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Justice Thomas | 2,018 | 1 | majority | Patchak v. Zinke | https://www.courtlistener.com/opinion/4471243/patchak-v-zinke/ | 16), even when the legislation “govern[s] one or a very small number of specific subjects,” at (slip op., at 21). For example, this Court has upheld narrow statutes that identified specific cases by caption and docket num- ber in their text. See at (slip op., at 19); Seattle And this Court has approv- ingly cited a D. C. Circuit decision, which upheld a statute that retroactively stripped jurisdiction over suits challeng- ing “a single memorial.” Bank at (slip —————— 6 Retroactivelegislation can violate other provisions of the Constitu- tion, such as the Ex Post Facto Clause and the Bills of Attainder Clause. See Bank 578 U. S., at (slip op., at 16). But Patchak’s Article III claim is the only challenge to before us. Cite as: 583 U. S. (2018) 15 Opinion of THOMAS, J. op., at 22) ). If these targeted statutes did not cross the line from legislative to judicial power, then does not either. IV The dissent offers a different theory for why vio- lates Article III. A statute impermissibly exercises the judicial power, the dissent contends, when it “targets” a particular suit and “manipulates” jurisdiction to direct the outcome, “practical[ly] operat[es]” to affect only one suit, and announces a legal standard that does not “imply some measure of generality” or “preserv[e] an adjudicative role for the courts.” Post, at 8, 11. We doubt that the constitutional line separating the legislative and judicial powers turns on factors such as a court’s doubts about Congress’ unexpressed motives, the number of “cases [that] were pending when the provision was enacted,” or the time left on the statute of limitations. Post, at 8. But even if it did, we disagree with the dis- sent’s characterization of Nothing on the face of is limited to Patchak’s case, or even to his challenge under the Indian Reorganization Act. Instead, the text extends to all suits “relating to” the Bradley Property. Thus, survives even under the dissent’s theory: It “prospectively govern[s] an open-ended class of disputes,” post, at 6, and its “relating to” standard “preserv[es] an adjudicative role for the courts,” post, at 11. While ’s “relating to” standard is not difficult to interpret or apply, this Court’s precedents encourage Congress to draft juris- dictional statutes in this manner. See Hertz Corp. v. Friend, (“[A]dministrative simplic- ity is a major virtue in a jurisdictional statute. [C]ourts benefit from straightforward rules under which they can 16 PATCHAK v. ZINKE Opinion of THOMAS, J. readily assure themselves of their power to hear a case”).7 * * * We conclude that of the Gun Lake Act |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | What the Court has done in this case makes a mockery of our Rules. Petitioner’s counsel convinced the Court to stay his client’s execution and to grant his petition for a writ of certiorari for the purpose of deciding a clear-cut constitu- tional question: Does the Eighth Amendment prohibit the execution of a murderer who cannot recall committing the murder for which the death sentence was imposed? The petition strenuously argued that executing such a person is unconstitutional. After persuading the Court to grant review of this ques- tion, counsel abruptly changed course. Perhaps because he concluded (correctly) that petitioner was unlikely to prevail on the question raised in the petition, he conceded that the argument advanced in his petition was wrong, and he switched to an entirely different argument, namely, that the state court had rejected petitioner’s claim that he is incompetent to be executed because the court erroneously thought that dementia, as opposed to other mental condi- tions, cannot provide a basis for such a claim. See Brief for Petitioner 16. This was not a question that the Court agreed to hear; indeed, there is no mention whatsoever of this argument in the petition—not even a hint. Nor is this question 2 MADISON v. ALABAMA ALITO, J., dissenting fairly included within those on which the Court granted review. On the contrary, it is an entirely discrete and independent question. Counsel’s tactics flagrantly flouted our Rules. Our Rules make it clear that we grant certiorari to decide the specific question or questions of law set out in a petition for certiorari. See this Court’s Rule 14.1(a) (“Only the questions set out in the petition, or fairly included therein, will be considered by the Court”). Our whole certiorari system would be thrown into turmoil if we allowed counsel to obtain review of one question and then switch to an entirely different question after review is granted. In the past when counsel have done this, we have dismissed the writ as improvidently granted. See, e.g., Visa, Inc. v. Osborn, 580 U. S. (2016); City and County of San Francisco v. Sheehan, 575 U. S. (2015). We should do that here. Instead, the majority rewards counsel’s trick. It vacates the judgment below because it is unsure whether the state court committed the error claimed in petitioner’s merits brief. But not only was there no trace of this argument in the petition, there is nothing in the record showing that the state court ever adopted the erroneous view that peti- tioner claims it took. I The question on which we granted review was |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | took. I The question on which we granted review was an out- growth of our per curiam decision in Dunn v. Madison, 583 U. S. (2017), which concerned an Eleventh Circuit decision granting petitioner federal habeas relief. Prior to that decision, this Court had held in that the Eighth Amendment prohib- its the execution of a person who is “insane,” and in Panetti v. Quarterman, the Court elaborated on this rule, explaining that a person cannot be executed if he lacks a rational understanding of the reason for the Cite as: 586 U. S. (2019) 3 ALITO, J., dissenting execution. The Eleventh Circuit interpreted those cases to mean that petitioner could not be executed because he did not remember killing his victim, Mobile, Alabama, police officer Julius Schulte. We summarily reversed. Under the relevant provision of the federal habeas statute, 28 U.S. C. which was enacted as part of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), petitioner could not obtain federal habeas relief unless the state court’s rejec- tion of his memory-loss claim represented an unreasonable application of federal law as clearly established at the time by decisions of this Court. We held that neither Ford nor Panetti clearly established that a person cannot be executed if he does not remember committing the crime for which the death sentence was imposed. Our opinion stated, however, that it “express[ed] no view on the merits of the underlying question outside of the AEDPA context.” Dunn, 583 U. S., at (slip op., at 4). And a concurring opinion authored by JUSTICE GINSBURG and joined by JUSTICES BREYER and SOTOMAYOR teed up this question for review in a later case. at (slip op., at 1) (“The issue whether a State may administer the death penalty to a person whose disability leaves him without memory of his commission of a capital offense is a substantial question not yet ad- dressed by the Court. Appropriately presented, the issue would warrant full airing”). Taking this cue, petitioner then sought relief in state court based on his inability to remember his crime, and when that effort failed, he filed the petition at issue now. II The centerpiece of the petition and petitioner’s 11th- hour application for a stay of execution1 was the argument —————— 1 Petitioner sought and obtained a stay of execution based on this 4 MADISON v. ALABAMA ALITO, J., dissenting that he could not constitutionally be executed because he did not remember killing Officer Schulte. The petition repeatedly noted petitioner’s inability to remember his crime. See Pet. for Cert. i, iii, 1, |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | remember his crime. See Pet. for Cert. i, iii, 1, 2, 8, 10, 11, 12, 18, 22, 23, 25, 26, 27, 28. And the petition was very clear about the question on which review was sought: “[T]his case presents this Court with the appropriate vehicle to consider the substantial question of whether the execution of a prisoner with no memory of the un- derlying offense is consistent with the evolving stand- ards of decency inherent in this Court’s Eighth Amendment jurisprudence.” This same point was made time and again: ● “[B]ecause [petitioner’s] disability renders him unable to remember the underlying offense for which he is to be punished, his execution does not comport with the evolving standards of decency required by this Court’s Eighth Amendment jurisprudence.” ● “[I]mposing death on a prisoner, who, like Mr. Madi- son, suffers from substantial memory deficits by vir- tue of multiple stroke and resulting vascular dementia serves no retributive or deterrent purpose.” 2. ● “[E]xecuting an individual with no memory of the un- derlying offense serves no retributive purpose.” ● “[W]here the person being punished has no memory of the commission of the offense for which he is to be ex- ecuted, the ‘moral quality’ of that punishment is less- ened and unable to match outrage over the offense.” 2–23. —————— same argument. See Application for Stay of Execution 2, 6 (moving the Court to stay petitioner’s execution so that it could address the “sub- stantial” and “critical” question whether executing petitioner, “whose severe cognitive dysfunction leaves him without memory of his commis- sion of the capital offense,” would violate the Eighth Amendment). Cite as: 586 U. S. (2019) 5 ALITO, J., dissenting ● “Mr. Madison’s severe memory impairments as a re- sult of vascular dementia render him incompetent to be executed under the Eight Amendment.” 5 (quotation altered). In sum, the body of the petition makes it clear that review was sought on the question invited by the Dunn concurrence, and the thrust of the wording of the two questions was the same. They read as follows: “1. Consistent with the Eighth Amendment, and this Court’s decisions in Ford and Panetti, may the State execute a prisoner whose mental disability leaves him without memory of his commission of the capital of- fense? See Dunn v. Madison, [583 U. S. (2017) (GINSBURG, J., joined by BREYER and SOTOMAYOR, JJ., concurring).] “2. Do evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual pun- ishment bar the execution of a prisoner whose compe- tency has been compromised by vascular dementia and multiple |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | compe- tency has been compromised by vascular dementia and multiple strokes causing severe cognitive dys- function and a degenerative medical condition which prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution? ” Pet. for Cert. iii. With the exception of the final phrase in question two (“or understanding the circumstances of his scheduled execution”), both questions solely concern the effect of memory loss on an Eighth Amendment analysis. The final phrase in question two and certain passages in the peti- tion, if read with an exceedingly generous eye, might be seen as a basis for considering whether the evidence in the state-court record shows that petitioner’s dementia ren- dered him incapable of having a rational understanding of the reason for his execution. But that is the sort of fact- bound question on which we rarely grant review, see this 6 MADISON v. ALABAMA ALITO, J., dissenting Court’s Rule 10, and it is questionable whether we did so here. But whether or not the petition may be fairly read to present that factbound question, it is a travesty to read it as challenging the state-court order on the ground that the state court erroneously believed that dementia cannot provide a basis for a Ford/Panetti claim. There is no ink- ling of that argument in the petition. Although the peti- tion described the state-court order at numerous places, the petition never claimed that the order was based on an impermissible distinction between dementia and other mental conditions. See, e.g., Pet. for Cert. ii, 2–3, 16. And in fact, there is a point in the petition where such an interpretation of the state-court order would surely have been mentioned if the petition had intended to raise it as a ground for review. The petition noted that “courts have recognized dementia and attendant cognitive decline and memory impairment as a basis for a finding of incompe- tency to be executed,” 5, but the petition did not follow that statement by claiming that the state court in this case took a contradictory position. Because the petition did not raise—indeed, did not even hint at—the argument on which the Court now grants relief, the Court’s decision is insupportable.2 It violates our Rule that “[o]nly the questions set out in the petition, or fairly included therein, will be considered by the Court.” See Rule 14.1(a). III Even if it were proper for us to consider whether the order below was based on an erroneous distinction be- tween dementia and other mental conditions, there is little reason to |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | dementia and other mental conditions, there is little reason to think that it was. After a full evidentiary hear- —————— 2 The Court is unable to cite a single place in the petition that makes any reference to the argument that the state court failed to understand that dementia could satisfy the Ford/Panetti test. Cite as: 586 U. S. (2019) 7 ALITO, J., dissenting ing in 2016, the state court rejected petitioner’s Ford/Panetti claim based on a correct statement of the holding of those decisions. It found that petitioner “ha[d] not carried his burden [of showing] by a preponderance of the evidence that he does not rationally understand the punishment he is about to suffer and why he is about to suffer it.” Order (Apr. 29, 2016), p. 10. The court’s order went on to say that it “specifically [found] that Mad- ison has a rationa[l] understanding, as required by Panetti, that he is going to be executed because of the murder he committed and a rationa[l] understanding that the State is seeking retribution and that he will die when he is executed.” In concluding that the state court might have drawn a distinction between dementia and other mental conditions, the majority seizes upon the wording of the order issued after a subsequent hearing in 2018. Ante, In that order, the same judge wrote: “Defendant did not provide a substantial threshold showing of insanity, a requirement set out by the United States Supreme Court, sufficient to convince this Court to stay the execution.” Order (Jan. 16, 2018), p. 1 (emphasis added). The majority worries that the state-court judge might not have applied the same standard in 2018 as he had two years earlier and might have viewed “insanity” as something narrower than the standard mandated by Ford and Panetti. This concern is unfounded. Taken out of context, the term “insanity” might not be read to encompass dementia, but in context, it is apparent that the state court’s use of that term was based on the way in which it was used in Ford and Panetti. The state court did not simply refer to “insanity.” It referred to “insanity, a requirement set out by the United States Supreme Court.” Thus, it followed the term “insanity” with an appositive, which is a word or phrase that re- names the word or phrase that precedes it. In other 8 MADISON v. ALABAMA ALITO, J., dissenting words, what the state court clearly meant by “insanity” was what this Court termed insanity in Ford and Panetti. What was that? In Ford, the Court held that |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | Panetti. What was that? In Ford, the Court held that the Eighth Amendment prohibits the execution of a person who is “insane,” and in the portion of Justice Marshall’s lead opinion that was joined by a plurality, Justice Marshall equated insanity with a mental condition that “prevents [a person] from comprehending the reasons for the penalty or its implica- tions.” Justice Powell, who provided the fifth vote for the decision, took a similar position. See at 422–423 (opinion concurring in part and concurring in judgment). In Panetti, which built on the holding in Ford, the Court used the term in a similar way. See 551 U.S., at 958–960. Accordingly, a defendant suffers from “insanity,” as the term is used in Ford and Panetti, if the prisoner does not understand the reason for his execution. Today’s decision does not reject this interpretation of the state-court order; it says only that it is vacating and re- manding because it is “at the least unsure” whether the state court used the term “insanity” in this way. Ante, at 14. The majority cites two reasons for its uncertainty, but both are weak. First, the majority attributes to the state court an inter- pretation of the term “insanity” that was advanced by the State in this Court in its brief in opposition to the petition for certiorari. Ante, at 15. In that submission, the State argued that certiorari should be denied because petitioner had sought relief in state court under the wrong provision of state law, namely, –16–23 (2011), which authorizes the suspension of the execution of an inmate who is “insane.” The State argued that petitioner’s memory loss did not render him “insane” within the mean- ing of this statute and that if he wished to argue that the Eighth Amendment bars the execution of an inmate who cannot remember his crime, he “should have filed a peti- Cite as: 586 U. S. (2019) 9 ALITO, J., dissenting tion for post-conviction relief ” under Alabama Rule of Criminal Procedure 32.4. Brief in Opposition 11–12. The majority’s argument based on the State’s brief in opposition suffers from multiple defects. For one thing, nothing suggests that the state court rejected petitioner’s application on the ground that he invoked the wrong provision of state law; the State’s filing in the state court made no mention of the argument set out in its brief in opposition filed here. Moreover, if the state court had rejected petitioner’s application on the ground that he moved under the wrong provision of state law, it is doubt- ful that we could review |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | state law, it is doubt- ful that we could review that decision, for then it would appear to rest on an adequate and independent state-law ground. And to top things off, the majority’s argument distorts what the State’s brief in opposition attempted to say about the term “insane.” The State did not argue that a defendant who lacks a rational understanding of the reason for his execution due to dementia is not “insane” under –16–23. Instead, the State’s point was that a defendant is not “insane” in that sense merely because he cannot remember committing the crime for which he was convicted. The majority’s other proffered basis for doubt is that the State “repeatedly argued to the [state] court (over Madi- son’s objection) that only prisoners suffering from delu- sional disorders could qualify as incompetent under Panetti.” Ante, at 16. The majority, however, cites no place where the State actually made such an argument. To be sure, the State, in contending that petitioner was not entitled to relief under Ford and Panetti, argued strenuously that he was not delusional. (The State made this argument be- cause petitioner’s counsel claimed that petitioner was in fact delusional and fell within Ford and Panetti for that reason.3) But arguing, as the State did, that petitioner —————— 3 Petitioner’s papers emphasized again and again that he suffers from 10 MADISON v. ALABAMA ALITO, J., dissenting was not entitled to relief because the claim that he was delusional was untrue is not the same as arguing that petitioner could be executed even if his dementia rendered him incapable of understanding the reason for his execu- tion. The majority cites no place where the State made the latter argument in the state court.4 And even if the —————— delusions. See Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Feb. 12, 2016), p. 1 (“Mr. Madison has long suffered from serious mental illness, marked by paranoid delusions and other disabil- ities”); (“At Mr. Madison’s trial, Dr. Barry Amyx established that Mr. Madison suffers from a delusional disorder that has existed since he was an adolescent”); (“This well-documented history of paranoia was one of the reasons Dr. Amyx concluded that Mr. Madison had a delusional disorder in a paranoid, really a persecutory type” (internal quotation marks omitted)); (“Dr. Amyx noted that Mr. Madison exhibited delusional thinking about medication and believed that he was being used as a guinea pig in medical experi- ments”); (emphasizing a “more recent observation” that “ ‘Mr. Madison consistently presented with paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | paranoid delusions’ ”); (“Mr. Madison exhibited delusional and disoriented behavior in June 2015”); (“decades of delusional thinking and psychotropic medications”); see also Pet. for Suspension in No. CC–85–1385.80 (C. C. Mobile Cty., Ala., Dec. 18, 2017), pp. 6–7 (detailing similar statements). This line of argument fell apart when petitioner’s own expert testified that he found no indication that petitioner was “[e]ither delusional or psychotic.” Tr. 56 (Apr. 14, 2016). 4 Unable to cite any place where the State made this argument to the state court, the Court claims that the State did so in the Eleventh Circuit. Ante, –7, n. 1. But even if that were so, it is hard to see what that would have to do with the question whether the state court thought that dementia could not satisfy the Ford/Panetti test. And in any event, the Court does not fairly describe the State’s argument in the Eleventh Circuit. The State’s Eleventh Circuit brief argued that merely suffering from a mental condition like dementia is not enough to render a prisoner incompetent to be executed; instead, the prisoner must also establish that he lacks a rational understanding of the reason for his execution. See Brief for Appellee in No. 16–12279 (CA11), pp. 37–38 (Brief for Appellee) (“The fairest reading of the state court’s opinion is that it assumed that dementia and memory loss caused by strokes is a mental illness and went straight to the rational understanding question. Thus, it is not that the trial court refused to Cite as: 586 U. S. (2019) 11 ALITO, J., dissenting —————— consider Madison’s claims pertaining to dementia—Madison cannot point to any portion of the state court order that says this—it is that the trial court correctly noted that Madison failed to prove that any dementia interfered with Madison’s ability to have a rational under- standing of his execution, including the reasons therefor”); 7 (“The Supreme Court has not held that a petitioner can show incompe- tence without demonstrating a mental illness or that dementia and memory loss definitively preclude rational understanding”); 9 (“To the extent the state court followed the lead of the Supreme Court, this Court, and the ABA and required Madison to show that a mental illness prevented him from having a rational understanding of his punishment, doing so was not an unreasonable application of clearly established federal law”). It is true that the State’s brief, in addressing the standard for granting federal habeas relief under 28 U.S. C. stated that this Court “ha[d] never held that dementia or memory loss is sufficient to show a lack of |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | or memory loss is sufficient to show a lack of rational understanding,” Brief for Appellee 29, but that was because a claim under must be based on a clearly established Supreme Court holding. See Recording of Oral Arg. in No. 16–12279 (CA11, June 23, 2016), at 32:37–33:30 (State rejecting a suggestion that Panetti holds “if you don’t remember committing the crime at all, and it is clear based on the medical testimony that you don’t remember committing this crime, then you don’t have a rational understanding of the factual basis for the imposition of the death penalty”: “First of all, under AEDPA deference, I think that that is not the holding of Panetti. I think under AEDPA deference, it’s pretty clear that the holding of Panetti is very narrow. I would say the holding in Panetti is that documented mental illness that results in a delusion has to be considered when talking about rational understand- ing”); at 36:00–36:30 (“I think the Supreme Court has never held that not remembering something is equivalent to not having a rational understanding. I think that is just undeniably true. And if AEDPA deference applies, then I don’t think the state court could have been unreasonable in rejecting the view that memory is required”). The State did not argue either that dementia cannot satisfy Ford and Panetti or that the state court based its decision on that ground. On the contrary, Alabama wrote that “even if the trial court had deter- mined that dementia and severe memory loss—or even total amnesia— are insufficient to meet the rational understanding test, that finding would not contradict clearly established federal law.” Brief for Appellee 29; see also (“Even assuming the state court held, as a matter of law, that amnesia is not sufficient to show a lack of rational under- standing, that determination was not unreasonable in light of clearly 12 MADISON v. ALABAMA ALITO, J., dissenting State had made such an argument, what matters is the basis for the state court’s decision, not what counsel for the State wrote or said. I add one more comment regarding the majority’s uncer- tainty about the basis for the state-court decision: Our decision two years ago in Dunn evinced no similar doubts. There, we said that the state court “held that, under this Court’s decisions in Ford and Panetti, Madison was en- titled to relief if he could show” that he lacks a rational understanding of the circumstances of his punishment. 583 U. S., at (slip op., ) (quotation altered). And we said that the state court “determined that Madison |
Justice Alito | 2,019 | 8 | dissenting | Madison v. Alabama | https://www.courtlistener.com/opinion/4595877/madison-v-alabama/ | And we said that the state court “determined that Madison is competent to be executed because—notwithstanding his memory loss—he recognizes that he will be put to death as punishment for the murder he was found to have commit- ted.” at (slip op., at 4); see also (referring to the state court’s “finding that Madison understands both that he was tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime”). Why the majority cannot now see what it under- stood without any apparent difficulty two years ago is hard to grasp. For all these reasons, what the Court has done in this case cannot be defended, and therefore it is hard to escape thinking that the real reason for today’s decision is doubt on the part of the majority regarding the correctness of the —————— established federal law”). The majority acknowledges that the State made this concededly correct habeas argument, but then oddly writes it off as an “additional” or alternative argument. Ante, at 7, n. 1. Yet, as the State’s brief and oral argument illustrate, the State’s core contention was that the state court did not unreasonably apply clearly established law under Panet- ti’s “very narrow” holding. (And as we later held in Dunn, the State was correct.) The majority simply cannot escape the inconvenient fact that the State never argued, as a non-AEDPA matter, that peti- tioner could be executed even if his dementia precluded a rational understanding. Cite as: 586 U. S. (2019) 13 ALITO, J., dissenting state court’s factual finding on the question whether Mad- ison has a rational understanding of the reason for his execution. There is no question that petitioner suffers from severe physical and mental problems, and the ques- tion whether he is capable of understanding the reason for his execution was vigorously litigated below. But if the Court thinks it is proper for us to reach that question and to reverse the state court’s finding based on a cold record, it should own up to what it is doing. * * * Petitioner has abandoned the question on which he succeeded in persuading the Court to grant review, and it is highly improper for the Court to grant him relief on a ground not even hinted at in his petition. The writ should be dismissed as improvidently granted, and I therefore respectfully dissent |
Justice Ginsburg | 2,005 | 5 | second_dissenting | Illinois v. Caballes | https://www.courtlistener.com/opinion/137742/illinois-v-caballes/ | Illinois State Police Trooper Daniel Gillette stopped Roy Caballes for driving 71 miles per hour in a zone with a posted *418 speed limit of 65 miles per hour Trooper Craig Graham of the Drug Interdiction Team heard on the radio that Trooper Gillette was making a traffic Although Gillette requested no aid, Graham decided to come to the scene to conduct a dog sniff Gillette informed Caballes that he was speeding and asked for the usual documents driver's license, car registration, and proof of insurance Caballes promptly provided the requested documents but refused to consent to a search of his vehicle After calling his dispatcher to check on the validity of Caballes' license and for outstanding warrants, Gillette returned to his vehicle to write Caballes a warning ticket Interrupted by a radio call on an unrelated matter, Gillette was still writing the ticket when Trooper Graham arrived with his drug-detection dog Graham walked the dog around the car, the dog alerted at Caballes' trunk, and, after opening the trunk, the troopers found marijuana The Supreme Court of Illinois held that the drug evidence should have been suppressed Adhering to its decision in the court employed a two-part test taken from to determine the overall reasonableness of the The court asked first "whether the officer's action was justified at its inception," and second "whether it was reasonably related in scope to the circumstances which justified the interference in the first place" ) "[I]t is undisputed," the court observed, "that the traffic stop was properly initiated"; thus, the dispositive inquiry trained on the "second part of the test," in which "[t]he State bears the burden of establishing that the conduct remained within the scope of the " *419 The court concluded that the State failed to offer sufficient justification for the canine sniff: "The police did not detect the odor of marijuana in the car or note any other evidence suggesting the presence of illegal drugs" Lacking "specific and articulable facts" supporting the canine sniff, (quoting ), the court ruled, "the police impermissibly broadened the scope of the traffic stop in this case into a drug investigation" [1] I would affirm the Illinois Supreme Court's judgment and hold that the drug sniff violated the Fourth Amendment In the Court upheld the stop and subsequent frisk of an individual based on an officer's observation of suspicious behavior and his reasonable belief that the suspect was armed See -28 In a -type investigatory stop, "the officer's action [must be] justified at its inception, and reasonably related in scope to the circumstances which |
Justice Ginsburg | 2,005 | 5 | second_dissenting | Illinois v. Caballes | https://www.courtlistener.com/opinion/137742/illinois-v-caballes/ | inception, and reasonably related in scope to the circumstances which justified the interference in the first place" In applying the Court has several times indicated that the limitation on "scope" is not confined to the duration of the seizure; it also encompasses the manner in which the seizure is conducted See, e g, (an officer's request that an individual identify himself "has an immediate relation to the purpose, rationale, and practical demands of a stop"); United (examining, under *420 both "the length and intrusiveness of the stop and detention"); ("[A]n investigative detention must be temporary and last no longer than is necessary to effectuate the purpose of the stop [and] the investigative methods employed should be the least intrusive means reasonably available to verify or dispel the officer's suspicion ") "A routine traffic stop," the Court has observed, "is a relatively brief encounter and `is more analogous to a so-called stop than to a formal arrest'" ; see also ante, at 415 (SOUTER, J, dissenting) (The government may not "take advantage of a suspect's immobility to search for evidence unrelated to the reason for the detention")[2] I would apply 's reasonable-relation test, as the Illinois Supreme Court did, to determine whether the canine sniff impermissibly expanded the scope of the initially valid seizure of Caballes It is hardly dispositive that the dog sniff in this case may not have lengthened the duration of the Cf ante, at 7 ("A seizure can become unlawful if it is prolonged beyond the time reasonably required to complete [the initial] mission") it merits repetition, instructs that any investigation must be "reasonably related in scope to the circumstances which justified the interference in the first place" 392 US, The unwarranted *421 and nonconsensual expansion of the seizure here from a routine traffic stop to a drug investigation broadened the scope of the investigation in a manner that, in my judgment, runs afoul of the Fourth Amendment[3] The Court rejects the Illinois Supreme Court's judgment and, implicitly, the application of to a traffic stop converted, by calling in a dog, to a drug search The Court so rules, holding that a dog sniff does not render a seizure that is reasonable in time unreasonable in scope Ante, at 8 Dog sniffs that detect only the possession of contraband may be employed without offense to the Fourth Amendment, the Court reasons, because they reveal no lawful activity and hence disturb no legitimate expectation of privacy Ante, at 8-9 In my view, the Court diminishes the Fourth Amendment's force by abandoning the second inquiry (was the police action |
Justice Ginsburg | 2,005 | 5 | second_dissenting | Illinois v. Caballes | https://www.courtlistener.com/opinion/137742/illinois-v-caballes/ | force by abandoning the second inquiry (was the police action "reasonably related in scope to the circumstances [justifiying] the [initial] interference") 392 US, A drug-detection dog is an intimidating animal Cf United States v Williams, 356 F3d 1268, (McKay, J, dissenting) ("drug dogs are not lap dogs") Injecting such an animal into a routine traffic stop changes the character of the encounter between the police and the motorist The stop becomes broader, more adversarial, and (in at least some cases) longer Caballes who, as far as Troopers Gillette and Graham knew, was guilty solely of driving six miles per hour over the speed limit was exposed to the embarrassment and intimidation of being investigated, on a public thoroughfare, for drugs Even if the drug sniff is not characterized as a Fourth Amendment "search," cf Indianapolis *422 v Edmond, 531 US 32, ; United States v 462 US 696, the sniff surely broadened the scope of the traffic-violation-related seizure The Court has never removed police action from Fourth Amendment control on the ground that the action is well calculated to apprehend the guilty See, e g, United States v Karo, 468 US 705, (Fourth Amendment warrant requirement applies to police monitoring of a beeper in a house even if "the facts [justify] believing that a crime is being or will be committed and that monitoring the beeper wherever it goes is likely to produce evidence of criminal activity"); see also Minnesota v Carter, 525 US 83, (GINSBURG, J, dissenting) ("Fourth Amendment protection, reserved for the innocent only, would have little force in regulating police behavior toward either the innocent or the guilty") Under today's decision, every traffic stop could become an occasion to call in the dogs, to the distress and embarrassment of the law-abiding population The Illinois Supreme Court, it seems to me, correctly apprehended the danger in allowing the police to search for contraband despite the absence of cause to suspect its presence Today's decision, in contrast, clears the way for suspicionless, dog-accompanied drug sweeps of parked cars along sidewalks and in parking lots Compare, e g, United States v Ludwig, 10 F3d 1523, with United States v Quinn, 815 F2d 153, and 462 U S, at 706- Nor would motorists have constitutional grounds for complaint should police with dogs, stationed at long traffic lights, circle cars waiting for the red signal to turn green *423 Today's decision also undermines this Court's situation-sensitive balancing of Fourth Amendment interests in other contexts For example, in Bond v United States, 529 US 334, the Court held that a bus |
Justice Ginsburg | 2,005 | 5 | second_dissenting | Illinois v. Caballes | https://www.courtlistener.com/opinion/137742/illinois-v-caballes/ | States, 529 US 334, the Court held that a bus passenger had an expectation of privacy in a bag placed in an overhead bin and that a police officer's physical manipulation of the bag constituted an illegal search If canine drug sniffs are entirely exempt from Fourth Amendment inspection, a sniff could substitute for an officer's request to a bus passenger for permission to search his bag, with this significant difference: The passenger would not have the option to say "No" The dog sniff in this case, it bears emphasis, was for drug detection only A dog sniff for explosives, involving security interests not presented here, would be an entirely different matter Detector dogs are ordinarily trained not as all-purpose sniffers, but for discrete purposes For example, they may be trained for narcotics detection or for explosives detection or for agricultural products detection See, e g, U S Customs & Border Protection, Canine Enforcement Training Center Training Program Course Descriptions, http://wwwcbpgov/xp/cgov/border_security/canines/training_programxml (all Internet materials as visited Dec 16, and available in Clerk of Court's case file) (describing Customs training courses in narcotics detection); Transportation Security Administration, Canine and Explosives Program, http://wwwtsagov/public/display?theme=32 (describing Transportation Security Administration's explosives detection canine program); U S Dept of Agriculture, Animal and Plant Health Inspection Service, USDA's Detector Dogs: Protecting American Agriculture (Oct 2001), available at http://wwwaphisusdagov/oa/pubs/detdogspdf (describing USDA Beagle Brigade detector dogs trained to detect prohibited fruits, plants, and meat); see also Jennings, Origins and History of Security and Detector Dogs, in Canine Sports Medicine and Surgery 16, 18-19 (describing narcotics-detector *424 dogs used by Border Patrol and Customs, and bomb detector dogs used by the Federal Aviation Administration and the Secret Service, but noting the possibility in some circumstances of cross training dogs for multiple tasks); S Chapman, Police Dogs in North America 64, 70-79 (describing narcotics- and explosives-detection dogs and noting the possibility of cross training) There is no indication in this case that the dog accompanying Trooper Graham was trained for anything other than drug detection See 207 Ill 2d, at 507, 802 N E 2d, at ("Trooper Graham arrived with his drug-detection dog "); Brief for Petitioner 3 ("Trooper Graham arrived with a drug-detection dog ") This Court has distinguished between the general interest in crime control and more immediate threats to public safety In Michigan Dept of State Police v Sitz, 496 US 444 this Court upheld the use of a sobriety traffic checkpoint Balancing the State's interest in preventing drunk driving, the extent to which that could be accomplished through the checkpoint program, and the degree of intrusion the |
Justice Ginsburg | 2,005 | 5 | second_dissenting | Illinois v. Caballes | https://www.courtlistener.com/opinion/137742/illinois-v-caballes/ | through the checkpoint program, and the degree of intrusion the stops involved, the Court determined that the State's checkpoint program was consistent with the Fourth Amendment Ten years after Sitz, in Indianapolis v Edmond, 531 US 32, this Court held that a drug interdiction checkpoint violated the Fourth Amendment Despite the illegal narcotics traffic that the Nation is struggling to stem, the Court explained, a "general interest in crime control" did not justify the stops The Court distinguished the sobriety checkpoints in Sitz on the ground that those checkpoints were designed to eliminate an "immediate, vehicle-bound threat to life and limb" 531 US, at 43 The use of bomb-detection dogs to check vehicles for explosives without doubt has a closer kinship to the sobriety checkpoints in Sitz than to the drug checkpoints in Edmond As the Court observed in Edmond: "[T]he Fourth Amendment would almost certainly permit an appropriately tailored *425 roadblock set up to thwart an imminent terrorist attack " 531 US, at 44 Even if the Court were to change course and characterize a dog sniff as an independent Fourth Amendment search, see ante, p 410 (SOUTER, J, dissenting), the immediate, present danger of explosives would likely justify a bomb sniff under the special needs doctrine See, e g, ante, at 417, n 7 (SOUTER, J, dissenting); Griffin v Wisconsin, 483 US 868, (Blackmun, J, concurring in judgment))) * * * For the reasons stated, I would hold that the police violated Caballes' Fourth Amendment rights when, without cause to suspect wrongdoing, they conducted a dog sniff of his vehicle I would therefore affirm the judgment of the Illinois Supreme Court |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | For private actions brought under and other specified measures designed to secure civil rights, Congress established an exception to the "American Rule" that "the prevailing litigant is ordinarily not entitled to collect [counsel fees] from the loser." Alyeska Pipeline Service That exception, codified in (b), authorizes federal district courts, in their discretion, to "allow the prevailing party a reasonable attorney's fee as part of the costs." This case presents a sole question: Does a plaintiff who gains a preliminary injunction after an abbreviated hearing, but is denied a permanent injunction after a dispositive adjudication on the merits, qualify as a "prevailing party" within the compass of 1988(b)? Viewing the two stages of the litigation as discrete episodes, plaintiffs below, respondents here, maintain that they prevailed at the preliminary injunction stage, *2192 and therefore qualify for a fee award for their counsels' efforts to obtain that interim relief. Defendants below, petitioners here, regard the case as a unit; they urge that a preliminary injunction holds no sway once fuller consideration yields rejection of the provisional order's legal or factual underpinnings. We agree with the latter position and hold that a final decision on the merits denying permanent injunctive relief ordinarily determines who prevails in the action for purposes of 1988(b). A plaintiff who achieves a transient victory at the threshold of an action can gain no award under that fee-shifting provision if, at the end of the litigation, her initial success is undone and she leaves the courthouse emptyhanded. I In mid-January 2003, plaintiff-respondent T.A. Wyner notified the Florida Department of Environmental Protection (DEP) of her intention to create on Valentine's Day, February 14, 2003, within John D. MacArthur Beach State Park, an antiwar artwork. The work would consist of nude individuals assembled into a peace sign. By letter dated February 6, DEP informed Wyner that her peace sign display would be lawful only if the participants complied with the "Bathing Suit Rule" set out in Florida Administrative Code 62D-2.014(7)(b) (2005). That rule required patrons, in all areas of Florida's state parks, to wear, at a minimum, a thong and, if female, a bikini top.[1] To safeguard the Valentine's Day display, and future expressive activities of the same order, against police interference, Wyner filed suit in the United States District Court for the Southern District of Florida on February 12, 2003. She invoked the First Amendment's protection of expressive conduct, and named as defendants the Secretary of DEP and the Manager of MacArthur Beach Park.[2] Her complaint requested immediate injunctive relief against interference with the peace sign display, App. 18, and |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | against interference with the peace sign display, App. 18, and permanent injunctive relief against interference with "future expressive activities that may include non-erotic displays of nude human bodies," An exhibit attached to the complaint set out a May 12, 1995 Stipulation for Settlement with DEP. That settlement had facilitated a February 19, 1996 play Wyner coordinated at MacArthur Beach, a production involving nude performers. A term of the settlement provided that Wyner would "arrange for placement of a bolt of cloth in a semi-circle around the area where the play [would] be performed," so that beachgoers who did not wish to see the play would be shielded from the nude performers. The day after the complaint was filed, on February 13, 2003, the District Court heard Wyner's emergency motion for a preliminary injunction. Although disconcerted by the hurried character of the proceeding, see the court granted the preliminary injunction. "The choice," the court explained, "need not be either/or." (S.D.Fla.2003). Pointing to the May 1995 settlement laying out "agreed-upon manner restrictions," the *2193 court determined that "[p]laintiff['s] desired expression and the interests of the state may both be satisfied simultaneously." In this regard, the court had inquired of DEP's counsel at the preliminary injunction hearing: "Why wouldn't the curtain or screen solve the problem of somebody [who] doesn't want to see nudity? ms like that would solve [the] problem, wouldn't it?" App. 86. Counsel for DEP responded: "That's an option. I don't think necessarily [defendants] would be opposed to that" ; see (testimony of Chief of Operations for Florida Park Service at the preliminary injunction hearing that the Service's counsel, on prior occasions, had advised: "[I]f they go behind the screen and they liv[e] up to the agreement then it's okay. If they don't go behind the screen and they don't live up to the agreement then it's not okay."). The peace symbol display took place at MacArthur Beach the next day. A screen was put up, apparently by the State, as the District Court anticipated. But the display was set up outside the barrier, and participants, once disassembled from the peace symbol formation, went into the water in the nude. ; Deposition of T.A. Wyner in Civ. Action No. 03-80103 (SD Fla., Nov. 14, 2003), pp. 99-100. Thereafter, Wyner pursued her demand for a permanent injunction. Her counsel represented that on February 14, Wyner intended to put on another production at MacArthur Beach, again involving nudity. App. 107. After discovery, both sides moved for summary judgment. At the hearing on the motions, held January 21, the District Court asked Wyner's |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | the motions, held January 21, the District Court asked Wyner's counsel about the screen put up around the preceding year's peace symbol display. Counsel acknowledged that the participants in that display ignored the barrier and set up in front of the screen. A week later, having unsuccessfully urged the parties to resolve the case as "[they] did before in [the 1995] settlement," the court denied plaintiff's motion for summary judgment and granted defendants' motion for summary final judgment. The deliberate failure of Wyner and her coparticipants to remain behind the screen at the 2003 Valentine's Day display, the court concluded, demonstrated that the Bathing Suit Rule's prohibition of nudity was "no greater than is essential to protect the experiences of the visiting public." Case No. 03-80103-CIV (Summary Judgment Order), App. to Pet. for Cert. 42a. While Wyner ultimately failed to prevail on the merits, the court added, she did obtain a preliminary injunction prohibiting police interference with the Valentine's Day 2003 temporary art installation, at 45a, and therefore qualified as a prevailing party to that extent, see Case No. 03-80103-CIV (Omnibus Order), App. to Brief in Opposition 5a-13a. The preliminary injunction could not be revisited at the second stage of the litigation, the court noted, for it had "expired on its own terms." at 4a. So reasoning, the court awarded plaintiff counsel fees covering the first phase of the litigation. The Florida officials appealed, challenging both the order granting a preliminary injunction and the award of counsel fees. Wyner, however, pursued no appeal from the final order denying a permanent injunction. The Court of Appeals for the *2194 Eleventh Circuit held first that defendants' challenges to the preliminary injunction were moot because they addressed "a finite event that occurred and ended on a specific, past date." The court then affirmed the counsel fees award, reasoning that plaintiff had gained through the preliminary injunction "the primary relief [she] sought," i.e., the preliminary order allowed her to present the peace symbol display unimpeded by adverse state action. Wyner would not have qualified for an award of counsel fees, the court recognized, had the preliminary injunction rested on a mistake of law. But it was "new developments," the court said, not any legal error, that accounted for her failure "to achieve actual success on the merits at the permanent injunction stage," n. 7. Plaintiff and others participating in the display, as Wyner's counsel admitted, did not stay behind the barrier at the peace symbol display, ; further, the court noted, "a fair reading of the record show[ed] that [p]laintif[f] had no intention of |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | of the record show[ed] that [p]laintif[f] had no intention of remaining behind a [barrier] during future nude expressive works," The likelihood of success shown at the preliminary injunction stage, the court explained, n. 7, had been overtaken by the subsequent "demonstrat[ion] that the less restrictive alternative," i.e., a cloth screen or other barrier, "was not sufficient to protect the government's interest," But that demonstration, the court concluded, did not bar an award of fees, because the "new facts" emerged only at the summary judgment stage. We granted certiorari, and now reverse. II "The touchstone of the prevailing party inquiry," this Court has stated, is "the material alteration of the legal relationship of the parties in a manner which Congress sought to promote in the fee statute." Texas State Teachers ; ; cf. Buckhannon Board & Care Home,[3]*2195 The petitioning state officials maintain that plaintiff here does not satisfy that standard for, as a consequence of the final summary judgment, "[t]he state law whose constitutionality [Wyner] attacked [i.e., the Bathing Suit Rule,] remains valid and enforceable today." Brief for Petitioners 3. The District Court left no doubt on that score, the state officials emphasize; ordering final judgment for defendants, the court expressed, in the bottom line of its opinion, its "hope" that plaintiff would continue to use the park, "albeit not in the nude." Summary Judgment Order, App. to Pet. for Cert. 46a. Wyner, on the other hand, urges that despite the denial of a permanent injunction, she got precisely what she wanted when she commenced this litigation: permission to create the nude peace symbol without state interference. That fleeting success, however, did not establish that she prevailed on the gravamen of her plea for injunctive relief, i.e., her charge that the state officials had denied her and other participants in the peace symbol display "the right to engage in constitutionally protected expressive activities." App. 18. Prevailing party status, we hold, does not attend achievement of a preliminary injunction that is reversed, dissolved, or otherwise undone by the final decision in the same case.[4] At the preliminary injunction stage, the court is called upon to assess the probability of the plaintiff's ultimate success on the merits. e.g., ; The foundation for that assessment will be more or less secure depending on the thoroughness of the exploration undertaken by the parties and the court. In some cases, the proceedings prior to a grant of temporary relief are searching; in others, little time and resources are spent on the threshold contest. In this case, the preliminary injunction hearing was necessarily hasty and abbreviated. |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | case, the preliminary injunction hearing was necessarily hasty and abbreviated. Held one day after the complaint was filed and one day before the event, the timing afforded the state officer defendants little opportunity to oppose Wyner's emergency motion. Counsel for the state defendants appeared only by telephone. App. 36. The emergency proceeding allowed no time for discovery, nor for adequate review of documents or preparation and presentation of witnesses. The provisional relief immediately granted expired before appellate review could be gained, and the court's threshold ruling would have no preclusive effect in the continuing litigation. Both the District Court and the Court of Appeals considered the preliminary injunction a moot issue, not fit for reexamination or review, once the display took place. Summary Judgment Order, App. to Pet. for Cert. 34a; Omnibus Order, App. to Brief in Opposition 3a-4a; 179 Fed. Appx., at ; cf. In short, the provisional relief granted terminated only the parties' opening engagement. Its tentative character, in view of the continuation of the litigation to definitively resolve the controversy, would have made a fee request at the initial stage premature. Of controlling importance to our decision, the eventual ruling on the merits for defendants, after both sides considered the case fit for final adjudication, superseded *2196 the preliminary ruling. Wyner's temporary success rested on a premise the District Court ultimately rejected. That court granted preliminary relief on the understanding that a curtain or screen would adequately serve Florida's interest in shielding the public from nudity that recreational beach users did not wish to see. ; 254 F.Supp.2d, at At the summary judgment stage, with the benefit of a fuller record, the District Court recognized that its initial assessment was incorrect. Participants in the peace symbol display were in fact unwilling to stay behind a screen that separated them from other park visitors. Summary Judgment Order, App. to Pet. for Cert. 42a. App. 108 (acknowledgment by Wyner's counsel that participants in the February 14, 2003 protest "in effec[t] ignored the screen"). In light of the demonstrated inadequacy of the screen to contain the nude display, the District Court determined that enforcement of the Bathing Suit Rule was necessary to "preserv[e] park aesthetics" and "protect the experiences of the visiting public." Summary Judgment Order, App. to Pet. for Cert. 41a, 42a. Wyner contends that the preliminary injunction was not undermined by the subsequent adjudication on the merits because the decision to grant preliminary relief was an "as applied" ruling. In developing this argument, she asserts that the officials engaged in impermissible content-based administration of the Bathing Suit Rule. |
Justice Ginsburg | 2,007 | 5 | majority | Sole v. Wyner | https://www.courtlistener.com/opinion/145724/sole-v-wyner/ | engaged in impermissible content-based administration of the Bathing Suit Rule. But the District Court assumed, "for the purposes of [its initial] order," the content neutrality of the state officials' conduct. and n. 4 (reiterating that, "for the sake of the preliminary injunction order," the District Court "assumed content neutrality"). That specification is controlling. Fed. Rule Civ. Proc. 65(d) (requiring every injunction to "set forth the reasons for its issuance" and "be specific in terms"). (Rule 65(d) "was designed to prevent uncertainty and confusion on the part of those faced with injunctive orders."). The final decision in Wyner's case rejected the same claim she advanced in her preliminary injunction motion: that the state law banning nudity in parks was unconstitutional as applied to expressive, nonerotic nudity. At the end of the fray, Florida's Bathing Suit Rule remained intact, and Wyner had gained no enduring "chang[e][in] the legal relationship" between herself and the state officials she sued. Texas State Teachers III Wyner is not a prevailing party, we conclude, for her initial victory was ephemeral. A plaintiff who "secur[es] a preliminary injunction, then loses on the merits as the case plays out and judgment is entered against [her]," has "[won] a battle but los[t] the war." We are presented with, and therefore decide, no broader issue in this case. We express no view on whether, in the absence of a final decision on the merits of a claim for permanent injunctive relief, success in gaining a preliminary injunction may sometimes warrant an award of counsel fees. We decide only that a plaintiff who gains a preliminary injunction does not qualify for an award of counsel fees under 1988(b) if the merits of the case are ultimately decided against her. *2197 * * * For the reasons stated, the judgment of the Court of Appeals is reversed, and the case is remanded for proceedings consistent with this opinion. It is so ordered. |
per_curiam | 1,976 | 200 | per_curiam | United States v. Hopkins | https://www.courtlistener.com/opinion/109507/united-states-v-hopkins/ | This case involves a suit by respondent's decedent,[1] a civilian employee of the Army and Air Force Exchange Service (AAFES), claiming wrongful discharge from his employment. He asserted jurisdiction under the Tucker Act, 28 U.S. C. 1491, which provides for suits in the Court of Claims upon any express or implied contract with such military exchanges. The Government moved to dismiss for lack of jurisdiction. The Court of Claims concluded that it had jurisdiction because respondent's decedent's relationship with the AAFES was based upon an implied contract of employment and such a contract is covered, since 1970, by the Tucker Act. The status of claims against military post exchanges has been in some doubt since the decision of this Court in Standard Oil There the Court, in striking down a state tax on the distribution of motor fuel by Army post exchanges, held that such exchanges "are arms of the Government deemed by it essential for the performance of governmental functions. They are integral parts of the War Department." However, the Court also observed that the "Government assumes none of the financial obligations of the exchange." *125 The latter observation was the basis of a series of decisions by the Court of Claims to the effect that it lacked jurisdiction over claims concerning the activities of non-appropriated fund instrumentalities.[2] That court held that it could not entertain suits based on a contract for services with such an entity, because, since the Government had assumed no liability for the entity's financial obligations it could not be said to have consented to a suit designed to vindicate such obligations. Therefore, no "claim against the United States" existed under the Tucker Act which is the source of Court of Claims jurisdiction, ; Cab ; cert. denied, The Court of Claims, while denying jurisdiction, recognized the harsh consequences of this result since it could leave claimants against the exchanges with no forum in which to seek relief. However, the court recognized that "it is up to Congress to remedy this apparent harsh result [T]he courts should refrain from legislating by judicial fiat." In 1970 Congress amended the Tucker Act and provided: "For the purpose of this paragraph, an express or implied contract with the Army and Air Force Exchange Service shall be considered an express or implied contract with the United States." Stat. 449. *126 The purpose of this amendment, as the reports of both Houses made clear, was to afford contractors a federal forum in which to sue nonappropriated fund instrumentalities by doing away with the inequitable "loophole" in the Tucker Act. S. |
per_curiam | 1,976 | 200 | per_curiam | United States v. Hopkins | https://www.courtlistener.com/opinion/109507/united-states-v-hopkins/ | away with the inequitable "loophole" in the Tucker Act. S. Rep. No. p. 2 (1969); H. R. Rep. No. p. 2 (1970). and were cited as examples of the "harsh result" which the amendment would correct. The purpose of the bill was clearly to provide a remedy to "contractors" with non-appropriated fund instrumentalities, e. g., S. Rep. No. pp. 4-5, and there is nothing in the legislative history to indicate, as the Government contends, that "contractors" did not include anyone who had formed a contractual employment relationship. Since the statute applies, by its terms, to "any express or implied contract" we hold that it is applicable to employment contracts as well as those for goods or other services. The fact that Congress has dealt specifically with exchange employees when it wanted to bring them within or leave them without the provisions of a law dealing with federal employees generally (e. g., 5 U.S. C. 8171 (b)) is not of controlling weight here. This statute deals with those who have a contractual relationship with military exchanges rather than with different classes of federal employees. If employees of military exchanges are within its general language, they are not removed from its effect by congressional practices in enacting other kinds of statutes. The Government alternatively contends that AAFES employees do not have a contractual relationship with their employer, and that like orthodox federal employees they serve by "appointment" to a particular position. While there is some ambiguity in the opinion of the Court of Claims, that court apparently agreed that plaintiff *127 and others like him did have a contractual employment relationship with the AAFES. We think it would be both unnecessary and unwise for us to decide the question at this stage of the case, and we think that the Court of Claims gave insufficient attention to applicable administrative regulations when it undertook to decide the question. The exchange services are created and administered pursuant to the general authority granted the Secretary of the Army and the Secretary of the Air Force by 10 U.S. C. 3012 and 8012. The nonappropriated-fund status of the exchanges places them in a position whereby the Federal Government, absent special legislation, does not assume the obligations of those exchanges in the manner that contracts entered into by appropriated fund agencies are assumed. Standard Oil 316 U. S., The nonappropriated-fund status of the exchanges, however, does not alter the fact that the Secretaries of the Army and the Air Force may engage employees by "appointment," in the same manner as other personnel hired by the Secretaries may |
per_curiam | 1,976 | 200 | per_curiam | United States v. Hopkins | https://www.courtlistener.com/opinion/109507/united-states-v-hopkins/ | same manner as other personnel hired by the Secretaries may be employed. See Standard Oil ; The regulations governing the AAFES, state that ordinary employees are deemed employees of an instrumentality of the United States, and hold their positions by appointment. AR 60-21/AFR 147-15, c. 1, I, ¶ 1-7; c. 2, I[3] There is congressional recognition *128 of the power of the Secretaries to employ exchange employees by appointment. The House and Senate Reports on explicitly recognized that employees of nonappropriated-fund activities, when performing their official duties, are employees of the United States. S. Rep. No. ; H. R. Rep. No. Further, Congress has specifically granted exchange employees certain rights afforded only appointed employees, and, more important, has specifically excluded them from the coverage of certain statutes granting rights to appointed federal employees. See statutes cited in AR 60-21/AFR 147-15, c. 1, I, ¶ 1-8. Of particular import is their exclusion, through the operation of 5 U.S. C. 2105 (c), from the provisions of the Back Pay Act, 5 U.S. C. 5596. The Back Pay Act is the means by which appointed employees subjected to unjustified personnel action are given a cause of action against the United States. The Act is made necessary by the fact that, absent specific command of statute or authorized regulation, an appointed employee subjected to unwarranted personnel action does not have a cause of action against the United States. ; ; United Since the Act deals only with appointees, the specific exclusion of AAFES employees from the coverage of the Act would seem to indicate a congressional recognition that they may be appointed, but that appointed AAFES employees should not be allowed to sue under the Act. This is not to say that an exchange may never employ a person pursuant to a contract of employment. The Secretaries have provided, by separate regulation, for a process under which a person may be employed by contract. AR 60-20/AFR 147-14, c. 4, II and III *129 Such employment is subject to different procedures for negotiation, approval, and administrative remedies from those applicable to employment under AR 60-21/AFR 147-15. The regulation governing contracts defines "service contract" as including contracts both for services performed off a military installation and "direct services such as janitorial and window cleaning service." AR 60-20/AFR 147-14, App. A, ¶ A-6e. Under the regulation in effect at the time of plaintiff's discharge, it was specifically provided that exchanges "will not enter into [a service contract] with military personnel on active duty, civil service employees, or exchange employees." AR 60-20/AFR 147-14, XIX, ¶ 88b (Apr. 14, |
per_curiam | 1,976 | 200 | per_curiam | United States v. Hopkins | https://www.courtlistener.com/opinion/109507/united-states-v-hopkins/ | exchange employees." AR 60-20/AFR 147-14, XIX, ¶ 88b (Apr. 14, 1965) (emphasis added). The regulation thus clearly distinguished between employment pursuant to appointment and employment pursuant to contract, a distinction that existed prior to plaintiff's hiring and continues today in the use of separate regulations for "contracting" and "appointment." When Congress enacted making contracts entered into by the post exchanges cognizable in the Court of Claims, it did not change in any way the other provisions of the United States Code dealing with exchange employees, nor did it purport to require that the exchanges employ all persons pursuant to contract. The Court of Claims, in reaching its conclusion that plaintiff held his position by virtue of an express or implied contract assumed that once it was determined he was not an appointed federal employee this result followed as a matter of course. It concluded that in such event his employment status was governed by a series of cases from the private sector of the economy holding that the typical employee-employer relationship was contractual in nature. While we do not question the relevance of these cases by way of analogy should plaintiff *130 be determined not to have been an appointee we hold that the Court of Claims erred in its threshold determination that AAFES employees could never serve by appointment. Rather, the question depends upon an analysis of the statutes and regulations previously described in light of whatever evidence is adduced on remand as to plaintiff's particular status in this case. It is thus apparent that the question of whether plaintiff was employed by virtue of a contract or by appointment is not susceptible of determination at this time. Rather, the issue is one which must receive additional consideration from the Court of Claims after development of a fuller record. Respondent in her brief in this Court advanced a second theory upon which the jurisdiction of the Court of Claims in this case could be sustained. She urged that plaintiff's discharge in violation of executive regulations constituted a claim enforceable under the Tucker Act, and that his discharge without due process constituted a claim founded on the Constitution and therefore enforceable under the Tucker Act. Brief for Respondent 51. At oral argument, counsel conceded that our decision in United which had been handed down between the time of the filing of his brief and the oral argument, foreclosed such a claim. Plaintiff's allegation that his discharge constituted a breach of a contract of employment was sufficient, under the provisions of to withstand the Government's motion to dismiss the complaint on |
Justice Scalia | 1,991 | 9 | concurring | United States v. Gaubert | https://www.courtlistener.com/opinion/112567/united-states-v-gaubert/ | I concur in the judgment and in much of the opinion of the Court. I write separately because I do not think it necessary to analyze individually each of the particular actions challenged by Gaubert, nor do I think an individualized analysis necessarily leads to the results the Court obtains. *335 I The so-called discretionary function exception to the Federal Tort Claims Act (FTCA) does not protect all governmental activities involving an element of choice. The choice must be "grounded in social, economic, [or] political policy," United or, more briefly, must represent a "policy judgment," Unfortunately, lower courts have had difficulty in applying this test. The Court of Appeals in this case concluded that a choice involves policy judgment (in the relevant sense) if it is made at a planning rather than an operational level within the agency. I agree with the Court that this is wrong. I think, however, that the level at which the decision is made is often relevant to the discretionary function inquiry, since the answer to that inquiry turns on both the subject matter and the office of the decision-maker. In my view a choice is shielded from liability by the discretionary function exception if the choice is, under the particular circumstances, one that ought to be informed by considerations of social, economic, or political policy and is made by an officer whose official responsibilities include assessment of those considerations. This test, by looking not only to the decision but also to the officer who made it, recognizes that there is something to the planning vs. operational dichotomythough the "something" is not precisely what the Court of Appeals believed. Ordinarily, an employee working at the operational level is not responsible for policy decisions, even though policy considerations may be highly relevant to his actions. The dock foreman's decision to store bags of fertilizer in a highly compact fashion is not protected by this exception because, even if he carefully calculated considerations of cost to the Government vs. safety, it was not his responsibility to ponder such things; the Secretary of Agriculture's decision to the same *336 effect is protected, because weighing those considerations is his task. Cf. In Indian Towing the United States was held liable for, among other things, the failure of Coast Guard maintenance personnel adequately to inspect electrical equipment in a lighthouse; though there could conceivably be policy reasons for conducting only superficial inspections, the decisions had been made by the maintenance personnel, and it was assuredly not their responsibility to ponder such things. This same factor explains why it is universally |
Justice Scalia | 1,991 | 9 | concurring | United States v. Gaubert | https://www.courtlistener.com/opinion/112567/united-states-v-gaubert/ | such things. This same factor explains why it is universally acknowledged that the discretionary function exception never protects against liability for the negligence of a vehicle driver. See ante, at 325, n. 7. The need for expedition vs. the need for safety may well represent a policy choice, cf. but the Government does not expect its drivers to make that choice on a case-by-case basis. Moreover, not only is it necessary for application of the discretionary function exception that the decisionmaker be an official who possesses the relevant policy responsibility, but also the decisionmaker's close identification with policymaking can be strong evidence that the other half of the test is meti. e., that the subject matter of the decision is one that ought to be informed by policy considerations. I am much more inclined to believe, for example, that the manner of storing fertilizer raises economic policy concerns if the decision on that subject has been reserved to the Secretary of Agriculture himself. That it is proper to take the level of the decisionmaker into account is supported by the phrase of the FTCA immediately preceding the discretionary function exception, which excludes governmental liability for acts taken, "`exercising due care, in the execution of a regulation, whether or not such regulation be valid.'" We have taken this to mean that regulations "[can]not be attacked by claimants under the Act." This immunity represents an absolute statutory presumption, *337 so to speak, that all regulations involve policy judgments that must not be interfered with. I think there is a similar presumption, though not an absolute one, that decisions reserved to policymaking levels involve such judgmentsand the higher the policymaking level, the stronger the presumption. II Turning to the facts of the present case, I find it difficult to say that the particular activities of which Gaubert complains are necessarily discretionary functions, so that a motion to dismiss could properly be granted on that ground. To take but one example, Gaubert alleges that the regulators acted negligently in selecting consultants to advise the bank. The Court argues that such a decision, even though taken in the course of "day-to-day" management, surely involves an element of choice. But that answers only the first half of the inquiry. It remains to be determined whether the choice is of a policymaking nature. Perhaps one can imagine a relatively high-level Government official, authorized generally to manage the bank in such fashion as to further applicable Government policies, who hires consultants and other employees with those policy objectives in mind. The discretionary function exception arguably would protect such |
Justice Scalia | 1,991 | 9 | concurring | United States v. Gaubert | https://www.courtlistener.com/opinion/112567/united-states-v-gaubert/ | in mind. The discretionary function exception arguably would protect such a hiring choice. But one may also imagine a federal officer of relatively low level, authorized to hire a bank consultant by applying ordinary standards of business judgment, and not authorized to consider matters of Government policy in the process. That hiring decision would not be protected by the discretionary function exception, even though some element of choice is involved. I do not think it advances the argument to observe, ante, at 333, that "[t]here are no allegations that the regulators gave anything other than the kind of advice that was within the purview of the policies behind the statutes." An official may act "within the purview" of the relevant policy without himself making policy decisionsin which case, if the action is *338 negligent (and was not specifically mandated by the relevant policy, see ), the discretionary function exception does not bar United States liability. Contrariwise, action "outside the purview" of the relevant policy does not necessarily fail to qualify for the discretionary function defense. If the action involves policy discretion, and the officer is authorized to exercise that discretion, the defense applies even if the discretion has been exercised erroneously, so as to frustrate the relevant policy. See 28 U.S. C. 2680(a) (discretionary function exception applies "whether or not the discretion involved be abused"). In other words, action "within the purview" of the relevant policy is neither a necessary nor a sufficient condition for invoking the discretionary function exception. The present case comes to us on a motion to dismiss. Lacking any sort of factual record, we can do little more than speculate as to whether the officers here exercised policymaking responsibility with respect to the individual acts in question. Without more, the motion would have to be denied. I think, however, that the Court's conclusion to the contrary is properly reached under a slightly different approach. The alleged misdeeds complained of here were not actually committed by federal officers. Rather, federal officers "recommended" that such actions be taken, making it clear that if the recommendations were not followed the bank would be seized and operated directly by the regulators. In effect, the Federal Home Loan Bank Board (FHLBB) imposed the advice which Gaubert challenges as a condition of allowing the bank to remain independent. But surely the decision whether or not to take over a bank is a policy-based decision to which liability may not attacha decision that ought to be influenced by considerations of "social, economic, [or] political policy," Varig Airlines, 467 U. S., at and that |
Justice Stevens | 2,003 | 16 | concurring | FCC v. NextWave Personal Communications Inc. | https://www.courtlistener.com/opinion/122257/fcc-v-nextwave-personal-communications-inc/ | Because these are such close cases, it seems appropriate to identify the considerations that have persuaded me to join the majority. When I first read (a), I thought it was not intended to apply to cases in which the licensor was also a creditor, but rather, as JUSTICE BREYER persuasively argues, was merely intended to protect the debtor from discriminatory license terminations. I remain persuaded that that is the principal purpose of the provision. It is significant, however, that the first words in the section describe three exceptions for statutes, one of which contains language remarkably similar to the language in the security *309 agreements executed by respondents in these cases.[1] Those exceptions introduce an ambiguity. On the one hand, they indicate that Congress did not intend 525(a) to limit the Executive's right to condition the retaining of a federal license on considerations similar to those on which a creditor relies. The reasons for making an exception for licenses to deal in perishable commodities would seem equally applicable to licenses to exploit the public airwaves. Indeed, there is probably a greater public interest in allowing prompt cancellation of spectrum licenses than of commodities dealers' licenses because of the importance of facilitating development of the broadcast spectrum. On the other hand, the exceptions demonstrate that Congress realized the breadth of the language in 525(a). Rather than make a categorical exception that would have accommodated not only the three cases expressly covered by the text, but also cases like the ones before the Court today, the drafters retained the broad language that the Court finds decisive. That language endorses a general rule that gives priority to the debtor's interest in preserving control of an important asset of the estate pending the completion of bankruptcy proceedings. I do not believe that the application of that general rule to these cases will be unfair to the Federal Communications Commission either as a regulator or as a creditor. If the *310 bankrupt licensee is unable to fulfill other conditions of its license, the regulator may cancel the licenses for reasons that are not covered by 525(a).[2] Moreover, given the fact that the Commission has a secured interest in the license, if the licensee can obtain the financing that will enable it to perform its obligations in full, the debt will ultimately be paid. In sum, even though I agree with JUSTICE BREYER'S view that the literal text of a statute is not always a sufficient basis for determining the actual intent of Congress, in these cases I believe it does produce the correct answer. |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | In this case we return again to the history and geography of the Ohio River valley, as we consider the location of the boundary of the Commonwealth of with the State of Illinois. We hold it to be the line of the low-water mark along the river's northerly shore as it was in 1792. *382 I In July 1986, Illinois sought leave to file a bill of complaint against invoking this Court's original jurisdiction to resolve a disagreement about the location of the common boundary of the two States. See U. S. Const., Art. III, 2. Illinois asked the Court to declare "the boundary line to be the low-water mark on the northerly shore of the Ohio River as it existed in 1792," Report of Special Master 1-2, and to enjoin "from disturbing in any manner the State of Illinois or its citizens from the peaceful use, and enjoyment of all land, water and jurisdiction within the boundaries of Illinois as established by the Court," We granted leave to file the bill of complaint, and appointed the Honorable Robert Van Pelt as Special Master.[*] In its answer to the complaint, denied that the boundary was the 1792 line and claimed it to be the river's northerly low-water mark "as it exists from time to time." The answer raised the "affirmative defenses" of acquiescence and laches, and invoked certain "principles of riparian boundaries." Report of Special Master 2. The parties spent the next three years in discovery and, after submitting evidence to the Special Master in January 1990, were granted additional time to develop the evidentiary record on 's claim of prescription and acquiescence. After receiving this evidence in April 1990, the Special Master submitted a report to this Court, which was ordered filed. The Special Master recommended that we (1) determine the boundary between Illinois and to be the "low-water mark on the northerly side of the Ohio River as it existed in the year 1792"; (2) find that the record fails to "support *383 the Commonwealth of 's affirmative defenses"; (3) find that the construction of dams on the Ohio River has caused "the present low-water mark on the Illinois side of the river [to be] farther north than it was in 1792"; and (4) order the two States' common boundary to be determined, "as nearly as [the 1792 line] can now be ascertained, either (a) by agreement of the parties, (b) by joint survey agreed upon by both parties, or (c) in the absence of such an agreement or survey, [by the Court] after hearings conducted by the |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | or survey, [by the Court] after hearings conducted by the Special Master and the submission by him to the Court of proposed findings and conclusions." Report of Special Master 48-49. has filed exceptions to the Special Master's report. While challenges many of the factual findings, its primary dispute is with the conclusion that has failed to prove its claim, styled as an affirmative defense, that under the doctrine of prescription and acquiescence the boundary is the low-water mark as it may be from time to time. II A We agree in large measure with the Special Master's report. The threshold issue presented in this case was resolved in in which we held that 's boundary with Ohio was the northerly low-water mark of the Ohio River as it was in 1792. We based that holding on the history of Virginia's 1784 cession to the United States of the lands "northwest of the river Ohio" and 's succession to Virginia's northwest boundary upon reaching statehood in 1792. We relied on the prior opinion in in which Justice Field, for a unanimous Court, reviewed this history and held that 's boundary with Indiana followed the low-water mark on the northerly shore of the Ohio River "when became a State." The same history and precedent that supplied *384 the general rule for determining the boundary separating from its neighboring States of Ohio and Indiana on the Ohio River also govern the determination of 's historical boundary on that river with Illinois. has, indeed, conceded that "if this case were before the Court simply as a matter of law, would be controlling precedent." Exceptions of Commonwealth of 9 (emphasis in original). 's exceptions assume, rather, that the case does not turn on the issue of law decided in but on the "factual issue of acquiescence which has raised as an affirmative defense on the question of its boundary with Illinois." Exceptions of Commonwealth of 9-10. contends that it has long asserted, and Illinois has acquiesced in the assertion, that the common boundary of the two States is the low-water mark of the Ohio River, not as it was in 1792, but as it may be from time to time. Although has styled its acquiescence claim an affirmative defense, this "defense," if successfully proved, would not only counter Illinois' boundary claim but also establish 's own position. To do this on a theory of prescription and acquiescence, would need to show by a preponderance of the evidence, first, a long and continuous possession of, and assertion of sovereignty over, the territory delimited by the transient |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | assertion of sovereignty over, the territory delimited by the transient low-water mark. Longstanding "[p]ossession and dominion are essential elements of a claim of sovereignty by prescription and acquiescence." would then have the burden to prove Illinois' long acquiescence in those acts of possession and jurisdiction. As we stated in there is a "general principle of public law" that, as between States, a "long acquiescence in the possession of territory under a claim of right and in the exercise of dominion and sovereignty over it, is conclusive of the rightful authority." See also at The record developed before the Special Master in this case fails to support 's claim of sovereignty by prescription and acquiescence. After a thorough review of the voluminous evidence presented by both States, the Special Master concluded that had proved neither long and continuous action in support of its claim to a boundary at the northerly low-water mark as it might be from time to time, nor Illinois' acquiescence in that claim. While 's many exceptions to the extensive factual findings on these issues do not merit discussion seriatim, an examination of a few will indicate the evidentiary support generally for the Special Master's conclusions. The Special Master first assessed the evidence bearing on 's exercise of dominion. According to 's view of the boundary, for example, any permanent structure extending out over the water from the river's northern bank would be within 's territory and subject to its taxing power, one of the primary indicia of sovereignty. The record in this case, however, shows that has imposed a property tax on only 3 of the 15 structures that extend out, into, or over the water from the Illinois shoreline. Of the three affected taxpayers, one who received a tax bill for property extending south into the river was also taxed on the same structure by Illinois, and another paid the bill only under protest, "claiming that the property [taxed was] within the State of Illinois." Report of Special Master 37. The remaining 12 structures extending south into the river from Illinois have never been taxed by advanced what it took to be a stronger claim to having exercised exclusive taxing jurisdiction right up to the transient low-water mark by offering evidence of its ad valorem *386 taxation of barges and other watercraft traveling on the river. But this evidence simply fails to speak directly to the boundary issue in this case. Vessels traveling the river usually follow a sailing line charted by the United States Army Corps of Engineers which, for most of the stretch in |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | Corps of Engineers which, for most of the stretch in question, is either close to the center of the river or near the shore. Illinois does not dispute that the sailing line, like most of the river, is within the boundary and jurisdiction of The territory in question, rather, is thought to be a comparatively narrow sliver of the Ohio along its northerly shore, where barges and watercraft would rarely venture. As to the sliver, 's acts of taxation have been, at best, equivocal, and the Special Master was accordingly correct when he observed that the fact of 's taxation of barges "traveling on the Ohio River within the acknowledged jurisdiction of does not support 's claim of exclusive jurisdiction of the entire breadth of the river." This evidence of 's failure to engage in consistent and unequivocal acts of occupation and dominion does not stand alone, however, for we are concerned not only with what its officers have done, but with what they have said, as well. And what they have said has, in several instances, supported Illinois' claim. The Legislative Research Commission of the General Assembly and the Attorney General of have each taken the position in the recent past that 's northern border is the 1792 low-water mark. An Information Bulletin issued by the Legislative Research Commission in December 1972 states that "`'s North and Western boundary, to-wit, the low-water mark on the North shore of the Ohio River as of 1792 has been recognized as the boundary based upon the fact that was created from what was then Virginia.'" An earlier opinion by the Commonwealth's Attorney General issued in 1963 asserted that the "`law, of course is that the boundary line between the states of Indiana and *387 is the low-water [mark] on the north shore of the Ohio as it existed when became a state in 1792.'" These statements came to our attention in 's last boundary case in this Court, where we found it "of no little interest" in deciding -341, that these " sources themselves, in recent years, have made reference to the 1792 low-water mark as the boundary." It is hardly of less interest this time. Just as this representative evidence fails to indicate any longstanding exercise of occupation and dominion of the disputed area by the record is equally unsupportive of the claim of Illinois' acquiescence. It is true that the Illinois Constitution of 1818 described the State's boundary with on the Ohio River simply as following "along its north-western shore," Ill. Const., Preamble (1818), and the same description was employed |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | Ill. Const., Preamble (1818), and the same description was employed in the State Constitutions of 1848 and 18, see Ill. Const., Art. I (1848), Ill. Const., Art. I (18). But these are verbatim recitations of the congressional language describing Illinois' boundary in the State's Enabling Act of April 18, 1818, ch. 67, and the Special Master correctly reasoned that "[w]hat Congress intended to be the southern boundary of Illinois, was the same southern boundary granted the states of Ohio and Indiana when they were formed. Illinois, like Ohio and Indiana, was created from the territory ceded by Virginia to the United States." Report of Special Master 28. Although the current version of the Illinois Constitution, adopted in 19, omits any description of the State's boundaries, the 18 Constitution's language remained the reference point in the most recent Illinois case dealing with the State's river boundary that has come to our attention. See People ex rel. cert. denied, *388 The courts of Illinois, indeed, for some time took an even less hospitable view of 's interests than the Illinois Constitution did. In Joyce-Watkins the State Supreme Court adopted a theory that would have ratchetted the boundary line forever southward toward the deepest point of the river, by holding the boundary to be the low-water mark on the northerly shore of the river at the "point to which the water receded at its lowest stage." This description of the boundary was followed by Illinois courts until at least see People ex rel. and while it plainly conflicts with our decisions in and its use over nearly 50 years shows that Illinois did not acquiesce in any claim by to a low-water mark that might edge northward over time. Such was the force of the evidence adduced, and such was its failure to support 's claim of prescription and acquiescence. B 's other affirmative defenses are likewise unavailing. The Special Master correctly observed that the laches defense is generally inapplicable against a State. See (collecting authorities); Guaranty Trust ; cf. Although the law governing interstate boundary disputes takes account of the broad policy disfavoring the untimely assertion of rights that underlies the defense of laches and statutes of limitations, it does so through the doctrine of prescription and acquiescence, see generally which has failed to satisfy. * 's affirmative defenses based on the "principles of riparian boundaries, including accretion, erosion and avulsion," require no extended consideration, for concedes that these would affect the ultimate boundary determination only if it prevailed on the issues of prescription and acquiescence. Exceptions of Commonwealth of 48-49 ("It |
Justice Souter | 1,991 | 20 | majority | Illinois v. Kentucky | https://www.courtlistener.com/opinion/112602/illinois-v-kentucky/ | of prescription and acquiescence. Exceptions of Commonwealth of 48-49 ("It is 's position that if it prevails on its affirmative defense of acquiescence, then the well-recognized principles of accretion, erosion and avulsion would obviously apply to a current shoreline boundary as it may change from time to time"). We have previously held as much, concluding that "the well-recognized and accepted rules of accretion and avulsion attendant upon a wandering river" have no application to 's Ohio River boundary because of the "historical factors" stemming from the cession by Virginia of the land northwest of the river to the United States. 's final exception to the Special Master's report goes to the finding in Part III.C. that construction of dams on the river has permanently raised its level above that of 1792, consequently placing the present low-water mark on the Illinois side farther north than it was in 1792. calls any question about the relative locations of the 1792 line and today's low-water mark premature, and we agree. Indeed, the Special Master himself suggested that this issue might, if necessary, "be determined at a later date," Report of Special Master after he had made further recommendations to resolve any disputes the parties may have about the exact location of the 1792 line. III The exception of the Commonwealth of to Part III.C. and Recommendation (3) of the report of the Special Master, as to the effect of modern dams on the level of the Ohio River, is sustained. 's other exceptions are overruled. The report, save for Part III.C. and Recommendation (3), is adopted, and the case is remanded to the Special *390 Master for such further proceedings as may be necessary to prepare and submit an appropriate decree for adoption by the Court, locating the 1792 line. It is so ordered. |
Justice Marshall | 1,988 | 15 | dissenting | Ross v. Oklahoma | https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/ | A man's life is at stake. We should not be playing games. In this case, everyone concedes that the trial judge could not arbitrarily take away one of the defendant's peremptory challenges. *92 Yet, that is in effect exactly what happened here. I respectfully dissent. Neither the State nor this Court disputes that the trial court "erred" when it refused to strike juror Huling for cause from the jury that sentenced petitioner Bobby Lynn Ross to death. Huling twice stated during voir dire that if he were to find Ross guilty of murder, he would automatically vote to impose the death penalty; there is no question that Huling was not the fair and impartial juror guaranteed to petitioner by the Sixth Amendment. The Court concludes, however, that the trial court's error does not require resentencing because it was "cure[d]" by the defense's use of one of a limited number of peremptory challenges to remove the biased juror. Ante, at 88. I believe that this conclusion is irreconcilable with this Court's holding just last Term that a similar Sixth Amendment error in capital jury selection requires resentencing if " `the composition of the jury panel as a whole could possibly have been affected by the trial court's ' " quoting (CA5) (specially concurring opinion), cert. denied, 4 U.S. 1111 The Court's attempt to distinguish not only fails to persuade, but also fails to protect petitioner's Sixth Amendment right to an impartial jury by condoning a scheme that penalizes the assertion of that right. I am convinced that application of 's per se resentencing rule in this case is the only course consistent with the Sixth Amendment. In the trial court granted the State's motion to strike for cause a juror who expressed some reservations about capital punishment, but nonetheless stated that she could vote to impose the death penalty in appropriate circumstances. The trial court's exclusion of this qualified juror was Sixth Amendment error under and The Court refused the State's invitation to apply harmless-error analysis to such an Specifically, *93 the Court rejected the argument that the State's retention of unexercised peremptory challenges at the end of jury selection indicated that the error was harmless because the State would have removed the juror by peremptory challenge if the trial court had denied its for-cause motion. In addition, the Court rejected the argument that the error was an isolated incident without prejudicial effect because the ultimate panel fairly represented the community. The Court explained that the contingent nature of the jury selection process "defies any attempt to establish that an erroneous |
Justice Marshall | 1,988 | 15 | dissenting | Ross v. Oklahoma | https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/ | selection process "defies any attempt to establish that an erroneous -Witt exclusion of a juror is harmless." 481 U.S., at According to the Court, "the relevant inquiry is `whether the composition of the jury panel as a whole could possibly have been affected by the trial court's ' " The Court recognized that its decision established a per se rule requiring the vacation of a death sentence imposed by a jury whose composition was affected by 668. The Court today unaccountably refuses to apply this per se rule in a case involving a similar Sixth Amendment Here the trial court, rather than excusing a qualified juror, refused to excuse a biased juror. The defense's attempt to correct the court's error and preserve its Sixth Amendment claim deprived it of a peremptory challenge. That deprivation "could possibly have affected" the composition of the jury panel under the standard, because the defense might have used the extra peremptory to remove another juror and because the loss of a peremptory might have affected the defense's strategic use of its remaining peremptories. See at Even the Court acknowledges that the defense's loss of a peremptory meets the test. See ante, at 87 ("[T]he failure to remove Huling may have resulted in a *94 jury panel different from that which would otherwise have decided the case"). Indeed, the loss of a peremptory challenge in this case affected the composition of the jury panel in precisely the same way as the trial court's error in itself. In the defendant was deprived of a juror who, although inexcusable for cause, seemed to be sympathetic to the defense in that she had expressed reservations about the death penalty. The defense in the instant case was deprived of an opportunity to remove an otherwise qualified juror whom it perceived to be sympathetic to the prosecution. The defense's loss of a peremptory challenge thus resulted in a " `tribunal organized to return a verdict of death' " in exactly the fashion we rejected so recently in quoting The Court attempts to distinguish in two ways. First, the Court dismissively declares that the standard is "too sweeping to be applied literally." Ante, at 87. The Court offers only one reason for narrowing 's broad language: if any Sixth Amendment error that "could possibly have affected" the composition of the jury requires reversal, a trial court could never dismiss the venire and start anew, because the jury resulting from the new venire would necessarily be different from the one that would have been empaneled in the absence of the original Ante, at |
Justice Marshall | 1,988 | 15 | dissenting | Ross v. Oklahoma | https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/ | been empaneled in the absence of the original Ante, at 87, n. 2. This argument misses the point of the decision. The Court did not hold that a defendant has the right to any particular venire or panel; rather, the Court held that a defendant has a right to a jury selection procedure untainted by constitutional Because it is impossible to be sure that an erroneous ruling by the trial court did not tilt the panel against the defendant, a death sentence returned by such a panel cannot stand. A wholly new venire does not pose the same problem of "tilting" as the result of constitutional Thus, the Court is simply wrong that the standard would prevent a trial court from correcting an erroneous *95 ruling by starting anew. The Court's unwillingness to apply the standard "literally" is without foundation. Second, the Court attempts to limit by distinguishing it factually from the instant case. The Court correctly notes that "[o]ne of the principal concerns animating the decision in was the inability to know to a certainty whether the prosecution could and would have used a peremptory challenge to remove the erroneously excused juror." Ante, at 88, citing n. 2 The Court then attempts to distinguish the instant case as follows: "In the instant case, there is no need to speculate whether Huling would have been removed absent the erroneous ruling by the trial court; Huling was in fact removed and did not sit." Ante, at 88. The Court again misses the point of the Court's reasoning. did not indicate that the use of peremptory challenges always "cures" erroneous for-cause rulings. Rather, the Court reasoned that if it could be sure that the prosecution would have excused the erroneously excused juror by use of a peremptory challenge, and if it could be sure that the composition of the jury panel would thereby be identical to the jury that was empaneled as a result of the error, then there would be no need for reversal. Because the Court could not be certain of the former point, reversal was required. In the instant case, although the Court can be sure that a peremptory challenge was in fact employed in an attempt to cure the erroneous for-cause ruling, the Court cannot be sure that the composition of the jury panel was thereby unaffected as the Court itself acknowledges. See ante, at 87. Reversal is therefore required in the instant case as well, as the very portion of Justice Powell's concurrence in that is quoted by the Court clearly establishes: "the only question is |
Justice Marshall | 1,988 | 15 | dissenting | Ross v. Oklahoma | https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/ | quoted by the Court clearly establishes: "the only question is whether there is a reasonable doubt that the composition of the venire would have been different as a result." n. 2. *96 The only argument that might successfully distinguish the instant case from is implicit in the Court's holding, although not expressly made. The Court leaves undisturbed 's rule that constitutional error in jury selection requires reversal if it changes the composition of the jury, but the Court holds that reversal is not required if state law requires a party to attempt to correct such error and this attempt leads to a change in jury composition. Under this view, any change in the composition of the jury wrought by the loss of a defense peremptory in the instant case was the result not of the trial court's error, but of the defense's attempt to cure that error pursuant to state law; the defense's use of a peremptory challenge was an intervening cause that broke the causal link between the trial court's error and the change in jury composition. This "intervening cause" argument does distinguish the instant case from but it engenders serious constitutional problems of its own. The State's requirement that a defendant employ a peremptory challenge in order to preserve a Sixth Amendment claim arising from a trial court's erroneous for-cause ruling burdens the defendant's exercise of his Sixth Amendment right to a impartial jury. It is undisputed that petitioner had a Sixth Amendment right to be sentenced by a jury on which juror Huling did not sit. Yet the only way for petitioner to preserve this right under state law was to give up one of a limited number of peremptory challenges. We have emphasized that the ability to exercise peremptory challenges is "one of the most important of the rights secured to the accused," and that it "long has served the selection of an impartial jury," It cannot seriously be questioned that the loss of a peremptory challenge vis-a-vis the prosecution burdens the defense in pretrial proceedings. A venerable line of this Court's precedents has held that legislative schemes that unnecessarily burden the exercise of *97 federal constitutional rights cannot stand. Just a few examples from the criminal context suffice to establish this principle. In United the Court struck down a provision of the Federal Kidnapping Act that rendered eligible for the death penalty only defendants who invoked their right to trial by jury. The Court recognized that Congress' goal in enacting the provision was legitimate, but held that "[w]hatever might be said of Congress' objectives, they |
Justice Marshall | 1,988 | 15 | dissenting | Ross v. Oklahoma | https://www.courtlistener.com/opinion/112119/ross-v-oklahoma/ | held that "[w]hatever might be said of Congress' objectives, they cannot be pursued by means that needlessly chill the exercise of basic constitutional " at 2. And in the Court struck down a state law that required a defendant who wished to testify on his own behalf to be the first defense witness presented. We noted that the state law at issue "exacts a price for [the defendant's] silence by keeping him off the stand entirely unless he chooses to testify first," and that it therefore "casts a heavy burden on a defendant's otherwise unconditional right not to take the stand," -611. The Court today ignores the clear dictates of these and other similar cases by condoning a scheme in which a defendant must surrender procedural parity with the prosecution in order to preserve his Sixth Amendment right to an impartial jury. The Court notes that "there is nothing arbitrary or irrational" about the State's rule that a defendant must use a peremptory challenge to cure an erroneous for-cause ruling, because the State has an interest in preventing needless or frivolous appeals. Ante, at 90. But the existence of a rational rather than a punitive reason for a burdensome requirement is of little significance under our cases. In Brooks, the State's interest in preventing the defendant's testimony from being influenced by the testimony of other defense witnesses was rational, but we found it insufficient to override the defendant's right to remain silent at trial. And in Jackson, we struck down a federal statutory provision that was motivated by the legitimate interest *98 of permitting the death penalty to be imposed only upon the recommendation of a jury, because Congress had other means available to achieve that goal without burdening the exercise of constitutional 390 U.S., at 2-3. In the instant case, the State's desire to prevent needless or frivolous appeals is insufficient to overcome the right to an impartial adjudicator, which "goes to the very integrity of the legal system." Moreover, the State's concerns obviously could be addressed in numerous other ways. See, e. g., Oklahoma Supreme Court Code of Professional Responsibility, DR 1-102(A)(4) ("A lawyer shall not [e]ngage in conduct involving dishonesty, fraud, deceit, or misrepresentation"). The burden on petitioner's Sixth Amendment rights is thus both heavy and avoidable. Our cases accordingly mandate the conclusion that the Oklahoma scheme cannot stand. The Court's failure to apply 's rule of per se reversal in this case is not justified by any of the Court's attempts to distinguish The only argument that might distinguish the instant case from must condone an |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | Appellants in this case challenge certain computation procedures that the State of Texas uses in its federally assisted welfare program. Believing that neither the Constitution nor the federal welfare statute prohibits the State from adopting these policies, we affirm the judgment of the three-judge court below upholding the state procedures. I Appellants are Texas recipients of Aid to Families With Dependent Children (AFDC). They brought two class *537 actions, which were consolidated in the United States District Court for the Northern District of Texas, seeking injunctive and declaratory relief against state welfare officials. A three-judge court was convened pursuant to 28 U.S. C. 2281. The Texas State Constitution provides a ceiling on the amount the State can spend on welfare assistance grants.[1] In order to allocate this fixed pool of welfare money among the numerous individuals with acknowledged need, the State has adopted a system of percentage grants. Under this system, the State first computes the monetary needs of individuals eligible for relief under each of the federally aided categorical assistance programs.[2] Then, since the constitutional ceiling on welfare is insufficient to bring each recipient up to this full standard of need, the State applies a percentage reduction factor[3] in order to arrive at a reduced standard of need in each category that the State can guarantee. Appellants challenge the constitutionality of applying a lower percentage reduction factor to AFDC than to *538 the other categorical assistance programs. They claim a violation of equal protection because the proportion of AFDC recipients who are black or Mexican-American is higher than the proportion of the aged, blind, or disabled welfare recipients who fall within these minority groups. Appellants claim that the distinction between the programs is not rationally related to the purposes of the Social Security Act, and violates the Fourteenth Amendment for that reason as well. In their original complaint, appellants also argued that any percentage-reduction system violated 402 (a) (23) of the Social Security Act of 1935, as amended, 42 U.S. C. 602 (a) (23), which required each State to make certain cost-of-living adjustments to its standard of need. The three-judge court rejected appellants' constitutional arguments, finding that the Texas system is neither racially discriminatory nor unconstitutionally arbitrary. The court did, however, accept the statutory claim that Texas' percentage reductions in the AFDC program violate the congressional command of 402 (a) (23). Subsequent to that judgment, this Court decided Rosado held that, although 402 (a) (23) required States to make cost-of-living adjustments in their standard-of-need calculations, it did not prohibit use of percentage-reduction systems that limited the amount of welfare |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | use of percentage-reduction systems that limited the amount of welfare assistance actually This Court then vacated and remanded the first Jefferson judgment for further proceedings consistent with Rosado. On remand, the District Court entered a new judgment, denying all relief. Then, in a motion to amend the judgment, appellants raised a new statutory claim. They argued for the first time that although a percentage-reduction system may be consistent with the statute, the *539 specific procedures that Texas uses for computing that reduction violate the congressional enactment. The District Court rejected this argument and denied without opinion appellants' motion to amend the judgment. This appeal under 28 U.S. C. 1253 then followed, and we noted probable jurisdiction. II Appellants' statutory argument relates to the method that the State uses to compute the percentage reduction when the recipient also has some outside income. Texas, like many other States,[4] first applies the percentage-reduction factor to the recipient's standard of need, thus arriving at a reduced standard of need that the State can guarantee for each recipient within the present budgetary restraints. After computing this reduced standard of need, the State then subtracts any nonexempt[5] income in order to arrive at the level of benefits that the recipient needs in order to reach his reduced standard of need. This is the amount of welfare the recipient is given. Under an alternative system used by other States, the order of computation is reversed. First, the outside income is subtracted from the standard of need, in order to determine the recipient's "unmet need." Then, the percentage-reduction factor is applied to the unmet need, in order to determine the welfare benefits payable. The two systems of accounting for outside income yield different results.[6] Under the Texas system all *540 welfare recipients with the same needs have the same amount of money available each month, whether or not they have outside income. Since the outside income is applied dollar for dollar to the reduced standard of need, which the welfare department would otherwise pay in full, it does not result in a net improvement in the financial position of the recipient. Under the alternative system, on the other hand, any welfare recipient who also has outside income is in a better financial position because of it. The reason is that the percentage-reduction factor there is applied to the "unmet need," after the income has been subtracted. Thus, in effect, the income-earning recipient is able to "keep" all his income, while he receives only a percentage of the remainder of his standard of need.[7] *541 Each of the two |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | of his standard of need.[7] *541 Each of the two systems has certain advantages. Appellants note that under the alternative system there is a financial incentive for welfare recipients to obtain outside income. The Texas computation method eliminates any such financial incentive, so long as the outside income remains less than the recipient's reduced standard of need.[8] However, since Texas' pool of available welfare funds is fixed, any increase in benefits paid to the working poor would have to be offset by reductions elsewhere. Thus, if Texas were to switch to the alternative system of recognizing outside income, it would be forced to lower its percentage-reduction factor, in order to keep down its welfare budget. Lowering the percentage would result in less money for those who need the welfare benefits the mostthose with no outside incomeand the State has been unwilling to do this. Striking the proper balance between these competing policy considerations is, of course, not the function of this Court. "There is no question that States have considerable latitude in allocating their AFDC resources, since each State is free to set its own standard of need and to determine the level of benefits by the amount of funds it devotes to the program."[9] So long as the State's actions are not in violation of any specific provision of the Constitution or the Social Security Act, appellants' policy arguments must be addressed to a different forum. *542 Appellants assert, however, that the Texas computation procedures are contrary to 402 (a) (23): "(a) A State plan for aid and services to needy families with children must "(23) provide that by July 1, the amounts used by the State to determine the needs of individuals will have been adjusted to reflect fully changes in living costs since such amounts were established, and any maximums that the State imposes on the amount of aid paid to families will have been proportionately adjusted." Recognizing that this statutory language, by its terms, hardly provides much support for their theory, appellants seek to rely on what they perceive to have been the broad congressional purpose in enacting the provision. In the Court reviewed the history of this section and rejected the argument that it had worked any radical shift in the AFDC program. at 414 and n. 17. AFDC has long been referred to as a "scheme of cooperative federalism," and the Rosado Court dismissed as "adventuresome" any interpretation of 402 (a) (23) that would deprive the States of their traditional discretion to set the levels of -415 and n. 17. Instead, the statute was |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | levels of -415 and n. 17. Instead, the statute was meant to require the States to make cost-of-living adjustments to their standards of need, thereby serving "two broad purposes": "First, to require States to face up realistically to the magnitude of the public assistance requirement and lay bare the extent to which their programs fall short of fulfilling actual need; second, to prod the States to apportion their payments on a more equitable basis." *543 Texas has complied with these two requirements. Effective May 1, the standard of need for AFDC recipients was raised 11% to reflect the rise in the cost of living, and the State shifted from a maximum-grant system to its present percentage-reduction system. In this way, the State has fairly recognized and exposed the precise level of unmet need, and by using a percentage-reduction system it has attempted to apportion the State's limited benefits more equitably. Although Texas has thus responded to the "two broad purposes" of 402 (a) (23), appellants argue that Congress also intended that statute to increase the total number of recipients of AFDC, so that more people would qualify for the subsidiary benefits that are dependent on receipt of AFDC cash assistance.[10] The Texas computation procedures are thought objectionable since they do not increase the welfare rolls to quite the same extent as would the alternative method of recognizing outside income. We do not agree that Congress intended 402 (a) (23) to invalidate any state computation procedures that do not absolutely maximize individual eligibility for subsidiary benefits. The cost-of-living increase that Congress mandated would, of course, generally tend to increase eligibility,[11] but there is nothing in the legislative history *544 indicating that this was part of the statutory purpose. Indeed, at the same time Congress enacted 402 (a) (23) it included another section designed to induce States to reduce the number of individuals eligible for the AFDC program.[12] Thus, what little legislative history there is on the point, see -412, tends to undercut appellants' theory. See See generally Note, 58 Geo. L. J. 591 Appellants also argue that the Texas system should be held invalid because the alternative computation method results in greater work incentives for welfare recipients.[13] The history and purpose of the Social Security Act do indicate Congress' desire to help those on welfare become self-sustaining. Indeed, Congress has specifically mandated certain work incentives in 402 (a) (8). There is no dispute here, however, about Texas' compliance with these very detailed provisions for work incentives. Neither their inclusion in the Act nor the language used by Congress in other sections |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | Act nor the language used by Congress in other sections of the Act supports the inference that Congress mandated the States to change their income-computation procedures in other, completely unmentioned areas. Nor are appellants aided by their reference to Social Security Act 402 (a) (10), 42 U.S. C. 602 (a) (10), which provides that AFDC benefits must "be furnished *545 with reasonable promptness to all eligible individuals." That section was enacted at a time when persons whom the State had determined to be eligible for the payment of benefits were placed on waiting lists, because of the shortage of state funds. The statute was intended to prevent the States from denying benefits, even temporarily, to a person who has been found fully qualified for aid. See H. R. Rep. No. 1300, 81st Cong., 1st Sess., 48, 148 (1949); 95 Cong. Rec. 13934 (remarks of Rep. Forand). Section 402 (a) (10) also prohibits a State from creating certain exceptions to standards specifically enunciated in the federal Act. See, e. g., It does not, however, enact by implication a generalized federal criterion to which States must adhere in their computation of standards of need, income, and benefits.[14] Such an interpretation would be an intrusion into an area in which Congress has given the States broad discretion, and we cannot accept appellants' invitation to change this longstanding statutory scheme simply for policy consideration reasons of which we are not the arbiter. III We turn, then, to appellants' claim that the Texas system of percentage reductions violates the Fourteenth Amendment. Appellants believe that once the State has computed a standard of need for each recipient, it is arbitrary and discriminatory to provide only 75% of that standard to AFDC recipients, while paying 100% of recognized need to the aged, and 95% to the disabled and the blind. They argue that if the State adopts a *546 percentage-reduction system, it must apply the same percentage to each of its welfare programs. This claim was properly rejected by the court below. It is clear from the statutory framework that, although the four categories of public assistance found in the Social Security Act have certain common elements, the States were intended by Congress to keep their AFDC plans separate from plans under the other titles of the Act.[15] A State is free to participate in one, several, or all of the categorical assistance programs, as it chooses. It is true that each of the programs is intended to assist the needy, but it does not follow that there is only one constitutionally permissible way for the State |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | there is only one constitutionally permissible way for the State to approach this important goal. This Court emphasized only recently, in that in "the area of economics and social welfare, a State does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." A legislature may address a problem "one step at a time," or even "select one phase of one field and apply a remedy there, neglecting the others." So long as its judgments are rational, and not invidious, the legislature's efforts to tackle the problems of the poor and the needy are not subject to a constitutional straitjacket. The very complexity of the problems suggests that there will be more *547 than one constitutionally permissible method of solving them. The standard of judicial review is not altered because of appellants' unproved allegations of racial discrimination. The three-judge court found that the "payment by Texas of a lesser percentage of unmet needs to the recipients of the AFDC than to the recipients of other welfare programs is not the result of racial or ethnic prejudice and is not violative of the federal Civil Rights Act or the Equal Protection Clause of the 14th Amendment." The District Court obviously gave careful consideration to this issue, and we are cited by its opinion to a number of subsidiary facts to support its principal finding quoted above. There has never been a reduction in the amount of money appropriated by the legislature to the AFDC program, and between 1943 and the date of the opinion below there had been five increases in the amount of money appropriated by the legislature for the program, two of them having occurred since 1959.[16] The overall percentage increase in appropriation for the programs between 1943 and the time of the District Court's hearing in this case was 410% for AFDC, as opposed to 211% for OAA and 200% for AB. The court further concluded: "The depositions of Welfare officials conclusively establish that the defendants did not know the racial make-up of the various welfare assistance categories prior to or at the time when the orders here under attack were issued." Appellants in their brief in effect abandon any effort *548 to show that these findings of fact were clearly erroneous, and we hold they were not. Appellants are thus left with their naked statistical argument: that there is a larger percentage of Negroes and Mexican-Americans in AFDC than in the other programs,[17] and that the AFDC is funded at 75% whereas the other programs are funded at 95% and 100% |
Justice Rehnquist | 1,972 | 19 | majority | Jefferson v. Hackney | https://www.courtlistener.com/opinion/108548/jefferson-v-hackney/ | whereas the other programs are funded at 95% and 100% of recognized need. As the statistics cited in the footnote demonstrate, the number of minority members in all categories is substantial. The basic outlines of eligibility for the various categorical grants are established by Congress, not by the States; given the heterogeneity of the Nation's population, it would be only an infrequent coincidence that the racial composition of each grant class was identical to that of the others. The acceptance of appellants' constitutional theory would render suspect each difference in treatment among the grant classes, however lacking in racial motivation and however otherwise rational the treatment might be. Few legislative efforts to deal with the difficult problems posed by current welfare programs could survive *549 such scrutiny, and we do not find it required by the Fourteenth Amendment.[18] Applying the traditional standard of review under that amendment, we cannot say that Texas' decision to provide somewhat lower welfare benefits for AFDC recipients is invidious or irrational. Since budgetary constraints do not allow the payment of the full standard of need for all welfare recipients, the State may have concluded that the aged and infirm are the least able of the categorical grant recipients to bear the hardships of an inadequate standard of living. While different policy judgments are of course possible, it is not irrational for the State to believe that the young are more adaptable than the sick and elderly, especially because the latter have less hope of improving their situation in the years remaining to them. Whether or not one agrees with this state determination, there is nothing in the Constitution that forbids it.[19] Similarly, we cannot accept the argument in MR. *550 JUSTICE MARSHALL's dissent that the Social Security Act itself requires equal percentages for each categorical assistance program. The dissent concedes that a State might simply refuse to participate in the AFDC program, while continuing to receive federal money for the other categorical programs. See post, at 577. Nevertheless, it is argued that Congress intended to prohibit any middle groundonce the State does participate in a program it must do so on the same basis as it participates in every other program. Such an all-or-nothing policy judgment may well be defensible, and the dissenters may be correct that nothing in the statute expressly rejects it. But neither does anything in the statute approve or require it.[20] *551 In conclusion, we re-emphasize what the Court said in : "We do not decide today that the [state law] is wise, that it best fulfills the relevant social and |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | I The Court notes at the outset of its opinion the differences between the claims made by the plaintiffs in this case and the classical "de jure" type of claims made by plaintiffs in cases such as and its progeny I think the similarities and differences, not only in the claims, but in the nature of the constitutional violation, deserve somewhat more attention than the Court gives them In Brown, the Court held unconstitutional statutes then prevalent in Southern and border States mandating that Negro children and white children attend separate schools Under such a statute, of course, every child in the school system is segregated by race, and there is no racial mixing whatever in the population of any particular school It is conceded that the State of Colorado and the city of Denver have never had a statute or ordinance of that description The claim made by these plaintiffs, as described in the Court's opinion, is that the School Board by "use of various techniques such as the manipulation of student attendance zones, schoolsite selection and a neighborhood school policy" took race into account in making school assignments in such a way as to lessen that mixing of races which would have resulted from a racially neutral policy of school assignment If such claims are proved, those minority students who as a result of such manipulative techniques are forced to attend schools other than those that they would have attended had attendance zones been neutrally drawn are undoubtedly deprived of their constitutional right to equal protection of the laws just as surely as were the plaintiffs in by the statutorily required segregation in that case But the fact that invidious *255 racial discrimination is prohibited by the Constitution in the North as well as the South must not be allowed to obscure the equally important fact that the consequences of manipulative drawing of attendance zones in a school district the size of Denver does not necessarily result in denial of equal protection to all minority students within that district There are significant differences between the proof which would support a claim such as that alleged by plaintiffs in this case, and the total segregation required by statute which existed in Brown The Court's opinion obscures these factual differences between the situation shown by the record to have existed in Denver and the situations dealt with in earlier school desegregation opinions of the Court The Court states, ante, at 200, that "[w]e have never suggested that plaintiffs in school desegregation cases must bear the burden of proving the elements |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | desegregation cases must bear the burden of proving the elements of de jure segregation as to each and every school or each and every student within the school system Rather, we have held that where plaintiffs prove that a current condition of segregated schooling exists within a school district where a dual system was compelled or authorized by statute at the time of our decision in the State automatically assumes an affirmative duty `to effectuate a transition to a racially nondiscriminatory school system,' " That statement is, of course, correct in the Brown context, but in the Brown cases and later ones that have come before the Court the situation which had invariably obtained at one time was a "dual" school system mandated by law, by a law which prohibited Negroes and whites from attending the same schools Since under Brown such a law deprived each Negro child of the equal protection of the laws, there was no need to prove "the *256 elements of de jure segregation as to each and every school," since the law itself had required just that sort of segregation But in a school district the size of Denver's, it is quite conceivable that the School Board might have engaged in the racial gerrymandering of the attendance boundary between two particular schools in order to keep one largely Negro and Hispano, and the other largely Anglo, as the District Court found to have been the fact in this case Such action would have deprived affected minority students who were the victims of such gerrymandering of their constitutional right to equal protection of the laws But if the school board had been evenhanded in its drawing of the attendance lines for other schools in the district, minority students required to attend other schools within the district would have suffered no such deprivation It certainly would not reflect normal English usage to describe the entire district as "segregated" on such a state of facts, and it would be a quite unprecedented application of principles of equitable relief to determine that if the gerrymandering of one attendance zone were proved, particular racial mixtures could be required by a federal district court for every school in the district It is quite possible, of course, that a school district purporting to adopt racially neutral boundary zones might, with respect to every such zone, invidiously discriminate against minorities, so as to produce substantially the same result as was produced by the statutorily decreed segregation involved in Brown If that were the case, the consequences would necessarily have to be the same |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | case, the consequences would necessarily have to be the same as were the consequences in Brown But, in the absence of a statute requiring segregation, there must necessarily be the sort of factual inquiry which was unnecessary in those jurisdictions where racial mixing in the schools was forbidden by law *257 Underlying the Court's entire opinion is its apparent thesis that a district judge is at least permitted to find that if a single attendance zone between two individual schools in the large metropolitan district is found by him to have been "gerrymandered," the school district is guilty of operating a "dual" school system, and is apparently a candidate for what is in practice a federal receivership Not only the language of the Court in the opinion, but its reliance on the case of indicates that such would be the case It would therefore presumably be open to the District Court to require, inter alia, that pupils be transported great distances throughout the district to and from schools whose attendance zones have not been gerrymandered Yet, unless the Equal Protection Clause of the Fourteenth Amendment now be held to embody a principle of "taint," found in some primitive legal systems but discarded centuries ago in ours, such a result can only be described as the product of judicial fiat represented a marked extension of the principles of The Court in said: "It is of course true that for the time immediately after Brown II [] the concern was with making an initial break in a long-established pattern of excluding Negro children from schools attended by white children Under Brown II that immediate goal was only the first step, however The transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about " -436 Brown II was a call for the dismantling of wellentrenched dual systems tempered by an awareness that complex and multifaceted problems would arise *258 which would require time and flexibility for a successful resolution School boards such as the respondent then operating state-compelled dual systems were nevertheless clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch" Id, at The drastic extension of Brown which represented was barely, if at all, explicated in the latter opinion To require that a genuinely "dual" system be disestablished, in the sense that the assignment of a child to a particular school is not made to depend on his race, is one thing To |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | made to depend on his race, is one thing To require that school boards affirmatively undertake to achieve racial mixing in schools where such mixing is not achieved in sufficient degree by neutrally drawn boundary lines is quite obviously something else The Court's own language in makes it unmistakably clear that this significant extension of Brown's prohibition against discrimination, and the conversion of that prohibition into an affirmative duty to integrate, was made in the context of a school system which had for a number of years rigidly excluded Negroes from attending the same schools as were attended by whites Whatever may be the soundness of that decision in the context of a genuinely "dual" school system, where segregation of the races had once been mandated by law, I can see no constitutional justification for it in a situation such as that which the record shows to have obtained in Denver II The Court's opinion gives lip service to the notion that the inquiry as to whether or not the Denver school district was "segregated" is a factual one, though it refers *259 in various critical language to the District Court's refusal to find that minority concentration in the core area schools was the result of discriminatory action on the part of the school board The District Court is said to have "fractionated" the district, ante, at 193, and to have "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city," ibid It is difficult to know what the Court means by the first of these references, and even more difficult to justify the second in the light of the District Court's opinion If by "fractionating" the district, the Court means that the District Court treated together events that occurred during the same time period, and that it treated those events separately from events that occurred during another time span, this is undoubtedly correct This is the approach followed by most experienced and careful finders of fact In commencing that part of its comprehensive opinion which dealt with the "core area" schools, the District Court observed: "The evidentiary as well as the legal approach to the remaining schools is quite different from that which has been outlined above For one thing, the concentrations of minorities occurred at an earlier date and, in some instances, prior to the Brown decision by the Supreme Court Community attitudes were different, including the attitudes of the School Board members Furthermore, the transitions were much more gradual |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | School Board members Furthermore, the transitions were much more gradual and less perceptible than they were in the Park Hill schools" 313 F Supp 61, (Emphasis supplied) The District Court noted, in its opinion of July 31, 19, the differentiation that the plaintiffs themselves had made between the so-called "Park Hill" schools and *260 the "core area" schools The plaintiffs had sought a preliminary injunction prohibiting the school board from rescinding three resolutions which had been adopted by a differently composed school board earlier in 19 and which would have redrawn school boundary lines in the Park Hill area to achieve greater integration In its opinion granting that injunction, the District Court said: "Attention at this hearing has focused primarily on the schools in northeast Denver, and particularly on the area which is commonly called Park Hill The alleged segregated schools, elementary and junior high schools in this area, have acquired their character as such during the past ten years The primary reason for this has been the migration of the Negro community eastward from a confined community surrounding what is commonly called `Five Points' Before 1950 the Negroes all lived in a community bounded roughly by 20th Avenue on the south, 20th Street on the west, York Street on the east, and 38th Avenue on the north The schools in this area were, and are now, largely Negro schools However, we are not presently concerned with the validity of this condition During this period the Negro population was relatively small, and this condition had developed over a long period of time However, by 1960 and, indeed, at the present time this population is sizeable As the population has expanded the move has been to the east, first to Colorado Boulevard, a natural dividing line, and later beyond Colorado Boulevard, but within a narrow corridormore or less fixed north-south boundaries The migration caused these areas to become substantially Negro and segregated" 303 F Supp 279, Further reference to the District Court's several opinions *261 shows that the allegedly discriminatory acts of the School Board in the Park Hill area occurred between 1960 and 19, in the context of a steadily expanding Negro school population in the Park Hill area and heightened sensitivity on the part of the community to the problems raised by integration and segregation The allegedly discriminatory acts with respect to the "core area" schoolsNew Manual High School, Cole Junior High School, Morey Junior High School, and Boulevard and Columbine Elementary Schoolstook place between the years 1952 and 1961 They took place, as indicated by the references to |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | 1961 They took place, as indicated by the references to the District Court's opinion noted above, not in a context of a rapidly expanding Negro population, but in a context of a relatively fixed area of the city that had for an indefinite period of time been predominantly Negro Thus, quite contrary to the intimation of virtual arbitrariness contained in the Court's opinion, the District Court's separate treatment of the claims respecting these two separate areas was absolutely necessary if a careful factual determination, rather than a jumbled hash of unrelated events, was to emerge from the factfinding process The "intent" with which a public body performs an official act is difficult enough to ascertain under the most favorable circumstances See Palmer v US 217 ; McGinnis v Royster, 410 US 263 Far greater difficulty is encountered if we are to assess the intentions with which official acts of a school board are performed over a period of years Not only does the board consist of a number of members, but the membership customarily turns over as a result of frequent periodic elections Indeed, it was as a result of the 19 election for membership on the Denver School Board that the Board's policy which had previously favored the correction of racial imbalance by *262 implementation of resolutions was reversed by the election of new members to the Board These difficulties obviously do not mean that the inquiry must be abandoned, but they do suggest that the care with which the District Court conducted it in this case is an absolutely essential ingredient to its successful conclusion The Court's bald statement that the District Court "held that its finding of intentional segregation in Park Hill was not in any sense material to the question of segregative intent in other areas of the city" is flatly belied by the following statement in the District Court's opinion: "Although past discriminatory acts may not be a substantial factor contributing to present segregation, they may nevertheless be probative on the issue of the segregative purpose of other discriminatory acts which are in fact a substantial factor in causing a present segregated situation" 313 F Supp, at 74-75, n 18 Thus, it is apparent that the District Court was fully aware that it might take into consideration the intention with which it found the School Board to have performed one act in assessing its intention in performing another act This is the most that the references in the Court's opinion to evidentiary treatises such as Wigmore and McCormick support And it should be noted that |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | Wigmore and McCormick support And it should be noted that the cases cited by the Court, and by the authors of the treatises, almost invariably deal with the intention of a particular individual or individuals, and not with the "intention" of a public body whose membership is constantly changing The Court's opinion totally confuses the concept of a permissible inference in such a situation, of which the District Court indicated it was well aware, with what *263 the Court calls a "presumption," which apparently "shifts the burden of proving" to the defendant school authority No case from this Court has ever gone further in this area than to suggest that a finding of intent in one factual situation may support a finding of fact in another related factual situation involving the same factor, a principle with which, as indicated above, the District Court was thoroughly familiar The District Court cases cited by the Court represent almost entirely the opinions of judges who were themselves finders of fact, concluding as a part of the factfinding process that intent with respect to one act may support a conclusion of a like intent with respect to another This is but a restatement of the principle of which the District Court showed it was aware And, obviously, opinions of courts of appeals upholding such findings of the District Court do not themselves support any broader proposition than do the opinions of the District Court in question Chambers v Hendersonville City Board of 364 F2d 189 and North Carolina Teachers Assn v Asheboro City Board of 393 F2d 736 involved a background of segregation by a law in the State of North Carolina and "the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation" 364 F2d, at 192 The courts held that the decimation in the ranks of the Negro teachers while white teachers were unaffected, raised an inference of discrimination which cast upon the school board the burden of justifying such decimation In each case, the school board had offered virtually no evidence supporting any nondiscriminatory basis for the result reached The cases are thus wholly different in their factual background from the case now before the Court *264 Also worthy of note is the fact that neither in Chambers nor in Asheboro did the Court of Appeals remand for a further hearing, but in effect ordered judgments for the appellants on the issues considered This amounted to a determination that the factual finding of the District Court on that issue |
Justice Rehnquist | 1,973 | 19 | dissenting | Keyes v. School Dist. No. 1, Denver | https://www.courtlistener.com/opinion/108844/keyes-v-school-dist-no-1-denver/ | the factual finding of the District Court on that issue was "clearly erroneous," and the statement as to presumption was a statement as to the appellate court's method of evaluating the factual finding This Court is in quite a different position in reviewing this case, with the factual finding of the District Court having been affirmed by the Court of Appeals for the Tenth Circuit, than was the Court of Appeals for the Fourth Circuit in reviewing the factual findings of the District Courts that were before it in Chambers and in Asheboro Indeed, it would be contrary to settled principles for this Court to upset a factual finding sustained by the Court of Appeals "A seasoned and wise rule of this Court makes concurrent findings of two courts below final here in the absence of very exceptional showing of error" Comstock v Group of Institutional Investors, 335 US 211, The Court, doubtless realizing the difficulty of justifying an outright reversal, instead remands for further factual determination under newly enunciated standards governing the evidentiary treatment of the finding as to Park Hill by the District Court These standards call in some parts of the opinion for establishing a presumption, in other parts for shifting the burden of proof, and in other parts for recognizing a prima facie case Quite apart from my disagreement with the majority on its constitutional law, I cannot believe it is a service to any of the parties to this litigation to require further factual determination under such a vague and imprecise mandate But, more fundamentally, I believe that a District Judge thoroughly sympathetic to the plaintiffs' claims gave them the full evidentiary hearing to which *265 they were entitled and carefully considered all of the evidence before him He showed full awareness of the evidentiary principle that he might infer from the "segregative intent" with which he found the Board to have acted in the Park Hill area a like intent with respect to the core area, but he deliberately declined to do so This was his prerogative as the finder of fact, and his conclusion upon its affirmance by the Court of Appeals is binding upon us III The Court has taken a long leap in this area of constitutional law in equating the district-wide consequences of gerrymandering individual attendance zones in a district where separation of the races was never required by law with statutes or ordinances in other jurisdictions which did so require It then adds to this potpourri a confusing enunciation of evidentiary rules in order to make it more likely |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | What is Booking.com? To answer this question, one need only consult the term itself. Respondent provides an online booking service. The company’s name informs the con- sumer of the basic nature of its business and nothing more. Therein lies the root of my disagreement with the majority. Trademark law does not protect generic terms, meaning terms that do no more than name the product or service it- self. This principle preserves the linguistic commons by preventing one producer from appropriating to its own ex- clusive use a term needed by others to describe their goods or services. Today, the Court holds that the addition of “.com” to an otherwise generic term, such as “booking,” can yield a protectable trademark. Because I believe this result is inconsistent with trademark principles and sound trade- mark policy, I respectfully dissent. I A Trademark law protects those “ ‘distinctive marks— words, names, symbols, and the like’ ” that “ ‘distinguish a particular artisan’s goods from those of others.’ ” Matal v. Tam, 582 U. S. (slip op., at 2) (quoting B&B Hardware, (2015)). To determine whether a given term is sufficiently 2 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting distinctive to serve as a trademark, courts generally place it in one of five categories. The first four kinds of terms are eligible for federal trademark registration. The fifth is not. I list the first three only to give context and allow com- parisons. They are: (1) “ ‘fanciful’ ” terms, such as “Kodak” (film); (2) “ ‘arbitrary’ ” terms, such as “Camel” (cigarettes); and (3) “ ‘suggestive’ ” terms, such as “Tide” (laundry deter- gent). Ante, at 3. These kinds of terms are “ ‘inherently distinctive.’ ” The public can readily understand that they identify and distinguish the goods or services of one firm from those of all others. See Two Pesos, By preventing oth- ers from copying a distinctive mark, trademark law “pro- tect[s] the ability of consumers to distinguish among com- peting producers” and “secure[s] to the owner of the mark the goodwill of his business.” Park ’N Ultimately, the purpose of trademark law is to “foster competition” and “suppor[t] the free flow of commerce.” Matal, 582 U. S., at (slip op., at 3) (internal quotation marks omitted). This case concerns two further categories. There are “de- scriptive” terms, such as “Best Buy” (electronics) or “First National Bank” (banking services), that “immediately conve[y] information concerning a feature, quality, or char- acteristic” of the producer’s goods or services. In re North Carolina Lottery, A descriptive term can be registered |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | re North Carolina Lottery, A descriptive term can be registered as a trademark only if it acquires “secondary meaning”—i.e., the public has come to associate it with a particular firm or its product. Two Pesos, There are “generic” terms, such as “wine” or “hair- cuts.” They do nothing more than inform the consumer of the kind of product that the firm sells. We have called ge- neric terms “descriptive of a class of goods.” ’s In- dia Rubber Glove Mfg. Co. v. Rubber Co., 128 U.S. 58, 602 (1888). And we have said that they simply Cite as: 51 U. S. (2020) 3 BREYER, J., dissenting convey the “genus of which the particular product is a spe- cies.” Park ’N A generic term is not eligible for use as a trademark. That principle applies even if a particular generic term “ha[s] become identified with a first user” in the minds of the consuming public. CES Pub- lishing (CA2 175) (Friendly, J.). The reason is simple. To hold otherwise “would grant the owner of the mark a monopoly, since a competitor could not describe his goods as what they are.” Courts have recognized that it is not always easy to dis- tinguish generic from descriptive terms. See, e.g., Aber- crombie & Fitch (CA2 176) (Friendly, J.). It is particularly difficult to do so when a firm wishes to string together two or more generic terms to create a compound term. Despite the generic na- ture of its component parts, the term as a whole is not nec- essarily generic. In such cases, courts must determine whether the combination of generic terms conveys some dis- tinctive, source-identifying meaning that each term, indi- vidually, lacks. See 2 J. McCarthy, Trademarks and Unfair Competition 12:3 (5th ed. June 2020 update) (McCarthy). If the meaning of the whole is no greater than the sum of its parts, then the compound is itself generic. See Princeton Vanguard, 786 F.3d 60, 66–67 (CA Fed. 2015); In re Gould Paper Corp., 834 F.2d 1017, 1018 (CA Fed. 7) (registration is properly denied if “the separate words joined to form a compound have a meaning identical to the meaning common usage would as- cribe to those words as a compound”); see 2 McCarthy 12:3 (collecting examples of compound terms held to be generic). In 128 U.S. 58, we held that appending the word “ ‘Company’ ” to the generic name for a class of goods does not yield a protectable compound term. – 603. The addition of a corporate designation, we explained, 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | designation, we explained, 4 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting “only indicates that parties have formed an association or partnership to deal in such goods.” For in- stance, “parties united to produce or sell wine, or to raise cotton or grain,” may well “style themselves Wine Com- pany, Cotton Company, or Grain Company.” But they would not thereby gain the right to exclude others from the use of those terms “for the obvious reason that all persons have a right to deal in such articles, and to publish the fact to the world.” “[I]ncorporation of a company in the name of an article of commerce, without other specifica- tion,” we concluded, does not “create any exclusive right to the use of the name.” I cannot agree with respondent that the 146 Lanham Act “repudiate[d] and its ilk.” Brief for Respond- ent 3. It is true that the Lanham Act altered the common law in certain important respects. Most significantly, it ex- tended trademark protection to descriptive marks that have acquired secondary meaning. See Qualitex 514 U.S. 15, (15). But it did not disturb the basic principle that generic terms are ineli- gible for trademark protection, and nothing in the Act sug- gests that Congress intended to overturn We normally assume that Congress did not overturn a common- law principle absent some indication to the contrary. See Astoria Fed. Sav. & Loan 108 (11). I can find no such indication here. Perhaps that is why the lower courts, the Trademark Trial and Appeal Board (TTAB), the U. S. Patent and Trademark Office’s (PTO) Trademark Manual of Examining Procedure (TMEP), and leading treatises all recognize ’s con- tinued validity. See, e.g., In re Detroit Athletic Co., 03 F.3d 127, 04 (CA Fed. 2018); In re Katch, LLC, 201 WL 2560528, *10 (TTAB 201); TMEP 120.03(d) (Oct. 2018); 2 McCarthy 12:3; 4 L. Altman & M. Pollack, Callmann on Unfair Competition, Trademarks and Monopolies (4th ed., June 2020 update). Cite as: 51 U. S. (2020) 5 BREYER, J., dissenting More fundamentally, the principle is sound as a matter of law and logic. recognized that desig- nations such as “Company,” “Corp.,” and “Inc.” merely indi- cate corporate form and therefore do nothing to distinguish one firm’s goods or services from all others’. 128 U.S., at 602. It follows that the addition of such a corporate desig- nation does not “magically transform a generic name for a product or service into a trademark, thereby giving a right to exclude others.” 2 McCarthy 12:3. In other words, where a compound term |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | 2 McCarthy 12:3. In other words, where a compound term consists simply of a generic term plus a corporate designation, the whole is necessarily no greater than the sum of its parts. B This case requires us to apply these principles in the novel context of internet domain names. Respondent seeks to register a term, “Booking.com,” that consists of a generic term, “booking” (known as the second-level domain) plus “.com” (known as the top-level domain). The question at issue here is whether a term that takes the form “generic.com” is generic in the ordinary course. In my view, appending “.com” to a generic term ordinarily yields no meaning beyond that of its constituent parts. Because the term “Booking.com” is just such an ordinary “generic.com” term, in my view, it is not eligible for trademark registra- tion. Like the corporate designations at issue in a top-level domain such as “.com” has no capacity to identify and distinguish the source of goods or services. It is merely a necessary component of any web address. See 1 McCar- thy When combined with the generic name of a class of goods or services, “.com” conveys only that the owner operates a website related to such items. Just as “Wine Company” expresses the generic concept of a com- pany that deals in wine, “wine.com” connotes only a website that does the same. The same is true of “Booking.com.” The 6 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting combination of “booking” and “.com” does not serve to “iden- tify a particular characteristic or quality of some thing; it connotes the basic nature of that thing”—the hallmark of a generic term. Blinded Veterans 103 (CADC ) (Gins- burg, J. for the court) (emphasis added; internal quotation marks omitted). When a website uses an inherently distinctive second- level domain, it is obvious that adding “.com” merely de- notes a website associated with that term. Any reasonably well-informed consumer would understand that “post- it.com” is the website associated with Post-its. See Minne- sota Min. & Mfg. (Minn. 18). Likewise, “plannedparenthood.com” is obvi- ously just the website of Planned Parenthood. See Planned Parenthood Federation of Am., Inc. v. Bucci, 17 WL 33, *8 (SDNY, Mar. 24, 17). Recognizing this feature of domain names, courts generally ignore the top-level do- main when analyzing likelihood of confusion. See Brookfield Communications, (CA 1). Generic second-level domains are no different. The meaning conveyed by “Booking.com” is no more and no less than a website associated with its generic second-level do- main, “booking.” This will ordinarily be true of any generic |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | main, “booking.” This will ordinarily be true of any generic term plus “.com” combination. The term as a whole is just as generic as its constituent parts. See 1 McCarthy 2 12:3.50. There may be exceptions to this rule in rare cases where the top-level domain interacts with the generic second-level domain in such a way as to produce meaning distinct from that of the terms taken individually. See ante, at 8, n. 4. Likewise, the principles discussed above may apply differ- ently to the newly expanded universe of top-level domains, such as “.guru,” “.club,” or “.vip,” which may “conve[y] infor- mation concerning a feature, quality, or characteristic” of Cite as: 51 U. S. (2020) 7 BREYER, J., dissenting the website at issue. In re North Carolina Lottery, 866 F.3d, at ; see Brief for International Trademark Association as Amicus Curiae 10–11; TMEP 120.03(m). These scenarios are not presented here, as “Booking.com” conveys only a website associated with booking. C The majority believes that is inapposite be- cause of the nature of the domain name system. Because only one entity can hold the contractual rights to a particu- lar domain name at a time, it contends, consumers may in- fer that a “generic.com” domain name refers to some specific entity. Ante, at That fact does not distinguish A generic term may suggest that it is associated with a specific entity. That does not render it nongeneric. For example, “Wine, Inc.” implies the existence of a specific legal entity incorpo- rated under the laws of some State. Likewise, consumers may perceive “The Wine Company” to refer to some specific company rather than a genus of companies. But the addi- tion of the definite article “the” obviously does not trans- form the generic nature of that term. See In re The Com- puter Store, Inc., (TTAB 1). True, these terms do not carry the exclusivity of a domain name. But that functional exclusivity does not negate the principle animating : Terms that merely convey the nature of the producer’s business should remain free for all to use. See 128 U.S., This case illustrates the difficulties inherent in the ma- jority’s fact-specific approach. The lower courts determined (as the majority highlights), that consumers do not use the term “Booking.com” to refer to the class of hotel reservation websites in ordinary speech. 15 F.3d 181–183 (CA4 201); ante, at 7. True, few would call Travelocity a “Book- ing.com.” But literal use is not dispositive. See 15 F.3d, at 182; H. Marvin Ginn Corp. v. International Assn. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | International Assn. 8 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting of Fire Chiefs, Inc., 782 F.2d 87, 8–0 (CA Fed. 6). Consumers do not use the term “Wine, Incs.” to refer to pur- veyors of wine. Still, the term “Wine, Inc.” is generic be- cause it signifies only a company incorporated for that pur- pose. See 128 U.S., –603. Similarly, “Booking, Inc.” may not be trademarked because it signifies only a booking company. The result should be no different for “Booking.com,” which signifies only a booking website. More than that, many of the facts that the Court sup- poses may distinguish some “generic.com” marks as de- scriptive and some as generic are unlikely to vary from case to case. There will never be evidence that consumers liter- ally refer to the relevant class of online merchants as “generic.coms.” Nor are “generic.com” terms likely to ap- pear in dictionaries. And the key fact that, in the majority’s view, distinguishes this case from —that only one entity can own the rights to a particular domain name at a time—is present in every “generic.com” case. See ante, at What, then, stands in the way of automatic trademark eligibility for every “generic.com” domain? Much of the time, that determination will turn primarily on survey evi- dence, just as it did in this case. See 15 F.3d, at 183–184. However, survey evidence has limited probative value in this context. Consumer surveys often test whether consum- ers associate a term with a single source. See 2 McCarthy 12:14–12:16 (describing types of consumer surveys). But it is possible for a generic term to achieve such an associa- tion—either because that producer has enjoyed a period of exclusivity in the marketplace, e.g., 118–11 (138), or because it has invested money and effort in securing the public’s identifi- cation, e.g., 537 F.2d, at Evidence of such an association, no matter how strong, does not negate the generic nature of the term. For that reason, some courts and the TTAB have concluded that survey evidence Cite as: 51 U. S. (2020) BREYER, J., dissenting is generally of little value in separating generic from de- scriptive terms. See Schwan’s IP, 460 F.3d 71, 75–76 ; Hunt Masters, Inc. v. Landry’s Seafood Restaurant, Inc., 254–255 (CA4 2001); A. J. Canfield 808 F.2d 21, 301–303 (CA3 6); Miller Brewing 605 F.2d 0, 5 (CA7 17); In re Hikari Sales USA, Inc., 201 WL 145325, * (TTAB 201). Alt- hough this is the minority viewpoint, see 2 McCarthy 12:17.25, I nonetheless find it to be the more persuasive one. Consider |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | nonetheless find it to be the more persuasive one. Consider the survey evidence that respondent introduced below. Respondent’s survey showed that 74.8% of partici- pants thought that “Booking.com” is a brand name, whereas 23.8% believed it was a generic name. App. 66. At the same time, 33% believed that “Washingmachine.com”— which does not correspond to any company—is a brand, and 60.8% thought it was generic. What could possibly account for that difference? “Book- ing.com” is not inherently more descriptive than “Washingmachine.com” or any other “generic.com.” The survey participants who identified “Booking.com” as a brand likely did so because they had heard of it, through advertising or otherwise. If someone were to start a com- pany called “Washingmachine.com,” it could likely secure a similar level of consumer identification by investing heavily in advertising. Would that somehow transform the nature of the term itself? Surely not. This hypothetical shows that respondent’s survey tested consumers’ association of “Book- ing.com” with a particular company, not anything about the term itself. But such association does not establish that a term is nongeneric. See –11; 537 F.2d, at Under the majority’s approach, a “generic.com” mark’s el- igibility for trademark protection turns primarily on survey 10 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting data, which, as I have explained, may be an unreliable in- dicator of genericness. As the leading treatise writer in this field has observed, this approach “[d]iscard[s] the predicta- ble and clear line rule of the [PTO] and the Federal Circuit” in favor of “a nebulous and unpredictable zone of generic name and top level domain combinations that somehow be- come protectable marks when accompanied by favorable survey results.” 1 McCarthy I would heed this criticism. In my view, a term that takes the form “generic.com” is not eligible for federal trademark registra- tion, at least not ordinarily. There being no special circum- stance here, I believe that “Booking.com” is a generic term not eligible for federal registration as a trademark. II In addition to the doctrinal concerns discussed above, granting trademark protection to “generic.com” marks threatens serious anticompetitive consequences in the online marketplace. The owners of short, generic domain names enjoy all the advantages of doing business under a generic name. These advantages exist irrespective of the trademark laws. Ge- neric names are easy to remember. Because they immedi- ately convey the nature of the business, the owner needs to expend less effort and expense educating consumers. See Meystedt, What Is My URL Worth? Placing a Value on Pre- mium Domain Names, 1 Valuation Strategies 10, 12 (2015) (Meystedt) |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | mium Domain Names, 1 Valuation Strategies 10, 12 (2015) (Meystedt) (noting “ability to advertise a single URL and convey exactly what business a company operates”); cf. Folsom & Teply, Trademarked Generic Words, 8 Yale L. J. 23, 37–38 (0) (Folsom & Teply) (noting “ ‘free ad- vertising’ effect”). And a generic business name may create the impression that it is the most authoritative and trust- worthy source of the particular good or service. See Meystedt 12 (noting that generic domain names inspire “[i]nstant trust and credibility” and “[a]uthority status in Cite as: 51 U. S. (2020) 11 BREYER, J., dissenting an industry”); cf. Folsom & Teply 37, n. 7 (noting that consumers may believe that “no other product is the ‘real thing’ ”). These advantages make it harder for distinctively named businesses to compete. Owners of generic domain names enjoy additional com- petitive advantages unique to the internet—again, regard- less of trademark protection. Most importantly, domain name ownership confers automatic exclusivity. Multiple brick-and-mortar companies could style themselves “The Wine Company,” but there can be only one “wine.com.” And unlike the trademark system, that exclusivity is world- wide. Generic domains are easier for consumers to find. A consumer who wants to buy wine online may perform a key- word search and be directed to “wine.com.” Or he may simply type “wine.com” into his browser’s address bar, ex- pecting to find a website selling wine. See Meystedt 12 (not- ing “ability to rank higher on search engines” and “ability to use existing type-in traffic to generate additional sales”); see 15 F.3d, at 18 (Wynn, J., concurring in part and dissenting in part). The owner of a generic domain name enjoys these benefits not because of the quality of her prod- ucts or the goodwill of her business, but because she was fortunate (or savvy) enough to be the first to appropriate a particularly valuable piece of online real estate. Granting trademark protection to “generic.com” marks confers additional competitive benefits on their owners by allowing them to exclude others from using similar domain names. Federal registration would allow respondent to threaten trademark lawsuits against competitors using do- mains such as “Bookings.com,” “eBooking.com,” “Booker.com,” or “Bookit.com.” Respondent says that it would not do so. See Tr. of Oral Arg. 55–56. But other firms may prove less restrained. Indeed, why would a firm want to register its domain name as a trademark unless it wished to extend its area of 12 PATENT AND TRADEMARK OFFICE v. BOOKING.COM B. V. BREYER, J., dissenting exclusivity beyond the domain name itself? The domain name system, after all, already |
Justice Breyer | 2,020 | 2 | dissenting | Patent and Trademark Office v. Booking.com B. V. | https://www.courtlistener.com/opinion/4764769/patent-and-trademark-office-v-bookingcom-b-v/ | domain name itself? The domain name system, after all, already ensures that competitors cannot appropriate a business’s actual domain name. And unfair-competition law will often separately protect busi- nesses from passing off and false advertising. See Genesee Brewing 124 F.3d 7, 14 (CA2 17); 2 McCarthy 12:2. Under the majority’s reasoning, many businesses could obtain a trademark by adding “.com” to the generic name of their product (e.g., pizza.com, flowers.com, and so forth). As the internet grows larger, as more and more firms use it to sell their products, the risk of anticompetitive consequences grows. Those consequences can nudge the economy in an anticompetitive direction. At the extreme, that direction points towards one firm per product, the opposite of the competitive multifirm marketplace that our basic economic laws seek to achieve. Not to worry, the Court responds, infringement doctrines such as likelihood of confusion and fair use will restrict the scope of protection afforded to “generic.com” marks. Ante, at 12–. This response will be cold comfort to competitors of “generic.com” brands. Owners of such marks may seek to extend the boundaries of their marks through litigation, and may, at times succeed. See, e.g., 2010 WL 1150754 (CD Cal.) (owner of “Advertis- ing.com” obtained preliminary injunction against competi- tor’s use of “Advertise.com”), vacated in part, 616 F.3d 74 (CA 2010). Even if ultimately unsuccessful, the threat of costly litigation will no doubt chill others from using vari- ants on the registered mark and privilege established firms over new entrants to the market. See Brief for Electronic Frontier Foundation as Amicus Curiae 1–20. * * * In sum, the term “Booking.com” refers to an internet Cite as: 51 U. S. (2020) BREYER, J., dissenting booking service, which is the generic product that respond- ent and its competitors sell. No more and no less. The same is true of “generic.com” terms more generally. By making such terms eligible for trademark protection, I fear that to- day’s decision will lead to a proliferation of “generic.com” marks, granting their owners a monopoly over a zone of use- ful, easy-to-remember domains. This result would tend to inhibit, rather than to promote, free competition in online commerce. I respectfully dissent |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | The opinion of the Court helpfully clarifies the scope of the privilege against self-incrimination that may be asserted by a probationer when asked questions by an officer of the State. As the majority points out, two principles shape the probationer's constitutional rights. First, because probation revocation proceedings are not criminal in nature, and because the Fifth Amendment ban on compelled self-incrimination applies only to criminal proceedings, the possibility that a truthful answer to a question might result in the revocation of his probation does not accord the probationer a constitutional right to refuse to respond. Ante, at 435-436, n. 7. Second, a probationer retains the privilege enjoyed by all citizens to refuse "to answer official questions put to him in any proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings," Ante, at 426. From the foregoing propositions, it follows that the power of a State to compel a probationer to answer a given question varies depending upon the manner in which the probationer's answer might incriminate him. If a truthful response might reveal that he has violated a condition of his probation but would not subject him to criminal prosecution, the State may insist that he respond and may penalize him for refusing to do so.[1] See ante, at 435-436, n. 7. By contrast, if there is a chance that a truthful answer to a given question would expose the probationer to liability for a crime different from the crime for which he has already been convicted, he has a right to refuse to answer and the State may not attempt to coerce *442 him to forgo that right.[2] See ante, at 435. As the majority points out, if the answer to a question might lead both to criminal sanctions and to probation revocation, the State has the option of insisting that the probationer respond, in return for an express guarantee of immunity from criminal liability.[3]Ante, at 436, n. 7. Unless it exercises that option, however, the State may not interfere with the probationer's right "to remain silent unless he chooses to speak in the unfettered exercise of his own will," The flaw in the opinion of the Court lies not in its analysis of the constitutional rights available to a probationer, but in its finding that those rights were not violated in this case. The majority concludes that, "since Murphy revealed incriminating information instead of timely asserting his Fifth Amendment privilege, his disclosures were not compelled incriminations." Ante, at 440. In my view, that conclusion is inconsistent with our prior cases |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | my view, that conclusion is inconsistent with our prior cases dealing with invocations of the Fifth Amendment. For two independent reasons, Murphy's failure to claim his privilege against self-incrimination before responding to his probation officer's inquiry regarding his participation in the 1974 murder did not result in the forfeiture of his right to object to the use of his admissions in a subsequent criminal prosecution. First, the State of Minnesota *443 had threatened Murphy with a penalty for refusing to respond to questions; our decisions make clear that such a threat relieves its target of the duty to claim the benefit of the Fifth Amendment. Second, under the circumstances of this case, the State was obliged to prove that Murphy was aware of his constitutional rights and freely waived them; by showing nothing more than that Murphy failed to assert his privilege before answering, the State failed to carry its burden. I As the majority acknowledges, if an officer of a State asks a person a question under circumstances that deprive him of a " `free choice to admit, to deny, or to refuse to answer,' " and he answers the question without attempting to assert his privilege against self-incrimination, his response will be deemed to have been "compelled" and will be inadmissible as evidence against him. 424 U.S. 64, ; see ante, at 429. Our cases make clear that the State will be found to have deprived the person of such a "free choice" if it threatens him with a substantial sanction if he refuses to respond. 414 U. S., at 2-3. Two rules flow from the foregoing principle: If the State presents a person with the "Hobson's choice" of incriminating himself or suffering a penalty, and he nevertheless refuses to respond, the State cannot constitutionally make good on its threat to penalize him. at ; Sanitation 392 U.S. 20, 24 (196); 2-27 (196). Conversely, if the threatened person decides to talk instead of asserting his privilege, the State cannot use his admissions against him in a subsequent criminal prosecution. 35 U.S. 493, It might appear that these two rules would defeat one another. A person presented with what appears to be a Hobson's choice could be charged with the knowledge that, *444 under this Court's precedents, he may choose either option with impunity. His awareness that the State can use neither his silence nor his confessions against him would seem to eliminate the "compulsion" supposedly inherent in the situation.[4] More specifically, it might be argued that, because it is now settled that a person cannot be penalized for |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | is now settled that a person cannot be penalized for asserting his Fifth Amendment privilege, if he decides to talk rather than assert his constitutional right to remain silent, his statements should be deemed voluntary. This Court has consistently refused to allow the two rules to undercut each other in this way.[5] Our refusal derives from two considerations. First, many probably most of the persons threatened with sanctions if they refuse to answer official questions lack sufficient knowledge of this Court's decisions to be aware that the State's threat is idle. Second, the State's attempt to coerce self-incriminating statements by promising to penalize silence is itself constitutionally offensive, and the mere possibility that the State profited from the attempt is sufficient to forbid it to make use of the admissions it elicited. See For similar reasons, when a person who has been threatened with a penalty makes self-incriminating statements, we *445 have declined to inquire whether his decision to speak was the proximate result of the threat. In most cases, it would be difficult for the person to prove that, but for the threat, he would have held his peace and that no other intervening causes (such as pangs of conscience) induced him to confess.[6] The State, having exerted pressures repugnant to the Constitution, should not be allowed to profit from the uncertainty whether those pressures had their intended effect. Sensitivity to the foregoing concerns is reflected in our decision in The petitioners in that case had never argued that their confessions were in fact induced by the State's warning that they might be fired if they refused to answer, and the lower courts had not so found.[7] Nevertheless, the Court concluded that the petitioners' statements "were infected by the coercion inherent in this scheme of questioning and cannot be sustained as voluntary." at 497-49 In sum, the majority errs when it suggests that, to claim the benefit of the Fifth Amendment, a person who made self-incriminating statements after being threatened with a penalty if he remained silent must show that his apprehension that the State would carry out its promise was objectively "reasonable," ante, at 43. Our decisions make clear that the *446 threat alone is sufficient to render all subsequent testimony "compelled." See[] Likewise, the majority errs when it implies that a defendant has a duty to prove that the State's threat, and not some other motivation, prompted his confession, see ante, at 437-43. Under our precedents, the defendant need only prove that the State presented him with a constitutionally impermissible choice and that he thereupon |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | him with a constitutionally impermissible choice and that he thereupon incriminated himself. See When the foregoing principles are applied to this case, it becomes clear that Murphy's confession to the 1974 murder must be deemed to have been "compelled." When Murphy was placed on probation, he was given a letter setting forth the conditions under which he was discharged. The pertinent portions of the letter provide: "For the present you are only conditionally released. If you comply with the conditions of your probation you may expect to be discharged at the expiration of the period stated. If you fail to comply with the requirements you may be returned to Court at any time for further hearing or commitment. "It will be necessary for you to obey strictly the following conditions: "BE TRUTHFUL to your Probation Officer in all matters." App. to Pet. for Cert. C-33 C-34 (emphasis in original). Murphy was required to sign the letter, attesting that he had read and understood the instructions. at C-35. *447 The majority contends that the foregoing passages merely required Murphy to answer nonincriminating questions and forbade him to make false statements to his probation officer. Ante, at 437. The majority's interpretation, which is essential to its result, is simply incredible. A reasonable layman would interpret the imperative, "be truthful in all matters," as a command to answer honestly all questions presented. Any ambiguity inherent in the language of the directive is dispelled by its context. The duty to be truthful in dealings with the probation officer is listed as the first term of the conditions of probation. The critical phrase is capitalized. And the injunction is immediately preceded by an instruction "to obey strictly the following conditions."[9] In short, the State of Minnesota presented Murphy with a set of official instructions that a reasonable man would have interpreted to require him, upon pain of the revocation of his probation, to answer truthfully all questions asked by his probation officer.[10] Probation revocation surely constitutes a *44 "substantial sanction."[11] Under our precedents, therefore, by threatening Murphy with that sanction if he refused to answer, Minnesota deprived itself of constitutional authority to use Murphy's subsequent answers in a criminal prosecution against him. The majority's efforts to avoid that conclusion are unpersuasive. First, the majority faults Murphy for failing to ask his probation officer for a "clarification" of the terms of his probation. Ante, at 437. The letter by which the State informed Murphy of the terms of his probation contained no suggestion that he was entitled to such a "clarification"; on the contrary, the |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | was entitled to such a "clarification"; on the contrary, the letter informed Murphy that he was required to "obey strictly" the conditions enumerated and that failure to do so might result in his "commitment." More importantly, as indicated above, our decisions establish that a *449 person told by the State that he may be penalized for refusing to answer does not bear the responsibility to determine whether the State would or could make good on its threat. See Second, the majority relies on the absence of "direct evidence that Murphy confessed because he feared that his probation would be revoked if he remained silent." Ante, at 437. Under our precedents, no such "direct evidence" of a causal link between the threat and the response is required in order to prevent the use in a criminal prosecution of Murphy's confession. See In conclusion, because the terms of Murphy's probation deprived him of "a free choice to admit, to deny, or to refuse to answer" when his probation officer confronted him with the allegation that he had committed the 1974 murder, our decisions forbid the introduction into evidence against him of his confession. II Even if Minnesota had not impaired Murphy's freedom to respond or to refuse to respond to incriminating questions regarding the 1974 murder, I would hold his confession inadmissible because, in view of the circumstances under which he was interrogated, the State had a duty to prove that Murphy waived his privilege against self-incrimination, and it has not made such a showing. A It is now settled that, in most contexts, the privilege against self-incrimination is not self-executing. "[I]n the ordinary case," if a person questioned by an officer of the State makes damaging disclosures instead of asserting his privilege, he forfeits his right to object to subsequent use of his admissions against him. This forfeiture occurs even if the person is subject to a general legal duty to respond to the officer's questions. See United v. Washington, 431 U.S. 11 (19); ante, at 427. And it occurs regardless of whether the *450 person's failure to claim the privilege was founded upon a knowing and intelligent decision to waive his constitutional right not to answer those questions that might incriminate him. ; see also ante, at 427-42. At first blush, this harsh doctrine seems incompatible with our repeated assertions of the importance of the Fifth Amendment privilege in our constitutional scheme. Twenty years ago, we observed: "[T]he American system of criminal prosecution is accusatorial, not inquisitorial, and the Fifth Amendment privilege is its essential mainstay. Governments, state and federal, |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | Amendment privilege is its essential mainstay. Governments, state and federal, are thus constitutionally compelled to establish guilt by evidence independently and freely secured, and may not by coercion prove a charge against an accused out of his own mouth." 37 U. S., at 7- In view of our continued adherence to the foregoing principles,[12] it appears anomalous that, in most contexts, we allow governments to take advantage of witnesses' failure, sometimes as a result of ignorance or momentary inattention, to claim the benefit of the privilege in a "timely" fashion. The explanation for our seemingly callous willingness to countenance forfeitures of Fifth Amendment rights must be sought in a combination of three factors. First and most importantly, we presume that most people are aware that they need not answer an official question when a truthful answer might expose them to criminal prosecution. "At this point in our history virtually every schoolboy is familiar with the concept, if not the language," of the constitutional ban on compelled self-incrimination. We thus take for granted that, in most instances, when a person discloses damaging information *451 in response to an official inquiry, he has made an intelligent decision to waive his Fifth Amendment rights. Second, in the vast majority of situations in which an officer of the State asks a citizen a question, the officer has no reason to know that a truthful response would reveal that the citizen has committed a crime. Under such circumstances, one of the central principles underlying the Fifth Amendment that governments should not "deliberately see[k] to avoid the burdens of independent investigation by compelling self-incriminating disclosures" has little relevance. Thus, in the ordinary case, few constitutional values are threatened when the government fails to preface an inquiry with an explicit reminder that a response is not required if it might expose the respondent to prosecution. Third, a general requirement that government officials preface all questions with such reminders would be highly burdensome. Our concern with the protection of constitutional rights should not blind us to the fact that, in general, governments have the right to everyone's testimony. E. g., 40 U.S. 665, 6 A rule requiring officials, before asking citizens for information, to tell them that they need not reveal incriminating evidence would unduly impede the capacity of government to gather the data it needs to function effectively.[13] *452 In sum, a general rule requiring the prosecution, before introducing a confession, to prove that the defendant intelligently and voluntarily waived his right not to incriminate himself would protect few persons (because most know their legal |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | himself would protect few persons (because most know their legal rights), would do little to promote the values that underlie the Fifth Amendment, and would substantially impair the information-gathering capacity of government.[14] It should be apparent that these considerations do not apply with equal force in all contexts. Until today, the Court has been sensitive to variations in their relevance and strength. Accordingly, we have adhered to the general principle that a defendant forfeits his privilege if he fails to assert it before making incriminating statements only in situations implicating several of the factors that support the principle. More specifically, we have applied the principle only in cases in which at least two of the following statements have been true: (a) At the time the damaging disclosures were made, the defendant's constitutional right not to make them was clearly established. (b) The defendant was given sufficient warning that he would be asked potentially incriminating *453 questions to be able to secure legal advice and to reflect upon how he would respond. (c) The environment in which the questions were asked did not impair the defendant's ability intelligently to exercise his rights. (d) The questioner had no reason to assume that truthful responses would be self-incriminating. A review of a few of the leading cases should suffice to establish the point.[15] In United v. Kordel, the Government submitted interrogatories to the defendant in a civil suit. Though the defendant (a corporate officer) was aware that the Government was planning to bring a criminal action against him, he answered the questions instead of asserting his privilege against self-incrimination. The Court ruled that his answers could be admitted in the ensuing prosecution. In so holding, the Court emphasized the facts that established law made clear that the defendant had a constitutional right to refuse to answer the interrogatories, that he was free to consult with counsel before responding, and that nothing in the circumstances under which the questions were presented impaired the defendant's ability to appreciate the consequences of his actions. The defendant in 424 U.S. 64 was a professional gambler who made incriminating disclosures on his Form 1040 income tax returns. The Court held that he could be prosecuted partly on the basis of his admissions. Though the defendant's constitutional right to refuse to provide the requested information was perhaps less clear and straightforward than the right of the usual defendant, the Court stressed that other factors rendered inexcusable his failure to learn and assert his entitlements. Thus, *454 the Court pointed out that the defendant was free to consult with a |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | out that the defendant was free to consult with a lawyer and could fill out the tax return at his leisure in an environment of his choosing. at 65. Moreover, every taxpayer is required to fill out a Form 1040; the Government, in imposing that duty, has no reason to assume that any given taxpayer's responses will be self-incriminating.[16] Thus, the United in Garner could not be faulted for requesting the information that the defendant provided. Finally, in United v. Washington, 431 U.S. 11 (19), the Court confirmed the proposition that a witness called to testify before a grand jury must claim the benefit of the privilege or forfeit it.[17] The Court acknowledged that "the grand jury room engenders an atmosphere conducive to truthtelling" and thus might have exerted some pressure on the defendant not to assert his rights. at 17. In addition, the Court recognized that the Government was not blameless insofar as a criminal investigation had focused on the defendant and thus the questioners had ample reason to believe that truthful answers by the defendant would be self-incriminating.[1] But, the Court reasoned, the situation contained *455 other safeguards that warranted adherence to the principle that a privilege not asserted is lost. First, the defendant's right to refuse to respond had been perfectly clear; indeed, at the outset of the proceeding, the defendant had been explicitly warned of his right not to answer questions if his responses might incriminate him. at 16, 1.[19] Second, not only had the defendant been afforded an opportunity before appearing to seek legal advice, but also, at the start of the hearing, he was told that a lawyer would be provided for him if he wished and could not afford one. at 13-14. Under those circumstances, the Court concluded that it was inconceivable that the defendant's decision not to assert his privilege was uninformed or involuntary.[20] *456 By contrast, in cases in which only one of the statements enumerated above, see has been true, the Court has refused to adhere to the general rule that a privilege not claimed is lost, and instead has insisted upon a showing that the defendant made a knowing and intelligent decision to forgo his constitutional right not to incriminate himself. The classic situation of this sort is custodial interrogation. In 34 U.S. 436 the Court acknowledged that the right of a suspect in police custody not to answer questions is well established. However, we stressed that other aspects of the situation impair the ability of the suspect to exercise his rights and threaten the values underlying the Fifth |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | exercise his rights and threaten the values underlying the Fifth Amendment: the suspect is unable to consult with counsel regarding how he should respond to questions; the environment in which the questions are presented (the police station, from which the suspect is forbidden to leave) "work[s] to undermine the individual's will to resist and to compel him to speak where he would not otherwise do so freely," ; and the interrogators are well aware that truthful answers to their questions are likely to incriminate the suspect. In short, only one of the four circumstances favoring application of the general principle exist in the context of custodial interrogation. To mitigate the risk that suspects would ignorantly or involuntarily fail to claim their privilege against self-incrimination under these circumstances, the Court in Miranda imposed a requirement *457 that they be shown to have freely waived their rights after being fully apprised of them.[21] B If we remain sensitive to the concerns implicit in the foregoing pattern of cases, we should insist that the State, in the instant case, demonstrate that Murphy intelligently waived his right to remain silent. None of the four conditions that favor application of the principle that a defendant forfeits his privilege if he fails to claim it before confessing can be found in the circumstances under which Murphy was interrogated. First, the existence and scope of Murphy's constitutional right to refuse to testify were at best unclear when he appeared *45 in the probation officer's office. It is undisputed that the conditions of Murphy's probation imposed on him a duty to answer all questions presented by his probation officer except those implicating his Fifth Amendment rights.[22] What exactly those rights were was far from apparent. The majority opinion in this case constitutes the first authoritative analysis of the privilege against self-incrimination available to a probationer. The ambiguity of scope of that privilege prior to today is suggested by the fact the Solicitor General, appearing for the United as amicus curiae, seriously misconceived the rights that might have been asserted by Murphy when examined by his probation officer.[23] If, after being afforded substantial opportunity for research and reflection, the lawyers who represent the Nation err in their explication of the relevant constitutional principles, Murphy surely cannot be charged with knowledge of his entitlements.[24] *459 Second, contrary to the suggestion of the majority, ante, at 432, Murphy was given no warning that he would be asked potentially incriminating questions. The letter in which Murphy's probation officer instructed him to make an appointment informed him that the purpose of the meeting |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | an appointment informed him that the purpose of the meeting was "[t]o further discuss a treatment plan for the remainder of [his] probation." App. to Pet. for Cert. C-36. In view of the fact that Murphy remained under a legal obligation to attend treatment sessions,[25] there was no reason why he should have assumed from the letter that the officer planned to question him regarding prior criminal activity.[26] In short, prior to the moment he was asked whether he had committed the murder, Murphy had no reason to suspect that he would be obliged to respond to incriminating questions. He thus had no opportunity to consult a lawyer, or even to consider how he should proceed. Third, the environment in which the questioning occurred impaired Murphy's ability to recognize and claim his constitutional rights. It is true, as the majority points out, that the discussion between a probation officer and a probationer is likely to be less coercive and intimidating than a discussion between a police officer and a suspect in custody. Ante, at 433. But it is precisely in that fact that the danger lies. In contrast to the inherently adversarial relationship between a suspect and a policeman, the relationship between a probationer and the officer to whom he reports is likely to incorporate elements of confidentiality, even friendship. Indeed, many probation officers deliberately cultivate such bonds *460 with their charges.[27] The point should not be overstated; undoubtedly, few probationers are entirely blind to the fact that their probation officers are "peace officer[s], allied, to a greater or lesser extent, with [their] fellow peace officers." On the other hand, many probationers develop "relationship[s] of trust and cooperation" with their officers.[2] Through abuse of that trust, a probation officer can elicit admissions from a probationer that the probationer would be unlikely to make to a hostile police interrogator. The instant case aptly illustrates the danger. Before she sent her letter to Murphy asking him to make an appointment, the probation officer had decided to try to induce him to confess to the 1974 killing and to turn over that information to the police. She was aware that, if she were successful, Murphy would soon be arrested and tried for murder.[29] There was thus no prospect whatsoever that the information she elicited would be used to design a treatment program to be followed by Murphy during the remainder of his probation. Yet, in her letter, she described the purpose of the meeting as that of "discuss[ing] a treatment plan." When Murphy arrived at the meeting, she persisted in the deceit; instead |
Justice Marshall | 1,984 | 15 | dissenting | Minnesota v. Murphy | https://www.courtlistener.com/opinion/111105/minnesota-v-murphy/ | arrived at the meeting, she persisted in the deceit; instead of informing him at once what she intended to do with his anticipated confession to the 1974 murder, she told him *461 that "her main concern was to talk to him about the relationship of the prior crime and the one of which he was convicted and about his need for treatment under the circumstances." (Minn. 192). That Murphy succumbed to the deception is apparent from the sequence of his responses. Instead of denying responsibility for the 1974 killing, he admitted his guilt but sought to explain that extenuating circumstances accounted for that crime. Because those circumstances no longer existed, he argued, he had no need for further treatment. Only after Murphy had made his confession did the officer inform him of her intent to transmit that information to the police. In short, the environment in which the interview was conducted afforded the probation officer opportunities to reinforce and capitalize on Murphy's ignorance that he had a right to refuse to answer incriminating questions, and the officer deliberately and effectively exploited those opportunities. Finally, it is indisputable that the probation officer had reason to know that truthful responses to her questions would expose Murphy to criminal liability. This case does not arise out of a spontaneous confession to a routine question innocently asked by a government official. Rather, it originates in precisely the sort of situation the Fifth Amendment was designed to prevent in which a government, instead of establishing a defendant's guilt through independent investigation, seeks to induce him, against his will, to convict himself out of his own mouth. In sum, none of the factors that, in most contexts, justify application of the principle that a defendant loses his Fifth Amendment privilege unless he claims it in a timely fashion are present in this case. Accordingly, the State should be obliged to demonstrate that Murphy knew of his constitutional rights and freely waived them. Because the State has made no such showing, I would hold his confession inadmissible. *462 III The criminal justice system contains safeguards that should minimize the damage done by the Court's decision today. In the future, responsible criminal defense attorneys whose clients are given probation will inform those clients, in their final interviews, that they may disregard probation conditions insofar as those conditions are inconsistent with probationers' Fifth Amendment rights. The attorneys will then carefully instruct their clients on the nuances of those rights as we have now explicated them.[30] Armed with this knowledge, few probationers will succumb to the sort of pressure |
Justice Stewart | 1,975 | 18 | dissenting | Estelle v. Dorrough | https://www.courtlistener.com/opinion/109213/estelle-v-dorrough/ | If the shortcomings of the challenged Texas statute were only those addressed by the Court, I could join the Court's opinion. For I agree that Art. 44.09 is not rendered unconstitutional by its more lenient treatment of escaped felons under sentence of death or life imprisonment, nor by its asserted "underinclusive" inapplicability to a felon who escapes and is returned to custody involuntarily before his appeal is filed. But I think the Court has failed to come to grips with the real constitutional defect in the challenged statute. *543 In summarily reversing the judgment before us the Court relies upon decisions establishing the long-settled "practice of declining to review the convictions of escaped criminal defendants." Ante, at 537. See ; ; See also But these decisions have universally been understood to mean only that a court may properly dismiss an appeal of a fugitive convict when, and because, he is not within the custody and control of the court. Until today, this Court has never intimated that under the rule of Smith, Bonahan, and Molinaro a court might dismiss an appeal of an escaped criminal defendant at a time when he has been returned to custody, and thus to the court's power and control.[*] The rationale for the dismissal of an appeal when the appellant is at large is clearly stated in the Smith decision: "It is clearly within our discretion to refuse to hear a criminal case in error, unless the convicted party, suing out the writ, is where he can be made to respond to any judgment we may render. In this case it is admitted that the plaintiff in error *544 has escaped, and is not within the control of the court below, either actually, by being in custody, or constructively, by being out on bail. If we affirm the judgment, he is not likely to appear to submit to his sentence. If we reverse it and order a new trial, he will appear or not, as he may consider most for his interest. Under such circumstances, we are not inclined to hear and decide what may prove to be only a moot case." See also Here, as the Court notes, Dorrough was recaptured two days after his flight. And, as the Court also notes, his appeal was dismissed after his recapture. In this situation, the rule of Smith-Bonahan-Molinaro provides no support whatever for the Texas law that deprived Dorrough of his right to appeal. If the challenged statute can be sustained, it must rest upon the alternative ground advanced by the Court that, as a punitive |
Justice Stewart | 1,975 | 18 | dissenting | Estelle v. Dorrough | https://www.courtlistener.com/opinion/109213/estelle-v-dorrough/ | alternative ground advanced by the Court that, as a punitive and deterrent measure enacted in the exercise of the State's police power, it "discourages the felony of escape and encourages voluntary surrenders." But the statute imposes totally irrational punishments upon those subject to its application. If an escaped felon has been convicted in violation of law, the loss of his right to appeal results in his serving a sentence that under law was erroneously imposed. If, on the other hand, his trial was free of reversible error, the loss of his right to appeal results in no punishment at all. And those whose convictions would have been reversed if their appeals had not been dismissed serve totally disparate sentences, dependent not upon the circumstances of their escape, but upon whatever sentences may have been meted out under their invalid convictions. In my view, this random pattern of punishment cannot be considered a rational means of enforcing the State's interest *545 in deterring and punishing escapes. Cf. ; ; U. S. Dept. of A closely analogous case was considered by the Supreme Court of Idaho in In re Mallon, There the court considered a statute providing: " `. Every state prisoner confined in the state prison for a term less than for life, who escapes therefrom, is punishable by imprisonment in the state prison for a term equal in length to the term he was serving at the time of such escape; said second term of imprisonment to commence from the time he would otherwise have been discharged from said prison.' " The court concluded that the statute at issue was unconstitutional. Similarly the Supreme Court of Kansas in held unconstitutional a statute providing that upon escape a convict was to be punished by imposition of the full term of the sentence under which he had initially been imprisoned, without credit for any time served before the escape. Under these Idaho and Kansas statutes, two men escaping at the same time and in the same manner could receive wholly different sentences, not related at all to the gravity of the offense of escape. That is precisely the vice of the Texas statute at issue in the present case. I would affirm the judgment of the Court of Appeals. |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | This case requires us to decide whether the Confrontation Clause of the Sixth Amendment categorically prohibits a child witness in a child abuse case from testifying against a defendant at trial, outside the defendant's physical presence, by one-way closed circuit television. I In October 1986, a Howard County grand jury charged respondent, Sandra Ann Craig, with child abuse, first and second degree sexual offenses, perverted sexual practice, assault, and battery. The named victim in each count was a 6-year-old girl who, from August to June 1986, had attended a kindergarten and prekindergarten center owned and operated by Craig. In March before the case went to trial, the State sought to invoke a Maryland statutory procedure that permits a judge to receive, by one-way closed circuit television, the testimony of a child witness who is alleged to be a victim of child abuse.[1] To invoke the procedure, the *841 trial judge must first "determin[e] that testimony by the child victim in the courtroom will result in the child suffering serious emotional distress such that the child cannot reasonably communicate." Md. Cts. & Jud. Proc. Code Ann. 9-102(a)(1)(ii) Once the procedure is invoked, the child witness, prosecutor, and defense counsel withdraw to a separate room; the judge, jury, and defendant remain in the courtroom. The child witness is then examined and cross-examined in the separate room, while a video monitor records and displays the witness' testimony to those in the courtroom. During this time the witness cannot see the defendant. *842 The defendant remains in electronic communication with defense counsel, and objections may be made and ruled on as if the witness were testifying in the courtroom. In support of its motion invoking the one-way closed circuit television procedure, the State presented expert testimony that the named victim, as well as a number of other children who were alleged to have been sexually abused by Craig, would suffer "serious emotional distress such that [they could not] reasonably communicate," 9-102(a)(1)(ii), if required to testify in the courtroom. App. 7-59. The Maryland Court of Appeals characterized the evidence as follows: "The expert testimony in each case suggested that each child would have some or considerable difficulty in testifying in Craig's presence. For example, as to one child, the expert said that what `would cause him the most anxiety would be to testify in front of Mrs. Craig.' The child `wouldn't be able to communicate effectively.' As to another, an expert said she `would probably stop talking and she would withdraw and curl up.' With respect to two others, the testimony was that one would |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | respect to two others, the testimony was that one would `become highly agitated, that he may refuse to talk or if he did talk, that he would choose his subject regardless of the questions' while the other would `become extremely timid and unwilling to talk.'" Craig objected to the use of the procedure on Confrontation Clause grounds, but the trial court rejected that contention, concluding that although the statute "take[s] away the right of the defendant to be face to face with his or her accuser," the defendant retains the "essence of the right of confrontation," including the right to observe, cross-examine, and have the jury view the demeanor of the witness. App. 65-66. The trial court further found that, "based upon the evidence presented the testimony of each of these children in a courtroom will result in each child suffering serious emotional distress such that each of these children cannot reasonably *843 communicate." The trial court then found the named victim and three other children competent to testify and accordingly permitted them to testify against Craig via the one-way closed circuit television procedure. The jury convicted Craig on all counts, and the Maryland Court of Special Appeals affirmed the convictions, The Court of Appeals of Maryland reversed and remanded for a new trial. The Court of Appeals rejected Craig's argument that the Confrontation Clause requires in all cases a face-to-face courtroom encounter between the accused and his accusers, -1125, but concluded: "[U]nder 9-102(a)(1)(ii), the operative `serious emotional distress' which renders a child victim unable to `reasonably communicate' must be determined to arise, at least primarily, from face-to-face confrontation with the defendant. Thus, we construe the phrase `in the courtroom' as meaning, for sixth amendment and [state constitution] confrontation purposes, `in the courtroom in the presence of the defendant.' Unless prevention of `eyeball-to-eyeball' confrontation is necessary to obtain the trial testimony of the child, the defendant cannot be denied that right." Reviewing the trial court's finding and the evidence presented in support of the 9-102 procedure, the Court of Appeals held that, "as [it] read [v. Iowa, ], the showing made by the State was insufficient to reach the high threshold required by that case before 9-102 may be invoked." We granted certiorari to resolve the important Confrontation Clause issues raised by this case. *844 II The Confrontation Clause of the Sixth Amendment, made applicable to the States through the Fourteenth Amendment, provides: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the witnesses against him." We observed in that "the Confrontation Clause guarantees the |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | him." We observed in that "the Confrontation Clause guarantees the defendant a face-to-face meeting with witnesses appearing before the trier of fact." ); see also ; ; ; ; ; This interpretation derives not only from the literal text of the Clause, but also from our understanding of its historical roots. See ; ; ; cf. 3 J. Story, Commentaries on the Constitution 1785, p. 662 (1833). We have never held, however, that the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial. Indeed, in we expressly "le[ft] for another day. the question whether any exceptions exist" to the "irreducible literal meaning of the Clause: `a right to meet face to face all those who appear and give evidence at trial.'" (quoting ). The procedure challenged in involved the placement of a screen that prevented two child witnesses in a child abuse case from seeing the defendant as they testified against him at trial. See -1015. In holding that the use of this procedure violated the defendant's right to confront witnesses against him, we suggested that *845 any exception to the right "would surely be allowed only when necessary to further an important public policy"i. e., only upon a showing of something more than the generalized, "legislatively imposed presumption of trauma" underlying the statute at issue in that case. ; see also We concluded that "[s]ince there ha[d] been no individualized findings that these particular witnesses needed special protection, the judgment [in the case before us] could not be sustained by any conceivable exception." Because the trial court in this case made individualized findings that each of the child witnesses needed special protection, this case requires us to decide the question reserved in The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact. The word "confront," after all, also means a clashing of forces or ideas, thus carrying with it the notion of adversariness. As we noted in our earliest case interpreting the Clause: "The primary object of the constitutional provision in question was to prevent depositions or ex parte affidavits, such as were sometimes admitted in civil cases, being used against the prisoner in lieu of a personal examination and cross-examination of the witness in which the accused has an opportunity, not only of testing the recollection and sifting the conscience of the witness, but of compelling him to stand face to face |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | witness, but of compelling him to stand face to face with the jury in order that they may look at him, and judge by his demeanor upon the stand and the manner in which he gives his testimony whether he is worthy of belief." -243. As this description indicates, the right guaranteed by the Confrontation Clause includes not only a "personal examination," 156 U.S., but also "(1) insures that the witness will give his statements under oaththus impressing him with *846 the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury; (2) forces the witness to submit to cross-examination, the `greatest legal engine ever invented for the discovery of truth'; [and] (3) permits the jury that is to decide the defendant's fate to observe the demeanor of the witness in making his statement, thus aiding the jury in assessing his credibility." The combined effect of these elements of confrontation physical presence, oath, cross-examination, and observation of demeanor by the trier of fact serves the purposes of the Confrontation Clause by ensuring that evidence admitted against an accused is reliable and subject to the rigorous adversarial testing that is the norm of Anglo-American criminal proceedings. See ; ("[T]he mission of the Confrontation Clause is to advance a practical concern for the accuracy of the truth-determining process in criminal trials by assuring that `the trier of fact [has] a satisfactory basis for evaluating the truth of the [testimony]"); ; see also ; We have recognized, for example, that face-to-face confrontation enhances the accuracy of factfinding by reducing the risk that a witness will wrongfully implicate an innocent person. See ("It is always more difficult to tell a lie about a person `to his face' than `behind his back.'. That face-to-face presence may, unfortunately, upset the truthful rape victim or abused child; but by the same token it may confound and undo the false accuser, or *847 reveal the child coached by a malevolent adult"); ; see also 3 W. Blackstone, Commentaries *373-*374. We have also noted the strong symbolic purpose served by requiring adverse witnesses at trial to testify in the accused's presence. See ). Although face-to-face confrontation forms "the core of the values furthered by the Confrontation Clause," 399 U. S., at we have nevertheless recognized that it is not the sine qua non of the confrontation right. See ("[T]he Confrontation Clause is generally satisfied when the defense is given a full and fair opportunity to probe and expose [testimonial] infirmities [such as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | as forgetfulness, confusion, or evasion] through cross-examination, thereby calling to the attention of the factfinder the reasons for giving scant weight to the witness' testimony"); (quoting ); see also 482 U. S., -744 ; ; ; ; 5 J. Wigmore, Evidence 1395, p. 150 For this reason, we have never insisted on an actual face-to-face encounter at trial in every instance in which testimony is admitted against a defendant. Instead, we have repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite *848 the defendant's inability to confront the declarant at trial. See, e. g., ; In for example, we held that the testimony of a Government witness at a former trial against the defendant, where the witness was fully cross-examined but had died after the first trial, was admissible in evidence against the defendant at his second trial. See -. We explained: "There is doubtless reason for saying that if notes of [the witness'] testimony are permitted to be read, [the defendant] is deprived of the advantage of that personal presence of the witness before the jury which the law has designed for his protection. But general rules of law of this kind, however beneficent in their operation and valuable to the accused, must occasionally give way to considerations of public policy and the necessities of the case. To say that a criminal, after having once been convicted by the testimony of a certain witness, should go scot free simply because death has closed the mouth of that witness, would be carrying his constitutional protection to an unwarrantable extent. The law in its wisdom declares that the rights of the public shall not be wholly sacrificed in order that an incidental benefit may be preserved to the accused." We have accordingly stated that a literal reading of the Confrontation Clause would "abrogate virtually every hearsay exception, a result long rejected as unintended and too extreme." Thus, in certain narrow circumstances, "competing interests, if `closely examined,' may warrant dispensing with confrontation at trial." and citing We have recently held, *849 for example, that hearsay statements of nontestifying co-conspirators may be admitted against a defendant despite the lack of any face-to-face encounter with the accused. See ; United Given our hearsay cases, the word "confronted," as used in the Confrontation Clause, cannot simply mean face-to-face confrontation, for the Clause would then, contrary to our cases, prohibit the admission of any accusatory hearsay statement made by an absent declarant a declarant who is undoubtedly as much a "witness against" a defendant as one |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | undoubtedly as much a "witness against" a defendant as one who actually testifies at trial. In sum, our precedents establish that "the Confrontation Clause reflects a preference for face-to-face confrontation at trial," a preference that "must occasionally give way to considerations of public policy and the necessities of the case," "[W]e have attempted to harmonize the goal of the Clauseplacing limits on the kind of evidence that may be received against a defendant with a societal interest in accurate factfinding, which may require consideration of out-of-court statements." We have accordingly interpreted the Confrontation Clause in a manner sensitive to its purposes and sensitive to the necessities of trial and the adversary process. See, e. g., ; at Thus, though we reaffirm the importance of face-to-face confrontation with witnesses appearing at trial, we cannot say that such confrontation is an indispensable element of the Sixth Amendment's guarantee *850 of the right to confront one's accusers. Indeed, one commentator has noted that "[i]t is all but universally assumed that there are circumstances that excuse compliance with the right of confrontation." Graham, The Right of Confrontation and the Hearsay Rule: Sir Walter Raleigh Loses Another One, This interpretation of the Confrontation Clause is consistent with our cases holding that other Sixth Amendment rights must also be interpreted in the context of the necessities of trial and the adversary process. See, e. g., ; 480 U. S., at -54 (right to cross-examination not violated where State denied defendant access to investigative files); ; We see no reason to treat the face-to-face component of the confrontation right any differently, and indeed we think it would be anomalous to do so. That the face-to-face confrontation requirement is not absolute does not, of course, mean that it may easily be dispensed with. As we suggested in our precedents confirm that a defendant's right to confront accusatory witnesses may be satisfied absent a physical, face-to-face confrontation at trial only where denial of such confrontation is necessary to further an important public policy and only where the reliability of the testimony is otherwise assured. See (citing ; at ); *8 III Maryland's statutory procedure, when invoked, prevents a child witness from seeing the defendant as he or she testifies against the defendant at trial. We find it significant, however, that Maryland's procedure preserves all of the other elements of the confrontation right: The child witness must be competent to testify and must testify under oath; the defendant retains full opportunity for contemporaneous cross-examination; and the judge, jury, and defendant are able to view (albeit by video monitor) the demeanor |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | are able to view (albeit by video monitor) the demeanor (and body) of the witness as he or she testifies. Although we are mindful of the many subtle effects face-to-face confrontation may have on an adversary criminal proceeding, the presence of these other elements of confrontationoath, cross-examination, and observation of the witness' demeanoradequately ensures that the testimony is both reliable and subject to rigorous adversarial testing in a manner functionally equivalent to that accorded live, in-person testimony. These safeguards of reliability and adversariness render the use of such a procedure a far cry from the undisputed prohibition of the Confrontation Clause: trial by ex parte affidavit or inquisition, see 156 U. S., ; see also ("[T]he Confrontation Clause was meant to constitutionalize a barrier against flagrant abuses, trials by anonymous accusers, and absentee witnesses"). Rather, we think these elements of effective confrontation not only permit a defendant to "confound and undo the false accuser, or reveal the child coached by a malevolent adult," but may well aid a defendant in eliciting favorable testimony from the child witness. Indeed, to the extent the child witness' testimony may be said to be technically given out of court (though we do not so hold), these assurances of reliability and adversariness are far greater than those required for admission of hearsay testimony under the Confrontation Clause. See 448 *852 U. S., We are therefore confident that use of the one-way closed circuit television procedure, where necessary to further an important state interest, does not impinge upon the truth-seeking or symbolic purposes of the Confrontation Clause. The critical inquiry in this case, therefore, is whether use of the procedure is necessary to further an important state interest. The State contends that it has a substantial interest in protecting children who are allegedly victims of child abuse from the trauma of testifying against the alleged perpetrator and that its statutory procedure for receiving testimony from such witnesses is necessary to further that interest. We have of course recognized that a State's interest in "the protection of minor victims of sex crimes from further trauma and embarrassment" is a "compelling" one. Globe Newspaper ; see also New ; ; ; "[W]e have sustained legislation aimed at protecting the physical and emotional well-being of youth even when the laws have operated in the sensitive area of constitutionally protected rights." In Globe Newspaper, for example, we held that a State's interest in the physical and psychological well-being of a minor victim was sufficiently weighty to justify depriving the press and public of their constitutional right to attend criminal trials, |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | and public of their constitutional right to attend criminal trials, where the trial court makes a case-specific finding that closure of the trial is necessary to protect the welfare of the minor. See -609. This Term, in we upheld a state statute that proscribed the possession and viewing of child pornography, reaffirming that "`[i]t is evident beyond the need for elaboration that a State's interest in "safeguarding the physical and *853 psychological well-being of a minor" is "compelling.""' (quoting at ). We likewise conclude today that a State's interest in the physical and psychological well-being of child abuse victims may be sufficiently important to outweigh, at least in some cases, a defendant's right to face his or her accusers in court. That a significant majority of States have enacted statutes to protect child witnesses from the trauma of giving testimony in child abuse cases attests to the widespread belief in the importance of such a public policy. See 487 U. S., at 10-1023 ("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 ameliorative measures"). Thirty-seven States, for example, permit the use of videotaped testimony of sexually abused children;[2] 24 States have authorized the use of one-way *854 closed circuit television testimony in child abuse cases;[3] and 8 States authorize the use of a two-way system in which the child witness is permitted to see the courtroom and the defendant on a video monitor and in which the jury and judge are permitted to view the child during the testimony.[4] The statute at issue in this case, for example, was specifically intended "to safeguard the physical and psychological well-being of child victims by avoiding, or at least minimizing, the emotional trauma produced by testifying." 8, The court noted: "In Maryland, the Governor's Task Force on Child Abuse in its Interim Report documented the existence of the [child abuse] problem in our State. Interim Report at 1. It brought the picture up to date in its Final Report In the first six months of 1985, investigations of child abuse were 12 percent more numerous than during the same period of In 1979 4,615 cases of child abuse were investigated; in *8 8,321. Final Report at iii. In its Interim Report the Commission proposed legislation that, with some changes, became 9-102. The proposal was `aimed at alleviating the trauma to a child victim in the courtroom atmosphere by allowing the child's testimony to be obtained outside of the courtroom.' This |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | child's testimony to be obtained outside of the courtroom.' This would both protect the child and enhance the public interest by encouraging effective prosecution of the alleged abuser." at 7, 530 A.2d, 85. Given the State's traditional and "`transcendent interest in protecting the welfare of children,'" 390 U. S., 0 and buttressed by the growing body of academic literature documenting the psychological trauma suffered by child abuse victims who must testify in court, see Brief for American Psychological Association as Amicus Curiae 7-13; G. Goodman et al., Emotional Effects of Criminal Court Testimony on Child Sexual Assault Victims, Final Report to the National Institute of Justice we will not second-guess the considered judgment of the Maryland Legislature regarding the importance of its interest in protecting child abuse victims from the emotional trauma of testifying. Accordingly, we hold that, if the State makes an adequate showing of necessity, the state interest in protecting child witnesses from the trauma of testifying in a child abuse case is sufficiently important to justify the use of a special procedure that permits a child witness in such cases to testify at trial against a defendant in the absence of face-to-face confrontation with the defendant. The requisite finding of necessity must of course be a case-specific one: The trial court must hear evidence and determine whether use of the one-way closed circuit television procedure is necessary to protect the welfare of the particular child witness who seeks to testify. See Globe Newspaper -609 ; 487 U. S., ; ; see also The trial court must also find that the child witness would be traumatized, not by the courtroom generally, but by the presence of the defendant. See, e. g., 160 Ariz. 8, ; 210 Conn. 4 A.2d 277 ; ; Denial of face-to-face confrontation is not needed to further the state interest in protecting the child witness from trauma unless it is the presence of the defendant that causes the trauma. In other words, if the state interest were merely the interest in protecting child witnesses from courtroom trauma generally, denial of face-to-face confrontation would be unnecessary because the child could be permitted to testify in less intimidating surroundings, albeit with the defendant present. Finally, the trial court must find that the emotional distress suffered by the child witness in the presence of the defendant is more than de minimis, i. e., more than "mere nervousness or excitement or some reluctance to testify," 530 A.2d, ; see also 1-2, We need not decide the minimum showing of emotional trauma required for use of the special procedure, |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | of emotional trauma required for use of the special procedure, however, because the Maryland statute, which requires a determination that the child witness will suffer "serious emotional distress such that the child cannot reasonably communicate," 9-102(a)(1)(ii), clearly suffices to meet constitutional standards. To be sure, face-to-face confrontation may be said to cause trauma for the very purpose of eliciting truth, cf. but we think that the use of Maryland's special procedure, where necessary to further the important state interest in preventing trauma to child witnesses in child *857 abuse cases, adequately ensures the accuracy of the testimony and preserves the adversary nature of the trial. See at 8-852. Indeed, where face-to-face confrontation causes significant emotional distress in a child witness, there is evidence that such confrontation would in fact disserve the Confrontation Clause's truth-seeking goal. See, e. g., (face-to-face confrontation "may so overwhelm the child as to prevent the possibility of effective testimony, thereby undermining the truth-finding function of the trial itself"); Brief for American Psychological Association as Amicus Curiae 18-24; 484 A.2d 1, ; Goodman & Helgeson, Child Sexual Assault: Children's Memory and the Law, ; Note, Videotaping Children's Testimony: An Empirical View, In sum, we conclude that where necessary to protect a child witness from trauma that would be caused by testifying in the physical presence of the defendant, at least where such trauma would impair the child's ability to communicate, the Confrontation Clause does not prohibit use of a procedure that, despite the absence of face-to-face confrontation, ensures the reliability of the evidence by subjecting it to rigorous adversarial testing and thereby preserves the essence of effective confrontation. Because there is no dispute that the child witnesses in this case testified under oath, were subject to full cross-examination, and were able to be observed by the judge, jury, and defendant as they testified, we conclude that, to the extent that a proper finding of necessity has been made, the admission of such testimony would be consonant with the Confrontation Clause. IV The Maryland Court of Appeals held, as we do today, that although face-to-face confrontation is not an absolute constitutional requirement, it may be abridged only where there *858 is a "`case-specific finding of necessity.'" (quoting ). Given this latter requirement, the Court of Appeals reasoned that "[t]he question of whether a child is unavailable to testify should not be asked in terms of inability to testify in the ordinary courtroom setting, but in the much narrower terms of the witness's inability to testify in the presence of the accused." "[T]he determinative inquiry required to preclude face-to-face |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | of the accused." "[T]he determinative inquiry required to preclude face-to-face confrontation is the effect of the presence of the defendant on the witness or the witness's testimony." The Court of Appeals accordingly concluded that, as a prerequisite to use of the 9-102 procedure, the Confrontation Clause requires the trial court to make a specific finding that testimony by the child in the courtroom in the presence of the defendant would result in the child suffering serious emotional distress such that the child could not reasonably communicate. This conclusion, of course, is consistent with our holding today. In addition, however, the Court of Appeals interpreted our decision in to impose two subsidiary requirements. First, the court held that " 9-102 ordinarily cannot be invoked unless the child witness initially is questioned (either in or outside the courtroom) in the defendant's presence." ; see also -, 530 A.2d, Second, the court asserted that, before using the one-way television procedure, a trial judge must determine whether a child would suffer "severe emotional distress" if he or she were to testify by two-way closed circuit television. Reviewing the evidence presented to the trial court in support of the finding required under 9-102(a)(1)(ii), the Court of Appeals determined that "the finding of necessity required *859 to limit the defendant's right of confrontation through invocation of 9-102 was not made here." The Court of Appeals noted that the trial judge "had the benefit only of expert testimony on the ability of the children to communicate; he did not question any of the children himself, nor did he observe any child's behavior on the witness stand before making his ruling. He did not explore any alternatives to the use of one-way closed-circuit television." The Court of Appeals also observed that "the testimony in this case was not sharply focused on the effect of the defendant's presence on the child witnesses." Thus, the Court of Appeals concluded: "Unable to supplement the expert testimony by responses to questions put by him, or by his own observations of the children's behavior in Craig's presence, the judge made his 9-102 finding in terms of what the experts had said. He ruled that `the testimony of each of these children in a courtroom will [result] in each child suffering serious emotional distress such that each of these children cannot reasonably communicate.' He failed to find indeed, on the evidence before him, could not have found that this result would be the product of testimony in a courtroom in the defendant's presence or outside the courtroom but in the defendant's televised |
Justice O'Connor | 1,990 | 14 | majority | Maryland v. Craig | https://www.courtlistener.com/opinion/112489/maryland-v-craig/ | presence or outside the courtroom but in the defendant's televised presence. That, however, is the finding of necessity required to limit the defendant's right of confrontation through invocation of 9-102. Since that finding was not made here, and since the procedures we deem requisite to the valid use of 9-102 were not followed, the judgment of the Court of Special Appeals must be reversed and the case remanded for a new trial." The Court of Appeals appears to have rested its conclusion at least in part on the trial court's failure to observe the children's behavior in the defendant's presence and its failure to *860 explore less restrictive alternatives to the use of the one-way closed circuit television procedure. See -571, 560 A.2d, at Although we think such evidentiary requirements could strengthen the grounds for use of protective measures, we decline to establish, as a matter of federal constitutional law, any such categorical evidentiary prerequisites for the use of the one-way television procedure. The trial court in this case, for example, could well have found, on the basis of the expert testimony before it, that testimony by the child witnesses in the courtroom in the defendant's presence "will result in [each] child suffering serious emotional distress such that the child cannot reasonably communicate," 9-102(a)(1)(ii). See at 560 A.2d, at ; see also App. -25, 39, 41, 43, 44-45, 54-57. So long as a trial court makes such a case-specific finding of necessity, the Confrontation Clause does not prohibit a State from using a one-way closed circuit television procedure for the receipt of testimony by a child witness in a child abuse case. Because the Court of Appeals held that the trial court had not made the requisite finding of necessity under its interpretation of "the high threshold required by [] before 9-102 may be invoked," 316 Md., we cannot be certain whether the Court of Appeals would reach the same conclusion in light of the legal standard we establish today. We therefore vacate the judgment of the Court of Appeals of Maryland and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | The doctrine of abuse of the writ defines the circumstances in which federal courts decline to entertain a claim presented for the first time in a second or subsequent petition for a writ of habeas corpus. Petitioner Warren McCleskey in a second federal habeas petition presented a claim under that he failed to include in his first federal petitio The Court of Appeals for the Eleventh Circuit held that assertion of the Massiah claim in this manner abused the Though our analysis differs from that of the Court of Appeals, we agree that the petitioner here abused the writ, and we affirm the judgment. I McCleskey and three other men, all armed, robbed a Georgia furniture store in 178. One of the robbers shot and killed an off duty policeman who entered the store in the midst of the crime. McCleskey confessed to the police that he participated in the robbery. When on trial for both the robbery and the murder, however, McCleskey renounced his confession after taking the stand with an alibi denying all involvement. To rebut McCleskey's testimony, the prosecution called Offie Evans, who had occupied a jail cell next to McCleskey's. Evans testified that McCleskey admitted shooting the officer during the robbery and boasted that he would have shot his way out of the store even in the face of a dozen policeme Although no one witnessed the shooting, further direct and circumstantial evidence supported McCleskey's guilt of the murder. An eyewitness testified that someone ran from the store carrying a pearl-handled pistol soon after the robbery. Other witnesses testified that McCleskey earlier had stolen a pearl-handled pistol of the same caliber as the bullet that killed the officer. Ben Wright, one of McCleskey's accomplices, confirmed that during the crime McCleskey carried a white-handled handgun matching the caliber of the fatal bullet. *471 Wright also testified that McCleskey admitted shooting the officer. Finally, the prosecutor introduced McCleskey's confession of participation in the robbery. In December 178, the jury convicted McCleskey of murder and sentenced him to death. Since his conviction, McCleskey has pursued direct and collateral remedies for more than a decade. We describe this procedural history in detail, both for a proper understanding of the case and as an illustration of the context in which allegations of abuse of the writ arise. On direct appeal to the Supreme Court of Georgia, McCleskey raised six grounds of A summary of McCleskey's claims on direct appeal, as well as those he asserted in each of his four collateral proceedings, is set forth in the Appendix to this opinion, |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | proceedings, is set forth in the Appendix to this opinion, infra, at 503. The portion of the appeal relevant for our purposes involves McCleskey's attack on Evans' rebuttal testimony. McCleskey contended that the trial court "erred in allowing evidence of [McCleskey's] oral statement admitting the murder made to [Evans] in the next cell, because the prosecutor had deliberately withheld such statement" in violation of A unanimous Georgia Supreme Court acknowledged that the prosecutor did not furnish Evans' statement to the defense, but ruled that because the undisclosed evidence was not exculpatory, McCleskey suffered no material prejudice and was not denied a fair trial under 245 Ga., at 263 S.E.2d, at The court noted, moreover, that the evidence McCleskey wanted to inspect was "introduced to the jury in its entirety" through Evans' testimony, and that McCleskey's argument that "the evidence was needed in order to prepare a proper defense or impeach other witnesses ha[d] no merit because the evidence requested was statements made by [McCleskey] himself." The court rejected McCleskey's other contentions and *472 affirmed his conviction and sentence. We denied certiorari. McCleskey then initiated postconviction proceedings. In January 181, he filed a petition for state habeas corpus relief. The amended petition raised 23 challenges to his murder conviction and death sentence. See Appendix, infra, at 503. Three of the claims concerned Evans' testimony. First, McCleskey contended that the State violated his due process rights under by its failure to disclose an agreement to drop pending escape charges against Evans in return for his cooperation and testimony. App. 20. Second, McCleskey reasserted his Brady claim that the State violated his due process rights by the deliberate withholding of the statement he made to Evans while in jail. App. 21. Third, McCleskey alleged that admission of Evans' testimony violated the Sixth Amendment right to counsel as construed in On this theory, "[t]he introduction into evidence of [his] statements to [Evans], elicited in a situation created to induce [McCleskey] to make incriminating statements without the assistance of counsel, violated [McCleskey's] right to counsel under the Sixth Amendment to the Constitution of the United" App. 22. At the state habeas corpus hearing, Evans testified that one of the detectives investigating the murder agreed to speak a word on his behalf to the federal authorities about certain federal charges pending against him. The state habeas court ruled that the ex parte recommendation did not implicate Giglio, and it denied relief on all other claims. The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause, and we denied his second petition for |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | of probable cause, and we denied his second petition for a writ of certiorari. In December 181, McCleskey filed his first federal habeas corpus petition in the United District Court for the Northern District of Georgia, asserting 18 grounds for relief. *473 See Appendix, infra, at 504-505. The petition failed to allege the Massiah claim, but it did reassert the Giglio and Brady claims. Following extensive hearings in August and October the District Court held that the detective's statement to Evans was a promise of favorable treatment, and that failure to disclose the promise violated Giglio. The District Court further held that Evans' trial testimony may have affected the jury's verdict on the charge of malice murder. On these premises it granted relief. The Court of Appeals reversed the District Court's grant of the The court held that the State had not made a promise to Evans of the kind contemplated by Giglio, and that in any event the Giglio error would be -885. The court affirmed the District Court on all other grounds. We granted certiorari limited to the question whether Georgia's capital sentencing procedures were constitutional, and denied relief. McCleskey continued his postconviction attacks by filing a second state habeas corpus action in 187 which, as amended, contained five claims for relief. See Appendix, infra, at 505. One of the claims again centered on Evans' testimony, alleging that the State had an agreement with Evans that it had failed to disclose. The state trial court held a hearing and dismissed the petitio The Supreme Court of Georgia denied McCleskey's application for a certificate of probable cause. In July 187, McCleskey filed a second federal habeas action, the one we now review. In the District Court, McCleskey asserted seven claims, including a Massiah challenge to the introduction of Evans' testimony. See Appendix, infra, at McCleskey had presented a Massiah claim, it will be recalled, in his first state habeas action when he alleged that the conversation recounted by Evans at trial had been "elicited *474 in a situation created to induce" him to make an incriminating statement without the assistance of counsel. The first federal petition did not present a Massiah claim. The proffered basis for the Massiah claim in the second federal petition was a 21-page signed statement that Evans made to the Atlanta Police Department on August 1, 178, two weeks before the trial bega The department furnished the document to McCleskey one month before he filed his second federal petitio The statement related pretrial jailhouse conversations that Evans had with McCleskey and that Evans overheard between |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | that Evans had with McCleskey and that Evans overheard between McCleskey and Bernard Dupree. By the statement's own terms, McCleskey participated in all the reported jail-cell conversations. Consistent with Evans' testimony at trial, the statement reports McCleskey admitting and boasting about the murder. It also recounts that Evans posed as Ben Wright's uncle and told McCleskey he had talked with Wright about the robbery and the murder. In his second federal habeas petition, McCleskey asserted that the statement proved Evans "was acting in direct concert with State officials" during the incriminating conversations with McCleskey, and that the authorities "deliberately elicited" inculpatory admissions in violation of McCleskey's Sixth Amendment right to counsel. 1 Tr. Exh. 1, pp. 11-12. Among other responses, the State of Georgia contended that McCleskey's presentation of a Massiah claim for the first time in the second federal petition was an abuse of the 28 U.S. C. 2244(b); Rule (b) of the Rules Governing 2254 Cases. The District Court held extensive hearings in July and August 187 focusing on the arrangement the jailers had made for Evans' cell assignment in 178. Several witnesses denied that Evans had been placed next to McCleskey by desigu or instructed to overhear conversations or obtain statements from McCleskey. McCleskey's key witness was Ulysses *475 Worthy, a jailer at the Fulton County Jail during the summer of 178. McCleskey's lawyers contacted Worthy after a detective testified that the 178 Evans statement was taken in Worthy's office. The District Court characterized Worthy's testimony as "often confused and self-contradictory." No. C87-1517A App. 81. Worthy testified that someone at some time requested permission to move Evans near McCleskey's cell. He contradicted himself, however, concerning when, why, and by whom Evans was moved, and about whether he overheard investigators urging Evans to engage McCleskey in conversatio On December 23, 187, the District Court granted McCleskey relief based upon a violation of Massiah. The court stated that the Evans statement "contains strong indication of an ab initio relationship between Evans and the authorities." In addition, the court credited Worthy's testimony suggesting that the police had used Evans to obtain incriminating information from McCleskey. Based on the Evans statement and portions of Worthy's testimony, the District Court found that the jail authorities had placed Evans in the cell adjoining McCleskey's "for the purpose of gathering incriminating information"; that "Evans was probably coached in how to approach McCleskey and given critical facts unknown to the general public"; that Evans talked with McCleskey and eavesdropped on McCleskey's conversations with others; and that Evans reported what he had heard to the authorities. |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | that Evans reported what he had heard to the authorities. These findings, in the District Court's view, established a Massiah violatio In granting habeas relief, the District Court rejected the State's argument that McCleskey's assertion of the Massiah claim for the first time in the second federal petition constituted an abuse of the The court ruled that McCleskey did not deliberately abandon the claim after raising it in his first state habeas petitio "This is not a case," the District *476 Court reasoned, "where petitioner has reserved his proof or deliberately withheld his claim for a second petitio" The District Court also determined that when McCleskey filed his first federal petition, he did not know about either the 21-page Evans document or the identity of Worthy, and that the failure to discover the evidence for the first federal petition "was not due to [McCleskey's] inexcusable neglect." The Eleventh Circuit reversed, holding that the District Court abused its discretion by failing to dismiss McCleskey's Massiah claim as an abuse of the The Court of Appeals agreed with the District Court that the petitioner must "show that he did not deliberately abandon the claim and that his failure to raise it [in the first federal habeas proceeding] was not due to inexcusable neglect." Accepting the District Court's findings that at the first petition stage McCleskey knew neither the existence of the Evans statement nor the identity of Worthy, the court held that the District Court "misconstru[ed] the meaning of deliberate abandonment." Because McCleskey included a Massiah claim in his first state petition, dropped it in his first federal petition, and then reasserted it in his second federal petition, he "made a knowing choice not to pursue the claim after having raised it previously" that constituted a prima facie showing of "deliberate abandonment." The court further found the State's alleged concealment of the Evans statement irrelevant because it "was simply the catalyst that caused counsel to pursue the Massiah claim more vigorously" and did not itself "demonstrate the existence of a Massiah violatio" The court concluded that McCleskey had presented no reason why counsel could not have discovered Worthy earlier. Finally, the court ruled that McCleskey's claim did not fall within the ends of justice exception to the abuse-of-the-writ doctrine because any *477 Massiah violation that may have been committed would have been harmless 80 F.2d, -351. McCleskey petitioned this Court for a writ of certiorari, alleging numerous errors in the Eleventh Circuit's abuse-of-the-writ analysis. In our order granting the petition, we requested the parties to address the following additional question: "Must the |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | the parties to address the following additional question: "Must the State demonstrate that a claim was deliberately abandoned in an earlier petition for a writ of habeas corpus in order to establish that inclusion of that claim in a subsequent habeas petition constitutes abuse of the writ?" II The parties agree that the government has the burden of pleading abuse of the writ, and that once the government makes a proper submission, the petitioner must show that he has not abused the writ in seeking habeas relief. See Sanders v. United ; Much confusion exists though, on the standard for determining when a petitioner abuses the Although the standard is central to the proper determination of many federal habeas corpus actions, we have had little occasion to define it. Indeed, there is truth to the observation that we have defined abuse of the writ in an oblique way, through dicta and denials of certiorari petitions or stay applications. See Today we give the subject our careful consideratio We begin by tracing the historical development of some of the substantive and procedural aspects of the writ, and then consider the standard for abuse that district courts should apply in actions seeking federal habeas corpus relief. A The Judiciary Act of 178, ch. 20, 14, -82, empowered federal courts to issue writs of habeas corpus to prisoners "in custody, under or by colour of the authority of *478 the United" In the early decades of our new federal system, English common law defined the substantive scope of the Ex parte Watkins, Federal prisoners could use the writ to challenge confinement imposed by a court that lacked jurisdiction, ib or detention by the Executive without proper legal process, see Ex parte Wells, The common-law limitations on the scope of the writ were subject to various expansive forces, both statutory and judicial. See generally Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, The major statutory expansion of the writ occurred in 1867, when Congress extended federal habeas corpus to prisoners held in state custody. Act of Feb. 5, 1867, ch. 28, 1, For the most part, however, expansion of the writ has come through judicial decisionmaking. As then-JUSTICE REHNQUIST explained in the Court began by interpreting the concept of jurisdictional defect with generosity to include sentences imposed without statutory authorization, Ex parte Lange, and convictions obtained under an unconstitutional statute, Ex parte Siebold, Later, we allowed habeas relief for confinement under a state conviction obtained without adequate procedural protections for the defendant. ; Confronting this line of precedents extending the |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | the defendant. ; Confronting this line of precedents extending the reach of the writ, in "the Court openly discarded the concept of jurisdiction by then more a fiction than anything else as a touchstone of the availability of federal habeas review, and acknowledged that such review is available for claims of `disregard of the constitutional rights of the accused, and where the writ is the only effective means of preserving his rights.'" at (quoting at *4 104-105). With the exception of Fourth Amendment violations that a petitioner has been given a full and fair opportunity to litigate in state court, the writ today appears to extend to all dispositive constitutional claims presented in a proper procedural manner. See ; at One procedural requisite is that a petition not lead to an abuse of the We must next consider the origins and meaning of that rule. B At common law, res judicata did not attach to a court's denial of habeas relief. "[A] refusal to discharge on one writ [was] not a bar to the issuance of a new " 1 W. Bailey, Habeas Corpus and Special Remedies 206 (113) (citing cases). "[A] renewed application could be made to every other judge or court in the realm, and each court or judge was bound to consider the question of the prisoner's right to a discharge independently, and not to be influenced by the previous decisions refusing discharge." W. Church, Writ of Habeas Corpus 386, p. 570 (2d ed. 183) (hereinafter Church). See, e. g., Ex parte Kaine, (No. 7,57) (CC SDNY 1853); In re Kopel, The rule made sense because at common law an order denying habeas relief could not be reviewed. Church 570; L. Yackle, Postconviction Remedies 151, p. 551 ; A Note on Habeas Corpus, 65 L. Q. Rev. 30, 32 (14). Successive petitions served as a substitute for appeal. See W. Duker, A Constitutional History of Habeas Corpus 5-6 ; Church 570; As appellate review became available from a decision in habeas refusing to discharge the prisoner, courts began to question the continuing validity of the common-law rule allowing endless successive petitions. Church 602. Some courts rejected the common-law rule, holding a denial of habeas relief *4 res judicata. See, e. g., (18); ; Ex parte Heller, Others adopted a middle position between the extremes of res judicata and endless successive petitions. Justice Field's opinion on circuit in Ex parte Cuddy, exemplifies this balance. "[W]hile the doctrine of res judicata does not apply, the officers before whom the second application is made may take into consideration |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | whom the second application is made may take into consideration the fact that a previous application had been made to another officer and refused; and in some instances that fact may justify a refusal of the second. The action of the court or justice on the second application will naturally be affected to some degree by the character of the court or officer to whom the first application was made, and the fullness of the consideration given to it. In what I have said I refer, of course, to cases where a second application is made upon the same facts presented, or which might have been presented, on the first. The question is entirely different when subsequent occurring events have changed the situation of the petitioner so as in fact to present a new case for consideratio In the present application there are no new facts which did not exist when the first was presented. I am of the opinion that in such a case a second application should not be heard." Cf. Ex parte Moebus, We resolved the confusion over the continuing validity of the common-law rule, at least for federal courts, in and Wong Doo v. United These decisions reaffirmed that res judicata does not apply "to a decision on habeas corpus refusing to discharge the prisoner." *481 ; see Wong Doo v. United They recognized, however, that the availability of appellate review required a modification of the common-law rule allowing endless applications. As we explained in Salinger: "In early times when a refusal to discharge was not open to appellate review, courts and judges were accustomed to exercise an independent judgment on each successive application, regardless of the number. But when a right to an appellate review was given the reason for that practice ceased and the practice came to be materially changed" 265 U.S., -231. Relying on Justice Field's opinion in Ex parte Cuddy, we announced that second and subsequent petitions should be "disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are (a) the existence of another remedy, such as a right in ordinary course to an appellate review in the criminal case, and (b) a prior refusal to discharge on a like applicatio" Because the lower court in Salinger had not disposed of the subsequent application for habeas corpus by reliance on dismissal of the prior application, the decision did not present |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | dismissal of the prior application, the decision did not present an opportunity to apply the doctrine of abuse of the Wong Doo did present the questio There, the District Court had dismissed on res judicata grounds a second petition containing a due process claim that was raised, but not argued, in the first federal habeas petitio The petitioner "had full opportunity to offer proof of [his due process claim] at the hearing on the first petition," and he offered "[n]o reason for not presenting the proof at the outset." Wong Doo, The record of the first petition did not contain proof of the due process claim, *482 but "what [was] said of it there and in the briefs show[ed] that it was accessible all the time." In these circumstances, we upheld the dismissal of the second petitio We held that "according to a sound judicial discretion, controlling weight must have been given to the prior refusal." So while we rejected res judicata in a strict sense as a basis for dismissing a later habeas action, we made clear that the prior adjudication bore vital relevance to the exercise of the court's discretion in determining whether to consider the petitio the next decision in this line, arose in a somewhat different context from Salinger or Wong Doo. In Price, the petitioner's fourth habeas petition alleged a claim that, arguably at least, was neither the explicit basis of a former petition nor inferable from the facts earlier alleged. The District Court and Court of Appeals dismissed the petition without hearing on the sole ground that the claim was not raised in one of the earlier habeas actions. We reversed and remanded, reasoning that the dismissal "precluded a proper development of the issue of the allegedly abusive use of the habeas corpus " We explained that the State must plead an abuse of the writ with particularity, and that the burden then shifts to petitioner to show that presentation of the new claim does not constitute abuse. at The District Court erred because it dismissed the petition without affording the petitioner an opportunity to explain the basis for raising his claim late. We gave directions for the proper inquiry in the trial court. If the explanation "is inadequate, the court may dismiss the petition without further proceedings." But if a petitioner "present[s] adequate reasons for not making the allegation earlier, reasons which make it fair and just for the trial court to overlook the delay," he must be given the opportunity to develop these matters in a hearing. 1-. Without considering whether the |
Justice Kennedy | 1,991 | 4 | majority | McCleskey v. Zant | https://www.courtlistener.com/opinion/112573/mccleskey-v-zant/ | these matters in a hearing. 1-. Without considering whether the petitioner had abused the writ, we remanded the case. *483 Although Price recognized that abuse-of-the-writ principles limit a petitioner's ability to file repetitive petitions, it also contained dicta touching on the standard for abuse that appeared to contradict this point. Price stated that "the three prior refusals to discharge petitioner can have no bearing or weight on the disposition to be made of the new matter raised in the fourth petitio" This proposition ignored the significance of appellate jurisdictional changes, see at 4-4, as well as the general disfavor we had expressed in Salinger and Wong Doo toward endless repetitive petitions. It did not even comport with language in Price itself which recognized that in certain circumstances new claims raised for the first time in a second or subsequent petition should not be entertained. As will become clear, the quoted portion of Price has been ignored in our later decisions. One month after the Price decision, Congress enacted legislation, which for the first time addressed the issue of repetitive federal habeas corpus petitions: "No circuit or district judge shall be required to entertain an application for a writ of habeas corpus to inquire into the detention of a person pursuant to a judgment of a court of the United or of any State, if it appears that the legality of such detention has been determined by a judge or court of the United on a prior application for a writ of habeas corpus and the petition presents no new ground not theretofore presented and determined, and the judge or court is satisfied that the ends of justice will not be served by such inquiry." 28 U.S. C. 2244 (164 ed.). Because 2244 allowed a district court to dismiss a successive petition that "present[ed] no new ground not theretofore presented and determined," one might have concluded, by negative implication, that Congress denied permission to dismiss any petition that alleged new grounds for relief. Such an interpretation would have superseded the judicial principles *484 recognizing that claims not raised or litigated in a prior petition could, when raised in a later petition, constitute abuse. But the Reviser's Note to the 148 statute made clear that as a general matter Congress did not intend the new section to disrupt the judicial evolution of habeas principles, 28 U.S. C. 2244 (164 ed.) (Reviser's Note), and we confirmed in Sanders v. United -12, that Congress' silence on the standard for abuse of the writ involving a new claim was "not intended to foreclose judicial application |
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