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Justice Ginsburg | 2,008 | 5 | dissenting | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | from executions in which it is known that sodium thiopental was injected into the inmate's soft tissue. See, e.g., Lightbourne, 969 So.2d, at 344 (describing execution of Angel Diaz). Second, the inmate may receive enough sodium thiopental to mask the most obvious signs of consciousness without receiving a dose sufficient to achieve a surgical plane of anesthesia. See 7 Tr. 976 (Apr. 21, 2005). If the drug is injected too quickly, the increase in blood pressure can cause the inmate's veins to burst after a small amount of sodium thiopental has been administered. Cf.App. 217 (describing risk of "blowout"). Kentucky's protocol does not specify the rate at which sodium thiopental should be injected. The executioner, who does not have any medical training, pushes the drug "by feel" through five feet of tubing.[8] In practice sessions, unlike in an actual execution, there is no resistance on the catheter, see ; thus the executioner's training may lead him to push the drugs too fast. "The easiest and most obvious way to ensure that an inmate is unconscious during an execution," petitioners argued to the Kentucky Supreme Court, "is to check for consciousness prior to injecting pancuronium [bromide]." Brief for Appellants in No.2005-SC-00543, p. 41. See also App. 30 (Complaint) (alleging Kentucky's protocol does not "require the execution team to determine that the condemned inmate is unconscious prior to administering the second and third chemicals"). The court did not address petitioners' argument. I would therefore remand with instructions to consider whether the failure to include readily available safeguards to confirm that the inmate is unconscious after injection of sodium thiopental, in combination with the other elements of Kentucky's protocol, creates an untoward, readily avoidable risk of inflicting severe and unnecessary pain. |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | This case presents the question whether a party may take an appeal, pursuant to 28 U.S. C. 1291,[1] from a district court order denying a motion to disqualify counsel for the opposing party in a civil case. The United Court of Appeals for the Eighth Circuit held that such orders are not appealable, but made its decision prospective only and therefore *370 reached the merits of the challenged order. We hold that orders denying motions to disqualify counsel are not appealable final decisions under 1291, and we therefore vacate the judgment of the Court of Appeals and remand with instructions that the appeal be dismissed for lack of jurisdiction. I Respondent is lead counsel for the plaintiffs in four product-liability suits seeking damages from petitioner and other manufacturers of multipiece truck tire rims for injuries caused by alleged defects in their products.[2] The complaints charge petitioner and the other defendants with various negligent, willful, or intentional failures to correct or to warn of the supposed defects in the rims. Plaintiffs seek both compensatory and exemplary damages. App. 6-72. Petitioner was at all relevant times insured by Home Insurance Co. (Home) under a contract providing that Home would be responsible only for some types of liability beyond a minimum "deductible" amount. Home was also an occasional client of respondent's law firm.[3] Based on these facts, petitioner in May 1979 filed a motion to disqualify respondent from further representation of the plaintiffs. Petitioner argued that respondent had a clear conflict of interest because his representation of Home would give him an incentive to structure plaintiffs' claims for relief in such a way as to enable the insurer to avoid any liability. This in turn, petitioner *371 argued, could increase its own potential liability. Home had in fact advised petitioner in the course of the litigation that its policy would cover neither an award of compensatory damages for willful or intentional acts nor any award of exemplary or punitive damages.[4] The District Court entered a pretrial order requiring that respondent terminate his representation of the plaintiffs[5] unless both the plaintiffs and Home consented to his continuing representation.[6] at 7, 160. In accordance with the District Court's order, respondent filed an affidavit in which he stated that he had informed both the plaintiffs and Home of the potential conflict and that neither had any objection to his continuing representation of them both. He filed supporting affidavits executed by the plaintiffs and by a representative of Home. Because he had satisfied the requirements of the pretrial order, respondent was able to continue his representation of |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | pretrial order, respondent was able to continue his representation of the plaintiffs. Petitioner objected to the District Court's decision to permit respondent to continue his representation if he met the stated *372 conditions, and therefore filed a notice of appeal pursuant to 28 U.S. C. 1291.[7] Although it did not hear oral argument on the appeal, the Eighth Circuit decided the case en banc and affirmed the trial court's order permitting petitioner to continue representing the plaintiffs.[8]In re Multi-Piece Rim Products Liability, Before considering the merits of the appeal, the court reconsidered and overruled its prior decisions holding that orders denying disqualification motions were immediately appealable under 1291. The Court of Appeals reasoned that such orders did not fall within the collateral-order doctrine of which allows some appeals prior to final judgment. Because it was overruling prior cases, the court stated that it would reach the merits of the challenged order "[i]n fairness to the appellant in the instant case," but *373 held that in the future, appellate review of such orders would have to await final judgment on the merits of the main proceeding.[9] 612 F. 2d, at 378-379. We granted certiorari, to resolve a conflict among the Circuits on the appealability question.[10] II Under 1291, the courts of appeals are vested with "jurisdiction of appeals from all final decisions of the district courts except where a direct review may be had in the Supreme Court." We have consistently interpreted this language as indicating that a party may not take an appeal under this section until there has been "a decision by the District Court that `ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.'" Coopers *374 & quoting This rule, that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of "avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment." See The rule |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | from its initiation to entry of judgment." See The rule also serves the important purpose of promoting efficient judicial administration. Our decisions have recognized, however, a narrow exception to the requirement that all appeals under 1291 await final judgment on the merits. In we held that a "small class" of orders that did not end the main litigation were nevertheless final and appealable pursuant to 1291. Cohen was a shareholder's derivative action in which the Federal District Court refused to apply a state statute requiring a plaintiff in such a suit to post security for costs. The defendant appealed the ruling without awaiting final judgment on the merits, and the Court of Appeals ordered the trial court to require that costs be posted. We held that the Court of Appeals properly assumed jurisdiction of the appeal pursuant to 1291 because the District Court's order constituted a final determination of a claim "separable from, and collateral to," the merits of the main proceeding, because it was "too important to be denied review," *375 and because it was "too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Cohen did not establish new law; rather, it continued a tradition of giving 1291 a "practical rather than a technical construction." See, e. g., United ; ; ; We have recently defined this limited class of final "collateral orders" in these terms: "[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & See Because the litigation from which the instant petition arises had not reached final judgment at the time the notice of appeal was filed,[11] the order denying petitioner's motion to disqualify respondent is appealable under 1291 only if it falls within the Cohen doctrine. The Court of Appeals held that it does not, and 5 of the other 10 Circuits have also reached the conclusion that denials of disqualification motions are not immediately appealable "collateral orders."[12] We agree with these courts that under Cohen such an order is not subject to appeal prior to resolution of the merits. An order denying a disqualification motion meets the first part of the "collateral order" test. It "conclusively determine[s] the disputed question," because the only issue is whether challenged counsel will be permitted to continue his *376 representation. In addition, we will assume, although we do not decide, that the disqualification question "resolve[s] an important issue completely separate from the merits of the action," |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | important issue completely separate from the merits of the action," the second part of the test. Nevertheless, petitioner is unable to demonstrate that an order denying disqualification is "effectively unreviewable on appeal from a final judgment" within the meaning of our cases. In attempting to show why the challenged order will be effectively unreviewable on final appeal, petitioner alleges that denying immediate review will cause it irreparable harm. It is true that the finality requirement should "be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered," In support of its assertion that it will be irreparably harmed, petitioner hints at "the possibility that the course of the proceedings may be indelibly stamped or shaped with the fruits of a breach of confidence or by acts or omissions prompted by a divided loyalty," Brief for Petitioner and at "the effect of such a tainted proceeding in frustrating public policy," But petitioner fails to supply a single concrete example of the indelible stamp or taint of which it warns. The only ground that petitioner urged in the District Court was that respondent might shape the products-liability plaintiffs' claims for relief in such a way as to increase the burden on petitioner. Our cases, however, require much more before a ruling may be considered "effectively unreviewable" absent immediate appeal. To be appealable as a final collateral order, the challenged order must constitute "a complete, formal and, in the trial court, final rejection," of a claimed right "where denial of immediate review would render impossible any review whatsoever," United v. Thus we have permitted appeals prior to criminal trials when a defendant has claimed that he is about to be subjected to forbidden double jeopardy, *377 or a violation of his constitutional right to bail, because those situations, like the posting of security for costs involved in Cohen, "each involved an asserted right the legal and practical value of which could be destroyed if it were not vindicated before trial." United v. By way of contrast, we have generally denied review of pretrial discovery orders, see, e. g., United v. Our rationale has been that in the rare case when appeal after final judgment will not cure an erroneous discovery order, a party may defy the order, permit a contempt citation to be entered against him, and challenge the order on direct appeal of the contempt ruling. See We have also rejected immediate appealability under 1291 of claims that "may fairly be assessed" only after trial, United v. at and those involving "considerations that |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | after trial, United v. at and those involving "considerations that are `enmeshed in the factual and legal issues comprising the plaintiff's cause of action.'" Coopers & quoting Mercantile National An order refusing to disqualify counsel plainly falls within the large class of orders that are indeed reviewable on appeal after final judgment, and not within the much smaller class of those that are not. The propriety of the district court's denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a claim of fundamental right that cannot effectively be reviewed following judgment on the merits. In the case before us, petitioner has made no showing that its opportunity for meaningful review will perish *378 unless immediate appeal is permitted. On the contrary, should the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial. That remedy seems plainly adequate should petitioner's concerns of possible injury ultimately prove well founded. As the Second Circuit has recently observed, the potential harm that might be caused by requiring that a party await final judgment before it may appeal even when the denial of its disqualification motion was erroneous does not "diffe[r] in any significant way from the harm resulting from other interlocutory orders that may be erroneous, such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge." cert. pending, No. 80-431. But interlocutory orders are not appealable "on the mere ground that they may be erroneous." Will v. United Permitting wholesale appeals on that ground not only would constitute an unjustified waste of scarce judicial resources, but also would transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in 1291. This we decline to do.[13] *379 III We hold that a district court's order denying a motion to disqualify counsel is not appealable under 1291 prior to final judgment in the underlying litigation.[14] Insofar as the Eighth Circuit reached this conclusion, its decision is correct. But because its decision was contrary to precedent in the Circuit, the court went further and reached the merits of |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | Circuit, the court went further and reached the merits of the order appealed from. This approach, however, overlooks the fact that the finality requirement embodied in 1291 is jurisdiction, in nature. If the appellate court finds that the order from which a party seeks to appeal does not fall within the statute, its inquiry is over. A court lacks discretion to consider the merits of a case over which it is without jurisdiction, and thus, by definition, a jurisdictional ruling may never be made prospective only. We therefore hold that because the Court of Appeals was without jurisdiction to hear the appeal, it was without authority to decide the merits.[] Consequently, *380 the judgment of the Eighth Circuit is vacated, and the case is remanded with instructions to dismiss the appeal for want of jurisdiction. See So ordered. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the result. I agree with the result in this case and the analysis of the Court so far as it concerns the question whether an order denying disqualification of counsel is "effectively unreviewable on appeal from the final judgment." The Court's answer to this question is dispositive on the appealability issue. Since it is completely unnecessary to do so, however, I would not state, as the Court does, ante, at 375-376: "An order denying a disqualification motion meets the first part of the `collateral order' test. It `conclusively determine[s] the disputed question,' because the only issue is whether challenged counsel will be permitted to continue his representation." In Justice Jackson stressed that the order before the Court was "a final disposition of a claimed right" and specifically distinguished a case in which the matter was "subject to reconsideration from time to time." -547. Just recently in Coopers & we held that an order denying class certification was *381 not appealable under the collateral-order doctrine, in part because such an order is "subject to revision in the District Court." The possibility that a district judge would reconsider his determination was highly significant in United v. where the Court held that the denial of a pretrial motion to dismiss an indictment on speedy trial grounds was not appealable under the collateral-order doctrine. The Court noted that speedy trial claims necessitated a careful assessment of the particular facts of the case, and that "[t]he denial of a pretrial motion to dismiss an indictment on speedy trial grounds does not indicate that a like motion made after trialwhen prejudice can be better gaugedwould also be denied." It is not at all clear to me, nor has |
Justice Marshall | 1,981 | 15 | majority | Firestone Tire & Rubber Co. v. Risjord | https://www.courtlistener.com/opinion/110373/firestone-tire-rubber-co-v-risjord/ | It is not at all clear to me, nor has it been to courts considering the question, that an order denying a motion for disqualification of counsel conclusively determines the disputed question. The District Court remains free to reconsider its decision at any time. See cert. pending, No. 80-431; ; 264 F.2d 5, (CA2), cert. denied, The Court itself recognizes this possibility, ante, at 378-379, n. 13. And in doing so the Court is not only being abstractly inconsistent with its conclusion that the first prong of the Cohen test is satisfied. In this very case the possibility of reconsideration by the trial judge cannot be dismissed as merely theoretical. Petitioner's claim is that respondent will advance only those theories of liability which absolve the insurer, or will advance those theories more strenuously than others. Although it is impossible to discern if this is true before trial, the issues may become clearer as trial progresses and respondent actually does present his theories. As in it cannot be assumed that a motion made at a *382 later point in the proceedings"when prejudice can be better gauged"will be denied. Because of what seem to me to be totally unnecessary and very probably incorrect statements as to this minor point in the opinion, I concur in the result only. |
Justice Rehnquist | 1,988 | 19 | majority | Mathews v. United States | https://www.courtlistener.com/opinion/112012/mathews-v-united-states/ | This case requires the Court to decide whether a defendant in a federal criminal prosecution who denies commission of the crime may nonetheless have the jury instructed, where the evidence warrants, on the affirmative defense of entrapment. The United States Court of Appeals for the Seventh Circuit upheld the ruling of the District Court, which had refused to instruct the jury as to entrapment because petitioner would not admit committing all of the elements of the crime of accepting a bribe. This holding conflicts with decisions of other Courts of Appeals, which have taken a variety of approaches to the question.[1] We *60 granted certiorari to resolve this conflict, and we now reverse. Petitioner was employed by the Small Business Administration (SBA) in Milwaukee, Wisconsin, and was responsible for the SBA's "8A Program," which provided aid to certain small businesses. Under the program, the SBA obtained Government contracts and subcontracted them to program participants. The SBA would then assist the participants in performing the contracts. Midwest Knitting Mills, whose president was James DeShazer, was one of the participants in the 8A Program. DeShazer's principal contact at the SBA was petitioner. In October DeShazer complained to a Government customer that petitioner had repeatedly asked for loans. DeShazer believed that petitioner was not providing Midwest with certain 8A Program benefits because DeShazer had not made the requested loans. In early 1, the Federal Bureau of Investigation (FBI) arranged for DeShazer to assist in the investigation resulting from his complaint. Under FBI surveillance, DeShazer offered petitioner a loan that, according to DeShazer, petitioner had previously requested. *61 Petitioner agreed to accept the loan, and two months later, DeShazer met petitioner at a restaurant and gave him the money. Petitioner was immediately arrested and charged with accepting a gratuity in exchange for an official act. 18 U.S. C. 201(g). Before trial petitioner filed a motion in limine seeking to raise an entrapment defense. The District Court denied the motion, ruling that entrapment was not available to petitioner because he would not admit all of the elements (including the requisite mental state) of the offense charged. The District Court did, however, allow petitioner to argue as his first line of defense that his acts "were procurred [sic] by the overt acts of the principle [sic] witness of the Government, Mr. DeShazer."[2] App. 131. At trial, the Government argued that petitioner had accepted the loan in return for cooperation in SBA matters. The Government called DeShazer, who testified both that petitioner had repeatedly asked for loans and that he and petitioner had agreed that the loan |
Justice Rehnquist | 1,988 | 19 | majority | Mathews v. United States | https://www.courtlistener.com/opinion/112012/mathews-v-united-states/ | and that he and petitioner had agreed that the loan at issue would result in SBA-provided benefits for Midwest. The Government also played tape recordings of conversations between DeShazer and petitioner in which they discussed the loan. Petitioner testified in his own defense that although he had accepted the loan, he believed it was a personal loan unrelated to his duties at the SBA. Petitioner stated that he and DeShazer were friends and that he had accepted a personal loan from DeShazer previously. According to petitioner, he was in dire financial straits when DeShazer broached the possibility of providing a loan. Petitioner also testified that DeShazer had stated that he needed quickly to get rid of the money that he was offering to petitioner because he had been hiding the money from his wife and was concerned that she would be upset if she discovered this secret; DeShazer had also stated *62 at one point that if petitioner did not take the money soon, DeShazer would be tempted to spend it. At the close of the trial, petitioner moved for a "mistrial" because of the District Court's refusal to instruct the jury as to entrapment. The District Court noted that the evidence of entrapment was "shaky at best," ib but rather than premise its denial of petitioner's motion on that ground, the court reaffirmed its earlier ruling that, as a matter of law, petitioner was not entitled to an entrapment instruction because he would not admit committing all elements of the crime charged. The jury subsequently found petitioner guilty. The United States Court of Appeals for the Seventh Circuit affirmed the District Court's refusal to allow petitioner to argue entrapment: "When a defendant pleads entrapment, he is asserting that, although he had criminal intent, it was 'the Government's deception [that implanted] the criminal design in the mind of the defendant.' United ; United We find this to be inconsistent per se with the defense that the defendant never had the requisite criminal intent. We see no reason to allow [petitioner] or any other defendant to plead these defenses simultaneously." We granted certiorari, to consider under what circumstances a defendant is entitled to an entrapment instruction. We hold that even if the defendant denies one or more elements of the crime, he is entitled to an entrapment instruction whenever there is sufficient evidence from which a reasonable jury could find entrapment. Because the parties agree as to the basics of the affirmative defense of entrapment as developed by this Court, there is little reason to chronicle its history in detail. Suffice |
Justice Rehnquist | 1,988 | 19 | majority | Mathews v. United States | https://www.courtlistener.com/opinion/112012/mathews-v-united-states/ | is little reason to chronicle its history in detail. Suffice it to say that the Court has consistently adhered to the view, first enunciated in *63 that a valid entrapment defense has two related elements: government inducement of the crime, and a lack of predisposition on the part of the defendant to engage in the criminal conduct. See ; United ; Predisposition, "the principal element in the defense of entrapment," focuses upon whether the defendant was an "unwary innocent" or, instead, an "unwary criminal" who readily availed himself of the opportunity to perpetrate the crime. ; The question of entrapment is generally one for the jury, rather than for the court. The Government insists that a defendant should not be allowed both to deny the offense and to rely on the affirmative defense of entrapment. Because entrapment presupposes the commission of a crime, a jury could not logically conclude that the defendant had both failed to commit the elements of the offense and been entrapped. According to the Government, petitioner is asking to "clai[m] the right to swear that he had no criminal intent and in the same breath to argue that he had one that did not originate with him." United (Gee, J., dissenting). As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor. ; 4 C. Torcia, Wharton's Criminal Procedure 538, p. 11 (hereinafter Wharton). A parallel rule has been applied in the context of a lesser included offense instruction, see Fed. Rule Crim. Proc. 31(c); ; In Stevenson, this Court reversed a murder conviction arising out of a gunfight in the Indian Territory. The *64 principal holding of the Court was that the evidence was sufficient to entitle the defendant to a manslaughter instruction, but the Court also decided that the defendant was entitled as well to have the jury instructed on self-defense. The affirmative defense of self-defense is, of course, inconsistent with the claim that the defendant killed in the heat of passion. Federal appellate cases also permit the raising of inconsistent defenses. See cert. dism'd, ; see also And state cases support the proposition that a homicide defendant may be entitled to an instruction on both accident and self-defense, two inconsistent affirmative defenses. 4 Wharton 545, p. 32. The Government points out that inconsistent pleading is specifically authorized under the Federal Rules of Civil Procedure, but that there is no parallel authorization under the Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal |
Justice Rehnquist | 1,988 | 19 | majority | Mathews v. United States | https://www.courtlistener.com/opinion/112012/mathews-v-united-states/ | Federal Rules of Criminal Procedure. Rule 8(e)(2) of the Federal Rules of Civil Procedure provides in relevant part: "A party may set forth two or more statements of a claim or defense alternately or hypothetically, either in one count or defense or in separate counts or defenses. A party may also state as many separate claims or defenses as he has regardless of consistency and whether based on legal, equitable or maritime grounds. All statements shall be made subject to the obligations set forth in Rule 11." (Emphasis added.) The absence of a cognate provision affecting criminal trials, we think, is not because the Rules intended to more severely restrict criminal defendants than civil parties, but because of the much less elaborate system of pleadings particularly with respect to the defendant in a criminal case. The issues of fact in a criminal trial are usually developed by the evidence adduced and the court's instructions to the jury. A *65 simple plea of not guilty, Fed. Rule Crim. Proc. 11, puts the prosecution to its proof as to all elements of the crime charged, and raises the defense of entrapment. Sorrells, The only matters required to be specially pleaded by a defendant are notice of alibi, Fed. Rule Crim. Proc. 12.1, or of intent to rely on insanity as a defense, Fed. Rule Crim. Proc. 12.2. The Government argues that allowing a defendant to rely on inconsistent defenses will encourage perjury, lead to jury confusion, and subvert the truth-finding function of the trial. These same concerns are, however, present in the civil context, yet inconsistency is expressly allowed under the Federal Rules of Civil Procedure. We do not think that allowing inconsistency necessarily sanctions perjury. Here petitioner wished to testify that he had no intent to commit the crime, and have his attorney argue to the jury that if it concluded otherwise, then it should consider whether that intent was the result of Government inducement. The jury would have considered inconsistent defenses, but petitioner would not have necessarily testified untruthfully. We would not go so far as to say that charges on inconsistent defenses may not on occasion increase the risk of perjury, but particularly in the case of entrapment we think the practical consequences will be less burdensome than the Government fears. The Court of Appeals in United observed: "Of course, it is very unlikely that the defendant will be able to prove entrapment without testifying and, in the course of testifying, without admitting that he did the acts charged. When he takes the stand, the defendant forfeits |
Justice Rehnquist | 1,988 | 19 | majority | Mathews v. United States | https://www.courtlistener.com/opinion/112012/mathews-v-united-states/ | acts charged. When he takes the stand, the defendant forfeits his right to remain silent, subjects himself to all the rigors of cross-examination, including impeachment, and exposes himself to prosecution for perjury. Inconsistent testimony by the defendant seriously impairs and potentially destroys his credibility. While we hold that a defendant may both deny the acts *66 and other elements necessary to constitute the crime charged and at the same time claim entrapment, the high risks to him make it unlikely as a strategic matter that he will choose to do so." The Government finally contends that since the entrapment defense is not of "constitutional dimension," 411 U. S., and that since it is "relatively limited," Congress would be free to make the entrapment defense available on whatever conditions and to whatever category of defendants it believed appropriate. Congress, of course, has never spoken on the subject, and so the decision is left to the courts. We are simply not persuaded by the Government's arguments that we should make the availability of an instruction on entrapment where the evidence justifies it subject to a requirement of consistency to which no other such defense is subject. The Government contends as an alternative basis for affirming the judgment below that the evidence at trial was insufficient to support an instruction on the defense of entrapment. Of course evidence that Government agents merely afforded an opportunity or facilities for the commission of the crime would be insufficient to warrant such an instruction. But this question was pretermitted by the Court of Appeals, and it will be open for consideration by that court on remand. Reversed and remanded. JUSTICE KENNEDY took no part in the consideration or decision of this case. |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | The Court, acting in the name of separation of powers, takes upon itself to strike down the Gramm-Rudman-Hollings Act, one of the most novel and far-reaching legislative responses to a national crisis since the New Deal. The basis of the Court's action is a solitary provision of another statute that was passed over 60 years ago and has lain dormant since that time. I cannot concur in the Court's action. Like the Court, I will not purport to speak to the wisdom of the policies incorporated in the legislation the Court invalidates; that is a matter for the Congress and the Executive, both of which expressed their assent to the statute barely half a year ago. I will, however, address the wisdom of the Court's willingness to interpose its distressingly formalistic view of separation of powers as a bar to the attainment of governmental objectives through the means chosen by the Congress and the President in the legislative process established by the Constitution. Twice in the past four years I have expressed my view that the Court's recent efforts to police the separation of powers have rested on untenable constitutional propositions leading to regrettable results. See Northern Pipeline Construction ; Today's result is even more misguided. As I will explain, the Court's decision rests on a feature of the legislative scheme that is of minimal practical significance and that presents no substantial threat to the basic scheme of separation of powers. In attaching dispositive significance to what should be regarded as a triviality, the Court neglects what has *760 in the past been recognized as a fundamental principle governing consideration of disputes over separation of powers: "The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government." Youngstown Sheet & Tube I The Court's argument is straightforward: the Act vests the Comptroller General with "executive" powers, that is, powers to "[i]nterpre[t] a law enacted by Congress [in order] to implement the legislative mandate," ante, at 733; such powers may not be vested by Congress in itself or its agents, see for the system of Government established by the Constitution for the most part limits Congress to a legislative rather than an executive or judicial role, see the Comptroller General is an agent of Congress by virtue of a provision in the Budget |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | of Congress by virtue of a provision in the Budget and Accounting Act of 1921, 31 U.S. C. 703(e)(1), granting Congress the power to remove the Comptroller for cause through joint resolution; therefore the Comptroller General may not constitutionally exercise the executive powers granted him in the Gramm-Rudman-Hollings Act, and the Act's automatic budget-reduction mechanism, which is premised on the Comptroller's exercise of those powers, must be struck down. Before examining the merits of the Court's argument, I wish to emphasize what it is that the Court quite pointedly and correctly does not hold: namely, that "executive" powers of the sort granted the Comptroller by the Act may only be exercised by officers removable at will by the President. *761 The Court's apparent unwillingness to accept this argument,[1] which has been tendered in this Court by the Solicitor General,[2] is fully consistent with the Court's longstanding recognition that it is within the power of Congress under the "Necessary and Proper" Clause, Art. I, 8, to vest authority that falls within the Court's definition of executive power in officers who are not subject to removal at will by the President and are therefore not under the President's direct control. See, e. g., Humphrey's ;[3] In an earlier day, in which simpler notions of the role of government in society prevailed, it was perhaps plausible to insist that all "executive" officers be subject to an unqualified Presidential removal power, see ; but with the advent and triumph of the administrative state and the accompanying multiplication of the tasks undertaken by the Federal Government, the *762 Court has been virtually compelled to recognize that Congress may reasonably deem it "necessary and proper" to vest some among the broad new array of governmental functions in officers who are free from the partisanship that may be expected of agents wholly dependent upon the President. The Court's recognition of the legitimacy of legislation vesting "executive" authority in officers independent of the President does not imply derogation of the President's own constitutional authority indeed, duty to "take Care that the Laws be faithfully executed," Art. II, 3, for any such duty is necessarily limited to a great extent by the content of the laws enacted by the Congress. As Justice Holmes put it: "The duty of the President to see that the laws be executed is a duty that does not go beyond the laws or require him to achieve more than Congress sees fit to leave within his power." Myers v. United[4] Justice Holmes perhaps overstated his case, for there are undoubtedly executive functions |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | perhaps overstated his case, for there are undoubtedly executive functions that, regardless of the enactments of Congress, must be performed by officers subject to removal at will by the President. Whether a particular function falls within this class or within the far larger class that may be relegated to independent officers "will depend upon the character of the office." Humphrey's In determining whether a limitation on the President's power to remove an officer performing executive functions constitutes a violation of the constitutional scheme of separation of powers, a court must "focu[s] on the extent to which [such a limitation] prevents the Executive Branch from accomplishing its constitutionally assigned functions." "Only where the potential for disruption is present must we then determine whether that impact is justified by an overriding need to promote objectives within the constitutional authority of Congress." This inquiry *763 is, to be sure, not one that will beget easy answers; it provides nothing approaching a bright-line rule or set of rules. Such an inquiry, however, is necessitated by the recognition that "formalistic and unbending rules" in the area of separation of powers may "unduly constrict Congress' ability to take needed and innovative action pursuant to its Article I powers." Commodity Futures Trading Comm'n v. Schor, post, at 851. It is evident (and nothing in the Court's opinion is to the contrary) that the powers exercised by the Comptroller General under the Gramm-Rudman-Hollings Act are not such that vesting them in an officer not subject to removal at will by the President would in itself improperly interfere with Presidential powers. Determining the level of spending by the Federal Government is not by nature a function central either to the exercise of the President's enumerated powers or to his general duty to ensure execution of the laws; rather, appropriating funds is a peculiarly legislative function, and one expressly committed to Congress by Art. I, 9, which provides that "No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law." In enacting Gramm-Rudman-Hollings, Congress has chosen to exercise this legislative power to establish the level of federal spending by providing a detailed set of criteria for reducing expenditures below the level of appropriations in the event that certain conditions are met. Delegating the execution of this legislation that is, the power to apply the Act's criteria and make the required calculations to an officer independent of the President's will does not deprive the President of any power that he would otherwise have or that is essential to the performance of the duties of |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | that is essential to the performance of the duties of his office. Rather, the result of such a delegation, from the standpoint of the President, is no different from the result of more traditional forms of appropriation: under either system, the level of funds available to the Executive Branch to carry out its duties is not within the President's discretionary control. To be sure, *764 if the budget-cutting mechanism required the responsible officer to exercise a great deal of policymaking discretion, one might argue that having created such broad discretion Congress had some obligation based upon Art. II to vest it in the Chief Executive or his agents. In Gramm-Rudman-Hollings, however, Congress has done no such thing; instead, it has created a precise and articulated set of criteria designed to minimize the degree of policy choice exercised by the officer executing the statute and to ensure that the relative spending priorities established by Congress in the appropriations it passes into law remain unaltered.[5] Given that the exercise of policy choice by the officer executing the statute would be inimical to Congress' goal in enacting "automatic" budget-cutting measures, it is eminently reasonable and proper for Congress to vest the budget-cutting authority in an officer who is to the greatest degree possible nonpartisan and independent of the President and his political agenda and who therefore may be relied upon not to allow his calculations to be colored by political considerations. Such a delegation deprives the President of no authority that is rightfully his. II If, as the Court seems to agree, the assignment of "executive" powers under Gramm-Rudman-Hollings to an officer not removable at will by the President would not in itself represent a violation of the constitutional scheme of separated *765 powers, the question remains whether, as the Court concludes, the fact that the officer to whom Congress has delegated the authority to implement the Act is removable by a joint resolution of Congress should require invalidation of the Act. The Court's decision, as I have stated above, is based on a syllogism: the Act vests the Comptroller with "executive power"; such power may not be exercised by Congress or its agents; the Comptroller is an agent of Congress because he is removable by Congress; therefore the Act is invalid. I have no quarrel with the proposition that the powers exercised by the Comptroller under the Act may be characterized as "executive" in that they involve the interpretation and carrying out of the Act's mandate. I can also accept the general proposition that although Congress has considerable authority in designating the |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | proposition that although Congress has considerable authority in designating the officers who are to execute legislation, see the constitutional scheme of separated powers does prevent Congress from reserving an executive role for itself or for its "agents." 424 U. S., at ; I cannot accept, however, that the exercise of authority by an officer removable for cause by a joint resolution of Congress is analogous to the impermissible execution of the law by Congress itself, nor would I hold that the congressional role in the removal process renders the Comptroller an "agent" of the Congress, incapable of receiving "executive" power. In the Court held that Congress could not reserve to itself the power to appoint members of the Federal Election Commission, a body exercising "executive" power. Buckley, however, was grounded on a textually based separation-of-powers argument whose central premise was that the Constitution requires that all "Officers of the United " (defined as "all persons who can be said to hold an office under the government." ) whose appointment is not otherwise specifically provided for elsewhere in its text be appointed through the means specified *766 by the Appointments Clause, Art. II, 2, cl. 2 that is, either by the President with the advice and consent of the Senate or, if Congress so specifies, by the President alone, by the courts, or by the head of a department. The Buckley Court treated the Appointments Clause as reflecting the principle that "the Legislative Branch may not exercise executive authority," ), but the Court's holding was merely that Congress may not direct that its laws be implemented through persons who are its agents in the sense that it chose them; the Court did not pass on the legitimacy of other means by which Congress might exercise authority over those who execute its laws. Because the Comptroller is not an appointee of Congress but an officer of the United appointed by the President with the advice and consent of the Senate, Buckley neither requires that he be characterized as an agent of the Congress nor in any other way calls into question his capacity to exercise "executive" authority. See n. 165. As the majority points out, however, the Court's decision in recognizes additional limits on the ability of Congress to participate in or influence the execution of the laws. As interpreted in the Constitution prevents Congress from interfering with the actions of officers of the United through means short of legislation satisfying the demands of bicameral passage and presentment to the President for approval or disapproval. Today's majority concludes that the same |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | for approval or disapproval. Today's majority concludes that the same concerns that underlay indicate the invalidity of a statutory provision allowing the removal by joint resolution for specified cause of any officer performing executive functions. Such removal power, the Court contends, constitutes a "congressional veto" analogous to that struck down in for it permits Congress to "remove, or threaten to remove, an officer for executing the laws in any fashion found to be unsatisfactory." Ante, at 726. The Court concludes *767 that it is "[t]his kind of congressional control over the execution of the laws" that condemns. Ante, at 726-727. The deficiencies in the Court's reasoning are apparent. First, the Court baldly mischaracterizes the removal provision when it suggests that it allows Congress to remove the Comptroller for "executing the laws in any fashion found to be unsatisfactory"; in fact, Congress may remove the Comptroller only for one or more of five specified reasons, which "although not so narrow as to deny Congress any leeway, circumscribe Congress' power to some extent by providing a basis for judicial review of congressional removal." Ameron, Inc. v. United Army Corps of Engineers, Second, and more to the point, the Court overlooks or deliberately ignores the decisive difference between the congressional removal provision and the legislative veto struck down in : under the Budget and Accounting Act, Congress may remove the Comptroller only through a joint resolution, which by definition must be passed by both Houses and signed by the President. See United v. California,[6] In other words, a removal of the Comptroller under the statute satisfies the requirements of bicameralism and presentment laid down in The majority's citation of for the proposition that Congress may only control the acts of officers of the United "by passing new legislation," ante, at 734, in *768 no sense casts doubt on the legitimacy of the removal provision, for that provision allows Congress to effect removal only through action that constitutes legislation as defined in To the extent that it has any bearing on the problem now before us, would seem to suggest the legitimacy of the statutory provision making the Comptroller removable through joint resolution, for the Court's opinion in reflects the view that the bicameralism and presentment requirements of Art. I represent the principal assurances that Congress will remain within its legislative role in the constitutionally prescribed scheme of separated powers. Action taken in accordance with the "single, finely wrought, and exhaustively considered, procedure" established by Art. I, should be presumptively viewed as a legitimate exercise of legislative power. That such action may represent a |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | exercise of legislative power. That such action may represent a more or less successful attempt by Congress to "control" the actions of an officer of the United surely does not in itself indicate that it is unconstitutional, for no one would dispute that Congress has the power to "control" administration through legislation imposing duties or substantive restraints on executive officers, through legislation increasing or decreasing the funds made available to such officers, or through legislation actually abolishing a particular office. Indeed, expressly recognizes that while congressional meddling with administration of the laws outside of the legislative process is impermissible, congressional control over executive officers exercised through the legislative process is valid. n. 19. Thus, if the existence of a statute permitting removal of the Comptroller through joint resolution (that is, through the legislative process) renders his exercise of executive powers unconstitutional, it is for reasons having virtually nothing to do with[7] *769 That a joint resolution removing the Comptroller General would satisfy the requirements for legitimate legislative action laid down in does not fully answer the separation-of-powers argument, for it is apparent that even the results of the constitutional legislative process may be unconstitutional if those results are in fact destructive of the scheme of separation of powers. The question to be answered is whether the threat of removal of the Comptroller General for cause through joint resolution as authorized by the Budget and Accounting Act renders the Comptroller sufficiently subservient to Congress that investing him with "executive" power can be realistically equated with the unlawful retention of such power by Congress itself; more generally, the question is whether there is a genuine threat of "encroachment or aggrandizement of one branch at the expense of the other," Common sense indicates that the existence of the removal provision poses no such threat to the principle of separation of powers. The statute does not permit anyone to remove the Comptroller at will; removal is permitted only for specified cause, with the existence of cause to be determined by Congress following a hearing. Any removal under the statute would presumably be subject to post-termination judicial review to ensure that a hearing had in fact been held and that the finding of cause for removal was not arbitrary. See Ameron, Inc. v. United Army Corps of Engineers, 787 F. 2d, at[8] These procedural and substantive limitations on the removal power militate strongly against the characterization of the Comptroller as a mere agent of Congress by virtue of the removal authority. Indeed, similarly qualified grants of removal power are generally deemed to protect the officers |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | of removal power are generally deemed to protect the officers to whom they apply and to establish their independence from the domination of the possessor of the removal power. See Humphrey's -626, 629-630. Removal authority limited in such a manner is more properly viewed as motivating adherence to a substantive standard established by law than as inducing subservience to the particular *771 institution that enforces that standard. That the agent enforcing the standard is Congress may be of some significance to the Comptroller, but Congress' substantively limited removal power will undoubtedly be less of a spur to subservience than Congress' unquestionable and unqualified power to enact legislation reducing the Comptroller's salary, cutting the funds available to his department, reducing his personnel, limiting or expanding his duties, or even abolishing his position altogether. More importantly, the substantial role played by the President in the process of removal through joint resolution reduces to utter insignificance the possibility that the threat of removal will induce subservience to the Congress. As I have pointed out above, a joint resolution must be presented to the President and is ineffective if it is vetoed by him, unless the veto is overridden by the constitutionally prescribed two-thirds majority of both Houses of Congress. The requirement of Presidential approval obviates the possibility that the Comptroller will perceive himself as so completely at the mercy of Congress that he will function as its tool.[9] If the Comptroller's conduct in office is not so unsatisfactory to the President as to convince the latter that removal is required under the statutory standard, Congress will have no independent power to coerce the Comptroller unless it can muster a two-thirds majority in both Houses a feat of bi-partisanship more difficult than that required to impeach and convict. The incremental in terrorem effect of the possibility of congressional removal in the face of a Presidential *772 veto is therefore exceedingly unlikely to have any discernible impact on the extent of congressional influence over the Comptroller.[10] *773 The practical result of the removal provision is not to render the Comptroller unduly dependent upon or subservient to Congress, but to render him one of the most independent officers in the entire federal establishment. Those who have studied the office agree that the procedural and substantive limits on the power of Congress and the President to remove the Comptroller make dislodging him against his will practically impossible. As one scholar put it nearly 50 years ago: "Under the statute the Comptroller General, once confirmed, is safe so long as he avoids a public exhibition of personal |
Justice White | 1,986 | 6 | dissenting | Bowsher v. Synar | https://www.courtlistener.com/opinion/111756/bowsher-v-synar/ | so long as he avoids a public exhibition of personal immorality, dishonesty, or failing mentality." H. Mansfield, The Comptroller General 75-76 (1939).[11] The passage of time has done little to cast doubt on this view of the six Comptrollers who have served since 1921, none has been threatened with, much less subjected to, removal. Recent students of the office concur that "[b]arring resignation, death, physical or mental incapacity, or extremely bad behavior, the Comptroller General is assured his tenure if he wants it, and not a day more." F. Mosher, The GAO 242 (1979).[12] The threat of "here-and-now subservience," ante, at 720, is obviously remote indeed.[13] *774 Realistic consideration of the nature of the Comptroller General's relation to Congress thus reveals that the threat to separation of powers conjured up by the majority is wholly chimerical. The power over removal retained by the Congress is not a power that is exercised outside the legislative process as established by the Constitution, nor does it appear likely that it is a power that adds significantly to the influence Congress may exert over executive officers through other, undoubtedly constitutional exercises of legislative power and through the constitutionally guaranteed impeachment power. Indeed, the removal power is so constrained by its own substantive limits and by the requirement of Presidential approval *775 "that, as a practical matter, Congress has not exercised, and probably will never exercise, such control over the Comptroller General that his non-legislative powers will threaten the goal of dispersion of power, and hence the goal of individual liberty, that separation of powers serves." Ameron, Inc. v. United Army Corps of Engineers, 787 F. 2d, at[14] *776 The majority's contrary conclusion rests on the rigid dogma that, outside of the impeachment process, any "direct congressional role in the removal of officers charged with the execution of the laws is inconsistent with separation of powers." Ante, at 723. Reliance on such an unyielding principle to strike down a statute posing no real danger of aggrandizement of congressional power is extremely misguided and insensitive to our constitutional role. The wisdom of vesting "executive" powers in an officer removable by joint resolution may indeed be debatable as may be the wisdom of the entire scheme of permitting an unelected official to revise the budget enacted by Congress but such matters are for the most part to be worked out between the Congress and the President through the legislative process, which affords each branch ample opportunity to defend its interests. The Act vesting budget-cutting authority in the Comptroller General represents Congress' judgment that the delegation |
Justice Stewart | 1,972 | 18 | majority | United States v. Scotland Neck City Bd. of Ed. | https://www.courtlistener.com/opinion/108588/united-states-v-scotland-neck-city-bd-of-ed/ | The petitioners in these consolidated cases challenge the implementation of a North Carolina statute authorizing the creation of a new school district for Scotland Neck, a city which at the time of the statute's enactment was part of a larger school district then in the process of dismantling a dual school system. In a judgment entered the same day as its judgment in Council of City of a decision which we reverse today, ante, p. 451, the Court of Appeals held that the District Court erred in enjoining the creation of the new school district. Scotland Neck is a community of about 3,000 persons, located in the southeastern portion of Halifax County, North Carolina. Since 1936, the city has been a part of the Halifax County Administrative Unit, a school district comprising the entire county with the exception of two towns located in the northern section. In the 1968-1969 school year, 10,655 students attended schools in this system, of whom 77% were Negro, 22% white, and 1% American Indian. The schools of Halifax County were completely segregated by race until 1965. In that year, the school board adopted a freedom-of-choice plan that produced very *486 little actual desegregation. In the 1967-1968 school year, all of the white students in the county attended the four traditionally all-white schools, while 97% of the Negro students attended the 14 traditionally all-Negro schools. The school-busing system, used by 90% of the students, was segregated by race, and faculty desegregation was minimal. In 1968, the United States Department of Justice entered into negotiations with the Halifax County School Board to bring the county's school system into compliance with federal law. An agreement was reached whereby the school board undertook to provide some desegregation in the fall of 1968, and to effect a completely unitary system in the 1969-1970 school year. The State Department of Public Instruction, acting on a request from the county board, recommended a detailed plan (the Interim Plan) for the unitary system that would have put some white students in every school in the county, and that would have left a white majority in only one school. In January 1969, after the Interim Plan had been submitted to the county school board but before any action had been taken upon it, a bill was introduced in the state legislature to authorize the creation of a new school district bounded by the city limits of Scotland Neck, upon approval by a majority of the city's voters.[1] The bill was enacted on March 3, 1969, as Chapter 31 of the 1969 Session Laws of |
Justice Stewart | 1,972 | 18 | majority | United States v. Scotland Neck City Bd. of Ed. | https://www.courtlistener.com/opinion/108588/united-states-v-scotland-neck-city-bd-of-ed/ | 1969, as Chapter 31 of the 1969 Session Laws of North Carolina. The citizens of Scotland Neck approved the new school *487 district in a referendum a month later,[2] and the new district began taking steps toward beginning a separate school system in the fall of 1969. The effect of Chapter 31 was to carve out of the Halifax school district a new unit with 695 students, of whom 399 (57%) were white and 296 (43%) were Negro. Under a transfer plan devised by the newly appointed Scotland Neck City Board of Education, 360 students (350 white and 10 Negro) residing outside the city limits applied to transfer into the Scotland Neck schools, while 44 students (all Negro) applied to transfer out of the city system to a nearby school in the Halifax County system. The new district planned to use the facilities of the formerly all-white Scotland Neck High School, including one building located outside the city limits that would be leased from the county. The United States filed this lawsuit in June 1969 against both city and county officials, seeking desegregation of the existing Halifax County schools.[3] The complaint asked for preliminary and permanent injunctions against the implementation of Chapter 31. Various Negro children, parents, and teachers, the petitioners in No. 70-187, were permitted to intervene as plaintiffs. After a three-day hearing before two district judges on both this case and a similar case involving two newly created school districts in neighboring Warren County, *488 the District Court preliminarily enjoined the implementation of Chapter 31, finding that "the Act in its application creates a refuge for white students, and promotes segregated schools in Halifax County," and further that "[t]he Act impedes and defeats the Halifax County Board of Education from implementing its plan to completely desegregate all of the public schools in Halifax County by the opening of the school year 1969-70."[4] After further hearings, the District Court on May 23, 1970, found Chapter 31 unconstitutional and permanently enjoined its enforcement. The Court of Appeals reversed, and we granted certiorari. The Court of Appeals did not believe that the separation of Scotland Neck from the Halifax County system should be viewed as an alternative plan for desegregating the county system, because the "severance was not part of a desegregation plan proposed by the school board but was instead an action by the Legislature redefining the boundaries of local governmental units." This suggests that an action of a state legislature affecting the desegregation of a dual system stands on a footing different from an action of a school board. |
Justice Stewart | 1,972 | 18 | majority | United States v. Scotland Neck City Bd. of Ed. | https://www.courtlistener.com/opinion/108588/united-states-v-scotland-neck-city-bd-of-ed/ | a footing different from an action of a school board. But in North Carolina Board of decided after the decision of the Court of Appeals in this case, we held that "if a state-imposed limitation on a school authority's discretion operates to inhibit or obstruct the disestablishing of a dual school system, it must fall; state policy must give way when it operates to hinder vindication of federal constitutional guarantees." The fact that the creation of the Scotland Neck school district was authorized by a special act of the state legislature *489 rather than by the school board or city authorities thus has no constitutional significance. We have today held that any attempt by state or local officials to carve out a new school district from an existing district that is in the process of dismantling a dual school system "must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of a dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out." Wright v. Council of City of The District Court in this case concluded that Chapter 31 "was enacted with the effect of creating a refuge for white students of the Halifax County School system, and interferes with the desegregation of the Halifax County School system" The Court of Appeals, however, did not regard the separation of Scotland Neck as creating a refuge for white students seeking to escape desegregation, and it held that "the effect of the separation of the Scotland Neck schools and students on the desegregation of the remainder of the Halifax County system is minimal and insufficient to invalidate Chapter 31." Our review of the record leads us to conclude that the District Court's determination was the only proper inference to be drawn from the facts of this litigation, and we thus reverse the judgment of the Court of Appeals. The major impact of Chapter 31 would fall on the southeastern portion of Halifax County, designated as District I in the Interim Plan for unitary schools proposed by the State Department of Public Instruction. The projected enrollment in the schools of this district under the Interim Plan was 2,948 students, of whom 78% were Negro. If Chapter 31 were implemented, the Scotland Neck schools would be 57% *490 white, while the schools remaining in District I would be 89% Negro. The traditional racial identities of the schools in the area would be maintained; the formerly all-white Scotland Neck school would retain a white |
Justice Stewart | 1,972 | 18 | majority | United States v. Scotland Neck City Bd. of Ed. | https://www.courtlistener.com/opinion/108588/united-states-v-scotland-neck-city-bd-of-ed/ | the formerly all-white Scotland Neck school would retain a white majority, while the formerly all-Negro Brawley school, a high school located just outside Scotland Neck, would be 91% Negro. In we said that district judges or school authorities "should make every effort to achieve the greatest possible degree of actual desegregation," and that in formulating a plan to remedy state-enforced school segregation there should be "a presumption against schools that are substantially disproportionate in their racial composition." And we have said today in Wright v. Council of City of that "desegregation is not achieved by splitting a single school system operating `white schools' and `Negro schools' into two new systems, each operating unitary schools within its borders, where one of the two new systems, is, in fact, `white' and the other is, in fact, `Negro.' " In this litigation, the disparity in the racial composition of the Scotland Neck schools and the schools remaining in District I of the Halifax County system would be "substantial" by any standard of measurement. And the enthusiastic response among whites residing outside Scotland Neck to the school board's proposed transfer plan confirmed what the figures suggest: the Scotland Neck school was to be the "white school" of the area, while the other District I schools would remain "Negro schools." Given these facts, we cannot but conclude that the implementation of Chapter 31 would have the effect of impeding the disestablishment of the dual school system that existed in Halifax County. The primary argument made by the respondents in *491 support of Chapter 31 is that the separation of the Scotland Neck schools from those of Halifax County was necessary to avoid "white flight" by Scotland Neck residents into private schools that would follow complete dismantling of the dual school system. Supplemental affidavits were submitted to the Court of Appeals documenting the degree to which the system has undergone a loss of students since the unitary school plan took effect in the fall of 1970.[5] But while this development may be cause for deep concern to the respondents, it cannot, as the Court of Appeals recognized, be accepted as a reason for achieving anything less than complete uprooting of the dual public school system. See Reversed. MR. CHIEF JUSTICE BURGER, with whom MR. JUSTICE BLACKMUN, MR. JUSTICE POWELL, and MR. JUSTICE REHNQUIST join, concurring in the result. I agree that the creation of a separate school system in Scotland Neck would tend to undermine desegregation efforts in Halifax County, and I thus join in the result reached by the Court. However, since I dissented from |
Justice Stewart | 1,972 | 18 | majority | United States v. Scotland Neck City Bd. of Ed. | https://www.courtlistener.com/opinion/108588/united-states-v-scotland-neck-city-bd-of-ed/ | result reached by the Court. However, since I dissented from the Court's decision in Wright v. Council of City of ante, p. 471, I feel constrained to set forth briefly the reasons why I distinguish the cases. First, the operation of a separate school system in Scotland Neck would preclude meaningful desegregation in the southeastern portion of Halifax County. If Scotland Neck were permitted to operate separate schools, more than 2,200 of the nearly 3,000 students in this sector would attend virtually all-Negro schools located just *492 outside of the corporate limits of Scotland Neck. The schools located within Scotland Neck would be predominantly white. Further shifts could reasonably be anticipated. In a very real sense, the children residing in this relatively small area would continue to attend "Negro schools" and "white schools." The effect of the withdrawal would thus be dramatically different from the effect which could be anticipated in Second, Scotland Neck's action cannot be seen as the fulfillment of its destiny as an independent governmental entity. Scotland Neck had been a part of the county-wide school system for many years; special legislation had to be pushed through the North Carolina General Assembly to enable Scotland Neck to operate its own school system. The movement toward the creation of a separate school system in Scotland Neck was prompted solely by the likelihood of desegregation in the county, not by any change in the political status of the municipality. Scotland Neck was and is a part of Halifax County. The city of by contrast, is totally independent from Greensville County; 's only ties to the county are contractual. When became a city, a status derived pursuant to longstanding statutory procedures, it took on the legal responsibility of providing for the education of its children and was no longer entitled to avail itself of the county school facilities. Third, the District Court found, and it is undisputed, that the Scotland Neck severance was substantially motivated by the desire to create a predominantly white system more acceptable to the white parents of Scotland Neck. In other words, the new system was designed to minimize the number of Negro children attending school with the white children residing in Scotland Neck. No similar finding was made by the District Court in and the record shows that 's decision was not based on the projected racial composition of the proposed new system. |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | An alien ordered to leave the country has a statutory right to file a motion to reopen his removal proceedings. See 8 U.S. C. If immigration officials deny that motion, a federal court of appeals has jurisdic- tion to consider a petition to review their decision. See Not- withstanding that rule, the court below declined to take jurisdiction over such an appeal because the motion to reopen had been denied as untimely. We hold that was error. I The Immigration and Nationality Act (INA), 66 Stat. 63, as amended, 8 U.S. C. et seq., and its imple- menting regulations set out the process for removing aliens from the country. An immigration judge (IJ) con- ducts the initial proceedings; if he orders removal, the alien has the opportunity to appeal that decision to the Board of Immigration Appeals (BIA or Board). (c)(5). “[E]very alien ordered removed” also 2 REYES MATA v. LYNCH Opinion of the Court “has a right to file one motion” with the IJ or Board to “reopen his or her removal proceedings.” Dada v. Mukasey, ; see Subject to exceptions not relevant here, that motion to reopen “shall be filed within 90 days” of the final removal order. Finally, the BIA’s regulations provide that, separate and apart from acting on the alien’s motion, the BIA may reopen removal proceedings “on its own motion”—or, in Latin, sua sponte—at any time. 8 CFR (205). Petitioner Noel Reyes Mata is a Mexican citizen who entered the United States unlawfully almost 5 years ago. In he was convicted of assault under the Texas Penal Code. The federal Department of Homeland Secu- rity (DHS) immediately initiated removal proceedings against him, and in August 20 an IJ ordered him re- moved. See App. 6–3. Mata’s lawyer then filed a notice of appeal with the BIA, indicating that he would soon submit a written brief stating grounds for reversing the IJ’s decision. But the attorney never filed the brief, and the BIA dismissed the appeal in September 202. See App. More than a hundred days later, Mata (by then repre- sented by new counsel) filed a motion with the Board to reopen his case. DHS opposed the motion, arguing in part that Mata had failed to file it, as the INA requires, within 90 days of the Board’s decision. Mata responded that the motion was “not time barred” because his first lawyer’s “ineffective assistance” counted as an “exceptional circum- stance[ ]” excusing his lateness. Certified Administrative Record in No. 3–60253 (CA5, Aug. 2, 203), p. 69. In addressing those arguments, the Board reaffirmed prior decisions |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | 69. In addressing those arguments, the Board reaffirmed prior decisions holding that it had authority to equitably toll the 90-day period in certain cases involving ineffective repre- sentation. See App. to Pet. for Cert. 7; see also, e.g., In re Santa Celenia Diaz, (BIA, Aug. 2, Cite as: 576 U. S. (205) 3 Opinion of the Court 2009). But the Board went on to determine that Mata was not entitled to equitable tolling because he could not show prejudice from his attorney’s deficient performance; ac- cordingly, the Board found Mata’s motion untimely. See App. to Pet. for Cert. 7–8. And in closing, the Board de- cided as well that Mata’s case was not one “that would warrant reopening as an exercise of” its sua sponte author- ity. (stating that “the power to reopen on our own motion is not meant to be used as a general cure for filing defects” (internal quotation marks omitted)). Mata petitioned the Court of Appeals for the Fifth Cir- cuit to review the BIA’s denial of his motion to reopen, arguing that he was entitled to equitable tolling. The Fifth Circuit, however, declined to “address the merits of Mata’s equitable-tolling claim[ ].” Reyes Mata v. Holder, It stated instead that “[i]n this circuit, an alien’s request [to the BIA] for equitable tolling on the basis of ineffective assistance of counsel is construed as an invitation for the BIA to exercise its discretion to reopen the removal pro- ceeding sua sponte.” And circuit precedent held that courts have no jurisdiction to review the BIA’s refusal to exercise its sua sponte power to reopen cases. See The Court of Appeals thus dismissed Mata’s appeal for lack of jurisdiction. Every other Circuit that reviews removal orders has affirmed its jurisdiction to decide an appeal, like Mata’s, that seeks equitable tolling of the statutory time limit to file a motion to reopen a removal proceeding. We granted —————— See, e.g., Da Silva (per curiam) (exercising jurisdiction over such a petition); ; Borges v. Gonzales, 402 F. 3d 398, 406 ; 305– 306 (CA4 203) ; 724–725 ; ; 499–500 (CA8 4 REYES MATA v. LYNCH Opinion of the Court certiorari to resolve this conflict. 574 U. S. (205). And because the Federal Government agrees with Mata that the Fifth Circuit had jurisdiction over his appeal, we appointed an amicus curiae to defend the judgment be- low.2 We now reverse. II As we held in circuit courts have jurisdiction when an alien appeals from the Board’s denial of a motion to reopen a removal proceeding. See 558 U.S., at The |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | to reopen a removal proceeding. See 558 U.S., at The INA, in combination with a statute cross- referenced there, gives the courts of appeals jurisdiction to review “final order[s] of removal.” 8 U.S. C. 28 U.S. C. That jurisdiction, as the INA expressly contemplates, encompasses review of decisions refusing to reopen or reconsider such orders. See 8 U.S. C. (“[A]ny review sought of a motion to reopen or reconsider [a removal order] shall be consolidated with the review of the [underlying] order”). Indeed, as we ex- plained in Kucana, courts have reviewed those decisions for nearly a hundred years; and even as Congress cur- tailed other aspects of courts’ jurisdiction over BIA rul- ings, it left that authority in place. See 558 U.S., at 242–25. Nothing changes when the Board denies a motion to reopen because it is untimely—nor when, in doing so, the Board rejects a request for equitable tolling. Under the INA, as under our century-old practice, the reason for the —————— ) ; ; ; 362– 364 (CA 203) Except for Da Silva Neves, which did not resolve the issue, all those decisions also held, on the merits, that the INA allows equitable tolling in certain circumstances. See infra, at 7–8. 2 We appointed William R. Peterson to brief and argue the case, 574 U. S. (205), and he has ably discharged his responsibilities. Cite as: 576 U. S. (205) 5 Opinion of the Court BIA’s denial makes no difference to the jurisdictional issue. Whether the BIA rejects the alien’s motion to re- open because it comes too late or because it falls short in some other respect, the courts have jurisdiction to review that decision. Similarly, that jurisdiction remains unchanged if the Board, in addition to denying the alien’s statutorily au- thorized motion, states that it will not exercise its sepa- rate sua sponte authority to reopen the case. See at –2. In Kucana, we declined to decide whether courts have jurisdiction to review the BIA’s use of that discre- tionary power. See n. 8. Courts of Appeals, including the Fifth Circuit, have held that they generally lack such See, e.g., Enriquez- ; 003–004 (en banc) (citing other decisions). Assuming arguendo that is right, it means only that judi- cial review ends after the court has evaluated the Board’s ruling on the alien’s motion. That courts lack jurisdiction over one matter (the sua sponte decision) does not affect their jurisdiction over another (the decision on the alien’s request). It follows, as the night the day, that the Court of Ap- peals had jurisdiction over this case. |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | the Court of Ap- peals had jurisdiction over this case. Recall: As authorized by the INA, Mata filed a motion with the Board to reopen his removal proceeding. The Board declined to grant Mata his proposed relief, thus conferring jurisdiction on an appellate court under Kucana. The Board did so for time- liness reasons, holding that Mata had filed his motion after 90 days had elapsed and that he was not entitled to equitable tolling. But as just explained, the reason the Board gave makes no difference: Whenever the Board denies an alien’s statutory motion to reopen a removal case, courts have jurisdiction to review its decision. In addition, the Board determined not to exercise its sua 6 REYES MATA v. LYNCH Opinion of the Court sponte authority to reopen. But once again, that extra ruling does not matter. The Court of Appeals did not lose jurisdiction over the Board’s denial of Mata’s motion just because the Board also declined to reopen his case sua sponte. Nonetheless, the Fifth Circuit dismissed Mata’s appeal for lack of jurisdiction. That decision, as described earlier, hinged on “constru[ing]” Mata’s motion as something it was not: “an invitation for the BIA to exercise” its sua sponte 558 Fed. Appx., at ; Amicus’s defense of that approach centrally relies on a merits-based premise: that the INA forbids equitable tolling of the 90-day filing period in any case, no matter how exceptional the circumstances. See Brief for Amicus Curiae by Invitation of the Court 4–35. Given that is so, amicus continues, the court acted permissibly in “rechar- acteriz[ing]” Mata’s pleadings. 6. After all, courts often treat a request for “categorically unavailable” relief as instead “seeking relief [that] may be available.” at 35, 38. And here (amicus concludes) that meant constru- ing Mata’s request for equitable tolling as a request for sua sponte reopening—even though that caused the Fifth Circuit to lose its jurisdiction. But that conclusion is wrong even on the assumption— and it is only an assumption—that its core premise about equitable tolling is true.3 If the INA precludes Mata from —————— 3 Weexpress no opinion as to whether or when the INA allows the Board to equitably toll the 90-day period to file a motion to reopen. Moreover, we are not certain what the Fifth Circuit itself thinks about that question. Perhaps, as amicus asserts, the court believes the INA categorically precludes equitable tolling: It is hard to come up with any other reason why the court construes every argument for tolling as one for sua sponte relief. See Brief for Amicus Curiae by |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | for sua sponte relief. See Brief for Amicus Curiae by Invitation of the Court 2, 0, 4, n. 2. But the Fifth Circuit has stated that position in only a single sentence in a single unpublished opinion, which (according to the Circuit) has no precedential force. See Lin v. Mukasey, 286 Fed. Appx. 48, 50 ; Rule 47.5.4 (205). And another Cite as: 576 U. S. (205) 7 Opinion of the Court getting the relief he seeks, then the right course on appeal is to take jurisdiction over the case, explain why that is so, and affirm the BIA’s decision not to reopen. The jurisdic- tional question (whether the court has power to decide if tolling is proper) is of course distinct from the merits question (whether tolling is proper). See Steel (“[T]he absence of a valid cause of action does not implicate subject-matter jurisdiction”). The Fifth Circuit thus retains jurisdiction even if Mata’s appeal lacks merit. And when a federal court has jurisdiction, it also has a “virtually unflagging obligation to exercise” that au- thority. Colorado River Water Conservation Dist. v. United States, Accordingly, the Court of Appeals should have asserted jurisdiction over Mata’s appeal and addressed the equitable tolling question. Contrary to amicus’s view, the practice of recharacteriz- ing pleadings so as to offer the possibility of relief cannot justify the Court of Appeals’ alternative approach. True enough (and a good thing too) that courts sometimes construe one kind of filing as another: If a litigant mis- brands a motion, but could get relief under a different label, a court will often make the requisite change. See, e.g., 2 J. Moore, Moore’s Federal Practice, (3 ed. 205) (explaining how courts treat untimely Rule 59 mo- tions as Rule 60 motions because the latter have no time limit). But that established practice does not entail side- stepping the judicial obligation to exercise jurisdiction. And it results in identifying a route to relief, not in render- ing relief impossible. That makes all the difference be- —————— unpublished decision cuts in the opposite direction, “hold[ing] that the doctrine of equitable tolling applies” when exceptional circumstances excuse an alien’s failure to meet the 90-day reopening deadline. See So, in the end, it is hard to say. 8 REYES MATA v. LYNCH Opinion of the Court tween a court’s generously reading pleadings and a court’s construing away adjudicative And if, as amicus argues, that construal rests on an underlying merits decision—that the INA precludes any equitable tolling—then the Court of Appeals has effectively insulated a circuit split from our review. Putting the Fifth |
Justice Kagan | 2,015 | 3 | majority | Reyes Mata v. Lynch | https://www.courtlistener.com/opinion/2808291/reyes-mata-v-lynch/ | insulated a circuit split from our review. Putting the Fifth Circuit to the side, all appellate courts to have ad- dressed the matter have held that the Board may some- times equitably toll the time limit for an alien’s motion to reopen. See n. Assuming the Fifth Circuit thinks otherwise, that creates the kind of split of authority we typically think we need to resolve. See this Court’s Rule 0(a). But the Fifth Circuit’s practice of recharacter- izing appeals like Mata’s as challenges to the Board’s sua sponte decisions and then declining to exercise juris- diction over them prevents that split from coming to light. Of course, the Court of Appeals may reach whatever con- clusion it thinks best as to the availability of equitable tolling; we express no opinion on that matter. See n. 3, What the Fifth Circuit may not do is to wrap such a merits decision in jurisdictional garb so that we cannot address a possible division between that court and every other. For the foregoing reasons, we reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 576 U. S. (205) THOMAS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 4–85 NOEL REYES MATA, PETITIONER v. LORETTA E. |
Justice Breyer | 2,013 | 2 | concurring | Wos v. E. M. A. | https://www.courtlistener.com/opinion/855660/wos-v-e-m-a/ | I join the Court’s opinion with one qualification: My concurrence in the Court’s views rests in part upon the fact that the federal agency that administers the Medicaid statute, known as the Centers for Medicare & Medicaid Services, has reached the same conclusion. The question before us is how to measure what share of a judgment or settlement of an accident victim’s lawsuit represents payment (or reimbursement) for health care items (or services) for which a State has already paid on behalf of the victim. The statute is silent on the question. It simply says that a State may recover the amount of “payment” that the State has made on behalf of the victim “for medical assistance for health care items or services” from funds that “any other party” has paid “for such health care items or services.” 42 U.S. C. Moreover, the question focuses upon a comparatively minor matter of statutory detail, not a major issue of far-reaching statutory policy. It concerns everyday administration. It calls for expertise of a kind that the administering agency is more likely than a court to possess. And any of several different answers to the 2 WOS v. E. M. A. BREYER, J., concurring question would seem reasonable. Under these circum- stances, normally we should find that Congress delegated to the agency authority to fill the statutory gap, and we should uphold the agency’s conclusion as long as it is reasonable. See Chevron U. S. A. Inc. v. Natural Re- sources Defense Council, Inc., Here, however, the agency did not engage in rulemaking procedures, it did not carefully consider differing points of view of those affected, it did not set forth its views in a manual intended for widespread use, nor has it in any other way announced an interpretation that Congress would have “intended to carry the force of law.” United Indeed, the agency does not claim that it exercised any dele- gated legislative power. Neither do the documents in which the agency set forth its position (a memorandum and a letter) have much “ ‘power to persuade.’ ” Christensen v. Harris County, 529 U.S. 576, 587 (2000) ). Their reasoning is skimpy. And the conclusion now advanced by the agency repre- sents a radical departure from the agency’s previous posi- tion. See App. to Pet. for Cert. 129a, 141a–142a. Thus, the Solicitor General does not ask us to defer to the agen- cy’s views—and understandably so. Nonetheless, the Administrative Procedure Act is not the tax code. And cases that seek to determine whether Congress intended courts to give weight to agency |
Justice Breyer | 2,013 | 2 | concurring | Wos v. E. M. A. | https://www.courtlistener.com/opinion/855660/wos-v-e-m-a/ | determine whether Congress intended courts to give weight to agency views provide rules of thumb, general principles meant to guide interpretation, not rigid rules that narrowly confine it. They seek to advance Congress’ intent as embodied in particular statutory schemes by helping courts to deter- mine whether, and how, Congress intended those courts to respect an agency’s expertise when reasonably exercised in particular cases. They seek to allocate the law- interpreting function between court and agency in a way Cite as: 568 U. S. (2013) 3 BREYER, J., concurring likely to work best within any particular statutory scheme. But they do not purport to do more than that. In particular, they do not set forth all-encompassing absolute rules, impervious to nuance and admitting of no excep- tions. Felix Frankfurter’s observation, made many years ago, remains valid today: “The problems subsumed by ‘administrative discretion’ must be related to the particular interest as to which ‘administrative discre- tion’ is exercised.” The Task of Administrative Law, 75 U. Pa. L. Rev. 614, 619–620 (1927). That is to say, “the standard doctrines of administrative law should not be taken too rigidly.” Jaffe, Administrative Law: Burden of Proof and Scope of Review, (1966). Thus, even though this case does not fall directly within a case-defined category, such as “Chevron deference,” “ deference,” “Beth Israel deference,” “Seminole Rock deference,” or deference as defined by some other case, I believe the agency, in taking a position, nonethe- less retains some small but special “power to persuade.” at See generally Eskridge & Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Ham- dan, 96 Geo. L. J. 1083 (2008). And I would conse- quently to some degree take account of, and respect, the agency’s judgment. I cannot measure the degree of deference with the preci- sion of a mariner measuring a degree of latitude. But it is still worth noting that the agency’s determination has played some role in my own decision. That is because the agency, after looking into the matter more thoroughly (perhaps after notice-and-comment rulemaking), might change its mind. Given the nature of the question and of the agency’s expertise, courts, I believe, should then give weight to that new and different agency decision. Cf. National Cable & Telecommunications Assn. v. Brand X 4 In my view, today’s decision does not freeze the Court’s present interpretation of the statute permanently into law. With that understanding, I join the Court’s opinion. Cite as: 568 U. S. (2013) 1 ROBERTS, C. J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–98 |
Justice Stewart | 1,973 | 18 | majority | Rosario v. Rockefeller | https://www.courtlistener.com/opinion/108747/rosario-v-rockefeller/ | For more than 60 years, New York has had a closed system of primary elections, whereby only enrolled members of a political party may vote in that party's primary.[1] Under the State's Election Law, a registered voter enrolls as a party member by depositing an enrollment blank in a locked enrollment box. The last day for enrollment is 30 days before the general election each year. Section 186 of the Election Law provides that the enrollment boxes shall not be opened until the Tuesday following the general election, and party affiliations are then entered on the State's official registration books. The voter is then duly enrolled as a member of his party and may vote in a subsequent primary election.[2] *754 The effect of 186 is to require a voter to enroll in the party of his choice at least 30 days before the general election in November in order to vote in the next subsequent party primary. If a voter fails to meet this deadline, he cannot participate in a party primary until after the following general election. Section 187 provides an exemption from this waiting period for certain classes of voters, including persons who have attained voting age after the last general election, persons too ill to enroll during the previous enrollment period, and persons who moved from one place to another within a single county. Under 187, these classes of voters may be specially enrolled as members of a party even after the general election has taken place.[3] *755 The petitioners are New York residents who became eligible to vote when they came of age in 1971. Although they could have registered and enrolled in a political party before the cutoff date in 1971October 2they failed to do so.[4] Instead, they waited until early December 1971 to register and to deposit their enrollment blanks. At that time, they could not be specially and immediately enrolled in a party under 187, since they had attained the voting age before, rather than after, the 1971 general election. Hence, pursuant to 186, their party enrollment could not become effective until after the November general election. Because of New York's enrollment scheme, then, the petitioners were not eligible to vote in the presidential primary election held in June *756 The petitioners filed these complaints for declaratory relief, pursuant to 42 U.S. C. 1983, alleging that 186 unconstitutionally deprived them of their right to vote in the June primary and abridged their freedom to associate with the political party of their choice. The District Court, in an unreported opinion, granted them the |
Justice Stewart | 1,973 | 18 | majority | Rosario v. Rockefeller | https://www.courtlistener.com/opinion/108747/rosario-v-rockefeller/ | The District Court, in an unreported opinion, granted them the declaratory relief sought. The Court of Appeals for the Second Circuit reversed, holding 186 constitutional.[5] The petitioners argue that, through 186, New York disenfranchised them by refusing to permit them to vote in the June primary election on the ground that they had not enrolled in a political party at least 30 days prior to the preceding general election. More specifically, they contend that 186 has operated to preclude newly registered voters, such as themselves, from participating in the primary election of the party of their choice. According to the petitioners, New York has no "compelling state interest" in its delayed-enrollment scheme so as to justify such disenfranchisement, and hence the scheme must fall. In support of this argument, the petitioners rely on several cases in which this Court has struck down, as violative of the Equal Protection Clause, state statutes that disenfranchised certain groups of people. ; ; ; ; City of ; We cannot accept the petitioners' contention. None of the cases on which they rely is apposite to the situation here. In each of those cases, the State totally denied the electoral franchise to a particular class of residents, and there was no way in which the members of that class could have made themselves eligible to vote. In Carrington, for instance, the Texas Constitution disabled all servicemen from voting in Texas, no matter how long they had lived there. In Kramer, residents who were not property owners or parents were completely precluded from voting in school board elections. In Cipriano and Kolodziejski, the States prohibited non-property owners from ever voting in school board elections. In Evans, Maryland refused to permit residents at the National Institutes of Health, located within its borders, ever to vote in state elections. And in Dunn, Tennessee totally disenfranchised newly arrived residents, i. e., those who had been residents of the State less than a year or residents of the county less than three months before the election. Section 186 of New York's Election Law, however, is quite different. It did not absolutely disenfranchise the class to which the petitioners belongnewly registered voters who were eligible to enroll in a party before the previous general election. Rather, the statute merely imposed a time deadline on their enrollment, which they had to meet in order to participate in the next primary. Since the petitioners attained voting age before the October 2, 1971, deadline, they clearly could have registered and enrolled in the party of their choice before that date and been eligible to |
Justice Stewart | 1,973 | 18 | majority | Rosario v. Rockefeller | https://www.courtlistener.com/opinion/108747/rosario-v-rockefeller/ | of their choice before that date and been eligible to vote in the June *758 primary.[6] Indeed, if the petitioners had not been able to enroll by the October 2, 1971, deadline because they did not attain the requisite age until after the 1971 general election, they would have been eligible for special enrollment under 187. The petitioners do not say why they did not enroll prior to the cutoff date; however, it is clear that they could have done so, but chose not to. Hence, if their plight can be characterized as disenfranchisement at all, it was not caused by 186, but by their own failure to take timely steps to effect their enrollment.[7] For the same reason, we reject the petitioners' argument that 186 violated their First and Fourteenth Amendment right of free association with the political party of their choice. Since they could have enrolled in a party in time to participate in the June primary, 186 did not constitute a ban on their freedom of association, but merely a time limitation on when they had to act in order to participate in their chosen party's next primary.[8] *759 Indeed, under the New York law, a person may, if he wishes, vote in a different party primary each year. All he need do is to enroll in a new political party between the prior primary and the October cutoff date. For example, one June he could be a registered Republican and vote in the Republican primary. Before enrollment closed the following October, he could enroll in the Democratic Party. Since that enrollment would be effective after the November general election and before the following February 1, he could then vote in the next Democratic primary. Before the following October, he could register to vote as a Liberal, and so on. Thus, New York's scheme does not "lock" a voter into an unwanted pre-existing party affiliation from one primary to the next.[9] *760 The only remaining question, then, is whether the time limitation imposed by 186 is so severe as itself to constitute an unconstitutionally onerous burden on the petitioners' exercise of the franchise or on their freedom of political association. As the dissent acknowledges, the State is certainly justified in imposing some reasonable cutoff point for registration or party enrollment, which citizens must meet in order to participate in the next election. Post, at 765. Hence, our inquiry must be whether the particular deadline before us here is so justified. The cutoff date for enrollment prescribed by 186 occurs approximately eight months prior to a presidential primary |
Justice Stewart | 1,973 | 18 | majority | Rosario v. Rockefeller | https://www.courtlistener.com/opinion/108747/rosario-v-rockefeller/ | 186 occurs approximately eight months prior to a presidential primary (held in June) and 11 months prior to a nonpresidential primary (held in September). The petitioners argue that this period is unreasonably long, and that it therefore unduly burdens the exercise of their constitutional rights. According to the petitioners, 186 requires party enrollment before prospective voters have knowledge of the candidates or issues to be involved in the next primary elections. The requirement is especially onerous, the petitioners say, as applied to new voters, who have never before registered to vote or enrolled in a political party. It is true that the period between the enrollment deadline and the next primary election is lengthy. But that period is not an arbitrary time limit unconnected to any important state goal. The purpose of New York's delayed-enrollment scheme, we are told, is to inhibit party "raiding," whereby voters in sympathy with one party designate themselves as voters of another party so as to influence or determine the results of the other party's primary. This purpose is accomplished, the Court of Appeals found, not only by requiring party enrollment several months in advance of the primary, on the theory that "long-range planning in politics is quite difficult," *761 458 F. 2d, at 653, but also by requiring enrollment prior to a general election. The reason for the latter requirement was well stated by the court below: "[T]he notion of raiding, its potential disruptive impact, and its advantages to one side are not likely to be as apparent to the majority of enrolled voters nor to receive as close attention from the professional politician just prior to a November general election when concerns are elsewhere as would be true during the 'primary season,' which, for the country as a whole, runs from early February until the end of June. Few persons have the effrontery or the foresight to enroll as say, 'Republicans' so that they can vote in a primary some seven months hence, when they full well intend to vote 'Democratic' in only a few weeks. And, it would be the rare politician who could successfully urge his constituents to vote for him or his party in the upcoming general election, while at the same time urging a cross-over enrollment for the purpose of upsetting the opposite party's primary. Yet the operation of section 186 requires such deliberate inconsistencies if large-scale raiding were to be effective in New York. Because of the statute, it is all but impossible for any group to engage in raiding." It is clear that preservation of the integrity |
Justice Stewart | 1,973 | 18 | majority | Rosario v. Rockefeller | https://www.courtlistener.com/opinion/108747/rosario-v-rockefeller/ | in raiding." It is clear that preservation of the integrity of the electoral process is a legitimate and valid state goal. Cf. ; In the service of that goal, New York has adopted its delayed-enrollment scheme; and an integral part of that scheme is that, in order to participate in a primary election, a person must enroll before the preceding general election. As the Court of Appeals stated: "Allowing enrollment any time after *762 the general election would not have the same deterrent effect on raiding for it would not put the voter in the unseemly position of asking to be enrolled in one party while at the same time intending to vote immediately for another." For this reason, New York's scheme requires an insulating general election between enrollment and the next party primary. The resulting time limitation for enrollment is thus tied to a particularized legitimate purpose, and is in no sense invidious or arbitrary. Cf.[10] New York did not prohibit the petitioners from voting in the primary election or from associating with the political party of their choice. It merely imposed a legitimate time limitation on their enrollment, which they chose to disregard. Accordingly, the judgment below is Affirmed. *763 MR. JUSTICE POWELL, with whom MR. JUSTICE DOUGLAS, MR. JUSTICE BRENNAN, and MR. |
Justice Burger | 1,981 | 12 | dissenting | Schad v. Mount Ephraim | https://www.courtlistener.com/opinion/110507/schad-v-mount-ephraim/ | The Borough of Mount Ephraim is a small borough in Camden County, N. J. It is located on the Black Horse Turnpike, the main artery connecting Atlantic City with two major cities, Camden and Philadelphia. Mount Ephraim is about 17 miles from the city of Camden and about the same distance from the river that separates New Jersey from the State of Pennsylvania. The Black Horse Turnpike cuts through the center of Mount Ephraim. For 250 feet on either side of the turnpike, the Borough has established a commercial zone. The rest of the community is zoned for residential use, with either single- or multi-family units permitted. Most of the inhabitants of Mount Ephraim commute to either Camden or Philadelphia for work. The residents of this small enclave chose to maintain their town as a placid, "bedroom" community of a few thousand people. To that end, they passed an admittedly broad regulation prohibiting certain forms of entertainment. Because I believe that a community of people arewithin limits masters of their own environment, I would hold that, as applied, the ordinance is valid. At issue here is the right of a small community to ban an activity incompatible with a quiet, residential atmosphere. The Borough of Mount Ephraim did nothing more than employ traditional police power to provide a setting of tranquility. This Court has often upheld the power of a community "to determine that the community should be beautiful as well as healthy, spacious as well as clean, well-balanced *86 as well as carefully patrolled." Justice Douglas, speaking for the Court, sustained the power to zone as "ample to lay out zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Village of Belle Here we have nothing more than a variation on that theme. The Court depicts Mount Ephraim's ordinance as a ban on live entertainment. But, in terms, it does not mention any kind of entertainment. As applied, it operates as a ban on nude dancing in appellants' "adult" bookstore, and for that reason alone it is here. Thus, the issue in the case that we have before us is not whether Mount Ephraim may ban traditional live entertainment, but whether it may ban nude dancing, which is used as the "bait" to induce customers into the appellants' bookstore. When, and if, this ordinance is used to prevent a high school performance of "The Sound of Music," for example, the Court can deal with that problem. An overconcern about draftsmanship and overbreadth should not be allowed |
Justice Burger | 1,981 | 12 | dissenting | Schad v. Mount Ephraim | https://www.courtlistener.com/opinion/110507/schad-v-mount-ephraim/ | An overconcern about draftsmanship and overbreadth should not be allowed to obscure the central question before us. It is clear that, in passing the ordinance challenged here, the citizens of the Borough of Mount Ephraim meant only to preserve the basic character of their community. It is just as clear that, by thrusting their live nude dancing shows on this community, the appellants alter and damage that community over its objections. As applied in this case, therefore, the ordinance speaks directly and unequivocally. It may be that, as applied in some other case, this ordinance would violate the First Amendment, but, since such a case is not before us, we should not decide it. Even assuming that the "expression" manifested in the nude dancing that is involved here is somehow protected speech under the First Amendment, the Borough of Mount *87 Ephraim is entitled to regulate it. In (172), we said: "The mere fact that the commercial exploitation of material protected by the First Amendment is subject to zoning and other licensing requirements is not a sufficient reason for invalidating these ordinances." Here, as in American Mini-Theatres, the zoning ordinance imposes a minimal intrusion on genuine rights of expression; only by contortions of logic can it be made otherwise. Mount Ephraim is a small community on the periphery of two major urban centers where this kind of entertainment may be found acceptable. The fact that nude dancing has been totally banned in this community is irrelevant. "Chilling" this kind of show business in this tiny residential enclave can hardly be thought to show that the appellants' "message" will be prohibited in nearbyand more sophisticated cities. The fact that a form of expression enjoys some constitutional protection does not mean that there are not times and places inappropriate for its exercise. The towns and villages of this Nation are not, and should not be, forced into a mold cast by this Court. Citizens should be free to choose to shape their community so that it embodies their conception of the "decent life." This will sometimes mean deciding that certain forms of activityfactories, gas stations, sports stadia, bookstores, and surely live nude showswill not be allowed. That a community is willing to tolerate such a commercial use as a convenience store, a gas station, a pharmacy, or a delicatessen does not compel it also to tolerate every other "commercial use," including pornography peddlers and live nude shows. In Federalist Paper No. 51, p. 160 (R. Fairfield ed. 166), Madison observed: "In framing a government which is to be administered by men over |
Justice Burger | 1,981 | 12 | dissenting | Schad v. Mount Ephraim | https://www.courtlistener.com/opinion/110507/schad-v-mount-ephraim/ | a government which is to be administered by men over men, the great difficulty lies in this: you *88 must first enable the government to control the governed; and in the next place oblige it to control itself." This expresses the balancing indispensable in all governing, and the Bill of Rights is one of the checks to control over-reaching by government. But it is a check to be exercised sparingly by federal authority over local expressions of choice going to essentially local concerns. I am constrained to note that some of the concurring views exhibit an understandable discomfort with the idea of denying this small residential enclave the power to keep this kind of show business from its very doorsteps. The Borough of Mount Ephraim has not attempted to suppress the point of view of anyone or to stifle any category of ideas. To say that there is a First Amendment right to impose every form of expression on every community, including the kind of "expression" involved here, is sheer nonsense. To enshrine such a notion in the Constitution ignores fundamental values that the Constitution ought to protect. To invoke the First Amendment to protect the activity involved in this case trivializes and demeans that great Amendment. |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | The issue in this case is whether First Amendment rights were abridged when respondents denied petitioner the use of a municipal facility in Chattanooga, Tenn., for the showing of the controversial rock musical "Hair." It is established, of course, that the Fourteenth Amendment has made applicable to the s the First Amendment's guarantee of free speech. I Petitioner, Southeastern Promotions, Ltd., is a New York corporation engaged in the business of promoting and presenting theatrical productions for profit. On October 29, 1971, it applied for the use of the Tivoli, a privately owned Chattanooga theater under long-term lease to the city, to present "Hair" there for six days beginning November 23. This was to be a road company showing of the musical that had played for three *548 years on Broadway, and had appeared in over 140 cities in the United s.[1] Respondents are the directors of the Chattanooga Memorial Auditorium, a municipal theater.[2] Shortly after receiving Southeastern's application, the directors met, and, after a brief discussion, voted to reject it. None of them had seen the play or read the script, but they understood from outside reports that the musical, as produced elsewhere, involved nudity and obscenity on stage. Although no conflicting engagement was scheduled for the Tivoli, respondents determined that the production would not be "in the best interest of the community." Southeastern was so notified but no written statement of reasons was provided. On November 1 petitioner, alleging that respondents' action abridged its First Amendment rights, sought a preliminary *549 injunction from the United s District Court for the Eastern District of Tennessee. Respondents did not then file an answer to the complaint.[3] A hearing was held on November 4. The District Court took evidence as to the play's content, and respondent Conrad gave the following account of the board's decision: "We use the general terminology in turning down the request for its use that we felt it was not in the best interest of the community and I can't speak beyond that. That was the board's determination. "Now, I would have to speak for myself, the policy to which I would refer, as I mentioned, basically indicates that we will, as a board, allow those productions which are clean and healthful and culturally uplifting, or words to that effect. They are quoted in the original dedication booklet of the Memorial Auditorium." App. 25.[4] The court denied preliminary relief, concluding that petitioner had failed to show that it would be irreparably *550 harmed pending a final judgment since scheduling was "purely a matter of financial loss or |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | since scheduling was "purely a matter of financial loss or gain" and was compensable. Southeastern some weeks later pressed for a permanent injunction permitting it to use the larger auditorium, rather than the Tivoli, on Sunday, April 9, The District Court held three days of hearings beginning April 3. On the issue of obscenity vel non, presented to an advisory jury, it took evidence consisting of the full script and libretto, with production notes and stage instructions, a recording of the musical numbers, a souvenir program, and the testimony of seven witnesses who had seen the production elsewhere. The jury returned a verdict that "Hair" was obscene. The District Court agreed. It concluded that conduct in the production group nudity and simulated sexwould violate city ordinances and state statutes[5] making public nudity and *551 obscene acts criminal offenses.[6] This criminal conduct, the court reasoned, was neither speech nor symbolic speech, and was to be viewed separately from the musical's *552 speech elements. Being pure conduct, comparable to rape or murder, it was not entitled to First Amendment protection. Accordingly, the court denied the injunction. On appeal, the United s Court of Appeals for the Sixth Circuit, by a divided vote, affirmed. The majority relied primarily on the lower court's reasoning. Neither the judges of the Court of Appeals nor the District Court saw the musical performed. Because of the First Amendment overtones, we granted certiorari. Petitioner urges reversal on the grounds that (1) respondents' action constituted an unlawful prior restraint, (2) the courts below applied an incorrect standard for the determination of the issue of obscenity vel non, and (3) the record does not support a finding that "Hair" is obscene. We do not reach the latter two contentions, for we agree with the first. We hold that respondents' rejection of petitioner's application to use this public forum accomplished a prior restraint under a system lacking in constitutionally required minimal procedural safeguards. Accordingly, on this narrow ground, we reverse. II Respondents' action here is indistinguishable in its censoring effect from the official actions consistently identified as prior restraints in a long line of this Court's decisions. See ; ; ; 161- *553 ; In these cases, the plaintiffs asked the courts to provide relief where public officials had forbidden the plaintiffs the use of public places to say what they wanted to say. The restraints took a variety of forms, with officials exercising control over different kinds of public places under the authority of particular statutes. All, however, had this in common: they gave public officials the power to deny |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | in common: they gave public officials the power to deny use of a forum in advance of actual expression. Invariably, the Court has felt obliged to condemn systems in which the exercise of such authority was not bounded by precise and clear standards. The reasoning has been, simply, that the danger of censorship and of abridgment of our precious First Amendment freedoms is too great where officials have unbridled discretion over a forum's use. Our distaste for censorshipreflecting the natural distaste of a free peopleis deep-written in our law. In each of the cited cases the prior restraint was embedded in the licensing system itself, operating without acceptable standards. In Shuttlesworth the Court held unconstitutional a Birmingham ordinance which conferred upon the city commission virtually absolute power to prohibit any "parade," "procession," or "demonstration" on streets or public ways. It ruled that "a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license, without narrow, objective, and definite standards to guide the licensing authority, is unconstitutional." 394 U.S., at In a Jersey City ordinance that forbade public assembly in the streets or parks without a permit from the local director of safety, who was empowered to refuse the permit upon his opinion that he would thereby prevent " `riots, disturbances or disorderly *554 assemblage,' " was held void on its face. In a unanimous Court held invalid an act which proscribed the solicitation of money or any valuable thing for "any alleged religious, charitable or philanthropic cause" unless that cause was approved by the secretary of the public welfare council. The elements of the prior restraint were clearly set forth: "It will be noted, however, that the Act requires an application to the secretary of the public welfare council of the ; that he is empowered to determine whether the cause is a religious one, and that the issue of a certificate depends upon his affirmative action. If he finds that the cause is not that of religion, to solicit for it becomes a crime. He is not to issue a certificate as a matter of course. His decision to issue or refuse it involves appraisal of facts, the exercise of judgment, and the formation of an opinion." The elements of prior restraint identified in Cantwell and other cases were clearly present in the system by which the Chattanooga board regulated the use of its theaters. One seeking to use a theater was required to apply to the board. The board was empowered to determine whether the applicant should be granted permission in effect, a |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | whether the applicant should be granted permission in effect, a license or permiton the basis of its review of the content of the proposed production. Approval of the application depended upon the board's affirmative action. Approval was not a matter of routine; instead, it involved the "appraisal of facts, the exercise of judgment, and the formation of an opinion" by the board.[7] *555 The board's judgment effectively kept the musical off stage. Respondents did not permit the show to go on and rely on law enforcement authorities to prosecute for anything illegal that occurred. Rather, they denied the application in anticipation that the production would violate the law. See New York Times Respondents' action was no less a prior restraint because the public facilities under their control happened to be municipal theaters. The Memorial Auditorium and the Tivoli were public forums designed for and dedicated to expressive activities. There was no question as to the usefulness of either facility for petitioner's production. There was no contention by the board that these facilities could not accommodate a production of this size. None of the circumstances qualifying as an established exception to the doctrine of prior restraint was present. Petitioner was not seeking to use a facility primarily serving a competing use. See, e. g., ; ; Nor was rejection of the application based on any regulation of time, place, or manner related to the nature of the facility or applications from other users. See ; No rights *556 of individuals in surrounding areas were violated by noise or any other aspect of the production. See There was no captive audience. See ; Public Utilities Whether petitioner might have used some other, privately owned, theater in the city for the production is of no consequence. There is reason to doubt on this record whether any other facility would have served as well as these, since none apparently had the seating capacity, acoustical features, stage equipment, and electrical service that the show required. Even if a privately owned forum had been available, that fact alone would not justify an otherwise impermissible prior restraint. "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Thus, it does not matter for purposes of this case that the board's decision might not have had the effect of total suppression of the musical in the community. Denying use of the municipal facility under the circumstances present here constituted the prior restraint.[8]*557 That restraint was final. It was no mere |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | prior restraint.[8]*557 That restraint was final. It was no mere temporary bar while necessary judicial proceedings were under way.[9] Only if we were to conclude that live drama is unprotected by the First Amendmentor subject to a totally different standard from that applied to other forms of expressioncould we possibly find no prior restraint here. Each medium of expression, of course, must be assessed for First Amendment purposes by standards suited to it, for each may present its own problems. Joseph ; see Red Lion Broadcasting By its nature, theater usually is the acting outor singing out *5 of the written word, and frequently mixes speech with live action or conduct. But that is no reason to hold theater subject to a drastically different standard. For, as was said in at when the Court was faced with the question of what First Amendment standard applies to films: "[T]he basic principles of freedom of speech and the press, like the First Amendment's command, do not vary. Those principles, as they have frequently been enunciated by this Court, make freedom of expression the rule. There is no justification in this case for making an exception to that rule." III Labeling respondents' action a prior restraint does not end the inquiry. Prior restraints are not unconstitutional per se. Bantam Books, See ; Times Film We have rejected the contention that the First Amendment's protection "includes complete and absolute freedom to exhibit, at least once, any and every kind of motion picture even if this film contains the basest type of pornography, or incitement to riot, or forceful overthrow of orderly government" Any system of prior restraint, however, "comes to this Court bearing a heavy presumption against its constitutional validity." Bantam Books, ; New York Times ; Organization for a Better ; ; 283 U. S., at The presumption against prior restraints is heavierand the degree of protection *559 broaderthan that against limits on expression imposed by criminal penalties. Behind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after they break the law than to throttle them and all others beforehand. It is always difficult to know in advance what an individual will say, and the line between legitimate and illegitimate speech is often so finely drawn that the risks of freewheeling censorship are formidable. See In order to be held lawful, respondents' action, first, must fit within one of the narrowly defined exceptions to the prohibition against prior restraints, and, second, must have been accomplished with procedural safeguards |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | restraints, and, second, must have been accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech. Bantam Books, We do not decide whether the performance of "Hair" fits within such an exception or whether, as a substantive matter, the board's standard for resolving that question was correct, for we conclude that the standard, whatever it may have been, was not implemented by the board under a system with appropriate and necessary procedural safeguards. The settled rule is that a system of prior restraint "avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system." See United s v. Thirtyseven ; -421 ; Teitel Film See also ; Bantam Books, -71; Kingsley Books, In Freedman the Court struck down a state scheme for the licensing of motion pictures, holding "that, because only a *560 judicial determination in an adversary proceeding ensures the necessary sensitivity to freedom of expression, only a procedure requiring a judicial determination suffices to impose a valid final restraint." 380 U.S., at We held in Freedman, and we reaffirm here, that a system of prior restraint runs afoul of the First Amendment if it lacks certain safeguards: First, the burden of instituting judicial proceedings, and of proving that the material is unprotected, must rest on the censor. Second, any restraint prior to judicial review can be imposed only for a specified brief period and only for the purpose of preserving the status quo. Third, a prompt final judicial determination must be assured. Although most of our cases have pertained to motion picture licensing or censorship, this Court has applied Freedman to the system by which federal customs agents seize imported materials, United s v. Thirty-seven and to that by which postal officials restrict use of the mails, In Blount we held unconstitutional provisions of the postal laws designed to control use of the mails for commerce in obscene materials. The provisions enabled the Postmaster General to halt delivery of mail to an individual and prevent payment of money orders to him. The administrative order became effective without judicial approval, and the burden of obtaining judicial review was placed upon the user. If a scheme that restricts access to the mails must furnish the procedural safeguards set forth in Freedman, no less must be expected of a system that regulates use of a public forum. Respondents here had the same powers of licensing and censorship exercised by postal officials in Blount, and by boards and officials in other cases. The theory underlying the requirement of safeguards is |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | other cases. The theory underlying the requirement of safeguards is applicable here with equal if not greater force. An administrative board assigned to screening stage productions *561 and keeping off stage anything not deemed culturally uplifting or healthful may well be less responsive than a court, an independent branch of government, to constitutionally protected interests in free expression.[10] And if judicial review is made unduly onerous, by reason of delay or otherwise, the board's determination in practice may be final. Insistence on rigorous procedural safeguards under these circumstances is "but a special instance of the larger principle that the freedoms of expression must be ringed about with adequate bulwarks." Bantam Books, Because the line between unconditionally guaranteed speech and speech that may be legitimately regulated is a close one, the "separation of legitimate from illegitimate speech calls for sensitive tools." The perils of prior restraint are well illustrated by this case, where neither the Board nor the lower courts could have known precisely the extent of nudity or simulated sex in the musical, or even that either would appear, before the play was actually performed.[11] Procedural safeguards were lacking here in several respects. The board's system did not provide a procedure for prompt judicial review. Although the District Court commendably held a hearing on petitioner's motion for a preliminary injunction within a few days of the *562 board's decision, it did not review the merits of the decision at that time. The question at the hearing was whether petitioner should receive preliminary relief. i. e., whether there was likelihood of success on the merits and whether petitioner would suffer irreparable injury pending full review. Effective review on the merits was not obtained until more than five months later. Throughout, it was petitioner, not the board, that bore the burden of obtaining judicial review. It was petitioner that had the burden of persuasion at the preliminary hearing if not at the later stages of the litigation. Respondents did not file a formal answer to the complaint for five months after petitioner sought review. During the time prior to judicial determination, the restraint altered the status quo. Petitioner was forced to forgo the initial dates planned for the engagement and to seek to schedule the performance at a later date. The delay and uncertainty inevitably discouraged use of the forum. The procedural shortcomings that form the basis for our decision are unrelated to the standard that the board applied. Whatever the reasons may have been for the board's exclusion of the musical, it could not escape the obligation to afford appropriate procedural |
Justice Blackmun | 1,975 | 11 | majority | Southeastern Promotions, Ltd. v. Conrad | https://www.courtlistener.com/opinion/109214/southeastern-promotions-ltd-v-conrad/ | it could not escape the obligation to afford appropriate procedural safeguards. We need not decide whether the standard of obscenity applied by respondents or the courts below was sufficiently precise or substantively correct, or whether the production is in fact obscene. See Hamling v. United s, ; ; ; ; The standard, whatever it may be, must be implemented under a system that assures prompt judicial review with a minimal restriction of First Amendment rights necessary under the circumstances. Reversed. *563 MR. JUSTICE DOUGLAS, dissenting in part and concurring in the result in part. While I agree with the Court's conclusion that the actions of the respondents constituted an impermissible prior restraint upon the performance of petitioner's rock musical, I am compelled to write separately in order to emphasize my view that the injuries inflicted upon petitioner's First Amendment rights cannot be treated adequately or averted in the future by the simple application of a few procedural band-aids. The critical flaw in this case lies, not in the absence of procedural safeguards, but rather in the very nature of the content screening in which respondents have engaged. The Court today treads much the same path which it walked in and the sentiment which I expressed on that occasion remains equally relevant: "I do not believe any form of censorshipno matter how speedy or prolonged it may beis permissible." See also U.S. 956 ; Times Film A municipal theater is no less a forum for the expression of ideas than is a public park, or a sidewalk; the forms of expression adopted in such a forum may be more expensive and more structured than those typically seen in our parks and streets, but they are surely no less entitled to the shelter of the First Amendment. As soon as municipal officials are permitted to pick and choose, as they are in all existing socialist regimes, between those productions which are "clean and healthful and culturally uplifting" in content and those which are not, the path is cleared for a regime of censorship under which full voice can be given only to those views which meet with the approval of the powers that be. *564 There was much testimony in the District Court concerning the pungent social and political commentary which the musical "Hair" levels against various sacred cows of our society: the Vietnam war, the draft, and the puritanical conventions of the Establishment. This commentary is undoubtedly offensive to some, but its contribution to social consciousness and intellectual ferment is a positive one. In this respect, the musical's often ribald humor |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | Each day, according to the Government's submissions here, the United States Postal Service delivers some 660 million pieces of mail to as many as 142 million delivery points. This case involves one such delivery pointโpetitioner Barbara Dolan's porchโwhere mail left by postal employees allegedly caused her to trip and fall. Claiming injuries as a result, Dolan filed a claim for administrative relief from the Postal Service. When her claim was denied, she and her husband (whose claim for loss of consortium the Dolans later conceded was barred for failure to exhaust administrative remedies) filed suit in the United States District Court for the Eastern District of Pennsylvania, asserting that the Postal Service's negligent placement of mail at their home subjected the Government to liability under the Federal Tort Claims Act (FTCA), 28 U.S.C. งง 16(b)(1), 2674. The District Court dismissed Dolan's suit, and the Court of Appeals for the Third Circuit affirmed, Both courts concluded that, although the FTCA generally waives sovereign immunity as to federal employees' torts, Dolan's claims were barred by an exception to that waiver, 28 U.S.C. ง 2680(b). We disagree and hold that Dolan's suit may proceed. I Under the Postal Reorganization Act, 39 U.S.C. ง 101 et seq., the Postal Service is "an independent establishment of the executive branch of the Government of the United *484 States," ง 201. Holding a monopoly over carriage of letters, the Postal Service has "significant governmental powers," including the power of eminent domain, the authority to make searches and seizures in the enforcement of laws protecting the mails, the authority to promulgate postal regulations, and, subject to the Secretary of State's supervision, the power to enter international postal agreements. See Postal Consistent with this status, the Postal Service enjoys federal sovereign immunity absent a waiver. See ibid.; cf. Although the Postal Reorganization Act generally "waives the immunity of the Postal Service from suit by giving it the power `to sue and be sued in its official name,'" Flamingo at the statute also provides that the FTCA "shall apply to tort claims arising out of activities of the Postal Service," ง 409(c). The FTCA, in turn, waives sovereign immunity in two different sections of the United States Code. The first confers federal-court jurisdiction in a defined category of cases involving negligence committed by federal employees in the course of their employment. This jurisdictional grant covers: "claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. ง 16(b)(1). *485 As to claims falling within this jurisdictional grant, the FTCA, in a second provision, makes the United States liable "in the same manner and to the same extent as a private individual under like circumstances," though not "for interest prior to judgment or for punitive damages." ง 2674; see generally United States v. Olson, ante, at 44. The FTCA qualifies its waiver of sovereign immunity for certain categories of claims (13 in all). If one of the exceptions applies, the bar of sovereign immunity remains. The 13 categories of exempted claims are set forth in 28 U.S.C. ง 2680, and the relevant subsection for our purposes, pertaining to postal operations, is ง 2680(b). It states: "The provisions of this chapter and section 16(b) of this title shall not apply to [a]ny claim arising out of the loss, miscarriage, or negligent transmission of letters or postal matter." As a consequence, the United States may be liable if postal employees commit torts under local law, but not for claims defined by this exception. This was the provision relied upon by the District Court and Court of Appeals to dismiss Dolan's suit. The Court of Appeals' decision created a conflict with a decision of the Court of Appeals for the Second Circuit. See We granted certiorari. II We assume that under the applicable state law a person injured by tripping over a package or bundle of papers negligently left on the porch of a residence by a private party would have a cause of action for damages. See 28 U.S.C. งง 16(b)(1), 2674. The question is whether, when mail left by the Postal Service causes the slip and fall, the ง 2680(b) exception for "loss, miscarriage, or negligent transmission of letters or postal matter" preserves sovereign immunity despite the FTCA's more general statements of waiver. *486 If considered in isolation, the phrase "negligent transmission" could embrace a wide range of negligent acts committed by the Postal Service in the course of delivering mail, including creation of slip-and-fall hazards from leaving packets and parcels on the porch of a residence. After all, in ordinary meaning and usage, transmission of the mail is not complete until it arrives at the destination. See, e. g., |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | complete until it arrives at the destination. See, e. g., Webster's Third New International Dictionary 2429 (1971) (defining "transmission" as "an act, process, or instance of transmitting" and "transmit" as "to cause to go or be conveyed to another person or place"). In large part this inferenceโ transmission includes deliveryโled the District Court and Court of Appeals to rule for the Government. See ; App. to Pet. for Cert. 5a-6a. The definition of words in isolation, however, is not necessarily controlling in statutory construction. A word in a statute may or may not extend to the outer limits of its definitional possibilities. Interpretation of a word or phrase depends upon reading the whole statutory text, considering the purpose and context of the statute, and consulting any precedents or authorities that inform the analysis. Here, we conclude both context and precedent require a narrower reading, so that "negligent transmission" does not go beyond negligence causing mail to be lost or to arrive late, in damaged condition, or at the wrong address. See at The phrase does not comprehend all negligence occurring in the course of mail delivery. Starting with context, the words "negligent transmission" in ง 2680(b) follow two other terms, "loss" and "miscarriage." Those terms, we think, limit the reach of "transmission." "[A] word is known by the company it keeps"โa rule that "is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the Acts of Congress." ; see also Here, as both parties acknowledge, mail is "lost" if it is destroyed or misplaced and "miscarried" if it goes to the wrong address. Since both those terms refer to failings in the postal obligation to deliver mail in a timely manner to the right address, it would be odd if "negligent transmission" swept far more broadly to include injuries like those alleged hereโ injuries that happen to be caused by postal employees but involve neither failure to transmit mail nor damage to its contents. Our interpretation would be less secure were it not for a precedent we deem to have decisive weight here. We refer to In an art collector alleged in an FTCA suit that artworks he owned were damaged when the United States Customs Service seized and detained them. The question was whether the Government retained immunity based on ง 2680(c), a provision that has since been amended but at the time covered: "[a]ny claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods or |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | or customs duty, or the detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement officer." In its opinion concluding the exception did apply and thus that the United States retained sovereign immunity, the Court gave specific consideration to the postal exception. In a part of the opinion central to its holding, the Court contrasted what it called the "generality of ง 2680(c)" with the "specificity of ง 2680(b)," The Court observed: "One of the principal purposes of the Federal Tort Claims Act was to waive the Government's immunity from liability for injuries resulting from auto accidents *488 in which employees of the Postal System were at fault. In order to ensure that ง 2680(b), which governs torts committed by mailmen, did not have the effect of barring precisely the sort of suit that Congress was most concerned to authorize, the draftsmen of the provision carefully delineated the types of misconduct for which the Government was not assuming financial responsibilityโnamely, `the loss, miscarriage, or negligent transmission of letters or postal matter'โthereby excluding, by implication, negligent handling of motor vehicles." In the present case neither party suggests 's conclusion regarding negligent operation of postal motor vehicles should be ignored as dictum. In light of 's discussion, we cannot interpret the phrase "negligent transmission" in ง 2680(b) to cover all negligence in the course of mail delivery. Although postal trucks may well be deliveringโand thus transmittingโmail when they collide with other vehicles, indicates the United States, nonetheless, retains no immunity. Seeking to distinguish postal auto accidents from Dolan's fall, the Government argues that negligent driving relates only circumstantially to the mail, whereas Dolan's accident was caused by the mail itself. Nothing in the statutory text supports this distinction. Quite the contrary, if placing mail so as to create a slip-and-fall risk constitutes "negligent transmission," the same should be true of driving postal trucks in a manner that endangers others on the road. In both cases the postal employee acts negligently while transmitting mail. In addition, as the Second Circuit recognized and as the Government acknowledged at oral argument, focusing on whether the mail itself caused the injury would yield anomalies, perhaps making liability turn on whether a mail sack causing a slip-and-fall was empty or full, or whether a pedestrian sideswiped by a passing truck was hit *489 by the side-view mirror or a dangling parcel. See -123. We think it more likely that Congress intended to retain immunity, as a general rule, only for injuries arising, directly or consequentially, because mail either fails to |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | injuries arising, directly or consequentially, because mail either fails to arrive at all or arrives late, in damaged condition, or at the wrong address. Illustrative instances of the exception's operation, then, would be personal or financial harms arising from nondelivery or late delivery of sensitive materials or information (e. g., medicines or a mortgage foreclosure notice) or from negligent handling of a mailed parcel (e. g., shattering of shipped china). Such harms, after all, are the sort primarily identified with the Postal Service's function of transporting mail throughout the United States. Resisting this conclusion, the Government emphasizes the Postal Service's vast operationsโthe 660 million daily mailings and 142 million delivery points mentioned at the outset. See Brief for Respondents As delivery to mailboxes and doorsteps is essential to this nationwide undertaking, Congress must have intended, the Government asserts, to insulate delivery-related torts from liability. If, however, doorstep delivery is essential to the postal enterprise, then driving postal trucks is no less so. And in any event, while it is true "[t]he ง 2680 exceptions are designed to protect certain important governmental functions and prerogatives from disruption," the specificity of ง 2680(b), see indicates that Congress did not intend to immunize all postal activities. Other FTCA exceptions paint with a far broader brush. They cover, for example: "[a]ny claim for damages caused by the fiscal operations of the Treasury or by the regulation of the monetary system," 28 U.S.C. ง 2680(i); "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war," ง 2680(j); "[a]ny claim arising in a foreign country," ง 2680(k); "[a]ny *490 claim arising from the activities of the Tennessee Valley Authority," ง 2680(l), or "the Panama Canal Company," ง 2680(m); and "[a]ny claim arising from the activities of a Federal land bank, a Federal intermediate credit bank, or a bank for cooperatives," ง 2680(n). Had Congress intended to preserve immunity for all torts related to postal deliveryโ torts including hazardous mail placement at customer homesโit could have used similarly sweeping language in ง 2680(b). By instead "carefully delineat[ing]" just three types of harm (loss, miscarriage, and negligent transmission), see 465 U.S., Congress expressed the intent to immunize only a subset of postal wrongdoing, not all torts committed in the course of mail delivery. Further supporting our interpretation, losses of the type for which immunity is retained under ง 2680(b) are at least to some degree avoidable or compensable through postal registration and insurance. See United States Postal Service, Mailing Standards, Domestic Mail Manual 609.1.1 available at |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | Postal Service, Mailing Standards, Domestic Mail Manual 609.1.1 available at http://pe.usps.gov/text/dmm300/ 609.htm (as visited Jan. 9, 2006, and available in Clerk of Court's case file) (allowing indemnity claims for loss or damage of "insured, collect on delivery (COD), registered with postal insurance, or Express Mail"); 39 CFR ง 111.1 (incorporating by reference the Domestic Mail Manual). The same was true when Congress enacted the FTCA in 1946. See 39 U.S.C. ง 245 (1940 ed. and Supp. V) (setting rates and conditions for mail insurance); ง 381 (1946 ed.) ("For the greater security of valuable mail matter the Postmaster General may establish a uniform system of registration, and as a part of such system he may provide rules under which the senders or owners of any registered matter shall be indemnified for loss, rifling, or damage thereof in the mails"). As explains, one purpose of the FTCA exceptions was to avoid "extending the coverage of the Act to suits for which adequate remedies were already available," โan objective consistent with retaining *491 immunity as to claims of mail damage or delay covered by postal registration and insurance. While the Government suggests other injuries falling outside the FTCA are also subject to administrative relief, even assuming that is true, the provision the Government cites permits only discretionary relief, not an automatic remedy like postal insurance. See 39 U.S.C. ง 2603 (indicating the Postal Service "may adjust and settle" personal-injury and property-damage claims "not cognizable" under the FTCA's administrative relief provision); see also U.S.C. ง 224c (1940 ed.) (indicating that "[w]hen any damage is done to person or property by or through the operation of the Post Office Department. the Postmaster General is invested with power to adjust and settle any claim for such damage when his award for such damage in any case does not exceed $500"); Legislative Reorganization Act of 1946, ง 424(a), -847 (repealing ง 224c as to negligence claims cognizable under the FTCA). The Government raises the specter of frivolous slip-andfall claims inundating the Postal Service. It is true that, in addition to other considerations we have identified, describes "avoiding exposure of the United States to liability for excessive or fraudulent claims" as a principal aim of the FTCA exceptions, Slip-and-fall liability, however, to the extent state tort law imposes it, is a risk shared by any business that makes home deliveries. Given that "negligent transmission," viewed in context and in light of cannot sweep as broadly as the Government claims, ordinary protections against frivolous litigation must suffice here, just as they do in the case of motor vehicle |
Justice Kennedy | 2,006 | 4 | majority | Dolan v. Postal Service | https://www.courtlistener.com/opinion/145678/dolan-v-postal-service/ | just as they do in the case of motor vehicle collisions. Finally, it should be noted that this case does not implicate the general rule that "a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor of the sovereign," As explains, this principle is "unhelpful" *492 in the FTCA context, where "unduly generous interpretations of the exceptions run the risk of defeating the central purpose of the statute," n. 9, which "waives the Government's immunity from suit in sweeping language," United ; see also United (observing "[w]e have on occasion narrowly construed exceptions to waivers of sovereign immunity where that was consistent with Congress' clear intent, as in the context of the `sweeping language' of the [FTCA]" (quoting Yellow Cab at )). Hence, "the proper objective of a court attempting to construe one of the subsections of 28 U.S.C. ง 2680 is to identify `those circumstances which are within the words and reason of the exception'โno less and no more." ). Having made that inquiry here, we conclude Dolan's claims fall outside ง 2680(b). * * * The postal exception is inapplicable, and Dolan's claim falls within the FTCA's general waiver of federal sovereign immunity. 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 ALITO took no part in the consideration or decision of this case. |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | In we held that a New law prohibiting the importation of most "`solid or liquid waste which originated or was collected outside the territorial limits of the State' " violated the Commerce Clause of the United States Constitution. In this case petitioner challenges a Michigan law that prohibits private landfill operators from accepting solid waste that originates outside the county in which their facilities are located. Adhering to our holding in the New case, we conclude that this Michigan statute is also unconstitutional. I In 1978, Michigan enacted its Solid Waste Management Act[1] (SWMA). That Act required every Michigan county to estimate the amount of solid waste that would be generated in the county in the next 20 years and to adopt a plan providing for its disposal at facilities that comply with state health standards. *356 After holding public hearings and obtaining the necessary approval of municipalities in the county, as well as the approval of the Director of the Michigan Department of Natural Resources, the County Board of Commissioners adopted a solid waste management plan for St. Clair County. In 1987, the Michigan Department of Natural Resources issued a permit to petitioner to operate a sanitary landfill as a solid waste[2] disposal area in St. Clair County. See Bill Kettlewell Excavating, On December 28, 1988, the Michigan Legislature amended the SWMA by adopting two provisions concerning the "acceptance of waste or ash generated outside the county of disposal area." See 1988 Mich. Pub. Acts, No. 475, 1, codified as amended, Mich. Comp. Laws 299.413a, 299.430(2) *357 Those amendments (Waste Import Restrictions), which became effective immediately, provide: "A person shall not accept for disposal solid waste that is not generated in the county in which the disposal area is located unless the acceptance of solid waste that is not generated in the county is explicitly authorized in the approved county solid waste management plan." 299.413a. "In order for a disposal area to serve the disposal needs of another county, state, or country, the service must be explicitly authorized in the approved solid waste management plan of the receiving county." 299.430(2). In February 1989, petitioner submitted an application to the St. Clair County Solid Waste Planning Committee for authority to accept up to 1,750 tons per day of out-of-state waste at its landfill. See Bill Kettlewell Excavating, In that application petitioner promised to reserve sufficient capacity to dispose of all solid waste generated in the county in the next 20 years. The planning committee denied the application. In view of the fact that the county's management plan does not authorize |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | the fact that the county's management plan does not authorize the acceptance of any out-of-county waste, the Waste Import Restrictions in the 1988 statute effectively prevent petitioner from receiving any solid waste that does not originate in St. Clair County. Petitioner therefore commenced this action seeking a judgment declaring the Waste Import Restrictions unconstitutional and enjoining their enforcement. Petitioner contended that requiring a private landfill operator to limit its business to the acceptance of local waste constituted impermissible discrimination against interstate commerce. The District Court denied petitioner's motion for summary judgment, however, and subsequently dismissed the complaint, App. 4. The court first concluded that the statute *358 does not discriminate against interstate commerce "on its face" because the import restrictions apply "equally to Michigan counties outside of the county adopting the plan as well as to out-of-state entities." It also concluded that there was no discrimination "in practical effect" because each county was given discretion to accept outof-state waste. Moreover, the incidental effect on interstate commerce was "not clearly excessive in relation to the [public health and environmental] benefits derived by Michigan from the statute." The Court of Appeals for the Sixth Circuit agreed with the District Court's analysis. Although it recognized that the statute "places in-county and out-of-county waste in separate categories," the Court of Appeals found no discrimination against interstate commerce because the statute "does not treat out-of-county waste from Michigan any differently than waste from other states." It also agreed that there was no actual discrimination because petitioner had not alleged that all counties in Michigan ban outof-state waste. Accordingly, it affirmed the judgment of the District Court. We granted certiorari, because of concern that the decision below was inconsistent with and now reverse. II Before discussing the rather narrow issue that is contested, it is appropriate to identify certain matters that are not in dispute. Michigan's comprehensive program of regulating the collection, transportation, and disposal of solid waste, as it was enacted in 1978 and administered prior to the 1988 Waste Import Restrictions, is not challenged. No issue relating to hazardous waste is presented, and there is no claim that petitioner's operation violated any health, safety, or sanitation requirement. Nor does the case raise any question concerning policies that municipalities or other governmental agencies may pursue in the management of *359 publicly owned facilities. The case involves only the validity of the Waste Import Restrictions as they apply to privately owned and operated landfills. On the other hand, provides the framework for our analysis of this case. Solid waste, even if it has no value, is |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | case. Solid waste, even if it has no value, is an article of commerce.[3] -623. Whether the business arrangements between out-of-state generators of waste and the Michigan operator of a waste disposal site are viewed as "sales" of garbage or "purchases" of transportation and disposal services, the commercial transactions unquestionably have an interstate character. The Commerce Clause thus imposes some constraints on Michigan's ability to regulate these transactions. As we have long recognized, the "negative" or "dormant" aspect of the Commerce Clause prohibits States from "advanc[ing] their own commercial interests by curtailing the movement of articles of commerce, either into or out of the state." H. P. Hood & Sons, A state statute that clearly discriminates against interstate commerce is therefore unconstitutional "unless the discrimination is demonstrably justified by a valid factor unrelated to economic protectionism." New Energy Co. of *360 New 's prohibition on the importation of solid waste failed this test: "[T]he evil of protectionism can reside in legislative means as well as legislative ends. Thus, it does not matter whether the ultimate aim of ch. 363 is to reduce the waste disposal costs of New residents or to save remaining open lands from pollution, for we assume New has every right to protect its residents' pocketbooks as well as their environment. And it may be assumed as well that New may pursue those ends by slowing the flow of all waste into the State's remaining landfills, even though interstate commerce may incidentally be affected. But whatever New 's ultimate purpose, it may not be accompanied by discriminating against articles of commerce coming from outside the State unless there is some reason, apart from their origin, to treat them differently. Both on its face and in its plain effect, ch. 363 violates this principle of nondiscrimination. "The Court has consistently found parochial legislation of this kind to be constitutionally invalid, whether the ultimate aim of the legislation was to assure a steady supply of milk by erecting barriers to allegedly ruinous outside competition, Baldwin v. G. A. F. Seelig, -524; or to create jobs by keeping industry within the State, Foster-Fountain Packing ; 6; Toomer v. -404; or to preserve the State's financial resources from depletion by fencing out indigent immigrants, In each of these cases, a presumably legitimate goal was sought to be achieved by the illegitimate means of isolating the State from the national economy." -627. *361 The Waste Import Restrictions enacted by Michigan authorize each of the State's 83 counties to isolate itself from the national economy. Indeed, unless a county acts affirmatively to permit |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | national economy. Indeed, unless a county acts affirmatively to permit other waste to enter its jurisdiction, the statute affords local waste producers complete protection from competition from out-of-state waste producers who seek to use local waste disposal areas. In view of the fact that Michigan has not identified any reason, apart from its origin, why solid waste coming from outside the county should be treated differently from solid waste within the county, the foregoing reasoning would appear to control the disposition of this case. III Respondents Michigan and St. Clair County argue, however, that the Waste Import Restrictionsunlike the New prohibition on the importation of solid wastedo not discriminate against interstate commerce on their face or in effect because they treat waste from other Michigan counties no differently than waste from other States. Instead, respondents maintain, the statute regulates evenhandedly to effectuate local interests and should be upheld because the burden on interstate commerce is not clearly excessive in relation to the local benefits. Cf. Pike v. Bruce Church, We disagree, for our prior cases teach that a State (or one of its political subdivisions) may not avoid the strictures of the Commerce Clause by curtailing the movement of articles of commerce through subdivisions of the State, rather than through the State itself. In we reviewed the constitutionality of a Virginia statute that imposed special inspection fees on meat from animals that had been slaughtered more than 0 miles from the place of sale. We concluded that the statute violated the Commerce Clause even though it burdened Virginia producers as well as the Illinois litigant before the Court. We explained: *362 "[T]his statute [cannot] be brought into harmony with the Constitution by the circumstance that it purports to apply alike to the citizens of all the States, including Virginia; for, `a burden imposed by a State upon interstate commerce is not to be sustained simply because the statute imposing it applies alike to the people of all the States, including the people of the State enacting such statute.' ]; If the object of Virginia had been to obstruct the bringing into that State, for use as human food, of all beef, veal and mutton, however wholesome, from animals slaughtered in distant States, that object will be accomplished if the statute before us be enforced." In Dean Milk another Illinois litigant challenged a city ordinance that made it unlawful to sell any milk as pasteurized unless it had been processed at a plant "within a radius of five miles from the central square of Madison," We held the ordinance invalid, explaining: |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | central square of Madison," We held the ordinance invalid, explaining: "[T]his regulation, like the provision invalidated in Baldwin v. Seelig, [ ], in practical effect excludes from distribution in Madison wholesome milk produced and pasteurized in Illinois. `The importer may keep his milk or drink it, but sell it he may not.' In thus erecting an economic barrier protecting a major local industry against competition from without the State, Madison plainly discriminates against interstate commerce." The fact that the ordinance also discriminated against all Wisconsin producers whose facilities were more than five miles from the center of the city did not mitigate its burden on interstate commerce. As we noted, it was "immaterial that Wisconsin milk from outside the Madison area is subjected *363 to the same proscription as that moving in interstate commerce." n.4. Nor does the fact that the Michigan statute allows individual counties to accept solid waste from out of state qualify its discriminatory character. In the New case the statute authorized a state agency to promulgate regulations permitting certain categories of waste to enter the State. See 437 U.S., at -619. The limited exception covered by those regulationslike the fact that several Michigan counties accept out-of-state wastemerely reduced the scope of the discrimination; for all categories of waste not excepted by the regulations, the discriminatory ban remained in place. Similarly, in this case St. Clair County's total ban on out-ofstate waste is unaffected by the fact that some other counties have adopted a different policy.[4] In short, neither the fact that the Michigan statute purports to regulate intercounty commerce in waste nor the fact that some Michigan counties accept out-of-state waste provides an adequate basis for distinguishing this case from IV Michigan and St. Clair County also argue that this case is different from because the SWMA constitutes a comprehensive health and safety regulation rather than "economic protectionism" of the State's limited landfill capacity. Relying on an excerpt from our opinion in Sporhase v. Nebraska ex rel. Douglas, 458 U. S. *364 941 (1982), they contend that the differential treatment of out-of-state waste is reasonable because they have taken measures to conserve their landfill capacity and the SWMA is necessary to protect the health of their citizens. That reliance is misplaced. In the Sporhase case we considered the constitutionality of a Nebraska statute that prohibited the withdrawal of ground water for use in an adjoining State without a permit that could only issue if four conditions were satisfied.[5] We held that the fourth conditiona requirement that the adjoining State grant reciprocal rights to withdraw its water |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | the adjoining State grant reciprocal rights to withdraw its water and allow its use in Nebraskaviolated the Commerce Clause. As a preface to that holding, we identified several reasons that, in combination, justified the conclusion that the other conditions were facially valid. First, we questioned whether the statute actually discriminated against interstate commerce. Although the restrictive conditions in the statute nominally applied only to interstate transfers of ground water, they might have been "no more strict in application than [other state-law] limitations upon intrastate transfers." "Obviously, a State that imposes severe withdrawal and use restrictions on its own citizens is not discriminating against interstate commerce when it *365 seeks to prevent the uncontrolled transfer of water out of the State." We further explained that a confluence of factors could justify a State's efforts to conserve and preserve ground water for its own citizens in times of severe shortage.[6] Only the first of those reasonsour reference to the well-recognized *366 difference between economic protectionism, on the one hand, and health and safety regulation, on the otheris even arguably relevant to this case.[7] We may assume that all of the provisions of Michigan's SWMA prior to the 1988 amendments adding the Waste Import Restrictions could fairly be characterized as health and safety regulations with no protectionist purpose, but we cannot make that same assumption with respect to the Waste Import Restrictions themselves. Because those provisions unambiguously discriminate against interstate commerce, the State bears the burden of proving that they further health and safety concerns that cannot be adequately served by nondiscriminatory alternatives. Michigan and St. Clair County have not met this burden.[8] Michigan and St. Clair County assert that the Waste Import Restrictions are necessary because they enable individual counties to make adequate plans for the safe disposal of future waste.[9] Although accurate forecasts about the volume *367 and composition of future waste flows may be an indispensable part of a comprehensive waste disposal plan, Michigan could attain that objective without discriminating between in- and out-of-state waste. Michigan could, for example, limit the amount of waste that landfill operators may accept each year. See There is, however, no valid health and safety reason for limiting the amount of waste that a landfill operator may accept from outside the State, but not the amount that the operator may accept from inside the State. Of course, our conclusion would be different if the imported waste raised health or other concerns not presented by Michigan waste. In for example, we upheld the State's prohibition against the importation of live baitfish because parasites and other characteristics |
Justice Stevens | 1,992 | 16 | majority | Fort Gratiot Sanitary Landfill, Inc. v. Michigan Dept. of Natural Resources | https://www.courtlistener.com/opinion/112741/fort-gratiot-sanitary-landfill-inc-v-michigan-dept-of-natural-resources/ | the importation of live baitfish because parasites and other characteristics of nonnative species posed a serious threat to native fish that could not be avoided by available inspection techniques. We concluded: "The evidence in this case amply supports the District Court's findings that Maine's ban on the importation of live baitfish serves legitimate local purposes that could not adequately be served by available nondiscriminatory alternatives. This is not a case of arbitrary discrimination against interstate commerce; the record suggests that Maine has legitimate reasons, `apart from their origin, to treat [out-of-state baitfish] differently,' Philadel- phia v. New" In this case, in contrast, the lower courts did not findand respondents have not providedany legitimate reason for allowing petitioner to accept waste from inside the county but not waste from outside the county. For the foregoing reasons, the Waste Import Restrictions unambiguously discriminate against interstate commerce and are appropriately characterized as protectionist measures that cannot withstand scrutiny under the Commerce *368 Clause. The judgment of the Court of Appeals is therefore reversed. It is so ordered. |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | This appeal presents the issue whether a beneficiary of the program for Aid to Families with Dependent Children (AFDC)[1] may refuse a home visit by the caseworker without risking the termination of benefits. *311 The New York State and City social services commissioners appeal from a judgment and decree of a divided three-judge District Court holding invalid and unconstitutional in application 134 of the New York Social Services Law,[] 175 of the New York Policies Governing *31 the Administration of Public Assistance,[3] and 351.10 and 351.1 of Title 18 of the New York Code of Rules and Regulations,[4] and granting injunctive relief. This Court noted probable jurisdiction but, by a divided vote, denied a requested stay. The District Court majority held that a mother receiving AFDC relief may refuse, without forfeiting her right to that relief, the periodic home visit which the cited New York statutes and regulations prescribe as a condition for the continuance of assistance under the program. The beneficiary's thesis, and that of the District *313 Court majority, is that home visitation is a search and, when not consented to or when not supported by a warrant based on probable cause, violates the beneficiary's Fourth and Fourteenth Amendment rights. Judge McLean, in dissent, thought it unrealistic to regard the home visit as a search; felt that the requirement of a search warrant to issue only upon a showing of probable cause would make the AFDC program "in effect another criminal statute" and would "introduce a hostile arm's length element into the relationship" between worker and mother, "a relationship which can be effective only when it is based upon mutual confidence and trust"; and concluded that the majority's holding struck "a damaging blow" to an important social welfare program. I The case comes to us on the pleadings and supporting affidavits and without the benefit of testimony which an extended hearing would have provided. The pertinent facts, however, are not in dispute. Plaintiff Barbara James is the mother of a son, Maurice, who was born in May 167. They reside in New York City. Mrs. James first applied for AFDC assistance shortly before Maurice's birth. A caseworker made a visit to her apartment at that time without objection. The assistance was authorized. Two years later, on May 8, a caseworker wrote Mrs. James that she would visit her home on May 14. Upon receipt of this advice, Mrs. James telephoned the worker that, although she was willing to supply information "reasonable and relevant" to her need for public assistance, any discussion was not to take place at her |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | assistance, any discussion was not to take place at her home. The worker told Mrs. James that she was required by law to visit in her home and that refusal to *314 permit the visit would result in the termination of assistance. Permission was still denied. On May 13 the City Department of Social Services sent Mrs. James a notice of intent to discontinue assistance because of the visitation refusal. The notice advised the beneficiary of her right to a hearing before a review officer. The hearing was requested and was held on May Mrs. James appeared with an attorney at that hearing.[5] They continued to refuse permission for a worker to visit the James home, but again expressed willingness to cooperate and to permit visits elsewhere. The review officer ruled that the refusal was a proper ground for the termination of assistance. His written decision stated: "The home visit which Mrs. James refuses to permit is for the purpose of determining if there are any changes in her situation that might affect her eligibility to continue to receive Public Assistance, or that might affect the amount of such assistance, and to see if there are any social services which the Department of Social Services can provide to the family." A notice of termination issued on June Thereupon, without seeking a hearing at the state level, Mrs. James, individually and on behalf of Maurice, and purporting to act on behalf of all other persons similarly situated, instituted the present civil rights suit under 4 U.S. C. 183. She alleged the denial of rights guaranteed to her under the First, Third, Fourth, Fifth, Sixth, Ninth, Tenth, and Fourteenth Amendments, and under Subchapters IV and XVI of the Social Security Act and regulations issued thereunder. She further alleged that *315 she and her son have no income, resources, or support other than the benefits received under the AFDC program. She asked for declaratory and injunctive relief. A temporary restraining order was issued on June 13, and the three-judge District Court was convened. II The federal aspects of the AFDC program deserve mention. They are provided for in Subchapter IV, Part A, of the Social Security Act of 135, as amended, 4 U.S. C. 601-610 (164 ed. and Supp. V). Section 401 of the Act, 4 U.S. C. 601 (164 ed., Supp. V), specifies its purpose, namely, "encouraging the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance and rehabilitation and other services. to needy dependent children and the parents |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | and other services. to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life" The same section authorizes the federal appropriation for payments to States that qualify. Section 40, 4 U.S. C. 60 (164 ed., Supp. V), provides that a state plan, among other things, must "provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness"; must "provide that the State agency will make such reports as the Secretary [of Health, Education, and Welfare] may from time to time require"; must "provide that the State agency shall, in determining need, take into consideration any other income and resources of any child or relative claiming aid"; and must "provide that where the State agency has reason to believe that the home in which a relative and child receiving aid reside is unsuitable for the child because of the neglect, abuse, or exploitation of *316 such child it shall bring such condition to the attention of the appropriate court or law enforcement agencies in the State" Section 405, 4 U.S. C. 605, provides that "Whenever the State agency has reason to believe that any payments of aid made with respect to a child are not being or may not be used in the best interests of the child, the State agency may provide for such counselling and guidance services with respect to the use of such payments and the management of other funds by the relative in order to assure use of such payments in the best interests of such child, and may provide for advising such relative that continued failure to so use such payments will result in substitution therefor of protective payments or in seeking the appointment of a guardian or in the imposition of criminal or civil penalties" III When a case involves a home and some type of official intrusion into that home, as this case appears to do, an immediate and natural reaction is one of concern about Fourth Amendment rights and the protection which that Amendment is intended to afford. Its emphasis indeed is upon one of the most precious aspects of personal security in the home: "The right of the people to be secure in their persons houses, papers, and effects" This Court has characterized that right as "basic to a free society." ; And over the years the Court consistently has been most protective of the privacy of the |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | consistently has been most protective of the privacy of the dwelling. See, for example, ; ; ; In Camara MR. JUSTICE WHITE, after noting that the "translation of the abstract prohibition against `unreasonable searches and seizures' into workable guidelines for the decision of particular cases is a difficult task," went on to observe, "Nevertheless, one governing principle, justified by history and by current experience, has consistently been followed: except in certain carefully defined classes of cases, a search of private property without proper consent is `unreasonable' unless it has been authorized by a valid search warrant." 387 U.S., at -5. He pointed out, too, that one's Fourth Amendment protection subsists apart from his being suspected of criminal IV This natural and quite proper protective attitude, however, is not a factor in this case, for the seemingly obvious and simple reason that we are not concerned here with any search by the New York social service agency in the Fourth Amendment meaning of that term. It is true that the governing statute and regulations appear to make mandatory the initial home visit and the subsequent periodic "contacts" (which may include home visits) for the inception and continuance of aid. It is also true that the caseworker's posture in the home visit is perhaps, in a sense, both rehabilitative and investigative. But this latter aspect, we think, is given too broad a character and far more emphasis than it deserves if it is equated with a search in the traditional criminal law context. We note, too, that the visitation in itself is not forced or compelled, and that the beneficiary's denial of permission is not a criminal act. If consent to the visitation is withheld, no visitation takes *318 place. The aid then never begins or merely ceases, as the case may be. There is no entry of the home and there is no search. V If however, we were to assume that a caseworker's home visit, before or subsequent to the beneficiary's initial qualification for benefits, somehow (perhaps because the average beneficiary might feel she is in no position to refuse consent to the visit), and despite its interview nature, does possess some of the characteristics of a search in the traditional sense, we nevertheless conclude that the visit does not fall within the Fourth Amendment's proscription. This is because it does not descend to the level of unreasonableness. It is unreasonableness which is the Fourth Amendment's standard. ; (160). And Mr. Chief Justice Warren observed in Terry that "the specific content and incidents of this right must be shaped by |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | content and incidents of this right must be shaped by the context in which it is asserted." 3 U.S., at There are a number of factors that compel us to conclude that the home visit proposed for Mrs. James is not unreasonable: 1. The public's interest in this particular segment of the area of assistance to the unfortunate is protection and aid for the dependent child whose family requires such aid for that child. The focus is on the child and, further, it is on the child who is dependent. There is no more worthy object of the public's concern. The dependent child's needs are paramount, and only with hesitancy would we relegate those needs, in the scale of comparative values, to a position secondary to what the mother claims as her rights. The agency, with tax funds provided from federal as well as from state sources, is fulfilling a public trust. The State, working through its qualified welfare agency, *31 has appropriate and paramount interest and concern in seeing and assuring that the intended and proper objects of that tax-produced assistance are the ones who benefit from the aid it dispenses. Surely it is not unreasonable, in the Fourth Amendment sense or in any other sense of that term, that the State have at its command a gentle means, of limited extent and of practical and considerate application, of achieving that assurance. 3. One who dispenses purely private charity naturally has an interest in and expects to know how his charitable funds are utilized and put to work. The public, when it is the provider, rightly expects the same. It might well except more, because of the trust aspect of public funds, and the recipient, as well as the caseworker, has not only an interest but an obligation. 4. The emphasis of the New York statutes and regulations is upon the home, upon "close contact" with the beneficiary, upon restoring the aid recipient "to a condition of self-support," and upon the relief of his distress. The federal emphasis is no different. It is upon "assistance and rehabilitation," upon maintaining and strengthening family life, and upon "maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection." 4 U.S. C. 601 (164 ed., Supp. V); 37 U.S. 471, 47 and It requires cooperation from the state agency upon specified standards and in specified ways. And it is concerned about any possible exploitation of the child. 5. The home visit, it is true, is not required by federal statute or regulation.[6] But it has been noted that |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | federal statute or regulation.[6] But it has been noted that the *30 visit is "the heart of welfare administration"; that it affords "a personal, rehabilitative orientation, unlike that of most federal programs"; and that the "more pronounced service orientation" effected by Congress with the 156 amendments to the Social Security Act "gave redoubled importance to the practice of home visiting." Note, Rehabilitation, Investigation and the Welfare Home Visit, 7 Yale L. J. 746, 748 The home visit is an established routine in States besides New York.[7] 6. The means employed by the New York agency are significant. Mrs. James received written notice several days in advance of the intended home visit.[8] The date *31 was specified. Section 134-a of the New York Social Services Law, effective April 1, 167, and set forth in n. sets the tone. Privacy is emphasized. The applicant-recipient is made the primary source of information as to eligibility. Outside informational sources, other than public records, are to be consulted only with the beneficiary's consent. Forcible entry or entry under false pretenses or visitation outside working hours or snooping in the home are forbidden. HEW Handbook of Public Assistance Administration, pt. IV, 00 (a) and 300; 18 NYCRR 351.1, 351.6, and 351.7. All this minimizes any "burden" upon the homeowner's right against unreasonable intrusion. 7. Mrs. James, in fact, on this record presents no specific complaint of any unreasonable intrusion of her home and nothing that supports an inference that the desired home visit had as its purpose the obtaining of information as to criminal activity. She complains of no proposed visitation at an awkward or retirement hour. She suggests no forcible entry. She refers to no snooping. She describes no impolite or reprehensible conduct of any kind. She alleges only, in general and nonspecific terms, that on previous visits and, on information and belief, on visitation at the home of other aid recipients, "questions concerning personal relationships, beliefs and behavior are raised and pressed which are unnecessary for a determination of continuing eligibility." Paradoxically, this same complaint could be made of a conference held elsewhere than in the home, and yet this is what is sought by Mrs. James. The same complaint could be made of the census taker's questions. See MR. JUSTICE MARSHALL'S opinion, as United States Circuit Judge, in United 30 F.d 46 (CA 16), cert. denied, 371 U.S. 6. What Mrs. James appears to want from the agency that provides her and her infant son with the necessities for life is the right to receive those necessities upon her own *3 informational terms, |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | to receive those necessities upon her own *3 informational terms, to utilize the Fourth Amendment as a wedge for imposing those terms, and to avoid questions of any kind.[] 8. We are not persuaded, as Mrs. James would have us be, that all information pertinent to the issue of eligibility can be obtained by the agency through an interview at a place other than the home, or, as the District Court majority suggested, by examining a lease or a birth certificate, or by periodic medical examinations, or by interviews with school personnel. 303 F. Supp., at 43. Although these secondary sources might be helpful, they would not always assure verification of actual residence or of actual physical presence in the home, which are requisites for AFDC benefits,[10] or of impending medical needs. And, of course, little children, such as Maurice James, are not yet registered in school. The visit is not one by police or uniformed authority. It is made by a caseworker of some training[11] whose *33 primary objective is, or should be, the welfare, not the prosecution, of the aid recipient for whom the worker has profound responsibility. As has already been stressed, the program concerns dependent children and the needy families of those children. It does not deal with crime or with the actual or suspected perpetrators of crime. The caseworker is not a sleuth but rather, we trust, is a friend to one in need. 10. The home visit is not a criminal investigation, does not equate with a criminal investigation, and despite the announced fears of Mrs. James and those who would join her, is not in aid of any criminal proceeding. If the visitation serves to discourage misrepresentation or fraud, such a byproduct of that visit does not impress upon the visit itself a dominant criminal investigative aspect. And if the visit should, by chance, lead to the discovery of fraud and a criminal prosecution should follow,[1] then, even assuming that the evidence discovered upon the home visitation is admissible, an issue upon which we express no opinion, that is a routine and expected fact of life and a consequence no greater than that which necessarily ensues upon any other discovery by a citizen of criminal conduct. 11. The warrant procedure, which the plaintiff appears to claim to be so precious to her, even if civil in nature, is not without its seriously objectionable features in the welfare context. If a warrant could be obtained (the plaintiff affords us little help as to how it would be obtained), it presumably could be applied for |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | it would be obtained), it presumably could be applied for ex parte, its execution would require no notice, it would justify entry *34 by force, and its hours for execution[13] would not be so limited as those prescribed for home visitation. The warrant necessarily would imply conduct either criminal or out of compliance with an asserted governing standard. Of course, the force behind the warrant argument, welcome to the one asserting it, is the fact that it would have to rest upon probable cause, and probable cause in the welfare context, as Mrs. James concedes, requires more than the mere need of the caseworker to see the child in the home and to have assurance that the child is there and is receiving the benefit of the aid that has been authorized for it. In this setting the warrant argument is out of place. It seems to us that the situation is akin to that where an Internal Revenue Service agent, in making a routine civil audit of a tapayer's income tax return, asks that the taxpayer produce for the agent's review some proof of a deduction the taxpayer has asserted to his benefit in the computation of his tax. If the taxpayer refuses, there is, absent fraud, only a disallowance of the claimed deduction and a consequent additional tax. The taxpayer is fully within his "rights" in refusing to produce the proof, but in maintaining and asserting those rights a tax detriment results and it is a detriment of the taxpayer's own making. So here Mrs. James has the "right" to refuse the home visit, but a consequence in the form of cessation of aid, similar to the taxpayer's resultant additional tax, flows from that refusal. The choice is entirely hers, and nothing of constitutional magnitude is involved. VI and its companion case, See v. City of Seattle, both by a divided Court, are not inconsistent *35 with our result here. Those cases concerned, respectively, a refusal of entry to city housing inspectors checking for a violation of a building's occupancy permit, and a refusal of entry to a fire department representative interested in compliance with a city's fire code. In each case a majority of this Court held that the Fourth Amendment barred prosecution for refusal to permit the desired warrantless inspection. 35 U.S. 360 (15), a case that reached an opposing result and that concerned a request by a health officer for entry in order to check the source of a rat infestation, was pro tanto overruled. Both Frank and Camara involved dwelling quarters. See had to |
Justice Blackmun | 1,971 | 11 | majority | Wyman v. James | https://www.courtlistener.com/opinion/108223/wyman-v-james/ | Both Frank and Camara involved dwelling quarters. See had to do with a commercial warehouse. But the facts of the three cases are significantly different from those before us. Each concerned a true search for violations. Frank was a criminal prosecution for the owner's refusal to permit entry. So, too, was See. Camara had to do with a writ of prohibition sought to prevent an already pending criminal prosecution. The community welfare aspects, of course, were highly important, but each case arose in a criminal context where a genuine search was denied and prosecution followed. In contrast, Mrs. James is not being prosecuted for her refusal to permit the home visit and is not about to be so prosecuted. Her wishes in that respect are fully honored. We have not been told, and have not found, that her refusal is made a criminal act by any applicable New York or federal statute. The only consequence of her refusal is that the payment of benefits ceases. Important and serious as this is, the situation is no different than if she had exercised a similar negative choice initially and refrained from applying for AFDC benefits. If a statute made her refusal a criminal offense, and if this case were one concerning her prosecution under that statute, Camara and See would have conceivable pertinency. *36 VII Our holding today does not mean, of course, that a termination of benefits upon refusal of a home visit is to be upheld against constitutional challenge under all conceivable circumstances. The early morning mass raid upon homes of welfare recipients is not unknown. See 66 Cal. d 60, 45 P.d 3 ; Reich, Midnight Welfare Searches and the Social Security Act, 7 Yale L. J. 1347 (163). But that is not this case. Facts of that kind present another case for another day. We therefore conclude that the home visitation as structured by the New York statutes and regulations is a reasonable administrative tool; that it serves a valid and proper administrative purpose for the dispensation of the AFDC program; that it is not an unwarranted invasion of personal privacy; and that it violates no right guaranteed by the Fourth Amendment. Reversed and remanded with directions to enter a judgment of dismissal. It is so ordered. MR. JUSTICE WHITE concurs in the judgment and joins the opinion of the Court with the exception of Part IV thereof. MR. |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | This case raises important questions concerning the inter-relationship of the antimerger and private damages action provisions of the Clayton Antitrust Act. *479 I Petitioner is one of the two largest manufacturers of bowling equipment in the United Respondents are three of the 10 bowling centers owned by Treadway Companies, Inc. Since 195, petitioner has acquired and operated a large number of bowling centers, including six in the markets in which respondents operate. Respondents instituted this action contending that these acquisitions violated various provisions of the antitrust laws. In the late 1950's, the bowling industry expanded rapidly, and petitioner's sales of lanes, automatic pinsetters, and ancillary equipment rose accordingly.[1] Since this equipment requires a major capital expenditure$12,00 for each lane and pinsetter, App. A157most of petitioner's sales were for secured credit. In the early 190's, the bowling industry went into a sharp decline. Petitioner's sales quickly dropped to preboom levels. Moreover, petitioner experienced great difficulty in collecting money owed it; by the end of 194 over $100,000,000, or more than 25%, of petitioner's accounts were more than 90 days delinquent. at A1884. Repossessions rose dramatically, but attempts to sell or lease the repossessed equipment met with only limited success.[2] Because petitioner had borrowed close to $250,000,000 to finance its credit sales, at A1900, it was, as the Court of Appeals concluded, "in serious financial difficulty." NBO Industries Treadway Cos., To meet this difficulty, petitioner began acquiring and *480 operating defaulting bowling centers when their equipment could not be resold and a positive cash flow could be expected from operating the centers. During the seven years preceding the trial in this case, petitioner acquired 222 centers, 54 of which it either disposed of or closed. These acquisitions made petitioner by far the largest operator of bowling centers, with over five times as many centers as its next largest competitor. Petitioner's net worth in 195 was more than eight times greater, and its gross revenue more than seven times greater, than the total for the 11 next largest bowling chains. App. A175. Nevertheless, petitioner controlled only 2% of the bowling centers in the United at A109. At issue here are acquisitions by petitioner in the three markets in which respondents are located: Pueblo, Colo., Poughkeepsie, N. Y., and Paramus, N. J. In 195, petitioner acquired one defaulting center in Pueblo, one in Poughkeepsie, and two in the Paramus area. In 199, petitioner acquired a third defaulting center in the Paramus market, and in 1970 petitioner acquired a fourth. Petitioner closed its Poughkeepsie center in 199 after three years of unsuccessful operation; the Paramus |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | in 199 after three years of unsuccessful operation; the Paramus center acquired in 1970 also proved unsuccessful, and in March 1973 petitioner gave notice that it would cease operating the center when its lease expired. The other four centers were operational at the time of trial. Respondents initiated this action in June 19, alleging, inter alia, that these acquisitions might substantially lessen competition or tend to create a monopoly in violation of 7 of the Clayton Act, 15 U.S. C. 18.[3] Respondents sought *481 damages, pursuant to 4 of the Act, 15 U.S. C. 15, for three times "the reasonably expectable profits to be made [by respondents] from the operation of their bowling centers." App. A24. Respondents also sought a divestiture order, an injunction against future acquisitions, and such "other further and different relief" as might be appropriate under 1 of the Act, 15 U.S. C. 2. App. A27. Trial was held in the spring of 1973, following an initial mistrial due to a hung jury. To establish a 7 violation, respondents sought to prove that because of its size, petitioner had the capacity to lessen competition in the markets it had entered by driving smaller competitors out of business. To establish damages, respondents attempted to show that had petitioner allowed the defaulting centers to close, respondents' profits would have increased. At respondents' request, the jury was instructed in accord with respondents' theory as to the nature of the violation and the basis for damages. The jury returned a verdict in favor of respondents in the amount of $2,358,030, which represented the minimum estimate by respondents of the additional income they would have realized had the acquired centers been closed. at A1737. As required by law, the District Court trebled the damages.[4] It also awarded respondents costs and attorneys' *482 fees totaling $44,977.32, and, sitting as a court of equity, it ordered petitioner to divest itself of the centers involved here, Treadway Petitioner appealed.[5] The Court of Appeals, while endorsing the legal theories upon which respondents' claim was based, reversed the judgment and remanded the case for further proceedings. NBO Industries Treadway The court found that a properly instructed jury could have concluded that petitioner was a "giant" whose entry into a "market of pygmies" might lessen horizontal retail competition, because such a "giant" "has greater ease of entry into the market, can accomplish cost-savings by investing in new equipment, can resort to low or below cost sales to sustain itself against competition for a longer period, and can obtain more favorable credit terms." The court also found that there |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | more favorable credit terms." The court also found that there was sufficient evidence to permit a jury to conclude that but for petitioner's actions, the acquired centers would have gone out of business. *483 at 273, 275-. And the court held that if a jury were to make such findings, respondents would be entitled to damages for threefold the income they would have earned. After reviewing the instructions on these issues, however, the court decided that the jury had not been properly charged and that therefore a new trial was required.[] It also decided that since "an essential predicate" for the District Court's grant of equitable relief was the jury verdict on the 7 claim, the equitable decree should be vacated as well. And it concluded that in any event equitable relief "should be restricted to preventing those practices by which a deep pocket market entrant harms *484 competition [D]ivestiture was simply inappropriate." Both sides petitioned this Court for writs of certiorari. Brunswick's petition challenged the theory the Court of Appeals had approved for awarding damages; the plaintiffs' petition challenged the Court of Appeals' conclusions with respect to the jury instructions and the appropriateness of a divestiture order.[7] We granted Brunswick's petition.[8] II The issue for decision is a narrow one. Petitioner does not presently contest the Court of Appeals' conclusion that a properly instructed jury could have found the acquisitions unlawful. Nor does petitioner challenge the Court of Appeals' determination that the evidence would support a finding that had petitioner not acquired these centers, they would have gone out of business and respondents' income would have increased. Petitioner questions only whether antitrust damages are available where the sole injury alleged is that competitors were continued in business, thereby denying respondents an anticipated increase in market shares.[9] *485 To answer that question it is necessary to examine the anti-merger and treble-damages provisions of the Clayton Act. Section 7 of the Act proscribes mergers whose effect "may be substantially to lessen competition, or to tend to create a monopoly." (Emphasis added.) It is, as we have observed many times, a prophylactic measure, intended "primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil" United See also Brown Shoe ; United ; United ; United ; ; Gulf Oil v. Copp Paving Section 4, in contrast, is in essence a remedial provision. It provides treble damages to "[a]ny person who shall be injured in his business or property by reason of anything forbidden in the antitrust laws" Of course, treble damages also play an important role in |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | Of course, treble damages also play an important role in penalizing wrongdoers and deterring wrongdoing, as we also have frequently observed. Perma Life Mufflers v. International Parts ; Fortner Enterprises v. United Steel ; Zenith Radio v. Hazeltine ; It nevertheless is true that the treble-damages provision, which makes awards available only to injured parties, and measures the awards by a *48 multiple of the injury actually proved, is designed primarily as a remedy.[10] Intermeshing a statutory prohibition against acts that have a potential to cause certain harms with a damages action intended to remedy those harms is not without difficulty. Plainly, to recover damages respondents must prove more than that petitioner violated 7, since such proof establishes only that injury may result. Respondents contend that the only additional element they need demonstrate is that they are in a worse position than they would have been had petitioner not committed those acts. The Court of Appeals agreed, *487 holding compensable any loss "causally linked" to "the mere presence of the violator in the market." -273. Because this holding divorces antitrust recovery from the purposes of the antitrust laws without a clear statutory command to do so, we cannot agree with it. Every merger of two existing entities into one, whether lawful or unlawful, has the potential for producing economic readjustments that adversely affect some persons. But Congress has not condemned mergers on that account; it has condemned them only when they may produce anticompetitive effects. Yet under the Court of Appeals' holding, once a merger is found to violate 7, all dislocations caused by the merger are actionable, regardless of whether those dislocations have anything to do with the reason the merger was condemned. This holding would make 4 recovery entirely fortuitous, and would authorize damages for losses which are of no concern to the antitrust laws.[11] Both of these consequences are well illustrated by the facts of this case. If the acquisitions here were unlawful, it is because they brought a "deep pocket" parent into a market of "pygmies." Yet respondents' injurythe loss of income that would have accrued had the acquired centers gone bankrupt bears no relationship to the size of either the acquiring company or its competitors. Respondents would have suffered the identical "loss"but no compensable injuryhad the acquired centers instead obtained refinancing or been purchased by "shallow pocket" parents, as the Court of Appeals itself acknowledged, 523 F.2d,[12] Thus, respondents' injury was not of "the type that the statute was *488 intended to forestall," Wyandotte[13] But the antitrust laws are not merely indifferent to the injury |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | the antitrust laws are not merely indifferent to the injury claimed here. At base, respondents complain that by acquiring the failing centers petitioner preserved competition, thereby depriving respondents of the benefits of increased concentration. The damages respondents obtained are designed to provide them with the profits they would have realized had competition been reduced. The antitrust laws, however, were enacted for "the protection of competition, not competitors," Brown Shoe It is inimical to the purposes of these laws to award damages for the type of injury claimed here. Of course, Congress is free, if it desires, to mandate damages awards for all dislocations caused by unlawful mergers despite the peculiar consequences of so doing. But because of these consequences, "we should insist upon a clear expression of a congressional purpose," before attributing such an intent to Congress. We can find no such expression in either the language or the legislative history of 4. To the contrary, it is far from clear that the loss of windfall profits that would have accrued had the acquired centers failed even constitutes "injury" within the meaning of 4. And it is quite clear that if respondents were injured, it was not "by reason of anything forbidden in the antitrust laws": while respondents' loss occurred "by reason of" the unlawful acquisitions, it did not occur "by reason of" that which made the acquisitions unlawful. *489 We therefore hold that for plaintiffs to recover treble damages on account of 7 violations, they must prove more than injury causally linked to an illegal presence in the market. Plaintiffs must prove antitrust injury, which is to say injury of the type the antitrust laws were intended to prevent and that flows from that which makes defendants' acts unlawful. The injury should reflect the anticompetitive effect either of the violation or of anticompetitive acts made possible by the violation. It should, in short, be "the type of loss that the claimed violations would be likely to cause." Zenith Radio v. Hazeltine[14] III We come, then, to the question of appropriate disposition of this case. At the very least, petitioner is entitled to a new trial, not only because of the instructional errors noted by the Court of Appeals that are not at issue here, see n. but also because the District Court's instruction *490 as to the basis for damages was inconsistent with our holding as outlined above. Our review of the record, however, persuades us that a new trial on the damages claim is unwarranted. Respondents based their case solely on their novel damages theory which we have |
Justice Marshall | 1,977 | 15 | majority | Brunswick Corp. v. Pueblo Bowl-O-Mat, Inc. | https://www.courtlistener.com/opinion/109586/brunswick-corp-v-pueblo-bowl-o-mat-inc/ | case solely on their novel damages theory which we have rejected. While they produced some conclusory testimony suggesting that in operating the acquired centers petitioner had abused its deep pocket by engaging in anticompetitive conduct,[15] they made no attempt to prove that they had lost any income as a result of such predation.[1] Rather, their entire proof of damages was based on their claim to profits that would have been earned had the acquired centers closed. Since respondents did not prove any cognizable damages and have not offered any justification for allowing respondents, after two trials and over 10 years of litigation, yet a third opportunity to do so, it follows that, petitioner is entitled, in accord with its motion made pursuant to Rule 50 (b), to judgment on the damages claim notwithstanding the verdict. Neely v. Eby Constr. 38 U.S. 317, 32-330 ; United v. Generes, 10-107 *491 Respondents' complaint also prayed for equitable relief, and the Court of Appeals held that if respondents established a 7 violation, they might be entitled to an injunction against "those practices by which a deep pocket market entrant harms competition." 523 F.2d, Because petitioner has not contested this holding, respondents remain free, on remand, to seek such a decree. The judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Douglas | 1,972 | 10 | dissenting | Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc. | https://www.courtlistener.com/opinion/108501/evansville-vanderburgh-airport-authority-dist-v-delta-airlines-inc/ | These cases are governed by which must be overruled if we are to sustain the instant taxes. One case involves an Indiana tax of $1 on every enplaning commercial airline passenger at the Evansville Airport. The other involves a New Hampshire $1 tax on every passenger enplaning a scheduled commercial aircraft with a gross weight of 12,500 pounds or more and a 50¢ tax on every passenger enplaning such aircraft with a gross weight of less than 12,500 pounds. The carriers are made responsible for paying, accounting for, and remitting the fee to the local authority. decided before the Fourteenth Amendment, struck down a state law which levied a *723 $1 tax on every person leaving the State by rail, stage coach, or other common carrier. Mr. Justice Miller, speaking for the Court, said the citizen had rights which the tax abridged: "He has a right to free access to its sea-ports, through which all the operations of foreign trade and commerce are conducted, to the sub-treasuries, the land offices, the revenue offices, and the courts of justice in the several States, and this right is in its nature independent of the will of any State over whose soil he must pass in the exercise of it." And he quoted with approval from the dissenting opinion in the Passenger Cases, 492: " `For all the great purposes for which the Federal government was formed we are one people, with one common country. We are all citizens of the United States, and as members of the same community must have the right to pass and repass through every part of it without interruption, as freely as in our own States. And a tax imposed by a State, for entering its territories or harbors, is inconsistent with the rights which belong to citizens of other States as members of the Union, and with the objects which that Union was intended to attain. Such a power in the States could produce nothing but discord and mutual irritation, and they very clearly do not possess it.' " -49. Usually the right to travel has been founded on the Commerce Clause.[1] See United Some, including myself, have thought the right to travel was a privilege and immunity of national *724 (DOUGLAS, J., concurring). Whatever the source, the right exists.[3] See ; *725 ; (separate opinion of BRENNAN, WHITE, and MARSHALL, JJ.); U.S. 618, 630-631; United -758. Heretofore, we have held that a tax imposed on a carrier but measured by the number of passengers is no different from a direct exaction upon the passengers themselves, |
Justice Douglas | 1,972 | 10 | dissenting | Evansville-Vanderburgh Airport Authority Dist. v. Delta Airlines, Inc. | https://www.courtlistener.com/opinion/108501/evansville-vanderburgh-airport-authority-dist-v-delta-airlines-inc/ | no different from a direct exaction upon the passengers themselves, whether or not the carrier is authorized to collect the tax from the passengers. ; State Freight Tax Case, To be sure, getting onto a plane is an intrastate act. But a tax imposed on a local activity that is related to interstate commerce is valid only if the local activity is not such an integral part of interstate commerce that it cannot be realistically separated from it.[4]Michigan-Wisconsin Pipe Line In that case the tax struck down was the tax on gas that had been processed for interstate useand a tax "on the exit of the gas from the State." We held that that exit was "a part of interstate commerce itself." The same is true here, for the step of the passenger enplaning the aircraft is but an instant away from and an inseparable part of an interstate flight. Of course interstate commerce can be made to pay its fair share of the cost of the local government whose protection it enjoys. But though a local resident can be made to pay taxes to support his community, he cannot be required to pay a fee for making a speech or exercising any other First Amendment right. Like prohibitions obtain when licensing is exacted for exercising constitutional rights. ; ; Heretofore we have treated the right to participate in interstate commerce in precisely the same way on the theory that the "power to tax the exercise of a privilege is the power to control or suppress its enjoyment." I adhere to that view; federal constitutional rights should neither be "chilled" nor "suffocated." Are we now to assume that Calvert and Murdock are no longer the law? I would affirm the Indiana judgment and reverse New Hampshire's. |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | During the 1990's, human rights and labor groups, newspaper editorial writers, and others severely criticized the Nike corporation for its alleged involvement in disreputable labor practices abroad. See Lodging of Petitioners 7-8, 96-118, 127-, 232-235, 272-273. This case focuses upon whether, and to what extent, the First Amendment protects certain efforts by Nike to respond efforts that took the form of written communications in which Nike explained or denied many of the charges made. The case arises under provisions of California law that authorize a private individual, acting as a "private attorney general," effectively to prosecute a business for unfair competition or false advertising. Cal. Bus. & Prof. Code Ann. 17200, 17204, 17500, 17535 The respondent, Marc Kasky, has claimed that Nike made false or misleading commercial statements. And he bases this claim upon statements that Nike made in nine specific documents, including press releases and letters to the editor of a newspaper, to institutional customers, and to representatives of nongovernmental organizations. Brief for Respondent 5. The California Court of Appeal affirmed dismissal of Kasky's complaint without leave to amend on the ground that *666 "the record discloses noncommercial speech, addressed to a topic of public interest and responding to public criticism of Nike's labor practices." App. to Pet. for Cert. 78a. The Court of Appeal added that it saw "no merit to [Kasky's] scattershot argument that he might still be able to state a cause of action on some theory allowing content-related abridgement of noncommercial speech." at 79a. Kasky appealed to the California Supreme Court. He focused on the commercial nature of the communications at issue, while pointing to language in this Court's cases stating that the First Amendment, while offering protection to truthful commercial speech, does not protect false or misleading commercial speech, see Central Gas & Elec. Kasky did not challenge the lower courts' denial of leave to amend his complaint. He also conceded that, if Nike's statements fell outside the category of "commercial speech," the First Amendment protected them and "the ultimate issue is resolved in Nike's favor." Appellant's Brief on the Merits in No. S087859 (Cal.), p. 1; accord, Appellant's Reply Brief in No. S087859 (Cal.), pp. 1-2. The California Supreme Court held that the speech at issue falls within the category of "commercial speech." Consequently, the California Supreme Court concluded, the First Amendment does not protect Nike's statements insofar as they were false or misleading regardless of whatever role they played in a public debate. Hence, according to the California Supreme Court, the First Amendment does not bar Kasky's lawsuit a |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | the First Amendment does not bar Kasky's lawsuit a lawsuit that alleges false advertising and related unfair competition (which, for ease of exposition, I shall henceforth use the words "false advertising" to describe). The basic issue presented here is whether the California Supreme Court's ultimate holding is legally correct. Does the First Amendment permit Kasky's false advertising "prosecution" to go forward? *667 After receiving 34 briefs on the merits (including 31 amicus briefs) and hearing oral argument, the Court dismisses the writ of certiorari, thereby refusing to decide the questions presented, at least for now. In my view, however, the questions presented directly concern the freedom of Americans to speak about public matters in public debate, no jurisdictional rule prevents us from deciding those questions now, and delay itself may inhibit the exercise of constitutionally protected rights of free speech without making the issue significantly easier to decide later on. Under similar circumstances, the Court has that failure to review an interlocutory order entails "an inexcusable delay of the benefits [of appeal] Congress intended to grant." I believe delay would be similarly wrong here. I would decide the questions presented, as we initially intended. I Article III's "case or controversy" requirement does not bar us from hearing this case. Article III requires a litigant to have "standing" i. e., to show that he has suffered "injury in fact," that the injury is "fairly traceable" to actions of the opposing party, and that a favorable decision will likely redress the harm. Kasky, the state-court plaintiff in this case, might indeed have had trouble meeting those requirements, for Kasky's complaint specifically states that Nike's statements did not harm Kasky personally. Lodging of Petitioners 4-5 (¶ 8). But Nike, the state-court defendant not Kasky, the plaintiff has brought the case to this Court. And Nike has standing to complain here of Kasky's actions. These actions threaten Nike with "injury in fact." As a "private attorney general," Kasky is in effect enforcing a state law that threatens to discourage Nike's speech. See Cal. Bus. & Prof. Code Ann. 17204, 17535 This Court has often that the enforcement of such a *668 law works constitutional injury even if enforcement are not complete indeed, even if enforcement is no more than a future threat. See, e. g., ; Cf. First Nat. of ; ("The very possibility of having to engage in litigation, an expensive and protracted process, is threat enough"). And a threat of a civil action, like the threat of a criminal action, can chill speech. See New York Here, |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | a criminal action, can chill speech. See New York Here, of course, an action to enforce California's laws laws that discourage certain kinds of speech amounts to more than just a genuine, future threat. It is a present reality one that discourages Nike from engaging in speech. It thereby creates "injury in fact." Further, that injury is directly "traceable" to Kasky's pursuit of this lawsuit. And this Court's decision, if favorable to Nike, can "redress" that injury. Since Nike, not Kasky, now seeks to bring this case to federal court, why should Kasky's standing problems make a critical difference? In ASARCO this Court specified that a defendant with standing may complain of an adverse state-court judgment, even if the other party the party who brought the suit in state court and obtained that judgment would have lacked standing to bring a case in federal court. See also Virginia v. Hicks, ante, at 120-121. *669 In ASARCO, state taxpayers (who ordinarily lack federal "standing") sued a state agency in state court, seeking a judgment declaring that the State's mineral leasing procedures violated federal law. See ASARCO and other mineral leaseholders intervened as defendants. The plaintiff taxpayers obtained a state-court judgment declaring that the State's mineral leasing procedures violated federal law. The defendant mineral leaseholders asked this Court to review the judgment. And this Court held that the leaseholders had standing to seek reversal of that judgment here. The Court wrote: "When a state court has issued a judgment in a case where plaintiffs in the original action had no standing to sue under the principles governing the federal courts, we may exercise our jurisdiction on certiorari [1] if the judgment of the state court causes direct, specific, and concrete injury to the parties who petition for our review, where [2] the requisites of a case or controversy are also met." No one denies that "requisites of a case or controversy" other than standing are met here. But is there "direct, specific, and concrete injury"? In ASARCO itself, such "injury" consisted of the threat, arising out of the state court's determination, that the defendants' leases might later be canceled (if, say, a third party challenged those leases in later and showed they were not "made for `true value'"). at 611-612, Here that "injury" consists of the threat, arising out of the state court's determination, that defendant Nike's speech on public matters might be "chilled" immediately and legally restrained in the future. See Where is the meaningful difference? *670 I concede that the state-court determination in ASARCO was |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | *670 I concede that the state-court determination in ASARCO was more "final" in the sense that it unambiguously ordered a declaratory judgment, see -612 while the state-court determination here, where such declaratory relief was not sought, takes the form of a more intrinsically interlocutory holding, see ante, at 662, and n. 4 (Stevens, J., concurring). But with respect to "standing," what possible difference could that circumstance make? The state court in ASARCO finally resolved federal questions related to state leasehold procedures; the state court here finally resolved the basic free speech issue deciding that Nike's statements constituted "commercial speech" which, when "false or misleading," the government "may entirely prohibit," After answering the basic threshold question, the state court in ASARCO left other, more specific questions for resolution in further potential or pending -612. The state court here did the same. In ASARCO, the relevant further might have taken place in a new lawsuit; here they would have taken place in the same lawsuit. But that difference has little bearing on the likelihood of injury. Indeed, given the nature of the speech-chilling injury here and the fact that it is likely to occur immediately, I should think that constitutional standing in this case would flow from standing in ASARCO a fortiori. II No federal statute prevents us from hearing this case. The relevant statute limits our jurisdiction to "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had." 28 U.S. C. 1257(a) But the California Supreme Court determination before us, while technically an interim decision, is a "final judgment or decree" for purposes of this statute. *671 That is because this Court has interpreted the statute's phrase "final judgment" to refer, in certain circumstances, to a state court's final determination of a federal issue, even if the determination of that issue occurs in the midst of ongoing litigation. Broadcasting In doing so, the Court has said that it thereby takes a "pragmatic approach," not a "mechanical" approach, to "determining finality." at 486 And it has set forth several criteria that determine when an interim state-court judgment is "final" for purposes of the statute, thereby permitting our consideration of the federal matter at issue. The four criteria relevant here are those determining whether a decision falls within what is known as 's "fourth category" or "fourth exception." They consist of the following: (1) "the federal issue has been finally decided in the state courts"; (2) in further pending "the party seeking review here might prevail on the merits on nonfederal grounds, thus |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | here might prevail on the merits on nonfederal grounds, thus rendering unnecessary review of the federal issue by this Court"; (3) "reversal of the state court on the federal issue would be preclusive of any further litigation on the relevant cause of action rather than merely controlling the nature and character of, or determining the admissibility of evidence in, the state still to come"; and (4) "a refusal immediately to review the state-court decision might seriously erode federal policy." Each of these four conditions is satisfied in this case. A Viewed from 's "pragmatic" perspective, "the federal issue has been finally decided in the state courts." at *672 482, 486. The California Supreme Court considered nine specific instances of Nike's communications those upon which Kasky says he based his legal claims. Brief for Respondent 5. These include (1) a letter from Nike's Director of Sports Marketing to university presidents and athletic directors presenting "facts" about Nike's labor practices; (2) a 30-page illustrated pamphlet about those practices; (3) a press release (posted on Nike's Web site) commenting on those practices; (4) a posting on Nike's Web site about its "code of conduct"; (5) a document on Nike's letterhead sharing its "perspective" on the labor controversy; (6) a press release responding to "[s]weatshop [a]llegations"; (7) a letter from Nike's Director of Labor Practices to the Chief Executive Officer of YWCA of America, discussing criticisms of its labor practices; (8) a letter from Nike's European public relations manager to a representative of International Restructuring Education Network Europe, discussing Nike's practices; and (9) a letter to the editor of The New York taking issue with a columnist's criticisms of Nike's practices. ; see also Lodging of Petitioners 121-125, 182-191, 198-230, 270, 285, 322-324. The California Supreme Court then held that all this speech was "commercial speech" and consequently the "governmen[t] may entirely prohibit" that speech ifit is "false or misleading." The California Supreme Court thus "finally decided" the federal issue whether the First Amendment protects the speech in question from legal attack on the ground that it is "false or misleading." According to the California Supreme Court, nothing at all remains to be decided with respect to that federal question. If we permit the California Supreme Court's decision to stand, in all likelihood this litigation will now simply seek to determine whether Nike's statements were false or misleading, and perhaps whether Nike was negligent in making those statements matters involving questions of California law. *673 I concede that some other, possibly related federal constitutional issue might arise upon remand for trial. |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | related federal constitutional issue might arise upon remand for trial. But some such likelihood is always present in ongoing litigation, particularly where, as in past First Amendment cases, this Court reviews interim state-court decisions regarding, for example, requests for a temporary injunction or a stay pending appeal, or (as here) denial of a motion to dismiss a complaint. E. g., National Socialist Party of (denial of a stay pending appeal); Organization for a Better ; Some such likelihood was present in itself. The plaintiff, the father of a rape victim, sued a newspaper in state court, asserting a right to damages under state law, which forbade publication of a rape victim's name. The trial court, believing that the statute imposed strict liability on the newspaper, granted summary judgment in favor of the victim. See Broadcasting rev'd, The State Supreme Court affirmed in part and reversed in part. That court agreed with the plaintiff that state law provided a cause of action and that the cause of action was consistent with the First 231 Ga., at 200 S. E. 2d, at However, the State Supreme Court disagreed about the standard of liability. Rather than strict liability, the standard, it suggested, was one of "wilful or negligent disregard for the fact that reasonable men would find the invasion highly offensive." And it remanded the case for trial. The likelihood that further would address federal constitutional issues concerning the relation between, for instance, the nature of the privacy invasion, the defendants' state of mind, and the First Amendment would seem to have been far higher there than in any further here. Despite that likelihood, and because the State Supreme Court held in effect that the First Amendment *674 did not protect the speech at issue, this Court held that its determination of that constitutional question was "plainly final." California's Supreme Court has made a similar holding, and its determination of the federal issue is similarly "final." B The second condition specifies that, in further the "party seeking review here" i. e., Nike "might prevail on the merits on nonfederal grounds." If Nike shows at trial that its statements are neither false nor misleading, nor otherwise "unfair" under California law, Cal. Bus. & Prof. Code Ann. 17200, 17500 it will show those statements did not constitute unfair competition or false advertising under California law a non-federal ground. And it will "prevail on the merits on nonfederal grounds," 420 U. S., The second condition is satisfied. C The third condition requires that "reversal of the state court on the federal |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | requires that "reversal of the state court on the federal issue. be preclusive of any further litigation on the relevant cause of action." Taken literally, this condition is satisfied. An outright reversal of the California Supreme Court would reinstate the judgment of the California intermediate court, which affirmed dismissal of the complaint without leave to It would forbid Kasky to proceed insofar as Kasky's state-law claims focus on the nine documents previously discussed. And Kasky has conceded that his claims rest on statements made in those documents. Brief for Respondent 5. I concede that this Court might not reverse the California Supreme Court outright. It might take some middle ground, neither affirming nor fully reversing, that permits this litigation to continue. See ante, at 659-660 (Stevens, J., concurring). But why is that possibility relevant? The *675 third condition specifies that "reversal" not some other disposition will preclude "further litigation." The significance of this point is made clear by our prior cases. In this Court jurisdiction despite the fact that it might have chosen a middle First Amendment ground perhaps, for example, precluding liability (for publication of a rape victim's name) where based on negligence, but not where based on malice. And such an intermediate ground, while producing a judgment that the State Supreme Court decision was erroneous, would have permitted the litigation to go forward. Cf. Brief for Appellants in Broadcasting O. T. No. 73-938, p. 68, n. 127 (arguing that "`summary judgment, rather than trial on the merits, is a proper vehicle for affording constitutional protection'"). Similarly in Miami Herald Publishing the Court might have held that the Constitution permits a State to require a newspaper to carry a candidate's reply to an editorial but only in certain circumstances thereby potentially leaving a factual issue whether those circumstances applied. Cf. Brief for Appellant in Miami Herald Publishing O. T. No. 73-797, pp. 26-27, and n. 60 (noting that the State Supreme Court based its decision in part on a conclusion, unsupported by record evidence, that control of mass media had become substantially concentrated). One can imagine similar intermediate possibilities in virtually every case in which the Court has this condition satisfied, including those involving technical questions of statutory jurisdiction and venue, cf. ante, at 659 (Stevens, J., concurring). Conceivably, one might argue that the third condition is not satisfied here despite literal compliance, see at 674 and this page, on the ground that, from a pragmatic perspective, outright reversal is not a very realistic possibility. But that proposition simply is not so. In my |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | possibility. But that proposition simply is not so. In my view, the probabilities are precisely the contrary, and a true reversal is a highly realistic possibility. *676 To understand how I reach this conclusion, the reader must recall the nature of the holding under review. The California Supreme Court held that certain specific communications, exemplified by the nine documents upon which Kasky rests his case, fall within that aspect of the Court's commercial speech doctrine that says the First Amendment protects only truthful commercial speech; hence, to the extent commercial speech is false or misleading, it is unprotected. See The Court, however, has added, in commercial speech cases, that the First Amendment "`embraces at the least the liberty to discuss publicly and truthfully all matters of public concern.'" Consolidated Edison Co. of N. ; accord, Central -, n. 5. And in other contexts the Court has held that speech on matters of public concern needs "`breathing space'" potentially incorporating certain false or misleading speech in order to survive. New York ; see also, e. g., ; This case requires us to reconcile these potentially conflicting principles. In my view, a proper resolution here favors application of the last mentioned public-speech principle, rather than the first mentioned commercial-speech principle. Consequently, I would apply a form of heightened scrutiny to the speech regulations in question, and I believe that those regulations cannot survive that scrutiny. First, the communications at issue are not purely commercial in nature. They are better characterized as involving a mixture of commercial and noncommercial (public-issue-oriented) elements. The document least likely to warrant protection a letter written by Nike to university presidents and athletic directors has several commercial characteristics. See Appendix, infra (reproducing pages 190 and 191 of Lodging of Petitioners). As the California Supreme Court *677 implicitly it was written by a "commercial speaker" (Nike), it is addressed to a "commercial audience" (potential institutional buyers or contractees), and it makes "representations of fact about the speaker's own business operations" (labor conditions). See, e. g., But that letter also has other critically important and, I believe, predominant noncommercial characteristics with which the commercial characteristics are "inextricably intertwined." For one thing, the letter appears outside a traditional advertising format, such as a brief television or newspaper advertisement. It does not propose the presentation or sale of a product or any other commercial transaction, United Rather, the letter suggests that its contents might provide "information useful in discussions" with concerned faculty and students. Lodging of Petitioners 190. On its face, it seeks to convey information to "a |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | On its face, it seeks to convey information to "a diverse audience," including individuals who have "a general curiosity about, or genuine interest in," the public controversy surrounding Nike, For another thing, the letter's content makes clear that, in context, it concerns a matter that is of significant public interest and active controversy, and it describes factual matters related to that subject in detail. In particular, the letter describes Nike's labor practices and responds to criticism of those practices, and it does so because those practices themselves play an important role in an existing public debate. This debate was one in which participants advocated, or opposed, public collective action. See, e. g., Lodging of Petitioners 143 (article on student protests), 232-236 (fact sheet with "Boycott Nike" heading). See generally That the letter is factual in content does not argue against First Amendment protection, for facts, sometimes facts alone, will sway our views on issues of public policy. These circumstances of form and content distinguish the speech at issue here from the more purely "commercial speech" described in prior cases. See, e. g., United at (commercial speech "usually defined as speech that does no more than propose a commercial transaction" ); Board of Trustees of State Univ. of N. ; Central (commercial speech defined as "expression related solely to the economic interests of the speaker and its audience" ). The speech here is unlike speech say, the words "dolphinsafe tuna" that commonly appears in more traditional advertising or labeling contexts. And it is unlike instances of speech where a communication's contribution to public debate is peripheral, not central, cf. at 2-, n. 5. At the same time, the regulatory regime at issue here differs from traditional speech regulation in its use of private attorneys general authorized to impose "false advertising" liability even though they themselves have suffered no harm. See Cal. Bus. & Prof. Code Ann. 17204, 17535 In this respect, the regulatory context is unlike most traditional false advertising regulation. And the "false advertising" context differs from other regulatory contexts say, securities regulation where a different balance of concerns calls for different applications of First Amendment principles. Cf. These three sets of circumstances taken together circumstances of format, content, and regulatory context warrant *679 treating the regulations of speech at issue differently from regulations of purer forms of commercial speech, such as simple product advertisements, that we have reviewed in the past. And, where all three are present, I believe the First Amendment demands heightened scrutiny. Second, I doubt that this particular instance of |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | heightened scrutiny. Second, I doubt that this particular instance of regulation (through use of private attorneys general) can survive heightened scrutiny, for there is no reasonable "fit" between the burden it imposes upon speech and the important governmental "`interest served,'" Rather, the burden imposed is disproportionate. I do not deny that California's system of false advertising regulation including its provision for private causes of action furthers legitimate, traditional, and important public objectives. It helps to maintain an honest commercial marketplace. It thereby helps that marketplace better allocate private goods and services. See Virginia Bd. of It also helps citizens form "intelligent opinions as to how [the marketplace] ought to be regulated or altered." But a private "false advertising" action brought on behalf of the State, by one who has suffered no injury, threatens to impose a serious burden upon speech at least if extended to encompass the type of speech at issue under the standards of liability that California law provides, see Cal. Bus. & Prof. Code Ann. 17200, 17500 (establishing regimes of strict liability, as well as liability for negligence); The delegation of state authority to private individuals authorizes a purely ideological plaintiff, convinced that his opponent is not telling the truth, to bring into the courtroom the kind of political battle better waged in other forums. Where that political battle is hard fought, such plaintiffs potentially constitute *680 a large and hostile crowd freely able to bring prosecutions designed to vindicate their beliefs, and to do so unencumbered by the legal and practical checks that tend to keep the energies of public enforcement agencies focused upon more purely economic harm. Cf. Forsyth ; Bantam Books, That threat means a commercial speaker must take particular care considerably more care than the speaker's noncommercial opponents when speaking on public matters. A large organization's unqualified claim about the adequacy of working conditions, for example, could lead to liability, should a court conclude after hearing the evidence that enough exceptions exist to warrant qualification even if those exceptions were unknown (but perhaps should have been known) to the speaker. Uncertainty about how a court will view these, or other, statements, can easily chill a speaker's efforts to engage in public debate particularly where a "false advertising" law, like California's law, imposes liability based upon negligence or without fault. See 418 U. S., at ; At the least, they create concern that the commercial speaker engaging in public debate suffers a handicap that noncommercial opponents do not. See First Nat. -786; see also At the same |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | not. See First Nat. -786; see also At the same time, it is difficult to see why California needs to permit such actions by private attorneys general at least with respect to speech that is not "core" commercial speech but is entwined with, and directed toward, a more general public debate. The Federal Government regulates unfair competition and false advertising in the absence of such suits. 15 U.S. C. 41 et seq. As far as I can tell, California's delegation of the government's enforcement authority to private individuals is not traditional, and may be unique, Tr. of Oral Arg. 42. I do not see how "false advertising" *681 regulation could suffer serious impediment if the Constitution limited the scope of private attorney general actions to circumstances where more purely commercial and less public-debate-oriented elements predominate. As the historical treatment of speech in the labor context shows, substantial government regulation can coexist with First Amendment protections designed to provide room for public debate. Compare, e. g., with ; These reasons convince me that it is likely, if not highly probable, that, if this Court were to reach the merits, it would hold that heightened scrutiny applies; that, under the circumstances here, California's delegation of enforcement authority to private attorneys general disproportionately burdens speech; and that the First Amendment consequently forbids it. Returning to the procedural point at issue, I believe this discussion of the merits shows that not only will "reversal" of the California Supreme Court "on the federal issue" prove "preclusive of any further litigation on the relevant cause of action," 420 U. S., but also such "reversal" is a serious possibility. Whether we take the words of the third condition literally or consider the circumstances pragmatically, that condition is satisfied. D The fourth condition is that "a refusal immediately to review the state-court decision might seriously erode federal policy." This condition is met because refusal immediately to review the state-court decision before us will "seriously erode" the federal constitutional policy in favor of free speech. *682 If permitted to stand, the state court's decision may well "chill" the exercise of free speech rights. See ; Fort Wayne Books, Continuation of this lawsuit itself means increased expense, and, if Nike loses, the results may include monetary liability (for "restitution") and injunctive relief (including possible corrective "counterspeech"). See, e. g., Cel-Tech Communications, ; Consumers Union of U. S., The range of communications subject to such liability is broad; in this case, it includes a letter to the editor of The New York The upshot is that commercial speakers doing business |
Justice Breyer | 2,003 | 2 | second_dissenting | Nike, Inc. v. Kasky | https://www.courtlistener.com/opinion/130162/nike-inc-v-kasky/ | New York The upshot is that commercial speakers doing business in California may hesitate to issue significant communications relevant to public debate because they fear potential lawsuits and legal liability. Cf. at ; This concern is not purely theoretical. Nike says without contradiction that because of this lawsuit it has decided "to restrict severely all of its communications on social issues that could reach California consumers, including speech in national and international media." Brief for Petitioners 39. It adds that it has not released its annual Corporate Responsibility Report, has decided not to pursue a listing in the Dow Jones Sustainability Index, and has refused "dozens of invitations to speak on corporate responsibility issues." Numerous amiciincluding some who do not believe that Nike has fully and accurately explained its labor practicesargue that California's decision will "chill" speech and *683 thereby limit the supply of relevant information available to those, such as journalists, who seek to keep the public informed about important public issues. Brief for American Federation of Labor and Congress of Industrial Organizations as Amicus Curiae 2-3; Brief for Chamber of Commerce of the United States of America as Amicus Curiae 10-12; Brief for ABC Inc. et al. as Amici Curiae 6-13; Brief for Pfizer Inc. as Amicus Curiae 10-14. In sum, all four conditions are satisfied here. See Hence, the California Supreme Court's judgment falls within the scope of the term "final" as it appears in 28 U.S. C. 1257(a), and no statute prevents us from deciding this case. III There is no strong prudential argument against deciding the questions presented. Compare ante, at 663-6 (STEVENS, J., concurring), with These constitutional questions are not easy ones, for they implicate both free speech and important forms of public regulation. But they arrive at the threshold of this case, asking whether the Constitution permits this private attorney general's lawsuit to go forward on the basis of the pleadings at hand. This threshold issue was vigorously contested and decided, adverse to Nike, below. Cf. -535 And further development of the record seems unlikely to make the questions presented any easier to decide later. At the same time, waiting extracts a heavy First Amendment price. If this suit goes forward, both Nike and other potential speakers, out of reasonable caution or even an excess of caution, may censor their own expression well beyond what the law may constitutionally demand. See ; 418 U. S., at That is what a "chilling effect" means. It is present here. *684 IV In sum, I can find no good reason for postponing a decision in this |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | This is a supplement to our decision in It presents the issue whether the District Court correctly refused to enforce ternal Revenue Service summonses when it specifically found that the special agent who issued them "was conducting his solely for the purpose of unearthing evidence of criminal conduct." 76-1 USTC ¶ 9407, p. 84,073, 37 AFTR 2d ¶ 76-582, p. 76-1240 (ND Ill. 1976). *300 I May 1975, John F. Olivero, a special agent with the telligence Division of the Chicago District of the ternal Revenue Service (hereinafter IRS or Service), received an assignment to investigate the tax liability of John Gattuso for his taxable years 1970-. App. 26-27, 33. Olivero testified that he had requested the assignment because of information he had received from a confidential informant and from an unrelated The was not referred to the IRS from another law enforcement agency, but the nature of the assignment. Olivero testified, was "[t]o investigate the possibility of any criminal violations of the ternal Revenue Code." Olivero pursued the on his own, without the assistance of a revenue agent.[1] He received information about Gattuso from the Federal Bureau of vestigation as a result of the previous He solicited and received additional data from the United Attorney for the Northern District of Illinois, the Secret Service, the Department of Housing and Urban Development, the IRS Collection Division, and the Cosmopolitan National Bank of Chicago. Mr. Gattuso's tax returns for the years in question disclosed rental income from real estate. That property was held in *301 Illinois land trusts[2] by respondent LaSalle National Bank, as trustee, a fact revealed by land trust files collected by the IRS from banks. order to determine the accuracy of Gattuso's income reports. Olivero proceeded to issue two summonses, under the authority of 7602 of the ternal Revenue Code of 1954, 26 U.S. C. 7602,[3] to respondent bank. Each summons related to a separate trust and requested, among other things, that the bank as trustee appear before Olivero at a designated time and place and produce its "files relating to Trust No. 31544 [or No. 35396] *302 including the Trust Agreement" for the period 1970 through and also "all deeds, options, correspondence, closing statements and sellers statements, escrows, and tax bills pertaining to all property held in the trust at any time during" that period. App. 9-16. Respondent Joseph W. Lang, a vice president of the bank, appeared in response to the summonses but, on advice of counsel, refused to produce any of the materials requested. Brief for Respondents 2. The United and Olivero, pursuant to 7402 |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | for Respondents 2. The United and Olivero, pursuant to 7402 and 7604 (a) of the Code, 26 U.S. C. 7402 and 7604 (a),[4] then petitioned the United District Court for the Northern District of Illinois for enforcement of the summonses. App. 5. This was on November 11, 1975. Olivero testified that when the petition was filed he had not determined whether criminal charges were justified and had not made any report or recommendation about the to his superiors. It was alleged in the petition and in an incorporated exhibit that the requested materials were necessary for the determination of the tax liability of Gattuso for the years in question and that the information contained in the documents was not in the possession of the petitioners. The District Court entered an order to show cause, and respondents answered through counsel, who also represented Gattuso. *303 At the ensuing hearing and in a post-hearing brief, respondents argued that Olivero's was "purely criminal" in nature. Gregory J. Perry, a lawyer specializing in federal taxation and employed by the same law firm that filed the answer, testified that in June 1975 Olivero told him that the Gattuso "was strictly related to criminal violations of the ternal Revenue Code." Respondents conceded that they bore the burden of proving that enforcement of the summonses would abuse the court's process, but they contended that they did not have to show "that there is no civil purpose to the Summons." stead, they urged that their burden was to show that the summonses were not issued in good faith because "the is solely for the purpose of gathering evidence for use in a criminal prosecution." The District Court agreed with respondents' contentions. Although at the hearing the court seemed to recognize "that in any criminal there's always a probability of civil tax liability." it focused its attention on the purpose of Special Agent Olivero: "I'll say now that I heard nothing in Agent Olivero's testimony to suggest that the thought of a civil ever crossed his mind. "Now, unless I find something in the in camera inspection [of the IRS file] that gives more support to the Government position than the Agent's testimony did, it would be my conclusion that he was at all times involved in a criminal at least in his own mind."[5] at 62. *304 its written memorandum, the District Court noted that Donaldson permitted the use of an IRS summons issued in good faith and prior to a recommendation for criminal prosecution. Relying on dictum in however, the court said that it was an improper |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | in however, the court said that it was an improper use of the summons "to serve it solely for the purpose of obtaining evidence for use in a criminal prosecution." 76-1 USTC, at 84,072, 37 AFTR 2d, at 76-1240. If, at the time of its issuance, the summons served this proscribed purpose, the court concluded, the absence of a formal criminal recommendation was irrelevant, the summons was not issued in good faith, and enforcement was precluded. The court then held: "It is apparent from the evidence that Special Agent John F. Olivero in his investigative activities had focused upon the possible criminal activities of John Gattuso, and was conducting his solely for the purpose of unearthing evidence of criminal conduct by Mr. Gattuso." 37 AFTR 2d, at 76-1240. The United Court of Appeals for the Seventh Circuit affirmed. It concluded that the District Court correctly had included the issue of criminal purpose within the good-faith inquiry: "[T]he use of an administrative summons solely for *305 criminal purposes is a quintessential example of bad faith. "We note that the district court formulated its factual finding by use of the expression `sole criminal purpose' rather than by a label such as `bad faith.' We find no basis for reversible error in that verbal formulation. The district court grasped the vital core of Donaldson and rendered its factual finding consistently therewith." 9. The Court of Appeals further decided that the District Court had reached a factual, rather than a legal, conclusion when it found the summonses to have been issued solely for a criminal prosecution. 5. Appellate review, accordingly, was limited to application of the clearly-erroneous standard. 6. Although the Court of Appeals noted that Olivero had testified about the existence of a civil purpose for the the court said that "the record establishes that the district court did not believe him." 9. The appellate court could not reverse the trial court's judgment, it said, because it was "not left with a firm and definite conviction that a mistake [had] been made." 6. Because of the importance of the issue in the enforcement of the internal revenue laws, and because of conflict among the Courts of Appeals concerning the scope of IRS summons authority under 7602,[6] we granted certiorari. *306 II an IRS special agent issued summonses to a taxpayer's putative former employer and its accountant for the production of the employer's records of the taxpayer's employment and compensation. When the records were not forthcoming, the IRS petitioned for the enforcement of the summonses. The taxpayer intervened and eventually appealed the enforcement order. |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | summonses. The taxpayer intervened and eventually appealed the enforcement order. This Court addressed the taxpayer's contention that the summonses were unenforceable because they were issued in aid of an that could have resulted in a criminal charge against the taxpayer. His argument there, see was based on the following dictum in 375 U. S., at : "[T]he witness may challenge the summons on any appropriate ground. This would include, as the circuits have held, the defenses that the material is sought for the improper purpose of obtaining evidence for use in a criminal prosecution, 772-773" the light of the citation to Boren,[7] the Court in Donaldson concluded that the dictum referred and was applicable to "the situation of a pending criminal charge or, at most, of an solely for criminal purposes." *307 Discerning the meaning of the brief Reisman dictum, however, did not resolve for the Court the question posed by Donaldson. The validity of the summonses depended ultimately on whether they were among those authorized by Congress.[8] Having reviewed the statutory 400 U.S., 3-525, the Court concluded that Congress had authorized the use of summonses in investigating potentially criminal conduct. The statutory history, particularly the use of summonses under the ternal Revenue Code of 1939,[9] supported this conclusion, as did consistent IRS practice and decisions concerning effective enforcement of other comparable federal statutes.[10] The Court saw no reason to force the Service to choose either to forgo the use of congressionally authorized summonses or to abandon the option of recommending criminal prosecutions to the Department of Justice.[11] As long as the summonses were issued in good-faith pursuit of the congressionally authorized purposes, and prior to any recommendation to the Department for prosecution, they were enforceable. III The present requires us to examine the limits of the good-faith use of an ternal Revenue summons issued under 7602. As the preceding discussion demonstrates, Donaldson does not control the facts now before us. There, the taxpayer had argued that the mere potentiality of criminal prosecution should have precluded enforcement of the 400 U.S., Here, on the other hand, the District Court *308 found that Special Agent Olivero was investigating Gattuso "solely for the purpose of unearthing evidence of criminal conduct." 76-1 USTC, 37 AFTR 2d, at 76-1240. The question then becomes whether this finding necessarily leads to the conclusion that the summonses were not issued in good-faith pursuit of the congressionally authorized purposes of 7602. A The Secretary of the Treasury and the Commissioner of ternal Revenue are charged with the responsibility of administering and enforcing the ternal Revenue Code. 26 U.S. |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | of administering and enforcing the ternal Revenue Code. 26 U.S. C. 7801 and 7802. Congress, by 7601 (a), has required the Secretary to canvass revenue districts to "inquire after and concerning all persons therein who may be liable to pay any internal revenue tax." With regard to suspected fraud, these duties encompass enforcement of both civil and criminal statutes. The willful submission of a false or fraudulent tax return may subject a taxpayer not only to criminal penalties under 7206 and 7207 of the Code, but, as well, to a civil penalty, under 6653 of 50% of the underpayment. And 6659 (a) provides that the civil penalty shall be considered as part of the tax liability of the taxpayer. Hence, when 7602 permits the use of a summons "[f]or the purpose of ascertaining the correctness of any return, determining the liability of any person for any internal revenue tax or collecting any such liability," it necessarily permits the use of the summons for examination of suspected tax fraud and for the calculation of the 50% civil penalty. Donaldson, we clearly noted that 7602 drew no distinction between the civil and the criminal aspects; that it "contains no restriction"; that the corresponding regulations were "positive"; and that there was no significance, "for civil as compared with criminal purposes, at the point of a special agent's appearance." The Court then upheld the use of the summonses even though fraudulent conduct carried the potential *309 of criminal liability. The Court repeated this emphasis in : "It is now undisputed that a special agent is authorized, pursuant to 26 U.S. C. 7602, to issue an ternal Revenue summons in aid of a tax with civil and possible criminal consequences." This result is inevitable because Congress has created a law enforcement system in which criminal and civil elements are inherently intertwined. When an examines the possibility of criminal misconduct, it also necessarily inquires about the appropriateness of assessing the 50% civil tax penalty.[12] *310 The legislative history of the Code supports the conclusion that Congress intended to design a system with interrelated criminal and civil elements. Section 7602 derives, assertedly without change in meaning,[13] from corresponding and similar provisions in 3614, 3615, and 3654 of the 1939 Code. By 3614 (a) the Commissioner received the summons authority "for the purpose of ascertaining the correctness of any return or for the purpose of making a return where none has been made." Section 3615 (3) authorized the issuance of a summons "[w]henever any person who is required to deliver a monthly or other return of objects subject |
Justice Blackmun | 1,978 | 11 | majority | United States v. LaSalle Nat. Bank | https://www.courtlistener.com/opinion/109901/united-states-v-lasalle-nat-bank/ | to deliver a monthly or other return of objects subject to tax delivers any return which, in the opinion of the collector, is erroneous, false, or fraudulent, or contains any undervaluation or understatement." Section 3654 (a) stated the powers and duties of the collector: "Every collector within his collection district shall see that all laws and regulations relating to the collection of internal revenue taxes are faithfully executed and complied with, and shall aid in the prevention, detection, and punishment of any frauds in relation thereto. For such purposes, he shall have power to examine all persons, books, papers, accounts, and premises and to summon any person to produce books and papers and to compel compliance with such summons in the same manner as provided in section 3615." Under 3616 punishment for any fraud included both fine and imprisonment. The 1939 Code, therefore, contemplated the use of the summons in an involving suspected *311 criminal conduct as well as behavior that could have been disciplined with a civil penalty.[14] short, Congress has not categorized tax fraud s into civil and criminal components. Any limitation on the good-faith use of an ternal Revenue summons must reflect this statutory premise. B The preceding discussion suggests why the primary limitation on the use of a summons occurs upon the recommendation of criminal prosecution to the Department of Justice. Only at that point do the criminal and civil aspects of a tax fraud begin to diverge. See United ; United We recognize, of course, that even upon recommendation to the Justice Department, the civil and criminal elements do not separate completely. The Government does not sacrifice its interest in unpaid taxes *312 just because a criminal prosecution begins. Logically, then, the IRS could use its summons authority under 7602 to uncover information about the tax liability created by a fraud regardless of the status of the criminal But the rule forbidding such is a prophylactic intended to safeguard the following policy interests. A referral to the Justice Department permits criminal litigation to proceed. The IRS cannot try its own prosecutions. Such authority is reserved to the Department of Justice and, more particularly, to the United Attorneys. 28 U.S. C. 547 (1). Nothing in 7602 or its legislative history suggests that Congress intended the summons authority to broaden the Justice Department's right of criminal litigation discovery or to infringe on the role of the grand jury as a principal tool of criminal accusation. Accord, United ; United ; United ; see 400 U. S., ; cf. Abel v. United The likelihood that discovery would be |
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