 706 (d) (1) (B), under which the first clause is governed by disparate impact and the second by motive or intent, is consistent with the fact that Congress not only recognized a distinction between the ineligibility standards under the first and second clauses, but also regarded the standard of ineligibility under the first clause as more burdensome to the applicant than the standard under the second. Apparently recognizing that the legislative history cannot support a reading of 706 (d) (1) (B) that gives the same meaning to the ineligibility standards under its first and second clauses, the Court observes: "If there is a distinction between the two phrases, however, it is not inconsistent with the general impact orientation of 706 (d) (1) (B). For the impact approach itself embraces at least two separate standards: a rebuttable disparate-impact test and a stricter irrebuttable disproportionate-impact test. To the extent that the `demotion or dismissal' clause sets a higher standard for school boards to meet, it corresponds to the irrebuttable impact test." Ante, at 143-144. To draw this distinction between the two clauses is, however, totally at odds with the Court's earlier endorsement of *157 the respondents' reading of the language of the provision. That reading depends wholly on the proposition that inasmuch as the first clause describes disparate impact, the presence of the word "otherwise" in the second clause "lends weight to the argument that a disparate-impact standard [is] also [the standard of ineligibility under the second clause]." Ante, at 143. It should follow that the standard contained in both clauses is the samethat the second clause incorporates the irrebuttable disparate-impact standard embodied in the first. The Court's contrary suggestion that an irrebuttable standard is contained in the first clause, but only a rebuttable standard in the second, is nowhere in the Court's opinion squared with the Court's express agreement with the respondents' reading of the language of 706 (d) (1) (B).[4] *158 The fact of the matter is that the legislative history simply belies the respondents' reading of the statutory language. That history strongly supports the conclusion that, while the first clause of 706 (d) (1) (B) incorporates a disparate-impact standard, the second clause makes ineligibility depend upon discriminatory motive or intent. B The other provisions of ESAA, and particularly the so-called Stennis Amendment, do not, it seems to me, support the weight the Court places upon them.[5] *159 |
Justice Stewart | 1,979 | 18 | dissenting | Board of Ed. of City School Dist. of New York v. Harris | https://www.courtlistener.com/opinion/110160/board-of-ed-of-city-school-dist-of-new-york-v-harris/ | me, support the weight the Court places upon them.[5] *159 The Stennis Amendment, enacted as 703 of ESAA, provides: "(a) It is the policy of the United States that guidelines and criteria established pursuant to [ESAA] shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation. "(b) It is the policy of the United States that guidelines and criteria established pursuant to title VI of the Civil Rights Act of 1964 shall be applied uniformly in all regions of the United States in dealing with conditions of segregation by race whether de jure or de facto in the schools of the local educational agencies of any State without regard to the origin or cause of such segregation." The Court concludes that the Stennis Amendment and its legislative history "indicat[e] that the statute means exactly what it says: the same standard is to govern nationwide, and is to apply to de facto segregation as well as to de jure segregation. It suggests ineligibility rules that focus on actualities, not on history, on consequences, not on intent." Ante, at 146-147 (footnotes omitted). My difficulty with this reasoning stems from the fact that the Stennis Amendment is applicable not only to ESAA, but also to Title VI of the Civil Rights Act of 1964, and the latter has been construed to contain not a mere disparate-impact *160 standard, but a standard of intentional discrimination. In University of California five Members of the Court concluded that Title VI, which prohibits discrimination in federally funded programs, prohibits only discrimination violative of the Fifth Amendment and the Equal Protection Clause of the Fourteenth. ; Those constitutional provisions, in turn, have been construed to reach only purposeful discrimination. Dayton Board of ; Arlington ; ; It thus follows from that Title VI prohibits only purposeful discrimination. It is wholly incongruous to hold in this case that the Stennis Amendment supports a mere "disparate impact" reading of the term "discrimination" in 706 (d) (1) (B) of ESAA, when only two Terms ago five Members of the Court construed the prohibition against "discrimination" in federally funded programs under Title VI, which is equally subject to the Stennis Amendment, to incorporate a purposeful-discrimination test. If Congress in fact intended the Stennis Amendment to establish a uniform national standard prohibiting action leading to disparate racial impact, then it is difficult to understand why this standard should not govern Title VI as |
Justice Stewart | 1,979 | 18 | dissenting | Board of Ed. of City School Dist. of New York v. Harris | https://www.courtlistener.com/opinion/110160/board-of-ed-of-city-school-dist-of-new-york-v-harris/ | understand why this standard should not govern Title VI as well as 706 (d) (1) (B).[6] *161 III The conclusion that ineligibility under the second clause of 706 (d) (1) (B) depends upon a showing of a school district's purposeful discrimination is persuasively supported by the interpretations that have been given to analogous provisions of Title VI and Title VII of the Civil Rights Act of 1964. When Congress enacted ESAA in 1972, it was not writing on a clean slate. To the contrary, when Congress left undefined the term "discrimination" in the second clause of 706 (d) (1) (B), it had already enacted both Title VI of the 1964 Act, which provides that "[n]o person shall be subjected to discrimination under any program or activity receiving Federal financial assistance,"[7] and 703 (a) (1) of Title VII of that Act, which provides that it is unlawful for an employer "to fail or refuse to hire or to discharge any individual or otherwise to discriminate against any individual. because of such individual's race, color, religion, sex, or national origin."[8] These provisions are, in the absence of any explicit definition of "discrimination" in ESAA or its legislative history, a useful guide in determining what Congress intended when it concluded that school districts "engaged in discrimination" should be ineligible to receive ESAA funds. *162 Title VI and 703 (a) (1) of Title VII point clearly toward the necessity of finding discriminatory motive or intent in order to hold a school district ineligible under the second clause of 706 (d) (1) (B).[9] Title VI, as already pointed out, has been construed to prohibit only discrimination violative of the Fifth Amendment or the Equal Protection Clause of the Fourteenth, University of California 438 U. S., ; ; and, in turn, those constitutional provisions have been construed to prohibit only purposeful discrimination, Dayton Board of Arlington Keyes v. School Dist. No. 1, Denver And, in construing 703 (a) (1) of Title VII, which, at its core, prohibits an employer from "treat[ing] some people less favorably than others because of their race, color, religion, sex, or national origin," we have held that "[p]roof of discriminatory motive is critical," Accord, Furnco Construction v. Waters, ; McDonnell Douglas v. Green,[10] *163 If the term "discrimination" in 706 (d) (1) (B) was in fact intended to mean something other than what it means under Title VI and 703 (a) (1) of Title VII, Congress could have been expected to state the difference in explicit terms. Since there is no such expression of congressional intent, it follows that the meaning of |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | The question presented is whether a moratorium on development imposed during the process of devising a comprehensive land-use plan constitutes a per se taking of property requiring compensation under the Takings Clause of the United Constitution.[1] This case actually involves two moratoria ordered by respondent Tahoe Regional Planning Agency (TRPA) to maintain the status quo while studying the impact of development on Lake Tahoe and designing a strategy for environmentally sound growth. The first, Ordinance 81-5, was effective from August 24, 1981, until August 26, 1983, whereas the second more restrictive Resolution 83-21 was in effect from August 27, 1983, until April 25, 1984. As a result of these two directives, virtually all development on a substantial portion of the property subject to TRPA's jurisdiction was prohibited for a period of 32 months. Although the question we decide relates only to that 32-month period, a brief description of the events leading up to the moratoria and a comment on the two permanent *307 plans that TRPA adopted thereafter will clarify the narrow scope of our holding. I The relevant facts are undisputed. The Court of Appeals, while reversing the District Court on a question of law, accepted all of its findings of fact, and no party challenges those findings. All agree that Lake Tahoe is "uniquely beautiful," that President Clinton was right to call it a "`national treasure that must be protected and preserved,' " and that Mark Twain aptly described the clarity of its waters as "`not merely transparent, but dazzlingly, brilliantly so,' " (quoting M. Twain, Roughing It 174-175 (1872)). Lake Tahoe's exceptional clarity is attributed to the absence of algae that obscures the waters of most other lakes. Historically, the lack of nitrogen and phosphorous, which nourish the growth of algae, has ensured the transparency of its waters.[2] Unfortunately, the lake's pristine state has deteriorated rapidly over the past 40 years; increased land development in the Lake Tahoe Basin (Basin) has threatened the "`noble sheet of blue water' " beloved by Twain and countless others. 34 F. Supp. 2d, at As the District Court found, "[d]ramatic decreases in clarity first began to be noted in the late 1950's/early 1960's, shortly after development at the lake began in earnest." The lake's unsurpassed beauty, it seems, is the wellspring of its undoing. *308 The upsurge of development in the area has caused "increased nutrient loading of the lake largely because of the increase in impervious coverage of land in the Basin resulting from that development." "Impervious coveragesuch as asphalt, concrete, buildings, and even packed dirtprevents precipitation from being absorbed |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | concrete, buildings, and even packed dirtprevents precipitation from being absorbed by the soil. Instead, the water is gathered and concentrated by such coverage. Larger amounts of water flowing off a driveway or a roof have more erosive force than scattered raindrops falling over a dispersed areaespecially one covered with indigenous vegetation, which softens the impact of the raindrops themselves." Given this trend, the District Court predicted that "unless the process is stopped, the lake will lose its clarity and its trademark blue color, becoming green and opaque for eternity."[3] Those areas in the Basin that have steeper slopes produce more runoff; therefore, they are usually considered "high hazard" lands. Moreover, certain areas near streams or wetlands known as "Stream Environment Zones" (SEZs) are especially vulnerable to the impact of development because, in their natural state, they act as filters for much of the debris that runoff carries. Because "[t]he most obvious response to this problem is torestrict development around the lakeespecially in SEZ lands, as well as in areas already naturally prone to runoff," conservation efforts have focused on controlling growth in these high hazard areas. In the 1960's, when the problems associated with the burgeoning development began to receive significant attention, *309 jurisdiction over the Basin, which occupies 501 square miles, was shared by the of California and Nevada, five counties, several municipalities, and the Forest Service of the Federal Government. In 1968, the legislatures of the two adopted the Tahoe Regional Planning Compact, see 1968 Cal. Stats. no. 998, p. 1900, 1; 1968 Nev. Stats. p. 4, which Congress approved in 1969, Stat. 360. The compact set goals for the protection and preservation of the lake and created TRPA as the agency assigned "to coordinate and regulate development in the Basin and to conserve its natural resources." Lake Country Estates, Pursuant to the compact, in 1972 TRPA adopted a Land Use Ordinance that divided the land in the Basin into seven "land capability districts," based largely on steepness but also taking into consideration other factors affecting runoff. Each district was assigned a "land coverage coefficienta recommended limit on the percentage of such land that could be covered by impervious surface." Those limits ranged from 1% for districts 1 and 2 to 30% for districts 6 and 7. Land in districts 1, 2, and 3 is characterized as "high hazard" or "sensitive," while land in districts 4, 5, 6, and 7 is "low hazard" or "non-sensitive." The SEZ lands, though often treated as a separate category, were actually a subcategory of district 1. 34 F. Supp. 2d, Unfortunately, the |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | subcategory of district 1. 34 F. Supp. 2d, Unfortunately, the 1972 ordinance allowed numerous exceptions and did not significantly limit the construction of new residential housing. California became so dissatisfied with TRPA that it withdrew its financial support and unilaterally imposed stricter regulations on the part of the Basin located in Eventually the two with the approval of Congress and the President, adopted an extensive amendment to the compact that became effective on December 19, 1980. Stat. 3233; Cal. *310 Govt. Code Ann. 801 (West Supp. 2002); Nev. Rev. Stat. 277.200 The 1980 Tahoe Regional Planning Compact (Compact) redefined the structure, functions, and voting procedures of TRPA, App. 37, -3238; and directed it to develop regional "environmental threshold carrying capacities"a term that embraced "standards for air quality, water quality, soil conservation, vegetation preservation and noise." 3239. The Compact provided that TRPA "shall adopt" those standards within 18 months, and that "[w]ithin 1 year after" their adoption (i. e., by June 19, 1983), it "shall" adopt an amended regional plan that achieves and maintains those carrying capacities. The Compact also contained a finding by the legislatures of California and Nevada "that in order to make effective the regional plan as revised by [TRPA], it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan." Accordingly, for the period prior to the adoption of the final plan ("or until May 1, 1983, whichever is earlier"), the Compact itself prohibited the development of new subdivisions, condominiums, and apartment buildings, and also prohibited each city and county in the Basin from granting any more permits in 1981, 1982, or 1983 than had been granted in 1978.[4] During this period TRPA was also working on the development of a regional water quality plan to comply with the Clean Water Act, 33 U.S. C. 1288 (1994 ed.). Despite *311 the fact that TRPA performed these obligations in "good faith and to the best of its ability," after a few months it concluded that it could not meet the deadlines in the Compact. On June 25, 1981, it therefore enacted Ordinance 81-5 imposing the first of the two moratoria on development that petitioners challenge in this proceeding. The ordinance provided that it would become effective on August 24, 1981, and remain in effect pending the adoption of the permanent plan required by the Compact. App. 159, 191. The District Court made a detailed analysis of the ordinance, noting that it might even prohibit |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | analysis of the ordinance, noting that it might even prohibit hiking or picnicking on SEZ lands, but construed it as essentially banning any construction or other activity that involved the removal of vegetation or the creation of land coverage on all SEZ lands, as well as on class 1, 2, and 3 lands in -1235. Some permits could be obtained for such construction in Nevada if certain findings were made. It is undisputed, however, that Ordinance 81-5 prohibited the construction of any new residences on SEZ lands in either State and on class 1, 2, and 3 lands in Given the complexity of the task of defining "environmental threshold carrying capacities" and the division of opinion within TRPA's governing board, the District Court found that it was "unsurprising" that TRPA failed to adopt those thresholds until August 26, 1982, roughly two months after the Compact deadline. Under a liberal reading of the Compact, TRPA then had until August 26, 1983, to adopt a new regional plan. "Unfortunately, but again not surprisingly, no regional plan was in place as of that date." 34 F. Supp. 2d, TRPA therefore adopted Resolution 83-21, "which completely suspended all project reviews and approvals, including the acceptance of new proposals," and which remained in effect until a new regional plan was adopted on April 26, 1984. Thus, Resolution *312 83-21 imposed an 8-month moratorium prohibiting all construction on high hazard lands in either State. In combination, Ordinance 81-5 and Resolution 83-21 effectively prohibited all construction on sensitive lands in California and on all SEZ lands in the entire Basin for 32 months, and on sensitive lands in Nevada (other than SEZ lands) for eight months. It is these two moratoria that are at issue in this case. On the same day that the 1984 plan was adopted, the State of California filed an action seeking to enjoin its implementation on the ground that it failed to establish land-use controls sufficiently stringent to protect the Basin. The District Court entered an injunction that was upheld by the Court of Appeals and remained in effect until a completely revised plan was adopted in 1987. Both the 1984 injunction and the 1987 plan contained provisions that prohibited new construction on sensitive lands in the Basin. As the case comes to us, however, we have no occasion to consider the validity of those provisions. II Approximately two months after the adoption of the 1984 plan, petitioners filed parallel actions against TRPA and other defendants in federal courts in Nevada and California that were ultimately consolidated for trial in the District |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | California that were ultimately consolidated for trial in the District of Nevada. The petitioners include the Tahoe-Sierra Preservation Council, Inc., a nonprofit membership corporation representing about 2,000 owners of both improved and unimproved parcels of real estate in the Lake Tahoe Basin, and a class of some 400 individual owners of vacant lots located either on SEZ lands or in other parts of districts 1, 2, or 3. Those individuals purchased their properties prior to the effective date of the 1980 Compact, App. 34, primarily for the purpose of constructing "at a time of their choosing" a single-family home "to serve as a permanent, retirement or *313 vacation residence," When they made those purchases, they did so with the understanding that such construction was authorized provided that "they complied with all reasonable requirements for building." [5] Petitioners' complaints gave rise to protracted litigation that has produced four opinions by the Court of Appeals for the Ninth Circuit and several published District Court opinions.[6] For present purposes, however, we need only describe those courts' disposition of the claim that three actions taken by TRPAOrdinance 81-5, Resolution 83-21, and the 1984 regional planconstituted takings of petitioners' property without just compensation.[7] Indeed, the challenge to the 1984 plan is not before us because both the District Court and the Court of Appeals held that it was the federal injunction against implementing that plan, rather than the plan itself, that caused the post-1984 injuries that petitioners allegedly suffered, and those rulings are not encompassed within our limited grant of certiorari.[8] Thus, *314 we limit our discussion to the lower courts' disposition of the claims based on the 2-year moratorium (Ordinance 81-5) and the ensuing 8-month moratorium (Resolution 83-21). The District Court began its constitutional analysis by identifying the distinction between a direct government appropriation of property without just compensation and a government regulation that imposes such a severe restriction on the owner's use of her property that it produces "nearly the same result as a direct appropriation." The court noted that all of the claims in this case "are of the `regulatory takings' variety." Citing our decision in it then stated that a "regulation will constitute a taking when either: (1) it does not substantially advance a legitimate state interest; or (2) it denies the owner economically viable use of her land." 34 F. Supp. 2d, The District Court rejected the first alternative based on its finding that "further development on high hazard lands such as [petitioners'] would lead to significant additional damage to the lake."[9] With respect *315 to the second alternative, the |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | the lake."[9] With respect *315 to the second alternative, the court first considered whether the analysis adopted in Penn Transp. would lead to the conclusion that TRPA had effected a "partial taking," and then whether those actions had effected a "total taking."[10] Emphasizing the temporary nature of the regulations, the testimony that the "average holding time of a lot in the Tahoe area between lot purchase and home construction is twenty-five years," and the failure of petitioners to offer specific evidence of harm, the District Court concluded that "consideration of the Penn factors clearly leads to the conclusion that there was no taking." 34 F. Supp. 2d, In the absence of evidence regarding any of the individual plaintiffs, the court evaluated the "average" purchasers' intent and found that such purchasers "did not have reasonable, investment-backed expectations that they would be able to build single-family homes on their land within the six-year period involved in this lawsuit."[11] *316 The District Court had more difficulty with the "total taking" issue. Although it was satisfied that petitioners' property did retain some value during the moratoria,[12] it found that they had been temporarily deprived of "all economically viable use of their land." The court concluded that those actions therefore constituted "categorical" takings under our decision in It rejected TRPA's response that Ordinance 81-5 and Resolution 8321 were "reasonable temporary planning moratoria" that should be excluded from ' categorical approach. The court thought it "fairly clear" that such interim actions would not have been viewed as takings prior to our decisions in and First Evangelical Lutheran Church of because "[z]oning boards, cities, counties and other agencies used them all the time to `maintain the status quo pending study and governmental decision making.' " -12 ). After expressing uncertainty as to whether those cases required a holding that moratoria on development automatically effect takings, the court concluded that TRPA's actions did so, partly because neither the ordinance nor the resolution, even though intended to be temporary from the beginning, contained an *317 express termination date. -1251.[13] Accordingly, it ordered TRPA to pay damages to most petitioners for the 32-month period from August 24, 1981, to April 25, 1984, and to those owning class 1, 2, or 3 property in Nevada for the 8-month period from August 27, 1983, to April 25, 1984. Both parties appealed. TRPA successfully challenged the District Court's takings determination, and petitioners unsuccessfully challenged the dismissal of their claims based on the 1984 and 1987 plans. Petitioners did not, however, challenge the District Court's findings or conclusions concerning its application of Penn With |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | Court's findings or conclusions concerning its application of Penn With respect to the two moratoria, the Ninth Circuit noted that petitioners had expressly disavowed an argument "that the regulations constitute a taking under the ad hoc balancing approach described in Penn " and that they did not "dispute that the restrictions imposed on their properties are appropriate means of securing the purpose set forth in the Compact."[14] Accordingly, the only question before the court was "whether the rule set forth in appliesthat is, whether a categorical *318 taking occurred because Ordinance 81-5 and Resolution 83-21 denied the plaintiffs `all economically beneficial or productive use of land.' " Moreover, because petitioners brought only a facial challenge, the narrow inquiry before the Court of Appeals was whether the mere enactment of the regulations constituted a taking. Contrary to the District Court, the Court of Appeals held that because the regulations had only a temporary impact on petitioners' fee interest in the properties, no categorical taking had It reasoned: "Property interests may have many different dimensions. For example, the dimensions of a property interest may include a physical dimension (which describes the size and shape of the property in question), a functional dimension (which describes the extent to which an owner may use or dispose of the property in question), and a temporal dimension (which describes the duration of the property interest). At base, the plaintiffs' argument is that we should conceptually sever each plaintiff's fee interest into discrete segments in at least one of these dimensionsthe temporal one and treat each of those segments as separate and distinct property interests for purposes of takings analysis. Under this theory, they argue that there was a categorical taking of one of those temporal segments." Putting to one side "cases of physical invasion or occupation," the court read our cases involving regulatory taking claims to focus on the impact of a regulation on the parcel as a whole. In its view a "planning regulation that prevents the development of a parcel for a temporary period of time is conceptually no different than a land-use restriction that permanently denies all use on a discrete portion of property, or that permanently restricts a type *319 of use across all of the parcel." In each situation, a regulation that affects only a portion of the parcel whether limited by time, use, or spacedoes not deprive the owner of all economically beneficial use.[15] The Court of Appeals distinguished as applying to the "`relatively rare' " case in which a regulation denies all productive use of an entire parcel, whereas |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | regulation denies all productive use of an entire parcel, whereas the moratoria involve only a "temporal `slice' " of the fee interest and a form of regulation that is widespread and well 216 F.3d, at -774. It also rejected petitioners' argument that our decision in First was controlling. According to the Court of Appeals, First concerned the question whether compensation is an appropriate remedy for a temporary taking and not whether or when such a taking has Faced squarely with the question whether a taking had occurred, the court held that Penn was the appropriate framework for analysis. Petitioners, however, had failed to challenge the District *320 Court's conclusion that they could not make out a taking claim under the Penn factors. Over the dissent of five judges, the Ninth Circuit denied a petition for rehearing en banc. In the dissenters' opinion, the panel's holding was not faithful to this Court's decisions in First and nor to Justice Holmes admonition in Pennsylvania Coal that "`a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.' " Because of the importance of the case, we granted certiorari limited to the question stated at the beginning of this opinion. We now affirm. III Petitioners make only a facial attack on Ordinance 81-5 and Resolution 83-21. They contend that the mere enactment of a temporary regulation that, while in effect, denies a property owner all viable economic use of her property gives rise to an unqualified constitutional obligation to compensate her for the value of its use during that Hence, they "face an uphill battle," Bituminous Coal that is made especially steep by their desire for a categorical rule requiring compensation whenever the government imposes such a moratorium on development. Under their proposed rule, there is no need to evaluate the landowners' investment-backed expectations, the actual impact of the regulation on any individual, the importance of the public interest served by the regulation, or the reasons for imposing the temporary restriction. For petitioners, it is enough that a regulation imposes a temporary deprivation no matter how briefof all economically viable use to trigger a per se rule that a taking has Petitioners assert that our opinions in First and have *321 already endorsed their view, and that it is a logical application of the principle that the Takings Clause was "designed to bar Government from forcing some people alone to bear burdens which, in all fairness and justice, should be borne by the public |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | all fairness and justice, should be borne by the public as a whole." We shall first explain why our cases do not support their proposed categorical ruleindeed, fairly read, they implicitly reject it. Next, we shall explain why the Armstrong principle requires rejection of that rule as well as the less extreme position advanced by petitioners at oral argument. In our view the answer to the abstract question whether a temporary moratorium effects a taking is neither "yes, always" nor "no, never"; the answer depends upon the particular circumstances of the case.[16] Resisting "[t]he temptation to adopt what amount to per se rules in either direction," we conclude that the circumstances in this case are best analyzed within the Penn framework. IV The text of the Fifth Amendment itself provides a basis for drawing a distinction between physical takings and regulatory takings. Its plain language requires the payment of compensation whenever the government acquires private property for a public purpose, whether the acquisition is the result of a condemnation proceeding or a physical appropriation. But the Constitution contains no comparable reference to regulations that prohibit a property owner from *322 making certain uses of her private property.[17] Our jurisprudence involving condemnations and physical takings is as old as the Republic and, for the most part, involves the straightforward application of per se rules. Our regulatory takings jurisprudence, in contrast, is of more recent vintage and is characterized by "essentially ad hoc, factual inquiries," Penn designed to allow "careful examination and weighing of all the relevant circumstances." 533 U. S., at When the government physically takes possession of an interest in property for some public purpose, it has a categorical duty to compensate the former owner, United regardless of whether the interest that is taken constitutes an entire parcel or merely a part thereof. Thus, compensation is mandated when a leasehold is taken and the government occupies the property for its own purposes, even though that use is temporary. United ; United Similarly, when the government appropriates part of a roof top in order to provide cable TV access for apartment tenants, ; or when its planes use private airspace to approach a government airport, United it is required to pay for that share no matter how small. But a government regulation that merely prohibits landlords from evicting *323 tenants unwilling to pay a higher rent, ; that bans certain private uses of a portion of an owner's property, Village of ; Bituminous Coal ; or that forbids the private use of certain airspace, Penn Transp. does not constitute a categorical |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | of certain airspace, Penn Transp. does not constitute a categorical taking. "The first category of cases requires courts to apply a clear rule; the second necessarily entails complex factual assessments of the purposes and economic effects of government actions." See also ; n. 18. This longstanding distinction between acquisitions of property for public use, on the one hand, and regulations prohibiting private uses, on the other, makes it inappropriate to treat cases involving physical takings as controlling precedents for the evaluation of a claim that there has been a "regulatory taking,"[18] and vice versa. For the same reason that we do not ask whether a physical appropriation advances a substantial government interest or whether it deprives the owner of all economically valuable use, we do not apply our precedent from the physical takings context *324 to regulatory takings claims. Land-use regulations are ubiquitous and most of them impact property values in some tangential wayoften in completely unanticipated ways. Treating them all as per se takings would transform government regulation into a luxury few governments could afford. By contrast, physical appropriations are relatively rare, easily identified, and usually represent a greater affront to individual property rights.[19] "This case does not present the `classi[c] taking' in which the government directly appropriates private property for its own use," Eastern 524 U.S. 8, ; instead the interference with property rights "arises from some public program adjusting the benefits and burdens of economic *325 life to promote the common good," Penn Perhaps recognizing this fundamental distinction, petitioners wisely do not place all their emphasis on analogies to physical takings cases. Instead, they rely principally on our decision in a regulatory takings case that, nevertheless, applied a categorical ruleto argue that the Penn framework is inapplicable here. A brief review of some of the cases that led to our decision in however, will help to explain why the holding in that case does not answer the question presented here. As we noted in it was Justice Holmes' opinion in Pennsylvania Coal[20] that gave birth to our regulatory takings jurisprudence.[21]*326 In subsequent opinions we have repeatedly and consistently endorsed Holmes' observation that "if regulation goes too far it will be recognized as a taking." Justice Holmes did not provide a standard for determining when a regulation goes "too far," but he did reject the view expressed in Justice Brandeis' dissent that there could not be a taking because the property remained in the possession of the owner and had not been appropriated or used by the public.[22] After neither a physical appropriation nor a public use has |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | After neither a physical appropriation nor a public use has ever been a necessary component of a "regulatory taking." In the decades following that decision, we have "generally eschewed" any set formula for determining how far is too far, choosing instead to engage in "`essentially ad hoc, factual inquiries.' " (quoting Penn ). Indeed, we still resist the temptation to adopt per se rules in our cases involving partial regulatory takings, preferring to examine "a number of factors" rather than a simple "mathematically precise" formula.[23] Justice Brennan's opinion for the Court in Penn *327 did, however, make it clear that even though multiple factors are relevant in the analysis of regulatory takings claims, in such cases we must focus on "the parcel as a whole": "`Taking' jurisprudence does not divide a single parcel into discrete segments and attempt to determine whether rights in a particular segment have been entirely abrogated. In deciding whether a particular governmental action has effected a taking, this Court focuses rather both on the character of the action and on the nature and extent of the interference with rights in the parcel as a wholehere, the city tax block designated as the `landmark site.' " This requirement that "the aggregate must be viewed in its entirety" explains why, for example, a regulation that prohibited commercial transactions in eagle feathers, but did not bar other uses or impose any physical invasion or restraint upon them, was not a taking. It also clarifies why restrictions on the use of only limited portions of the parcel, such as setback ordinances, or a requirement that coal pillars be left in place to prevent mine subsidence, Bituminous Coal 480 U. S., at 8, were not considered regulatory takings. In each of these cases, we affirmed that "where an owner possesses a full `bundle' of property rights, the destruction of one `strand' of the bundle is not a taking." -. *328 While the foregoing cases considered whether particular regulations had "gone too far" and were therefore invalid, none of them addressed the separate remedial question of how compensation is measured once a regulatory taking is In his dissenting opinion in San Diego Gas & Elec. Justice Brennan identified that question and explained how he would answer it: "The constitutional rule I propose requires that, once a court finds that a police power regulation has effected a `taking,' the government entity must pay just compensation for the period commencing on the date the regulation first effected the `taking,' and ending on the date the government entity chooses to rescind or otherwise amend the |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | the government entity chooses to rescind or otherwise amend the regulation." Justice Brennan's proposed rule was subsequently endorsed by the Court in First 318, 321. First was certainly a significant decision, and nothing that we say today qualifies its holding. Nonetheless, it is important to recognize that we did not address in that case the quite different and logically prior question whether the temporary regulation at issue had in fact constituted a taking. In First the Court unambiguously and repeatedly characterized the issue to be decided as a "compensation question" or a "remedial question." ; see also And the Court's statement of its holding was equally unambiguous: "We merely hold that where the government's activities have already worked a taking of all use of property, no subsequent action by the government can relieve it of the duty to provide compensation for the period during which the taking was effective." In fact, First expressly disavowed any ruling on the *329 merits of the takings issue because the California courts had decided the remedial question on the assumption that a taking had been alleged. After our remand, the California courts concluded that there had not been a taking, First Evangelical Church of and we declined review of that decision, 3 U.S. 1056 To the extent that the Court in First referenced the antecedent takings question, we identified two reasons why a regulation temporarily denying an owner all use of her property might not constitute a taking. First, we recognized that "the county might avoid the conclusion that a compensable taking had occurred by establishing that the denial of all use was insulated as a part of the State's authority to enact safety regulations." Second, we limited our holding "to the facts presented" and recognized "the quite different questions that would arise in the case of normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like which [were] not before us." Thus, our decision in First surely did not approve, and implicitly rejected, the categorical submission that petitioners are now advocating. Similarly, our decision in is not dispositive of the question presented. Although endorsed and applied a categorical rule, it was not the one that petitioners propose. purchased two residential lots in 1988 for $975,000. These lots were rendered "valueless" by a statute enacted two years later. The trial court found that a taking had occurred and ordered compensation of $1,232,387.50, representing the value of the fee simple estate, plus interest. As the statute read at the time of the trial, it effected a taking that "was unconditional and |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | the trial, it effected a taking that "was unconditional and permanent." 505 U. S., *330 at 1012. While the State's appeal was pending, the statute was amended to authorize exceptions that might have allowed to obtain a building permit. Despite the fact that the amendment gave the State Supreme Court the opportunity to dispose of the appeal on ripeness grounds, it resolved the merits of the permanent takings claim and reversed. Since " had no reason to proceed on a `temporary taking' theory at trial," we decided the case on the permanent taking theory that both the trial court and the State Supreme Court had addressed. The categorical rule that we applied in states that compensation is required when a regulation deprives an owner of "all economically beneficial uses" of his land. Under that rule, a statute that "wholly eliminated the value" of ' fee simple title clearly qualified as a taking. But our holding was limited to "the extraordinary circumstance when no productive or economically beneficial use of land is permitted." The emphasis on the word "no" in the text of the opinion was, in effect, reiterated in a footnote explaining that the categorical rule would not apply if the diminution in value were 95% instead of 100%. n. 8.[24] Anything less than a "complete elimination of value," or a "total loss," the Court acknowledged, would require the kind of analysis applied in Penn 505 U. S., -1020, n. 8.[25] Certainly, our holding that the permanent "obliteration of the value" of a fee simple estate constitutes a categorical taking does not answer the question whether a regulation *331 prohibiting any economic use of land for a 32-month period has the same legal effect. Petitioners seek to bring this case under the rule announced in by arguing that we can effectively sever a 32-month segment from the remainder of each landowner's fee simple estate, and then ask whether that segment has been taken in its entirety by the moratoria. Of course, defining the property interest taken in terms of the very regulation being challenged is circular. With property so divided, every delay would become a total ban; the moratorium and the normal permit process alike would constitute categorical takings. Petitioners' "conceptual severance" argument is unavailing because it ignores Penn `s admonition that in regulatory takings cases we must focus on "the parcel as a whole." 131. We have consistently rejected such an approach to the "denominator" question. See 480 U. S., at 7. See also Concrete Pipe & Products of Cal., Thus, the District Court erred when it disaggregated |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | of Cal., Thus, the District Court erred when it disaggregated petitioners' property into temporal segments corresponding to the regulations at issue and then analyzed whether petitioners were deprived of all economically viable use during each -1245. The starting point for the court's analysis should have been to ask whether there was a total taking of the entire parcel; if not, then Penn was the proper framework.[26] An interest in real property is defined by the metes and bounds that describe its geographic dimensions and the *332 term of years that describes the temporal aspect of the owner's interest. See Restatement of Property 7-9 (1936). Both dimensions must be considered if the interest is to be viewed in its entirety. Hence, a permanent deprivation of the owner's use of the entire area is a taking of "the parcel as a whole," whereas a temporary restriction that merely causes a diminution in value is not. Logically, a fee simple estate cannot be rendered valueless by a temporary prohibition on economic use, because the property will recover value as soon as the prohibition is lifted. Cf. n. 9 )). Neither nor First nor any of our other regulatory takings cases compels us to accept petitioners' categorical submission. In fact, these cases make clear that the categorical rule in was carved out for the "extraordinary case" in which a regulation permanently deprives property of all value; the default rule remains that, in the regulatory taking context, we require a more fact specific inquiry. Nevertheless, we will consider whether the interest in protecting individual property owners from bearing public burdens "which, in all fairness and justice, should be borne by the public as a whole," 364 U. S., at justifies creating a new rule for these circumstances.[27] *333 V Considerations of "fairness and justice" arguably could support the conclusion that TRPA's moratoria were takings of petitioners' property based on any of seven different theories. First, even though we have not previously done so, we might now announce acategorical rule that, in the interest of fairness and justice, compensation is required whenever government temporarily deprives an owner of all economically viable use of her property. Second, we could craft a narrower rule that would cover all temporary landuse restrictions except those "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like" which were put to one side in our opinion in First 482 U. S., Third, we could adopt a rule like the one suggested by an amicus supporting petitioners that would "allow a short fixed period for deliberations to take place |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | "allow a short fixed period for deliberations to take place without compensationsay maximum one yearafter which the just compensation requirements" would "kick in."[28] Fourth, with the benefit of hindsight, we might characterize the successive actions of TRPA as a "series of rolling moratoria" that were the functional equivalent of a permanent taking.[29] Fifth, were it not for the findings of the District Court that TRPA acted diligently and in good faith, we might have concluded that the agency was stalling in order to avoid promulgating the environmental threshold carrying capacities and regional plan mandated by the 1980 Compact. Cf. Sixth, apart from the District Court's finding that TRPA's actions represented a proportional response to a serious risk of harm to the lake, petitioners might have argued that the moratoria did not substantially advance a legitimate state interest, see Agins and Monterey. Finally, if petitioners had challenged the application of the moratoria to their individual parcels, instead of making a facial challenge, some of them might have prevailed under a Penn analysis. As the case comes to us, however, none of the last four theories is available. The "rolling moratoria" theory was presented in the petition for certiorari, but our order granting review did not encompass that issue, ; the case was tried in the District Court and reviewed in the Court of Appeals on the theory that each of the two moratoria was a separate taking, one for a 2-year period and the other for an 8-month And, as we have already noted, recovery on either a bad faith theory or a theory that the state interests were insubstantial is foreclosed by the District Court's unchallenged findings of fact. Recovery under a Penn analysis is also foreclosed both because petitioners expressly disavowed that theory, and because they did not appeal from the District Court's conclusion that the evidence would not support it. Nonetheless, each of the three per se theories is fairly encompassed within the question that we decided to answer. With respect to these theories, the ultimate constitutional question is whether the concepts of "fairness and justice" that underlie the Takings Clause will be better served by one of these categorical rules or by a Penn inquiry into all of the relevant circumstances in particular cases. From that perspective, the extreme categorical rule that any deprivation of all economic use, no matter how brief, constitutes a compensable taking surely cannot be sustained. Petitioners' broad submission would apply to numerous *335 "normal delays in obtaining building permits, changes in zoning ordinances, variances, and the like," 482 U.S., as well as |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | ordinances, variances, and the like," 482 U.S., as well as to orders temporarily prohibiting access to crime scenes, businesses that violate health codes, fire-damaged buildings, or other areas that we cannot now foresee. Such a rule would undoubtedly require changes in numerous practices that have long been considered permissible exercises of the police power. As Justice Holmes warned in "[g]overnment hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law." A rule that required compensation for every delay in the use of property would render routine government processes prohibitively expensive or encourage hasty decisionmaking. Such an important change in the law should be the product of legislative rulemaking rather than adjudication.[30] More importantly, for reasons set out at some length by Justice O'Connor in her concurring opinion in 533 U. S., at we are persuaded that the better approach to claims that a regulation has effected a temporary taking "requires careful examination and weighing of all the relevant circumstances." In that opinion, Justice O'Connor specifically considered the role that the "temporal relationship between regulatory enactment and title acquisition" should play in the analysis of a takings claim. We have no occasion to address that particular issue in this case, because it involves a different *336 temporal relationshipthe distinction between a temporary restriction and one that is permanent. Her comments on the "fairness and justice" inquiry are, nevertheless, instructive: "Today's holding does not mean that the timing of the regulation's enactment relative to the acquisition of title is immaterial to the Penn analysis. Indeed, it would be just as much error to expunge this consideration from the takings inquiry as it would be to accord it exclusive significance. Our polestar instead remains the principles set forth in Penn itself and our other cases that govern partial regulatory takings. Under these cases, interference with investment-backed expectations is one of a number of factors that a court must examine. "The Fifth Amendment forbids the taking of private property for public use without just compensation. We have recognized that this constitutional guarantee is ` "designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole."` Penn [438 U. S.], at 123-124 ). The concepts of `fairness and justice' that underlie the Takings Clause, of course, are less than fully determinate. Accordingly, we have eschewed `any "set formula" for determining when "justice and fairness" require that economic injuries caused by public action |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | and fairness" require that economic injuries caused by public action be compensated by the government, rather than remain disproportionately concentrated on a few persons.' Penn ). The outcome instead `depends largely "upon the particular circumstances [in that] case."` Penn )." *337 In rejecting petitioners' per se rule, we do not hold that the temporary nature of a land-use restriction precludes finding that it effects a taking; we simply recognize that it should not be given exclusive significance one way or the other. A narrower rule that excluded the normal delays associated with processing permits, or that covered only delays of more than a year, would certainly have a less severe impact on prevailing practices, but it would still impose serious financial constraints on the planning process.[31] Unlike the "extraordinary circumstance" in which the government deprives a property owner of all economic use, 505 U. S., moratoria like Ordinance 81-5 and Resolution 83 21 are used widely among land-use planners to preserve the status quo while formulating a more permanent development strategy.[32] In fact, the consensus in the planning community *338 appears to be that moratoria, or "interim development controls" as they are often called, are an essential tool of successful development.[33] Yet even the weak version of petitioners' categorical rule would treat these interim measures as takings regardless of the good faith of the planners, the reasonable expectations of the landowners, or the actual impact of the moratorium on property values.[34] *339 The interest in facilitating informed decisionmaking by regulatory agencies counsels against adopting a per se rule that would impose such severe costs on their deliberations. Otherwise, the financial constraints of compensating property owners during a moratorium may force officials to rush through the planning process or to abandon the practice altogether. To the extent that communities are forced to abandon using moratoria, landowners will have incentives to develop their property quickly before a comprehensive plan can be enacted, thereby fostering inefficient and ill-conceived growth. A finding in the 1980 Compact itself, which presumably was endorsed by all three legislative bodies that participated in its enactment, attests to the importance of that concern. ("The legislatures of the of California and Nevada find that in order to make effective the regional plan as revised by the agency, it is necessary to halt temporarily works of development in the region which might otherwise absorb the entire capability of the region for further development or direct it out of harmony with the ultimate plan"). As Justice Kennedy explained in his opinion for the Court in it is the interest in informed decisionmaking |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | the Court in it is the interest in informed decisionmaking that underlies our decisions imposing a strict ripeness requirement on landowners asserting regulatory takings claims: "These cases stand for the important principle that a landowner may not establish a taking before a landuse authority has the opportunity, using its own reasonable procedures, to decide and explain the reach of a challenged regulation. Under our ripeness rules a takings claim based on a law or regulation which is alleged to go too far in burdening property depends upon the landowner's first having followed reasonable *340 and necessary steps to allow regulatory agencies to exercise their full discretion in considering development plans for the property, including the opportunity to grant any variances or waivers allowed by law. As a general rule, until these ordinary processes have been followed the extent of the restriction on property is not known and a regulatory taking has not yet been See Suitum [v. Tahoe Regional Planning Agency, ] (noting difficulty of demonstrating that `mere enactment' of regulations restricting land use effects a taking)." -621. We would create a perverse system of incentives were we to hold that landowners must wait for a takings claim to ripen so that planners can make well-reasoned decisions while, at the same time, holding that those planners must compensate landowners for the delay. Indeed, the interest in protecting the decisional process is even stronger when an agency is developing a regional plan than when it is considering a permit for a single parcel. In the proceedings involving the Lake Tahoe Basin, for example, the moratoria enabled TRPA to obtain the benefit of comments and criticisms from interested parties, such as the petitioners, during its deliberations.[35] Since a categorical rule tied to the length of deliberations would likely create added pressure on decisionmakers to reach a quick resolution of land-use questions, it would only serve to disadvantage those landowners and interest groups who are not as organized *341 or familiar with the planning process. Moreover, with a temporary ban on development there is a lesser risk that individual landowners will be "singled out" to bear a special burden that should be shared by the public as a whole. At least with a moratorium there is a clear "reciprocity of advantage," 260 U. S., because it protects the interests of all affected landowners against immediate construction that might be inconsistent with the provisions of the plan that is ultimately adopted. "While each of us is burdened somewhat by such restrictions, we, in turn, benefit greatly from the restrictions that are placed on others." |
Justice Stevens | 2,002 | 16 | majority | Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency | https://www.courtlistener.com/opinion/118498/tahoe-sierra-preservation-council-inc-v-tahoe-regional-planning-agency/ | benefit greatly from the restrictions that are placed on others." 480 U. S., at 1. In fact, there is reason to believe property values often will continue to increase despite a moratorium. See, e. g., Growth Properties, Cf. Forest Properties, Inc. v. United Such an increase makes sense in this context because property values throughout the Basin can be expected to reflect the added assurance that Lake Tahoe will remain in its pristine state. Since in some cases a 1-year moratorium may not impose a burden at all, we should not adopt a rule that assumes moratoria always force individuals to bear a special burden that should be shared by the public as a whole. It may well be true that any moratorium that lasts for more than one year should be viewed with special skepticism. But given the fact that the District Court found that the 32 months required by TRPA to formulate the 1984 Regional Plan was not unreasonable, we could not possibly conclude that every delay of over one year is constitutionally *342 unacceptable.[36] Formulating a general rule of this kind is a suitable task for state legislatures.[37] In our view, the duration of the restriction is one of the important factors that a court must consider in the appraisal of a regulatory takings claim, but with respect to that factor as with respect to other factors, the "temptation to adopt what amount to per se rules in either direction must be resisted." 533 U. S., at There may be moratoria that last longer than one year which interfere with reasonable investment-backed expectations, but as the District Court's opinion illustrates, petitioners' proposed rule is simply "too blunt an instrument" for identifying those cases. We conclude, therefore, that the interest in "fairness and justice" will be best served by relying on the familiar Penn approach when deciding cases like this, rather than by attempting to craft a new categorical rule. *343 Accordingly, the judgment of the Court of Appeals is affirmed. It is so ordered. |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | With exceptions not pertinent here, 6(d) of the Bankruptcy Code provides: "To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void" Read naturally and in accordance with other provisions of the statute, this automatically voids a lien to the extent the claim it secures is not both an "allowed claim" and a "secured claim" under the Code. In holding otherwise, the Court replaces what Congress said with what it thinks Congress ought to have saidand in the process disregards, and hence impairs for future use, wellestablished principles of statutory construction. I respectfully dissent. I This case turns solely on the meaning of a single phrase found throughout the Bankruptcy Code: "allowed secured claim." Section 6(d) unambiguously provides that to the extent a lien does not secure such a claim it is (with certain exceptions) rendered void. See 11 U.S. C. 6(d). Congress did not leave the meaning of "allowed secured claim" to speculation. Section 6(a) says that an "allowed claim" *421 (the meaning of which is obvious) is also a "secured claim" "to the extent of the value of [the] creditor's interest in the estate's interest in [the securing] property. " (Emphasis added.)) When 6(d) refers to an "allowed secured claim," it can only be referring to that allowed "secured claim" so carefully described two brief subsections earlier. The phrase obviously bears the meaning set forth in 6(a) when it is used in the subsections of 6 other than 6(d)for example, in 6(b), which addresses "allowed secured claim[s]" that are oversecured. Indeed, as respondents apparently concede, see Brief for Respondents 40; Tr. of Oral Arg. 29-30, even when the phrase appears outside of 6, it invariably means what 6(a) describes: the portion of a creditor's allowed claim that is secured after the calculations required by that provision have been performed. See, e. g., 11 U.S. C. 722 (permitting a Chapter 7 debtor to redeem certain tangible personal property from certain liens "by paying the holder of such lien the amount of the allowed secured claim of such holder that is secured by such lien"); 1225(a)(5) (prescribing treatment of "allowed secured claim[s] " in family farmer's reorganization plan); 1325(a)(5) (same with respect to "allowed secured claim[s] " in individual reorganizations). (Emphases added.) The statute is similarly consistent in its use of the companion phrase "allowed unsecured claim " to describe (with respect to a claim supported by a lien) that portion of the claim that is treated as "unsecured" under 6(a). See, e. g., 11 U.S. C. 7(a)(7) |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | "unsecured" under 6(a). See, e. g., 11 U.S. C. 7(a)(7) (fixing priority of "allowed unsecured claims of governmental units"); 726(a)(2) (providing for payment of "allowed unsecured claim[s] " in Chapter 7 liquidation); 1225(a)(4) (setting standard for treatment *422 of "allowed unsecured claim[s] " in Chapter 12 plan); 1325(a)(4) (setting standard for treatment of "allowed unsecured claim[s] " in Chapter 13 plan). (Emphases added.) When, on the other hand, the Bankruptcy Code means to refer to a secured party's entire allowed claim, i. e., to both the "secured" and "unsecured" portions under 6(a), it uses the term "allowed claim "as in 11 U.S. C. 363(k), which refers to "a lien that secures an allowed claim." Given this clear and unmistakable pattern of usage, it seems to me impossible to hold, as the Court does, that "the words `allowed secured claim' in 6(d) need not be read as an indivisible term of art defined by reference to 6(a)." Ante, at 415; see ante, at 416-417. We have often invoked the "`normal rule of statutory construction that "`identical words used in different parts of the same act are intended to have the same meaning.' "` " That rule must surely apply, a fortiori, to use of identical words in the same section of the same enactment. The Court makes no attempt to establish a textual or structural basis for overriding the plain meaning of 6(d), but rests its decision upon policy intuitions of a legislative character,[1] and upon the principle that a text which is "ambiguous" *423 (a status apparently achieved by being the subject of disagreement between self-interested litigants) cannot change pre-Code law without the imprimatur of "legislative history." Thus abandoning the normal and sensible principle that a term (and especially an artfully defined term such as "allowed secured claim") bears the same meaning throughout the statute, the Court adopts instead what might be called the one-subsection-at-a-time approach to statutory exegesis. "[W]e express no opinion," the Court amazingly says, "as to whether the words `allowed secured claim' have different meaning in other provisions of the Bankruptcy Code." Ante, at 417, n. 3. "We focus upon the case before us and allow other facts to await their legal resolution on another day." Ante, at 416-417. II As to the meaning of this single subsection (considered, of course, in a vacuum), the Court claims to be embracing "respondents' alternative position," ante, at 417, which is that "the words `allowed secured claim' in 6(d) need not be read as an indivisible term of art defined by reference to 6(a)," ante, at 415; and that "secured |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | by reference to 6(a)," ante, at 415; and that "secured claim" (for purposes *424 of 6(d) alone) simply connotes an allowed claim that is "secured" in the ordinary sense, i. e., that is backed up by a security interest in property, whether or not the value of the property suffices to cover the claim. The Court attributes this position to the United States as well, ante, at 415-416, and n. 2, but the Government's position is in fact different and significantly so, since it does (as proper statutory interpretation ought to do) give the phrase "allowed secured claim" a uniform meaning. I must describe the Government's theory and explain why it does not work. The distinctive feature of the United States' approach is that it seeks to avoid invalidation of the so-called "underwater" portion of the lien by focusing not upon the phrase "allowed secured claim" in 6(d), but upon the prior phrase "secures a claim." ("To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void." (Emphasis added.)) Under the Government's textual theory, this phrase can be read to refer not merely to the object of the security, but to its adequacy. That is to say, a lien only "secures" the claim in question up to the value of the security that is the object of the lien and only up to that value is the lien subject to avoidance under 6(d).[2] This interpretation succeeds in giving the *425 phrase "allowed secured claim," which appears later in 6(d), a meaning compatible with that compelled by 6(a). But that is its only virtue. To begin with, the interpretation renders some of the language in 6(d) surplusage. If the phrase "[t]o the extent that a lien secures a claim" describes only that portion of a claim that is secured by actual economic value, then the later phrase "is not an allowed secured claim" should instead have read simply "is not allowed." For the phrase "allowed secured claim" itself describes a claim that is actually secured in light of 6(a)'s calculations. Another reading of 6(d)'s opening passage is available, one that does not assume such clumsy draftsmanshipand that employs, to boot, a much more natural reading of the phrase "lien secures a claim." The latter ordinarily describes the relationship between a lien and a claim, not the relationship between the value of the property subject to the lien and the amount of the claim. One would say that a "mortgage secures the claim" for the purchase price of a house, |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | secures the claim" for the purchase price of a house, even if the value of the house was inadequate to satisfy the full amount of the claim. In other words, "[t]o the extent that a lien secures a claim" means in 6(d) what it ordinarily means: "to the extent a lien provides its holder with a right to retain property in full or partial satisfaction of a claim." It means that *426 in 6(d) just as it means that in 6(a), see 11 U.S. C. 6(a) ("An allowed claim of a creditor secured by a lien is a secured claim to the extent") (emphasis added), and just as it means that elsewhere in the Bankruptcy Code, see, e. g., 362(a)(5) ("to the extent that such lien secures a claim"); 363(k) ("lien that secures an allowed claim"). An unnatural meaning should be disfavored at any time, but particularly when it produces a redundancy. See Of course respondents' interpretation also creates a redundancy in 6(d). If a "secured claim" means only a claim for which a lien has been given as security (whether or not the security is adequate), then the prologue of 6(d) can be reformulated as follows: "To the extent that a lien secures a claim against the debtor that is not an allowed claim secured by a lien, such lien is void" Quite obviously, the phrase "secured by a lien" in that reformulation is utterly redundant and absurdas is (on respondents' interpretation) the word "secured," which bears the same meaning. In other words, both the United States' interpretation and respondents' interpretation create a redundancy: the former by making both parts of the 6(d) prologue refer to adequate security, and the latter by making both parts refer to security plain-and-simple. Only when one gives the words in the first part of the prologue ("[t]o the extent that a lien secures a claim") their natural meaning (as the Government does not) and gives the words in the second part of the prologue ("allowed secured claim") their previously established statutory meaning (as the respondents do not) does the provision make a point instead of a redundancy. Moreover, the practical consequences of the United States' interpretation would be absurd. A secured creditor holding a lien on property that is completely worthless would not face lien avoidance under 6(d), even if the claim secured by that lien were disallowed entirely. The same would be true of a lien on property that has some value but is obviously *427 inadequate to cover all of the disallowed claim: the lien would be voided only to the |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | disallowed claim: the lien would be voided only to the extent of the property's value at the time of the bankruptcy court's evaluation, and could be asserted against any increase in the value of the property that might later occur, in order to satisfy the disallowed claim. Unavoided liens (or more accurately, potentials of unavoided liens, since no one knows whether or when future evaluations of the relevant property will exceed that of the bankruptcy court) would impede the trustee's management and settlement of the estate. It would be difficult, for example, to sell overencumbered property subject to outstanding liens pursuant to 11 U.S. C. 363(b) or (c), since any post-sale appreciation in the property could be levied upon by holders of disallowed secured claims. And in a sale of debtor property "free and clear" of the liens attached to it, see 11 U.S. C. 363(f)(3), the undisturbed portion of the disallowed claimant's lien might attach to the proceeds of that sale to the extent of the collateral's postpetition appreciation, preventing the trustee from distributing some or all of the sale proceeds to creditors holding allowed claims. If possible, we should avoid construing the statute in a way that produces such absurd results. III Although the Court makes no effort to explain why petitioner's straightforward reading of 6(d) is textually or structurally incompatible with other portions of the statute, respondents and the United States do so. They point out, to begin with, that the two exceptions to 6(d)'s nullifying effect both pertain to the disallowance of claims, and not to the inadequacy of security, see 11 U.S. C. 6(d)(1) and (2)from which they conclude that the applicability of 6(d) turns only on the allow ability of the underlying claim, and not on the extent to which the claim is a "secured claim" within the meaning of 6(a). But the fact that the statute makes no exceptions to invalidation by reason of inadequate security in no way establishes that such (plainly *428 expressed) invalidation does not exist. The premise of the argumentthat if a statute qualifies a noun with two adjectives ("allowed" and "secured"), and provides exceptions with respect to only one of the adjectives, then the other can be disregardedis simply false. The most that can be said is that the two exceptions in 6(d) do not contradict the United States' and respondents' interpretation; but they in no way suggest or support it. Respondents and the United States also identify supposed inconsistencies between petitioner's construction of 6(d) and other sections of the Bankruptcy Code; they are largely illusory. The principal |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | of the Bankruptcy Code; they are largely illusory. The principal source of concern is 722, which enables a Chapter 7 debtor to "redeem" narrow classes of exempt or abandoned personal property from "a lien securing a dischargeable consumer debt." The price of redemption is fixed as "the amount of the allowed secured claim of [the lienholder] that is secured by such lien." (Emphasis added.) This provision, we are told, would be largely superfluous if 6(d) automatically stripped liens securing undersecured claims to the value of the collateral, i. e., to the value of the allowed secured claims. This argument is greatly overstated. Section 722 is necessary, and not superfluous, because 6(d) is not a redemption provision. It reduces the value of a lienholder's equitable interest in a debtor's property to the property's liquidation value, but it does not insure the debtor an opportunity to "redeem" the property at that price, i. e., to "free [the] property from [the] mortgage or pledge by paying the debt for which it stood as security." Black's Law Dictionary 8 Congress had good reason to be solicitous of the debtor's right to redeem personal property (the exclusive subject of 722), since state redemption laws are typically less generous for personalty than for real property. Compare, e. g., Utah Code Ann. 57-131 with Uniform Commercial Code 9-6, 3A U. L. A. 370 (1981). The most that can be said regarding 722 is that petitioner's *429 construction of 6(d) would permit a more concise formulation: Instead of describing the redemption price as "the amount of the allowed secured claim that is secured by such lien" it would have been possible to say simply "the amount of the claim that is secured by such lien"since 6(d) would automatically have cut back the lien to the amount of the allowed secured claim. I would hardly call the more expansive formulation a redundancynot when it is so far removed from the section that did the "cutting back" that the reader has likely forgotten it. Respondents and their amicus also make much of the need to avoid giving Chapter 7 debtors a better deal than they can receive under the other chapters of the Bankruptcy Code. They assert that, by enabling a Chapter 7 debtor to strip down a secured creditor's liens and pocket any postpetition appreciation in the property, petitioner's construction of 6(d) will discourage debtors from using the preferred mechanisms of reorganization under Chapters 11, 12, and 13. This evaluation of the "finely reticulated" incentives affecting a debtor's behavior rests upon criticaland perhaps erroneousassumptions about the meaning of provisions |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | rests upon criticaland perhaps erroneousassumptions about the meaning of provisions in the reorganization chapters. Respondents assume, for example, that a debtor in Chapter 13 cannot strip down a mortgage placed on the debtor's home; but that assumption may beg the very question the Court answers today. True, 1322(b)(2) provides that Chapter 13 filers may not "modify the rights of holders of secured claims" that are "secured only by a security interest in real property that is the debtor's principal residence. " (Emphasis added.) But this can be (and has been) read, in light of 6(a), to prohibit modification of the mortgagee's rights only with respect to the portion of his claim that is deemed secured under the Code, see, e. g., In re Hart, ; If petitioner's construction of 6(d) were applied consistently in this fashion to the Code's various chapters, *430 see 11 U.S. C. 103(a) (providing that "chapters 1, 3, and 5[shall] apply in a case under chapter 7, 11, 12, or 13"), Chapter 7 would not appear unduly attractive. In any event, reorganization contains other enticements to lure a debtor away from Chapter 7. It not only permits him to maintain control over his personal and business assets, but affords a broader discharge from prepetition in personam liabilities. Compare, e. g., 11 U.S. C. 523 (listing numerous exceptions to Chapter 7 discharge) with 11 U.S. C. 1328(a) (listing two exceptions to Chapter 13 discharge). Compare, e. g., Kelly v., with Pennsylvania Dept. of Public Finally, respondents and the United States find it incongruous that Congress would so carefully protect secured creditors in the context of reorganization while allowing them to be fleeced in a Chapter 7 liquidation by operation of 6(d). This view mistakes the generosity of treatment that creditors can count upon in reorganization. There, no more than under Chapter 7, can they demand the benefit of post evaluation increases in the value of property given as security. See 11 U.S. C. 1129(b)(2)(A) and 1325(a)(5) (permitting "cram-down" of reorganization plan over objections of secured creditors if creditors are to receive payments equal in present value to the cash value of the collateral, and if creditors retain liens securing such payments).[3] *431 IV I must also address the Tenth Circuit's basis for the decision affirmed today (alluded to by the Court, ante, at 414, but not discussed), that 6 does not apply to property abandoned by the bankruptcy trustee under 554, see 11 U.S. C. 554. Respondents' principal argument before us was a modified (and less logical) version of the same basic pointviz., that although 6(a) applies |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | version of the same basic pointviz., that although 6(a) applies to abandoned property, 6(d) does not. I can address the point briefly, since the plain-language obstacles to its validity are even more pronounced than those raised by the Court's approach. The Court of Appeals' reasoning was as follows: 6(d) effects lien stripping only with respect to property subject to 6(a); but by its terms 6(a) applies only to property "in which the estate has an interest"; since "[t]he estate has no interest in, and does not administer, abandoned property," 6(a), and hence 6(d), does not apply to it. In re Dewsnup, The fallacy in this is the assumption that the application of 6(a) (and hence 6(d)) can be undone if and when the estate ceases to "have an interest" in property in which it "had an interest" at the outset of the bankruptcy proceeding. The text does not read that way. Section 6 automatically operates upon all property in which the estate has an interest at the time the bankruptcy petition is filed.[4] Once 6(a)'s grant of secured-creditor rights, and 6(d)'s elimination of the right to "underwater" liens and liens securing unallowed claims have occurred, they cannot be undone by later abandonment of the property. Nothing in the statute expressly permits such an unraveling, and it would be absurd to imagine it. If, upon the collateral's abandonment, the claim bifurcation *432 accomplished by 6(a) were nullified, the status of the creditor's allowed claimi. e., whether (and to what extent) it is "secured" or "unsecured" for purposes of the bankruptcy distributionwould be impossible to determine. Instead, the claim would have to be treated as either completely "secured" or completely "unsecured," neither of which disposition would accord with the Code's distribution principles. The former would deprive the secured claimant of a share in the distribution to general creditors altogether. See 11 U.S. C. 726 (providing for distribution of property of the estate to unsecured claimants). The latter (treating the claim as completely unsecured) would permit the lienholder to share in the pro rata distribution to general creditors to the full amount of his allowed claim (rather than simply to the amount of the 6(a)-defined "unsecured claim") while reserving his in rem claim against the security. Respondents' variation on the Tenth Circuit's holding avoids these alternative absurdities only by embracing yet another textual irrationalityasserting that, even though the language that is the basis for the "abandonment" theory (the phrase "in which the estate has an interest") is contained in 6(a), and only applies to 6(d) through 6(a), nonetheless only the effects of 6(d) |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | to 6(d) through 6(a), nonetheless only the effects of 6(d) and not the effects of 6(a) are undone by abandonment. This hardly deserves the name of a theory. V As I have said, the Court does not trouble to make or evaluate the foregoing arguments. Rather, in Part II of its opinion it merely describes (uncritically) "the contrasting positions of the respective parties and their amici " concerning the meaning of 6(d), ante, at 416, and concludes, because the positions are contrasting, that there is "ambiguity in the text," ante, at 417. (This mode of analysis makes every litigated statute ambiguous.) Having thus established "ambiguity," the Court is able to summon down its deus ex machina: "the pre-Code rule that liens pass through bankruptcy * unaffected"which cannot be eliminated by an ambiguous provision, at least where the "legislative history" does not mention its demise. Ante, at 417, 418. We have, of course, often consulted pre-Code behavior in the course of interpreting gaps in the express coverage of the Code, or genuinely ambiguous provisions. And we have often said in such cases that, absent a textual footing, we will not presume a departure from longstanding pre-Code practice. See, e. g., Midlantic Nat. 1 ; Kelly v. -47. But we have never held pre-Code practice to be determinative in the face of what we have here: contradictory statutory text. To the contrary, where "the statutory language plainly reveals Congress' intent" to alter pre-Code regimes, Pennsylvania Dept. of Public we have simply enforced the new Code according to its terms, without insisting upon "at least some discussion [of the change from prior law] in the legislative history," ante, at 419. For an illustration of just how plainly today's opinion is at odds with our jurisprudence, one need only examine our most recent bankruptcy decision. Union Bank v. Wolas, ante, p. 151. There also the parties took "contrasting positions" as to the meaning of the statutory text, but we did not shrink from finding, on the basis of our own analysis, that no ambiguity existed. There also it was urged upon us that the interpretation we adopted would overturn pre-Code practice with "no evidence in the legislative history that Congress intended to make" such a change. Ante, at 157. We found it unnecessary to "dispute the accuracy of [that] description of the legislative history in order to reject [the] conclusion" that no change had been effected. "The fact," we said, "that Congress may not have foreseen all of the consequences of a statutory enactment is not a sufficient reason for refusing to give effect |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | is not a sufficient reason for refusing to give effect to its plain meaning." *434 Ante, at 157, 158. And "the fact that Congress carefully reexamined and entirely rewrote the preference provision in 1978 supports the conclusion that the text of 547(c)(2) as enacted reflects the deliberate choice of Congress." Ante, at 160. What was true of the preference provision in Wolas is also true of the secured claims provisions at issue in the present case: Congress' careful reexamination and entire rewriting of those provisions supports the conclusion that, regardless of whether pre-Code practice is retained or abandoned, the text means precisely what it says. Indeed, the rewriting here is so complete that, no matter how deeply one admires and venerates "pre-Code law," it is impossible to interpret 6(d) in a manner that entirely preserves it and the Court itself, for all its protestation of fealty, does not do so. No provision of the former Bankruptcy Act, nor any pre-Code doctrine, purported to invalidateacross the boardliens securing claims disallowed in bankruptcy, see 11 U.S. C. 107 (1976 ed.); see also 4 Collier on Bankruptcy ¶ 67 (14th ed. 1978), yet that is precisely what 6(d), as interpreted by the Court today, accomplishes. It is even more instructive to compare today's opinion with our decision a few years ago in United which involved another subsection of 6 itself. The issue was whether 6(b) made postpetition interest available even to those oversecured creditors whose liens were nonconsensual. The Court of Appeals had held that it did not, because such a disposition would alter the pre-Code rule and there was no "legislative history" to support the change. We disagreed. The opinion for the Court began "where all such inquiries must begin: with the language of the statute itself." We did not recite the contentions of the parties and declare "ambiguity," but entered into our own careful consideration of "[t]he natural reading of the [relevant] phrase," the "grammatical structure of the statute," and the "terminology used throughout the Code." and 242, n. 5. Having *435 found a "natural interpretation of the statutory language [that] does not conflict with any significant state or federal interest, nor with any other aspect of the Code," we deemed the pre-Code practice to be irrelevant. And whereas today's opinion announces the policy judgment that "[a]ny increase over the judicially determined valuation during bankruptcy rightly accrues to the benefit of the creditor," ante, at 417, in Ron Pair we were undeterred by the fact that our result was "arguably somewhat in tension with the desirability of paying all creditors as |
Justice Scalia | 1,992 | 9 | dissenting | Dewsnup v. Timm | https://www.courtlistener.com/opinion/112680/dewsnup-v-timm/ | in tension with the desirability of paying all creditors as uniformly as practicable," 489 U.S., -246. "Congress," we said, "expressly chose to create that alleged tension." Almost point for point, today's opinion is the methodological antithesis of Ron Pair and I have the greatest sympathy for the Courts of Appeals who must predict which manner of statutory construction we shall use for the next Bankruptcy Code case. * * * The principal harm caused by today's decision is not the misinterpretation of 6(d) of the Bankruptcy Code. The disposition that misinterpretation produces brings the Code closer to prior practice and is, as the Court irrelevantly observes, probably fairer from the standpoint of natural justice. (I say irrelevantly, because a bankruptcy law has little to do with natural justice.) The greater and more enduring damage of today's opinion consists in its destruction of predictability, in the Bankruptcy Code and elsewhere. By disregarding well-established and oft-repeated principles of statutory construction, it renders those principles less secure and the certainty they are designed to achieve less attainable. When a seemingly clear provision can be pronounced "ambiguous" sans textual and structural analysis, and when the assumption of uniform meaning is replaced by "onesubsection-at-a-time" interpretation, innumerable statutory texts become worth litigating. In the bankruptcy field *436 alone, for example, unfortunate future litigants will have to pay the price for our expressed neutrality "as to whether the words `allowed secured claim' have different meaning in other provisions of the Bankruptcy Code." Ante, at 417, n. 3. Having taken this case to resolve uncertainty regarding one provision, we end by spawning confusion regarding scores of others. I respectfully dissent. |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | This case presents the issue whether knowledge that the intended victim is a federal officer is a requisite for the crime of conspiracy, under 18 U.S. C. 371, to commit *673 an offense violative of 18 U.S. C. 111,[1] that is, an assault upon a federal officer while engaged in the performance of his official duties. Respondent Feola and three others (Alsondo, Rosa, and Farr) were indicted for violations of 371 and 111. A jury found all four defendants guilty of both charges.[2] Feola received a sentence of four years for the conspiracy and one of three years, plus a $3,000 fine, for the assault. The three-year sentence, however, was suspended and he was given three years' probation "to commence at the expiration of confinement" for the conspiracy. The respective appeals of Feola, Alsondo, and Rosa were considered by the United Court of for the Second Circuit in a single opinion. After an initial ruling partially to the contrary, that court affirmed the judgment of conviction on the substantive charges, but reversed the conspiracy convictions. United[3] Because of a *674 conflict among the federal Circuits on the scienter issue with respect to a conspiracy charge,[4] we granted the Government's petition for a writ of certiorari in Feola's case.[5] I The facts reveal a classic narcotics "rip-off." The details are not particularly important for our present purposes. We need note only that the evidence shows that Feola and his confederates arranged for a sale of heroin to buyers who turned out to be undercover agents for the Bureau of Narcotics and Dangerous Drugs. The group planned to palm off on the purchasers, for a substantial sum, a form of sugar in place of heroin and, should that ruse fail, simply to surprise their unwitting buyers and relieve them of the cash they had brought along for payment. The plan failed when one agent, his suspicions being aroused,[6] drew his revolver in time to counter an assault upon another agent from the rear. *675 Instead of enjoying the rich benefits of a successful swindle, Feola and his associates found themselves charged, to their undoubted surprise, with conspiring to assault, and with assaulting, federal officers. At the trial, the District Court, without objection from the defense, charged the jurors that, in order to find any of the defendants guilty on either the conspiracy count or the substantive one, they were not required to conclude that the defendants were aware that their quarry were federal officers.[7] The Court of reversed the conspiracy convictions on a ground not advanced by any of the defendants. Although |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | a ground not advanced by any of the defendants. Although it approved the trial court's instructions to the jury on the substantive charge of assaulting a federal officer,[8] it nonetheless concluded that the failure to charge that knowledge of the victim's official identity must be proved in order to convict on the conspiracy charge amounted to plain The court perceived itself bound by a line of cases, commencing with Judge Learned Hand's opinion in United all holding *676 that scienter of a factual element that confers federal jurisdiction, while unnecessary for conviction of the substantive offense, is required in order to sustain a conviction for conspiracy to commit the substantive offense. Although the court noted that the Crimmins rationale "has been criticized." and, indeed, offered no argument in support of it, it accepted "the controlling precedents somewhat reluctantly." The Government's plea is for symmetry. It urges that since criminal liability for the offense described in 18 U.S. C. 111 does not depend on whether the assailant harbored the specific intent to assault a federal officer, no greater scienter requirement can be engrafted upon the conspiracy offense, which is merely an agreement to commit the act proscribed by 111. Consideration of the Government's contention requires us preliminary to pass upon its premise, the proposition that responsibility for assault upon a federal officer does not depend upon whether the assailant was aware of the official identity of his victim at the time he acted. That the "federal officer" requirement is anything other than jurisdictional[9] is not seriously urged upon us; indeed, *677 both Feola[10] and the Court of concede that scienter is not a necessary element of the substantive offense under 111. Although some early cases were to the contrary,[11] the concession recognizes what is now the practical unanimity of the Courts of[12] Nevertheless, we are not always guided by concessions of the parties, and the very considerations of symmetry urged by the Government suggest that we first turn our attention to the substantive offense. The Court has considered 111 before. In the issue was whether a single shotgun blast which wounded two federal agents effected multiple assaults, within the meaning of 18 U.S. C. 254 (1940 ed.), one of the statutory predecessors to the present 111.[13] The Government urged that * 254 had been intended not only to deter interference with federal law enforcement activities but, as well, to forestall injury to individual officers, as "wards" of the United Given the latter formulation of legislative intent, argued the Government, a single blast wounding two officers would constitute two offenses. The Court |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | blast wounding two officers would constitute two offenses. The Court disagreed because it found an equally plausible reading of the legislative intent to be that "the congressional aim was to prevent hindrance to the execution of official duty and was not to protect federal officers except as incident to that aim," -176. Under that view of legislative purpose, to have punishment depend upon the number of officers impeded would be incongruous. With no clear choice between these alternative formulations of congressional intent, in light of the statutory language and sparse legislative history, the Court applied a policy of lenity and, for purposes of the case, adopted the less harsh reading. It therefore held that the single discharge of a shotgun constituted only a single violation of 254. In the present case, we see again the possible consequences of an interpretation of 111 that focuses on only one of the statute's apparent aims. If the primary purpose is to protect federal law enforcement personnel, that purpose could well be frustrated by the imposition of a strict scienter requirement. On the other hand, if 111 is seen primarily as an anti-obstruction statute, it is likely that Congress intended criminal liability to be imposed only when a person acted with the specific intent to impede enforcement activities. Otherwise, it has been said: "Were knowledge not required in obstruction of justice offenses described by these terms, wholly innocent (or *679 even socially desirable) behavior could be transformed into a felony by the wholly fortuitous circumstance of the concealed identity of the person resisted."[14] Although we adhere to the conclusion in Ladner that either view of legislative intent is "plausible," we think it plain that Congress intended to protect both federal officers and federal functions, and that, indeed, furtherance of the one policy advances the other. The rejection of a strict scienter requirement is consistent with both purposes. Section 111 has its origin in 2 of the Act of May 18, 1934, c. 299, Section 1 of that Act, in which the present 18 U.S. C. 1114 has its roots, made it a federal crime to kill certain federal law enforcement personnel while engaged in, or on account of, the performance of official duties,[15] and 2 forbade forcible resistance or interference with, or assault upon, any officer designated in 1 while so engaged. The history of the 1934 Act, though scanty, offers insight into its multiple purposes. *680 The pertinent committee reports consist, almost in their entirety, of a letter dated January 3, 1934, from Attorney General Cummings urging the passage of the legislation.[16] In |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | Attorney General Cummings urging the passage of the legislation.[16] In that letter the Attorney General states *681 that this was needed "for the protection of Federal officers and employees." Compelled reliance upon state courts, "however respectable and well disposed, for the protection of [federal] investigative and law-enforcement personnel" was inadequate, and there was need for resort to a federal forum. Although the letter refers only to the need to protect federal personnel, Congress clearly was concerned with the safety of federal officers insofar as it was tied to the efficacy of law enforcement activities. This concern is implicit in the decision to list those officers protected rather than merely to forbid assault on any federal employee. Indeed, the statute as originally formulated would have prohibited attack on "any civil official, inspector, *682 agent, or other officer or employee of the United" See H. R. Rep. No. 1455, 73d Cong., 2d Sess., 1 (1934). The House rejected this and insisted on the version that was ultimately enacted. Although the reason for the insistence is unexplained, it is fair to assume that the House was of the view that the bill as originally drafted strayed too far from the purpose of insuring the integrity of law enforcement pursuits.[17] In resolving the question whether Congress intended to condition responsibility for violation of 111 on the actor's awareness of the identity of his victim, we give weight to both purposes of the statute, but here again, as in Ladner, we need not make a choice between them. Rather, regardless of which purpose we would emphasize, we must take note of the means Congress chose for its achievement. Attorney General Cummings, in his letter, emphasized the importance of providing a federal forum in which attacks upon named federal officers could be prosecuted. This, standing alone, would not indicate a congressional conclusion to dispense with a requirement of specific intent to assault a federal officer, for the locus of the *683 forum does not of itself define the reach of the substantive offense. But the view that 111 requires knowledge of the victim's office rests on the proposition that the reference to the federal forum was merely a shorthand expression of the need for a statute to fill a gap in the substantive law of the See United cert. pending, No. 73-6868. In that view, 111 is seen merely as a federal aggravated assault statute, necessary solely because some state laws mandate increased punishment only for simple assaults on state peace officers; assaults on federal personnel would be punishable, under state law, only for simple assault. |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | would be punishable, under state law, only for simple assault. As a federal aggravated assault statute, 111 would be read as requiring the same degree of knowledge as its state-law counter-parts. See The argument fails, however, because it is fairly certain that Congress was not enacting 111 as a federal counterpart to state proscriptions of aggravated assault. The Attorney General's call for a federal forum in which to prosecute an attacker of a federal officer was directed at both sections of the proposed bill that became the 1934 Act. The letter concerned not only the section prohibiting assaults but also the section prohibiting killings. The latter, 1, was not needed to fill a gap in existing substantive state law. The proscribed murder, and, until recently, with the enactment of certain statutes in response to the successful attack on capital punishment, murder of a peace officer has not been deemed an aggravated form of murder, for all usually have punished murderers with the most severe sanction the law allows. Clearly, then, Congress understood that it was not only filling one gap in state substantive law but in large part was duplicating state proscriptions in order to insure a federal forum for the trial of *684 offenses involving federal officers. Fulfillment of the congressional goal to protect federal officers required then, as it does now, the highest possible degree of certainty that those who killed or assaulted federal officers were brought to justice. In the congressional mind, with the reliance upon the Attorney General's letter, certainty required that these cases be tried in the federal courts, for no matter how "respectable and well disposed," it would not be unreasonable to suppose that state officials would not always or necessarily share congressional feelings of urgency as to the necessity of prompt and vigorous prosecutions of those who violate the safety of the federal officer. From the days of prohibition to the days of the modern civil rights movement, the statutes federal agents have sworn to uphold and enforce have not always been popular in every corner of the Nation. Congress may well have concluded that 111 was necessary in order to insure uniformly vigorous protection of federal personnel, including those engaged in locally unpopular activity. We conclude, from all this, that in order to effectuate the congressional purpose of according maximum protection to federal officers by making prosecution for assaults upon them cognizable in the federal courts, 111 cannot be construed as embodying an unexpressed requirement that an assailant be aware that his victim is a federal officer. All the statute requires is |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | victim is a federal officer. All the statute requires is an intent to assault, not an intent to assault a federal officer. A contrary conclusion would give insufficient protection to the agent enforcing an unpopular law, and none to the agent acting under cover.[18] *685 This interpretation poses no risk of unfairness to defendants. It is no snare for the unsuspecting. Although the perpetrator of a narcotics "rip-off," such as the one involved here, may be surprised to find that his intended victim is a federal officer in civilian apparel, he nonetheless knows from the very outset that his planned course of conduct is wrongful. The situation is not one where legitimate conduct becomes unlawful solely because of the identity of the individual or agency affected. In a case of this kind the offender takes his victims as he finds him. The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum. *686 We are not to be understood as implying that the defendant's state of knowledge is never a relevant consideration under 111. The statute does require a criminal intent, and there may well be circumstances in which ignorance of the official status of the person assaulted or resisted negates the very existence of mens rea. For example, where an officer fails to identify himself or his purpose, his conduct in certain circumstances might reasonably be interpreted as the unlawful use of force directed either at the defendant or his property. In a situation of that kind, one might be justified in exerting an element of resistance, and an honest mistake of fact would not be consistent with criminal intent.[19] We hold, therefore, that in order to incur criminal liability under 111 an actor must entertain merely the criminal intent to do the acts therein specified. We now consider whether the rule should be different where persons conspire to commit those acts. I Our decisions establish that in order to sustain a judgment of conviction on a charge of conspiracy to violate a federal statute, the Government must prove at least the degree of criminal intent necessary for the substantive offense itself. See Respondent Feola urges upon us the proposition that the Government must show a degree of criminal intent in the conspiracy count greater than is necessary to convict for the substantive offense; he urges that even though it is not necessary to show that he was *687 aware of the official identity of |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | that he was *687 aware of the official identity of his assaulted victims in order to find him guilty of assaulting federal officers, in violation of 18 U.S. C. 111, the Government nonetheless must show that he was aware that his intended victims were undercover agents, if it is successfully to prosecute him for conspiring to assault federal agents. And the Court of held that the trial court's failure to charge the jury to this effect constituted plain The general conspiracy statute, 18 U.S. C. 371,[20] offers no textual support for the proposition that to be guilty of conspiracy a defendant in effect must have known that his conduct violated federal law. The statute makes it unlawful simply to "conspire to commit any offense against the United" A natural reading of these words would be that since one can violate a criminal statute simply by engaging in the forbidden conduct, a conspiracy to commit that offense is nothing more than an agreement to engage in the prohibited conduct. Then where, as here, the substantive statute does not require that an assailant know the official status of his victim, there is nothing on the face of the conspiracy statute that would seem to require that those agreeing to the assault have a greater degree of knowledge. We have been unable to find any decision of this Court that lends support to the respondent. On the contrary, at least two of our cases implicitly repudiate his position. The appellants in In re Coy, were *688 convicted of conspiring to induce state election officials to neglect their duty to safeguard ballots and election results. The offense occurred with respect to an election at which Indiana voters, in accordance with state law, voted for both local officials and members of Congress. Much like Feola here, those appellants asserted that they could not be punished for conspiring to violate federal law because they had intended only to affect the outcome of state races. In short, it was urged that the conspiracy statute embodied a requirement of specific intent to violate federal law. The Court rejected this contention and held that the statute required only that the conspirators agree to participate in the prohibited conduct. See Similarly, in United we reversed the dismissal of an indictment charging defendants with possession of, and with conspiracy to possess, hand grenades that had not been registered, as required by 26 U.S. C. 5861 (d). The trial court dismissed the indictment for failure to allege that the defendants knew that the hand grenades in fact were unregistered. We held that |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | the hand grenades in fact were unregistered. We held that actual knowledge that the grenades were unregistered was not an element of the substantive offense created by Congress and therefore upheld the indictment both as to the substantive offense and as to the charge of conspiracy. Again, we declined to require a greater degree of intent for conspiratorial responsibility than for responsibility for the underlying substantive offense. With no support on the face of the general conspiracy statute or in this Court's decisions, respondent relies solely on the line of cases commencing with United for the principle that the Government must prove *689 "antifederal" intent in order to establish liability under 371. In Crimmins, the defendant had been found guilty of conspiring to receive stolen bonds that had been transported in interstate commerce. Upon review, the Court of pointed out that the evidence failed to establish that Crimmins actually knew the stolen bonds had moved into the State. Accepting for the sake of argument the assumption that such knowledge was not necessary to sustain a conviction on the substantive offense, Judge Learned Hand nevertheless concluded that to permit conspiratorial liability where the conspirators were ignorant of the federal implications of their acts would be to enlarge their agreement beyond its terms as they understood them. He capsulized the distinction in what has become well known as his "traffic light" analogy: "While one may, for instance, be guilty of running past a traffic light of whose existence one is ignorant, one cannot be guilty of conspiring to run past such a light, for one cannot agree to run past a light unless one supposes that there is a light to run past." Judge Hand's attractive, but perhaps seductive, analogy has received a mixed reception in the Courts of The Second Circuit, of course, has followed it;[21] others have rejected it.[22] It appears that most have avoided it by the simple expedient of inferring the requisite knowledge from the scope of the conspiratorial *690 venture.[23] We conclude that the analogy, though effective prose, is, as applied to the facts before us, bad law.[24] The question posed by the traffic light analogy is not before us, just as it was not before the Second Circuit in Crimmins. Criminal liability, of course, may be imposed on one who runs a traffic light regardless of whether he harbored the "evil intent" of disobeying the light's command; whether he drove so recklessly as to be unable to perceive the light; whether, thinking he was observing all traffic rules, he simply failed to notice the light; or |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | traffic rules, he simply failed to notice the light; or whether, having been reared elsewhere, he thought that the light was only an ornament. Traffic violations generally fall into that category of offenses that dispense with a mens rea requirement. See United These laws embody the social judgment that it is fair to punish one who intentionally engages in conduct that creates a risk to others, even though no risk is intended or the actor, *691 through no fault of his own, is completely unaware of the existence of any risk. The traffic light analogy poses the question whether it is fair to punish parties to an agreement to engage intentionally in apparently innocent conduct where the unintended result of engaging in that conduct is the violation of a criminal statute. But this case does not call upon us to answer this question, and we decline to do so, just as we have once before. United n. 14. We note in passing, however, that the analogy comes close to stating what has been known as the "Powell doctrine," originating in to the effect that a conspiracy, to be criminal, must be animated by a corrupt motive or a motive to do wrong. Under this principle, such a motive could be easily demonstrated if the underlying offense involved an act clearly wrongful in itself; but it had to be independently demonstrated if the acts agreed to were wrongful solely because of statutory proscription. See Note, Developments in the LawCriminal Interestingly, Judge Hand himself was one of the more severe critics of the Powell doctrine.[25] That Judge Hand should reject the Powell doctrine and then create the Crimmins doctrine seems curious enough. Fatal to the latter, however, is the fact that it was announced in a case to which it could not have been meant to apply. In Crimmins, the substantive offense, namely, the receipt of stolen securities that had been *692 in interstate commerce, proscribed clearly wrongful conduct. Such conduct could not be engaged in without an intent to accomplish the forbidden result. So, too, it is with assault the conduct forbidden by the substantive statute, 111, presently before us. One may run a traffic light "of whose existence one is ignorant," but assaulting another "of whose existence one is ignorant," probably would require unearthly intervention. Thus, the traffic light analogy, even if it were a correct statement of the law, is inapt, for the conduct proscribed by the substantive offense, here assault, is not of the type outlawed without regard to the intent of the actor to accomplish the result |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | to the intent of the actor to accomplish the result that is made criminal. If the analogy has any vitality at all, it is to conduct of the latter variety; that, however, is a question we save for another day. We hold here only that where a substantive offense embodies only a requirement of mens rea as to each of its elements, the general federal conspiracy statute requires no more. The Crimmins rule rests upon another foundation: that it is improper to find conspiratorial liability where the parties to the illicit agreement were not aware of the fact giving rise to federal jurisdiction, because the essence of conspiracy is agreement and persons cannot be punished for acts beyond the scope of their agreement. 123 F.2d, This "reason" states little more than a conclusion, for it is clear that one may be guilty as a conspirator for acts the precise details of which one does not know at the time of the agreement. See The question is not merely whether the official status of an assaulted victim was known to the parties at the time of their agreement, but whether the acts contemplated by the conspirators are to be deemed legally different from those actually performed solely because of the official identity of the *693 victim. Put another way, does the identity of the proposed victim alter the legal character of the acts agreed to, or is it no more germane to the nature of those acts than the color of the victim's hair? Our analysis of the substantive offense in Part is sufficient to convince us that for the purpose of individual guilt or innocence, awareness of the official identity of the assault victim is irrelevant. We would expect the same to obtain with respect to the conspiracy offense unless one of the policies behind the imposition of conspiratorial liability is not served where the parties to the agreement are unaware that the intended target is a federal law enforcement official. It is well settled that the law of conspiracy serves ends different from, and complementary to, those served by criminal prohibitions of the substantive offense. Because of this, consecutive sentences may be imposed for the conspiracy and for the underlying crime. ; Our decisions have identified two independent values served by the law of conspiracy. The first is protection of society from the dangers of concerted criminal activity, ; Dennis v. United That individuals know that their planned joint venture violates federal as well as state law seems totally irrelevant to that purpose of conspiracy law which seeks to |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | irrelevant to that purpose of conspiracy law which seeks to protect society from the dangers of concerted criminal activity. Given the level of criminal intent necessary to sustain conviction for the substantive offense, the act of agreement to commit the crime is no less opprobrious and no less dangerous because of the absence of knowledge of a fact unnecessary to the formation of criminal intent. Indeed, unless imposition of an "antifederal" *694 knowledge requirement serves social purposes external to the law of conspiracy of which we are unaware, its imposition here would serve only to make it more difficult to obtain convictions on charges of conspiracy, a policy with no apparent purpose. The second aspect is that conspiracy is an inchoate crime. This is to say, that, although the law generally makes criminal only antisocial conduct, at some point in the continuum between preparation and consummation, the likelihood of a commission of an act is sufficiently great and the criminal intent sufficiently well formed to justify the intervention of the criminal law. See Note, Developments in the LawCriminal -925. The law of conspiracy identifies the agreement to engage in a criminal venture as an event of sufficient threat to social order to permit the imposition of criminal sanctions for the agreement alone, plus an overt act in pursuit of it, regardless of whether the crime agreed upon actually is committed. United v. Bayer, Criminal intent has crystallized, and the likelihood of actual, fulfilled commission warrants preventive action. Again, we do not see how imposition of a strict "antifederal" scienter requirement would relate to this purpose of conspiracy law. Given the level of intent needed to carry out the substantive offense, we fail to see how the agreement is any less blameworthy or constitutes less of a danger to society solely because the participants are unaware which body of law they intend to violate. Therefore, we again conclude that imposition of a requirement of knowledge of those facts that serve only to establish federal jurisdiction would render it more difficult to serve the policy behind the law of conspiracy without serving any other apparent social policy. We hold, then, that assault of a federal officer pursuant to an agreement to assault is not, even in the words of *695 Judge Hand, "beyond the reasonable intendment of the common understanding," United 123 F. 2d, The agreement is not thereby enlarged, for knowledge of the official identity of the victim is irrelevant to the essential nature of the agreement, entrance into which is made criminal by the law of conspiracy. Again we point |
Justice Blackmun | 1,975 | 11 | majority | United States v. Feola | https://www.courtlistener.com/opinion/109220/united-states-v-feola/ | made criminal by the law of conspiracy. Again we point out, however, that the state of knowledge of the parties to an agreement is not always irrelevant in a proceeding charging a violation of conspiracy law. First, the knowledge of the parties is relevant to the same issues and to the same extent as it may be for conviction of the substantive offense. Second, whether conspirators knew the official identity of their quarry may be important, in some cases, in establishing the existence of federal jurisdiction. The jurisdictional requirement is satisfied by the existence of facts tying the proscribed conduct to the area of federal concern delineated by the statute. Federal jurisdiction always exists where the substantive offense is committed in the manner therein described, that is, when a federal officer is attacked. Where, however, there is an unfulfilled agreement to assault, it must be established whether the agreement, standing alone, constituted a sufficient threat to the safety of a federal officer so as to give rise to federal jurisdiction. If the agreement calls for an attack on an individual specifically identified, either by name or by some unique characteristic, as the putative buyers in the present case, and that specifically identified individual is in fact a federal officer, the agreement may be fairly characterized as one calling for an assault upon a federal officer, even though the parties were unaware of the victim's actual identity and even though they would not have agreed to the assault had they known that identity. Where the object of the intended attack is not identified with sufficient specificity so as to give rise to the conclusion *696 that had the attack been carried out the victim would have been a federal officer, it is impossible to assert that the mere act of agreement to assault poses a sufficient threat to federal personnel and functions so as to give rise to federal jurisdiction. To summarize, with the exception of the infrequent situation in which reference to the knowledge of the parties to an illegal agreement is necessary to establish the existence of federal jurisdiction, we hold that where knowledge of the facts giving rise to federal jurisdiction is not necessary for conviction of a substantive offense embodying a mens rea requirement, such knowledge is equally irrelevant to questions of responsibility for conspiracy to commit that offense. The judgment of the Court of with respect to the respondent's conspiracy conviction is reversed. It is so ordered. MR. JUSTICE STEWART, with whom MR. |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | [] The National Foundation on the Arts and the Humanities Act of 1965, as amended in 1990, requires the Chairperson of the National Endowment for the Arts (NEA) to ensure that "artistic excellence and artistic merit are the criteria by which [grant] applications are judged, taking into consideration general standards of decency and respect for the diverse beliefs and values of the American public" 20 US C 954(d)(1) In this case, we review the Court of Appeals' *573 determination that 954(d)(1), on its face, impermissibly discriminates on the basis of viewpoint and is void for vagueness under the First and Fifth Amendments We conclude that 954(d)(1) is facially valid, as it neither inherently interferes with First Amendment rights nor violates constitutional vagueness principles I A With the establishment of the NEA in 1965, Congress embarked on a "broadly conceived national policy of support for the arts in the United States," see 953(b), pledging federal funds to "help create and sustain not only a climate encouraging freedom of thought, imagination, and inquiry but also the material conditions facilitating the release of creative talent" 951(7) The enabling statute vests the NEA with substantial discretion to award grants; it identifies only the broadest funding priorities, including "artistic and cultural significance, giving emphasis to American creativity and cultural diversity," "professional excellence," and the encouragement of "public knowledge, education, understanding, and appreciation of the arts" See 954(c)(1)(10) Applications for NEA funding are initially reviewed by advisory panels composed of experts in the relevant field of the arts Under the 1990 amendments to the enabling statute, those panels must reflect "diverse artistic and cultural points of view" and include "wide geographic, ethnic, and minority representation," as well as "lay individuals who are knowledgeable about the arts" 959(c)(1)(2) The panels report to the 26-member National Council on the Arts (Council), which, in turn, advises the NEA Chairperson The Chairperson has the ultimate authority to award grants but may not approve an application as to which the Council has made a negative recommendation 955(f) * Since 1965, the NEA has distributed over $3 billion in grants to individuals and organizations, funding that has served as a catalyst for increased state, corporate, and foundation support for the arts Congress has recently restricted the availability of federal funding for individual artists, confining grants primarily to qualifying organizations and state arts agencies, and constraining subgranting See Department of the Interior and Related Agencies Appropriations Act, 1998, 329, By far the largest portion of the grants distributed in fiscal year 1998 were awarded directly to state arts agencies In the remaining categories, |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | awarded directly to state arts agencies In the remaining categories, the most substantial grants were allocated to symphony orchestras, fine arts museums, dance theater foundations, and opera associations See National Endowment for the Arts, FY 1998 Grants, Creation & Presentation 5-8, 21, 20, 27 Throughout the NEA's history, only a handful of the agency's roughly 100,000 awards have generated formal complaints about misapplied funds or abuse of the public's trust Two provocative works, however, prompted public controversy in 1989 and led to congressional revaluation of the NEA's funding priorities and efforts to increase oversight of its grant-making procedures The Institute of Contemporary Art at the University of Pennsylvania had used $30,000 of a visual arts grant it received from the NEA to fund a 1989 retrospective of photographer Robert Mapplethorpe's work The exhibit, entitled The Perfect Moment, included homoerotic photographs that several Members of Congress condemned as pornographic See, e g, 135 Cong Rec 72 (1989) Members also denounced artist Andres Serrano's work Piss Christ, a photograph of a crucifix immersed in urine See, e g, Serrano had been awarded a $15,000 grant from the Southeast Center for Contemporary Art, an organization that received NEA support When considering the NEA's appropriations for fiscal year 1990, Congress reacted to the controversy surrounding the *575 Mapplethorpe and Serrano photographs by eliminating $45,000 from the agency's budget, the precise amount contributed to the two exhibits by NEA grant recipients Congress also enacted an amendment providing that no NEA funds "may be used to promote, disseminate, or produce materials which in the judgment of [the NEA] may be considered obscene, including but not limited to, depictions of sadomasochism, homoeroticism, the sexual exploitation of children, or individuals engaged in sex acts and which, when taken as a whole, do not have serious literary, artistic, political, or scientific value" Department of the Interior and Related Agencies Appropriations Act, 1990, -742 The NEA implemented Congress' mandate by instituting a requirement that all grantees certify in writing that they would not utilize federal funding to engage in projects inconsistent with the criteria in the 1990 appropriations bill That certification requirement was subsequently invalidated as unconstitutionally vague by a Federal District Court, see Bella Lewitzky Dance and the NEA did not appeal the decision In the 1990 appropriations bill, Congress also agreed to create an Independent Commission of constitutional law scholars to review the NEA's grant-making procedures and assess the possibility of more focused standards for public arts funding The Commission's report, issued in September 1990, concluded that there is no constitutional obligation to provide arts funding, but also |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | is no constitutional obligation to provide arts funding, but also recommended that the NEA rescind the certification requirement and cautioned against legislation setting forth any content restrictions Instead, the Commission suggested procedural changes to enhance the role of advisory panels and a statutory reaffirmation of "the high place the nation accords to the fostering of mutual respect for the disparate beliefs and values among us" See Independent Commission, Report to Congress on the National *576 Endowment for the Arts 83-91 3 Record, Doc No 51, Exh K (hereinafter Report to Congress) Informed by the Commission's recommendations, and cognizant of pending judicial challenges to the funding limitations in the 1990 appropriations bill, Congress debated several proposals to reform the NEA's grant-making process when it considered the agency's reauthorization in the fall of 1990 The House rejected the Crane Amendment, which would have virtually eliminated the NEA, see 136 Cong Rec 28656-28657 and the Rohrabacher Amendment, which would have introduced a prohibition on awarding any grants that could be used to "promote, distribute, disseminate, or produce matter that has the purpose or effect of denigrating the beliefs, tenets, or objects of a particular religion" or "of denigrating an individual, or group of individuals, on the basis of race, sex, handicap, or national origin," Ultimately, Congress adopted the Williams/ Coleman Amendment, a bipartisan compromise between Members opposing any funding restrictions and those favoring some guidance to the agency In relevant part, the Amendment became 954(d)(1), which directs the Chairperson, in establishing procedures to judge the artistic merit of grant applications, to "tak[e] into consideration general standards of decency and respect for the diverse beliefs and values of the American public"[*] *577 The NEA has not promulgated any official interpretation of the provision, but in December 1990, the Council unanimously adopted a resolution to implement 954(d)(1) merely by ensuring that the members of the advisory panels that conduct the initial review of grant applications represent geographic, ethnic, and esthetic diversity See Minutes of the Dec 1990 Retreat of the National Council on the Arts, reprinted in App 12-13; Transcript of the Dec 1990 Retreat of the National Council on the Arts, reprinted in at 32 33 John Frohnmayer, then Chairperson of the NEA, also declared that he would "count on [the] procedures" ensuring diverse membership on the peer review panels to fulfill Congress' mandate See B The four individual respondents in this case, Karen Finley, John Fleck, Holly Hughes, and Tim Miller, are performance artists who applied for NEA grants before 954(d)(1) was enacted An advisory panel recommended approval of respondents' projects, both initially |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | An advisory panel recommended approval of respondents' projects, both initially and after receiving Frohnmayer's request to reconsider three of the applications A majority of the Council subsequently recommended disapproval, and in June 1990, the NEA informed respondents that they had been denied funding Respondents filed suit, alleging that the NEA had violated their First Amendment rights by rejecting the applications on political grounds, had failed to follow statutory procedures by basing the denial on criteria other than those set forth in the NEA's enabling statute, and had breached the confidentiality of their grant applications through the release of quotations to the press, in violation of the Privacy Act of 1974, 5 US C 552(a) Respondents sought restoration of the recommended grants or reconsideration of their applications, as well as damages for the alleged Privacy Act violations When Congress enacted 954(d)(1), respondents, now joined by the National Association of Artists' Organizations (NAAO), amended *578 their complaint to challenge the provision as void for vagueness and impermissibly viewpoint based First Amended Complaint ¶ 1 The District Court denied the NEA's motion for judgment on the pleadings, and, after discovery, the NEA agreed to settle the individual respondents' statutory and as-applied constitutional claims by paying the artists the amount of the vetoed grants, damages, and attorney's fees See Stipulation and Settlement Agreement, 6 Record, Doc No 128, pp 3-5 The District Court then granted summary judgment in favor of respondents on their facial constitutional challenge to 954(d)(1) and enjoined enforcement of the provision See The court rejected the argument that the NEA could comply with 954(d)(1) by structuring the grant selection process to provide for diverse advisory panels The provision, the court stated, "fails adequately to notify applicants of what is required of them or to circumscribe NEA discretion" Reasoning that "the very nature of our pluralistic society is that there are an infinite number of values and beliefs, and correlatively, there may be no national `general standards of decency,' " the court concluded that 954(d)(1) "cannot be given effect consistent with the Fifth Amendment's due process requirement" -1472 ) Drawing an analogy between arts funding and public universities, the court further ruled that the First Amendment constrains the NEA's grant-making process, and that because 954(d)(1) "clearly reaches a substantial amount of protected speech," it is impermissibly overbroad on its The Government did not seek a stay of the District Court's injunction, and consequently the NEA has not applied 954(d)(1) since June A divided panel of the Court of Appeals affirmed the District Court's ruling The majority *579 agreed with the District Court |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | Court's ruling The majority *579 agreed with the District Court that the NEA was compelled by the adoption of 954(d)(1) to alter its grant-making procedures to ensure that applications are judged according to the "decency and respect" criteria The Chairperson, the court reasoned, "has no discretion to ignore this obligation, enforce only part of it, or give it a cramped construction" Concluding that the "decency and respect" criteria are not "susceptible to objective definition," the court held that 954(d)(1) "gives rise to the danger of arbitrary and discriminatory application" and is void for vagueness under the First and Fifth Amendments -681 In the alternative, the court ruled that 954(d)(1) violates the First Amendment's prohibition on viewpoint-based restrictions on protected speech Government funding of the arts, the court explained, is both a "traditional sphere of free expression," and an area in which the Government has stated its intention to "encourage a diversity of views from private speakers," -682 Accordingly, finding that 954(d)(1) "has a speech-based restriction as its sole rationale and operative principle," at and noting the NEA's failure to articulate a compelling interest for the provision, the court declared it facially invalid 100 F3d, at The dissent asserted that the First Amendment protects artists' rights to express themselves as indecently and disrespectfully as they like, but does not compel the Government to fund that speech (opinion of Kleinfeld, J) The challenged provision, the dissent contended, did not prohibit the NEA from funding indecent or offensive art, but merely required the agency to consider the "decency and respect" criteria in the grant selection process at 689 690 Moreover, according to the dissent's reasoning, the vagueness principles applicable to the direct regulation of speech have no bearing on the selective award of prizes, and *580 the Government may draw distinctions based on content and viewpoint in making its funding decisions -688 Three judges dissented from the denial of rehearing en banc, maintaining that the panel's decision gave the statute an "implausible construction," applied the "`void for vagueness' doctrine where it does not belong," and extended "First Amendment principles to a situation that the First Amendment doesn't cover" 112 F3d 1015, We granted certiorari, 522 US 991 and now reverse the judgment of the Court of Appeals II A Respondents raise a facial constitutional challenge to 954(d)(1), and consequently they confront "a heavy burden" in advancing their claim Facial invalidation "is, manifestly, strong medicine" that "has been employed by the Court sparingly and only as a last resort" v Oklahoma, 413 US 601, ; see also FW/PBS, Inc v Dallas, 493 US 215, |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | ; see also FW/PBS, Inc v Dallas, 493 US 215, To prevail, respondents must demonstrate a substantial risk that application of the provision will lead to the suppression of speech See Respondents argue that the provision is a paradigmatic example of viewpoint discrimination because it rejects any artistic speech that either fails to respect mainstream values or offends standards of decency The premise of respondents' claim is that 954(d)(1) constrains the agency's ability to fund certain categories of artistic expression The NEA, however, reads the provision as merely hortatory, and contends that it stops well short of an absolute restriction Section 954(d)(1) adds "considerations" to the grant-making process; it does not preclude awards to projects that might be deemed "indecent" or "disrespectful," nor place conditions on grants, or even specify that those factors must be given *581 any particular weight in reviewing an application Indeed, the agency asserts that it has adequately implemented 954(d)(1) merely by ensuring the representation of various backgrounds and points of view on the advisory panels that analyze grant applications See Declaration of Randolph McAusland, Deputy Chairman for Programs at the NEA, reprinted in App 79 (stating that the NEA implements the provision "by ensuring that the peer review panels represent a variety of geographical areas, aesthetic views, professions, areas of expertise, races and ethnic groups, and gender, and include a lay person") We do not decide whether the NEA's viewthat the formulation of diverse advisory panels is sufficient to comply with Congress' commandis in fact a reasonable reading of the statute It is clear, however, that the text of 954(d)(1) imposes no categorical requirement The advisory language stands in sharp contrast to congressional efforts to prohibit the funding of certain classes of speech When Congress has in fact intended to affirmatively constrain the NEA's grant-making authority, it has done so in no uncertain terms See 954(d)(2) ("[O]bscenity is without artistic merit, is not protected speech, and shall not be funded") Furthermore, like the plain language of 954(d), the political context surrounding the adoption of the "decency and respect" clause is inconsistent with respondents' assertion that the provision compels the NEA to deny funding on the basis of viewpoint discriminatory criteria The legislation was a bipartisan proposal introduced as a counterweight to amendments aimed at eliminating the NEA's funding or substantially constraining its grant-making authority See, e g, 136 Cong Rec 28626, 28632, 28634 The Independent Commission had cautioned Congress against the adoption of distinct viewpoint-based standards for funding, and the Commission's report suggests that "additional criteria for selection, if any, should be incorporated as part |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | criteria for selection, if any, should be incorporated as part of the selection process (perhaps as part of a definition of `artistic excellence'), *582 rather than isolated and treated as exogenous considerations" Report to Congress 89 In keeping with that recommendation, the criteria in 954(d)(1) inform the assessment of artistic merit, but Congress declined to disallow any particular viewpoints As the sponsors of 954(d)(1) noted in urging rejection of the Rohrabacher Amendment: "[I]f we start down that road of prohibiting categories of expression, categories which are indeed constitutionally protected speech, where do we end? Where one Member's aversions end, others with different sensibilities and with different values begin" 136 Cong Rec 28624 (statement of Rep Coleman); see also (statement of Rep Williams) (arguing that the Rohrabacher Amendment would prevent the funding of Jasper Johns' flag series, The Merchant of Venice, Chorus Line, Birth of a Nation, and the Grapes of Wrath) In contrast, before the vote on 954(d)(1), one of its sponsors stated: "If we have done one important thing in this amendment, it is this We have maintained the integrity of freedom of expression in the United States" That 954(d)(1) admonishes the NEA merely to take "decency and respect" into consideration and that the legislation was aimed at reforming procedures rather than precluding speech undercut respondents' argument that the provision inevitably will be utilized as a tool for invidious viewpoint discrimination In cases where we have struck down legislation as facially unconstitutional, the dangers were both more evident and more substantial In R A V v St Paul, 505 US 377 for example, we invalidated on its face a municipal ordinance that defined as a criminal offense the placement of a symbol on public or private property "`which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender' " See That provision set forth a clear penalty, proscribed views on particular "disfavored subjects," and suppressed "distinctive idea[s], conveyed by a distinctive message," *583 In contrast, the "decency and respect" criteria do not silence speakers by expressly "threaten[ing] censorship of ideas" See ibid Thus, we do not perceive a realistic danger that 954(d)(1) will compromise First Amendment values As respondents' own arguments demonstrate, the considerations that the provision introduces, by their nature, do not engender the kind of directed viewpoint discrimination that would prompt this Court to invalidate a statute on its Respondents assert, for example, that "[o]ne would be hard-pressed to find two people in the United States who could agree on what the |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | in the United States who could agree on what the `diverse beliefs and values of the American public' are, much less on whether a particular work of art `respects' them"; and they claim that "`[d]ecency' is likely to mean something very different to a septegenarian in Tuscaloosa and a teenager in Las Vegas" Brief for Respondents 41 The NEA likewise views the considerations enumerated in 954(d)(1) as susceptible to multiple interpretations See Department of the Interior and Related Agencies Appropriations for Hearing before the Subcommittee on Interior and Related Agencies of the House Committee on Appropriations, 102d Cong, 1st Sess, 234 (testimony of John Frohnmayer) ("[N]o one individual is wise enough to be able to consider general standards of decency and the diverse values and beliefs of the American people all by him or herself These are group decisions") Accordingly, the provision does not introduce considerations that, in practice, would effectively preclude or punish the expression of particular views Indeed, one could hardly anticipate how "decency" or "respect" would bear on grant applications in categories such as funding for symphony orchestras Respondents' claim that the provision is facially unconstitutional may be reduced to the argument that the criteria in 954(d)(1) are sufficiently subjective that the agency could utilize them to engage in viewpoint discrimination Given the varied interpretations of the criteria and the vague exhortation *584 to "take them into consideration," it seems unlikely that this provision will introduce any greater element of selectivity than the determination of "artistic excellence" itself And we are reluctant, in any event, to invalidate legislation "on the basis of its hypothetical application to situations not before the Court" FCC v Pacifica Foundation, 438 US 726, The NEA's enabling statute contemplates a number of indisputably constitutional applications for both the "decency" prong of 954(d)(1) and its reference to "respect for the diverse beliefs and values of the American public" Educational programs are central to the NEA's mission See 951(9) ("Americans should receive in school, background and preparation in the arts and humanities"); 954(c)(5) (listing "projects and productions that will encourage public knowledge, education, understanding, and appreciation of the arts" among the NEA's funding priorities); National Endowment for the Arts, FY 1999 Application Guidelines 18-19 (describing "Education & Access" category); Brief for Twentysix Arts, Broadcast, Library, Museum and Publishing Amici Curiae 5, n 2 (citing NEA Strategic Plan FY FY 2, which identifies children's festivals and museums, art education, at-risk youth projects, and artists in schools as examples of the NEA's activities) And it is well established that "decency" is a permissible factor where "educational suitability" |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | established that "decency" is a permissible factor where "educational suitability" motivates its consideration Board of Ed, Island Trees Union Free School Dist No 26 v Pico, 457 US 853, ; see also Bethel School Dist No 403 v Fraser, 478 US 675, Permissible applications of the mandate to consider "respect for the diverse beliefs and values of the American public" are also apparent In setting forth the purposes of the NEA, Congress explained that "[i]t is vital to a democracy to honor and preserve its multicultural artistic heritage" *585 951(10) The agency expressly takes diversity into account, giving special consideration to "projects and productions that reach, or reflect the culture of, a minority, inner city, rural, or tribal community," 954(c)(4), as well as projects that generally emphasize "cultural diversity," 954(c)(1) Respondents do not contend that the criteria in 954(d)(1) are impermissibly applied when they may be justified, as the statute contemplates, with respect to a project's intended audience We recognize, of course, that reference to these permissible applications would not alone be sufficient to sustain the statute against respondents' First Amendment challenge But neither are we persuaded that, in other applications, the language of 954(d)(1) itself will give rise to the suppression of protected expression Any content-based considerations that may be taken into account in the grant-making process are a consequence of the nature of arts funding The NEA has limited resources, and it must deny the majority of the grant applications that it receives, including many that propose "artistically excellent" projects The agency may decide to fund particular projects for a wide variety of reasons, "such as the technical proficiency of the artist, the creativity of the work, the anticipated public interest in or appreciation of the work, the work's contemporary relevance, its educational value, its suitability for or appeal to special audiences (such as children or the disabled), its service to a rural or isolated community, or even simply that the work could increase public knowledge of an art form" Brief for Petitioners 32 As the dissent below noted, it would be "impossible to have a highly selective grant program without denying money to a large amount of constitutionally protected expression" 100 F3d, at 685 (opinion of Kleinfeld, J) The "very assumption" of the NEA is that grants will be awarded according to the "artistic worth of competing applicants," and absolute neutrality is simply "inconceivable" Advo- *586 cates for the Arts v Thomson, 532 F2d 792, (CA1), cert denied, 429 US 894 Respondents' reliance on our decision in is therefore misplaced In a public university declined to authorize |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | is therefore misplaced In a public university declined to authorize disbursements from its Student Activities Fund to finance the printing of a Christian student newspaper We held that by subsidizing the Student Activities Fund, the University had created a limited public forum, from which it impermissibly excluded all publications with religious editorial viewpoints Although the scarcity of NEA funding does not distinguish this case from see the competitive process according to which the grants are allocated does In the context of arts funding, in contrast to many other subsidies, the Government does not indiscriminately "encourage a diversity of views from private speakers," at The NEA's mandate is to make esthetic judgments, and the inherently content-based "excellence" threshold for NEA support sets it apart from the subsidy at issue in which was available to all student organizations that were "`related to the educational purpose of the University,' " at 824and from comparably objective decisions on allocating public benefits, such as access to a school auditorium or a municipal theater, see Lamb's Chapel v Center Moriches Union Free School Dist, 508 US 384, ; Southeastern Promotions, Ltd v Conrad, 420 US 546, or the second class mailing privileges available to "`all newspapers and other periodical publications,' " see Hannegan v Esquire, Inc, 327 US 146, 148, n 1 Respondents do not allege discrimination in any particular funding decision (In fact, after filing suit to challenge 954(d)(1), two of the individual respondents received NEA grants See 4 Record, Doc No 57, Exh 35 (Sept 30, letters from the NEA informing respondents Hughes and Miller that they had been awarded Solo Performance Theater *587 Artist Fellowships)) Thus, we have no occasion here to address an as-applied challenge in a situation where the denial of a grant may be shown to be the product of invidious viewpoint discrimination If the NEA were to leverage its power to award subsidies on the basis of subjective criteria into a penalty on disfavored viewpoints, then we would confront a different case We have stated that, even in the provision of subsidies, the Government may not "ai[m] at the suppression of dangerous ideas," v Taxation with Representation of Wash, 461 US 540, and if a subsidy were "manipulated" to have a "coercive effect," then relief could be appropriate See Arkansas Writers' Project, Inc v Ragland, 481 US 221, (Scalia, J, dissenting); see also Leathers v Medlock, US 439, In addition, as the NEA itself concedes, a more pressing constitutional question would arise if Government funding resulted in the imposition of a disproportionate burden calculated to drive "certain ideas |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | imposition of a disproportionate burden calculated to drive "certain ideas or viewpoints from the marketplace" Simon & Schuster, Inc v Members of N Y State Crime Victims Bd, 502 US 105, ; see Brief for Petitioners 38, n 12 Unless 954(d)(1) is applied in a manner that raises concern about the suppression of disfavored viewpoints, however, we uphold the constitutionality of the provision Cf Red Lion Broadcasting Co v FCC, 395 US 367, B Finally, although the First Amendment certainly has application in the subsidy context, we note that the Government may allocate competitive funding according to criteria *588 that would be impermissible were direct regulation of speech or a criminal penalty at stake So long as legislation does not infringe on other constitutionally protected rights, Congress has wide latitude to set spending priorities See In the 1990 amendments that incorporated 954(d)(1), Congress modified the declaration of purpose in the NEA's enabling Act to provide that arts funding should "contribute to public support and confidence in the use of taxpayer funds," and that "[p]ublic funds must ultimately serve public purposes the Congress defines" 951(5) And as we held in Congress may "selectively fund a program to encourage certain activities it believes to be in the public interest, without at the same time funding an alternative program which seeks to deal with the problem in another way" 500 US, at 193 In doing so, "the Government has not discriminated on the basis of viewpoint; it has merely chosen to fund one activity to the exclusion of the other" Ibid; see also Maher v Roe, 432 US 464, III The lower courts also erred in invalidating 954(d)(1) as unconstitutionally vague Under the First and Fifth Amendments, speakers are protected from arbitrary and discriminatory enforcement of vague standards See NAACP v Button, 371 US 415, The terms of the provision are undeniably opaque, and if they appeared in a criminal statute or regulatory scheme, they could raise substantial vagueness concerns It is unlikely, however, that speakers will be compelled to steer too far clear of any "forbidden area" in the context of grants of this nature Cf Board of Airport Comm'rs of Los Angeles v Jews for Jesus, Inc, 482 US 569, ; Hoffman Estates v Flipside, Hoffman Estates, Inc, 455 US 489, ; 408 U S, at 108 We recognize, as a practical matter, that artists may conform their speech to what they believe to be the decision making criteria in order to acquire funding See Statement of Charlotte Murphy, Executive Director of NAAO, reprinted in App 21 22 But when the |
Justice O'Connor | 1,998 | 14 | majority | National Endowment for Arts v. Finley | https://www.courtlistener.com/opinion/118240/national-endowment-for-arts-v-finley/ | of NAAO, reprinted in App 21 22 But when the Government is acting as patron rather than as sovereign, the consequences of imprecision are not constitutionally severe In the context of selective subsidies, it is not always feasible for Congress to legislate with clarity Indeed, if this statute is unconstitutionally vague, then so too are all Government programs awarding scholarships and grants on the basis of subjective criteria such as "excellence" See, e g, 2 US C 802 (establishing the Congressional Award Program to "promote initiative, achievement, and excellence among youths in the areas of public service, personal development, and physical and expedition fitness"); 20 US C 956(c)(1) (providing funding to the National Endowment for the Humanities to promote "progress and scholarship in the humanities"); 1134h(a) (authorizing the Secretary of Education to award fellowships to "students of superior ability selected on the basis of demonstrated achievement and exceptional promise"); 22 US C 2452(a) (authorizing the award of Fulbright grants to "strengthen international cooperative relations"); 42 US C 7382c (authorizing the Secretary of Energy to recognize teachers for "excellence in mathematics or science education") To accept respondents' vagueness argument would be to call into question the constitutionality of these valuable Government programs and countless others like them *590 Section 954(d)(1) merely adds some imprecise considerations to an already subjective selection process It does not, on its face, impermissibly infringe on First or Fifth Amendment rights Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion It is so ordered Justice Scalia, with whom Justice Thomas joins, concurring in the judgment |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | The Fifth Amendment of the United States Constitution provides, in pertinent part, that "private property [shall not] be taken for public use, without just compensation." These cases present the question whether the Public Use Clause of that Amendment, made applicable to the States through the Fourteenth Amendment, prohibits the State of Hawaii from taking, with just compensation, title in real property from *232 lessors and transferring it to lessees in order to reduce the concentration of ownership of fees simple in the State. We conclude that it does not. I A The Hawaiian Islands were originally settled by Polynesian immigrants from the western Pacific. These settlers developed an economy around a feudal land tenure system in which one island high chief, the ali'i nui, controlled the land and assigned it for development to certain subchiefs. The subchiefs would then reassign the land to other lower ranking chiefs, who would administer the land and govern the farmers and other tenants working it. All land was held at the will of the ali'i nui and eventually had to be returned to his trust. There was no private ownership of land. See generally Brief for Office of Hawaiian Affairs as Amicus Curiae 3-5. Beginning in the early 10's, Hawaiian leaders and American settlers repeatedly attempted to divide the lands of the kingdom among the crown, the chiefs, and the common people. These efforts proved largely unsuccessful, however, and the land remained in the hands of a few. In the mid-1960's, after extensive hearings, the Hawaii Legislature discovered that, while the State and Federal Governments owned almost 49% of the State's land, another 47% was in the hands of only 72 private landowners. See Brief for the Hou Hawaiians and Maui Loa, Chief of the Hou Hawaiians, as Amici Curiae 32. The legislature further found that 18 landholders, with tracts of 21,000 acres or more, owned more than 40% of this land and that on Oahu, the most urbanized of the islands, 22 landowners owned 72.5% of the fee simple titles. The legislature concluded that concentrated land ownership was responsible for skewing the State's residential fee simple market, inflating land prices, and injuring the public tranquility and welfare. *233 To redress these problems, the legislature decided to compel the large landowners to break up their estates. The legislature considered requiring large landowners to sell lands which they were leasing to homeowners. However, the landowners strongly resisted this scheme, pointing out the significant federal tax liabilities they would incur. Indeed, the landowners claimed that the federal tax laws were the primary reason they previously had |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | federal tax laws were the primary reason they previously had chosen to lease, and not sell, their lands. Therefore, to accommodate the needs of both lessors and lessees, the Hawaii Legislature enacted the Land Reform Act of 1967 (Act), Haw. Rev. Stat., ch. 516, which created a mechanism for condemning residential tracts and for transferring ownership of the condemned fees simple to existing lessees. By condemning the land in question, the Hawaii Legislature intended to make the land sales involuntary, thereby making the federal tax consequences less severe while still facilitating the redistribution of fees simple. See Brief for Appellants in Nos. 83-141 and 83-283, pp. 3-4, and nn. 6-8. Under the Act's condemnation scheme, tenants living on single-family residential lots within developmental tracts at least five acres in size are entitled to ask the Hawaii Housing Authority (HHA) to condemn the property on which they live. (2), (11), 516-22 (1977). When 25 eligible tenants,[1] or tenants on half the lots in the tract, whichever is less, file appropriate applications, the Act authorizes HHA to hold a public hearing to determine whether acquisition by the State of all or part of the tract will "effectuate the public purposes" of the Act. 516-22. If HHA finds that these public purposes will be served, it is authorized *234 to designate some or all of the lots in the tract for acquisition. It then acquires, at prices set either by condemnation trial or by negotiation between lessors and lessees,[2] the former fee owners' full "right, title, and interest" in the land. 516-25. After compensation has been set, HHA may sell the land titles to tenants who have applied for fee simple ownership. HHA is authorized to lend these tenants up to 90% of the purchase price, and it may condition final transfer on a right of first refusal for the first 10 years following sale. 516-30, 516-34, 516-35. If HHA does not sell the lot to the tenant residing there, it may lease the lot or sell it to someone else, provided that public notice has been given. 516-28. However, HHA may not sell to any one purchaser, or lease to any one tenant, more than one lot, and it may not operate for profit. 516-28, 516-32. In practice, funds to satisfy the condemnation awards have been supplied entirely by lessees. See App. 164. While the Act authorizes HHA to issue bonds and appropriate funds for acquisition, no bonds have issued and HHA has not supplied any funds for condemned lots. See B In April 1977, HHA held a public hearing concerning the |
Justice O'Connor | 1,984 | 14 | majority | Hawaii Housing Authority v. Midkiff | https://www.courtlistener.com/opinion/111196/hawaii-housing-authority-v-midkiff/ | In April 1977, HHA held a public hearing concerning the proposed acquisition of some of appellees' lands. HHA made the statutorily required finding that acquisition of appellees' lands would effectuate the public purposes of the Act. Then, in October 1978, it directed appellees to negotiate with certain lessees concerning the sale of the designated properties. Those negotiations failed, and HHA subsequently ordered appellees to submit to compulsory arbitration. Rather than comply with the compulsory arbitration order, appellees filed suit, in February 1979, in United States District *235 Court, asking that the Act be declared unconstitutional and that its enforcement be enjoined. The District Court temporarily restrained the State from proceeding against appellees' estates. Three months later, while declaring the compulsory arbitration and compensation formulae provisions of the Act unconstitutional,[3] the District Court refused preliminarily to enjoin appellants from conducting the statutory designation and condemnation proceedings. Finally, in December 1979, it granted partial summary judgment to appellants, holding the remaining portion of the Act constitutional under the Public Use Cla See The District Court found that the Act's goals were within the bounds of the State's police powers and that the means the legislature had chosen to serve those goals were not arbitrary, capricious, or selected in bad faith. The Court of Appeals for the Ninth Circuit reversed. First, the Court of Appeals decided that the District Court had permissibly chosen not to abstain from the exercise of its jurisdiction. Then, the Court of Appeals determined that the Act could not pass the requisite judicial scrutiny of the Public Use Cla It found that the transfers contemplated by the Act were unlike those of takings previously held to constitute "public uses" by this Court. The court further determined that the public purposes offered by the Hawaii Legislature were not deserving of judicial deference. The court concluded that the Act was simply "a naked attempt on the part of the state of Hawaii to take the private property of A and transfer it to B solely for B's private use and benefit." One judge dissented. *236 On applications of HHA and certain private appellants who had intervened below, this Court noted probable jurisdiction. We now reverse. II We begin with the question whether the District Court abused its discretion in not abstaining from the exercise of its jurisdiction. The appellants have suggested as one alternative that perhaps abstention was required under the standards announced in Railroad and We do not believe that abstention was required. A In Railroad this Court held that federal courts should abstain from decision when difficult and unsettled |
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