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Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | language like this convey differences in meaning. See, e.g., Loughrin v. United States, 573 U. S. (2014). Even what may be petitioners’ best piece of contextual evidence ultimately proves unhelpful to their cause. Petitioners point out that the Act exempts from the defini- tion of “debt collector” certain individuals who have “ob- tained” particular kinds of debt—for example, debts not yet in default or debts connected to secured commercial credit transactions. and (F)(iv). And because these exemptions contemplate the possibility that someone might “obtain” a debt “owed or due another,” petitioners submit, the word “owed” must refer only to a previous owner. This conclusion, they say, neces- sarily follows because, once you have “obtained” a debt, that same debt just cannot be currently “owed or due” another. This last and quite essential premise of the argument, however, misses its mark. As a matter of ordinary Eng- Cite as: 582 U. S. (2017) 7 Opinion of the Court lish, the word “obtained” can (and often does) refer to taking possession of a piece of property without also tak- ing ownership—so, for example, you might obtain a rental car or a hotel room or an apartment. See, e.g., 10 Oxford English Dictionary 669 (2d ed. 1989) (defining “obtain” to mean, among other things, “[t]o come into the possession or enjoyment of (something) by one’s own effort or by request”); Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 532–533 (2013) (distinguishing between ownership and obtaining possession). And it’s easy enough to see how you might also come to possess (obtain) a debt with- out taking ownership of it. You might, for example, take possession of a debt for servicing and collection even while the debt formally remains owed another. Or as a secured party you might take possession of a debt as collateral, again without taking full ownership of it. See, e.g., U. C. C. 3 U. L. A. 197 So it simply isn’t the case that the statute’s exclusions imply that the phrase “owed another” must refer to debts previously owed to another. By this point petitioners find themselves in retreat. Unable to show that debt purchasers regularly collecting for their own account always qualify as debt collectors, they now suggest that purchasers sometimes qualify as debt collectors. On their view, debt purchasers surely qualify as collectors at least when they regularly purchase and seek to collect defaulted debts—just as Santander allegedly did here. In support of this narrower and more particular understanding of the Act, petitioners point again to the fact that the statute excludes from the defini- tion |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | the fact that the statute excludes from the defini- tion of “debt collector” certain persons who obtain debts before default. 15 U.S. C. This exclu- sion, petitioners now suggest, implies that the term “debt collector” must embrace those who regularly seek to collect debts obtained after default. Others aligned with peti- tioners also suggest that the Act treats everyone who 8 HENSON v. SANTANDER CONSUMER USA INC. Opinion of the Court attempts to collect a debt as either a “debt collector” or a “creditor,” but not both. And because the statutory defini- tion of the term “creditor” excludes those who seek to collect a debt obtained “in default,” they con- tend it again follows as a matter of necessary inference that these persons must qualify as debt collectors. But these alternative lines of inferential argument bear their own problems. For while the statute surely excludes from the debt collector definition certain persons who acquire a debt before default, it doesn’t necessarily follow that the definition must include anyone who regularly collects debts acquired after default. After all and again, under the definition at issue before us you have to attempt to collect debts owed another before you can ever qualify as a debt collector. And petitioners’ argument simply does not fully confront this plain and implacable textual pre- requisite. Likewise, even spotting (without granting) the premise that a person cannot be both a creditor and a debt collector with respect to a particular debt, we don’t see why a defaulted debt purchaser like Santander couldn’t qualify as a creditor. For while the creditor definition excludes persons who “receive an assignment or transfer of a debt in default,” it does so only (and yet again) when the debt is assigned or transferred “solely for the purpose of facilitating collection of such debt for another.” (emphasis added). So a company collecting purchased defaulted debt for its own account—like Santander— would hardly seem to be barred from qualifying as a credi- tor under the statute’s plain terms. Faced with so many obstacles in the text and structure of the Act, petitioners ask us to move quickly on to policy. Indeed, from the beginning that is the field on which they seem most eager to pitch battle. Petitioners assert that Congress passed the Act in large measure to add new incentives for independent debt collectors to treat consum- ers well. In their view, Congress excluded loan originators Cite as: 582 U. S. (2017) 9 Opinion of the Court from the Act’s demands because it thought they already faced sufficient economic and legal incentives to |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | thought they already faced sufficient economic and legal incentives to good behavior. But, on petitioners’ account, Congress never had the chance to consider what should be done about those in the business of purchasing defaulted debt. That’s because, petitioners tell us, the “advent” of the market for defaulted debt represents “ ‘one of the most significant changes’ ” to the debt market generally since the Act’s passage in 1977. Brief for Petitioners 8 (quoting Consumer Financial Protection Bureau, Fair Debt Collection Practices Act: CFPB Annual Report 2014, p. 7 (2014)). Had Con- gress known this new industry would blossom, they say, it surely would have judged defaulted debt purchasers more like (and in need of the same special rules as) independent debt collectors. Indeed, petitioners contend that no other result would be consistent with the overarching congres- sional goal of deterring untoward debt collection practices. All this seems to us quite a lot of speculation. And while it is of course our job to apply faithfully the law Congress has written, it is never our job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced. See Magwood v. Patterson, 3 (“We cannot replace the actual text with speculation as to Congress’ intent”). Indeed, it is quite mistaken to assume, as petitioners would have us, that “whatever” might appear to “further[ ] the statute’s primary objective must be the law.” Rodri- (emphasis deleted). Legislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage, and no statute yet known “pur- sues its [stated] purpose[ ] at all costs.” at 525–. For these reasons and more besides we will not presume with petitioners that any result consistent with their account of the statute’s overarching goal must be the law 10 HENSON v. SANTANDER CONSUMER USA INC. Opinion of the Court but will presume more modestly instead “that [the] legis- lature says what it means and means what it says.” (internal quotation marks omitted; brackets in original). Even taken on its own terms, too, the speculation peti- tioners urge upon us is far from unassailable. After all, is it really impossible to imagine that reasonable legislators might contend both ways on the question whether defaulted debt purchasers should be treated more like loan origina- tors than independent debt collection agencies? About whether other existing incentives (in the form of common law duties, other statutory and regulatory obligations, economic incentives, or otherwise) suffice to deter |
Justice Gorsuch | 2,017 | 7 | majority | Henson v. Santander Consumer USA Inc. | https://www.courtlistener.com/opinion/4403814/henson-v-santander-consumer-usa-inc/ | and regulatory obligations, economic incentives, or otherwise) suffice to deter debt purchasers from engaging in certain undesirable collection activities? Couldn’t a reasonable legislator endorsing the Act as written wonder whether a large financial institu- tion like Santander is any more or less likely to engage in abusive conduct than another large financial institution like CitiFinancial Auto? Especially where (as here) the institution says that its primary business is loan origina- tion and not the purchase of defaulted debt? We do not profess sure answers to any of these questions, but ob- serve only that the parties and their amici manage to present many and colorable arguments both ways on them all, a fact that suggests to us for certain but one thing: that these are matters for Congress, not this Court, to resolve. In the end, reasonable people can disagree with how Congress balanced the various social costs and benefits in this area. We have no difficulty imagining, for example, a statute that applies the Act’s demands to anyone collecting any debts, anyone collecting debts originated by another, or to some other class of persons still. Neither do we doubt that the evolution of the debt collection business might invite reasonable disagreements on whether Congress should reenter the field and alter the judgments it made Cite as: 582 U. S. (2017) 11 Opinion of the Court in the past. After all, it’s hardly unknown for new busi- ness models to emerge in response to regulation, and for regulation in turn to address new business models. Con- stant competition between constable and quarry, regulator and regulated, can come as no surprise in our changing world. But neither should the proper role of the judiciary in that process—to apply, not amend, the work of the People’s representatives. The judgment of the Court of Appeals is Affirmed |
Justice Marshall | 1,975 | 15 | concurring | Albemarle Paper Co. v. Moody | https://www.courtlistener.com/opinion/109299/albemarle-paper-co-v-moody/ | I agree with the opinion of the Court. I write today only to make the following observations about the proceedings in the District Court on remand relative to the backpay issue. As the Court affirms, there is no legal bar to raising a claim for backpay under Title VII at any time in the proceedings, even "indeed after a trial on [the] complaint [for injunctive relief] has been had." Ante, at 424. Furthermore, only the most unusual circumstances would constitute an equitable barrier to the award of make-whole relief where liability is otherwise established. The bar of laches, predicated on the prejudice to a defendant's case from the tardy entry of a prayer for compensation, should be particularly difficult to establish. Backpay in Title VII cases is generally computed, with respect to each affected employee or group of employees, by determining the amount of compensation lost as a direct result of the employer's discriminatory decision not to hire or promote. In litigation such as this, where the plaintiff class is limited to present and former employees of petitioner company who were denied promotions into the more lucrative positions because of their race, there is no need to make additional findings and offsetting computations for wages earned in alternative employment during the relevant period. The information needed in order to compute backpay for nonpromotion is contained in the personnel records and pay schedules normally maintained by an employer, some under compulsion of law. These data include the time at which an employee in the favored group was promoted over an otherwise more senior member of the disfavored class, and the wage differential that the promotion entailed. Rarely, if ever, could an employer plausibly invoke the doctrine of laches on the usual *441 ground that the passage of time has put beyond reach evidence or testimony necessary to his case. The prejudice on which the District Court relied here was, indeed, of a different and more speculative variety. The court made no findings of fact relevant to the subject, but found it "apparent" that prejudice would accrue because "[t]he defendants might have chosen to exercise unusual zeal in having this court determine their rights at an earlier date had they known that back pay would be at issue." This indulgent speculation is clearly not an adequate basis on which to deny the successful Title VII complainant compensatory backpay and surely even less of a reason for penalizing the members of the class that he represents.[*] In posing as an issue on remand "[w]hether the petitioners were in fact prejudiced," ante, at 424 |
Justice O'Connor | 1,984 | 14 | concurring | United States v. 50 Acres of Land | https://www.courtlistener.com/opinion/111283/united-states-v-50-acres-of-land/ | I concur in the Court's opinion and judgment that, on the facts of this case, the city of Duncanville is justly compensated by the payment of the market value for the sanitary landfill that was condemned by the Government. I write separately to note that I do not read the Court's opinion to preclude a municipality or other local governmental entity from establishing that payment of market value in a particular case is manifestly unjust and therefore inconsistent with the Just Compensation Clause. See ante, at 29. When a local governmental entity can prove that the market value of its property deviates significantly from the make-whole remedy intended by the Just Compensation Clause and that a substitute facility must be acquired to continue to provide an essential service, limiting compensation to the fair market value in my view would be manifestly unjust. Because the city of Duncanville did not establish that the market value in this case deviated significantly from the indemnity principle, I agree that the decision of the Court of Appeals should be reversed. |
Justice White | 1,975 | 6 | dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | It is axiomatic that Art. III of the Constitution imposes a "threshold requirement that those who seek to invoke the power of federal courts must allege an actual case or controversy." ; ; To satisfy the requirement, plaintiffs must allege "some threatened or actual injury," Linda R. that is "real and immediate" and not conjectural *411 or hypothetical. ; Maryland Casualty ; Public Furthermore, and of greatest relevance here: "The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The `gist of the question of standing' is whether the party seeking relief has `alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.' In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable." All of this the Court concedes. It is conceded as well that had the named plaintiff in this case not brought a class action, the case would now be dismissed as moot because the plaintiff, appellant here, has now satisfied the Iowa residency requirement and, what is more, has secured a divorce in another State. Appellant could not have begun this suit either for herself or for a class if at the time of filing she had been an Iowa resident for a year or had secured a divorce in another jurisdiction. There must be a named plaintiff initiating the action who has an existing controversy with the defendant, whether the plaintiff is suing on his own behalf or on behalf of a class as well. However unquestioned it may *412 be that a class of persons in the community has a "real" dispute of substance with the defendant, an attorney may not initiate a class action without having a client with a personal stake in the controversy who is a member of the class, and who is willing to be the named plaintiff in the case. The Court recently made this very clear when it said that "if none of the named plaintiffs purporting to represent a class establishes the requisite of a case or controversy with the defendants, none may seek relief on behalf of himself or any other member of the class." The Court nevertheless |
Justice White | 1,975 | 6 | dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | or any other member of the class." The Court nevertheless holds that once a case is certified as a class action, the named plaintiff may lose that status which had qualified him to bring the suit and still be acceptable as a party to prosecute the suit to conclusion on behalf of the class. I am unable to agree. The appellant now satisfies the Iowa residence requirement and has secured a divorce. She retains no real interest whatsoever in this controversy, certainly not an interest that would have entitled her to be a plaintiff in the first place, either alone or as representing a class. In reality, there is no longer a named plaintiff in the case, no member of the class before the Court. The unresolved issue, the attorney, and a class of unnamed litigants remain. None of the anonymous members of the class is present to direct counsel and ensure that class interests are being properly served. For all practical purposes, this case has become one-sided and has lost the adversary quality necessary to satisfy the constitutional "case or controversy" requirement. A real issue unquestionably remains, but the necessary adverse party to press it has disappeared. The Court thus dilutes the jurisdictional command of Art. III to a mere prudential guideline. The only specific, identifiable individual with an evident continuing *413 interest in presenting an attack upon the residency requirement is appellant's counsel. The Court in reality holds that an attorney's competence in presenting his case, evaluated post hoc through a review of his performance as revealed by the record, fulfills the "case or controversy" mandate. The legal fiction employed to cloak this reality is the reification of an abstract entity, "the class," constituted of faceless, unnamed individuals who are deemed to have a live case or controversy with appellees.[1] *414 No prior decision supports the Court's broad rationale. In cases in which the inadequacy of the named representative's claim has become apparent prior to class certification, the Court has been emphatic in rejecting the argument that the class action could still be pursued. -495; Cf. ; It is true that looks in the other direction. There, by the time the Court rendered its decision, the class representative in an action challenging a durational residency requirement for voting had satisfied the requirement and was eligible to vote in the next election. The Court indicated that the case was not moot, saying that the issue was "capable of repetition, yet evading review." But the question was not contested between the parties and was noted only in passing. Its ramifications |
Justice White | 1,975 | 6 | dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | the parties and was noted only in passing. Its ramifications for the question of mootness in a class action setting were not explored. Although I joined the opinion in that case, I do not deem it dispositive of the jurisdictional issue here, especially in light of Indiana Employment There the class representative's claim had been fully settled, and the Court remanded the case to the District Court for consideration of mootness, a course which the majority, relying on Dunn, rejects here. As I see it, the question of whether a class action survives after the representative's claim has been mooted remains unsettled by prior decisions. Indeed, what authority there is provides more support for a conclusion that when the personal stake of the named plaintiff terminates, the class action fails. *415 Although the Court cites as controlling authority, the principal basis for its approach is a conception of the class action that substantially dissipates the case-or-controversy requirement as well as the necessity for adequate representation under Fed. Rule Civ. Proc. 23 (a) (4). In the Court's view, the litigation before us is saved from mootness only by the fact that class certification occurred prior to appellant's change in circumstance. In justification, the Court points to two significant consequences of certification. First, once certified, the class action may not be settled or dismissed without the district court's approval. Second, if the action results in a judgment on the merits, the decision will bind all members found at the time of certification to be members of the class. These are significant aspects of class-action procedure, but it is not evident and not explained how and why these procedural consequences of certification modify the normal mootness considerations which would otherwise attach. Certification is no substitute for a live plaintiff with a personal interest in the case sufficient to make it an adversary proceeding. Moreover, certification is not irreversible or inalterable; it "may be conditional, and may be altered or amended before the decision on the merits." Rule 23 (c) (1).[2] Furthermore, under Rule 23 (d) the court may make various types of orders in conducting the litigation, including an order that notice be given "of the opportunity of members to signify whether they consider the representation fair and adequate, to intervene and present claims or defenses, or otherwise to come into the action" and "requiring that the pleadings be amended to eliminate therefrom allegations as to representation *416 of absent persons"[3] Class litigation is most often characterized by its complexity and concomitant flexibility of a court in managing it, and emphasis upon one |
Justice White | 1,975 | 6 | dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | of a court in managing it, and emphasis upon one point in the process flies in the face of that reality. The new certification procedure of Rule 23 (c) (1), as amended in 16, was not intended to modify the strictures of Fed. Rule Civ. Proc. 82 that "[t]hese rules shall not be construed to extend the jurisdiction of the United States district courts" Cf. The intention behind the certification amendment, which had no counterpart in the earlier version of the rule, was merely "to give clear definition to the action" Advisory Committee Note, 28 U.S. C. App., p. 7767; 3B J. Moore, Federal Practice ¶ 23.50, pp. 23-1101 to 23-1102 not as the Court would now have it, to avoid jurisdictional problems of mootness.[4] It is claimed that the certified class supplies the necessary adverse parties for a continuing case or controversy *417 with appellees. This is not true; but even if it were, the Court is left with the problem of determining whether the class action is still a good one and whether under Rule 23 (a) (4) appellant is a fair and adequate representative of the class. That appellant can no longer in any realistic sense be considered a member of the class makes these determinations imperative. The Court disposes of the problem to its own satisfaction by saying that it is unlikely that segments of the class appellant represents would have conflicting interests with those she has sought to advance and that because the interests of the class have been competently urged at each level of the proceeding the test of Rule 23 (a) (4) is met. The Court cites no authority for this retrospective decision as to the adequacy of representation which seems to focus on the competence of counsel rather than a party plaintiff who is a representative member of the class.[5] At the very least, the case should be remanded to the District Court where these considerations could be explored and the desirability of issuing orders under Rule 23 (d) to protect the class might be considered. The Court's refusal to remand for consideration of mootness and adequacy of representation can be explained only by its apparent notion that there may be categories of issues which will permit lower courts to pass upon them but which by their very nature will become moot before this Court can address them. Thus it is said that "no single challenger will remain subject to [the residency requirement] for the period necessary to see such a lawsuit to its conclusion." Ante, at 400. Hence, *418 the Court |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | We consider here whether the Sentencing Reform Act pre cludes federal courts from imposing or lengthening a prison term in order to promote a criminal defendant’s rehabilitation. We hold that it does. I Petitioner Alejandra Tapia was convicted of, inter alia, smuggling unauthorized aliens into the United States, in violation of 8 U.S. C. and (iii). At sen tencing, the District Court determined that the United States Sentencing Guidelines recommended a prison term of between 41 and 51 months for Tapia’s offenses. The court decided to impose a 51-month term, followed by three years of supervised release. In explaining its rea sons, the court referred several times to Tapia’s need for drug treatment, citing in particular the Bureau of Prison’s Residential Drug Abuse Program (known as RDAP or the 500 Hour Drug Program). The court indicated that Tapia should serve a prison term long enough to qualify for and complete that program: “The sentence has to be sufficient to provide needed correctional treatment, and here I think the needed 2 TAPIA v. UNITED STATES Opinion of the Court correctional treatment is the 500 Hour Drug Program. “Here I have to say that one of the factors that—I am going to impose a 51-month sentence, and one of the factors that affects this is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program, number one.” App. 27. (“Number two” was “to deter her from committing other criminal offenses.” ) The court “strongly recom mend[ed]” to the Bureau of Prisons (BOP) that Tapia “participate in [RDAP] and that she serve her sentence at” the Federal Correctional Institution in Dublin, California (FCI Dublin), where “they have the appropriate tools to help her, to start to make a recovery.” Tapia did not object to the sentence at that time. On appeal, however, Tapia argued that the District Court had erred in lengthening her prison term to make her eligible for RDAP. App. to Pet. for Cert. 2. In Tapia’s view, this action violated 18 U.S. C. which instructs sentencing courts to “recogniz[e] that imprison ment is not an appropriate means of promoting correction and rehabilitation.” The United States Court of Appeals for the Ninth Circuit disagreed, relying on its prior decision in United 7 F.d 557 The Ninth Circuit had held there that distinguishes between deciding to impose a term of imprisonment and determining its length. See at 561. According to Duran, a sentencing court cannot im pose a prison term to assist a defendant’s rehabilitation. But “[o]nce imprisonment is chosen as |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | assist a defendant’s rehabilitation. But “[o]nce imprisonment is chosen as a punishment,” the court may consider the defendant’s need for rehabilitation in setting the length of the sentence. We granted certiorari to consider whether Cite as: 564 U. S. (2011) Opinion of the Court permits a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. 562 U. S. That question has divided the Courts of Appeals.1 Because the United States agrees with Tapia’s interpretation of the statute, we appointed an amicus curiae to defend the judgment below.2 We now reverse. II We begin with statutory background—how the relevant sentencing provisions came about and what they say. Aficionados of our sentencing decisions will recognize much of the story line. “For almost a century, the Federal Government em ployed in criminal cases a system of indeterminate sen tencing.” (1989). Within “customarily wide” outer boundaries set by Congress, trial judges exercised “almost unfettered discre tion” to select prison sentences for federal offenders. at 64. In the usual case, a judge also could reject prison time altogether, by imposing a “suspended” sentence. If the judge decided to impose a prison term, discretionary authority shifted to parole officials: Once the defendant had spent a third of his term behind bars, they could order his release. See K. Stith & J. Fear of Judging: Sentencing Guidelines in the Federal Courts 18–20 (1998). This system was premised on a faith in rehabilitation. —————— 1 Three Circuits have held that allows a court to lengthen, although not to impose, a prison term based on the need for rehabilita tion. See United ; United ; United States v. Jimenez, Two Courts of Appeals have ruled that bars a court from either imposing or increasing a period of confinement for rehabilitative reasons. See United ; In re Sealed Case, (CADC 2009). 2 We appointed Stephanos Bibas to brief and argue the case, 562 U. S. (2011), and he has ably discharged his responsibilities. 4 TAPIA v. UNITED STATES Opinion of the Court Discretion allowed “the judge and the parole officer to [base] their respective sentencing and release decisions upon their own assessments of the offender’s amenability to rehabilitation.” 488 U.S., at A convict, the theory went, should generally remain in prison only until he was able to reenter society safely. His release therefore often coincided with “the successful completion of certain vocational, educational, and counseling pro grams within the prisons.” S. Rep. No. 98–225, p. 40 (198) (hereinafter S. Rep.). At that point, parole officials could “determin[e] that [the] prisoner had become reha |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | parole officials could “determin[e] that [the] prisoner had become reha bilitated and should be released from confinement.” Stith & But this model of indeterminate sentencing eventually fell into disfavor. One concern was that it produced “[s]eri ous disparities in [the] sentences” imposed on simi- larly situated defendants. Another was that the system’s attempt to “achieve reha bilitation of offenders had failed.” Lawmakers and others increasingly doubted that prison programs could “rehabilitate individuals on a routine basis”—or that parole officers could “determine accurately whether or when a particular prisoner ha[d] been rehabilitated.” S. Rep., at 40. —————— The statutes governing punishment of drug-addicted offenders (like Tapia) provide an example of this system at work. If a court concluded that such an offender was “likely to be rehabilitated through treat ment,” it could order confinement “for treatment for an indetermi nate period of time” not to exceed the lesser of 10 years or the statutory maximum for the offender’s crime. 18 U.S. C. (1982 ed.); see also (“ ‘Treatment’ includes confinement and treatment in an institution and includes, but is not limited to, medical, educational, social, psychological, and vocational services, corrective and preventive guidance and training, and other rehabilitative services”). Once the offender had undergone treatment for six months, the Attorney General could recommend that the Board of Parole release him from custody, and the Board could then order release “in its discretion.” Cite as: 564 U. S. (2011) 5 Opinion of the Court Congress accordingly enacted the Sentencing Reform Act of 1984, to overhaul fed eral sentencing practices. The Act abandoned indetermi nate sentencing and parole in favor of a system in which Sentencing Guidelines, promulgated by a new Sentencing Commission, would provide courts with “a range of deter minate sentences for categories of offenses and defen dants.” And the Act further channeled judges’ discretion by establishing a framework to govern their consideration and imposition of sentences. Under the SRA, a judge sentencing a federal offender must impose at least one of the following sanctions: im prisonment (often followed by supervised release), proba tion, or a fine. See In determining the appro priate sentence from among these options, requires the judge to consider specified factors, including: “the need for the sentence imposed— “(A) to reflect the seriousness of the offense, to promote respect for the law, and to pro vide just punishment for the offense; “(B) to afford adequate deterrence to crimi nal conduct; “(C) to protect the public from further crimes of the defendant; and “(D) to provide the defendant with needed educational or vocational training, medical care, or other |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner.” These four considerations—retribution, deterrence, inca pacitation, and rehabilitation—are the four purposes of sentencing generally, and a court must fashion a sentence “to achieve the[se] purposes to the extent that they are applicable” in a given case. The SRA then provides additional guidance about how the considerations listed in pertain to each of 6 TAPIA v. UNITED STATES Opinion of the Court the Act’s main sentencing options—imprisonment, super vised release, probation, and fines. See ; These provisions make clear that a particular purpose may apply differently, or even not at all, depending on the kind of sentence under considera tion. For example, a court may not take account of retri bution (the first purpose listed in ) when impos ing a term of supervised release. See Section 582(a), the provision at issue here, specifies the “factors to be considered” when a court orders imprison ment. That section provides: “The court, in determining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, in determining the length of the term, shall consider the factors set forth in section 55(a) to the extent that they are applicable, recognizing that imprisonment is not an appropriate means of promoting correction and rehabilitation.” A similar provision addresses the Sentencing Commission in its capacity as author of the Sentencing Guidelines. The SRA instructs the Commission to: “insure that the guidelines reflect the inappropriate ness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or pro viding the defendant with needed educational or voca tional training, medical care, or other correctional treatment.” 28 U.S. C. With this statutory background established, we turn to the matter of interpretation. III A Our consideration of Tapia’s claim starts with the text of 18 U.S. C. —and given the clarity of that provi- Cite as: 564 U. S. (2011) 7 Opinion of the Court sion’s language, could end there as well. As just noted, that section instructs courts to “recogniz[e] that impris onment is not an appropriate means of promoting correc tion and rehabilitation.” A common—and in context the most natural—definition of the word “recognize” is “to ac knowledge or treat as valid.” Random House Dictionary of the English Language 1611 (2d ed. 1987). And a thing that is not “appropriate” is not “suitable or fitting for a particular purpose.” Putting these two defini tions together, tells courts that they should ac knowledge that imprisonment is not suitable for the pur |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | ac knowledge that imprisonment is not suitable for the pur pose of promoting rehabilitation. And when should courts acknowledge this? Section answers: when “de termining whether to impose a term of imprisonment, and, if a term of imprisonment is to be imposed, [when] deter mining the length of the term.” So a court making these decisions should consider the specified rationales of punishment except for rehabilitation, which it should ac knowledge as an unsuitable justification for a prison term. As against this understanding, amicus argues that ’s “recognizing” clause is not a flat prohibition but only a “reminder” or a “guide [for] sentencing judges’ cognitive processes.” Brief for Court-Appointed Amicus Curiae in Support of Judgment Below 2–24 (hereinafter Amicus Brief) (emphasis deleted). Amicus supports this view by offering a string of other definitions of the word “recognize”: “ ‘recall to mind,’ ‘realize,’ or ‘perceive clearly.’ ” Once these are plugged in, amicus suggests, reveals itself as a kind of loosey-goosey caution not to put too much faith in the capacity of prisons to rehabilitate. But we do not see how these alternative meanings of “recognize” help amicus’s cause. A judge who “perceives clearly” that imprisonment is not an appropriate means of promoting rehabilitation would hardly incarcerate some one for that purpose. Ditto for a judge who “realizes” or 8 TAPIA v. UNITED STATES Opinion of the Court “recalls” that imprisonment is not a way to rehabilitate an offender. To be sure, the drafters of the “recognizing” clause could have used still more commanding language: Congress could have inserted a “thou shalt not” or equiva lent phrase to convey that a sentencing judge may never, ever, under any circumstances consider rehabilitation in imposing a prison term. But when we interpret a statute, we cannot allow the perfect to be the enemy of the merely excellent. Congress expressed itself clearly in even if armchair legislators might come up with some thing even better. And what Congress said was that when sentencing an offender to prison, the court shall consider all the purposes of punishment except rehabilitation— because imprisonment is not an appropriate means of pursuing that goal. Amicus also claims, echoing the Ninth Circuit’s reason ing in Duran, that ’s “recognizing” clause bars courts from considering rehabilitation only when imposing a prison term, and not when deciding on its length. The argument goes as follows. Section 582(a) refers to two decisions: “The court, [1] in determining whether to im pose a term of imprisonment, and, if a term of imprison ment is to be imposed, [2] in determining the length of the |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | to be imposed, [2] in determining the length of the term” must consider the purposes of punishment listed in subject to the caveat of the “recognizing” clause. But that clause says only that “imprisonment” is not an appropriate means of rehabilitation. Because the “primary meaning of ‘imprisonment’ is ‘the act of confining a person,’ ” amicus argues, the clause relates only to [1] the decision to incarcerate, and not to [2] the separate determination of the sentence’s length. Amicus Brief 52. We again disagree. Under standard rules of grammar, says: A sentencing judge shall recognize that imprisonment is not appropriate to promote rehabilita tion when the court considers the applicable factors of ; and a court considers these factors when Cite as: 564 U. S. (2011) 9 Opinion of the Court determining both whether to imprison an offender and what length of term to give him. The use of the word “imprisonment” in the “recognizing” clause does not destroy—but instead fits neatly into—this construction. “Imprisonment” as used in the clause most naturally means “[t]he state of being confined” or “a period of con finement.” Black’s Law Dictionary 825 (9th ed. 2009); see also Webster’s Third New International Dictionary 117 (199) (the “state of being imprisoned”). So the word does not distinguish between the defendant’s initial placement behind bars and his continued stay there. As the D. C. Circuit noted in rejecting an identical argument, “[a] sentencing court deciding to keep a defendant locked up for an additional month is, as to that month, in fact choos ing imprisonment over release.” In re Sealed Case, 57 F.d 844, 850 (2009).4 Accordingly, the word “imprison ment” does not change the function of the “recognizing” clause—to constrain a sentencing court’s decision both to impose and to lengthen a prison term.5 The context of puts an exclamation point on this textual conclusion. As noted another provision of the SRA restates ’s message, —————— 4 Indeed, we can scarcely imagine a reason why Congress would have wanted to draw the distinction that amicus urges on us. That distinc tion would prevent a court from considering rehabilitative needs in imposing a 1-month sentence rather than probation, but not in choosing a 60-month sentence over a 1-month term. The only policy argument amicus can offer in favor of this result is that “[t]he effects of impris onment plateau a short while after the incarceration” and “ ‘[t]he dif ference in harm between longer and shorter prison terms is smaller than typically assumed.’ ” Amicus Brief 56. But nothing in the SRA indicates that Congress is so indifferent |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | nothing in the SRA indicates that Congress is so indifferent to the length of prison terms. 5 The Government argues that “Congress did not intend to prohibit courts from imposing less imprisonment in order to promote a defen dant’s rehabilitation.” Brief for United States 40 (emphasis added). This case does not require us to address that question, and nothing in our decision expresses any views on it. 10 TAPIA v. UNITED STATES Opinion of the Court but to a different audience. That provision, 28 U.S. C. directs the Sentencing Commission to ensure that the Guidelines “reflect the inappropriateness of imposing a sentence to a term of imprisonment for the purpose of rehabilitating the defendant or providing the defendant with needed educational or vocational training, medical care, or other correctional treatment.” In this way, Con gress ensured that all sentencing officials would work in tandem to implement the statutory determination to “rejec[t] imprisonment as a means of promoting rehabilita tion.” (citing 28 U.S. C. Section 994(k) bars the Commission from rec ommending a “term of imprisonment”—a phrase that again refers both to the fact and to the length of incarcera tion—based on a defendant’s rehabilitative needs. And prohibits a court from considering those needs to impose or lengthen a period of confinement when selecting a sentence from within, or choosing to depart from, the Guidelines range. Each actor at each stage in the sentenc ing process receives the same message: Do not think about prison as a way to rehabilitate an offender. Equally illuminating here is a statutory silence—the absence of any provision granting courts the power to ensure that offenders participate in prison rehabilitation programs. For when Congress wanted sentencing courts to take account of rehabilitative needs, it gave courts the authority to direct appropriate treatment for offend ers. Thus, the SRA instructs courts, in deciding whether to impose probation or supervised release, to consider whether an offender could benefit from training and treat ment programs. See 18 U.S. C. And so the SRA also authorizes courts, when imposing those sentences, to order an offender’s participation in cer tain programs and facilities. As a condition of probation, for example, the court may require the offender to “undergo Cite as: 564 U. S. (2011) 11 Opinion of the Court available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and [to] remain in a specified insti tution if required for that purpose.” If Congress had similarly meant to allow courts to base prison terms on offenders’ rehabilitative needs, it would have given courts |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | terms on offenders’ rehabilitative needs, it would have given courts the capacity to ensure that offenders participate in prison correctional programs. But in fact, courts do not have this authority. When a court sentences a federal offender, the BOP has plenary control, subject to statutory constraints, over “the place of the prisoner’s imprisonment,” and the treatment programs (if any) in which he may participate, (f ); ). See also 28 CFR pt. 544 (BOP regulations for ad ministering inmate educational, recreational, and voca tional programs); 28 CFR pt. 550, subpart F (drug abuse treatment programs). A sentencing court can recommend that the BOP place an offender in a particular facility or program. See But decisionmaking authority rests with the BOP. This case well illustrates the point. As noted the District Court “strongly recommend[ed]” that Tapia participate in RDAP, App. 29, and serve her sentence at FCI Dublin, “where they have the facilities to really help her,” But the court’s recommendations were only recommendations—and in the end they had no effect. See Amicus Brief 42 (“[Tapia] was not admitted to RDAP, nor even placed in the prison recommended by the district court”); Reply Brief for United States 8, n. 1 (“According to BOP records, [Tapia] was encouraged to enroll [in RDAP] during her psychology intake screening at [the federal prison], but she stated that she was not interested, and she has not volunteered for the program”). The sentencing court may have had plans for Tapia’s rehabilitation, but it lacked the power to implement them. That incapacity speaks volumes. It indicates that Congress did not intend 12 TAPIA v. UNITED STATES Opinion of the Court that courts consider offenders’ rehabilitative needs when imposing prison sentences. Finally, for those who consider legislative history useful, the key Senate Report concerning the SRA provides one last piece of corroborating evidence. According to that Report, decades of experience with indeterminate sentenc ing, resulting in the release of many inmates after they completed correctional programs, had left Congress skep tical that “rehabilitation can be induced reliably in a prison setting.” S. Rep., at 8. Although some critics argued that “rehabilitation should be eliminated com pletely as a purpose of sentencing,” Congress declined to adopt that categorical position. Instead, the Report explains, Congress barred courts from considering rehabilitation in imposing prison terms, ib and n. 165, but not in ordering other kinds of sentences, ib and n. 164. “[T]he purpose of rehabilitation,” the Report stated, “is still important in determining whether a sanc tion other than a term of imprisonment is appropriate in a particular case.” See –77 |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | of imprisonment is appropriate in a particular case.” See –77 (emphasis added). And so this is a case in which text, context, and history point to the same bottom line: Section 582(a) precludes sentencing courts from imposing or lengthening a prison term to promote an offender’s rehabilitation. B With all these sources of statutory meaning stacked against him, amicus understandably tries to put the SRA’s view of rehabilitation in a wholly different frame. Amicus begins by conceding that Congress, in enacting the SRA, rejected the old “[r]ehabilitation [m]odel.” Amicus Brief 1. But according to amicus, that model had a very limited focus: It was the belief that “isolation and prison routine” could alone produce “penitence and spiritual renewal.” What the rehabilitation model did not in clude—and the SRA therefore did not reject—was prison Cite as: 564 U. S. (2011) 1 Opinion of the Court treatment programs (including for drug addiction) tar geted to offenders’ particular needs. See 27– 28. So even after the passage of amicus argues, a court may impose or lengthen a prison sentence to pro mote an offender’s participation in a targeted treatment program. The only thing the court may not do is to impose a prison term on the ground that confinement itself—its inherent solitude and routine—will lead to rehabilitation. We think this reading of the SRA is too narrow. For one thing, the relevant history shows that at the time of the SRA’s enactment, prison rehabilitation efforts focused on treatment, counseling, and training programs, not on seclusion and regimentation. See Rotman, The Failure of Reform: United States, 1865–1965, in Oxford History of the Prison: The Practice of Punishment in Western Society 169, 189–190 (N. Morris & D. Rothman eds. 1995) (de scribing the pre-SRA “therapeutic model of rehabilitation” as characterized by “individualized treatment” and “voca tional training and group counseling programs”); see also n. (noting pre-SRA statutes linking the confine ment of drug addicts to the completion of treatment pro grams). Indeed, Congress had in mind precisely these programs when it prohibited consideration of rehabilita tion in imposing a prison term. See 28 U.S. C. (instructing the Sentencing Commission to prevent the use of imprisonment to “provid[e] the defendant with needed educational or vocational training or other correctional treatment”); S. Rep., at 40 (rejecting the “model of ‘coercive’ rehabilitation—the theory of correction that ties prison release dates to the successful completion of certain vocational, educational, and counseling pro grams within the prisons”). Far from falling outside the “rehabilitation model,” these programs practically defined it. It is hardly surprising, then, that amicus’s argument finds little support |
Justice Kagan | 2,011 | 3 | majority | Tapia v. United States | https://www.courtlistener.com/opinion/218921/tapia-v-united-states/ | is hardly surprising, then, that amicus’s argument finds little support in the statutory text. Read most natu 14 TAPIA v. UNITED STATES Opinion of the Court rally, 18 U.S. C. ’s prohibition on “promoting correction and rehabilitation” covers efforts to place of fenders in rehabilitation programs. Indeed, ’s lan guage recalls the SRA’s description of the rehabilitative purpose of sentencing—“provid[ing] the defendant with needed educational or vocational training, medical care, or other correctional treatment.” (D). That de scription makes clear that, under the SRA, treatment, training, and like programs are rehabilitation’s sum and substance. So amicus’s efforts to exclude rehabilitation programs from the “recognizing” clause’s reach do not succeed. That section prevents a sentencing court from imposing or lengthening a prison term because the court thinks an offender will benefit from a prison treatment program. IV In this case, the sentencing transcript suggests the possibility that Tapia’s sentence was based on her reha bilitative needs. We note first what we do not disapprove about Tapia’s sentencing. A court commits no error by discussing the opportunities for rehabilitation within prison or the bene fits of specific treatment or training programs. To the contrary, a court properly may address a person who is about to begin a prison term about these important mat ters. And as noted a court may urge the BOP to place an offender in a prison treatment program. See Section 582(a) itself provides, just after the clause at issue here, that a court may “make a recommen dation concerning the type of prison facility appropriate for the defendant”; and in this calculus, the presence of a rehabilitation program may make one facility more appro priate than another. So the sentencing court here did nothing wrong—and probably something very right—in trying to get Tapia into an effective drug treatment Cite as: 564 U. S. (2011) 15 Opinion of the Court program. But the record indicates that the court may have done more—that it may have selected the length of the sentence to ensure that Tapia could complete the 500 Hour Drug Program. “The sentence has to be sufficient,” the court explained, “to provide needed correctional treatment, and here I think the needed correctional treatment is the 500 Hour Drug Program.” App. 27; see at 1–2. Or again: The “number one” thing “is the need to provide treatment. In other words, so she is in long enough to get the 500 Hour Drug Program.” App. 27; see These statements suggest that the court may have calcu lated the length of Tapia’s sentence to ensure that she receive certain rehabilitative services. |
Justice Rehnquist | 1,983 | 19 | concurring | Bolger v. Youngs Drug Products Corp. | https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/ | *76 I agree that the judgment should be affirmed, but my reasoning differs from that of the Court. The right to use the mails is undoubtedly protected by the First Amendment, But because the home mailbox has features which distinguish it from a public hall or public park, where it may be assumed that all who are present wish to hear the views of the particular speaker then on the rostrum, it cannot be totally assimilated for purposes of analysis with these traditional public forums. Several people within a family or living group may have free access to a mailbox, including minor children; and obviously not every piece of mail received has been either expressly or impliedly solicited. It is the unsolicited mass mailings sent by appellee designed to promote the use of condoms that gives rise to this litigation. Our earlier cases have developed an analytic framework for commercial speech cases. "At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest." Central Hudson Gas & Electric The material that Youngs seeks to mail concerns lawful activity and is not misleading. The Postal Service does not contend otherwise. The Postal Service does contend that the Government has substantial interests in "aiding parents' efforts to discuss sensitive and important subjects such as birth control with their *77 children," Brief for Appellants 25, and in preventing material that the recipient may find offensive from entering the home on an unsolicited basis. The Government is entitled, the argument goes, to help individuals shield their families and homes from advertisements for contraceptives.[1] The first of these interests is undoubtedly substantial. Contraception is an important and sensitive subject, and parents may well prefer that they provide their children with information on contraception in their own way. "[P]arents have an important `guiding role' to play in the upbringing of their children which presumptively includes counseling them on important decisions." H. quoting For this reason, among others, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. The legislature could properly conclude that parents who have this primary responsibility for children's |
Justice Rehnquist | 1,983 | 19 | concurring | Bolger v. Youngs Drug Products Corp. | https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/ | conclude that parents who have this primary responsibility for children's well being are entitled to the support of laws designed to aid discharge of that responsibility." The second interest advanced by the Postal Service is also substantial. We have often recognized that individuals have a legitimate "right to be left alone" "in the privacy of the home," "the one place where people ordinarily have the right not to be assaulted by uninvited and offensive sights and sounds." Accord, The Government may properly act to protect people from unreasonable intrusions into their homes. The questions whether 3001(e)(2) directly advances these interests, and whether it is more extensive than necessary, are more problematic. Under 39 U.S. C. 3008, an individual can have his name removed from Youngs' mailing list if he so wishes. See (holding 3008 constitutional). Thus, individuals are able to avoid the information in Youngs' advertisements after one exposure. Furthermore, as we noted in Consolidated the recipient of Youngs' advertising "may escape exposure to objectionable material simply by transferring [it] from envelope to wastebasket."[2] Therefore a mailed advertisement is significantly less intrusive than the daytime broadcast at issue in Pacifica or the sound truck at issue in See Consolidated 447 U. S., at -543. Where the recipients can " `effectively avoid further bombardment of their sensibilities simply by averting their eyes,' " at quoting a more substantial governmental interest is necessary to justify restrictions on speech. *79 Although 3001(e)(2) does advance the interest in permitting parents to guide their children's education concerning contraception, it also inhibits that interest by denying parents access to information about birth control that might help them make informed decisions. This statute acts "to prevent [people] from obtaining certain information." Linmark Associates, The First Amendment, which was designed to prevent the Government from suppressing information, requires us "to assume that this information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them." Virginia Pharmacy Section 3001(e)(2) is also broader than is necessary because it completely bans from the mail unsolicited materials that are suitable for adults. The Government may not "reduce the adult population to reading only what is fit for children." Narrower restrictions, such as the provisions of 39 U.S. C. 3008 and restrictions of the kind suggested by the District Court in this case, can fully serve the Government's interests. The Postal Service argues that Youngs can obtain permission to send its advertisements by |
Justice Rehnquist | 1,983 | 19 | concurring | Bolger v. Youngs Drug Products Corp. | https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/ | that Youngs can obtain permission to send its advertisements by conducting a "premailing." Youngs could send letters to the general public, asking whether they would be willing to receive information about contraceptives, and send advertisements only to those who respond. In a similar vein, the Postal Service argues that Youngs can communicate with the public otherwise than through the mail.[3] Both of these arguments fall wide of the *80 mark. A prohibition on the use of the mails is a significant restriction of First Amendment rights. We have noted that " `[t]he United States may give up the Post Office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues.' " quoting Milwaukee Social Democratic Publishing (19) And First Amendment freedoms would be of little value if speakers had to obtain permission of their audiences before advancing particular viewpoints. Cf. (15) Thus, under this Court's cases the intrusion generated by Youngs' proposed advertising is relatively small, and the restriction imposed by 3001(e)(2) is relatively large. Although this restriction directly advances weighty governmental interests, it is somewhat more extensive than is necessary to serve those interests. On balance I conclude that this restriction on Youngs' commercial speech[4] has not been adequately justified. Section 3001(e)(2) therefore violates the First Amendment as applied to Youngs and to material of the type Youngs has indicated that it plans to send, and I agree that the judgment of the District Court should be affirmed. JUSTICE STEVENS, concurring in the judgment. Two aspects of the Court's opinion merit further comment: (1) its conclusion that all of the communications at issue are properly classified as "commercial speech" (ante, at 68); and (2) its virtually complete rejection of offensiveness as a possibly *81 legitimate justification for the suppression of speech (ante, at 72). My views are somewhat different from the Court's on both of these matters. I Even if it may not intend to do so, the Court's opinion creates the impression that "commercial speech" is a fairly definite category of communication that is protected by a fairly definite set of rules that differ from those protecting other categories of speech. That impression may not be wholly warranted. Moreover, as I have previously suggested, we must be wary of unnecessary insistence on rigid classifications, lest speech entitled to "constitutional protection be inadvertently suppressed." Central Hudson Gas & Electric I agree, of course, that the commercial aspects of a message may provide a justification for regulation that is |
Justice Rehnquist | 1,983 | 19 | concurring | Bolger v. Youngs Drug Products Corp. | https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/ | a message may provide a justification for regulation that is not present when the communication has no commercial character. The interest in protecting consumers from commercial harm justifies a requirement that advertising be truthful; no such interest applies to fairy tales or soap operas. But advertisements may be complex mixtures of commercial and noncommercial elements: the noncommercial message does not obviate the need for appropriate commercial regulation (see ante, at 68); conversely, the commercial element does not necessarily provide a valid basis for noncommercial censorship. Appellee's pamphlet entitled "Plain Talk about Venereal Disease" highlights the classification problem. On the one hand, the pamphlet includes statements that implicitly extol the quality of the appellee's products.[1] A law that protects *82 the public from suffering commercial harm as a result of such statements would appropriately be evaluated as a regulation of commercial speech. On the other hand, most of the pamphlet is devoted to a discussion of the symptoms, significant risks, and possibility of treatment for venereal disease.[2] That discussion does not appear to endanger any commercial interest whatsoever; it serves only to inform the public about a medical issue of regrettably great significance. I have not yet been persuaded that the commercial motivation of an author is sufficient to alter the state's power to regulate speech. Anthony Comstock surely had a constitutional right to speak out against the use of contraceptives in his day. Like Comstock, many persons today are morally opposed to contraception, and the First Amendment commands the government to allow them to express their views in appropriate ways and in appropriate places. I believe that Amendment affords the same protection to this appellee's views regarding the hygienic and family planning advantages of its contraceptive products. Because significant speech so often comprises both commercial and noncommercial elements, it may be more fruitful to focus on the nature of the challenged regulation rather *83 than the proper label for the communication. Cf. Farber, Commercial Speech and First Amendment Theory, The statute at issue in this case prohibits the mailing of "[a]ny unsolicited advertisement of matter which is designed, adapted, or intended for preventing conception." Any legitimate interests the statute may serve are unrelated to the prevention of harm to participants in commercial exchanges.[3] Thus, because it restricts speech by the appellee that has a significant noncommercial component, I have scrutinized this statute in the same manner as I would scrutinize a prohibition on unsolicited mailings by an organization with absolutely no commercial interest in the subject. II Assuming that this case deals only with commercial speech, the Court implies, if |
Justice Rehnquist | 1,983 | 19 | concurring | Bolger v. Youngs Drug Products Corp. | https://www.courtlistener.com/opinion/110992/bolger-v-youngs-drug-products-corp/ | case deals only with commercial speech, the Court implies, if it does not actually hold, that the fact that protected speech may be offensive to some persons is not a "sufficient justification for a prohibition of commercial speech." Ante, at 72. I think it essential to emphasize once again, however, that "a communication may be offensive in two different ways. Independently of the message the speaker intends to convey, the form of his communication may be offensive perhaps because it is too loud or too ugly in a particular setting. Other speeches, even though elegantly phrased in dulcet tones, are offensive simply because the listener disagrees with the speaker's message." Consolidated (footnotes omitted). *84 It matters whether a law regulates communications for their ideas or for their style. Governmental suppression of a specific point of view strikes at the core of First Amendment values.[4] In contrast, regulations of form and context may strike a constitutionally appropriate balance between the advocate's right to convey a message and the recipient's interest in the quality of his environment: "The fact that the advertising of a particular subject matter is sometimes offensive does not deprive all such advertising of First Amendment protection; but it is equally clear to me that the existence of such protection does not deprive the State of all power to regulate such advertising in order to minimize its offensiveness. A picture which may appropriately be included in an instruction book may be excluded from a billboard." The statute at issue in this case censors ideas, not style. It prohibits appellee from mailing any unsolicited advertisement of contraceptives, no matter how unobtrusive and tactful; yet it permits anyone to mail unsolicited advertisements of devices intended to facilitate conception, no matter how coarse or grotesque. It thus excludes one advocate from a forum to which adversaries have unlimited access. I concur in the Court's judgment that the First Amendment prohibits the application of the statute to these materials. |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | Under the National Labor Relations Act, as amended mandatory subjects of collective bargaining include pension and insurance benefits for active employees,[1] and an employer's mid-term unilateral modification of such benefits constitutes an unfair labor practice.[2] This cause *160 presents the question whether a mid-term unilateral modification that concerns, not the benefits of active employees, but the benefits of already retired employees also constitutes an unfair labor practice. The National Labor Relations Board, one member dissenting, held that changes in retired employees' retirement benefits are embraced by the bargaining obligation and that an employer's unilateral modification of them constitutes an unfair labor practice in violation of 8 (a) (5) and (1) of the Act. 177 N. L. R. B. 911 (1969).[3] The Court of Appeals for the Sixth Circuit disagreed and refused to enforce the Board's cease-and-desist order, We granted certiorari, We affirm the judgment of the Court of Appeals. I Since 1949, Local 1, Allied Chemical and Alkali Workers of America, has been the exclusive bargaining representative for the employees "working" on hourly rates of pay at the Barberton, Ohio, facilities of respondent Pittsburgh Plate Glass Co.[4] In 1950, the Union and the Company negotiated an employee group health insurance plan, in which, it was orally agreed, retired employees could participate by contributing the required *161 premiums, to be deducted from their pension benefits. This program continued unchanged until 1962, except for an improvement unilaterally instituted by the Company in 1954 and another improvement negotiated in 1959. In 1962 the Company agreed to contribute two dollars per month toward the cost of insurance premiums of employees who retired in the future and elected to participate in the medical plan. The parties also agreed at this time to make 65 the mandatory retirement age. In 1964 insurance benefits were again negotiated, and the Company agreed to increase its monthly contribution from two to four dollars, applicable to employees retiring after that date and also to pensioners who had retired since the effective date of the 1962 contract. It was agreed, however, that the Company might discontinue paying the two-dollar increase if Congress enacted a national health program. In November Medicare, a national health program, was enacted, 42 U.S. C. 1395 et seq. The 1964 contract was still in effect, and the Union sought mid-term bargaining to renegotiate insurance benefits for retired employees. The Company responded in March 1966 that, in its view, Medicare rendered the health insurance program useless because of a non-duplication-of-benefits provision in the Company's insurance policy, and stated, without negotiating any change, that it was planning to (a) |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | without negotiating any change, that it was planning to (a) reclaim the additional two-dollar monthly contribution as of the effective date of Medicare; (b) cancel the program for retirees; and (c) substitute the payment of the three-dollar monthly subscription fee for supplemental Medicare coverage for each retired employee.[5] *162 The Union acknowledged that the Company had the contractual right to reduce its monthly contribution, but challenged its proposal unilaterally to substitute supplemental Medicare coverage for the negotiated health plan. The Company, as it had done during the 1959 negotiations without pressing the point, disputed the Union's right to bargain in behalf of retired employees, but advised the Union that upon further consideration it had decided not to terminate the health plan for pensioners. The Company stated instead that it would write each retired employee, offering to pay the supplemental Medicare premium if the employee would withdraw from the negotiated plan. Despite the Union's objections the Company did circulate its proposal to the retired employees, and 15 of 190 retirees elected to accept it. The Union thereupon filed unfair labor practice charges. The Board held that although the Company was not required to engage in mid-term negotiations, the benefits of already retired employees could not be regarded as other than a mandatory subject of collective bargaining. The Board reasoned that "retired employees are `employees' within the meaning of the statute for the purposes of bargaining about changes in their retirement benefits" 177 N. L. R. B., Moreover, "retirement status is a substantial connection to the bargaining unit, for it is the culmination and the product of years of employment." Alternatively, the Board considered "bargaining about changes in retirement benefits for retired employees" as "within the contemplation of the statute because of the interest which active employees have in this subject" Apparently in support of both theories, the Board noted that "[b]argaining on benefits for workers already retired is an established aspect of current labor-management relations." The Board also held that the *163 Company's "establishment of a fixed, additional option in and of itself changed the negotiated plan of benefits" contrary to 8 (d) and 8 (a) (5) of the Act. Accordingly, the Company was ordered to cease and desist from refusing to bargain collectively about retirement benefits and from making unilateral adjustments in health insurance plans for retired employees without first negotiating in good faith with the Union. The Company was also required to rescind, at the Union's request, any adjustment it had unilaterally instituted and to mail and post appropriate notices.[6] II Section 1 of the National Labor Relations Act |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | notices.[6] II Section 1 of the National Labor Relations Act declares the policy of the United States to protect commerce "by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment" as amended, 29 U.S. C. 151. To effectuate this policy, 8 (a) (5) provides that it is an unfair labor practice for an employer "to refuse to bargain collectively with the representatives of his employees, subject to the provisions of section" 9 (a). as amended, 29 U.S. C. 158 (a) (5). Section 8 (d), in turn, defines "to bargain *164 collectively" as "the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment" 29 U.S. C. 158 (d). Finally, 9 (a) declares: "Representatives designated or selected for the purposes of collective bargaining by the majority of the employees in a unit appropriate for such purposes, shall be the exclusive representatives of all the employees in such unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of employment" as amended, 29 U.S. C. 159 (a). Together, these provisions establish the obligation of the employer to bargain collectively, "with respect to wages, hours, and other terms and conditions of employment," with "the representatives of his employees" designated or selected by the majority "in a unit appropriate for such purposes." This obligation extends only to the "terms and conditions of employment" of the employer's "employees" in the "unit appropriate for such purposes" that the union represents. See, e. g., Mine ; ; Packard ; Phelps Dodge ; Pittsburgh Glass The Board found that benefits of already retired employees fell within these constraints on alternative theories. First, it held that pensioners are themselves "employees" and members of the bargaining unit, so that their benefits are a "term and condition" of their employment.[7] *165 The Court of Appeals, in contrast, held "that retirees are not `employees' within the meaning of section 8 (a) (5) and the Company was under no constraint to collectively bargain improvements in their benefits with the Union." The court reasoned, first, "[r]etirement with this Company, as with most other companies, is a complete and final severance of employment. Upon retirement, employees are completely removed from the payroll and seniority lists, and thereafter |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | completely removed from the payroll and seniority lists, and thereafter they perform no services for the employer, are paid no wages, are under no restrictions as to other employment or activities, and have no rights or expectations of re-employment," ; and, second, "[i]t has repeatedly been held that the scope of the bargaining unit controls the extent of the bargaining obligation [And] the unit certified by the Board as appropriate was composed only of presumably active employees." For the reasons that follow we agree with the Court of Appeals. First. Section 2 (3) of the Act provides: "The term `employee' shall include any employee, and shall not be limited to the employees of a particular employer, unless this subchapter explicitly states otherwise, and shall include any individual whose work has ceased as a consequence of, or in connection with, any current labor dispute or because of any unfair labor practice, and who has not obtained any other regular and substantially equivalent employment" as amended, 29 U.S. C. 152 (3). *166 We have repeatedly affirmed that the task of determining the contours of the term "employee" "has been assigned primarily to the agency created by Congress to administer the Act." See also Iron ; But we have never immunized Board judgments from judicial review in this respect. "[T]he Board's determination that specified persons are `employees' under this Act is to be accepted if it has `warrant in the record' and a reasonable basis in law." In this cause we hold that the Board's decision is not supported by the law. The Act, after all, as 1 makes clear, is concerned with the disruption to commerce that arises from interference with the organization and collective-bargaining rights of "workers"not those who have retired from the work force. The inequality of bargaining power that Congress sought to remedy was that of the "working" man, and the labor disputes that it ordered to be subjected to collective bargaining were those of employers and their active employees. Nowhere in the history of the National Labor Relations Act is there any evidence that retired workers are to be considered as within the ambit of the collective-bargaining obligations of the statute. To the contrary, the legislative history of 2 (3) itself indicates that the term "employee" is not to be stretched beyond its plain meaning embracing only those who work for another for hire. In we sustained the Board's finding that newsboys were "employees" rather than independent contractors. We said that "the broad language of the Act's definitions, which in terms reject conventional limitations on such conceptions as |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | which in terms reject conventional limitations on such conceptions as `employee,' leaves no doubt that its applicability is to be determined broadly, in *167 doubtful situations, by underlying economic facts rather than technically and exclusively by previously established legal classifications." The term "employee" "must be understood with reference to the purpose of the Act and the facts involved in the economic relationship." Congress reacted by specifically excluding from the definition of "employee" "any individual having the status of an independent contractor." The House, which proposed the amendment, explained: "An `employee,' according to all standard dictionaries, according to the law as the courts have stated it, and according to the understanding of almost everyone, means someone who works for another for hire. But in the case of National Labor Relations Board v. Hearst Inc. the Board held independent merchants who bought newspapers from the publisher and hired people to sell them to be `employees.' The people the merchants hired to sell the papers were `employees' of the merchants, but holding the merchants to be `employees' of the publisher of the papers was most far reaching. It must be presumed that when Congress passed the Labor Act, it intended words it used to have the meanings that they had when Congress passed the act, not new meanings that, 9 years later, the Labor Board might think up. In the law, there always has been a difference, and a big difference, between `employees' and `independent contractors.' `Employees' work for wages or salaries under direct supervision. It is inconceivable that Congress, when it passed the act, authorized the Board to give to every word in the act whatever meaning it wished. On the contrary, Congress intended then, and it intends now, that the Board give to words not far-fetched meanings but ordinary *168 meanings." H. R. Rep. No. 245, 80th Cong., 1st Sess., 18 (emphasis added). See also 93 Cong. Rec. 6441-6442; H. R. Conf. Rep. No. 80th Cong., 1st Sess., 32-33 The 1947 Taft-Hartley revision made clear that general agency principles could not be ignored in distinguishing "employees" from independent contractors. Although Hearst was thus repudiated, we do not think its approach has been totally discredited. In doubtful cases resort must still be had to economic and policy considerations to infuse 2 (3) with meaning. But, as the House comments quoted above demonstrate, this is not a doubtful case. The ordinary meaning of "employee" does not include retired workers; retired employees have ceased to work for another for hire. The decisions on which the Board relied in construing 2 (3) to the contrary |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | the Board relied in construing 2 (3) to the contrary are wide of the mark. The Board enumerated "unfair labor practice situations where the statute has been applied to persons who have not been initially hired by an employer or whose employment has terminated. Illustrative are cases in which the Board has held that applicants for employment and registrants at hiring hallswho have never been hired in the first placeas well as persons who have quit or whose employers have gone out of business are `employees' embraced by the policies of the Act." 177 N. L. R. B., at 913 (citations omitted). Yet all of these cases involved people who, unlike the pensioners here, were members of the active work force available for hire and at least in that sense could be identified as "employees." No decision under the Act is cited, and none to our knowledge exists, in which an individual who has ceased work without expectation of further employment has been held to be an "employee." *169 The Board also found support for its position in decisions arising under 302 (c) (5) of the Labor Management Relations Act, 29 U.S. C. 186 (c) (5). Section 302 prohibits, inter alia, any payment by an employer to any representative of any of his employees. Subsection (c) (5) provides an exemption for payments to an employee trust fund established "for the sole and exclusive benefit of the employees of such employer" and administered by equal numbers of representatives of the employer and employees. The word "employee," as used in that provision, has been construed to include "current employees and persons who were current employees but are now retired."[8] The Board considered that it would be anomalous to hold "that retired employees are not `employees' whose ongoing benefits are fit subjects of bargaining under Section 8 (a) (5), while under [ 302 (c)] they are `employees' for the purpose of administering the same health insurance benefits. It would create the further anomaly that a union would not be entitled to act as the representative of retired employees under Section 8 (a) (5), while subject to an explicit statutory duty to act as their representative under [ 302 (c)]." 177 N. L. R. B., at 915.[9] Yet the rationale of Blassie is not at all in point. The question there was simply whether under 302 (c) (5) retirees remain eligible for benefits of trust funds established *1 during their active employment. The conclusion that they do was compelled by the fact that the contrary reading of the statute would have made illegal contributions |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | contrary reading of the statute would have made illegal contributions to pension plans, which the statute expressly contemplates in subsections (A) and (C).[10] No comparable situation exists in this case. Furthermore, there is no anomaly in the conclusion that retired workers are "employees" within 302 (c) (5) entitled to the benefits negotiated while they were active employees, but are not "employees" whose ongoing benefits are embraced by the bargaining obligation of 8 (a) (5). Contrary to the Board's assertion, the union's role in the administration of the fund is of a far different order from its duties as collective-bargaining agent. To accept the Board's reasoning that the union's 302 (c) (5) responsibilities dictate the scope of the 8 (a) (5) collective-bargaining *171 obligation would be to allow the tail to wag the dog.[11] Second. Section 9 (a) of the Labor Relations Act accords representative status only to the labor organization selected or designated by the majority of employees in a "unit appropriate" "for the purposes of collective bargaining." Section 9 (b) goes on to direct the Labor Board to "decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining shall be the employer unit, craft unit, plant unit, or subdivision thereof" as amended, 29 U.S. C. 159 (b). We have always recognized that, in making these determinations, the Board is accorded broad discretion. See -135; Pittsburgh Glass Moreover, the Board's findings of fact, if supported by substantial evidence, are conclusive. National Labor Relations Act, 10 (e), as amended, 29 U.S. C. 160 (e). But the Board's powers in respect of unit determinations are not without limits, and if its *172 decision "oversteps the law," Packard it must be reversed. In this cause, in addition to holding that pensioners are not "employees" within the meaning of the collective-bargaining obligations of the Act, we hold that they were not and could not be "employees" included in the bargaining unit. The unit determined by the Board to be appropriate was composed of "employees of the Employer's plant working on hourly rates, including group leaders who work on hourly rates of pay" Apart from whether retirees could be considered "employees" within this language, they obviously were not employees "working" or "who work" on hourly rates of pay. Although those terms may include persons on temporary or limited absence from work, such as employees on military duty, it would utterly destroy the function of language to read them as embracing those whose work has |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | language to read them as embracing those whose work has ceased with no expectation of return. In any event, retirees could not properly be joined with the active employees in the unit that the Union represents. "As a standard, the Board must comply with the requirement that the unit selected must be one to effectuate the policy of the act, the policy of efficient collective bargaining." Pittsburgh Glass The Board must also exercise care that the rights of employees under 7 of the Act "to self-organization [and] to bargain collectively through representatives of their own choosing" are duly respected. In line with these standards, the Board regards as its primary concern in resolving unit issues "to group together only employees who have substantial mutual interests in wages, hours, and other conditions of employment." 15 Ann. Rep. 39 (1950). Such a mutuality of interest serves to assure the coherence among employees necessary for efficient collective bargaining and at the same time to prevent a functionally *173 distinct minority group of employees from being submerged in an overly large unit. See Kalamazoo Paper Box Corp., 136 N. L. R. B. 134, 137 Here, even if, as the Board found, active and retired employees have a common concern in assuring that the latter's benefits remain adequate, they plainly do not share a community of interests broad enough to justify inclusion of the retirees in the bargaining unit. Pensioners' interests extend only to retirement benefits, to the exclusion of wage rates, hours, working conditions, and all other terms of active employment. Incorporation of such a limited-purpose constituency in the bargaining unit would create the potential for severe internal conflicts that would impair the unit's ability to function and would disrupt the processes of collective bargaining. Moreover, the risk cannot be overlooked that union representatives on occasion might see fit to bargain for improved wages or other conditions favoring active employees at the expense of retirees' benefits.[12] But we need not rely on our own assessment of the probable consequences of including retirees in the bargaining unit to conclude that the resulting unit would *174 be inappropriate. The Board itself has previously recognized that retirees do not have a sufficient interest to warrant participation in the election of a collective-bargaining agent. In Public Service Corp. of New Jersey, 72 N. L. R. B. 224, 229-230 for example, the Board stated: "We have considerable doubt as to whether or not pensioners are employees within the meaning of Section 2 (3) of the Act, since they no longer perform any work for the Employers, and have little |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | longer perform any work for the Employers, and have little expectancy of resuming their former employment. In any event, even if pensioners were to be considered as employees, we believe that they lack a substantial community of interest with the employees who are presently in the active service of the Employers. Accordingly, we find that pensioners are ineligible to vote in the election."[13] The Board argues, however, that the pensioners' ineligibility to vote is not dispositive of their right to membership in the bargaining unit, since the franchise and the right to membership depend upon different levels of interest in the unit.[14] Yet in W. D. Byron & Sons of Maryland, Inc., 55 N. L. R. B. 172, 174-175 which the Board found controlling in Public Service Corp. of New Jersey, see 72 N. L. R. B., at 230 n. 10, the Board not merely held ineligible to vote, but expressly *175 excluded from the bargaining unit pensioners who had little expectation of further employment. In any event, it would be clearly inconsistent with the majority rule principle of the Act to deny a member of the unit at the time of an election a voice in the selection of his bargaining representative.[15] The Board's own holdings thus compel the conclusion that a unit composed of active and retired workers would be inappropriate. Third. The Board found that bargaining over pensioners' rights has become an established industrial practice. *176 But industrial practice cannot alter the conclusions that retirees are neither "employees" nor bargaining unit members. The parties dispute whether a practice of bargaining over pensioners' benefits exists and, if so, whether it reflects the views of labor and management that the subject is not merely a convenient but a mandatory topic of negotiation.[16] But even if industry commonly regards retirees' benefits as a statutory subject of bargaining, that would at most, as we suggested in Fibreboard reflect the interests of employers and employees in the subject matter as well as its amenability to the collective-bargaining process; it would not be determinative. Common practice cannot change the law and make into bargaining unit "employees" those who are not. III Even if pensioners are not bargaining unit "employees," are their benefits, nonetheless, a mandatory subject of collective bargaining as "terms and conditions of employment" of the active employees who remain in the unit? The Board held, alternatively, that they are, on the ground that they "vitally" affect the "terms and conditions of employment" of active employees principally by influencing the value of both their current and future benefits. 177 N. L. R. |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | both their current and future benefits. 177 N. L. R. B., at 915.[17] The Board explained: *177 "It is not uncommon to group active and retired employees under a single health insurance contract with the result that it is the size and experience of the entire group which may determine insurance rates." Consequently, active employees may "benefit from the membership of retired employees in the group whose participation enlarges its size and might thereby lower costs per participant." Furthermore, the actual value of future benefits depends upon contingencies, such as inflation and changes in public law, which the parties cannot adequately anticipate and over which they have little or no control. By establishing a practice of representing *178 retired employees in resolving those contingencies as they arise, active workers can insure that their own retirement benefits will survive the passage of time. This, in turn, the Board contends, facilitates the peaceful settlement of disputes over active employees' pension plans. The Board's arguments are not insubstantial, but they do not withstand careful scrutiny. Section 8 (d) of the Act, of course, does not immutably fix a list of subjects for mandatory bargaining. See, e. g., Fibreboard ; Richfield Oil 97 U. S. App. D. C. 383, 389-390, But it does establish a limitation against which proposed topics must be measured. In general terms, the limitation includes only issues that settle an aspect of the relationship between the employer and employees. See, e. g., Although normally matters involving individuals outside the employment relationship do not fall within that category, they are not wholly excluded. In Teamsters for example, an agreement had been negotiated in the trucking industry, establishing a minimum rental that carriers would pay to truck owners who drove their own vehicles in the carriers' service in place of the latter's employees. Without determining whether the owner-drivers were themselves "employees," we held that the minimum rental was a mandatory subject of bargaining, and hence immune from state antitrust laws, because the term "was integral to the establishment of a stable wage structure for clearly covered employee-drivers." United 368 U.S. 3,[18] Similarly, *179 in Fibreboard we held that "the type of `contracting out' involved in this casethe replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employmentis a statutory subject of collective bargaining" As we said there, "the work of the employees in the bargaining unit was let out piecemeal in Oliver, whereas here the work of the entire unit has been contracted out." The Board urges that |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | entire unit has been contracted out." The Board urges that Oliver and Fibreboard provide the principle governing this cause. The Company, on the other hand, would distinguish those decisions on the ground that the unions there sought to protect employees from outside threats, not to represent the interests of third parties. We agree with the Board that the principle of Oliver and Fibreboard is relevant here; in each case the question is not whether the third-party concern is antagonistic to or compatible with the interests of bargaining-unit employees, but whether it vitally affects the "terms and conditions" of their employment.[19] But we disagree with the Board's assessment of the significance of a change in retirees' benefits to the "terms and conditions of employment" of active employees. *180 The benefits that active workers may reap by including retired employees under the same health insurance contract are speculative and insubstantial at best. As the Board itself acknowledges in its brief, the relationship between the inclusion of retirees and the overall insurance rate is uncertain. Adding individuals increases the group experience and thereby generally tends to lower the rate, but including pensioners, who are likely to have higher medical expenses, may more than offset that effect. In any event, the impact one way or the other on the "terms and conditions of employment" of active employees is hardly comparable to the loss of jobs threatened in Oliver and Fibreboard. In Fibreboard, after holding that "the replacement of employees in the existing bargaining unit with those of an independent contractor to do the same work under similar conditions of employment" is a mandatory subject of bargaining, we noted that our decision did "not encompass other forms of `contracting out' or `subcontracting' which arise daily in our complex economy." 379 U.S., The inclusion of retirees in the same insurance contract surely has even less impact on the "terms and conditions of employment" of active employees than some of the contracting activities that we excepted from our holding in Fibreboard. The mitigation of future uncertainty and the facilitation of agreement on active employees' retirement plans, that the Board said would follow from the union's representation of pensioners, are equally problematical. To be sure, the future retirement benefits of active workers are part and parcel of their overall compensation and hence a well-established statutory subject of bargaining. Moreover, provisions of those plans to guard against future contingencies are equally subsumed under the collective-bargaining obligation. Under the Board's *181 theory, active employees undertake to represent pensioners in order to protect their own retirement benefits, just as if they |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | to protect their own retirement benefits, just as if they were bargaining for, say, a cost-of-living escalation clause. But there is a crucial difference. Having once found it advantageous to bargain for improvements in pensioners' benefits, active workers are not forever thereafter bound to that view or obliged to negotiate in behalf of retirees again.[] To the contrary, they are free to decide, for example, that current income is preferable to greater certainty in their own retirement benefits or, indeed, to their retirement benefits altogether. By advancing pensioners' interests now, active employees, therefore, have no assurance that they will be the beneficiaries of similar representation when they retire. The insurance against future contingencies *182 that they may buy in negotiating benefits for retirees is thus a hazardous and, therefore, improbable investment, far different from a cost-of-living escalation clause that they could contractually enforce in court. See n. We find, accordingly, that the effect that the Board asserts bargaining in behalf of pensioners would have on the negotiation of active employees' retirement plans is too speculative a foundation on which to base an obligation to bargain. Nor does the Board's citation of industrial practice provide any ground for concluding otherwise. The Board states in its brief that "[n]either the bargaining representative nor the active employees can help but recognize that the active employees of today are the retirees of tomorrowindeed, such a realization undoubtedly underlies the widespread industrial practice of bargaining about benefits of those who have already retired. and explains the vigorous interest which the Union has taken in this case." But accepting the Board's finding that the industrial practice exists, we find nowhere a particle of evidence cited showing that the explanation for this lies in the concern of active workers for their own future retirement benefits. We recognize that "classification of bargaining subjects as `terms [and] conditions of employment' is a matter concerning which the Board has special expertise." Meat The Board's holding in this cause, however, depends on the application of law to facts, and the legal standard to be applied is ultimately for the courts to decide and enforce. We think that in holding the "terms and conditions of employment" of active employees to be vitally affected by pensioners' benefits, the Board here simply neglected to give the adverb its ordinary meaning. Cf. v. Brown, *183 IV The question remains whether the Company committed an unfair labor practice by offering retirees an exchange for their withdrawal from the already negotiated health insurance plan. After defining "to bargain collectively" as meeting and conferring "with respect to wages, |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | bargain collectively" as meeting and conferring "with respect to wages, hours, and other terms and conditions of employment," 8 (d) of the Act goes on to provide in relevant part that "where there is in effect a collective-bargaining contract covering employees in an industry affecting commerce, the duty to bargain collectively shall also mean that no party to such contract shall terminate or modify such contract" except upon (1) timely notice to the other party, (2) an offer to meet and confer "for the purpose of negotiating a new contract or a contract containing the proposed modifications," (3) timely notice to the Federal Mediation and Conciliation Service and comparable state or territorial agencies of the existence of a "dispute," and (4) continuation "in full force and effect [of] all the terms and conditions of the existing contract until [its] expiration date"[] *184 The Board's trial examiner ruled that the Company's action in offering retirees a change in their health plan did not amount to a "modification" of the collective-bargaining agreement in violation of 8 (d), since the pensioners had merely been given an additional option that they were free to accept or decline as they saw fit. *185 The Board rejected that conclusion on the ground that there were several possible ways of adjusting the negotiated plan to the Medicare provisions and the Company "modified" the contract by unilaterally choosing one of them. The Company now urges, in effect, that we adopt the views of the trial examiner. We need not resolve, however, whether there was a "modification" within the meaning of 8 (d), because we hold that even if there was, a "modification" is a prohibited unfair labor practice only when it changes a term that is a mandatory rather than a permissive subject of bargaining. Paragraph (4) of 8 (d), of course, requires that a party proposing a modification continue "in full force and effect all the terms and conditions of the existing contract" until its expiration. Viewed in isolation from the rest of the provision, that language would preclude any distinction between contract obligations that are "terms and conditions of employment" and those that are not. But in construing 8 (d), " `we must not be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.' " Mastro Plastics 350 U.S. 2, See also v. Lion Oil Co., Seen in that light, 8 (d) embraces only mandatory topics of bargaining. The provision begins by defining "to bargain collectively" as meeting and conferring |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | begins by defining "to bargain collectively" as meeting and conferring "with respect to wages, hours, and other terms and conditions of employment." It then goes on to state that "the duty to bargain collectively shall also mean" that mid-term unilateral modifications and terminations are prohibited. Although this part of the section is introduced by a "proviso" clause, see n. it quite plainly is to be construed in pari materia with the preceding definition. Accordingly, just as 8 (d) defines the obligation to bargain *186 to be with respect to mandatory terms alone, so it prescribes the duty to maintain only mandatory terms without unilateral modification for the duration of the collective-bargaining agreement.[22] The relevant purpose of 8 (d) that emerges from the legislative history of the Act together with the text of the provision confirms this understanding. The section stems from the 1947 revision of the Act, an important theme of which was to stabilize collective-bargaining agreements. The Senate bill, in particular, contained provisions in 8 (d) and 301 (a) to prohibit unilateral mid-term modifications and terminations and to confer federal jurisdiction over suits for contract violations. See S. 1126, 80th Cong., 1st Sess., 8 (d), 301 (a). The bill also included provisions to make it an unfair labor practice for an employer or labor organization "to violate the terms of a collective-bargaining agreement." 8 (a) (6), 8 (b) (5). In conference the Senate's proposed 8 (d) and 301 (a) were adopted with relatively few changes. See H. R. Conf. Rep. No. The provisions to make contract violations an unfair labor practice, on the other hand, were rejected with the explanation that "[o]nce parties have made a collective bargaining contract the *187 enforcement of that contract should be left to the usual processes of the law and not to the National Labor Relations Board." The purpose of the proscription of unilateral mid-term modifications and terminations in 8 (d) cannot be, therefore, simply to assure adherence to contract terms. As far as unfair-labor-practice remedies are concerned, that goal was to be achieved through other unfair-labor-practice provisions that were rejected in favor of customary judicial procedures. See Dowd Box -513 The structure and language of 8 (d) point to a more specialized purpose than merely promoting general contract compliance. The conditions for a modification or termination set out in paragraphs (1) through (4) plainly are designed to regulate modifications and terminations so as to facilitate agreement in place of economic warfare. Thus, the party desiring to make a modification or termination is required to serve a written notice on the other party, |
Justice Brennan | 1,971 | 13 | majority | Chemical Workers v. Pittsburgh Plate Glass Co. | https://www.courtlistener.com/opinion/108409/chemical-workers-v-pittsburgh-plate-glass-co/ | required to serve a written notice on the other party, offer to meet and confer, notify mediation and conciliation agencies if necessary, and meanwhile maintain contract relations. Accordingly, we think we accurately described the relevant aim of 8 (d) when we said in Mastro Plastics that the provision "seeks to bring about the termination and modification of collective-bargaining agreements without interrupting the flow of commerce or the production of goods" If that is correct, the distinction that we draw between mandatory and permissive terms of bargaining fits the statutory purpose. By once bargaining and agreeing on a permissive subject, the parties, naturally, do not make the subject a mandatory topic of future bargaining. When a proposed modification is to a permissive term, therefore, the purpose of facilitating accord on the proposal is not at all on point, since the parties are not *188 required under the statute to bargain with respect to it. The irrelevance of the purpose is demonstrated by the irrelevance of the procedures themselves of 8 (d). Paragraph (2), for example, requires an offer "to meet and confer with the other party for the purpose of negotiating a new contract or a contract containing the proposed modifications." But such an offer is meaningless if a party is statutorily free to refuse to negotiate on the proposed change to the permissive term. The notification to mediation and conciliation services referred to in paragraph (3) would be equally meaningless, if required at all.[23] We think it would be no less beside the point to read paragraph (4) of 8 (d) as requiring continued adherence to permissive as well as mandatory terms. The remedy for a unilateral mid-term modification to a permissive term lies in an action for breach of contract, see n. not in an unfair-labor-practice proceeding.[24] As a unilateral mid-term modification of a permissive term such as retirees' benefits does not, therefore, violate 8 (d), the judgment of the Court of Appeals is Affirmed. MR. JUSTICE DOUGLAS dissents. |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | Like 35 other States and the Federal Government, Kentucky has chosen to impose capital punishment for certain crimes. As is true with respect to each of these States and the Federal Government, Kentucky has altered its method of execution over time to more humane means of carrying out the sentence. That progress has led to the use of lethal injection by every *1526 jurisdiction that imposes the death penalty. Petitioners in this caseeach convicted of double homicideacknowledge that the lethal injection procedure, if applied as intended, will result in a humane death. They nevertheless contend that the lethal injection protocol is unconstitutional under the Eighth Amendment's ban on "cruel and unusual punishments," because of the risk that the protocol's terms might not be properly followed, resulting in significant pain. They propose an alternative protocol, one that they concede has not been adopted by any State and has never been tried. The trial court held extensive hearings and entered detailed Findings of Fact and Conclusions of Law. It recognized that "[t]here are no methods of legal execution that are satisfactory to those who oppose the death penalty on moral, religious, or societal grounds," but concluded that Kentucky's procedure "complies with the constitutional requirements against cruel and unusual punishment." App. 769. The State Supreme Court affirmed. We too agree that petitioners have not carried their burden of showing that the risk of pain from maladministration of a concededly humane lethal injection protocol, and the failure to adopt untried and untested alternatives, constitute cruel and unusual punishment. The judgment below is affirmed. I A By the middle of the 19th century, "hanging was the `nearly universal form of execution' in the United States." ); Getting to Death: Are Executions Constitutional? 82 Iowa L.Rev. 319, 364 (counting 48 States and Territories that employed hanging as a method of execution). In 1888, following the recommendation of a commission empaneled by the Governor to find "`the most humane and practical method known to modern science of carrying into effect the sentence of death,'" New York became the first State to authorize electrocution as a form of capital punishment. ; By 11 other States had followed suit, motivated by the "well-grounded belief that electrocution is less painful and more humane than hanging." Electrocution remained the predominant mode of execution for nearly a century, although several methods, including hanging, firing squad, and lethal gas were in use at one time. Brief for Fordham University School of Law et al. as Amici Curiae 5-9 (hereinafter Fordham Brief). Following the 9-year hiatus in executions that ended with our decision in |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | 9-year hiatus in executions that ended with our decision in however, state legislatures began responding to public calls to reexamine electrocution as a means of assuring a humane death. See S. Banner, The Death Penalty: An American History 192-193, 296-297 (2002). In 1977, legislators in Oklahoma, after consulting with the head of the anesthesiology department at the University of Oklahoma College of Medicine, introduced the first bill proposing lethal injection as the State's method of execution. See Brief for Petitioners 4; Fordham Brief 21-22. A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the *1527 most prevalent method of execution in the United States.[1] It is also the method used by the Federal Government. See et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a-6a (lethal injection protocol used by the Federal Bureau of Prisons). Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. B Kentucky replaced electrocution with lethal injection in Ky. Acts *1528 ch. 220, p. 777. The Kentucky statute does not specify the drugs or categories of drugs to be used during an execution, instead mandating that "every death sentence shall be executed by continuous intravenous injection of a substance or combination of substances sufficient to cause death." Ky.Rev.Stat. Ann. 431.220(1)(a) Prisoners sentenced before have the option of electing either electrocution or lethal injection, but lethal injection is the default ifas is the case with petitionersthe prisoner refuses to make a choice at least 20 days before the scheduled execution. 431.220(1)(b). If a court invalidates Kentucky's lethal injection method, Kentucky law provides that the method of execution will revert to electrocution. 431.223. Shortly after the adoption of lethal injection, officials working for the Kentucky Department of Corrections set about developing a written protocol to |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | Department of Corrections set about developing a written protocol to comply with the requirements of 431.220(1)(a). Kentucky's protocol called for the injection of 2 grams of sodium thiopental, 50 milli-grams of pancuronium bromide, and 240 milliequivalents of potassium chloride. In as a result of this litigation, the department chose to increase the amount of sodium thiopental from 2 grams to 3 grams. App. 762-763, 768. Between injections, members of the execution team flush the intravenous (IV) lines with 25 milligrams of saline to prevent clogging of the lines by precipitates that may form when residual sodium thiopental comes into contact with pancuronium bromide. The protocol reserves responsibility for inserting the IV catheters to qualified personnel having at least one year of professional experience. Currently, Kentucky uses a certified phlebotomist and an emergency medical technician (EMT) to perform the venipunctures necessary for the catheters. They have up to one hour to establish both primary and secondary peripheral intravenous sites in the arm, hand, leg, or foot of the inmate. Other personnel are responsible for mixing the solutions containing the three drugs and loading them into syringes. Kentucky's execution facilities consist of the execution chamber, a control room separated by a one-way window, and a witness room. The warden and deputy warden remain in the execution chamber with the prisoner, who is strapped to a gurney. The execution team administers the drugs remotely from the control room through five feet of IV tubing. If, as determined by the warden and deputy warden through visual inspection, the prisoner is not unconscious within 60 seconds following the delivery of the sodium thiopental to the primary IV site, a new 3-gram dose of thiopental is administered to the secondary site before injecting the pancuronium and potassium chloride. In addition to assuring that the first dose of thiopental is successfully administered, the warden and deputy warden also watch for any problems with the IV catheters and tubing. A physician is present to assist in any effort to revive the prisoner in the event of a last-minute stay of execution. By statute, however, the physician is prohibited from participating in the "conduct of an execution," except to certify the cause of death. Ky.Rev.Stat. Ann. 431.220(3). An electrocardiogram (EKG) verifies the death of the prisoner. App. 764. Only one Kentucky prisoner, Eddie Lee Harper, has been executed since the Commonwealth adopted lethal injection. There were no reported problems at Harper's execution. C Petitioners Ralph Baze and Thomas C. Bowling were each convicted of two counts *1529 of capital murder and sentenced to death. The Kentucky Supreme Court upheld |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | murder and sentenced to death. The Kentucky Supreme Court upheld their convictions and sentences on direct appeal. See cert. denied, ; cert. denied, After exhausting their state and federal collateral remedies, Baze and Bowling sued three state officials in the Franklin Circuit Court for the Commonwealth of Kentucky, seeking to have Kentucky's lethal injection protocol declared unconstitutional. After a 7-day bench trial during which the trial court received the testimony of approximately 20 witnesses, including numerous experts, the court upheld the protocol, finding there to be minimal risk of various claims of improper administration of the protocol. App. 765-769. On appeal, the Kentucky Supreme Court stated that a method of execution violates the Eighth Amendment when it "creates a substantial risk of wanton and unnecessary infliction of pain, torture or lingering death." Applying that standard, the court affirmed. We granted certiorari to determine whether Kentucky's lethal injection protocol satisfies the Eighth Amendment. 551 U.S. We hold that it does. II The Eighth Amendment to the Constitution, applicable to the States through the Due Process Clause of the Fourteenth Amendment, see provides that "[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." We begin with the principle, settled by that capital punishment is constitutional. See (joint opinion of Stewart, Powell, and STEVENS, JJ.). It necessarily follows that there must be a means of carrying it out. Some risk of pain is inherent in any method of executionno matter how humaneif only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions. Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an "unnecessary risk" of pain. Brief for Petitioners 38. Specifically, they argue that courts must evaluate "(a) the severity of pain risked, (b) the likelihood of that pain occurring, and (c) the extent to which alternative means are feasible, either by modifying existing execution procedures or adopting alternative procedures." Petitioners envision that the quantum of risk necessary to make out an Eighth Amendment claim will vary according to the severity of the pain and the availability of alternatives, Reply Brief for Petitioners 23-24, n. 9, but that the risk must be "significant" to trigger Eighth Amendment scrutiny, see Brief for Petitioners 39-40; Reply Brief for Petitioners 25-26. Kentucky responds that this "unnecessary risk" standard is tantamount to a requirement that States adopt the "`least risk'" alternative in carrying out an execution, a standard the |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | risk'" alternative in carrying out an execution, a standard the Commonwealth contends will cast recurring constitutional doubt on any procedure adopted by the States. Brief for Respondents 29, 35. Instead, Kentucky urges the Court to approve the "`substantial risk'" test used by the courts below. *1530 A This Court has never invalidated a State's chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment. In we upheld a sentence to death by firing squad imposed by a territorial court, rejecting the argument that such a sentence constituted cruel and unusual punishment. We noted there the difficulty of "defin[ing] with exactness the extent of the constitutional provision which provides that cruel and unusual punishments shall not be inflicted." Rather than undertake such an effort, the Wilkerson Court simply noted that "it is safe to affirm that punishments of torture, and all others in the same line of unnecessary cruelty, are forbidden" by the Eighth Amendment. By way of example, the Court cited cases from England in which "terror, pain, or disgrace were sometimes superadded" to the sentence, such as where the condemned was "embowelled alive, beheaded, and quartered," or instances of "public dissection in murder, and burning alive." In contrast, we observed that the firing squad was routinely used as a method of execution for military officers. What each of the forbidden punishments had in common was the deliberate infliction of pain for the sake of pain"superadd[ing]" pain to the death sentence through torture and the like. We carried these principles further in In re Kemmler, There we rejected an opportunity to incorporate the Eighth Amendment against the States in a challenge to the first execution by electrocution, to be carried out by the State of New York. In passing over that question, however, we observed that "[p]unishments are cruel when they involve torture or a lingering death; but the punishment of death is not cruel within the meaning of that word as used in the Constitution. It implies there something inhuman and barbarous, something more than the mere extinguishment of life." We noted that the New York statute adopting electrocution as a method of execution "was passed in the effort to devise a more humane method of reaching the result." B Petitioners do not claim that lethal injection or the proper administration of the particular protocol adopted by Kentucky by themselves constitute the cruel or wanton infliction of pain. Quite the contrary, they concede that "if performed properly," an execution carried out under Kentucky's procedures would be "humane and constitutional." Brief for Petitioners |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | Kentucky's procedures would be "humane and constitutional." Brief for Petitioners 31. That is because, as counsel for petitioners admitted at oral argument, proper administration of the first drug, sodium thiopental, eliminates any meaningful risk that a prisoner would experience pain from the subsequent injections of pancuronium and potassium chloride. See Tr. of Oral Arg. 5; App. 493-494 (testimony of petitioners' expert that, if sodium thiopental is "properly administered" under the protocol, "[i]n virtually every case, then that would be a humane death"). Instead, petitioners claim that there is a significant risk that the procedures will not be properly followedin particular, that the sodium thiopental will not be properly administered to achieve its intended effectresulting in severe pain when the other chemicals are administered. Our cases recognize that subjecting individuals to a risk of future harmnot simply actually inflicting paincan qualify as cruel and unusual punishment. To establish that such exposure violates the Eighth Amendment, however, the conditions presenting *1531 the risk must be "sure or very likely to cause serious illness and needless suffering," and give rise to "sufficiently imminent dangers." We have explained that to prevail on such a claim there must be a "substantial risk of serious harm," an "objectively intolerable risk of harm" that prevents prison officials from pleading that they were "subjectively blameless for purposes of the Eighth Amendment." Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of "objectively intolerable risk of harm" that qualifies as cruel and unusual. In Louisiana ex rel. a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that "[a]ccidents happen for which no man is to blame," and concluded that such "an accident, with no suggestion of malevolence," did not give rise to an Eighth Amendment violation, -464, As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, "a hypothetical situation" involving "a series of abortive attempts at electrocution" would present a different case. (concurring opinion). In terms of our present Eighth Amendment analysis, such a situation unlike an "innocent misadventure," would demonstrate an "objectively intolerable risk of harm" that officials may not ignore. See and n. 9, In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a "substantial risk of serious harm." |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | issue gives rise to a "substantial risk of serious harm." C Much of petitioners' case rests on the contention that they have identified a significant risk of harm that can be eliminated by adopting alternative procedures, such as a one-drug protocol that dispenses with the use of pancuronium and potassium chloride, and additional monitoring by trained personnel to ensure that the first dose of sodium thiopental has been adequately delivered. Given what our cases have said about the nature of the risk of harm that is actionable under the Eighth Amendment, a condemned prisoner cannot successfully challenge a State's method of execution merely by showing a slightly or marginally safer alternative. Permitting an Eighth Amendment violation to be established on such a showing would threaten to transform courts into boards of inquiry charged with determining "best practices" for executions, with each ruling supplanted by another round of litigation touting a new and improved methodology. Such an approach finds no support in our cases, would embroil the courts in ongoing scientific controversies beyond their expertise, and would substantially intrude on the role of state legislatures in implementing their execution proceduresa role that by all accounts the States have fulfilled with an earnest desire to provide for a progressively more humane manner of death. See Accordingly, we reject petitioners' proposed "unnecessary risk" standard, as well as the dissent's "untoward" risk variation. See post, at 1567, 1572 (opinion of GINSBURG, J.).[2] Instead, the proffered alternatives must effectively address a "substantial risk of serious harm." To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as "cruel and unusual" under the Eighth Amendment.[3] III In applying these standards to the facts of this case, we note at the outset that it is difficult to regard a practice as "objectively intolerable" when it is in fact widely tolerated. Thirty-six States that sanction capital punishment have adopted lethal injection as the preferred method of execution. The Federal Government uses lethal injection as well. See and n. 1. This broad consensus goes not just to the method of execution, but also to the specific three-drug combination used by Kentucky. Thirty States, as well as the Federal Government, use a series of sodium thiopental, pancuronium bromide, and potassium chloride, in varying amounts. See No State uses or |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | potassium chloride, in varying amounts. See No State uses or has ever used the alternative one-drug protocol belatedly urged by petitioners. This *1533 consensus is probative but not conclusive with respect to that aspect of the alternatives proposed by petitioners. In order to meet their "heavy burden" of showing that Kentucky's procedure is "cruelly inhumane," (joint opinion of Stewart, Powell, and STEVENS, JJ.), petitioners point to numerous aspects of the protocol that they contend create opportunities for error. Their claim hinges on the improper administration of the first drug, sodium thiopental. It is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and pain from the injection of potassium chloride. See Tr. of Oral Arg. 27. We agree with the state trial court and State Supreme Court, however, that petitioners have not shown that the risk of an inadequate dose of the first drug is substantial. And we reject the argument that the Eighth Amendment requires Kentucky to adopt the untested alternative procedures petitioners have identified. A Petitioners contend that there is a risk of improper administration of thiopental because the doses are difficult to mix into solution form and load into syringes; because the protocol fails to establish a rate of injection, which could lead to a failure of the IV; because it is possible that the IV catheters will infiltrate into surrounding tissue, causing an inadequate dose to be delivered to the vein; because of inadequate facilities and training; and because Kentucky has no reliable means of monitoring the anesthetic depth of the prisoner after the sodium thiopental has been administered. Brief for Petitioners 12-20. As for the risk that the sodium thiopental would be improperly prepared, petitioners contend that Kentucky employs untrained personnel who are unqualified to calculate and mix an adequate dose, especially in light of the omission of volume and concentration amounts from the written protocol. The state trial court, however, specifically found that "[i]f the manufacturers' instructions for reconstitution of Sodium Thiopental are followed,. there would be minimal risk of improper mixing, despite converse testimony that a layperson would have difficulty performing this task." App. 761. We cannot say that this finding is clearly erroneous, see 111 S. Ct. 9, particularly when that finding is substantiated by expert testimony describing the task of reconstituting powder sodium thiopental into solution form as "[n]ot difficult at all. You take a liquid, you inject it into a vial with the powder, then you shake it up |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | a vial with the powder, then you shake it up until the powder dissolves and, you're done. The instructions are on the package insert." 5 Tr. 695 (Apr. 19, 2005). Likewise, the asserted problems related to the IV lines do not establish a sufficiently substantial risk of harm to meet the requirements of the Eighth Amendment. Kentucky has put in place several important safeguards to ensure that an adequate dose of sodium thiopental is delivered to the condemned prisoner. The most significant of these is the written protocol's requirement that members of the IV team must have at least one year of professional experience as a certified medical assistant, phlebotomist, EMT, paramedic, or military corpsman. App. 984. Kentucky currently uses a phlebotomist and an EMT, personnel who have daily experience establishing IV catheters for inmates in Kentucky's prison population. ; Tr. of *1534 Oral Arg. 27-28. Moreover, these IV team members, along with the rest of the execution team, participate in at least 10 practice sessions per year. App. 984. These sessions, required by the written protocol, encompass a complete walk-through of the execution procedures, including the siting of IV catheters into volunteers. In addition, the protocol calls for the IV team to establish both primary and backup lines and to prepare two sets of the lethal injection drugs before the execution commences. These redundant measures ensure that if an insufficient dose of sodium thiopental is initially administered through the primary line, an additional dose can be given through the backup line before the last two drugs are injected. The IV team has one hour to establish both the primary and backup IVs, a length of time the trial court found to be "not excessive but rather necessary," contrary to petitioners' claim that using an IV inserted after any "more than ten or fifteen minutes of unsuccessful attempts is dangerous because the IV is almost certain to be unreliable," Brief for Petitioners 47. And, in any event, merely because the protocol gives the IV team one hour to establish intravenous access does not mean that team members are required to spend the entire hour in a futile attempt to do so. The qualifications of the IV team also substantially reduce the risk of IV infiltration. In addition, the presence of the warden and deputy warden in the execution chamber with the prisoner allows them to watch for signs of IV problems, including infiltration. Three of the Commonwealth's medical experts testified that identifying signs of infiltration would be "very obvious," even to the average person, because of the swelling that would |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | to the average person, because of the swelling that would result. App. 385-386. See Kentucky's protocol specifically requires the warden to redirect the flow of chemicals to the backup IV site if the prisoner does not lose consciousness within 60 seconds. In light of these safeguards, we cannot say that the risks identified by petitioners are so substantial or imminent as to amount to an Eighth Amendment violation. B Nor does Kentucky's failure to adopt petitioners' proposed alternatives demonstrate that the Commonwealth's execution procedure is cruel and unusual. First, petitioners contend that Kentucky could switch from a three-drug protocol to a one-drug protocol by using a single dose of sodium thiopental or other barbiturate. Brief for Petitioners 51-57. That alternative was not proposed to the state courts below.[4] As a result, we are left without any findings on the effectiveness of petitioners' barbiturate-only protocol, despite scattered references in the trial testimony to the sole use of sodium thiopental or pentobarbital as a preferred method of *1535 execution. See Reply Brief for Petitioners 18, n. 6. In any event, the Commonwealth's continued use of the three-drug protocol cannot be viewed as posing an "objectively intolerable risk" when no other State has adopted the one-drug method and petitioners proffered no study showing that it is an equally effective manner of imposing a death sentence. See App. 760-761, n. 8 ("Plaintiffs have not presented any scientific study indicating a better method of execution by lethal injection"). Indeed, the State of Tennessee, after reviewing its execution procedures, rejected a proposal to adopt a one-drug protocol using sodium thiopental. The State concluded that the one-drug alternative would take longer than the three-drug method and that the "required dosage of sodium thiopental would be less predictable and more variable when it is used as the sole mechanism for producing death." We need not endorse the accuracy of those conclusions to note simply that the comparative efficacy of a one-drug method of execution is not so well established that Kentucky's failure to adopt it constitutes a violation of the Eighth Amendment. Petitioners also contend that Kentucky should omit the second drug, pancuronium bromide, because it serves no therapeutic purpose while suppressing muscle movements that could reveal an inadequate administration of the first drug. The state trial court, however, specifically found that pancuronium serves two purposes. First, it prevents involuntary physical movements during unconsciousness that may accompany the injection of potassium chloride. App. 763. The Commonwealth has an interest in preserving the dignity of the procedure, especially where convulsions or seizures could be misperceived as signs of consciousness |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | convulsions or seizures could be misperceived as signs of consciousness or distress. Second, pancuronium stops respiration, hastening death. Kentucky's decision to include the drug does not offend the Eighth Amendment.[5] Petitioners' barbiturate-only protocol, they contend, is not untested; it is used routinely by veterinarians in putting animals to sleep. Moreover, 23 States, including Kentucky, bar veterinarians from using a neuromuscular paralytic agent like pancuronium bromide, either expressly or, like Kentucky, by specifically directing the use of a drug like sodium pentobarbital. See Brief for Dr. Kevin Concannon et al. as Amici Curiae 18, n. 5. If pancuronium is too cruel for animals, the argument goes, then it must be too cruel for the condemned inmate. Whatever rhetorical force the argument carries, see it overlooks the States' legitimate interest in providing for a quick, certain death. In the Netherlands, for example, where physician-assisted euthanasia is permitted, the Royal Dutch Society for the Advancement of Pharmacy recommends the use of a muscle relaxant (such as pancuronium dibromide) in addition to thiopental in order to prevent a prolonged, undignified death. See Kimsma, Euthanasia and Euthanizing Drugs in The Netherlands, reprinted in Drug Use in Assisted Suicide and Euthanasia 193, 200, 204 (M. Battin & A. Lipman eds.1996). That concern may be less compelling in the veterinary context, and in any event other methods approved by veterinarianssuch *1536 as stunning the animal or severing its spinal cord, see 6 Tr. 758-759 (Apr. 20, 2005)make clear that veterinary practice for animals is not an appropriate guide to humane practices for humans. Petitioners also fault the Kentucky protocol for lacking a systematic mechanism for monitoring the "anesthetic depth" of the prisoner. Under petitioners' scheme, qualified personnel would employ monitoring equipment, such as a Bispectral Index (BIS) monitor, blood pressure cuff, or EKG to verify that a prisoner has achieved sufficient unconsciousness before injecting the final two drugs. The visual inspection performed by the warden and deputy warden, they maintain, is an inadequate substitute for the more sophisticated procedures they envision. Brief for Petitioners 19, 58. At the outset, it is important to reemphasize that a proper dose of thiopental obviates the concern that a prisoner will not be sufficiently sedated. All the experts who testified at trial agreed on this point. The risks of failing to adopt additional monitoring procedures are thus even more "remote" and attenuated than the risks posed by the alleged inadequacies of Kentucky's procedures designed to ensure the delivery of thiopental. See ; But more than this, Kentucky's expert testified that a blood pressure cuff would have no utility in assessing the |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | blood pressure cuff would have no utility in assessing the level of the prisoner's unconsciousness following the introduction of sodium thiopental, which depresses circulation. App. 578. Furthermore, the medical community has yet to endorse the use of a BIS monitor, which measures brain function, as an indication of anesthetic awareness. American Society of Anesthesiologists, Practice Advisory for Intraoperative Awareness and Brain Function Monitoring, 104 Anesthesiology 847, 855 ; see The asserted need for a professional anesthesiologist to interpret the BIS monitor readings is nothing more than an argument against the entire procedure, given that both Kentucky law, see Ky.Rev.Stat. Ann. 431.220(3), and the American Society of Anesthesiologists' own ethical guidelines, see Brief for American Society of Anesthesiologists as Amicus Curiae 2-3, prohibit anesthesiologists from participating in capital punishment. Nor is it pertinent that the use of a blood pressure cuff and EKG is "the standard of care in surgery requiring anesthesia," as the dissent points out. Post, at 1570. Petitioners have not shown that these supplementary procedures, drawn from a different context, are necessary to avoid a substantial risk of suffering. The dissent believes that rough-and-ready tests for checking consciousnesscalling the inmate's name, brushing his eyelashes, or presenting him with strong, noxious odorscould materially decrease the risk of administering the second and third drugs before the sodium thiopental has taken effect. See Again, the risk at issue is already attenuated, given the steps Kentucky has taken to ensure the proper administration of the first drug. Moreover, the scenario the dissent posits involves a level of unconsciousness allegedly sufficient to avoid detection of improper administration of the anesthesia under Kentucky's procedure, but not sufficient to prevent pain. See post, at 1570-1571. There is no indication that the basic tests the dissent advocates can make such fine distinctions. If these tests are effective only in determining whether the sodium thiopental has entered the inmate's bloodstream, see post, at 1570, the record confirms *1537 that the visual inspection of the IV site under Kentucky's procedure achieves that objective. See[6] The dissent would continue the stay of these executions (and presumably the many others held in abeyance pending decision in this case) and send the case back to the lower courts to determine whether such added measures redress an "untoward" risk of pain. Post, at 1572. But an inmate cannot succeed on an Eighth Amendment claim simply by showing one more step the State could take as a failsafe for other, independently adequate measures. This approach would serve no meaningful purpose and would frustrate the State's legitimate interest in carrying out a sentence of |
Justice Roberts | 2,008 | 0 | majority | Baze v. Rees | https://www.courtlistener.com/opinion/145817/baze-v-rees/ | the State's legitimate interest in carrying out a sentence of death in a timely manner. See ; (E.D.Ky.2001) Justice STEVENS suggests that our opinion leaves the disposition of other cases uncertain, see post, at 1542-1543, but the standard we set forth here resolves more challenges than he acknowledges. A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State's lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard. * * * Reasonable people of good faith disagree on the morality and efficacy of capital punishment, and for many who oppose it, no method of execution would ever be acceptable. But as Justice Frankfurter stressed in Resweber, "[o]ne must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation." 329 U.S., (concurring opinion). This Court has ruled that capital punishment is not prohibited under our Constitution, and that the States may enact laws specifying that sanction. "[T]he power of a State to pass laws means little if the State cannot enforce them." State efforts to implement capital punishment must certainly comply with the Eighth Amendment, but what that Amendment prohibits is wanton exposure to "objectively intolerable risk," and n. 9, not simply the possibility of pain. Kentucky has adopted a method of execution believed to be the most humane available, one it shares with 35 other States. Petitioners agree that, if administered as intended, that procedure will result in a painless death. The risks of maladministration they have suggestedsuch as improper mixing of chemicals and improper setting of IVs by trained and experienced personnelcannot remotely be characterized as "objectively intolerable." Kentucky's decision to adhere to its protocol despite these asserted risks, while adopting safeguards to protect against them, cannot be viewed as probative of the wanton infliction of pain under the Eighth *1538 Amendment. Finally, the alternative that petitioners belatedly propose has problems of its own, and has never been tried by a single State. Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to |
Justice Marshall | 1,975 | 15 | second_dissenting | Oregon v. Hass | https://www.courtlistener.com/opinion/109221/oregon-v-hass/ | While I agree with my Brother BRENNAN that on the merits the judgment of the Oregon Supreme Court was correct, I think it appropriate to add a word about this Court's increasingly common practice of reviewing state-court decisions upholding constitutional claims in criminal cases. See cert. granted, ; ; ; ; In my view, we have too often rushed to correct state courts in their view of federal constitutional questions without sufficiently considering the risk that we will be drawn into rendering a purely advisory opinion. Plainly, if the Oregon Supreme Court had expressly decided that Hass' statement was inadmissible as a matter of state as well as federal law, this Court could not upset that judgment. See ; ; Fox Film The sound policy behind this rule was well articulated by Mr. Justice Jackson in : "This Court from the time of its foundation has adhered to the principle that it will not review judgments of state courts that rest on adequate and independent state grounds. The reason is so obvious that it has rarely been thought to warrant statement. *727 It is found in the partitioning of power between the state and federal judicial systems and in the limitations of our own jurisdiction. Our only power over state judgments is to correct them to the extent that they incorrectly adjudge federal rights. And our power is to correct wrong judgments, not to revise opinions. We are not permitted to render an advisory opinion, and if the same judgment would be rendered by the state court after we corrected its views of federal laws, our review could amount to nothing more than an advisory opinion." Where we have been unable to say with certainty that the judgment rested solely on federal law grounds, we have refused to rule on the federal issue in the case; the proper course is then either to dismiss the writ as improvidently granted or to remand the case to the state court to clarify the basis of its decision. ; Mental Hygiene Of course, it may often be unclear whether a state court has relied in part on state law in reaching its decision. As the Court said in however, where the answer does not appear "of record" and is not "clear and decisive," "it seems consistent with the respect due the highest courts of states of the Union that they be asked rather than told what they have intended. If this imposes an unwelcome burden it should be mitigated by the knowledge that it is to protect their jurisdiction from unwitting interference as |
Justice Marshall | 1,975 | 15 | second_dissenting | Oregon v. Hass | https://www.courtlistener.com/opinion/109221/oregon-v-hass/ | it is to protect their jurisdiction from unwitting interference as well as to protect our own from unwitting renunciation." From a perusal of the Oregon Supreme Court's opinion it is evident that these exacting standards were not met in this case. The Constitution of Oregon contains an *728 independent prohibition against compulsory self-incrimination, and there is a distinct possibility that the state court intended to express its view of state as well as federal constitutional law. The majority flatly states that the case was decided below solely on federal constitutional grounds, but I am not so certain. Although the state court did not expressly cite state law in support of its judgment, its opinion suggests that it may well have considered the matter one of state as well as federal law. The court stated that it had initially viewed the issue of the case as whether it should overrule one of its prior precedents in light of this Court's opinion in It concluded that it was not required to consider whether to overrule the earlier state case, however, since upon examination it determined that Harris did not reach this fact situation. In view of the court's suggestion that the federal constitutional rule in Harris would be regarded as merely a persuasive authority even if it were deemed to be squarely in conflict with the state rule, it seems quite possible that the state court intended its decision to rest at least in part on independent state grounds. In any event, I agree with Mr. Justice Jackson that state courts should be "asked rather than told what they have intended." In addition to the importance of avoiding jurisdictional difficulties, it seems much the better policy to permit the state court the freedom to strike its own balance between individual rights and police practices, at least where the state court's ruling violates no constitutional prohibitions. It is peculiarly within the competence of the highest court of a State to determine that in its jurisdiction the police should be subject to more stringent rules than are required as a federal constitutional minimum. The Oregon court's decision in this case was not premised on a reluctant adherence to what it deemed federal *729 law to require, but was based on its independent conclusion that admitting evidence such as that held admissible today will encourage police misconduct in violation of the right against compulsory self-incrimination. This is precisely the setting in which it seems most likely that the state court would apply the State's self-incrimination clause to lessen what it perceives as an intolerable risk |
Justice Marshall | 1,975 | 15 | second_dissenting | Oregon v. Hass | https://www.courtlistener.com/opinion/109221/oregon-v-hass/ | clause to lessen what it perceives as an intolerable risk of abuse. Accordingly, in my view the Court should not review a state-court decision reversing a conviction unless it is quite clear that the state court has resolved all applicable state-law questions adversely to the defendant and that it feels compelled by its view of the federal constitutional issue to reverse the conviction at hand. Even if the majority is correct that the Oregon Supreme Court did not intend to express a view of state as well as federal law, this Court should, at the very least, remand the case for such further proceedings as the state court deems appropriate. I can see absolutely no reason for departing from the usual course of remanding the case to permit the state court to consider any other claims, including the possible applicability of state law to the issue treated here. See ; ; -170; C. Wright, Federal Courts 488 ; cf. Georgia Railway & Electric Surely the majority does not mean to suggest that the Oregon Supreme Court is foreclosed from considering the respondent's state-law claims or even ruling sua sponte that the statement in question is not admissible as a matter of state law. If so, then I should think this unprecedented assumption of authority will be as much a surprise to the Supreme Court of Oregon as it is to me. I dissent. |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | The Court answers a difficult constitutional question that I believe the underlying statute does not pose. Because in my judgment the Armed Career Criminal Act of 1984, 18 U.S. C. 94(e) (ACCA), does not authorize sentence enhancement based on prior convictions that a defendant can show at sentencing to have been unlawfully obtained, I respectfully dissent. I A The ACCA mandatory minimum sentence applies to defendants with "three previous convictions for a violent felony or a serious drug offense." 18 U.S. C. 94(e). The Court construes "convictio[n]" to refer to the "fact of the conviction," ante, at 491 (emphasis in original), and concludes that "Congress did not intend to permit collateral attacks [during sentencing] on prior convictions under 94(e)," ante, at 493.[1] This interpretation of the ACCA will come as a surprise to the Courts of Appeals, which (with the one exception of the court below) have understood "convictio[n]" in the ACCA to mean "lawful conviction," and have permitted defendants to show at sentencing that a prior conviction offered for enhancement was unconstitutionally obtained, whether as violative of the right to have appointed counsel, see the right to effective assistance of counsel, see the right against conviction based on an unknowing or involuntary guilty plea, see or other constitutional rights.[] The weight of appellate authority, in my opinion, reflects the proper construction of the ACCA. The Court's contrary reading ignores the legal framework within which Congress drafted the ACCA, a framework with which we presume Congress was familiar. See, e. g., When the language that became the ACCA was first proposed in 198, when it was enacted in 1984 (codified at 10(a)(1)) and when it was reenacted in 1986 (codified at 94(e)), this Court's decisions in and United were on the books. Even under the narrow reading the Court accords those decisions today, they recognize at least a right to raise during sentencing Gideon challenges to prior convictions used for enhancement. See ante, at 495-496. Unless Congress intended to snub that constitutional right ), "convictio[n]" in 94(e) simply cannot refer to the mere fact of conviction, and the provision must have been meant to allow during sentencing at least some challenges to prior convictions offered for enhancement. Nor is it likely that Congress's intent was informed by as narrow a reading of and as the Court adopts *500 today. In the legal environment of the ACCA's enactment, and were thought to stand for the broader proposition that "[n]o consideration can be given [at sentencing] to a conviction that was unconstitutionally obtained," 3 C. Wright, Federal Practice and Procedure 56, p. |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | obtained," 3 C. Wright, Federal Practice and Procedure 56, p. 10 (198), and Courts of Appeals consistently read the decisions as requiring courts to entertain claims that prior convictions relied upon for enhancement were unconstitutional for reasons other than Gideon violations.[3] The Congress that enacted the ACCA against this backdrop must be presumed to have intended to permit defendants to attempt to show at sentencing that prior convictions were "unconstitutionally obtained." That presumption is strongly bolstered by the fact that Congress, despite the consistent interpretation of the ACCA as permitting attacks on prior convictions during sentencing, and despite amending the law several times since its enactment (see note following 18 U.S. C. 94 (1988 ed. and Supp. V) (listing amendments)), left the language relevant here untouched. Congress's failure to express legislative disagreement with the appellate courts' reading of the ACCA cannot be disregarded, especially since Congress has acted in this area in response to other Courts of Appeals decisions that it thought revealed statutory flaws requiring "correct[ion]." S. Rep. No. p. 7, and n. 17 ; see at 8, and n. 18, 14, and n. 31; see also Herman & Accordingly, absent clear indication that Congress intended to preclude all challenges during sentencing to prior convictions relied upon for enhancement, the ACCA must be read as permitting such challenges. B The Court fails to identify any language in the ACCA affirmatively precluding collateral attacks on prior convictions during sentencing, as there is none. Instead, the Court hears a clear message in the statutory silence, but I find none of its arguments persuasive. The Court first invokes 18 U.S. C. 91(a)(0), under which a conviction "which has been expunged, or set aside or for which a person has been pardoned or has had civil rights restored shall not be considered a conviction for purposes of this chapter." According to the Court, this "exemption clause" (as we have elsewhere called it, see Beecham v. United States, ante, at 369, "creates a clear negative implication that courts may count a conviction that has not been set aside," ante, at 491. Expressio unius, in other words, est exclusio alterius. Even if the premise of the Court's argument is correct,[4] the bridge the Court crosses to reach its conclusion is notoriously unreliable and does not bear the weight here. While "often a valuable servant," the maxim that the inclusion of something negatively implies the exclusion of everything else (expressio unius, etc.) is "a dangerous master to follow in the construction of statutes." It rests on the assumption that all omissions in *50 legislative drafting are |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | the assumption that all omissions in *50 legislative drafting are deliberate, an assumption we know to be false. See Posner, Statutory Interpretationin the Classroom and in the Courtroom, ; Radin, Statutory Interpretation, As a result, "[s]cholars have long savaged the expressio canon," Cheney R. at least when it is made to do the work of a conclusive presumption, and our decisions support the proposition that "[s]ometimes [the canon] applies and sometimes it does not, and whether it does or does not depends largely on context." R. Dickerson, Interpretation and Application of Statutes 47 (1975); see also at 34-35. In this case, the "contemporary legal context," in which Congress drafted the ACCA requires rejecting the negative implication on which the Court relies. That context, as I have described, understood defendants to have a constitutional right to attack at sentencing prior convictions that had not previously been invalidated, and in that legal setting it would have been very odd for Congress to have intended to establish a constitutionally controversial rule by mere implication. See And in fact the legislative history indicates that quite a different intention informed the addition to 91(a)(0) in 1986, two years after the ACCA's enactment, of the exemption clause (and the related "choice-of-law clause," Beecham v. United States, ante, at 369. Congress simply intended to clarify that the law of the convicting jurisdiction should be the principal reference point in determining what counts as a "conviction" for purposes of the federal "felon in possession" *503 law, and to correct an oversight that had resulted in the omission of exemption language from one of two parallel provisions. See S. Rep. No. ; H. R. Rep. No. 99-495, p. 0 (1986). In amending 91(a)(0), Congress was not addressing the question of where, in the course of federal litigation, a conviction could be challenged. Indeed, the legislative history of the amendment reveals no hint of any intention at all with respect to 94(e)'s sentenceenhancement provision, but rather an exclusive focus on the federal firearms disability in 9. Cf. (relying on legislative history to counter a negative implication from a statute's text). As a result, the Court's argument by negative implication from 91(a)(0)'s exemption clause must fail. The fact that Congress in the exemption clause expressly precluded reliance upon unconstitutional convictions that have been set aside simply does not reveal an intent with respect to 94(e) to require reliance at sentencing on unconstitutional convictions that have not yet been set aside. The Court's second statutory argument also seeks to establish congressional intent through negative implication, but is no more successful. The Court |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | through negative implication, but is no more successful. The Court observes that Congress in other statutes expressly permitted challenges to prior convictions during sentencing, see ante, at 491-493 (citing 1 U.S. C. 851(c)() and 18 U.S. C. 3(e)), which is said to show that "when Congress intended to authorize collateral attacks on prior convictions at the time of sentencing, it knew how to do so," ante, at 49. But surely the Court does not believe that, if Congress intended to preclude collateral attacks on prior convictions at the time of sentencing, it did not know how to do that. And again, the Court's effort to infer intent from the statutory silence runs afoul of the context of the statute's enactment; within a legal framework forbidding sentencing on the basis of prior convictions a defendant *504 can show to be invalid, a Congress that intended to require sentencing on the basis of such convictions can be expected to have made its intention explicit. Finally, the Court turns for support to which held that the federal "felon in possession" law does not permit a defendant, during his prosecution, to challenge the constitutional validity of the predicate felony conviction. The Court's reliance on Lewis, however, assumes an equivalence between two different types of laws that Lewis itself disclaimed: between a law disabling convicted felons from possessing firearms (at issue in Lewis ), and a law requiring sentence enhancement based on prior convictions (at issue here, as well as in and ). Lewis explained that the "felon in possession" law is "a sweeping prophylaxis" designed "to keep firearms away from potentially dangerous persons," 67, whereas a sentence-enhancement law "depend[s] upon the reliability of a past conviction," at 67. While the unlawfulness of a past conviction is irrelevant to the former, it is not to the latter, or so the Lewis Court thought in expressly distinguishing and : "[e]nforcement of [the federal gun disability] does not `support guilt or enhance punishment' on the basis of a conviction that is unreliable." (quoting ). Because of the material way in which a "felon in possession" law differs from a sentence-enhancement law, and were not part of the relevant legal backdrop against which Congress enacted the law interpreted in Lewis, and the Lewis Court could thus fairly presume that "conviction" in the statute before it was used as shorthand for "the fact of a felony conviction." 67. As Lewis itself recognized, however, and are part of the backdrop against which sentence-enhancement laws are enacted, and against that backdrop Congress must be presumed to have used "conviction" in 94(e) |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | Congress must be presumed to have used "conviction" in 94(e) to mean "lawful conviction," and to have permitted defendants to *505 show at sentencing that prior convictions offered for enhancement were unconstitutionally obtained. II A Even if I thought the ACCA was ambiguous (the most the Court's statutory arguments could establish), I would resolve the ambiguity in petitioner's favor in accordance with the "`cardinal principle' " of statutory construction that "`this Court will first ascertain whether a construction of the statute is fairly possible by which [a constitutional] question may be avoided.' " ); see also Edward J. DeBartolo 485 U.S. 5, ; NLRB v. Catholic Bishop of ; The Ashwander principle, to be sure, comes into play only when the constitutional question to be avoided is a difficult one, but that designation easily fits the question that the Court's reading of the ACCA requires it to decide, the question whether the Constitution permits courts to enhance a defendant's sentence on the basis of a prior conviction the defendant can show was obtained in violation of his right to effective assistance of counsel, see or that the defendant can show was based on an unknowing or involuntary guilty plea, see This is a difficult question, for one thing, because the language and logic of and are hard to limit to claimed violations of the right, recognized in to have a lawyer appointed if necessary. As indicated by the uniformity of lower court decisions interpreting them, see and n. 3, and are easily (if not best) read as announcing the broader principle *506 that a sentence may not be enhanced by a conviction the defendant can show was obtained in violation of any "`specific federal right' " (or, as put it, that a sentence may not be "founded [even] in part upon misinformation of constitutional magnitude," ) because to do so would be to allow the underlying right to be "denied anew" and to "suffer serious erosion," ; see also The Court's references in both and to the right discussed in Gideon is hardly surprising; that was the "specific federal right" (and the record of the conviction obtained in violation of it the "misinformation of constitutional magnitude") that the defendants before it invoked. The opinions in both cases, moreover, made it quite clear that the discussion of Gideon was not meant to supply a limitation. described Gideon not as unique but as "illustrative of the limitations which the Constitution places on state criminal procedures," and it recounted as supportive of its holding cases involving coerced confessions, denials of the confrontation right, |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | holding cases involving coerced confessions, denials of the confrontation right, and illegal searches and seizures, ; and made it clear that "the real question" before the Court was whether the defendant's sentence might have been different if the sentencing judge had known that the defendant's "previous convictions had been unconstitutionally obtained,"[5] *507 Even if, consistently with principles of stare decisis, and could be read as applying only to some class of cases defined to exclude claimed violations of or the question whether to confine them so is not easily answered for purposes of the Ashwander rule. and deal directly with claimed violations of Gideon, and distinguishing for these purposes between violations of Gideon and would describe a very fine line. To establish a violation of the Sixth Amendment under a defendant must show that "counsel's performance was deficient," and that "the deficient performance prejudiced the defense" in that "counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable." 466 U. S., It is hard to see how such a defendant is any better off than one who has been denied counsel altogether, and why the conviction of such a defendant may be used for sentence enhancement if the conviction of one who has been denied counsel altogether may not. The Sixth Amendment guarantees no mere formality of appointment, but the "assistance" of counsel, cf. at 5, 6 and whether the violation is of Gideon or the defendant has been denied that constitutional right. It is also difficult to see why a sentencing court that must entertain a defendant's claim that a prior conviction was obtained in violation of the Sixth Amendment's right to counsel need not entertain a defendant's claim that a prior conviction was based on an unknowing or involuntary guilty plea. *508 That claim, if meritorious, would mean that the defendant was convicted despite invalid waivers of at least one of two Sixth Amendment rights (to trial by jury and to confront adverse witnesses) or of a Fifth Amendment right (against compulsory self-incrimination). See It is, to be sure, no simple task to prove that a guilty plea was the result of "[i]gnorance, incomprehension, coercion, terror, inducements, [or] subtle or blatant threats," at 4-43, but it is certainly at least a difficult question whether a defendant who can make such a showing ought to receive less favorable treatment than the defendants in and Though the Court offers a theory for drawing a line between the right claimed to have been violated in and and the rights claimed to |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | have been violated in and and the rights claimed to have been violated here, the Court's theory is itself fraught with difficulty. In the Court's view, the principle of and reaches only "constitutional violations ris[ing] to the level of a jurisdictional defect resulting from the failure to appoint counsel at all." Ante, at 496 ). But nowhere in or is a distinction drawn between "jurisdictional" and "nonjurisdictional" rights, a fact giving no cause for surprise since long before ) "the Court openly discarded the concept of jurisdictionby then more a fiction than anything elseas a touchstone of the availability of federal habeas review." Nor was on which the Court today places much reliance, a ringing endorsement of a jurisdiction theory. For many years prior to that case, "the concept of jurisdiction was subjected to considerable strain," and was actually the very last case to mention the idea, offering just "token deference to the old concept that the [habeas] writ could only reach jurisdictional defects," Wechsler, Habeas Corpus and the *509 Supreme Court: Reconsidering the Reach of the Great Writ, In reviving the "jurisdiction" theory, the Court skips over the very difficulty that led to its abandonment, of devising a standard to tell whether or not a flaw in the proceedings leading to a conviction counts as a "jurisdictional defect." "Once the concept of `jurisdiction' is taken beyond the question of the court's competence to deal with the class of offenses charged and the person of the prisoner" (as it must be if the concept is to reach Gideon violations) "it becomes a less than luminous beacon." Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, Thus, if being denied appointed counsel is a "jurisdictional defect," why not being denied effective counsel (treated as an equivalent in )? If a conviction obtained in violation of the right to have appointed counsel suffers from a "jurisdictional defect" because the right's "purpose is to protect an accused from conviction resulting from his own ignorance of his legal and constitutional rights," how distinguish a conviction based on a guilty plea resulting from a defendant's own ignorance of his legal and constitutional rights?[6] It was precisely due to the futility of providing principled answers to these questions that more than 50 years ago, and a quarter of a century before and "[t]he Court finally abandoned the kissing of the jurisdictional book." P. Bator, D. Meltzer, P. Mishkin, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 150 The Court nevertheless finds itself compelled to reembrace the concept of |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | Court nevertheless finds itself compelled to reembrace the concept of "jurisdictional *510 defect," fraught as it is with difficulties, in order to answer the constitutional question raised by its reading of the ACCA. Because it is "fairly possible," Ashwander, 97 U. S., at to construe the ACCA to avoid these difficulties and those associated with the other constitutional questions I have discussed, the Ashwander rule of restraint provides sufficient reason to reject the Court's construction of the ACCA. B The rule of lenity, "which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose," U.S. 333, drives me to the same conclusion. Though lenity is usually invoked when there is doubt about whether a legislature has criminalized particular conduct, "[the] policy of lenity [also] means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended." Ib ; cf. Because I "cannot say with assurance," United States v. Granderson, ante, at 53, that Congress intended to require courts to enhance sentences on the basis of prior convictions a defendant can show to be invalid, the rule of lenity independently requires interpreting the ACCA to permit defendants to present such challenges to the sentencing judge before sentence is imposed. C The Court invokes "[e]ase of administration" to support its constitutional holding. Ante, at 496. While I doubt that even a powerful argument of administrative convenience *511 would suffice to displace the Ashwander rule, cf. the burden argument here is not a strong one. The burdens of allowing defendants to challenge prior convictions at sentencing are not so severe, and are likely less severe than those associated with the alternative avenues for raising the very same claims. For more than 0 years, as required by 1 U.S. C. 851(c)(1) and (), federal courts have entertained claims during sentencing under the drug laws that prior convictions offered for enhancement are "invalid" or were "obtained in violation of the Constitution," the unamended statute reflecting a continuing congressional judgment that any associated administrative burdens are justified and tolerable. For almost a decade, federal courts have done the same under the ACCA, see n. again without congressional notice of any judicial burden thought to require relief. See also Parke v. 506 U. S., at 3 As against this, the Court sees administrative burdens arising because "sentencing courts [would be required] to rummage through frequently nonexistent or difficult to |
Justice Souter | 1,994 | 20 | dissenting | Custis v. United States | https://www.courtlistener.com/opinion/1087955/custis-v-united-states/ | be required] to rummage through frequently nonexistent or difficult to obtain state-court transcripts or records that may date from another era, and may come from any of the 50 States." Ante, at 496. It would not be sentencing courts that would have to do this rummaging, however, but defendants seeking to avoid enhancement, for no one disagrees that the burden of showing the invalidity of prior convictions would rest on the defendants. Whatever administrative benefits may flow from insulating sentencing courts from challenges to prior convictions will likely be offset by the administrative costs of the alternative means of raising the same claims. The Court acknowledges that an individual still in custody for a state conviction relied upon for enhancement may attack that conviction through state or federal habeas review and, if successful, "may apply for reopening any federal sentence enhanced by the *51 state sentences." Ante, at 497. And the Court does not disturb uniform appellate case law holding that an individual serving an enhanced sentence may invoke federal habeas to reduce the sentence to the extent it was lengthened by a prior unconstitutional conviction. See J. Liebman & R. Hertz, Federal Habeas Corpus Practice and Procedure 8., pp. -64, and n. 13., and 8.4, p. 89, n. 7 (1993 Supp.) (collecting cases).[7] From the perspective of administrability, it strikes me as entirely sensible to resolve any challenges to the lawfulness of a predicate conviction in the single sentencing proceeding, especially since defendants there will normally be represented by counsel, who bring efficiency to the litigation (as well as equitable benefits). III Because I cannot agree that Congress has required federal courts to impose enhanced sentences on the basis of prior convictions a defendant can show to be constitutionally invalid, I respectfully dissent. |
Justice O'Connor | 1,988 | 14 | concurring | Coy v. Iowa | https://www.courtlistener.com/opinion/112146/coy-v-iowa/ | I agree with the Court that appellant's rights under the Confrontation Clause were violated in this case. I write separately only to note my view that those rights are not absolute but rather may give way in an appropriate case to other competing interests so as to permit the use of certain procedural devices designed to shield a child witness from the trauma of courtroom testimony. Child abuse is a problem of disturbing proportions in today's society. Just last Term, we recognized that "[c]hild abuse is one of the most difficult problems to detect and prosecute, in large part because there often are no witnesses except the victim." Once an instance of abuse is identified and prosecution undertaken, new difficulties arise. Many States have determined that a child victim may suffer trauma from exposure to the harsh atmosphere of the typical courtroom and have undertaken to shield the child through a variety of *1023 ameliorative measures. We deal today with the constitutional ramifications of only one such measure, but we do so against a broader backdrop. Iowa appears to be the only State authorizing the type of screen used in this case. See generally App. to Brief for American Bar Association as Amicus Curiae 1a-9a (collecting statutes). A full half of the States, however, have authorized the use of one-or two-way closed-circuit television. Statutes sanctioning one-way systems generally permit the child to testify in a separate room in which only the judge, counsel, technicians, and in some cases the defendant, are present. The child's testimony is broadcast into the courtroom for viewing by the jury. Two-way systems permit the child witness to see the courtroom and the defendant over a video monitor. In addition to such closed-circuit television procedures, 33 States (including 19 of the 25 authorizing closed-circuit television) permit the use of videotaped testimony, which typically is taken in the defendant's presence. See generally at 9a-18a (collecting statutes). While I agree with the Court that the Confrontation Clause was violated in this case, I wish to make clear that nothing in today's decision necessarily dooms such efforts by state legislatures to protect child witnesses. Initially, many such procedures may raise no substantial Confrontation Clause problem since they involve testimony in the presence of the defendant. See, e. g., ; ; N. Y. Crim. Proc. Law 65.00-65.30 (McKinney Supp. 1988) (two-way closed-circuit television); Cal. Penal Code Ann. 1347 (West Supp. 1988) Indeed, part of the statute involved here seems to fall into this category since in addition to authorizing a screen, Iowa Code 910A. 14 permits the use of one-way |
Justice O'Connor | 1,988 | 14 | concurring | Coy v. Iowa | https://www.courtlistener.com/opinion/112146/coy-v-iowa/ | screen, Iowa Code 910A. 14 permits the use of one-way closed-circuit television with "parties" in the same room as the child witness. *1024 Moreover, even if a particular state procedure runs afoul of the Confrontation Clause's general requirements, it may come within an exception that permits its use. There is nothing novel about the proposition that the Clause embodies a general requirement that a witness face the defendant. We have expressly said as much, as long ago as 1899, and as recently as last Term, But it is also not novel to recognize that a defendant's "right physically to face those who testify against him," ib even if located at the "core" of the Confrontation Clause, is not absolute, and I reject any suggestion to the contrary in the Court's opinion. See ante, at 1020-1021. Rather, the Court has time and again stated that the Clause "reflects a preference for face-to-face confrontation at trial," and expressly recognized that this preference may be overcome in a particular case if close examination of "competing interests" so warrants. See also That a particular procedure impacts the "irreducible literal meaning of the Clause," ante, at 1021, does not alter this conclusion. Indeed, virtually all of our cases approving the use of hearsay evidence have implicated the literal right to "confront" that has always been recognized as forming "the core of the values furthered by the Confrontation Clause," and yet have fallen within an exception to the general requirement of face-to-face confrontation. See, e. g., Indeed, we expressly recognized in that "a literal interpretation of the Confrontation Clause could bar the use of any out-of-court statements when the declarant is unavailable," *1025 but we also acknowledged that "this Court has rejected that view as `unintended and too extreme.' " (quoting ). In short, our precedents recognize a right to face-to-face confrontation at trial, but have never viewed that right as absolute. I see no reason to do so now and would recognize exceptions here as we have elsewhere. Thus, I would permit use of a particular trial procedure that called for something other than face-to-face confrontation if that procedure was necessary to further an important public policy. See ante, at 1021 (citing The protection of child witnesses is, in my view and in the view of a substantial majority of the States, just such a policy. The primary focus therefore likely will be on the necessity prong. I agree with the Court that more than the type of generalized legislative finding of necessity present here is required. But if a court makes a case-specific finding |
Justice Scalia | 1,989 | 9 | concurring | Healy v. Beer Institute | https://www.courtlistener.com/opinion/112301/healy-v-beer-institute/ | I join the Court's disposition of this suit and Parts I and IV of its opinion. The Connecticut statute's invalidity is fully established by its facial discrimination against interstate commerce through imposition of price restrictions exclusively upon those who sell beer not only in Connecticut but also in the surrounding States and by Connecticut's inability to establish that the law's asserted goal of lower consumer prices cannot be achieved in a nondiscriminatory manner.[*] See New Energy Co. of This is so despite the fact that the law regulates the sale of alcoholic beverages, since its discriminatory character eliminates the immunity afforded by the Twenty-first Amendment. See Bacchus Imports, Since Joseph E. Seagram & Sons, upheld a law that operated in like fashion, I agree with the Court that today's decision requires us to overrule that case. See ante, at 343. *345 I would refrain, however, from applying the more expansive analysis which finds the law unconstitutional because it regulates or controls beer pricing in the surrounding States. See ante, at 335-340. It seems to me this rationale is not only unnecessary but also questionable, resting as it does upon the mere economic reality that the challenged law will require sellers in New York, Massachusetts, and Rhode Island to take account of the price that they must post and charge in Connecticut when setting their prices in those other States. The difficulty with this is that innumerable valid state laws affect pricing decisions in other States even so rudimentary a law as a maximum price regulation. Suppose, for example, that the Connecticut Legislature had simply provided that beer could not be retailed in Connecticut above $10 a case. Sellers in those portions of New York, Massachusetts, and Rhode Island bordering Connecticut would have to take account of that requirement, just as sellers in those States had to take account of the Connecticut posting requirement here, because prices substantially above the maximum would cause their former in-state purchasers to drive to Connecticut and their former Connecticut purchasers to stay home. The out-of-state impact in this particular example would not be as severe as that in the present cases, but I do not think our Commerce Clause jurisprudence should degenerate into disputes over degree of economic effect. In any case, since this principle is both dubious and unnecessary to decide the present cases, I decline to endorse it. |
per_curiam | 1,972 | 200 | per_curiam | Illinois v. Michigan | https://www.courtlistener.com/opinion/108623/illinois-v-michigan/ | The State of Illinois moved to file its bill of complaint in this case on the theory that a "reciprocal treaty" between the States of Illinois and Michigan was violated by a decision of the Supreme Court of the State of Michigan which allowed recovery by two injured workmen against an Illinois re-insurance company. It claims that such an agreement arose when the two States enacted the Uniform Insurers Liquidation Act, which contains certain reciprocal features, and that the agreement has the dignity of an interstate compact.[*] The State of Illinois was a party to the case decided by the Supreme Court of Michigan through the person of the Director of Insurance of the State of Illinois, who was the liquidator of the workmen's compensation insurer, Highway Insurance Co. It was the imposition of *37 liability upon that company's re-insurer which Illinois claims was inappropriate under the uniform act. Review of the Michigan decision should have been sought in that case by means of a petition for writ of certiorari. It is now too late for any such petition for certiorari to be filed. But original jurisdiction of the Court is not an alternative to the redress of grievances which could have been sought in the normal appellate process, if the remedy had been timely sought. The problem presented is essentially one between private litigants and, though the point now raised may not have been presented in the Michigan litigation, these controversies are recurring and essentially not state concerns. While the complaint on its face is within our original, as well as our exclusive, jurisdiction, it seems apparent from the moving papers and the response that Illinois, though nominally a party, is here "in the vindication of the grievances of particular individuals." The motions to file briefs amici curiae by Jack Federoff, William F. Ewing, dba William Ewing Roofing Co., and John H. Shannon are granted. The motion of the State of Illinois for leave to file a bill of complaint is denied. |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | We address in this case the application of the Americans with Disabilities Act of (ADA), 42 US C 12101 et seq, to persons infected with the human immunodeficiency virus (HIV) We granted certiorari to review, first, whether HIV infection is a disability under the ADA when the infection has not yet progressed to the so-called symptomatic phase; and, second, whether the Court of Appeals, in affirming a grant of summary judgment, cited sufficient material in the record to determine, as a matter of law, that respondent's infection with HIV posed no direct threat to the health and safety of her treating dentist I Respondent Sidney Abbott (hereinafter respondent) has been infected with HIV since When the incidents we recite occurred, her infection had not manifested its most serious symptoms On September 16, she went to the office of petitioner Randon Bragdon in Bangor, Maine, for a dental appointment She disclosed her HIV infection on the *629 patient registration form Petitioner completed a dental examination, discovered a cavity, and informed respondent of his policy against filling cavities of HIV-infected patients He offered to perform the work at a hospital with no added fee for his services, though respondent would be responsible for the cost of using the hospital's facilities Respondent declined Respondent sued petitioner under state law and 302 of the ADA, 42 US C 12182, alleging discrimination on the basis of her disability The state-law claims are not before us Section 302 of the ADA provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who operates a place of public accommodation" 12182(a) The term "public accommodation" is defined to include the "professional office of a health care provider" 12181(7)(F) A later subsection qualifies the mandate not to discriminate It provides: "Nothing in this subchapter shall require an entity to permit an individual to participate in or benefit from the goods, services, facilities, privileges, advantages and accommodations of such entity where such individual poses a direct threat to the health or safety of others" 12182(b)(3) The United States and the Maine Human Rights Commission intervened as plaintiffs After discovery, the parties filed cross-motions for summary judgment The District Court ruled in favor of the plaintiffs, holding that respondent's HIV infection satisfied the ADA's definition of disability The court held further that petitioner raised no genuine issue of material fact as to whether respondent's HIV infection would have *630 posed a direct threat to the |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | infection would have *630 posed a direct threat to the health or safety of others during the course of a dental treatment The court relied on affidavits submitted by Dr Donald Wayne Marianos, Director of the Division of Oral Health of the Centers for Disease Control and Prevention (CDC) The Marianos affidavits asserted it is safe for dentists to treat patients infected with HIV in dental offices if the dentist follows the so-called universal precautions described in the Recommended Infection-Control Practices for Dentistry issued by CDC in 1993 (1993 CDC Dentistry Guidelines) The Court of Appeals affirmed It held respondent's HIV infection was a disability under the ADA, even though her infection had not yet progressed to the symptomatic stage The Court of Appeals also agreed that treating the respondent in petitioner's office would not have posed a direct threat to the health and safety of others Unlike the District Court, however, the Court of Appeals declined to rely on the Marianos affidavits Instead the court relied on the 1993 CDC Dentistry Guidelines, as well as the Policy on AIDS, HIV Infection and the Practice of Dentistry, promulgated by the American Dental Association in 1991 (1991 American Dental Association Policy on HIV) -946 II We first review the ruling that respondent's HIV infection constituted a disability under the ADA The statute defines disability as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; "(B) a record of such an impairment; or "(C) being regarded as having such an impairment" 12102(2) *631 We hold respondent's HIV infection was a disability under subsection (A) of the definitional section of the statute In light of this conclusion, we need not consider the applicability of subsections (B) or (C) Our consideration of subsection (A) of the definition proceeds in three steps First, we consider whether respondent's HIV infection was a physical impairment Second, we identify the life activity upon which respondent relies (reproduction and childbearing) and determine whether it constitutes a major life activity under the ADA Third, tying the two statutory phrases together, we ask whether the impairment substantially limited the major life activity In construing the statute, we are informed by interpretations of parallel definitions in previous statutes and the views of various administrative agencies which have faced this interpretive question A The ADA's definition of disability is drawn almost verbatim from the definition of "handicapped individual" included in the Rehabilitation Act of 1973, 87 Stat 361, as amended, 29 US C (8)(B) ( ed), and the definition of "handicap" contained |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | C (8)(B) ( ed), and the definition of "handicap" contained in the Fair Housing Amendments Act of 102 Stat 1619, 42 US C 3602(h)(1) ( ed) Congress' repetition of a well-established term carries the implication that Congress intended the term to be construed in accordance with pre-existing regulatory interpretations See FDIC v Philadelphia Gear Corp, 476 US 426, ; Commissioner v Estate of Noel, 380 US 678, ; ICC v Parker, 326 US 60, In this case, Congress did more than suggest this construction; it adopted a specific statutory provision in the ADA directing as follows: "Except as otherwise provided in this chapter, nothing in this chapter shall be construed to apply a lesser standard than the standards applied under title V of the *632 Rehabilitation Act of 1973 (29 US C 790 et seq) or the regulations issued by Federal agencies pursuant to such title" 42 US C 12201(a) The directive requires us to construe the ADA to grant at least as much protection as provided by the regulations implementing the Rehabilitation Act 1 The first step in the inquiry under subsection (A) requires us to determine whether respondent's condition constituted a physical impairment The Department of Health, Education and Welfare (HEW) issued the first regulations interpreting the Rehabilitation Act in 1977 The regulations are of particular significance because, at the time, HEW was the agency responsible for coordinating the implementation and enforcement of 504 of that statute Consolidated Rail Corporation v Darrone, 4 US 624, (citing Exec Order No 11914, 3 CFR 117 (1976-1980 Comp)) Section 504 prohibits discrimination against individuals with disabilities by recipients of federal financial assistance 29 US C 794 The HEW regulations, which appear without change in the current regulations issued by the Department of Health and Human Services, define "physical or mental impairment" to mean: "(A) any physiological disorder or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive, digestive, genito-urinary; hemic and lymphatic; skin; and endocrine; or "(B) any mental or psychological disorder, such as mental retardation, organic brain syndrome, emotional or mental illness, and specific learning disabilities" 45 CFR 843(j)(2)(i) *633 In issuing these regulations, HEW decided against including a list of disorders constituting physical or mental impairments, out of concern that any specific enumeration might not be comprehensive 42 Fed Reg 22685 (1977), reprinted in 45 CFR pt 84, App A, p 334 The commentary accompanying the regulations, however, contains a representative list of disorders and conditions constituting physical impairments, including "such diseases |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | of disorders and conditions constituting physical impairments, including "such diseases and conditions as orthopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism" Ibid In 1980, the President transferred responsibility for the implementation and enforcement of 504 to the Attorney General See, e g, Exec Order No 12250, 3 CFR 298 (1981) The regulations issued by the Justice Department, which remain in force to this day, adopted verbatim the HEW definition of physical impairment quoted above 28 CFR 4131(b)(1) In addition, the representative list of diseases and conditions originally relegated to the commentary accompanying the HEW regulations were incorporated into the text of the regulations Ibid HIV infection is not included in the list of specific disorders constituting physical impairments, in part because HIV was not identified as the cause of AIDS until 1983 See Barré-Sinoussi et al, Isolation of a T-Lymphotropic Retrovirus from a Patient at Risk for Acquired Immune Deficiency Syndrome (AIDS), 220 Science 868 (1983); Gallo et al, Frequent Detection and Isolation of Cytopathic Retroviruses (HTLVIII) from Patients with AIDS and at Risk for AIDS, 224 Science 500 ; Levy et al, Isolation of Lymphocytopathic Retroviruses from San Francisco Patients with AIDS, 225 Science 840 HIV infection does fall well within the general definition set forth by the regulations, however The disease follows a predictable and, as of today, an unalterable course Once a person is infected with HIV, the * virus invades different cells in the blood and in body tissues Certain white blood cells, known as helper T-lymphocytes or CD4[H11501] cells, are particularly vulnerable to HIV The virus attaches to the CD4 receptor site of the target cell and fuses its membrane to the cell's membrane HIV is a retrovirus, which means it uses an enzyme to convert its own genetic material into a form indistinguishable from the genetic material of the target cell The virus' genetic material migrates to the cell's nucleus and becomes integrated with the cell's chromosomes Once integrated, the virus can use the cell's own genetic machinery to replicate itself Additional copies of the virus are released into the body and infect other cells in turn Young, The Replication Cycle of HIV-1, in The AIDS Knowledge Base, pp 31-2 to 31-7 (hereinafter AIDS Knowledge Base); Folks & Hart, The Life Cycle of Human Immuno deficiency Virus Type 1, in AIDS: Etiology, Diagnosis, Treatment and Prevention 29-39 (hereinafter AIDS: Etiology); Greene, Molecular Insights into HIV-1 Infection, in The Medical Management of AIDS 18-24 (hereinafter Medical Management |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | in The Medical Management of AIDS 18-24 (hereinafter Medical Management of AIDS) Although the body does produce antibodies to combat HIV infection, the antibodies are not effective in eliminating the virus Pantaleo et al, Immunopathogenesis of Human Immunodeficiency Virus Infection, in AIDS: Etiology 79; Gardner, HIV Vaccine Development, in AIDS Knowledge Base 36-5; Haynes, Immune Responses to Human Immunodeficiency Virus Infection, in AIDS: Etiology 91 The virus eventually kills the infected host cell CD4[H11501] cells play a critical role in coordinating the body's immune response system, and the decline in their number causes corresponding deterioration of the body's ability to fight infections from many sources Tracking the infected individual's CD4[H11501] cell count is one of the most accurate measures of the course of the disease Greene, Medical Management of *635 AIDS 19, 24 Osmond, Classification and Staging of HIV Disease, in AIDS Knowledge Base 11-8; Saag, Clinical Spectrum of Human Immunodeficiency Virus Diseases, in AIDS: Etiology 204 The initial stage of HIV infection is known as acute or primary HIV infection In a typical case, this stage lasts three months The virus concentrates in the blood The assault on the immune system is immediate The victim suffers from a sudden and serious decline in the number of white blood cells There is no latency period Mononucleosis-like symptoms often emerge between six days and six weeks after infection, at times accompanied by fever, headache, enlargement of the lymph nodes (lymphadenopathy), muscle pain (myalgia), rash, lethargy, gastrointestinal disorders, and neurological disorders Usually these symptoms abate within 14 to 21 days HIV antibodies appear in the bloodstream within 3 weeks; circulating HIV can be detected within 10 weeks Carr & Cooper, Primary HIV Infection, in Medical Management of AIDS 89-91; Cohen & Volberding, Clinical Spectrum of HIV Disease, in AIDS Knowledge Base 41-7; Crowe & McGrath, Acute HIV Infection, in AIDS Knowledge Base 42-1 to 42-4; Saag, AIDS: Etiology 204-205 After the symptoms associated with the initial stage subside, the disease enters what is referred to sometimes as its asymptomatic phase The term is a misnomer, in some respects, for clinical features persist throughout, including lymphadenopathy, dermatological disorders, oral lesions, and bacterial infections Although it varies with each individual, in most instances this stage lasts from 7 to 11 years The virus now tends to concentrate in the lymph nodes, though low levels of the virus continue to appear in the blood Cohen & Volberding, AIDS Knowledge Base 41-4, 41-8; Saag, AIDS: Etiology 205-206; Staprans & Feinberg, Natural History and Immunopathogenesis of HIV-1 Disease, in Medical Management of AIDS 29, 38 It was |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | Disease, in Medical Management of AIDS 29, 38 It was once *636 thought the virus became inactive during this period, but it is now known that the relative lack of symptoms is attributable to the virus' migration from the circulatory system into the lymph nodes Cohen & Volberding, AIDS Knowledge Base 41-4 The migration reduces the viral presence in other parts of the body, with a corresponding diminution in physical manifestations of the disease The virus, however, thrives in the lymph nodes, which, as a vital point of the body's immune response system, represents an ideal environment for the infection of other CD4[H11501] cells Staprans & Feinberg, Medical Management of AIDS 33-34 Studies have shown that viral production continues at a high rate Cohen & Volberding, AIDS Knowledge Base 41-4; Staprans & Feinberg, Medical Management of AIDS 38 CD4[H11501] cells continue to decline an average of 5% to 10% (40 to 80 cells/mm3) per year throughout this phase Saag, AIDS: Etiology 207 A person is regarded as having AIDS when his or her CD4[H11501] count drops below 200 cells/mm3 of blood or when CD4[H11501] cells comprise less than 14% of his or her total lymphocytes U S Dept of Health and Human Services, Public Health Service, CDC, 1993 Revised Classification System for HIV Infection and Expanded Surveillance Case Definition for AIDS Among Adolescents and Adults, 41 Morbidity and Mortality Weekly Rep, No RR-17 (Dec 18, 1992); Osmond, AIDS Knowledge Base 11-2; Saag, AIDS: Etiology 207; Ward, Petersen, & Jaffe, Current Trends in the Epidemiology of HIV/AIDS, in Medical Management of AIDS 3 During this stage, the clinical conditions most often associated with HIV, such as pneumocystis carninii pneumonia, Kaposi's sarcoma, and non-Hodgkins lymphoma, tend to appear In addition, the general systemic disorders present during all stages of the disease, such as fever, weight loss, fatigue, lesions, nausea, and diarrhea, tend to worsen In most cases, once the patient's CD4[H11501] count drops below 10 *637 cells/mm3, death soon follows Cohen & Volberding, AIDS Knowledge Base 41-9; Saag, AIDS: Etiology 207-209 In light of the immediacy with which the virus begins to damage the infected person's white blood cells and the severity of the disease, we hold it is an impairment from the moment of infection As noted earlier, infection with HIV causes immediate abnormalities in a person's blood, and the infected person's white cell count continues to drop throughout the course of the disease, even when the attack is concentrated in the lymph nodes In light of these facts, HIV infection must be regarded as a physiological disorder with a constant |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | must be regarded as a physiological disorder with a constant and detrimental effect on the infected person's hemic and lymphatic systems from the moment of infection HIV infection satisfies the statutory and regulatory definition of a physical impairment during every stage of the disease 2 The statute is not operative, and the definition not satisfied, unless the impairment affects a major life activity Respondent's claim throughout this case has been that the HIV infection placed a substantial limitation on her ability to reproduce and to bear children App 14; 912 F Supp, at 586; 107 F 3d, at 939 Given the pervasive, and invariably fatal, course of the disease, its effect on major life activities of many sorts might have been relevant to our inquiry Respondent and a number of amici make arguments about HIV's profound impact on almost every phase of the infected person's life See Brief for Respondent Abbott 24-27; Brief for American Medical Association as Amicus Curiae 20; Brief for Infectious Diseases Society of America et al as Amici Curiae 7-11 In light of these submissions, it may seem legalistic to circumscribe our discussion to the activity of reproduction We have little doubt that had different parties brought the suit they would have maintained that an HIV infection imposes substantial limitations on other major life activities *638 From the outset, however, the case has been treated as one in which reproduction was the major life activity limited by the impairment It is our practice to decide cases on the grounds raised and considered in the Court of Appeals and included in the question on which we granted certiorari See, e g, Blessing v Freestone, 520 US 329, 340, n 3 (citing this Court's Rule 141(a)); Capitol Square Review and Advisory Bd v Pinette, 515 US 753, We ask, then, whether reproduction is a major life activity We have little difficulty concluding that it is As the Court of Appeals held, "[t]he plain meaning of the word `major' denotes comparative importance" and "suggest[s] that the touchstone for determining an activity's inclusion under the statutory rubric is its significance" 107 F3d, at 939, 940 Reproduction falls well within the phrase "major life activity" Reproduction and the sexual dynamics surrounding it are central to the life process itself While petitioner concedes the importance of reproduction, he claims that Congress intended the ADA only to cover those aspects of a person's life which have a public, economic, or daily character Brief for Petitioner 14, 28, 30, 31; see also id, at 36-37 ) The argument founders on the statutory language Nothing |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | 36-37 ) The argument founders on the statutory language Nothing in the definition suggests that activities without a public, economic, or daily dimension may somehow be regarded as so unimportant or insignificant as to fall outside the meaning of the word "major" The breadth of the term confounds the attempt to limit its construction in this manner As we have noted, the ADA must be construed to be consistent with regulations issued to implement the Rehabilitation Act See 42 US C 12201(a) Rather than enunciating a general principle for determining what is and is not a major life activity, the Rehabilitation Act regulations instead provide a representative list, defining the term to include "functions such as caring for one's self, performing manual *639 tasks, walking, seeing, hearing, speaking, breathing, learning, and working" 45 CFR 843(j)(2)(ii) ; 28 CFR 4131(b)(2) As the use of the term "such as" confirms, the list is illustrative, not exhaustive These regulations are contrary to petitioner's attempt to limit the meaning of the term "major" to public activities The inclusion of activities such as caring for one's self and performing manual tasks belies the suggestion that a task must have a public or economic character in order to be a major life activity for purposes of the ADA On the contrary, the Rehabilitation Act regulations support the inclusion of reproduction as a major life activity, since reproduction could not be regarded as any less important than working and learning Petitioner advances no credible basis for confining major life activities to those with a public, economic, or daily aspect In the absence of any reason to reach a contrary conclusion, we agree with the Court of Appeals' determination that reproduction is a major life activity for the purposes of the ADA 3 The final element of the disability definition in subsection (A) is whether respondent's physical impairment was a substantial limit on the major life activity she asserts The Rehabilitation Act regulations provide no additional guidance 45 CFR pt 84, App A, p 334 Our evaluation of the medical evidence leads us to conclude that respondent's infection substantially limited her ability to reproduce in two independent ways First, a woman infected with HIV who tries to conceive a child imposes on the man a significant risk of becoming infected The cumulative results of 13 studies collected in a textbook on AIDS indicates that 20% of male partners of women with HIV became HIV-positive themselves, with a majority of the studies finding a statistically significant risk of infection Osmond & Padian, Sexual Transmission of HIV, in AIDS *640 |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | Osmond & Padian, Sexual Transmission of HIV, in AIDS *640 Knowledge Base 19-8, and tbl 2; see also Haverkos & Battjes, Female-to-Male Transmission of HIV, tbl (1992) (cumulative results of 16 studies indicated 25% risk of female-to-male transmission) (Studies report a similar, if not more severe, risk of male-to-female transmission See, e g, Osmond & Padian, AIDS Knowledge Base 19-3, tbl 1, 19-6 to 19-7) Second, an infected woman risks infecting her child during gestation and childbirth, i e, perinatal transmission Petitioner concedes that women infected with HIV face about a 25% risk of transmitting the virus to their children 107 F3d, at 942; 912 F Supp, at 587, n 6 Published reports available in confirm the accuracy of this statistic Report of a Consensus Workshop, Maternal Factors Involved in Mother-to-Child Transmission of HIV-1, 5 J Acquired Immune Deficiency Syndromes 1019, 1020 (1992) (collecting 13 studies placing risk between 14% and 40%, with most studies falling within the 25% to 30% range); et al, Reduction of Maternal-Infant Transmission of Human Immunodeficiency Virus Type 1 with Zidovudine Treatment, 331 New England J Med 1173, 1176 (placing risk at 255%); see also Staprans & Feinberg, Medical Management of AIDS 32 (studies report 13% to 45% risk of infection, with average of approximately 25%) Petitioner points to evidence in the record suggesting that antiretroviral therapy can lower the risk of perinatal transmission to about 8% App 53; see also (83%); Sperling et al, Maternal Viral Load, Zidovudine Treatment, and the Risk of Transmission of Human Immunodeficiency Virus Type 1 from Mother to Infant, 335 New England J Med 1621, 1622 (76%) The United States questions the relevance of the 8% figure, pointing to regulatory language requiring the substantiality of a limitation to be assessed without regard to available mitigating measures Brief for United States as Amicus Curiae 18, n 10 ; 29 CFR pt *641 1630, App, p 351 ) We need not resolve this dispute in order to decide this case, however It cannot be said as a matter of law that an 8% risk of transmitting a dread and fatal disease to one's child does not represent a substantial limitation on reproduction The Act addresses substantial limitations on major life activities, not utter inabilities Conception and childbirth are not impossible for an HIV victim but, without doubt, are dangerous to the public health This meets the definition of a substantial limitation The decision to reproduce carries economic and legal consequences as well There are added costs for antiretroviral therapy, supplemental insurance, and long-term health care for the child who must be |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | and long-term health care for the child who must be examined and, tragic to think, treated for the infection The laws of some States, moreover, forbid persons infected with HIV to have sex with others, regardless of consent Iowa Code 1391, 13931 ; Md Health Code Ann 18-6011(a) ; Mont Code Ann 50-18-101, 50-18-112 ; Utah Code Ann 26-635(3) ; id, 26-65 ; Wash Rev Code 9A36011(1)(b) (Supp 1998); see also N D Cent Code 121-20-17 In the end, the disability definition does not turn on personal choice When significant limitations result from the impairment, the definition is met even if the difficulties are not insurmountable For the statistical and other reasons we have cited, of course, the limitations on reproduction may be insurmountable here Testimony from the respondent that her HIV infection controlled her decision not to have a child is unchallenged App 14; 912 F Supp, at 587; 107 F 3d, at 942 In the context of reviewing summary judgment, we must take it to be true Fed Rule Civ Proc 56(e) We agree with the District Court and the Court of Appeals that no triable issue of fact impedes a ruling on the question of statutory coverage Respondent's HIV infection is a physical impairment which substantially limits a major life activity, as the ADA defines it In view of our holding, we *642 need not address the second question presented, i e, whether HIV infection is a per se disability under the ADA B Our holding is confirmed by a consistent course of agency interpretation before and after enactment of the ADA Every agency to consider the issue under the Rehabilitation Act found statutory coverage for persons with asymptomatic HIV Responsibility for administering the Rehabilitation Act was not delegated to a single agency, but we need not pause to inquire whether this causes us to withhold deference to agency interpretations under U S A Inc v Natural Resources Defense Council, Inc, 467 US 837, It is enough to observe that the well-reasoned views of the agencies implementing a statute "constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance" Skidmore v Swift & Co, 323 US 134, One comprehensive and significant administrative precedent is a opinion issued by the Office of Legal Counsel of the Department of Justice (OLC) concluding that the Rehabilitation Act "protects symptomatic and asymptomatic HIV-infected individuals against discrimination in any covered program" Application of Section 504 of the Rehabilitation Act to HIV-Infected Individuals, 12 Op Off Legal Counsel 264, 264-2 (preliminary print) (footnote omitted) Relying |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | Off Legal Counsel 264, 264-2 (preliminary print) (footnote omitted) Relying on a letter from Surgeon General C Everett Koop stating that, "from a purely scientific perspective, persons with HIV are clearly impaired" even during the asymptomatic phase, OLC determined asymptomatic HIV was a physical impairment under the Rehabilitation Act because it constituted a "physiological disorder or condition affecting the hemic and lymphatic systems" OLC determined further that asymptomatic HIV imposed a substantial limit on the major life activity of reproduction The opinion said: *643 "Based on the medical knowledge available to us, we believe that it is reasonable to conclude that the life activity of procreation is substantially limited for an asymptomatic HIV-infected individual In light of the significant risk that the AIDS virus may be transmitted to a baby during pregnancy, HIV-infected individuals cannot, whether they are male or female, engage in the act of procreation with the normal expectation of bringing forth a healthy child" In addition, OLC indicated that "[t]he life activity of engaging in sexual relations is threatened and probably substantially limited by the contagiousness of the virus" Either consideration was sufficient to render asymptomatic HIV infection a handicap for purposes of the Rehabilitation Act In the course of its opinion, OLC considered, and rejected, the contention that the limitation could be discounted as a voluntary response to the infection The limitation, it reasoned, was the infection's manifest physical effect and n 13 Without exception, the other agencies to address the problem before enactment of the ADA reached the same result Federal Contract Compliance Manual App 6D, 8 FEP Manual 405:352 ; In re Ritter, No 03890089, ; see also Comptroller General's Task Force on AIDS in the Workplace, Coping with AIDS in the GAO Workplace: Task Force Report 29 ; Report of the Presidential Commission on the Human Immunodeficiency Virus Epidemic 113-114, 122-123 Agencies have adhered to this conclusion since the enactment of the ADA as well See 5 CFR 1636 ; 7 CFR 15e (1998); 22 CFR 1701 ; 24 CFR 9 ; 34 CFR 1200 ; 45 CFR 2301, 2490 ; In re Westchester County Medical Center, [1991- Transfer Binder] CCH Employment Practices Guide ¶ 5340, pp 6110-6112 (Apr 20, 1992), aff'd, id, ¶ 5362, pp 6249-6250 (Dept of Health & Human Servs Departmental Appeals Bd, Sept 25, 1992); *644 In re Rosebud Sioux Tribe, No 93-504-1, ; In re Martin, No 019089, WL 151524, Every court which addressed the issue before the ADA was enacted in July moreover, concluded that asymptomatic HIV infection satisfied the Rehabilitation Act's definition of a handicap See |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | infection satisfied the Rehabilitation Act's definition of a handicap See Doe v Garrett, 903 F2d 1455, cert denied, 499 US 904 ; Ray v School Dist of DeSoto County, 666 F Supp 1524, ; Thomas v Atascadero Unified School Dist, 662 F Supp 376, ; District 27 Community School Bd vBoard of Ed of New York, 130 Misc 2d 398, 502 N Y S 2d 325, 335-337 ; cfBaxter v Belleville, 720 F Supp 720, ; Cain v Hyatt, 734 F Supp 671, ; Chalk vUnited States Dist Ct, 840 F2d 701, ; Doe v Dolton Elementary School Dist No 148, 694 F Supp 440, ; Robertson v Granite City Community Unit School Dist No 9, 684 F Supp 1002, ; Local 1812, AFGE v United States Dept of State, 662 F Supp 50, ; cf Association of Relatives and Friends of AIDS Patients v Regulations and Permits Admin, 740 F Supp 95, ) We are aware of no instance prior to the enactment of the ADA in which a court or agency ruled that HIV infection was not a handicap under the Rehabilitation Act Had Congress done nothing more than copy the Rehabilitation Act definition into the ADA, its action would indicate *645 the new statute should be construed in light of this unwavering line of administrative and judicial interpretation All indications are that Congress was well aware of the position taken by OLC when enacting the ADA and intended to give that position its active endorsement H R Rep No 101 485, pt 2, p 52 (endorsing the analysis and conclusion of the OLC opinion); id, pt 3, at 28, n 18 (same); S Rep No 101-116, pp 21, 22 (same) As noted earlier, Congress also incorporated the same definition into the Fair Housing Amendments Act of See 42 US C 3602(h)(1) We find it significant that the implementing regulations issued by the Department of Housing and Urban Development (HUD) construed the definition to include infection with HIV Fed Reg 3232, 3245 ); see also In re Williams, 2A PH Fair Housing-Fair Lending ¶ 25,007, pp 25,111-25,113 (adhering to this interpretation); In re Elroy R and Dorothy Burns Trust, 2A PH Fair Housing-Fair Lending ¶ 25,073, p 25,678 (same) Again the legislative record indicates that Congress intended to ratify HUD's interpretation when it reiterated the same definition in the ADA H R Rep No 101-485, pt 2, at 50; id, pt 3, at 27; id, pt 4, at 36; S Rep No 101-116, at 21 We find the uniformity of the administrative and judicial precedent construing the definition |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | uniformity of the administrative and judicial precedent construing the definition significant When administrative and judicial interpretations have settled the meaning of an existing statutory provision, repetition of the same language in a new statute indicates, as a general matter, the intent to incorporate its administrative and judicial interpretations as well See, e g, Lorillard v Pons, 434 US 575, The uniform body of administrative and judicial precedent confirms the conclusion we reach today as the most faithful way to effect the congressional design *646 C Our conclusion is further reinforced by the administrative guidance issued by the Justice Department to implement the public accommodation provisions of Title III of the ADA As the agency directed by Congress to issue implementing regulations, see 42 US C 12186(b), to render technical assistance explaining the responsibilities of covered individuals and institutions, 12206(c), and to enforce Title III in court, 12188(b), the Department's views are entitled to deference See 467 U S, at The Justice Department's interpretation of the definition of disability is consistent with our analysis The regulations acknowledge that Congress intended the ADA's definition of disability to be given the same construction as the definition of handicap in the Rehabilitation Act 28 CFR 36(a) ; id, pt 36, App B, pp 608, 609 The regulatory definition developed by HEW to implement the Rehabilitation Act is incorporated verbatim in the ADA regulations 36104 The Justice Department went further, however It added "HIV infection (symptomatic and asymptomatic)" to the list of disorders constituting a physical impairment 36104(1)(iii) The technical assistance the Department has issued pursuant to 42 US C 12206 similarly concludes that persons with asymptomatic HIV infection fall within the ADA's definition of disability See, e g, U S Dept of Justice, Civil Rights Division, The Americans with Disabilities Act: Title III Technical Assistance Manual 9 (Nov 1993); Response to Congressman Sonny Callahan, 5 Nat Disability L Rep (LRP) ¶ 360, p 1167 ; Response to A Laurence Field, 5 Nat Disability L Rep (LRP) ¶ 21, p 80 (Sept 10, 1993) Any other conclusion, the Department reasoned, would contradict Congress' affirmative ratification of the administrative interpretations given previous versions of the same definition 28 CFR pt 36, App B, pp 609, 610 (citing the OLC opinion and HUD regulations); 56 Fed Reg 7455, 7456 (same) (notice of proposed rulemaking) *647 We also draw guidance from the views of the agencies authorized to administer other sections of the ADA See 42 US C 12116 (authorizing EEOC to issue regulations implementing Title I); 12134(a) (authorizing the Attorney General to issue regulations implementing the public |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | (authorizing the Attorney General to issue regulations implementing the public services provisions of Title II, subtitle A); 12149, 12164, 12186 (authorizing the Secretary of Transportation to issue regulations implementing the transportation-related provisions of Titles II and III); 12206(c) (authorizing the same agencies to offer technical assistance for the provisions they administer) These agencies, too, concluded that HIV infection is a physical impairment under the ADA 28 CFR 35104(1)(iii) ; 49 CFR 373, 383 ; 56 Fed Reg 13858 ; U S Dept of Justice, Civil Rights Division, The Americans with Disabilities Act: Title II Technical Assistance Manual 4 (Nov 1993); EEOC, A Technical Assistance Manual on the Employment Provisions (Title I) of the Americans with Disabilities Act II-3 (Jan 1992) (hereinafter EEOC Technical Assistance Manual); EEOC Interpretive Manual 9022(d), pp 902-13 to 902-14 (hereinafter EEOC Interpretive Manual), reprinted in 2 BNA EEOC Compliance Manual 902:0013 (1998) Most categorical of all is EEOC's conclusion that "an individual who has HIV infection (including asymptomatic HIV infection) is an individual with a disability" EEOC Interpretive Manual 9024(c)(1), p 902-21; accord, id, 9022(d), p 902 14, n 18 In the EEOC's view, "impairments such as HIV infection, are inherently substantially limiting" 29 CFR pt 1630, App, p 350 ; EEOC Technical Assistance Manual II-4; EEOC Interpretive Manual 9024(c)(1), p 902-21 The regulatory authorities we cite are consistent with our holding that HIV infection, even in the so-called asymptomatic phase, is an impairment which substantially limits the major life activity of reproduction *648 III The petition for certiorari presented three other questions for review The questions stated: "3 When deciding under title III of the ADA whether a private health care provider must perform invasive procedures on an infectious patient in his office, should courts defer to the health care provider's professional judgment, as long as it is reasonable in light of thencurrent medical knowledge? "4 What is the proper standard of judicial review under title III of the ADA of a private health care provider's judgment that the performance of certain invasive procedures in his office would pose a direct threat to the health or safety of others? "5 Did petitioner, Randon Bragdon, D M D, raise a genuine issue of fact for trial as to whether he was warranted in his judgment that the performance of certain invasive procedures on a patient in his office would have posed a direct threat to the health or safety of others?" Pet for Cert i Of these, we granted certiorari only on question three The question is phrased in an awkward way, for it conflates two |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | is phrased in an awkward way, for it conflates two separate inquiries In asking whether it is appropriate to defer to petitioner's judgment, it assumes that petitioner's assessment of the objective facts was reasonable The central premise of the question and the assumption on which it is based merit separate consideration Again, we begin with the statute Notwithstanding the protection given respondent by the ADA's definition of disability, petitioner could have refused to treat her if her infectious condition "pose[d] a direct threat to the health or safety of others" 42 US C 12182(b)(3) The ADA defines a direct threat to be "a significant risk to the health or safety of others that cannot be eliminated by a modification of policies, practices, or procedures or by the provision of auxiliary aids *649 or services" Ibid Parallel provisions appear in the employment provisions of Title I 12111(3), 12113(b) The ADA's direct threat provision stems from the recognition in School Bd of Nassau Cty v 480 US 273, of the importance of prohibiting discrimination against individuals with disabilities while protecting others from significant health and safety risks, resulting, for instance, from a contagious disease In the Court reconciled these objectives by construing the Rehabilitation Act not to require the hiring of a person who posed "a significant risk of communicating an infectious disease to others" at n 16 Congress amended the Rehabilitation Act and the Fair Housing Act to incorporate the language See 29 US C (8)(D) (excluding individuals who "would constitute a direct threat to the health or safety of other individuals"); 42 US C 3604(f)(9) (same) It later relied on the same language in enacting the ADA See 28 CFR pt 36, App B, p 626 (ADA's direct threat provision codifies ) Because few, if any, activities in life are risk free, and the ADA do not ask whether a risk exists, but whether it is significant at and n 16; 42 US C 12182(b)(3) The existence, or nonexistence, of a significant risk must be determined from the standpoint of the person who refuses the treatment or accommodation, and the risk assessment must be based on medical or other objective evidence ; 28 CFR 36208(c) ; id, pt 36, App B, p 626 As a health care professional, petitioner had the duty to assess the risk of infection based on the objective, scientific information available to him and others in his profession His belief that a significant risk existed, even if maintained in good faith, would not relieve him from liability To use the words of the question presented, petitioner |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | liability To use the words of the question presented, petitioner receives no special deference simply because he is a health care professional It is true that reserved "the question whether courts should also defer to the reasonable medical *0 judgments of private physicians on which an employer has relied" 480 US, n 18 At most, this statement reserved the possibility that employers could consult with individual physicians as objective third-party experts It did not suggest that an individual physician's state of mind could excuse discrimination without regard to the objective reasonableness of his actions Our conclusion that courts should assess the objective reasonableness of the views of health care professionals without deferring to their individual judgments does not answer the implicit assumption in the question presented, whether petitioner's actions were reasonable in light of the available medical evidence In assessing the reasonableness of petitioner's actions, the views of public health authorities, such as the U S Public Health Service, CDC, and the National Institutes of Health, are of special weight and authority ; 28 CFR pt 36, App B, p 626 The views of these organizations are not conclusive, however A health care professional who disagrees with the prevailing medical consensus may refute it by citing a credible scientific basis for deviating from the accepted norm See W Keeton, D Dobbs, R Keeton, & D Owen, Prosser and Keeton on Law of Torts 32, p 187 We have reviewed so much of the record as necessary to illustrate the application of the rule to the facts of this case For the most part, the Court of Appeals followed the proper standard in evaluating petitioner's position and conducted a thorough review of the evidence Its rejection of the District Court's reliance on the Marianos affidavits was a correct application of the principle that petitioner's actions must be evaluated in light of the available, objective evidence The record did not show that CDC had published the conclusion set out in the affidavits at the time petitioner refused to treat respondent 107 F3d, A further illustration of a correct application of the objective standard is the Court of Appeals' refusal to give weight *1 to petitioner's offer to treat respondent in a hospital at 943, n 4 Petitioner testified that he believed hospitals had safety measures, such as air filtration, ultraviolet lights, and respirators, which would reduce the risk of HIV transmission App 151 Petitioner made no showing, however, that any area hospital had these safeguards or even that he had hospital privileges His expert also admitted the lack of any scientific basis |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | His expert also admitted the lack of any scientific basis for the conclusion that these measures would lower the risk of transmission Petitioner failed to present any objective, medical evidence showing that treating respondent in a hospital would be safer or more efficient in preventing HIV transmission than treatment in a well-equipped dental office We are concerned, however, that the Court of Appeals might have placed mistaken reliance upon two other sources In ruling no triable issue of fact existed on this point, the Court of Appeals relied on the 1993 CDC Dentistry Guidelines and the 1991 American Dental Association Policy on HIV -946 This evidence is not definitive As noted earlier, the CDC Guidelines recommended certain universal precautions which, in CDC's view, "should reduce the risk of disease transmission in the dental environment" U S Dept of Health and Human Services, Public Health Service, CDC, Recommended Infection-Control Practices for Dentistry, 41 Morbidity and Mortality Weekly Rep No RR-8, p 1 (May 28, 1993) The Court of Appeals determined that, "[w]hile the guidelines do not state explicitly that no further risk-reduction measures are desirable or that routine dental care for HIV-positive individuals is safe, those two conclusions seem to be implicit in the guidelines' detailed delineation of procedures for office treatment of HIV-positive patients" 107 F3d, at 946 In our view, the Guidelines do not necessarily contain implicit assumptions conclusive of the point to be decided The Guidelines set out CDC's recommendation that the universal precautions are the best way *2 to combat the risk of HIV transmission They do not assess the level of risk Nor can we be certain, on this record, whether the 1991 American Dental Association Policy on HIV carries the weight the Court of Appeals attributed to it The Policy does provide some evidence of the medical community's objective assessment of the risks posed by treating people infected with HIV in dental offices It indicates: "Current scientific and epidemiologic evidence indicates that there is little risk of transmission of infectious diseases through dental treatment if recommended infection control procedures are routinely followed Patients with HIV infection may be safely treated in private dental offices when appropriate infection control procedures are employed Such infection control procedures provide protection both for patients and dental personnel" App 225 We note, however, that the Association is a professional organization, which, although a respected source of information on the dental profession, is not a public health authority It is not clear the extent to which the Policy was based on the Association's assessment of dentists' ethical and professional duties in |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | the Association's assessment of dentists' ethical and professional duties in addition to its scientific assessment of the risk to which the ADA refers Efforts to clarify dentists' ethical obligations and to encourage dentists to treat patients with HIV infection with compassion may be commendable, but the question under the statute is one of statistical likelihood, not professional responsibility Without more information on the manner in which the American Dental Association formulated this Policy, we are unable to determine the Policy's value in evaluating whether petitioner's assessment of the risks was reasonable as a matter of law The court considered materials submitted by both parties on the cross-motions for summary judgment The petitioner was required to establish that there existed a genuine *3 issue of material fact Evidence which was merely colorable or not significantly probative would not have been sufficient Anderson v Liberty Lobby, Inc, 477 US 242, We acknowledge the presence of other evidence in the record before the Court of Appeals which, subject to further arguments and examination, might support affirmance of the trial court's ruling For instance, the record contains substantial testimony from numerous health experts indicating that it is safe to treat patients infected with HIV in dental offices App 66-68, 88-90, 264-266, 268 We are unable to determine the import of this evidence, however The record does not disclose whether the expert testimony submitted by respondent turned on evidence available in September See id, There are reasons to doubt whether petitioner advanced evidence sufficient to raise a triable issue of fact on the significance of the risk Petitioner relied on two principal points: First, he asserted that the use of high-speed drills and surface cooling with water created a risk of airborne HIV transmission The study on which petitioner relied was inconclusive, however, determining only that "[f]urther work is required to determine whether such a risk exists" Johnson & Robinson, Human Immunodeficiency Virus-1 (HIV-1) in the Vapors of Surgical Power Instruments, 33 J of Medical Virology 47 Petitioner's expert witness conceded, moreover, that no evidence suggested the spray could transmit HIV His opinion on airborne risk was based on the absence of contrary evidence, not on positive data App 166 Scientific evidence and expert testimony must have a traceable, analytical basis in objective fact before it may be considered on summary judgment See General Electric Co v Joiner, 522 US 136, Second, petitioner argues that, as of September CDC had identified seven dental workers with possible occupational transmission of HIV See U S Dept of Health and Human Services, Public Health Service, CDC, HIV/AIDS Surveillance |
Justice Kennedy | 1,998 | 4 | majority | Bragdon v. Abbott | https://www.courtlistener.com/opinion/118241/bragdon-v-abbott/ | Health and Human Services, Public Health Service, CDC, HIV/AIDS Surveillance Report, vol 6, no 1, p 15, tbl 11 These dental workers were exposed to HIV in the course of their employment, but CDC could not determine whether HIV infection had resulted from this exposure at 15, n 3 It is now known that CDC could not ascertain how the seven dental workers contracted the disease because they did not present themselves for HIV testing at an appropriate time after this occupational exposure Gooch et al, Percutaneous Exposures to HIV-Infected Blood Among Dental Workers Enrolled in the CDC Needlestick Study, 126 J American Dental Assn 1237, 1239 It is not clear on this record, however, whether this information was available to petitioner in September If not, the seven cases might have provided some, albeit not necessarily sufficient, support for petitioner's position Standing alone, we doubt it would meet the objective, scientific basis for finding a significant risk to the petitioner Our evaluation of the evidence is constrained by the fact that on these and other points we have not had briefs and arguments directed to the entire record In accepting the case for review, we declined to grant certiorari on question five, which asked whether petitioner raised a genuine issue of fact for trial Pet for Cert i As a result, the briefs and arguments presented to us did not concentrate on the question of sufficiency in light all of the submissions in the summary judgment proceeding "When attention has been focused on other issues, or when the court from which a case comes has expressed no views on a controlling question, it may be appropriate to remand the case rather than deal with the merits of that question in this Court" Dandridge v Williams, 397 US 471, 476, n 6 This consideration carries particular force where, as here, full briefing directed at the issue would help place a complex factual record in proper perspective Resolution of the issue will be of importance *5 to health care workers not just for the result but also for the precision and comprehensiveness of the reasons given for the decision We conclude the proper course is to give the Court of Appeals the opportunity to determine whether our analysis of some of the studies cited by the parties would change its conclusion that petitioner presented neither objective evidence nor a triable issue of fact on the question of risk In remanding the case, we do not foreclose the possibility that the Court of Appeals may reach the same conclusion it did earlier A |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | Prior to the events leading to his discharge, appellee Wayne Kennedy[1] was a nonprobationary federal employee *137 in the competitive Civil Service. He was a field representative in the Chicago Regional Office of the Office of Economic Opportunity (OEO). In March 1972, he was removed from the federal service pursuant to the provisions of the Lloyd-La Follette Act, 5 U.S. C. ง 7501, after Wendell Verduin, the Regional Director of the OEO, upheld written administrative charges made in the form of a "Notification of Proposed Adverse Action" against appellee. The charges listed five events occurring in November and December ; the most serious of the charges was that appellee "without any proof whatsoever and in reckless disregard of the actual facts" known to him or reasonably discoverable by him had publicly stated that Verduin and his administrative assistant had attempted to bribe a representative of a community action organization with which the OEO had dealings. The alleged bribe consisted of an offer of a $100,000 grant of OEO funds if the representative would sign a statement against appellee and another OEO employee. Appellee was advised of his right under regulations promulgated by the Civil Service Commission and the OEO to reply to the charges orally and in writing, and to submit affidavits to Verduin. He was also advised that the material on which the notice was based was available for his inspection in the Regional Office, and that a copy of the material was attached to the notice of proposed adverse action. Appellee did not respond to the substance of the charges against him, but instead asserted that the charges were unlawful because he had a right to a trial-type hearing before an impartial hearing officer before he could be removed from his employment, and because statements *138 made by him were protected by the First Amendment to the United States Constitution.[2] On March 20, 1972, Verduin notified appellee in writing that he would be removed from his position at the close of business on March 27, 1972. Appellee was also notified of his right to appeal Verduin's decision either to the OEO or to the Civil Service Commission. Appellee then instituted this suit in the United States District Court for the Northern District of Illinois on behalf of himself and others similarly situated, seeking both injunctive and declaratory relief. In his amended complaint,[3] appellee contended that the standards and procedures established by and under the Lloyd-La Follette Act for the removal of nonprobationary employees *139 from the federal service unwarrantedly interfere with those employees' freedom of expression and deny |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | unwarrantedly interfere with those employees' freedom of expression and deny them procedural due process of law. The three-judge District Court, convened pursuant to 28 U.S. C. งง 2282 and 2284, granted summary judgment for appellee. The court held that the discharge procedures authorized by the Act and attendant Civil Service Commission and OEO regulations denied appellee due process of law because they failed to provide for a trial-type hearing before an impartial agency official prior to removal; the court also held the Act and implementing regulations unconstitutionally vague because they failed to furnish sufficiently precise guidelines as to what kind of speech may be made the basis of a removal action. The court ordered that appellee be reinstated in his former position with backpay, and that he be accorded a hearing prior to removal in any future removal proceedings. Appellants were also enjoined from further enforcement of the Lloyd-La Follette Act, and implementing rules, as "construed to regulate the speech of competitive service employees."[4] I The numerous affidavits submitted to the District Court by both parties not unexpectedly portray two widely differing versions of the facts which gave rise to this lawsuit. Since the District Court granted summary judgment to appellee, it was required to resolve all genuine disputes as to any material facts in favor of appellants, and we therefore take as true for purposes *0 of this opinion the material particulars of appellee's conduct which were set forth in the notification of proposed adverse action dated February 18, 1972. The District Court's holding necessarily embodies the legal conclusions that, even though all of these factual statements were true, the procedure which the Government proposed to follow in this case was constitutionally insufficient to accomplish appellee's discharge, and the standard by which his conduct was to be judged in the course of those procedures infringed his right of free speech protected by the First Amendment. The statutory provisions which the District Court held invalid are found in 5 U.S. C. ง 7501. Subsection (a) of that section provides that "[a]n individual in the competitive service may be removed or suspended without pay only for such cause as will promote the efficiency of the service." Subsection (b) established the administrative procedures by which an employee's rights under subsection (a) are to be determined, providing: "(b) An individual in the competitive service whose removal or suspension without pay is sought is entitled to reasons in writing and toโ "(1) notice of the action sought and of any charges preferred against him; "(2) a copy of the charges; "(3) a reasonable time |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | "(2) a copy of the charges; "(3) a reasonable time for filing a written answer to the charges, with affidavits; and "(4) a written decision on the answer at the earliest practicable date. "Examination of witnesses, trial, or hearing is not required but may be provided in the discretion of the individual directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, the reasons for and the order *1 of removal or suspension without pay, and also the reasons for reduction in grade or pay, shall be made a part of the records of the employing agency, and, on request, shall be furnished to the individual affected and to the Civil Service Commission." This codification of the Lloyd-La Follette Act is now supplemented by the regulations of the Civil Service Commission, and, with respect to the OEO, by the regulations and instructions of that agency. Both the Commission and the OEO have by regulation given further specific content to the general removal standard in subsection (a) of the Act. The regulations of the Commission[5] and the OEO,[6] in nearly identical language, require *2 that employees "avoid any action which might result in, or create the appearance of [a]ffecting adversely the confidence of the public in the integrity of [OEO and] the Government," and that employees not "engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful or other conduct prejudicial to the Government." The OEO further provides by regulation that its Office of General Counsel is available to supply counseling on the interpretation of the laws and regulations relevant to the conduct of OEO employees.[7] Both the Commission and the OEO also follow regulations enlarging the procedural protections accorded by the Act itself.[8] The Commission's regulations provide, *3 inter alia, that the employing agency must give 30 days' advance written notice to the employee prior to removal, and make available to him the material on which the notice is based.[9] They also provide that the employee shall have an opportunity to appear before the official vested with authority to make the removal decision in order to answer the charges against him,[10]*4 that the employee must receive notice of an adverse decision on or before its effective date, and that the employee may appeal from an adverse decision.[11] This appeal may be either to a reviewing authority within the employing agency,[12] or directly to the Commission,[13]*5 and the employee is entitled to an evidentiary trial-type hearing at the appeal stage of the proceeding.[] The only trial-type hearing available within the OEO is, by *6 virtue |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | trial-type hearing available within the OEO is, by *6 virtue of its regulations and practice, typically held after actual removal;[15] but if the employee is reinstated on appeal, he receives full backpay, less any amounts earned by him through other employment during that period.[16] *7 We must first decide whether these procedures established for the purpose of determining whether there is "cause" under the Lloyd-La Follette Act for the dismissal *8 of a federal employee comport with procedural due process, and then decide whether that standard of "cause" for federal employee dismissals was within the constitutional power of Congress to adopt. II For almost the first century of our national existence, federal employment was regarded as an item of patronage, which could be granted, withheld, or withdrawn for whatever reasons might appeal to the responsible executive hiring officer. Following the Civil War, grass-roots sentiment for "Civil Service reform" began to grow, and it was apparently brought to a head by the assassination of President James A. Garfield on July 2, 1881. Garfield, having then held office only four months, was accosted in Washington's Union Station and shot by a dissatisfied office seeker who believed that the President had been instrumental in refusing his request for appointment as United States Consul in Paris. During the *9 summer, while President Garfield lingered prior to his death in September, delegates from 13 Civil Service reform associations met and formed the National Civil Service Reform League. Responding to public demand for reform led by this organization, Congress in January 1883 enacted the Pendleton Act.[17] While the Pendleton Act is regarded as the keystone in the present arch of Civil Service legislation, by present-day standards it was quite limited in its application. It dealt almost exclusively with entry into the federal service, and hardly at all with tenure, promotion, removal, veterans' preference, pensions, and other subjects addressed by subsequent Civil Service legislation. The Pendleton Act provided for the creation of a classified Civil Service, and required competitive examination for entry into that service. Its only provision with respect to separation was to prohibit removal for the failure of an employee in the classified service to contribute to a political fund or to render any political service.[18] For 16 years following the effective date of the Pendleton Act, this last-mentioned provision of that Act appears to have been the only statutory or regulatory limitation on the right of the Government to discharge classified employees. In 1897, President William McKinley promulgated Civil Service Rule II,[19] which provided that removal from the competitive classified service should not be |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | that removal from the competitive classified service should not be made except for just cause and for *150 reasons given in writing. While job tenure was thereby accorded protection, there were no administrative appeal rights for action taken in violation of this rule, and the courts declined to judicially enforce it. Thus matters stood with respect to governmental authority to remove federal employees until the enactment of the Lloyd-La Follette Act. The Lloyd-La Follette Act was enacted as one section of the Post Office Department appropriation bill for the fiscal year 1913. That Act guaranteed the right of federal employees to communicate with members of Congress, and to join employee organizations. It also substantially enacted and enlarged upon Civil Service Rule II in the following language: "[N]o person in the classified civil service of the United States shall be removed therefrom except for such cause as will promote the efficiency of said service and for reasons given in writing, and the person whose removal is sought shall have notice of the same and of any charges preferred against him, and be furnished with a copy thereof, and also be allowed a reasonable time for personally answering the same in writing; and affidavits in support thereof; but no examination of witnesses nor any trial or hearing shall be required except in the discretion of the officer making the removal; and copies of charges, notice of hearing, answer, reasons for removal, and of the order of removal shall be made a part of the records of the proper department or office, as shall also the reasons for reduction in rank or compensation; and copies of the same shall be furnished to the person affected upon request, and the Civil Service Commission also shall, upon request, be furnished copies of the same."[20] *151 That Act, as now codified, 5 U.S. C. ง 7501, together with the administrative regulations issued by the Civil Service Commission and the OEO, provided the statutory and administrative framework which the Government contends controlled the proceedings against appellee. The District Court, in its ruling on appellee's procedural contentions, in effect held that the Fifth Amendment to the United States Constitution prohibited Congress, in the Lloyd-La Follette Act, from granting protection against removal without cause and at the same timeโindeed, in the same sentenceโspecifying that the determination of cause should be without the full panoply of rights which attend a trial-type adversary hearing. We do not believe that the Constitution so limits Congress in the manner in which benefits may be extended to federal employees. Appellee recognizes that our recent |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | be extended to federal employees. Appellee recognizes that our recent decisions in Board of and are those most closely in point with respect to the procedural rights constitutionally guaranteed public employees in connection with their dismissal from employment. Appellee contends that he had a property interest or an expectancy of employment which could not be divested without first affording him a full adversary hearing. In Board of we said: "Property interests, of course, are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state lawโrules or understandings that secure certain benefits and that support claims of entitlement to those benefits." Here appellee did have a statutory expectancy that he not be removed other than for "such cause as will promote *152 the efficiency of [the] service." But the very section of the statute which granted him that right, a right which had previously existed only by virtue of administrative regulation, expressly provided also for the procedure by which "cause" was to be determined, and expressly omitted the procedural guarantees which appellee insists are mandated by the Constitution. Only by bifurcating the very sentence of the Act of Congress which conferred upon appellee the right not to be removed save for cause could it be said that he had an expectancy of that substantive right without the procedural limitations which Congress attached to it. In the area of federal regulation of government employees, where in the absence of statutory limitation the governmental employer has had virtually uncontrolled latitude in decisions as to hiring and firing, Cafeteria we do not believe that a statutory enactment such as the Lloyd-La Follette Act may be parsed as discretely as appellee urges. Congress was obviously intent on according a measure of statutory job security to governmental employees which they had not previously enjoyed, but was likewise intent on excluding more elaborate procedural requirements which it felt would make the operation of the new scheme unnecessarily burden-some in practice. Where the focus of legislation was thus strongly on the procedural mechanism for enforcing the substantive right which was simultaneously conferred, we decline to conclude that the substantive right may be viewed wholly apart from the procedure provided for its enforcement. The employee's statutorily defined right is not a guarantee against removal without cause in the abstract, but such a guarantee as enforced by the procedures which congress has designated for the determination of cause. The Court has previously viewed skeptically the action of a litigant in challenging the |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | viewed skeptically the action of a litigant in challenging the constitutionality of portions *153 of a statute under which it has simultaneously claimed benefits. In it was observed: "In the name and right of the Association it is now being asked that the Act under which it has its existence be struck down in important particulars, hardly severable from those provisions which grant its right to exist. It would be intolerable that the Congress should endow an association with the right to conduct a public banking business on certain limitations and that the Court at the behest of those who took advantage from the privilege should remove the limitations intended for public protection. It would be difficult to imagine a more appropriate situation in which to apply the doctrine that one who utilizes an Act to gain advantages of corporate existence is estopped from questioning the validity of its vital conditions." "It is an elementary rule of constitutional law that one may not `retain the benefits of an Act while attacking the constitutionality of one of its important conditions.' United As formulated by Mr. Justice Brandeis, concurring in 7 U.S. 288, `The Court will not pass upon the constitutionality of a statute at the instance of one who has availed himself of its benefits.' " This doctrine has unquestionably been applied unevenly in the past, and observed as often as not in the breach. We believe that at the very least it gives added weight to our conclusion that where the grant of a substantive right is inextricably intertwined with the limitations on the procedures which are to be employed in *154 determining that right, a litigant in the position of appellee must take the bitter with the sweet. To conclude otherwise would require us to hold that although Congress chose to enact what was essentially a legislative compromise, and with unmistakable clarity granted governmental employees security against being dismissed without "cause," but refused to accord them a full adversary hearing for the determination of "cause," it was constitutionally disabled from making such a choice. We would be holding that federal employees had been granted, as a result of the enactment of the Lloyd-La Follette Act, not merely that which Congress had given them in the first part of a sentence, but that which Congress had expressly withheld from them in the latter part of the same sentence. Neither the language of the Due Process Clause of the Fifth Amendment nor our cases construing it require any such hobbling restrictions on legislative authority in this area. Appellees urge that the |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | on legislative authority in this area. Appellees urge that the judgment of the District Court must be sustained on the authority of cases such as and Goldberg held that welfare recipients are entitled under the Due Process Clause of the Fifth and Fourteenth Amendments to an adversary hearing before their benefits are terminated. held that a hearing was generally required before one could have his property seized under a writ of replevin. In the Court held that due process required a procedure for determining whether there was a reasonable possibility of a judgment against a driver as a result of an accident before his license and vehicle registration could be suspended for failure to post security under Georgia's uninsured motorist statute. And in *155 v. Family Finance Corp. a Wisconsin statute providing for prejudgment garnishment without notice to the debtor or prior hearing was struck down as violative of the principles of due process. These cases deal with areas of the law dissimilar to one another and dissimilar to the area of governmental employer-employee relationships with which we deal here. The types of "liberty" and "property" protected by the Due Process Clause vary widely, and what may be required under that Clause in dealing with one set of interests which it protects may not be required in dealing with another set of interests. "The very nature of due process negates any concept of inflexible procedures universally applicable to every imaginable situation." Cafeteria Here the property interest which appellee had in his employment was itself conditioned by the procedural limitations which had accompanied the grant of that interest. The Government might, then, under our holdings dealing with Government employees in and constitutionally deal with appellee's claims as it proposed to do here.[21] *156 Appellee also contends in this Court that because of the nature of the charges on which his dismissal was based, he was in effect accused of dishonesty, and that therefore a hearing was required before he could be deprived of this element of his "liberty" protected by the Fifth Amendment against deprivation without due process. In Board of we said: "The State, in declining to rehire the respondent, did not make any charge against him that might seriously damage his standing and associations in his community. It did not base the nonrenewal of *157 his contract on a charge, for example, that he had been guilty of dishonesty, or immorality. In such a case, due process would accord an opportunity to refute the charge before university officials."[22] The liberty here implicated by appellants' action is not the elemental |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | liberty here implicated by appellants' action is not the elemental freedom from external restraint such as was involved in but is instead a subspecies of the right of the individual "to enjoy those privileges long recognized as essential to the orderly pursuit of happiness by free men." But that liberty is not offended by dismissal from employment itself, but instead by dismissal based upon an unsupported charge which could wrongfully injure the reputation of an employee. Since the purpose of the hearing in such a case is to provide the person "an opportunity to clear his name," a hearing afforded by administrative appeal procedures after the actual dismissal is a sufficient compliance with the requirements of the Due Process Clause. Here appellee chose not to rely on his administrative appeal, which, if his factual contentions are correct, might well have vindicated his reputation and removed any wrongful stigma from his reputation. Appellee urges that the delays in processing agency and Civil Service Commission appeals, amounting to more than three months in over 50% of agency appeals,[23] mean that the available administrative appeals do not *158 suffice to protect his liberty interest recognized in During the pendency of his administrative appeals, appellee asserts, a discharged employee suffers from both the stigma and the consequent disadvantage in obtaining a comparable job that result from dismissal for cause from Government employment. We assume that some delay attends vindication of an employee's reputation throughout the hearing procedures provided on appeal, and conclude that at least the delays cited here do not entail any separate deprivation of a liberty interest recognized in III Appellee also contends that the provisions of 5 U.S. C. ง 7501 (a), authorizing removal or suspension without pay "for such cause as will promote the efficiency of the service," are vague and overbroad. The District Court accepted this contention: "Because employees faced with the standard of `such cause as will promote the efficiency of the service' can only guess as to what utterances may cost them their jobs, there can be little question that they will be deterred from exercising their First Amendment rights to the fullest extent." A certain anomaly attends appellee's substantive constitutional attack on the Lloyd-La Follette Act just as it does his attack on its procedural provisions. Prior to the enactment of this language in 1912, there was no such statutory inhibition on the authority of the Government to discharge a federal employee, and an employee could be discharged with or without cause for conduct which was not protected under the First Amendment. Yet under the District |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | not protected under the First Amendment. Yet under the District Court's holding, a federal employee after the enactment of the Lloyd-La Follette Act may not even be discharged for conduct which constitutes "cause" for discharge and which is not protected *159 by the First Amendment, because the guarantee of job security which Congress chose to accord employees is "vague" and "overbroad." We hold the standard of "cause" set forth in the Lloyd-La Follette Act as a limitation on the Government's authority to discharge federal employees is constitutionally sufficient against the charges both of overbreadth and of vagueness. In we said: "[T]here are limitations in the English language with respect to being both specific and manageably brief, and it seems to us that although the prohibitions may not satisfy those intent on finding fault at any cost, they are set out in terms that the ordinary person exercising ordinary common sense can sufficiently understand and comply with, without sacrifice to the public interest. `[T]he general class of offense to which [the provisions are] directed is plainly within [their] terms [and they] will not be struck down as vague, even though marginal cases could be put where doubts might arise.' United" Congress sought to lay down an admittedly general standard, not for the purpose of defining criminal conduct, but in order to give myriad different federal employees performing widely disparate tasks a common standard of job protection. We do not believe that Congress was confined to the choice of enacting a detailed code of employee conduct, or else granting no job protection at all. As we said in : "The root of the vagueness doctrine is a rough idea of fairness. It is not a principle designed to convert into a constitutional dilemma the practical difficulties *160 in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited." Here the language "such cause as will promote the efficiency of the service" was not written upon a clean slate in 1912, and it does not appear on a clean slate now. The Civil Service Commission has indicated that what might be said to be longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the language used by Congress.[24] Moreover, the OEO has provided by regulation that its Office of General Counsel is available to counsel employees who seek advice on the interpretation of the Act and its regulations.[25] We found the similar procedure offered by the |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | its regulations.[25] We found the similar procedure offered by the Civil Service Commission important in rejecting the respondents' vagueness contentions in The phrase "such cause as will promote the efficiency of the service" as a standard of employee job protection is without doubt intended to authorize dismissal for speech as well as other conduct. makes it clear that in certain situations the discharge of a Government employee may be based on his speech without offending guarantees of the First Amendment: "At the same time it cannot be gainsaid that the State has interests as an employer in regulating the *161 speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Because of the infinite variety of factual situations in which public statements by Government employees might reasonably justify dismissal for "cause," we conclude that the Act describes, as explicitly as is required, the employee conduct which is ground for removal. The essential fairness of this broad and general removal standard, and the impracticability of greater specificity, were recognized by Judge Leventhal, writing for a panel of the United States Court of Appeals for the District of Columbia Circuit in Meehan v. Macy, 1 U. S. App. D. C. 217, 230, modified, 138 U. S. App. D. C. 38, : "[I]t is not feasible or necessary for the Government to spell out in detail all that conduct which will result in retaliation. The most conscientious of codes that define prohibited conduct of employees include `catchall' clauses prohibiting employee `misconduct,' `immorality,' or `conduct unbecoming.' We think it is inherent in the employment relationship as a matter of common sense if not [of] common law that [a Government] employee cannot reasonably assert a right to keep his job while at the same time he inveighs against his superiors in public with intemperate and defamatory [cartoons]. [Dismissal in such circumstances *162 neither] comes as an unfair surprise [nor] is so unexpected as to chill freedom to engage in appropriate speech." Since Congress when it enacted the Lloyd-La Follette Act did so with the intention of conferring job protection rights on federal employees which they had not previously had, it obviously did not intend to authorize discharge under the Act's removal standard for |
Justice Rehnquist | 1,974 | 19 | majority | Arnett v. Kennedy | https://www.courtlistener.com/opinion/109008/arnett-v-kennedy/ | intend to authorize discharge under the Act's removal standard for speech which is constitutionally protected. The Act proscribes only that public speech which improperly damages and impairs the reputation and efficiency of the employing agency, and it thus imposes no greater controls on the behavior of federal employees than are necessary for the protection of the Government as an employer. Indeed the Act is not directed at speech as such, but at employee behavior, including speech, which is detrimental to the efficiency of the employing agency. We hold that the language "such cause as will promote the efficiency of the service" in the Act excludes constitutionally protected speech, and that the statute is therefore not overboard. We have observed previously that the Court has a duty to construe a federal statute to avoid constitutional questions where such a construction is reasonably possible. United ; United We have no hesitation, as did the District Court, in saying that on the facts alleged in the administrative charges against appellee, the appropriate tribunal would infringe no constitutional right of appellee in concluding that there was "cause" for his discharge. Nor have we any doubt that satisfactory proof of these allegations could constitute "such cause as will promote the efficiency *163 of the service" within the terms of 5 U.S. C. ง 7501 (a). Appellee's contention then boils down to the assertion that although no constitutionally protected conduct of his own was the basis for his discharge on the Government's version of the facts, the statutory language in question must be declared inoperative, and a set of more particularized regulations substituted for it, because the generality of its language might result in marginal situations in which other persons seeking to engage in constitutionally protected conduct would be deterred from doing so. But we have held that Congress in establishing a standard of "cause" for discharge did not intend to include within that term any constitutionally protected conduct. We think that our statement in is a complete answer to appellee's contention: "As we understand this case, appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others." In sum, we hold that the Lloyd-La Follette Act in at once conferring upon nonprobationary federal employees the right not to be discharged except for "cause" and prescribing the procedural means by which that right was to be protected, did not create and expectancy of job retention in those employees requiring procedural protection under the Due Process Clause beyond that afforded |
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