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Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | will resolve an issue that is central to the valid ity of each one of the claims in one stroke. “What matters to class certification is not the rais ing of common ‘questions’—even in droves—but, rather the capacity of a classwide proceeding to gen —————— con, In light of our disposition of the commonality question, however, it is unnecessary to resolve whether respondents have satisfied the typicality and adequate representation requirements of Rule 23(a). 10 WAL-MART STORES, INC. v. DUKES Opinion of the Court erate common answers apt to drive the resolution of the litigation. Dissimilarities within the proposed class are what have the potential to impede the gen eration of common answers.” Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively dem onstrate his compliance with the Rule—that is, he must be prepared to prove that there are in fact sufficiently nu merous parties, common questions of law or fact, etc. We recognized in that “sometimes it may be necessary for the court to probe behind the pleadings before coming to rest on the certification question,” and that certification is proper only if “the trial court is satis fied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied,” ; see (“[A]ctual, not presumed, conformance with Rule 23(a) remains indispensable”). Frequently that “rigorous analysis” will entail some overlap with the merits of the plaintiff ’s underlying claim. That cannot be helped. “ ‘[T]he class determination generally involves considera tions that are enmeshed in the factual and legal issues comprising the plaintiff ’s cause of action.’ ” (quoting Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978); some internal quotation marks omitted).6 —————— 6 A statement in one of our prior cases, 417 U.S. is sometimes mistakenly cited to the con trary: “We find nothing in either the language or history of Rule 23 that gives a court any authority to conduct a preliminary inquiry into the merits of a suit in order to determine whether it may be maintained as a class action.” But in that case, the judge had conducted a preliminary inquiry into the merits of a suit, not in order to determine the propriety of certification under Rules 23(a) and (b) (he had already done that, see ), but in order to shift the cost of notice required by Rule 23(c)(2) from the plaintiff to the defendants. To the extent the quoted statement goes beyond the permissibility of a merits inquiry for any other pretrial purpose, it is the purest dictum and is contradicted |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | pretrial purpose, it is the purest dictum and is contradicted by our other cases. Cite as: 564 U. S. (2011) 11 Opinion of the Court Nor is there anything unusual about that consequence: The necessity of touching aspects of the merits in order to resolve preliminary matters, e.g., jurisdiction and venue, is a familiar feature of litigation. See (Easterbrook, J.). In this case, proof of commonality necessarily overlaps with respondents’ merits contention that Wal-Mart en gages in a pattern or practice of discrimination.7 That is so because, in resolving an individual’s Title VII claim, the crux of the inquiry is “the reason for a particular employ ment decision,” Here respondents wish —————— Perhaps the most common example of considering a merits question at the Rule 23 stage arises in class-action suits for securities fraud. Rule 23(b)(3)’s requirement that “questions of law or fact common to class members predominate over any questions affecting only individ ual members” would often be an insuperable barrier to class certifica tion, since each of the individual investors would have to prove reliance on the alleged misrepresentation. But the problem dissipates if the plaintiffs can establish the applicability of the so-called “fraud on the market” presumption, which says that all traders who purchase stock in an efficient market are presumed to have relied on the accuracy of a company’s public statements. To invoke this presumption, the plain tiffs seeking 23(b)(3) certification must prove that their shares were traded on an efficient market, Erica P. John Fund, Inc. v. Halliburton Co., 563 U. S. (2011) (slip op., at 5), an issue they will surely have to prove again at trial in order to make out their case on the merits. 7 In a pattern-or-practice case, the plaintiff tries to “establish by a preponderance of the evidence that discrimination was the com pany’s standard operating procedure[,] the regular rather than the unusual practice.” ; see also If he succeeds, that showing will support a rebuttable inference that all class members were victims of the discriminatory practice, and will justify “an award of prospective relief,” such as “an injunctive order against the continuation of the discriminatory practice.” 12 WAL-MART STORES, INC. v. DUKES Opinion of the Court to sue about literally millions of employment decisions at once. Without some glue holding the alleged reasons for all those decisions together, it will be impossible to say that examination of all the class members’ claims for relief will produce a common answer to the crucial question why was I disfavored. B This Court’s opinion in describes how the com monality issue |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | This Court’s opinion in describes how the com monality issue must be approached. There an employee who claimed that he was deliberately denied a promotion on account of race obtained certification of a class compris ing all employees wrongfully denied promotions and all applicants wrongfully denied We rejected that composite class for lack of commonality and typicality, explaining: “Conceptually, there is a wide gap between (a) an in dividual’s claim that he has been denied a promotion [or higher pay] on discriminatory grounds, and his otherwise unsupported allegation that the company has a policy of discrimination, and (b) the existence of a class of persons who have suffered the same injury as that individual, such that the individual’s claim and the class claim will share common questions of law or fact and that the individual’s claim will be typi cal of the class claims.” –158. suggested two ways in which that conceptual gap might be bridged. First, if the employer “used a biased testing procedure to evaluate both applicants for employ ment and incumbent employees, a class action on behalf of every applicant or employee who might have been preju diced by the test clearly would satisfy the commonality and typicality requirements of Rule 23(a).” n. 15. Second, “[s]ignificant proof that an employer oper ated under a general policy of discrimination conceivably Cite as: 564 U. S. (2011) 13 Opinion of the Court could justify a class of both applicants and employees if the discrimination manifested itself in hiring and pro motion practices in the same general fashion, such as through entirely subjective decisionmaking processes.” We think that statement precisely describes respon dents’ burden in this case. The first manner of bridging the gap obviously has no application here; Wal-Mart has no testing procedure or other companywide evaluation method that can be charged with bias. The whole point of permitting discretionary decisionmaking is to avoid evalu ating employees under a common standard. The second manner of bridging the gap requires “signifi cant proof ” that Wal-Mart “operated under a general policy of discrimination.” That is entirely absent here. Wal-Mart’s announced policy forbids sex discrimination, see App. 7a–1596a, and as the District Court recog nized the company imposes penalties for denials of equal employment opportunity, 222 F. R. D., at 154. The only evidence of a “general policy of discrimination” respon dents produced was the testimony of Dr. William Bielby, their sociological expert. Relying on “social framework” analysis, Bielby testified that Wal-Mart has a “strong corporate culture,” that makes it “ ‘vulnerable’ ” to “gender bias.” He could not, however, “determine |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | ‘vulnerable’ ” to “gender bias.” He could not, however, “determine with any specificity how regularly stereotypes play a meaning ful role in employment decisions at Wal-Mart. At his deposition Dr. Bielby conceded that he could not calcu late whether 0.5 percent or 95 percent of the employment decisions at Wal-Mart might be determined by stereotyped thinking.” 222 F. R. D. 189, 192 (ND Cal. 2004). The parties dispute whether Bielby’s testimony even met the standards for the admission of expert testimony under Federal Rule of Civil Procedure 702 and our Daubert case, see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 14 WAL-MART STORES, INC. v. DUKES Opinion of the Court U. S. 579 (1993).8 The District Court concluded that Daubert did not apply to expert testimony at the certifica tion stage of class-action 222 F. R. D., at 191. We doubt that is so, but even if properly considered, Bielby’s testimony does nothing to advance respondents’ case. “[W]hether 0.5 percent or 95 percent of the employ ment decisions at Wal-Mart might be determined by stereotyped thinking” is the essential question on which respondents’ theory of commonality depends. If Bielby admittedly has no answer to that question, we can safely disregard what he has to say. It is worlds away from “significant proof ” that Wal-Mart “operated under a gen eral policy of discrimination.” C The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s “policy” of allowing discretion by local supervisors over employment matters. On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices. It is also a very common —————— 8 Bielby’s conclusions in this case have elicited criticism from the very scholars on whose conclusions he relies for his social-framework analy sis. See Monahan, Walker, & Mitchell, Contextual Evidence of Gender Discrimination: The Ascendance of “Social Frameworks,” 94 Va. L. Rev. 1715, 1747 (2008) (“[Bielby’s] research into conditions and be havior at Wal-Mart did not meet the standards expected of social scientific research into stereotyping and discrimination”); 1747 (“[A] social framework necessarily contains only general state ments about reliable patterns of relations among variables and goes no further. Dr. Bielby claimed to present a social framework, but he testified about social facts specific to Wal-Mart”); at 1747–1748 (“Dr. Bielby’s report provides no verifiable method for measuring and testing any of the variables that were crucial to his conclusions and reflects nothing more than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | than Dr. Bielby’s ‘expert judgment’ about how general stereotyping research applied to all managers across all of Wal- Mart’s stores nationwide for the multi-year class period”). Cite as: 564 U. S. (2011) 15 Opinion of the Court and presumptively reasonable way of doing business—one that we have said “should itself raise no inference of dis criminatory conduct,” To be sure, we have recognized that, “in appropriate cases,” giving discretion to lower-level supervisors can be the basis of Title VII liability under a disparate-impact theory—since “an employer’s undisciplined system of subjective decisionmaking [can have] precisely the same effects as a system pervaded by impermissible intentional discrimination.” at –991. But the recognition that this type of Title VII claim “can” exist does not lead to the conclusion that every employee in a company using a system of discretion has such a claim in common. To the contrary, left to their own devices most managers in any corporation—and surely most managers in a corporation that forbids sex discrimination—would select sex-neutral, performance-based criteria for hiring and promotion that produce no actionable disparity at all. Others may choose to reward various attributes that produce disparate impact— such as scores on general aptitude tests or educational achievements, see Griggs v. Duke Power Co., 401 U.S. 424, 431–432 (1971). And still other managers may be guilty of intentional discrimination that produces a sex based disparity. In such a company, demonstrating the invalidity of one manager’s use of discretion will do noth ing to demonstrate the invalidity of another’s. A party seeking to certify a nationwide class will be unable to show that all the employees’ Title VII claims will in fact depend on the answers to common questions. Respondents have not identified a common mode of exer cising discretion that pervades the entire company—aside from their reliance on Dr. Bielby’s social frameworks analy sis that we have rejected. In a company of Wal-Mart’s size and geographical scope, it is quite unbelievable that all managers would exercise their discretion in a common way 16 WAL-MART STORES, INC. v. DUKES Opinion of the Court without some common direction. Respondents attempt to make that showing by means of statistical and anecdotal evidence, but their evidence falls well short. The statistical evidence consists primarily of regression analyses performed by Dr. Richard Drogin, a statistician, and Dr. Marc Bendick, a labor economist. Drogin con ducted his analysis region-by-region, comparing the num ber of women promoted into management positions with the percentage of women in the available pool of hourly workers. After considering regional and national data, Drogin concluded that “there are statistically |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | regional and national data, Drogin concluded that “there are statistically significant disparities between men and women at Wal-Mart [and] these disparities can be explained only by gender discrimination.” (internal quotation marks omitted). Bendick compared work-force data from Wal-Mart and competitive retailers and concluded that Wal-Mart “promotes a lower percentage of women than its competitors.” Even if they are taken at face value, these studies are insufficient to establish that respondents’ theory can be proved on a classwide basis. In we held that one named plaintiff ’s experience of discrimination was insuffi cient to infer that “discriminatory treatment is typical of [the employer’s employment] practices.” A similar failure of inference arises here. As Judge Ikuta observed in her dissent, “[i]nformation about disparities at the regional and national level does not establish the existence of disparities at individual stores, let alone raise the inference that a company-wide policy of discrimination is implemented by discretionary decisions at the store and district level.” A regional pay disparity, for example, may be attributable to only a small set of Wal-Mart stores, and cannot by itself establish the uni form, store-by-store disparity upon which the plaintiffs’ theory of commonality depends. There is another, more fundamental, respect in which Cite as: 564 U. S. (2011) 17 Opinion of the Court respondents’ statistical proof fails. Even if it established (as it does not) a pay or promotion pattern that differs from the nationwide figures or the regional figures in all of Wal-Mart’s 3,400 stores, that would still not demonstrate that commonality of issue exists. Some managers will claim that the availability of women, or qualified women, or interested women, in their stores’ area does not mirror the national or regional statistics. And almost all of them will claim to have been applying some sex-neutral, performance-based criteria—whose nature and effects will differ from store to store. In the landmark case of ours which held that giving discretion to lower-level su pervisors can be the basis of Title VII liability under a disparate-impact theory, the plurality opinion conditioned that holding on the corollary that merely proving that the discretionary system has produced a racial or sexual disparity is not enough. “[T]he plaintiff must begin by identifying the specific employment practice that is chal lenged.” ; accord, Wards Cove Packing (approv ing that statement), superseded by statute on other grounds, 42 U.S. C. That is all the more necessary when a class of plaintiffs is sought to be certi fied. Other than the bare existence of delegated discre tion, respondents have identified no “specific employment practice”—much less one that ties all |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | identified no “specific employment practice”—much less one that ties all their 1.5 million claims together. Merely showing that Wal-Mart’s policy of discretion has produced an overall sex-based disparity does not suffice. Respondents’ anecdotal evidence suffers from the same defects, and in addition is too weak to raise any inference that all the individual, discretionary personnel decisions are discriminatory. In 431 U.S. 324 in addition to substantial statistical evidence of company-wide discrimination, the Government (as plaintiff) produced about 40 specific accounts of racial 18 WAL-MART STORES, INC. v. DUKES Opinion of the Court discrimination from particular individuals. See at 338. That number was significant because the company involved had only 6,472 employees, of whom 571 were minorities, and the class itself consisted of around 334 persons, United overruled on other grounds, The 40 anecdotes thus repre sented roughly one account for every eight members of the Moreover, the Court of Appeals noted that the anecdotes came from individuals “spread throughout” the company who “for the most part” worked at the company’s operational centers that employed the largest numbers of the class and n. 30. Here, by contrast, respondents filed some 120 affidavits reporting experiences of discrimination—about 1 for every 12,500 class members—relating to only some 235 out of Wal- Mart’s 3,400 (Ikuta, J., dissent ing). More than half of these reports are concentrated in only six States (Alabama, California, Florida, Missouri, Texas, and Wisconsin); half of all States have only one or two anecdotes; and 14 States have no anecdotes about Wal-Mart’s operations at all. at 634–635, and n. 10. Even if every single one of these accounts is true, that would not demonstrate that the entire company “oper ate[s] under a general policy of discrimination,” n. 15, which is what respondents must show to certify a companywide 9 The dissent misunderstands the nature of the foregoing —————— 9 The dissent says that we have adopted “a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the ” Post, at 5, n. 4 (GINSBURG, J., concurring in part and dissenting in part). That is not quite accurate. A discrimination claimant is free to supply as few anecdotes as he wishes. But when the claim is that a company operates under a gen eral policy of discrimination, a few anecdotes selected from literally millions of employment decisions prove nothing at all. Cite as: 564 U. S. (2011) 19 Opinion of the Court analysis. It criticizes our focus on the dissimilarities be tween the putative class members on the ground that we have |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | the putative class members on the ground that we have “blend[ed]” Rule 23(a)(2)’s commonality require ment with Rule 23(b)(3)’s inquiry into whether common questions “predominate” over individual ones. See post, at 8–10 (GINSBURG, J., concurring in part and dissenting in part). That is not so. We quite agree that for purposes of Rule 23(a)(2) “ ‘[e]ven a single [common] question’ ” will do, post, at 10, n. 9 ). We consider dissimilarities not in order to determine (as Rule 23(b)(3) requires) whether common questions predominate, but in order to determine (as Rule 23(a)(2) requires) whether there is “[e]ven a single [common] question.” And there is not here. Because respondents provide no convincing proof of a companywide discriminatory pay and promotion policy, we have concluded that they have not established the existence of any common question.10 In sum, we agree with Chief Judge Kozinski that the members of the class: “held a multitude of different jobs, at different levels of Wal-Mart’s hierarchy, for variable lengths of time, in 3,400 stores, sprinkled across 50 states, with a ka leidoscope of supervisors (male and female), subject to a variety of regional policies that all differed. Some thrived while others did poorly. They have little in common but their sex and this lawsuit.” 603 F. 3d, —————— 10 For this reason, there is no force to the dissent’s attempt to distin guish on the ground that in that case there were “ ‘no common questions of law or fact’ between the claims of the lead plaintiff and the applicant class ” post, at 9, n. 7 (quoting (Burger, C. J., concurring in part and dissenting in part)). Here also there is nothing to unite all of the plaintiffs’ claims, since (contrary to the dissent’s contention, post, at 9, n. 7), the same employment prac tices do not “touch and concern all members of the ” 20 WAL-MART STORES, INC. v. DUKES Opinion of the Court at 652 (dissenting opinion). III We also conclude that respondents’ claims for backpay were improperly certified under Federal Rule of Civil Procedure 23(b)(2). Our opinion in Ticor Title Ins. Co. v. Brown, expressed serious doubt about whether claims for monetary relief may be certified under that provision. We now hold that they may not, at least where (as here) the monetary relief is not incidental to the injunctive or declaratory relief. A Rule 23(b)(2) allows class treatment when “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” One possible reading of this provision is that it applies only to requests for such injunctive or declaratory relief and does not authorize the class certification of monetary claims at all. We need not reach that broader question in this case, because we think that, at a minimum, claims for individualized relief (like the backpay at issue here) do not satisfy the Rule. The key to the (b)(2) class is “the indivisible nature of the injunctive or declaratory remedy warranted—the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” 84 N. Y. U. L. Rev., In other words, Rule 23(b)(2) applies only when a single injunction or declaratory judgment would provide relief to each member of the It does not authorize class certifica tion when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant. Similarly, it does not authorize class certi fication when each class member would be entitled to an Cite as: 564 U. S. (2011) 21 Opinion of the Court individualized award of monetary damages. That interpretation accords with the history of the Rule. Because Rule 23 “stems from equity practice” that pre dated its codification, in determining its meaning we have previously looked to the historical models on which the Rule was based, v. Fibreboard Corp., 527 U.S. 815, 841–845 (1999). As we observed in “[c]ivil rights cases against parties charged with unlawful, class based discrimination are prime examples” of what (b)(2) is meant to In particular, the Rule reflects a series of decisions involving challenges to racial segregation—conduct that was remedied by a single classwide order. In none of the cases cited by the Advisory Committee as examples of (b)(2)’s antecedents did the plaintiffs combine any claim for individualized relief with their classwide injunction. See Advisory Committee’s Note, 39 F. R. D. 69, 102 (1966) (citing cases); e.g., Potts v. Flax, ; Brunson v. Board of Trustees of Univ. of School Dist. No. 1, Clarendon Cty., ; Frasier v. Board of Trustees of N.C., (NC 1955) (three-judge court), aff’d, Permitting the combination of individualized and class wide relief in a (b)(2) class is also inconsistent with the structure of Rule 23(b). Classes certified under (b)(1) and (b)(2) share the most traditional justifications for class treatment—that individual adjudications would be impos sible or unworkable, as in a (b)(1) class,11 or that the relief —————— 11 |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | in a (b)(1) class,11 or that the relief —————— 11 Rule 23(b)(1) applies where separate actions by or against individ ual class members would create a risk of “establish[ing] incompatible standards of conduct for the party opposing the class,” Rule 23(b)(1)(A), such as “where the party is obliged by law to treat the members of the class alike,” or where individual adjudications “as a practical matter, would be dispositive of the interests of the other members not parties to the 22 WAL-MART STORES, INC. v. DUKES Opinion of the Court sought must perforce affect the entire class at once, as in a (b)(2) For that reason these are also mandatory classes: The Rule provides no opportunity for (b)(1) or (b)(2) class members to opt out, and does not even oblige the District Court to afford them notice of the action. Rule 23(b)(3), by contrast, is an “adventuresome innovation” of the 1966 amendments, (inter nal quotation marks omitted), framed for situations “in which ‘class-action treatment is not as clearly called for’,” (quoting Advisory Committee’s Notes, 28 U.S. C. App., p. 697 (1994 ed.)). It allows class certifica tion in a much wider set of circumstances but with greater procedural protections. Its only prerequisites are that “the questions of law or fact common to class members pre dominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Rule 23(b)(3). And unlike (b)(1) and (b)(2) classes, the (b)(3) class is not mandatory; class members are entitled to receive “the best notice that is practicable under the circumstances” and to withdraw from the class at their option. See Rule 23(c)(2)(B). Given that structure, we think it clear that individ ualized monetary claims belong in Rule 23(b)(3). The procedural protections attending the (b)(3) class— predominance, superiority, mandatory notice, and the right to opt out—are missing from (b)(2) not because the Rule considers them unnecessary, but because it considers them unnecessary to a (b)(2) When a class seeks an indivisible injunction benefitting all its members at once, there is no reason to undertake a case-specific inquiry into —————— individual adjudications or would substantially impair or impede their ability to protect their interests,” Rule 23(b)(1)(B), such as in “ ‘limited fund’ cases, in which numerous persons make claims against a fund insufficient to satisfy all claims,” at Cite as: 564 U. S. (2011) 23 Opinion of the Court whether class issues predominate or whether class action is a superior method of adjudicating the dispute. Pre dominance and superiority are self-evident. But |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | adjudicating the dispute. Pre dominance and superiority are self-evident. But with respect to each class member’s individualized claim for money, that is not so—which is precisely why (b)(3) re quires the judge to make findings about predominance and superiority before allowing the Similarly, (b)(2) does not require that class members be given notice and opt- out rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the class is mandatory, and that depriving people of their right to sue in this manner complies with the Due Process Clause. In the context of a class action predominantly for money damages we have held that absence of notice and opt-out violates due process. See Phillips Petroleum While we have never held that to be so where the monetary claims do not predominate, the serious possibility that it may be so provides an addi tional reason not to read Rule 23(b)(2) to include the monetary claims here. B Against that conclusion, respondents argue that their claims for backpay were appropriately certified as part of a class under Rule 23(b)(2) because those claims do not “predominate” over their requests for injunctive and de claratory relief. They rely upon the Advisory Committee’s statement that Rule 23(b)(2) “does not extend to cases in which the appropriate final relief relates exclusively or predominantly to money damages.” 39 F. R. D., at 102 (emphasis added). The negative implication, they argue, is that it does extend to cases in which the appropriate final relief relates only partially and nonpredominantly to money damages. Of course it is the Rule itself, not the Advisory Committee’s description of it, that governs. And a mere negative inference does not in our view suffice to 24 WAL-MART STORES, INC. v. DUKES Opinion of the Court establish a disposition that has no basis in the Rule’s text, and that does obvious violence to the Rule’s structural features. The mere “predominance” of a proper (b)(2) injunctive claim does nothing to justify elimination of Rule 23(b)(3)’s procedural protections: It neither establishes the superiority of class adjudication over individual adjudica tion nor cures the notice and opt-out problems. We fail to see why the Rule should be read to nullify these protec tions whenever a plaintiff class, at its option, combines its monetary claims with a request—even a “predominating request”—for an injunction. Respondents’ predominance test, moreover, creates perverse incentives for class representatives to place at risk potentially valid claims for monetary relief. In this case, for example, the named plaintiffs declined to include employees’ claims for compensatory damages in their complaint. That strategy |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | employees’ claims for compensatory damages in their complaint. That strategy of including only backpay claims made it more likely that monetary relief would not “pre dominate.” But it also created the possibility (if the pre dominance test were correct) that individual class mem bers’ compensatory-damages claims would be precluded by litigation they had no power to hold themselves apart from. If it were determined, for example, that a particular class member is not entitled to backpay because her denial of increased pay or a promotion was not the product of discrimination, that employee might be collaterally es topped from independently seeking compensatory dam ages based on that same denial. That possibility under scores the need for plaintiffs with individual monetary claims to decide for themselves whether to tie their fates to the class representatives’ or go it alone—a choice Rule 23(b)(2) does not ensure that they have. The predominance test would also require the District Court to reevaluate the roster of class members continu ally. The Ninth Circuit recognized the necessity for this when it concluded that those plaintiffs no longer employed Cite as: 564 U. S. (2011) 25 Opinion of the Court by Wal-Mart lack standing to seek injunctive or declara tory relief against its employment practices. The Court of Appeals’ response to that difficulty, however, was not to eliminate all former employees from the certified class, but to eliminate only those who had left the company’s employ by the date the complaint was filed. That solution has no logical connection to the problem, since those who have left their Wal-Mart jobs since the complaint was filed have no more need for prospective relief than those who left beforehand. As a consequence, even though the valid ity of a (b)(2) class depends on whether “final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole,” Rule 23(b)(2) (emphasis added), about half the members of the class approved by the Ninth Circuit have no claim for injunctive or declara tory relief at all. Of course, the alternative (and logical) solution of excising plaintiffs from the class as they leave their employment may have struck the Court of Appeals as wasteful of the District Court’s time. Which indeed it is, since if a backpay action were properly certified for class treatment under (b)(3), the ability to litigate a plain tiff ’s backpay claim as part of the class would not turn on the irrelevant question whether she is still employed at Wal-Mart. What follows from this, however, is not that some arbitrary limitation on class membership should |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | is not that some arbitrary limitation on class membership should be imposed but that the backpay claims should not be certi fied under Rule 23(b)(2) at all. Finally, respondents argue that their backpay claims are appropriate for a (b)(2) class action because a backpay award is equitable in nature. The latter may be true, but it is irrelevant. The Rule does not speak of “equitable” remedies generally but of injunctions and declaratory judgments. As Title VII itself makes pellucidly clear, backpay is neither. See 42 U.S. C. and (ii) (distinguishing between declaratory and injunc tive relief and the payment of “backpay,” see 26 WAL-MART STORES, INC. v. DUKES Opinion of the Court 5(g)(2)(A)). C In (CA5 1998), the Fifth Circuit held that a (b)(2) class would permit the certification of monetary relief that is “inciden tal to requested injunctive or declaratory relief,” which it defined as “damages that flow directly from liability to the class as a whole on the claims forming the basis of the injunctive or declaratory relief.” In that court’s view, such “incidental damage should not require additional hearings to resolve the disparate merits of each individual’s case; it should neither introduce new substantial legal or factual issues, nor entail complex individualized determinations.” We need not decide in this case whether there are any forms of “incidental” monetary relief that are consis tent with the interpretation of Rule 23(b)(2) we have announced and that comply with the Due Process Clause. Respondents do not argue that they can satisfy this stan dard, and in any event they cannot. Contrary to the Ninth Circuit’s view, Wal-Mart is enti tled to individualized determinations of each employee’s eligibility for backpay. Title VII includes a detailed reme dial scheme. If a plaintiff prevails in showing that an employer has discriminated against him in violation of the statute, the court “may enjoin the respondent from en gaging in such unlawful employment practice, and order such affirmative action as may be appropriate, [including] reinstatement or hiring of employees, with or without backpay or any other equitable relief as the court deems appropriate.” 5(g)(1). But if the employer can show that it took an adverse employment action against an employee for any reason other than discrimina tion, the court cannot order the “hiring, reinstatement, or promotion of an individual as an employee, or the payment to him of any backpay.” 5(g)(2)(A). Cite as: 564 U. S. (2011) 27 Opinion of the Court We have established a procedure for trying pattern-or practice cases that gives effect to these statutory require ments. When the plaintiff seeks individual |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | to these statutory require ments. When the plaintiff seeks individual relief such as reinstatement or backpay after establishing a pattern or practice of discrimination, “a district court must usually conduct additional proceedings to determine the scope of individual relief.” 431 U.S., At this phase, the burden of proof will shift to the company, but it will have the right to raise any individual affirmative defenses it may have, and to “demonstrate that the indi vidual applicant was denied an employment opportunity for lawful reasons.” The Court of Appeals believed that it was possible to replace such proceedings with Trial by Formula. A sample set of the class members would be selected, as to whom liability for sex discrimination and the backpay owing as a result would be determined in depositions supervised by a master. The percentage of claims determined to be valid would then be applied to the entire remaining class, and the number of (presumptively) valid claims thus derived would be multiplied by the average backpay award in the sample set to arrive at the entire class recovery—without further individualized –627. We disapprove that novel project. Because the Rules Enabling Act forbids interpreting Rule 23 to “abridge, enlarge or modify any substantive right,” 28 U.S. C. see a class cannot be certified on the premise that Wal-Mart will not be entitled to litigate its statutory defenses to individual claims. And because the necessity of that litigation will prevent back pay from being “incidental” to the classwide injunction, respondents’ class could not be certified even assuming, arguendo, that “incidental” monetary relief can be awarded to a 23(b)(2) * * * The judgment of the Court of Appeals is Reversed. Cite as: 564 U. S. (2011) 1 Opinion of GINSBURG, J. SUPREME COURT OF THE UNITED STATES No. 10–277 WAL-MART STORES, INC., PETITIONER v. BETTY DUKES ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 20, 2011] JUSTICE GINSBURG, with whom JUSTICE BREYER, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, concurring in part and dissenting in part. The class in this case, I agree with the Court, should not have been certified under Federal Rule of Civil Procedure 23(b)(2). The plaintiffs, alleging discrimination in viola tion of Title VII, 42 U.S. C. et seq., seek monetary relief that is not merely incidental to any injunctive or declaratory relief that might be available. See ante, at 20– 27. A putative class of this type may be certifiable under Rule 23(b)(3), if the plaintiffs show that common class ques- tions “predominate” over issues affecting individuals— |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | that common class ques- tions “predominate” over issues affecting individuals— e.g., qualification for, and the amount of, backpay or com pensatory damages—and that a class action is “superior” to other modes of adjudication. Whether the class the plaintiffs describe meets the specific requirements of Rule 23(b)(3) is not before the Court, and I would reserve that matter for consideration and decision on remand.1 The Court, however, disqualifies the class at the starting gate, holding that the plaintiffs cannot cross the “commonality” line set by Rule 23(a)(2). —————— 1 The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 47. 2 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. In so ruling, the Court imports into the Rule 23(a) de termination concerns properly addressed in a Rule 23(b)(3) assessment. I A Rule 23(a)(2) establishes a preliminary requirement for maintaining a class action: “[T]here are questions of law or fact common to the ”2 The Rule “does not require that all questions of law or fact raised in the litigation be common,” 1 H. Newberg & A. Conte, Newberg on Class Actions pp. 3–48 to 3–49 (3d ed. 1992); indeed, “[e]ven a single question of law or fact common to the members of the class will satisfy the commonality re quirement,” The Preexistence Principle and the Structure of the Class Action, n. 110 See Advisory Committee’s 1937 Notes on Fed. Rule Civ. Proc. 23, 28 U.S. C. App., p. 138 (citing with approval cases in which “there was only a question of law or fact common to” the class members). A “question” is ordinarily understood to be “[a] subject or point open to controversy.” American Heritage Diction ary 1483 (3d ed. 1992). See also Black’s Law Dictionary 1366 (9th ed. 2009) (defining “question of fact” as “[a] disputed issue to be resolved [at] trial” and “question of law” as “[a]n issue to be decided by the judge”). Thus, a “question” “common to the class” must be a dispute, either —————— 2 Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representa tive parties will fairly and adequately protect the interests of the ” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | the Court does not reach the typicality and adequacy requirements, ante, at 9, n. 5, I will not discuss them either, but will simply record my agreement with the District Court’s resolu tion of those issues. Cite as: 564 U. S. (2011) 3 Opinion of GINSBURG, J. of fact or of law, the resolution of which will advance the determination of the class members’ claims.3 B The District Court, recognizing that “one significant is sue common to the class may be sufficient to warrant cer tification,” 222 F. R. D. 137, 145 (ND Cal. 2004), found that the plaintiffs easily met that test. Absent an error of law or an abuse of discretion, an appellate tribunal has no warrant to upset the District Court’s finding of commonal ity. See (“[M]ost issues arising under Rule 23 [are] committed in the first instance to the discretion of the district court.”). The District Court certified a class of “[a]ll women em ployed at any Wal-Mart domestic retail store at any time since December 26, 1998.” 222 F. R. D., at 141–143 (in ternal quotation marks omitted). The named plaintiffs, led by Betty Dukes, propose to litigate, on behalf of the class, allegations that Wal-Mart discriminates on the basis of gender in pay and promotions. They allege that the company “[r]eli[es] on gender stereotypes in making em ployment decisions such as promotion[s] [and] pay.” App. 55a. Wal-Mart permits those prejudices to infect personnel decisions, the plaintiffs contend, by leaving pay and promotions in the hands of “a nearly all male manage rial workforce” using “arbitrary and subjective criteria.” Further alleged barriers to the advancement of female employees include the company’s requirement, “as a condition of promotion to management jobs, that em —————— 3 The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 8–10. If the word “questions” were taken literally, the majority asserts, plaintiffs could pass the Rule 23(a)(2) bar by “[r]eciting questions” like “Do all of us plaintiffs indeed work for Wal-Mart?” Ante, at 9. Sensibly read, however, the word “questions” means disputed issues, not any utterance crafted in the grammatical form of a question. 4 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployees be willing to relocate.” at 56a. Absent in struction otherwise, there is a risk that managers will act on the familiar assumption that women, because of their services to husband and children, are less mobile than men. See Dept. of Labor, Federal Glass Ceiling Commis sion, Good for Business: Making Full Use of the Nation’s Human Capital 151 (1995). Women fill 70 |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | of the Nation’s Human Capital 151 (1995). Women fill 70 percent of the hourly jobs in the retailer’s stores but make up only “33 percent of management em ployees.” 222 F. R. D., at 146. “[T]he higher one looks in the organization the lower the percentage of women.” at 155. The plaintiffs’ “largely uncontested descriptive statistics” also show that women working in the company’s stores “are paid less than men in every region” and “that the salary gap widens over time even for men and women hired into the same jobs at the same time.” ; cf. 643 (2007) (GINSBURG, J., dissenting). The District Court identified “systems for promoting in-store employees” that were “sufficiently similar across regions and stores” to conclude that “the manner in which these systems affect the class raises issues that are com mon to all class ” 222 F. R. D., at 149. The selection of employees for promotion to in-store manage ment “is fairly characterized as a ‘tap on the shoulder’ process,” in which managers have discretion about whose shoulders to tap. Vacancies are not regularly posted; from among those employees satisfying minimum qualifications, managers choose whom to promote on the basis of their own subjective impressions. Wal-Mart’s compensation policies also operate uniformly across stores, the District Court found. The retailer leaves open a $2 band for every position’s hourly pay rate. Wal- Mart provides no standards or criteria for setting wages within that band, and thus does nothing to counter uncon scious bias on the part of supervisors. See at 146–147. Cite as: 564 U. S. (2011) 5 Opinion of GINSBURG, J. Wal-Mart’s supervisors do not make their discretion ary decisions in a vacuum. The District Court reviewed means Wal-Mart used to maintain a “carefully constructed corporate culture,” such as frequent meetings to re- inforce the common way of thinking, regular transfers of managers between stores to ensure uniformity through out the company, monitoring of stores “on a close and con stant basis,” and “Wal-Mart TV,” “broadcas[t] into all ” at 151–153 (internal quotation marks omitted). The plaintiffs’ evidence, including class members’ tales of their own experiences,4 suggests that gender bias suf fused Wal-Mart’s company culture. Among illustrations, senior management often refer to female associates as “little Janie Qs.” Plaintiffs’ Motion for Class Certification in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, p. 13 (in ternal quotation marks omitted). One manager told an employee that “[m]en are here to make a career and women aren’t.” 222 F. R. D., at 166 (internal quotation marks omitted). A committee of female Wal-Mart execu tives concluded that “[s]tereotypes |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | A committee of female Wal-Mart execu tives concluded that “[s]tereotypes limit the opportunities offered to women.” Plaintiffs’ Motion for Class Certifica tion in No. 3:01–cv–02252–CRB (ND Cal.), Doc. 99, at 16 Finally, the plaintiffs presented an expert’s appraisal to show that the pay and promotions disparities at Wal-Mart “can be explained only by gender discrimination and not by neutral variables.” 222 F. R. D., at 155. Using regression analyses, their expert, Richard Drogin, con —————— 4 The majority purports to derive from a rule that a discrimination claim, if accompanied by anecdotes, must supply them in numbers proportionate to the size of the Ante, at 17–18. the Court acknowledges, see ante, at 18, n. 9, instructs that statistical evidence alone may suffice, ; that decision can hardly be said to establish a nu merical floor before anecdotal evidence can be taken into account. 6 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. trolled for factors including, inter alia, job performance, length of time with the company, and the store where an employee worked.5 The results, the District Court found, were sufficient to raise an “inference of dis crimination.” at 155–160. C The District Court’s identification of a common question, whether Wal-Mart’s pay and promotions policies gave rise to unlawful discrimination, was hardly infirm. The prac tice of delegating to supervisors large discretion to make personnel decisions, uncontrolled by formal standards, has long been known to have the potential to produce dispa rate effects. Managers, like all humankind, may be prey to biases of which they are unaware.6 The risk of dis crimination is heightened when those managers are pre dominantly of one sex, and are steeped in a corporate culture that perpetuates gender stereotypes. The plaintiffs’ allegations resemble those in one of the —————— 5 The Court asserts that Drogin showed only average differences at the “regional and national level” between male and female employees. Ante, at 16 In fact, his regression analyses showed there were disparities within The majority’s contention to the contrary reflects only an arcane disagreement about statistical method—which the District Court resolved in the plaintiffs’ favor. 222 F. R. D. 137, 157 (ND Cal. 2004). Appellate review is no occasion to disturb a trial court’s handling of factual disputes of this order. 6 An example vividly illustrates how subjective decisionmaking can be a vehicle for discrimination. Performing in symphony orchestras was long a male preserve. Goldin and Rouse, Orchestrating Impartiality: The Impact of “Blind” Auditions on Female Musicians, 90 Am. Econ. Rev. 715, 715–716 (2000). In the 1970’s orchestras began hiring musi cians through auditions |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | In the 1970’s orchestras began hiring musi cians through auditions open to all comers. Reviewers were to judge applicants solely on their musical abilities, yet subconscious bias led some reviewers to disfavor women. Orchestras that permitted reviewers to see the applicants hired far fewer female musicians than orchestras that conducted blind auditions, in which candidates played behind opaque screens. Cite as: 564 U. S. (2011) 7 Opinion of GINSBURG, J. prototypical cases in this area, F. Supp. In deciding on promotions, supervisors in that case were to start with objective measures; but ultimately, they were to “look at the individual as a total individual.” (internal quotation marks omitted). The final question they were to ask and answer: “Is this person going to be successful in our business?” It is hardly surprising that for many managers, the ideal candidate was someone with characteristics similar to their own. We have held that “discretionary employment practices” can give rise to Title VII claims, not only when such prac tices are motivated by discriminatory intent but also when they produce discriminatory results. See v. Fort Worth Bank & Trust, But see ante, at 17 (“[P]roving that [a] discretionary system has produced a disparity is not enough.”). In as here, an employer had given its managers large author ity over promotions. An employee sued the bank under Title VII, alleging that the “discretionary promotion sys tem” caused a discriminatory effect based on race. 487 U.S., at 984 Four different supervisors had declined, on separate occasions, to promote the employee. Their reasons were subjective and unknown. The employer, we noted “had not developed precise and formal criteria for evaluating candidates”; “[i]t relied instead on the subjective judgment of supervisors.” Aware of “the problem of subconscious stereotypes and prejudices,” we held that the employer’s “undisciplined system of subjective decisionmaking” was an “employment practic[e]” that “may be analyzed under the disparate impact approach.” at –991. See also Wards Cove Packing (recogniz ing “the use of ‘subjective decision making’ ” as an “em 8 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. ployment practic[e]” subject to disparate-impact attack). The plaintiffs’ allegations state claims of gender dis crimination in the form of biased decisionmaking in both pay and promotions. The evidence reviewed by the Dis trict Court adequately demonstrated that resolving those claims would necessitate examination of particular poli cies and practices alleged to affect, adversely and globally, women employed at Wal-Mart’s Rule 23(a)(2), setting a necessary but not a sufficient criterion for class action certification, demands nothing further. II A The Court gives no credence to the key |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | II A The Court gives no credence to the key dispute common to the class: whether Wal-Mart’s discretionary pay and pro motion policies are discriminatory. See ante, at 9 (“Re- citing” questions like “Is [giving managers discretion over pay] an unlawful employment practice?” “is not suffi- cient to obtain class certification.”). “What matters,” the Court asserts, “is not the raising of common ‘questions,’ ” but whether there are “[d]issimilarities within the pro posed class” that “have the potential to impede the genera tion of common answers.” Ante, at 9–10 (quoting Na gareda, Class Certification in the Age of Aggregate Proof, 84 N. Y. U. L. Rev. 97, 132 (2009); some internal quotation marks omitted). The Court blends Rule 23(a)(2)’s threshold criterion with the more demanding criteria of Rule 23(b)(3), and thereby elevates the (a)(2) inquiry so that it is no longer “easily satisfied,” 5 J. Moore et al., Moore’s Federal Prac tice p. 23–72 (3d ed. 2011).7 Rule 23(b)(3) certi —————— 7 The Court places considerable weight on General Telephone Co. of Southwest v. Ante, at 12–13. That case has little relevance to the question before the Court today. The lead plaintiff in alleged discrimination evidenced by the company’s failure to promote him and other Mexican-American employees and Cite as: 564 U. S. (2011) 9 Opinion of GINSBURG, J. fication requires, in addition to the four 23(a) findings, de terminations that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is supe rior to other available methods for adjudicating the controversy.”8 The Court’s emphasis on differences between class members mimics the Rule 23(b)(3) inquiry into whether common questions “predominate” over individual issues. And by asking whether the individual differences “impede” common adjudication, ante, at 10 (internal quotation marks omitted), the Court duplicates 23(b)(3)’s question whether “a class action is superior” to other modes of adjudication. Indeed, Professor whose “dissimi —————— failure to hire Mexican-American applicants. There were “no common questions of law or fact” between the claims of the lead plaintiff and the applicant (Burger, C. J., concurring in part and dissenting in part) (emphasis added). The plaintiff-employee alleged that the defendant-employer had discriminated against him intention ally. The applicant class claims, by contrast, were “advanced under the ‘adverse impact’ theory,” ib appropriate for facially neutral prac tices. “[T]he only commonality [wa]s that respondent is a Mexican- American and he seeks to represent a class of Mexican-Americans.” Here the same practices touch and concern all members of the 8 “A class action may be maintained if Rule |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | the 8 “A class action may be maintained if Rule 23(a) is satisfied and if: “(1) prosecuting separate actions by or against individual class mem bers would create a risk of inconsistent or varying adjudications [or] adjudications with respect to individual class members that, as a practical matter, would be dispositive of the interests of the other members ; “(2) the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief is appropriate respecting the class as a whole; or “(3) the court finds that the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed. Rule Civ. Proc. 23(b) (paragraph breaks added). 10 WAL-MART STORES, INC. v. DUKES Opinion of GINSBURG, J. larities” inquiry the Court endorses, developed his position in the context of Rule 23(b)(3). See 84 N. Y. U. L. Rev., at 131 (Rule 23(b)(3) requires “some decisive degree of similarity across the proposed class” because it “speaks of common ‘questions’ that ‘predominate’ over individual ones”).9 “The Rule 23(b)(3) predominance inquiry” is meant to “tes[t] whether proposed classes are sufficiently cohesive to warrant adjudication by representation.” If courts must conduct a “dissimilarities” analysis at the Rule 23(a)(2) stage, no mission remains for Rule 23(b)(3). Because Rule 23(a) is also a prerequisite for Rule 23(b)(1) and Rule 23(b)(2) classes, the Court’s “dissimilari ties” position is far reaching. Individual differences should not bar a Rule 23(b)(1) or Rule 23(b)(2) class, so long as the Rule 23(a) threshold is met. See 521 U.S., at n. 19 “does not have a predominance requirement”); Yamasaki, 442 U.S., at 701 (Rule 23(b)(2) action in which the Court noted that “[i]t is unlikely that differences in the factual back ground of each claim will affect the outcome of the legal issue”). For example, in a Rule 23(b)(2) class of African- American truckdrivers complained that the defendant had discriminatorily refused to hire black applicants. We recognized that the “qualification[s] and performance” of individual class members might vary. at (internal quotation marks omitted). “Generalizations concerning such individually applicable evidence,” we cautioned, “cannot serve as a justification for the denial of [injunc —————— 9 Cf. at 2 (Rule 23(a) commonality prerequisite satisfied by “[e]ven a single question common to the members of the class” ). Cite as: 564 U. S. (2011) 11 Opinion of GINSBURG, J. tive] relief to the entire ” B The “dissimilarities” approach leads the |
Justice Scalia | 2,011 | 9 | majority | Wal-Mart Stores, Inc. v. Dukes | https://www.courtlistener.com/opinion/219106/wal-mart-stores-inc-v-dukes/ | to the entire ” B The “dissimilarities” approach leads the Court to train its attention on what distinguishes individual class mem bers, rather than on what unites them. Given the lack of standards for pay and promotions, the majority says, “demonstrating the invalidity of one manager’s use of discretion will do nothing to demonstrate the invalidity of another’s.” Ante, at 15. Wal-Mart’s delegation of discretion over pay and promo tions is a policy uniform throughout all The very nature of discretion is that people will exercise it in vari ous ways. A system of delegated discretion, held, is a practice actionable under Title VII when it produces discriminatory 487 U.S., at –991; see su pra, at 7–8. A finding that Wal-Mart’s pay and promo tions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking indi vidual remedies for company-wide discrimination. Team ; see Albe marle Paper –423 That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, 5(g)(2)(A) (barring backpay if a plaintiff “was refused advancement for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | The Robinson-Patman Price Discrimination Act (Robinson-Patman), adopted in 1936, amending 2 of the Clayton Act, in general makes it unlawful for one engaged in commerce to discriminate *4 in price between different purchasers of like commodities where, among other things, "the effect of such discrimination may be substantially to lessen competition." 15 U.S. C. 13 (a). The Nonprofit Institutions Act, adopted only two years later, in 1938, c. 283, exempts from the application of Robinson-Patman "purchases of their supplies for their own use by schools hospitals, and charitable institutions not operated for profit." 15 U.S. C. 13c.[1] This case concerns nonprofit hospitals' purchases of products at favored prices from pharmaceutical companies. The issue is the proper construction of the phrase "purchases of their supplies for their own use," as it appears in the Nonprofit Institutions Act, and the consequent extent the hospitals' purchases are exempt from the proscription of Robinson-Patman. I Petitioners are 12 manufacturers of pharmaceutical products. Respondent, an Oregon nonprofit corporation and assignee of more than 60 commercial pharmacies doing business in the metropolitan Portland, Ore., area, instituted this action against petitioners in the United States District Court for the District of Oregon for violations of the federal antitrust laws. Treble damages and injunctive relief were sought. The amended complaint asserted five causes of action. Only one of the five (the second) is presently before us.[2]*5 In this claim the respondent alleged that in selling pharmaceutical products petitioners discriminated between nonprofit hospitals, on the one hand, and commercial pharmacies (regular drugstores), including respondent's assignors, on the other. As an affirmative defense, petitioners pleaded that their sales of pharmaceutical products to nonprofit hospitals were exempt from Robinson-Patman under the Nonprofit Institutions Act. The parties engaged in discovery as to the nonprofit status and drug-dispensing practices of 14 designated metropolitan Portland area institutions that operate as nonprofit hospitals. Affidavits were obtained and filed. Petitioners, as defendants, pursuant to Fed. Rule Civ. Proc. 56 (b), then moved for summary judgment on the amended complaint's second cause of action. App. 68. The District Court, by an opinion delivered orally, ruled that all the designated institutions were nonprofit hospitals, and that their purchases of pharmaceutical products from petitioners were purchases of supplies "for their own use," within the language of 15 U.S. C. 13c, and thus were exempt from the restrictions of Robinson-Patman. The court concluded, accordingly, that there was no issue as to any material fact with respect to the hospitals' nonprofit status or their use of the pharmaceutical products they purchased, and granted summary judgment in favor of the petitioners on |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | and granted summary judgment in favor of the petitioners on the respondent's second cause of action. App. 278-288, 290-292. The District Court, certified its judgment under 28 U.S. C. 1292 (b), and the United States Court of for the Ninth Circuit permitted the interlocutory appeal to be taken. The Court of while *6 rejecting respondent's contentions that the designated hospitals did not qualify for exemption under 13c,[3] nevertheless vacated the District Court's judgment and remanded the case for further proceedings. Because of the importance of the issue in the context of the modern nonprofit hospital, with its expanding service to the community, as compared with hospital operations of some years ago, and because of the obvious need for a definitive construction of language in the Non-profit Institutions Act,[4] we granted certiorari. II The pertinent facts are not really in dispute. The petitioners, admittedly, sell their pharmaceutical products to the designated Portland hospitals at prices less than those that govern petitioners' sales of like products to the respondent's assignors who are commercial pharmacists in Portland. The respective hospitals in turn dispense the pharmaceutical products they have so purchased from the petitioners. The application of Robinson-Patman to this situation is conceded except to the extent the exemption provision of the Nonprofit Institutions Act applies. The controversy, thus, comes into clear focus. *7 Each of the designated hospitals has a pharmacy. It is a separate department of the hospital. Its operation produces revenue in excess of costs. The net accrues to the hospital's benefit, is utilized for the institution's general purposes, and thus supports other activities of the hospital. The District Court, App. 283-285, and the Court of each perceived various categories of dispensations by the hospital pharmacies of the pharmaceutical products purchased from petitioners. But the District Court, in sustaining petitioners' motion for summary judgment, observed that "the vast majority" of the products purchased (85% to 95%), namely, those for the bed patient and for the patient receiving treatment in the hospitals' emergency facilities, were "clearly" for the hospitals' use, within the meaning of the Nonprofit Institutions Act, App. 283; that "out-patient treatment," whether "initial or repeated," was not outside that Act merely because there has been a "change in the distribution of health care" whereby the percentage of outpatient treatment increased since the statute was passed in 1938, ; that "take-home drugs" were within the "clear meaning" of the statute, ; that drugs furnished to employees, staff physicians, and other members of the staff, while presenting "some mild degree of question," nevertheless were "for the use of the hospital," ; and |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | nevertheless were "for the use of the hospital," ; and that the situation with respect to walk-in patients was insufficient in amount to "justify withdrawing" the statute's exemption, The Court of agreed that the inpatient and emergency facility situations "cover by far the greater part of hospital distribution," and that "such dispensing of drugs in the course of treatment in the hospital is the hospitals' [sic] own use." The court recited petitioners' asserted justifications for the other types of sales "as proper hospital functions": the need *8 of the departing inpatient for take-home drugs; the continuation at home of the patient's treatment begun earlier in the hospital; the sales to employees as being pursuant to collective-bargaining agreements; the sales to students as being aspects of the hospital's educational programs; the sales to physicians as being perquisites of hospital staff membership; the limitation of walk-in sales to instances where, at the time, the needed drugs could not be obtained elsewhere; the hospital's position "as a center for the provision of a full range of health services"; and "a decent regard for the needs of the community." But, conceding that "distribution by the hospitals can be justified as a proper and useful community service and thus can be regarded as a proper hospital function," the Court of concluded that this was not necessarily "the hospitals' `own use.' " Instead, said the court, hospital use under 13c was limited to cases where the hospital can be said to be the consumer, that is, to those cases where the dispensations of drugs were to inpatients and emergency facility patients. The concept could not apply "to cases of resale by the hospital to a private consumer." Accordingly, as to such sales, the hospital may not acquire the pharmaceutical products "at an acquisition price that discriminates against local retail druggists." III We, too, find it convenient to view the hospitals' sales and dispensations of the pharmaceutical products purchased from petitioners as falling into several categories.[5] We divide them as follows: *9 1. To the inpatient for use in his treatment at the hospital. For present purposes, we define an inpatient as one admitted to the hospital for at least overnight bed occupancy.[6] 2. To the patient admitted to the hospital's emergency facility for use in the patient's treatment there. A patient in this category may or may not become an inpatient, as defined in the preceding paragraph. 3. To the outpatient for personal use on the hospital premises. For present purposes, we define an outpatient as one (other than an inpatient or a patient admitted to |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | one (other than an inpatient or a patient admitted to the emergency facility) who receives treatment or consultation on the premises. 4. To the inpatient, or to the emergency facility patient, upon his discharge and for his personal use away from the premises. 5. To the outpatient for personal use away from the premises. 6. To the former patient, by way of a renewal of a prescription given when he was an inpatient, an emergency facility patient, or an outpatient. 7. To the hospital's employee or student for personal use or for the use of his dependent.[7] *10 8. To the physician who is a member of the hospital's staff, but who is not its employee, for personal use or for the use of his dependent. 9. To the physician, who is a member of the hospital's staff, for dispensation in the course of the physician's private practice away from the hospital. 10. To the walk-in customer who is not a patient of the hospital.[8] This division into categories reveals, of course, that we are concerned with linedrawing. The demarcation is somewhat simplified, on this record, by a concession on the part of the respondent. The respondent agrees with the Court of that the dispensing of drugs " `in the course of treatment in the hospital is the hospitals' [sic] own use,' " regardless of whether the patient is technically described as an outpatient or as an inpatient. It does not matter, the respondent says, "whether the patient is occupying a bed or not"; thus, a "day surgery patient receiving medication while being treated in the hospital would be covered [that is, the sale to him would be exempt] whether in bed or not, as would one receiving a shot or pill while standing upright or otherwise in the outpatient clinic." Brief for Respondent 11. See also Tr. of Oral Arg. 29. This concession, then, covers the above-listed categories 1, 2, and 3. We hasten to add, however, that if the respondent had made no concession as to these three categories, we would have reached the same result, for it seems to us to be very clear that a hospital's purchase of pharmaceutical products that are dispensed to and consumed by a patient on the hospital premises, whether that patient is bedded, or is seen in the emergency *11 facility, or is only an outpatient, is a purchase of supplies for the hospital's "own use," within 13c. In our view, as the respondent's concession indicates, this is so clear that it needs no further explication. Before we turn to the |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | it needs no further explication. Before we turn to the remaining categories, we should state that we recognize, as the parties do, that the concept of the nonprofit hospital and its appropriate and necessary activity has vastly changed and developed since the enactment of the Nonprofit Institutions Act in 1938. The intervening decades have seen the hospital assume a larger community character. Some hospitals, indeed, truly have become centers for the "delivery" of health care. The nonprofit hospital no longer is a receiving facility only for the bedridden, the surgical patient, and the critical emergency. It has become a place where the community is readily inclined to turn, andbecause of increasing costs, physician specialization, shortage of general practitioners, and other factorsis often compelled to turn, whenever a medical problem of import presents itself. The emergency room has become a facility for all who need it and it no longer is restricted to cases previously authorized by members of the staff. And patients that not long ago required bed care are often now treated on an ambulatory and outpatient basis. See Eastern Kentucky Welfare Rights cert. granted, ; Brodie & Graber, Institutional Pharmacy Practice in the 1970's, 28 Am. J. Hosp. Pharm. 240, 241 (1971). IV It has been said, of course, that the antitrust laws, and Robinson-Patman in particular, are to be construed liberally, and that the exceptions from their application are to be construed strictly. United ; ; The Court has recognized, also, that Robinson-Patman "was enacted in 1936 to curb and prohibit all devices by which large buyers gained discriminatory preferences over smaller ones by virtue of their greater purchasing power." ; Because the Act is remedial, it is to be construed broadly to effectuate its purposes. See ; Implied antitrust immunity is not favored. United "[O]ur cases have repeatedly established that there is a heavy presumption against implicit [antitrust] exemptions." ; United And the focus of Robinson-Patman is on competition "at the same functional level." But the legislative history of the Nonprofit Institutions Act indicates clearly that Act was concerned with the suspicion that Robinson-Patman, at the time just recently enacted, actually might operate to outlaw price favors that sellers would wish to grant to eleemosynary institutions. S. Rep. No. 1769, 75th Cong., 3d Sess., 1 (1938); H. R. Rep. No. 2161, 75th Cong., 3d Sess., 1 (1938). The parties here seek to utilize this legislative history in opposite ways. The respondent asserts that the statutory assurance of exemption "was never intended to countenance a mass invasion of the retail drug sale market by hospitals," Brief for |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | of the retail drug sale market by hospitals," Brief for Respondent 34, and that what Congress had in mind was "the role traditionally occupied by hospitals," The petitioners assert *13 that the 1938 statute "was written to assist a wide range of nonprofit institutions to operate at the lowest possible cost in the public interest," Brief for Petitioners 17, and that the focus was on the character of the institution, not on the particular features of its program, and not only on those institutions that operated at a loss, We are not fully persuaded by either view. The modern American hospital developed from an institution originally intended for the sick poor. See Eastern Kentucky Welfare Rights Organization v. Simon, 1 U. S. App. D. C., at 506 F.2d, at ; E. Fisch, D. Freed, & E. Schachter, Charities and Charitable Foundations 322 ; Bromberg, The Charitable Hospital, Language in the bill which became the 1938 Act, that would have exempted only sales to nonprofit institutions "supported in whole or in part by public subscriptions," was deleted, 83 Cong. Rec. 60 (1938), and the Act's exemption provision was not so restricted and confined. We thus do not relate the exemption to what might be described as the nonprofit hospital's original or "traditional" status. On the other hand, there is nothing in the Act that indicates that its exemption provision is to be applied and expanded automatically to whatever new venture the nonprofit hospital finds attractive in these changing days. The Congress surely did not intend to give the hospital a blank check. Had it so intended, it would not have qualified purchases by nonprofit institutions in the way it did in 13c. See H. R. Rep. No. 1983, 90th Cong., 2d Sess., 78-79 We are concerned, after all, with an exemption from an antitrust statute, and the accepted general principles, hereinabove set forth, do have application even in the nonprofit hospital context. *14 We therefore conclude that the exemption provision of the Nonprofit Institutions Act is a limited one; that just because it is a nonprofit hospital that is purchasing pharmaceutical products does not mean that all its purchases are exempt from Robinson-Patman; that the test is the obvious one inherent in the language of the statute, namely, "purchases of their supplies for their own use"; and that "their own use" is what reasonably may be regarded as use by the hospital in the sense that such use is a part of and promotes the hospital's intended institutional operation in the care of persons who are its patients. This implies the |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | care of persons who are its patients. This implies the limitation and it turns the measure naturally from the purchase to the use, as 13c requires. In this focus we consider the several categories listed above. V 1, 2, and 3. As to these three categories, we reiterate our conclusions already enunciated in the light of the concession by the respondent. Dispensation to the bed-occupying inpatient and to the patient at the hospital's emergency facility, in either case for use on the hospital premises, is a part of the institution's basic function, and is dispensation for the hospital's "own use." That it is the patient rather than the hospital that consumes is not determinative, and, indeed, the respondent here does not contend otherwise. A like result follows with respect to dispensation to the hospital's outpatient when that patient uses the pharmaceutical product on the hospital's premises. 4 and 5. The take-home prescription, usually a continuance of, or supplement to, what has been prescriptively administered at the hospital while the recipient was an inpatient, emergency facility patient, or outpatient, takes us, to be sure, one small step beyond and outside the hospital's door. The patient is released from *15 care to continue his treatment and recuperation under something less than the hospital's emergency or routine intensive, regular, or, even, more casual care (if it offers that type), and less than its consultative service at its outpatient facility. The release from the hospital environment into the home is the next step in the chain of treatment on the patient's way to his resumption of normal activity completely free of treatment. The medical supervision and the hospital's participation in it to this point, at least, although approaching an end, are continuous and real, and are distinct parts of the transition from hospital care to home care. We therefore conclude that the genuine take-home prescription, intended, for a limited and reasonable time, as a continuation of, or supplement to, the treatment that was administered at the hospital to the patient who needed, and now continues to need, that treatment, is for the hospital's "own use." We therefore disagree with the Court of as to categories 4 and 5. We feel that a contrary ruling on our part would unduly and undeservedly emphasize the doorsill of the hospital, and that to draw a line at that threshold would be arbitrary and not consistent with congressional intent. In these instances, the hospital's "own use" of the pharmaceutical products extends realistically and not inappropriately somewhat beyond that threshold. 6. We conclude, however, that the refill for the |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | threshold. 6. We conclude, however, that the refill for the hospital's former patient is on the other side of the line that divides that which is in the hospital's "own use" from that which is not. Inevitably, in accord with the test above set forth, there comes a point where the dispensation of pharmaceutical products is not for the institution's "own use." That point, we feel, is positioned short of the refill. Continuation of a drug's use for some time after initial prescription at the hospital may well be indicated for the particular patient, but, except for the limited *16 take-home prescription referred to above, it is not the hospital's "own use," and it certainly is not for its "own use" forever just because it originated under hospital auspices. We conclude that the statute's limitation has been exceeded when the connection with the hospital has become as attenuated as it is at the refill stage. 7. Dispensation to the hospital's employee or to its student for the purchaser's personal use or for the use of his dependent poses a somewhat different problem. A hospital is an organization populated by persons rendering essential services of various kinds. The hospital's employees enable it to function. The hospital pharmacy is but a part of the whole; the employee and his services are other parts. And to the extent the institution has students on the medical and hospital scene interns, persons in the hospital's nursing, practical nursing, and nurse's aide programs, those in paramedical, chaplaincy, and administrative fields, and the likethe connection with the hospital's purposes and its activities is obvious and institutionally intimate. We conclude, therefore, that dispensation by the pharmacy to the hospital's employee or student, each of whom, literally, is a member of the hospital family, for his own use or for the use of his dependent, enhances the hospital function and qualifies as being in the hospital's "own use," within the meaning of 13c.[9] But we draw the line between dispensation for the employee's or the student's personal use, or for the use of his dependent, on the one hand, and that for the use of another, even a nondependent family member, on the other. 8 and 9. What we have said in the preceding paragraph applies with equal force to dispensation to a *17 physician member of the staff for his personal use or for the personal use of his dependent. The physician staff member, though not an employee in the technical sense of being full time in the hospital's service and on its payroll, nevertheless is vital to |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | hospital's service and on its payroll, nevertheless is vital to its existence. It is he who supplies the patient and who engages, perhaps directly and at least to some extent through the staff organization, in the formulation of the hospital's professional and operative policies. His activity at the hospital is in the hospital's useits very purpose for existence and dispensation to the physician and his dependent, we think, is for the hospital's "own use," within 13c. We again draw the line, however, when the physician's acquisition from the hospital pharmacy is not for his personal use or that of his dependent, or is not for the hospital. To the extent that the physician utilizes his proximity to the hospital pharmacy, and it permits him so to do, for other persons or other useseven, as this record occasionally intimates, for dispensation in that portion of his private practice unconnected with the hospitalthe requirement of the hospital's "own use" is not fulfilled. Here again the relationship is too attenuated for the statutory benefit, and we hold that 13c definitely is not satisfied. 10. The walk-in prescription buyer for the most part affords little difficulty for us in the context of 13c. Even though one acknowledges the full weight of the argument that the modern hospital is a different institution from what it was when the Nonprofit Institutions Act was adopted in 1938, and that increasingly it has become a focus of health care in the community, the extension of 13c to the walk-in customer, who has no present connection with the hospital and its pharmacy other than as a place to have his prescription filled, would *18 make the commercially advantaged hospital pharmacy just another community drug store open to all comers for prescription services and devastatingly positioned with respect to competing commercial pharmacies. This would extend the hospital's "own use" concept beyond that contemplated by Congress in 13c. We therefore hold that the walk-in buyer generally is not within the statute's exemption. We recognize, however, that there may be an occasion when the hospital pharmacy is the only one available in the community to meet a particular emergency situation. The respondent seeks to counter this possibility with a telephone book yellow-page reference to the providing of 24-hour service, and of some emergency or delivery service, by certain metropolitan Portland retail pharmacies. Brief for Respondent 56. That may be. We are content, however, to conclude that the occasional emergency is de minimis, in any event, and that its presence solitarily would not trigger litigation of the present kind. So long as the |
Justice Blackmun | 1,976 | 11 | majority | Abbott Laboratories v. Portland Retail Druggists Assn., Inc. | https://www.courtlistener.com/opinion/109413/abbott-laboratories-v-portland-retail-druggists-assn-inc/ | trigger litigation of the present kind. So long as the hospital pharmacy holds the emergency situation within bounds, and entertains it only as a humanitarian gesture, we shall not condemn the hospital and its suppliers to a Robinson-Patman violation because of the presence of the occasional walk-in dispensation of that type.[10] *19 VI The petitioners suggest that a decision holding some dispensations by the nonprofit hospital not to be exempt establishes an objectionable and unworkable standard for hospitals and their suppliers because it "requires a segregation of drugs or accounting of their use *20 that can be achieved only through the institution of clumsy and expensive dual supply or tracing systems to regulate and account for the use of drugs." Brief for Petitioners 28. They suggest the undesirability of a supplier's "controlling the disposition of merchandise in the hands of a purchaser," citing United 388 U.S. 3, and they speak of the supplier's "retroactive exposure to claims." Brief for Petitioners 29. Petitioners' concern is understandable, but we feel that it is overstated. Looking at the problem from the point of view of the purchasing hospital, two alternatives, and perhaps more,[11] are presented. The first, and easier, is for the hospital pharmacy not to dispense in any way hereinabove held to be outside the exemption of 13c. The second is for the pharmacy to do exactly what the petitioners deplore, namely to establish a recordkeeping procedure that segregates the nonexempt use from the exempt use. This would be supplemented by the hospital's submission to its supplier of an appropriate accounting followed by the price adjustment that is indicated. This, to be sure, is cumbersome, but it obviously is the price the Congress has exacted for the benefits bestowed by the controlling legislation, and it should be no more cumbersome than the accounting demands that are made on commercial enterprises of all kinds in our complex society of today. The supplier, on the other hand, properly may expect to be protected from antitrust liability for reasonable and noncollusive reliance upon its hospital customer's certification as to its dispensation of the products it purchases *21 from the supplier. But it is not unreasonable to expect the supplier to assume the burden of obtaining the certification when it seeks to enjoy, with the institutional purchaser, the benefits provided by 13c. It clearly does this with respect to responsibility for identification of its purchaser under that statute's standard, and little additional burden is imposed if it is required to take the small second step of routinely obtaining a representation from its hospital customer as to |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | These cases test the viability of principles whose roots draw strength from the very core of the Due Process Clause. The question that petitioners present for our decision is whether the rule of law, basic to our society and binding upon the s by virtue of the Due Process Clause of the Fourteenth Amendment, is fundamentally inconsistent with capital sentencing procedures that are purposely constructed to allow the maximum possible variation from one case to the next, and provide no mechanism to prevent that consciously maximized variation from reflecting merely random or arbitrary choice. The Court does not, however, come to grips with that fundamental question. Instead, the Court misapprehends *2 petitioners' argument and deals with the cases as if petitioners contend that due process requires capital sentencing to be carried out under predetermined standards so precise as to be capable of purely mechanical application, entirely eliminating any vestiges of flexibility or discretion in their use. This misapprehended question is then treated in the context of the Court's assumption that the legislatures of Ohio and California are incompetent to express with clarity the bases upon which they have determined that some persons guilty of some crimes should be killed, while others should livean assumption that, significantly, finds no support in the arguments made by those s in these cases. With the issue so polarized, the Court is led to conclude that the rule of law and the power of the s to kill are in irreconcilable conflict. This conflict the Court resolves in favor of the s' power to kill. In my view the Court errs at all points from its premises to its conclusions. Unlike the Court, I do not believe that the legislatures of the 50 s are so devoid of wisdom and the power of rational thought that they are unable to face the problem of capital punishment directly, and to determine for themselves the criteria under which convicted capital felons should be chosen to live or die. We are thus not, in my view, faced by the dilemma perceived by the Court, for cases in this Court have for almost a century and a half approved a multiplicity of imaginative procedures designed by the state and federal legislatures to assure evenhanded treatment and ultimate legislative control regarding matters that the legislatures have deemed either too complex or otherwise inapposite for regulation under predetermined rules capable of automatic application in every case. Finally, even if I shared the Court's view that the rule of law and the power of the s to kill are in irreconcilable *250 |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | power of the s to kill are in irreconcilable *250 conflict, I would have no hesitation in concluding that the rule of law must prevail. Except where it incorporates specific substantive constitutional guarantees against state infringement, the Due Process Clause of the Fourteenth Amendment does not limit the power of the s to choose among competing social and economic theories in the ordering of life within their respective jurisdictions. But it does require that, if state power is to be exerted, these choices must be made by a responsible organ of state government. For if they are not, the very best that may be hoped for is that state power will be exercised, not upon the basis of any social choice made by the people of the but instead merely on the basis of social choices made at the whim of the particular state official wielding the power. If there is no effective supervision of this process to insure consistency of decision, it can amount to nothing more than government by whim. But ours has been "termed a government of laws, and not of men." Government by whim is the very antithesis of due process. It is not a mere historical accident that "[t]he history of liberty has largely been the history of observance of procedural safeguards." The range of permissible state choice among competing social and economic theories is so broad that almost any arbitrary or otherwise impermissible discrimination among individuals may mask itself as nothing more than such a permissible exercise of choice unless procedures are devised which adequately insure that the relevant choice is actually made. Such procedures may take a variety of forms. The decisionmaker may be provided with a set of guidelines to apply in rendering judgment. His decision may be required to rest upon the presence or absence *251 of specific factors. If the legislature concludes that the range of variation to be dealt with precludes adequate treatment under inflexible, predetermined standards it may adopt more imaginative procedures. The specificity of standards may be relaxed, directing the decisionmaker's attention to the basic policy determinations underlying the statute without binding his action with regard to matters of important but unforeseen detail. He may be instructed to consider a list of factorseither illustrative or exhaustiveintended to illuminate the question presented without setting a fixed balance. The process may draw upon the genius of the common law, and direct itself toward the refinement of understanding through case-by-case development. In such cases decision may be left almost entirely in the hands of the body to which it is |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | in the hands of the body to which it is delegated, with ultimate legislative supervision on questions of basic policy afforded by requiring the decisionmakers to explain their actions, and evenhanded treatment enhanced by requiring disputed factual issues to be resolved and providing for some form of subsequent review. Creative legislatures may devise yet other procedures. Depending upon the nature and importance of the issues to be decided, the kind of tribunal rendering judgment, the number and frequency of decisions to be made, and the number of separate tribunals involved in the process, these techniques may be applied singly or in combination. It is of critical importance in the present cases to emphasize that we are not called upon to determine the adequacy or inadequacy of any particular legislative procedure designed to give rationality to the capital sentencing process. For the plain fact is that the legislatures of California and Ohio, whence come these cases, have sought no solution at all. We are not presented with a 's attempt to provide standards, attacked as *252 impermissible or inadequate. We are not presented with a legislative attempt to draw wisdom from experience through a process looking toward growth in understanding through the accumulation of a variety of experiences. We are not presented with the slightest attempt to bring the power of reason to bear on the considerations relevant to capital sentencing. We are faced with nothing more than stark legislative abdication. Not once in the history of this Court, until today, have we sustained against a due process challenge such an unguided, unbridled, unreviewable exercise of naked power. Almost a century ago, we found an almost identical California procedure constitutionally inadequate to license a laundry. Yick Today we hold it adequate to license a life. I would reverse petitioners' sentences of death. I "Our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case." J. Harlan, Thoughts at a Dedication: Keeping the Judicial Function in Balance, in The Evolution of a Judicial Philosophy 289, 291-292[1] The dangers inherent in any grant of governmental power without procedural safeguards upon its exercise were known to English law long long before the Constitution was established. See, e. g., 8 How. St. Tr. 55-58, n. The principle that our Government shall be of laws and not of men is so strongly woven into our constitutional fabric that it has found recognition in not just one but several provisions of the *253 Constitution.[2] And |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | just one but several provisions of the *253 Constitution.[2] And this principle has been central to the decisions of this Court giving content to the Due Process Clause.[3] As we said in : "[I]t is not to be supposed that the amendment prescribing due process of law is too vague and *254 indefinite to operate as a practical restraint. Law is something more than mere will exerted as an act of power. It must be not a special rule for a particular person or a particular case, but `the general law' so `that every citizen shall hold his life, liberty, property and immunities under the protection of the general rules which govern society,' and thus excluding, as not due process of law, acts of attainder, bills of pains and penalties, acts of confiscation. and other similar special, partial and arbitrary exertions of power under the forms of legislation. Arbitrary power, enforcing its edicts to the injury of the persons and property of its subjects, is not law, whether manifested as the decree of a personal monarch or of an impersonal multitude." The principal function of the Due Process Clause is to insure that state power is exercised only pursuant to procedures adequate to vindicate individual rights.[4]*255 While we have, on rare occasions, held that due process requires specific procedural devices not explicitly commanded by the Bill of Rights,[5] we have generally either indicated one acceptable procedure and left the s free to devise others,[6] or else merely ruled upon the validity or invalidity of a particular procedure without attempting to limit or even guide state choice of procedural mechanisms beyond stating the obvious proposition that inadequate mechanisms may not be employed.[7] Several principles, however, have until today been consistently employed to guide determinations of the adequacy of any given state procedure. "When the Government exacts much, the importance of fair, evenhanded, *256 and uniform decisionmaking is obviously intensified." Procedures adequate to determine a welfare claim may not suffice to try a felony charge. Compare with Second, even where the only rights to be adjudicated are those created and protected by state law, due process requires that state procedures be adequate to allow all those concerned a fair hearing of their state-law claims. ; ; Third, where federally protected rights are involved, due process commands not only that state procedure be adequate to assure a fair hearing of federal claims, In re Gault, but also that it provide adequate opportunity for review of those federal claims where such review is otherwise available. ; ; ; cf. North ; In re Finally, |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | available. ; ; ; cf. North ; In re Finally, and closely related to the previous point, due process requires that procedures for the exercise of state power be structured in such a way that, ultimately at least, fundamental choices among competing state policies are resolved by a responsible organ of state government. ; ; ; United ; ; ; ; ; ; Yick 118 U. S., at The damage that today's holding, if followed, would do to our constitutional fabric can only be understood from a closer examination of our cases than is contained in the Court's opinion. I therefore turn to those cases. A Analysis may usefully begin with this Court's cases applying what has come to be known as the "void-for-vagueness" doctrine. It is sometimes suggested that in holding a statute void for vagueness, this Court is merely applying one of two separate doctrines: first, that a criminal statute must give fair notice of the conduct that it forbids, e. g., ; ; and second, that a statute may not constitutionally be enforced if it indiscriminately sweeps within its ambit conduct that may not be the subject of criminal sanctions as well as conduct that may. E. g., ; To this is often added the observation that both doctrines apply with particular vigor to state regulation of conduct at or near the boundaries of the First Amendment. See United ; 1 U.S. 147, 0-2[8] But unless it be assumed that our decisions in such matters have shown an almost unparalleled inconsistency, these factors may not be taken as more than a partial explanation of the doctrine. *258 To begin with, we have never treated claims of unconstitutional statutory vagueness in terms of the statute as written or as construed prior to the time of the conduct in question. Instead, we have invariably dealt with the statute as glossed by the courts below at the time of decision here. E. g., 382 U.S. ; ; In we even remanded a criminal case to the Utah Supreme Court for a construction of the statute so that its possible vagueness could be analyzed. In dealing with vagueness attacks on federal statutes, we have not hesitated to construe the statute to avoid vagueness problems and, having so construed it, apply it to the case at hand. See United s v. Vuitch, ante, p. 62 ; ; If the vagueness doctrine were fundamentally premised upon a concept of fair notice, such treatment would simply make no sense: a citizen cannot be expected to foresee subsequent construction of a statute by this or |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | to foresee subsequent construction of a statute by this or any other court. See Freund, The Supreme Court and Civil Liberties, But if, as I believe, the doctrine of vagueness is premised upon the fundamental notion that due process requires governments to make explicit their choices among competing social policies, see infra, at 259-265, the inconsistency between theory and practice disappears. Of course such a choice, once made, is not irrevocable: statutes may be amended and statutory construction overruled. Nevertheless, an explicit state choice among possible statutory constructions substantially reduces the likelihood that subsequent convictions under the statute will be based on impermissible *259 factors.[9] It also renders more effective the available mechanisms for judicial review, by increasing the likelihood that impermissible factors, if relied upon, will be discernible from the record. Thus in 2 U.S. 199 we were faced with the application of a specific vagrancy statute to conductdancing in a public barthat there is no reason to believe could not have been constitutionally prohibited had the chosen to do so. We were, however, able to examine the record and conclude that there was in fact no evidence that could support a conviction under the statute. Cf. Second, in dealing with statutes that are unconstitutionally overbroad, we have consistently indicated that "once an acceptable limiting construction is obtained, [such a statute] may be applied to conduct occurring prior to the construction, provided such application affords fair warning to the defendants." n. 7 (citations omitted);[10] see, e. g., That is, an unconstitutionally overbroad statute may not be enforced at all until an acceptable construction has been obtained, e. g., ; but once such a construction has been made, the statute as construed may be applied to conduct occurring prior to the limiting construction. If notice and overbreadth were the only components of the vagueness doctrine, this treatment would, once again, be inexplicable. So far as notice is concerned, one who has engaged in certain conduct prior to the limiting construction of an overbroad statute has obviously not received from that construction any warning that would have enabled him to keep his conduct within the bounds of law. Similarly, if adequate notice has in fact been given by an overbroad statute that certain conduct was criminally punishable, it is hard to see how the doctrine of overbreadth is furthered by forbidding the on the one hand, to punish that conduct so long as an acceptable limiting construction has not been obtained, but permitting it to punish the same, prior conduct once the statute has been acceptably construed. Once again, however, our |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | the statute has been acceptably construed. Once again, however, our actions are not at all inexplicable if examined in the terms articulated here. Once an acceptable limiting construction has in fact been obtained, there is by that very fact an assurance that a responsible organ of state power has made an explicit choice among possible alternative policies: for it should not be forgotten that the s possess constitutional power to make criminal much conduct that they may not wish to forbid, or may even desire to encourage. If a vague or overbroad statute is applied before it has been acceptably construed, there remains the danger that an individual whose conduct is admittedly clearly within the scope of the statute on its face will be punished for actions which in fact the does not desire to make generally punishableconduct which, if engaged in by another person, would not be subject to criminal liability. Allowing a vague or overbroad statute to be enforced if, and only if, an acceptable construction *261 has been obtained forces the to make explicit its social choices and prevents discrimination through the application of one policy to one person and another policy to others.[11] *262 Particularly relevant to the present case is our decision in 382 U.S. That case involved a statute whereby Pennsylvania attempted to mitigate the harshness of its common-law rule requiring criminal defendants to pay the costs of prosecution in all cases[12] by committing the matter to the discretion of the jury in cases where the defendant was found not guilty.[13] Two members of this Court, concurring in the result, would have held that due process forbade the imposition of costs upon an acquitted We refused, however, to base our decision on that ground. In an opinion by my Brother BLACK, we said: "We agree with the trial court that the 1860 Act is invalid under the Due Process Clause because of vagueness and the absence of any standards sufficient to enable defendants to protect themselves against arbitrary and discriminatory impositions of costs. ". It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular case. This 1860 Pennsylvania Act contains no standards at all Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the *263 |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | always been to protect a person against having the *263 Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce. ". The contends that state court interpretations have provided standards and guides that cure the constitutional deficiencies. We do not agree. In this case the trial judge instructed the jury that it might place the costs of prosecution on the appellant, though found not guilty of the crime charged, if the jury found that `he has been guilty of some misconduct less than the offense which is charged but nevertheless misconduct of some kind as a result of which he should be required to pay some penalty short of conviction [and] his misconduct has given rise to the prosecution.' "It may possibly be that the trial court's charge comes nearer to giving a guide to the jury than those that preceded it, but it still falls short of the kind of legal standard due process requires." -404 (citations omitted).[14] Several features of Giaccio are especially pertinent in the present context. First, there were no First Amendment implications in either the conduct charged or that in which Giaccio claimed to have engaged: the 's evidence was to the effect that Giaccio had wantonly discharged a firearm at another, in violation of Pa. Stat. *264 Ann., Tit. 18, 4716 and Giaccio's defense was that "the firearm he had discharged was a starter pistol which only fired blanks." Second, we were not presented with a defendant who had been convicted for conduct he could not have known was unlawful. Whether or not Giaccio's actions fell within 4716, his conduct was unquestionably punishable under other state laws, e. g., Pa. Stat. Ann., Tit. 18, 4406 Finally, it is worthy of note that in Giaccio two members of this Court explicitly sought to base the result upon the ground that, as a matter of substantive due process, the s were forbidden to impose the costs of prosecution upon an acquitted Yet we refused to place decision on any such ground. We held instead, consistently with our prior decisions, that the procedure for determining Giaccio's punishment lacked the safeguards against arbitrary action that are required by due process of law.[] *265 Our decisions applying the Due Process Clause through the doctrine of unconstitutional vagueness, then, lead to the following conclusions. First, the protection against arbitrary and discriminatory action embodied in the Due Process Clause requires |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | and discriminatory action embodied in the Due Process Clause requires that state power be exerted only through mechanisms that assure that fundamental choices among competing state policies be explicitly made by some responsible organ of the[16] Second, the cases suggest that due process requires as well that state procedures for decision of questions that may have adverse consequences for an individual neither leave room for the deprivation sub silentio of the individual's federally protected rights nor unduly frustrate the federal judicial review provided for the vindication of those rights. This second point is explicitly made in a not unrelated line of cases, to which I now turn. *266 B Whether through its own force or only through the application of other, specific constitutional guarantees, the Due Process Clause of the Fourteenth Amendment protects individuals from a narrow class of impermissible exertions of power by the s. As applied to the procedures whereby admittedly permissible state power is exerted, however, the Due Process Clause has consistently been given a wider scope. "[O]ur system of law has always endeavored to prevent even the probability of unfairness." In re Thus, we have never suggested that every judge who has been the target of contemptuous, personal attacks by litigants or their attorneys is incapable of rendering a fair decision on the merits of a contempt charge against such persons; but we have consistently held that, excepting only cases of urgent necessity, due process requires that contempt charges in such cases be heard by a different judge. 400 U.S. ; In re And in we did not suggest that every judgment rendered by an official who had a financial stake in the outcome was ipso facto the product of bias. Proceeding from a directly contrary assumption,[17] we nevertheless held that due process was violated by any "procedure which would offer a possible temptation to the average man not to hold the balance nice, clear and true between the and the accused." In one of the two grounds on which we struck down a New York procedure that required a jury to determine the *267 voluntariness of a confession at the same time that it determined his guilt of the crime charged was that the procedure created an impermissibleand virtually unreviewable risk that the jury would not be able to disregard a confession that it felt was both involuntary and true. at 388-. Similarly, in a long line of cases beginning with we have repeatedly held that due process is violated by state procedures for the administration of permit systems regulating the public exercise of First |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | administration of permit systems regulating the public exercise of First Amendment rights if the procedure allows a permit to be denied for impermissible reasons, whether or not an individual can actually demonstrate that he was denied a permit for activity which the could not lawfully prohibit. And only recently, in we were faced with a state procedure for determining voting qualifications that, in the 's own words, vested "discretion in the registrars of voters to determine the qualifications of applicants for registration," but imposed "no definite and objective standards upon registrars of voters for the administration of the interpretation test." at 2. After quoting, with apparent approval, an 1898 state criticism of a similar procedure on the ground that the "arbitrary power, lodged with the registration officer, practically places his decision beyond the pale of judicial review," ib we noted and accepted the District Court's finding that "Louisiana provides no effective method whereby arbitrary and capricious action by registrars of voters may be prevented or redressed." We continued: "The applicant facing a registrar in Louisiana thus has been compelled to leave his voting fate to that official's uncontrolled power to determine whether the applicant's understanding of the Federal or Constitution is satisfactory. The cherished *268 right of people in a country like ours to vote cannot be obliterated by the use of laws like this, which leave the voting fate of a citizen to the passing whim or impulse of an individual registrar. Many of our cases have pointed out the invalidity of laws so completely devoid of standards and restraints." 380 U.S., at On that basis we held the Louisiana procedure for determining the qualifications of prospective voters to be a denial of due process. [18] Diverse as they are, these cases rest upon common ground. They all stand ineluctably for the proposition that due process requires more of the s than that they not exert state power in impermissible ways. Specifically, the rule of these cases is that state procedures are inadequate under the Due Process Clause unless they are designed to control arbitrary action and also to make meaningful the otherwise available mechanism for judicial review. We have elsewhere made this last point explicit. In we held that due process in commitment proceedings, "whether denominated civil or criminal," requires "findings adequate to make meaningful any appeal that is allowed." ; see 8 U.S. 7, And in the alternative ground on which we struck down a New York procedure for determining the voluntariness of a confession by submitting that question to the jury at the same time as |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | that question to the jury at the same time as the question of guilt was that the "admixture of reliability and voluntariness in the considerations of the jury would itself entitle a defendant to further proceedings in any case in which the essential *269 facts are disputed, for we cannot determine how the jury resolved these issues and will not assume that they were reliably and properly resolved against the accused." 378 U.S., at In other words, due process forbids the s to adopt procedures that would defeat the institution of federal judicial review.[19] The depth to which these principles are embedded in the concept of due process is evidenced by the fact that we have, on occasion, applied them not merely to rule that a particular state procedure is or is not permissible under the Due Process Clause, but that a particular, specific procedure is required by due process. We have repeatedly held, for example, that a guilty plea and its inevitably attendant waivers of federally guaranteed rights are valid only if they represent a "voluntary and intelligent choice" on the part of the North The validity of a guilty plea may be tested on federal habeas corpus, where facts outside the record may be pleaded and proved. 6 U.S. 101 While recognizing the existence of such a remedy, we held in that due process requires a record "adequate for any review that may be later sought," and does not permit protection of the federally guaranteed rights to be relegated to "collateral proceedings that seek to probe murky memories." Accordingly, we held that due process requires a in accepting a plea of guilty, to make a contemporaneous record adequate "to show that [the defendant] had intelligently and knowingly pleaded guilty." And only last Term, in Goldberg *270 v. we held that because a decision on the withdrawal of welfare benefits must "rest solely on the legal rules and evidence adduced at the hearing," due process requires that the decision-maker "demonstrate compliance with this elementary requirement" by "stat[ing] the reasons for his determination and indicat[ing] the evidence he relied on." C In my view, the cases discussed above establish beyond peradventure the following propositions. First, due process of law requires the s to protect individuals against the arbitrary exercise of state power by assuring that the fundamental policy choices underlying any exercise of state power are explicitly articulated by some responsible organ of state government. Second, due process of law is denied by state procedural mechanisms that allow for the exercise of arbitrary power without providing any means whereby arbitrary |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | exercise of arbitrary power without providing any means whereby arbitrary action may be reviewed or corrected. Third, where federally protected rights are involved due process of law is denied by state procedures which render inefficacious the federal judicial machinery that has been established for the vindication of those rights. If there is any way in which these propositions must be qualified, it is only that in some circumstances the impossibility of certain procedures may be sufficient to permit state power to be exercised notwithstanding their absence. Cf. But the judgment that a procedural safeguard otherwise required by the Due Process Clause is impossible of application in particular circumstances is not one to be lightly made. This is all the more so when, as in the present cases, the argument of impossibility is not made by the parties before us, but only by this Court. Before we *271 conclude that capital sentencing is inevitably a matter of such complexity that it cannot be carried out in consonance with the fundamental requirements of due process, we should at the very least examine the mechanisms developed in not incomparable situations and previously approved by this Court. Therefore, before examining the specific capital sentencing procedures at issue in these cases in light of the Due Process Clause, I am compelled to discuss both the mechanisms available for the control of arbitrary action and the nature of the capital sentencing process. II A legislature that has determined that the should kill some but not all of the persons whom it has convicted of certain crimes must inevitably determine how the is to distinguish those who are to be killed from those who are not. Depending ultimately on the legislature's notion of wise penological policy, that distinction may be hard or easy to make.[20] But capital sentencing is not the only difficult question with which legislatures have ever been faced. At least since we have recognized that the Constitution does not prohibit Congress from dealing with such questions by delegating to others the responsibility for their determination. It is not my purpose to trace in detail either the sources and scope of the delegation doctrine or the extent to which it is applicable to the s through the Due Process Clause. *272 It is sufficient to state that in my view, whatever the sources of the doctrine,[21] its application to the s as a matter of due process[22] is merely a reflection of the fundamental principles of due process already discussed: in my Brother HARLAN'S words, the delegation doctrine "insures that the fundamental policy decisions in |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | the delegation doctrine "insures that the fundamental policy decisions in our society will be made not by an appointed official but by the body immediately responsible to the people [and] prevents judicial review from becoming merely an exercise at large by providing the courts with some measure against which to judge the official action that has been challenged."[23] My intention here is merely to provide an admittedly brief sketch of the several mechanisms that Congress has employed to assure that even with regard to the most complex and intractable problems, delegation by Congress of the power to make law has been subject to controls that limit the possibility of arbitrary action and that assure that Congress retains the responsibility for ultimate decision of fundamental questions of national policy. With these mechanisms in mind, I intend briefly to discuss the considerations relevant to the problem of capital sentencing with an eye to the question whether it may responsibly be said that all of these mechanisms are impossible of application by the s to the capital sentencing process. A At the outset, candor compels recognition that our cases regarding the delegation by Congress of lawmaking power do not always say what they seem to mean. Kenneth Culp Davis has been instrumental in pointing out the "unreality"[24] of judicial language appearing to direct attention solely to the presence or absence of statutory "standards"[25] or an "intelligible principle"[26] by which delegated authority may be guided. See generally 1 * K. Davis, Administrative Law Treatise 2.01 to 2.05 In his words, "The difficulty and complexity of some types of policy determination requires that the legislative body should be allowed to provide for the administrative working out of basic policy through the use of specialized tribunals which use the common-law method of concentrating upon one particular, narrow, and concrete problem at a time. The protection of advance legislative guidance is of little or no consequence as compared with the protection that can and should be provided through adequate procedural safeguards, appropriate legislative supervision or reexamination, and the accustomed scope of judicial review. "The protection that comes from a hearing with a determination on the record, from specific findings and reasons, from opportunity for outside critics to compare one case with another, from critical supervision by the legislative authority and from judicial reviewall this is likely to be superior to protection afforded by definiteness of standards." 2.05, at 98-99, 2.09, at 111[27] *275 The point made by Professor Davis has, I think, often been recognized by Congress. It is not surprising, then, to see that in many |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | It is not surprising, then, to see that in many instances Congress has focused its attention much less upon the definition of precise statutory standards than on the creation of other means adequate to assure that policy is set in accordance with congressional desires and that individuals are treated according to uniform principles rather than administrative whim. Viewed in this light, our cases may be considered as illustrating at least three legislative techniques. First. In a number of instances, Congress has in fact undertaken to regulate even rather complex questions by the prescription of relatively specific standards. It is certainly an open question whether determining what conduct should be subject to criminal sanctions is any more difficult than determining what those sanctions should be; yet Congress and the state legislatures as well have regularly passed criminal codes embodying, in the main, statutes directed at specifically and narrowly defined conduct.[28] Similarly, the Congress resolved what was certainly one of the most delicate and complex questions before it in recent yearsthe extent, if any, to which the national interest warranted federal regulation of organizations, including political parties, infiltrated by, dominated by, or subject to foreign controlnot by leaving the matter to anyone else but by defining with careful particularity the characteristics that were required before *276 an organization could be subject to such regulation. See 50 U.S. C. 782 (3), (4), (4A), (5) ( ed., Supp. V); Communist 7 U.S. 1 Congressional response to the complex and intractable problems of the depression era occasionally took a similar form. Thus the Act approved in United, stated a congressional policy to restore parity prices in milk, defined the term, and delegated to the Secretary of Agriculture only the power to issue orders in terms themselves specified in the Act, commanding minimum prices to be determined in accordance with prescribed standards, to be applicable in areas where prices had fallen below the limit set by Congress. See Second. In other circumstances, Congress has granted to others the power to prescribe fixed rules to govern future activity and adjudications. Such delegations of power permit the legislature to declare the end sought and leave technical matters in the hands of experts,[29] or to leave to others the task of devising specific rules to carry out congressional policy in a variety of factual situations.[30] Where, as is often the case, even major policy decisions may turn on specialized knowledge and expertise beyond legislative ken, delegation of rulemaking power may be made under broad standards to a body chosen for familiarity with the subject matter to be regulated.[] But |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | for familiarity with the subject matter to be regulated.[] But entirely aside from whatever procedural *277 protections may be afforded interested parties prior to the promulgation of administrative rules,[32] the very nature of the rulemaking process provides significant guarantees both of evenhanded treatment and of ultimate legislative supervision of fundamental policy questions. Significantly, we have upheld delegations of rulemaking power without standards to guide its exercise only in two narrowly limited classes of cases.[33] We have otherwise searched the statute, the legislative history, and the context in which the regulation was enacted in order to discern and articulate a legislative policy.[34] The point is not whether an intelligible legislative policy was or was not correctly inferred from the statute. The point is that such a policy, once expressly articulated, not only serves to guide subsequent administrative and judicial action but also provides a basis upon which the legislature may determine whether power is being exercised in accordance *278 with its will.[35] Where no intelligible resolution of fundamental policy questions can be discerned from a statute or judicial decisions, the rulemaking process itself serves to make explicit the agency's resolution of these questions, thus allowing for meaningful legislative supervision,[] as well as providing bases both for judicial review of agency action supposedly premised on the rule[37] and for refinement of an old rule in light of experience gained in its administration. Third. Perhaps the most common legislative technique for dealing with complex questions that will arise in a myriad of factual contexts has been the delegation to another group of lawmaking power which may be exercised either through rulemaking or the adjudication of individual cases, with choice between the two left to the agency's judgment. Such schemes, while allowing broad flexibility for the working out of policy on a case-by-case basis, nevertheless have invariably provided substantial protections to insure against arbitrary action and to guarantee that underlying questions of policy are considered and resolved. As with the delegation simply of rulemaking power, we have often found substantial guidance in the language and history of the governing statute. New York Central Securities ; Radio ; Sunshine Anthracite Coal 0 U.S. 381 Agency action under such delegations must typically be premised upon an explanation of both the findings and reasons for a given *279 decision, e. g., 5 U.S. C. 557 (c) (3) ( ed., Supp. V), a requirement we have held to be far more than an empty formality. 8 U.S. 80 ; Phelps Dodge 3 U.S. 177, The regular course of adjudication by a continuing body required to explain the reasoning |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | adjudication by a continuing body required to explain the reasoning upon which its decisions are based results in the accumulation of a body of precedent from which, over time, general principles may be deduced. See, e. g., the history of the Federal Communications Commission's "fairness doctrine," traced in Red Lion Broadcasting 395 U.S. 7, We have often noted the importance of administrative or judicial review in providing a check on the exercise of arbitrary power, ; American Power & Light 329 U.S. and we have made clear that judicial review is designed to reinforce internal protections against arbitrary or unconsidered action while leaving questions of policy to the agency or the Congress. Thus we have withheld approval from agency action unsupported by an indication of the reasons for that action, Phelps Dodge where the reasons articulated were improper, even though the record might well support identical action taken for different reasons, where administrative expertise relevant to the solution of a problem had never been brought to bear upon it, ; where an apparent conflict in administrative rationales had never been explained by the agency, Barrett Line, ; and where a change in agency policy had taken place after the particular adjudication concerned, v. Gissel Packing Co., 6-616 *280 Combination of rulemaking and adjudicatory powers has proved a particularly useful tool in situations where prescription of detailed standards in the first instance has been difficult or impossible for the Congress, yet the variety of factual situations has rendered particularly important protection against random or arbitrary decisions. Thus in[38] this Court dealt with the provisions of the original Renegotiation Act, passed in April 1942, which directed various administrative officials to proceed with compulsory "renegotiation" of contracts that had resulted in "excessive profits." The Act as originally passed attempted no definition of such profits; within four months, however, administrative practice had solidified about a list of six factors to be considered in determining whether profits were excessive; slightly more than two months later, these factors were adopted by Congress in an amendment to the Act. In upholding the original Act against a claim of excessive delegation, we stressed both the rapid development of generally applicable standards, and the availability of judicial review to check arbitrary or inconsistent administrative action. B The next question is whether there is anything inherent in the nature of capital sentencing that makes impossible the application of any or all of the means that have been elsewhere devised to check arbitrary action. I think it is fair to say that the Court has provided no explanation for its conclusion |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | that the Court has provided no explanation for its conclusion that capital sentencing is inherently incapable of rational treatment. Instead, it relies primarily on the Report of the [British] Royal Commission *281 on Capital Punishment, which reaches conclusions substantially identical with the following urged in 1785 by Archdeacon William Paley to justify England's "Bloody Code" of more than 250 capital crimes: "[T]he selection of proper objects for capital punishment principally depends upon circumstances, which, however easy to perceive in each particular case after the crime is committed, it is impossible to enumerate or define beforehand; or to ascertain, however, with that exactness, which is requisite in legal descriptions. Hence, although it be necessary to fix, by precise rules of law, the boundary on one side yet the mitigation of punishment may, without danger, be intrusted to the executive magistrate, whose discretion will operate upon those numerous, unforeseen, mutable and indefinite circumstances, both of the crime and the criminal, which constitute or qualify the malignity of each offence. For if judgment of death were reserved for one or two species of crimes only crimes might occur of the most dangerous example, and accompanied with circumstances of heinous aggravation, which did not fall within any description of offences that the laws had made capital, and which, consequently, could not receive the punishment their own malignity and the public safety required. "The law of England is constructed upon a different and a better policy. By the number of statutes creating capital offences, it sweeps into the net every crime, which under any possible circumstances may merit the punishment of death: but, when the execution of this sentence comes to be deliberated upon, a small proportion of each class are singled out, the general character, or the peculiar aggravations of whose crimes, render them fit examples of public justice. The wisdom and humanity of this design *282 furnish a just excuse for the multiplicity of capital offences, which the laws of England are accused of creating beyond those of other countries." W. Paley, Principles of Moral and Political Philosophy -401 Significantly, the Court neglects to mention that the recommendations of the Royal Commission on Capital Punishment found little more favor in England than Archdeacon Paley's. For the "British have been unwilling to empower either courts or juries to decide on life or death, insisting that death should be the sentence of the law and not of the tribunal." Symposium on Capital Punishment, 7 N.Y. L. F. 2, 253 (H. Wechsler). Beyond the Royal Commission's Report, the Court supports its conclusions only by referring to |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | Report, the Court supports its conclusions only by referring to the standards proposed in the Model Penal Code[39] and judging them less than perfect. The Court neglects to explain why the impossibility of perfect standards justifies making no attempt whatsoever to control lawless action. In this context the words of Mr. Justice Frankfurter are instructive: "It is not for this Court to formulate with particularity the [standards] which would satisfy the Fourteenth Amendment. No doubt, finding a want of such standards presupposes some conception of what is necessary to meet the constitutional requirement we draw from the Fourteenth Amendment. But many a decision of this Court rests on some inarticulate major premise and is none the worse for it. A standard may be found inadequate without the necessity of explicit delineation of the standards that would be adequate, just as doggerel may be felt not to be poetry without the need of writing an essay *283 on what poetry is." But, although I find the Court's discussion inadequate, there remains the question whether capital sentencing is inherently incapable of being carried out under procedures that provide the safeguards necessary to protect against arbitrary determinations. I think not. I reach this conclusion for the following reasons. First. It is important at the outset to recognize that two separate questions are involved. The first question is what ends any given seeks to achieve by imposing the death penalty. The second question is whether those ends will or will not be served in any given case. The first question requires determination of the penological policy adopted by the in choosing to kill some of its convicted criminals.[40] The second question requires that the relevant facts in any particular case be determined, and that the 's penological policy be applied to those facts. Second. It is likewise important to bear in mind that the complexity of capital sentencing in any particular jurisdiction is inevitably a function of the penological policy to be applied. It is not, inherently, a difficult question. Thus, if a should determine to kill those first-degree murderers who have been previously convicted of murder, and only those persons, the sentencing determination would ordinarily be a rather simple one.[41] On the other hand, if a should determine to exclude only those first-degree murderers who cannot be rehabilitated, *284 it is probably safe to assume that the question of proper sentencing under such a policy would be a complex one indeed. It should be borne in mind that either of these policiesor a host of othersmay have been applied in the cases before |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | host of othersmay have been applied in the cases before us.[42] Third. This is neither the time nor the place for an essay on the purposes of criminal punishment. Yet some discussion must be ventured. Without indicating any judgment as to their proprietyand without intending to suggest that no others may existit is apposite to note that the interests most often discussed in connection with a 's capital sentencing policy are four.[43] A may seek to inflict retribution on a wrongdoer, inflicting punishment strictly in proportion to the offense committed. It may seek, by the infliction of punishment, to deter others from committing similar crimes. It may consider at least some wrongdoers likely to commit other crimes, and therefore seek to prevent these hypothetical future acts by removing such persons from society. It may seek to rehabilitate most offenders, reserving capital punishment only for those cases where it judges the likelihood of rehabilitation to be less than a certain amount. I may assume that many if not all s choosing to kill some convicted criminals intend thereby to further more than one of the ends listed above; and I need not doubt that some s may consider other policies as well relevant to the decision. But I can see no reason whatsoever that a may be excused from declaring what policies it seeks to further by the infliction of capital punishment merely because it may be difficult to determine how those policies should be applied in any particular case. If anything, it would seem that the difficulty of decision in particular cases would support rather *285 than weaken the point that uniform decisionmaking requires that state policy be explicitly articulated. Yet the Court seems somehow to assume that jurors will be most likely to fulfill their function and correctly apply a uniform state policy if they are never told what that policy is. If this assumption finds support anywhere this side of the Looking-Glass World, I am unaware of it. Fourth. This is not to say, of course, that there may be no room whatsoever for the exercise of discretion in the capital sentencing process. But discretion, to be worthy of the name, is not unchanneled judgment; it is judgment guided by reason and kept within bounds. Otherwise, in Lord Camden's words, it is "the law of tyrants: It is always unknown: It is different in different men: It is casual, and depends upon constitution, temper, passion. In the best it is oftentimes caprice: In the worst it is every vice, folly, and passion, to which human nature is liable." |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | vice, folly, and passion, to which human nature is liable." Hindson and Kersey, cited in 8 How. St. Tr. 57 n. It may well be that any given 's notions of proper penological policy are such that the precise amount of weight to be given to any one factor in any particular case where death is a possible penalty is incapable of determination beforehand. But that is no excuse for refusing to tell the decisionmaker whether he should consider a particular factor at all. Particularly where decisions are made, not by a continuing body of persons, but by groups selected to make a single decision and dispersed immediately after the event, the likelihood of any consistency whatsoever is vanishingly small. "Perfection may not be demanded of law, but the capacity to counteract inevitable frailties is the mark of a civilized legal mechanism." 0 The point is that even if a 's notion of wise capital sentencing policy is such that the policy cannot be implemented through a formula capable of mechanical application *286 something which, incidentally, cannot be known unless and until the makes explicit precisely what that policy isthere is no reason that it should not give some guidance to those called upon to render decision. Fifth. As I have already indicated, typical legislative response to problems deemed of sufficient urgency that some solution must be implemented immediately, yet at the same time of sufficient difficulty as to be incapable of explicit statutory solution, has been to provide a means whereby the law may be usefully developed on a case-by-case basis: systems are devised whereby each case may be decided upon its facts, with consistency and the development of more general principles left to the wisdom that comes from experience. I am speaking, of course, of the administrative process, where the basis and reasons for any given decision are explained and subject to review. I see no reason that capital sentencing is ipso facto unsuited to such treatment. To begin with, if a legislature should deem its present knowledge insufficient to create proper standards, it is hard indeed to see why its solution should not be one that could ultimately lead to the development of such standards. Cf. I see no reason that juries which have determined that a given person should be killed by the should be unable to explain why they reached that decision, and the facts upon which it was based. Persons dubious about the ability of juries to explain their findings should consult Cf. Fed. Rule Civ. Proc. Even if it be assumed that juries |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | Rule Civ. Proc. Even if it be assumed that juries are incapable of making such explanations, we have already held that such inability does not excuse the from providing a sentencing process that provides reasons for the decisions reached if those reasons are otherwise required. North *287 In sum, I see no reason whatsoever to believe that the nature of capital sentencing is such that it cannot be surrounded with the protections ordinarily available to check arbitrary and lawless action. That it has not been is, of course, no reason to believe that it cannot be: "As to impossibility, all I can say is that nothing is more true of [the legal] profession than that the most eminent among them, for 100 years, have testified with complete confidence that something is impossible which, once it is introduced, is found to be very easy of administration. The history of legal procedure is the history of rejection of reasonable and civilised standards in the administration of law by most eminent judges and leading practitioners. Every effort to effect improving changes is resisted on the assumption that man's ultimate wisdom is to be found in the legal system as at the date at which you try to make a change." F. Frankfurter, The Problem of Capital Punishment, in Of Law and Men 77, 86 III I have explained above the reasons for my belief that the Due Process Clause of the Fourteenth Amendment compels the s to make explicit the fundamental policy choices upon which any exertion of state power is based, and to exercise such power only under procedures that both limit the possibility of merely arbitrary action and provide a record adequate to render meaningful the institution of federal judicial review. I have also explained why, in my view, there is nothing inherent in the nature of capital sentencing that makes application of such procedures impossible. There remains, then, only the question whether the two state procedures under review today provide the necessary safeguards. *288 A In Ohio, if a capital defendant elects trial by jury the questions whether he is guilty of the crime charged and, if so, whether he should be killed are simultaneously submitted to the jury. Jury trial may, however, be waived as of right in capital cases, (19),[44] or a defendant may, with the permission of the court, enter a plea of guilty. 148 N.E. 2 In the absence of jury trial the sentencing decision is made by a three-judge court. Ohio Rev. Code Ann. 2945.06 (1954). A defendant who exercises his right to jury trial |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | (1954). A defendant who exercises his right to jury trial may introduce only evidence relevant to the question of guilt. No evidence may "be introduced directed specifically toward a claim for mercy," Ohio App. 298, for that "is a matter vested fully and exclusively in the discretion of the jury," (court's syllabus) (1918), and therefore, under Ohio law, is "not an issue in the case." A defendant who can present no evidence on the question of guilt may not, therefore, present any evidence whatsoever to the sentencing jury. A defendant who waives jury trial, however, is in a somewhat different situation. Presumably, of course, the same rules of evidence apply at a bench trial or at a trial upon a plea of guilty.[45] Where the sentencing *289 determination is made by the court, however, two additional factors apply. First, the defendant has an absolute right to address the court before sentence is imposed, Ohio Rev. Code Ann. 2947.05 (1954), denial of which is a ground for resentencing. Silsby v. 119 Ohio St. 4, Since the jury's decision that a defendant should be killed is unreviewable by any court, v. Klumpp, Ohio Op. 2d 461, ; v. Reed, 85 Ohio App. exercise of this right can have no effect on the sentencing determination in jury cases. But the trial court may modify its own sentence during the same term of court, see Lee v. and may therefore be swayed by the defendant's personal plea. Moreover, Ohio Rev. Code Ann. 2947.06 expressly permits a trial court to "hear testimony of mitigation of a sentence at the term of conviction or plea." If this statute is applicable to capital cases,[46] defendants pleading guilty or waiving jury trial may introduce additional information on the question of sentence. Again, however, the unreviewability of a jury sentence means that it can have no effect in cases tried to a jury. Finally, a death sentence imposed by a three-judge court may not be reviewed or modified on appeal. v. Ferguson, 175 Ohio St. 3, ; v. Stewart, 176 Ohio St. 6, The standard instruction given capital juries on the question of punishment appears in v. : "[Y]ou will determine whether or not you will extend or withhold mercy. In that connection *2 whether you recommend or withhold mercy is a matter solely within your discretion, calling for the exercise of your very best and most profound judgment, not motivated by considerations of sympathy or as a means of escaping a hard or disagreeable duty, but must be considered by you in the light of all the circumstances |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | considered by you in the light of all the circumstances of the case with respect to the evidence submitted to you and the other circumstances surrounding this " The jury may be instructed that "sociological matters and environment" have "nothing whatever to do with [the] case," 21 N.E.2d, at but it appears that this instruction is not generally given. Likewise, the trial court may, but is not compelled to, inform the jury about matters such as parole from a sentence to life imprisonment. v. Ohio St. 279, ; v. Ohio St. 2d 86, In petitioner Crampton's case, the jury was instructed generally that it should not be "influenced by any consideration of sympathy or prejudice." On the question of punishment, it was told only that "[i]f you find the defendant guilty of murder in the first degree, the punishment is death, unless you recommend mercy, in which event the punishment is imprisonment in the penitentiary during life." The jury was also handed a verdict form with a "line which you must fill in. Weblankrecommend mercy and you will put in that line, we do, or, we do not, according to your finding." Except for a supplementary instruction informing the jury that its recommendation had to be unanimous, no further instructions on the question of punishment were given the jury. There is in my view no way that this Ohio capital sentencing procedure can be thought to pass muster under the Due Process Clause. *291 First. Nothing whatsoever in the process either sets forth the basic policy considerations that Ohio believes relevant to capital sentencing, or leads towards elucidation of these considerations in the light of accumulated experience. The standard jury instruction contains at best an obscure hint.[47] The instructions given in the present case contain none whatsoever. So far as they are concerned, the jury could have decided to impose the death penalty as a matter of simple vengeance for what it considered an atrocious crime; because it felt that imposition of the death penalty would deter other potential murderers; or because it felt that petitioner, if not himself killed, might kill or commit some other wrong in the future. The jury may have been influenced by any, all, or none of these considerations. If it is beyond the present ability of the Ohio Legislature to "identify before the fact those characteristics of criminal homicides and their perpetrators which"in the judgment of the of Ohio"call for the death penalty, and to express these characteristics in language which can be fairly understood and applied by the sentencing authority," ante, at 204, |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | understood and applied by the sentencing authority," ante, at 204, the Ohio procedure is hardly designed to improve that ability. It contains no element of the proudest tradition of the common lawthe ability to grow with time by slowly deriving principles of general applicability from careful consideration of the myriad facts of a multitude of particular cases. Neither we nor the of Ohio can know the reasoning by which this jury determined to impose the death penalty, or the facts upon which that reasoning was based. All we know is that the jury did not appear to find the question a particularly difficult one. For the jury determined that James Edward Crampton had murdered his wife, that he had done so while legally sane, and that he should be killedin less than five hours. *292 Second. The policies applied by the of Ohio to determine that James Edward Crampton should die were neither articulated to nor explained by the jury that made that decision. Nor have they been elsewhere set forth. The standard jury instructions, at 289-2, do tell the jury to reach its determination "in the light of all the circumstances of the case with respect to the evidence submitted to you and the other circumstances surrounding this " A perceptive jury might conclude that this instruction indicates that Ohio considers the relative severity of the crime a factor of substantial importance in the determination of sentence. How the jury is to determine the severity of the crime before it in relation to others is, however, something of a mystery, since Ohio law simultaneously demands that the sentencing determination be based strictly upon the evidence adduced in the case at hand, Howell v. 1 N.E. 706 and forbids the defendant to introduce evidence of other crimes or other judgments to aid the jury in determining whether the murder he has committed is more or less severe than other murders. Similarly, by directing the jury's attention to "the other circumstances surrounding this defendant" it might be thought that Ohio was suggesting consideration of environmental factors that might make the defendant's actions, if no more justifiable, less a reflection of personal blameworthiness. Yet any such reading of the instruction is condemned by v. which approved a jury charge that environmental factors have "nothing whatever to do" with the sentencing decision. It also might be thought that directing juries to consider "other circumstances surrounding this defendant" is an indication, albeit a rather backhanded one, that Ohio desires capital sentencing juries to take into account the likelihood that a particular defendant *293 may |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | into account the likelihood that a particular defendant *293 may be rehabilitated. Certainly this indication is reinforced in cases where the jury is instructed with regard to the possibility of parole from a life sentence. But instructions on parole are optional with the trial court, v. v. and unless it be assumed that every jury not so instructed is nevertheless aware of the possibility of parole (and likewise that, despite instructions to base its verdict on the evidence in the case, it will nevertheless rely upon its own knowledge of the possibility of parole), failure to instruct all juries with regard to parole must mean either that a state policy with regard to rehabilitation is not in fact implied by such instructions, or else that such a state policy is consciously applied only in some capital cases. Finally, one Ohio case may be explicable only on a basis suggested nowhere else in Ohio law: that the capital sentencing decision rests upon factors that vary depending upon which of two simultaneously applicable capital statutes is used to support punishment. In v. Ferguson, 175 Ohio St. 3, the defendant had been convicted on guilty pleas entered to charges of premeditated murder and felony murder, both growing out of the murder, during the course of a robbery, of a single individual. The three-judge court that heard evidence to fix the penalty on both charges at the same time sentenced him to life imprisonment on the premeditated murder charge, and to death on the charge of felony murder. The Ohio Supreme Court affirmed the sentence of death. In light of these cases, I think it fair to say that Ohio law has nowhere purported to set forth the considerations of state policy intended to underlie a sentence of death. Third. Even if it be assumed that Ohio sentencing judges and juries act upon shared, although unarticulated and unarticulable, notions of proper capital sentencing *294 policy, the capital sentencing process in Ohio contains elements that render difficult if not impossible any consistency in result. Presumably all judges, and certainly some juries (i. e., those who are specifically so instructed) will be cognizant of the possibility of parole from a sentence to life imprisonment. Other juries will not. If this is an irrelevant factor, it is hard to understand why some juries may be given this information. If it is a relevant factor, it is equally hard to understand why other juries are not. And if it is a relevant factor, the inevitable consequence of presenting the information, for no explicable reason, to some but not |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | the information, for no explicable reason, to some but not all capital sentencing juries, is that consistency in decisionmaking is impossible. Similarly, as I have already noted,[48] there is a substantial difference between the evidence that may be considered by a jury and that which may be considered by a sentencing panel of judges. For although the defendant may, in a jury trial, testify on the question of guilt if he is willing to forgo his privilege against self-incrimination, he may not even then present evidence relevant solely to the question of penalty. A defendant who is to be sentenced by a panel of judges, on the other hand, has an absolute right before the sentencing decision becomes final to address the sentencers on any subject he may choose.[] And such a defendant appears as well to have at least a chance to present evidence from other sources relevant solely to the sentencing determination before that determination becomes final.[50] Yet such information may not be presented to a jury, whether the jury desires it or not. The point, again, is that consistent decisionmaking is impossible when one decisionmaker may consider information forbidden to another. *295 And where, as here, no basis whatsoever is presented to justify the difference, it is inexcusable.[51] Fourth. There is, moreover, no reason to believe that Ohio capital sentencing judges and juries do in fact share common notions of the considerations relevant to capital sentencing. I have already pointed out that no state policy has ever been articulated. And whatever may be the case with judges, capital sentencing juries are drawn essentially at random[52] and called upon to decide one case and one case only.[53] Whatever value there may be in the notion that arbitrary decisionmaking may be controlled by committing difficult questions to a continuing body which can at least maintain consistency of principle until it changes its views on the questions to be decided, is entirely absent from the capital jury sentencing process *296 presently under review. For capital sentencing juries in Ohio are not continuing bodies, and no jury may be told what another jury has done in similar (or different) cases. Likewise, the procedure under review cannot gain uniformity from judicial review, for under Ohio law no such review is permitted. Fifth. Although the Due Process Clause does not forbid a from imposing "a different punishment for the same offence under particular circumstances," 9 U.S. 673, it does command that punishment be "dealt out to all alike who are similarly situated." ; ; Even granting the the fullest conceivable room for judgment |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | ; Even granting the the fullest conceivable room for judgment as to what are and are not "particular circumstances" justifying different treatment, this means at the least that the must itself apply the same fundamental policies to all in making that judgment. The institution of federal judicial review is designed to vindicate this (and other[54]) federally guaranteed rights. Yet the procedure before us renders the possibility of such review entirely chimerical. There is no way of determining what policies were applied by the in reaching judgment. There is no way of inferring what policies were applied by an examination of the facts, for we have no idea what facts were relied on by the sentencers. Nor may this void be filled in any way by presumptions based on the result of their actions, for they were neither given direction in the exercise of judgment nor asked to explain the conclusion they reached. There *297 is simply no way that this or any other court can determine whether petitioner Crampton was condemned to die for reasons that Ohio would be willing to apply in any other caseor for reasons that Ohio would, if they were explicitly set forth, just as explicitly reject. In sum, the Ohio capital sentencing procedure presently before us raises fundamental questions of state policy which have never been explicitly decided by any responsible organ of the Nothing in the procedure looks towards the gradual development of a uniform state policy through accumulation of a body of precedent. No protection whatsoever appears against the possibility of merely arbitrary or willful decisionmaking; moreover, some features of the process appear to make inconsistent action not merely possible but inevitable. And finally, the record provided by the Ohio capital sentencing process makes virtually impossible the redress of any violations of federally guaranteed rights through the institution of federal judicial review. I can see no possible basis for holding such a capital sentencing procedure permissible under the Due Process Clause, and I would therefore reverse petitioner Crampton's sentence of death. B The procedures whereby the of California determines which convicted criminals to kill differ in a number of respects from those used by Ohio. Following conviction of a possibly capital crime,[55] the question of penalty *298 is determined in a separate proceeding.[56] Except where the defendant has, with the prosecution's consent,[57] waived trial by jury, the sentencing determination is made by a jury whether conviction was on a plea of guilty or not guilty. A defendant who waives jury trial on the issue of guilt may not have his sentence determined by |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | issue of guilt may not have his sentence determined by a jury. Notwithstanding the statutory language,[58] it appears possible for a defendant whose guilt is determined *299 by a jury to have his sentence determined by a judge. See If a jury is waived, identical sentencing power will be exercised by a single judge. 52 Cal. 2d ; 52 Cal. 2d 6, A jury determination to impose a death sentence may be set aside by the judge presiding at the trial, Cal. Penal Code 1181 (7) construed in 66 Cal. 2d 5, 426 P.2d 8 It may not be otherwise reviewed, whether fixed by a judge or jury. ; In re[59] The range of evidence that may be introduced at the penalty trial is broad. Ordinary rules of competence, hearsay, etc., apply, e. g., 3 P.2d 398, and a few issues are excluded. Exclusion, however, appears to be not on the basis that the issues are irrelevant, but rather that they are either unduly inflammatory or impractical to litigate. Thus, evidence or argument is prohibited concerning the likelihood of parole from a life sentence, 60 Cal. 2d 6, ;[60] concerning the deterrent effects of capital punishment, 435-4 ; 6 P.2d 33 ; 6 P. 2d *300[61] although some reference to the matter may (as in the present case, see App. 199) be made by the prosecution and be treated under the harmless-error doctrine, 7 P.2d 680 especially if trial is to the court, ; concerning whether capital punishment should ever be imposed, ;[62] or concerning physical suffering of the victim unintended by the defendant,[63] Except for these limitations, however, virtually any matter may be explored. 142-3, 3 P.2d 381, Following the arguments of counsel,[64] the jury is instructed on its function in determining the penalty to be imposed. A standard instruction on the subject exists[65]*301 but is not mandatory; it is, essentially, the instruction given in the present case: "The defendants in this case have been found guilty of the offense of murder in the first degree, and it is now your duty to determine which of the penalties provided by law should be imposed on each defendant for that offense. Now, in arriving at this determination you should consider all of the evidence received here in court presented by the People and defendants throughout the trial before this jury. You may also consider all of the evidence of the circumstances surrounding the crime, of each defendant's background and history, and of the facts in aggravation or mitigation of the penalty which have been received here in court. However, it |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | penalty which have been received here in court. However, it is not essential to your decision that you find mitigating circumstances on the one hand or evidence in aggravation of the offense on the other hand. "It is the law of this state that every person guilty of murder in the first degree shall suffer death or confinement in the state prison for life, at the discretion of the jury. If you should fix the penalty as confinement for life, you will so indicate in your verdict. If you should fix the penalty as death, you will so indicate in your verdict. Notwithstanding facts, if any, proved in mitigation or aggravation, in determining which punishment shall be inflicted, you are entirely free to act according to your own judgment, conscience, and absolute discretion. That verdict must express the individual opinion of each juror. "Now, beyond prescribing the two alternative penalties, the law itself provides no standard for the * guidance of the jury in the selection of the penalty, but, rather, commits the whole matter of determining which of the two penalties shall be fixed to the judgment, conscience, and absolute discretion of the jury. In the determination of that matter, if the jury does agree, it must be unanimous as to which of the two penalties is imposed."[66] Substantially more elaborate versions of this instruction may, if the trial court desires, be given. In addition, the trial court is supposed to instruct the jury that a defendant serving a life sentence may be paroled, but that it should not presume that the California Adult Authority will release a prisoner until it is safe to do so, and that it should not take the possibility of parole into account. Finally, under California law it is error to charge that the jury's verdict should express the conscience of the community; the jury should be told, instead, that the verdict must "express the individual conscience of each juror."[67] *303 A substantial number of subsidiary instructions may but need not be given to the jury; the governing principle is that the instructions must make clear to the jury that its decision whether or not a convicted defendant is to be killed is to take place in a "legal vacuum." 61 Cal. 2d, at 4, 3 P.2d, at 392; see 47 Cal. 2d 7, A trial judge may, should he desire, "aid the jury by stating the kinds of factors that may be considered, thereby setting the tone for the jury's deliberation," so long as this is done in a manner that indicates to |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | as this is done in a manner that indicates to the jury that it is free not to consider any of the factors listed by the judge, and to consider anything else it may desire, It is not, however, error to refuse such an instruction. Similarly, although a trial judge may instruct the jury that it may be moved by sympathy for the defendant, 64 Cal. 2d 414 P.2d 6 he may refuse to give such an instruction at defense request, ery, although it is error to instruct the jury that it may not be so moved. It is error to instruct the jury that it may not consider doubts about the defendant's guilt as mitigating circumstances, but it is not error to refuse to charge that such doubt may be a mitigating factor, although the trial judge may give such a charge if he desires, Finally, a jury determination to impose the death sentence may not be reviewed by any court. It may, however, be set aside by the judge presiding at the trial. The *304 basis upon which the California Supreme Court has made this distinction, of some importance in the present case, is not entirely clear. The trial judge's power to reduce a sentence of death to one of life imprisonment is based on Cal. Penal Code 1181 (7) which provides, in pertinent part, that "in any case wherein authority is vested by statute in the trial court or jury to recommend or determine as a part of its verdict or finding the punishment to be imposed, the court may modify such verdict or finding by imposing the lesser punishment without granting or ordering a new trial, and this power shall extend to any court to which the case may be appealed." The California Supreme Court has construed this statute to empower the trial court to set aside a jury verdict of death, 53 Cal. 2d but not to give any such power to an appellate court, P.2d 307, ; In re This is said to be because "the trier of fact is vested with exclusive discretion to determine punishment." at P.2d, at 325. What this means is that the trial court does not review the jury's determination that a convicted defendant should be killed; based upon its "own independent view of the evidence," 6 P.2d 33, quoting at 348 P.2d, at the trial court is to determine itself whether the defendant should be killed, apparently on exactly the same basis and in exactly the same way as it would if the issue had never been submitted |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | as it would if the issue had never been submitted to a jury.[68] See 66 Cal. 2d 5, 426 P.2d 8 ; In re *305 In short, no defendant sentenced to die may obtain judicial review of that decision, but one sentenced to die by a jury gets a second bite at the apple: he is "entitled to two decisions on the evidence." I find this procedure likewise defective under the Due Process Clause. Although it differs in some not insignificant respects from the procedure used in Ohio, it nevertheless is entirely bare of the fundamental safeguards required by due process. First. Both procedures contain at their heart the same basic vice. Like Ohio, California fails to provide any means whereby the fundamental questions of state policy with regard to capital sentencing may be authoritatively resolved. They have not been resolved by the state legislature, which has committed the matter entirely to whatevery judge or jury may exercise sentencing authority in any particular case. But they cannot be authoritatively resolved by the sentencing authority, not only because the California Supreme Court has expressly ruled that that is not part of the sentencing function, 6 P., at 56, but also because any such resolution is binding for one case and one case only. There are simply no means to assure that "truly fundamental issues [will ultimately] be resolved by the Legislature," Wilke & Holzheiser, 65 Cal. 2d 3, 9, Nothing whatsoever anywhere in the process gives any assurance that one defendant will be sentenced upon notions of California penological policy even vaguely resembling those applied to the next. Second. If the question before us were what procedure would produce the fewest number of death sentences, the power of a trial judge to set aside a jury's verdict might be of substantial importance. But that, of course, is not *306 the question. Except insofar as it incorporates the Eighth Amendment's prohibition against cruel and unusual punishmentsnot an issue in these casesthe Due Process Clause gives us no warrant to interfere with a 's decision to make certain crimes punishable by death. The Due Process Clause commands us, however, to make certain that no takes one man's life for reasons that it would not apply to another. And even if it be assumed that trial judges obey the California Supreme Court's direction to exercise their own, independent judgment on the propriety of a jury-imposed death penalty,[69] the existence of the trial court's power to set aside such verdicts adds little to the likelihood of evenhanded treatment. For this power is to be exercised |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | of evenhanded treatment. For this power is to be exercised in precisely the same way as the jury'swithout guideline or check, without review, without any explanation of reasons or findings of fact, without any opportunity for ultimate legislative acceptance or rejection of the policies applied. It is true that trial judges are in a sense "professional sentencers"; presumably any given judge, to the extent that he actually does exercise independent judgment on the question,[70] will do his best to avoid conscious inconsistency. But there remains a multiplicity of sentencing judges, all of whom have been expressly told by the Supreme Court of California not to seek guidance for their decision from the statute, from that court's opinions, or indeed from any source outside their own, individual opinions. See *307 In such circumstances, the possibility of consistent decisionmaking is nonexistent. "A multiplicity of tribunals and a diversity of procedures are quite as apt to produce incompatible or conflicting adjudications as are different rules of substantive law." 4-1 Third. Like its Ohio counterpart, the California procedure before us inevitably operates to frustrate the institution of federal judicial review. We do not and cannot know what facts the jury relied upon in determining that petitioner McGautha should be killed, or the reasons upon which it based that decision. We do not knowand cannot knowthe basis upon which the of California determined that he was not "fit to live," We do know that the prosecutor, in her closing argument, strongly urged to the jury that Dennis Councle McGautha should be killed because he had the unregenerate bad taste to insist that he had once pleaded guilty to a crime he did not commit.[71] Cf. North -39. We also know *308 that nothing in the instructions given the jury contained the slightest hint that this could not be the sole basis for its decision. See at 301-. And, finally, we also know that whatever factors the of California relied upon to sentence petitioner McGautha to deathfactors permissible or impermissible, applied by the to every convicted capital criminal or to him alonethere is no way whatsoever that petitioner can demonstrate that those factors were relied upon and obtain review of their propriety. In short, the procedure before us in this case simultaneously invites sentencers to flout the Constitution of the United s and promises them that, should they do so, their action is immune from federal judicial review.[72] Astoundingly, the Court in upholding the procedure explicitly commends this very feature. See ante, at 207-208.[73] I do not think that such a procedure *309 is consistent with |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | not think that such a procedure *309 is consistent with the Due Process Clause, and I would accordingly reverse petitioner McGautha's sentence of death. C I have indicated above the reasons why, in my judgment, the procedures adopted by Ohio and California to sentence-convicted defendants to die are inconsistent with the most basic and fundamental principles of due process. But even if I thought these procedures adequate to try a welfare claimwhich they are not, I would have little hesitation in finding them inadequate where life itself is at stake. For we have long recognized that the degree of procedural regularity required by the Due Process Clause increases with the importance of the interests at stake. See Cafeteria 7 U.S. 886, ; at 0-1 Where First Amendment interests have been involved we have held the s to stringent procedural requirements indeed. See, e. g., ; Freedman v. ; A Quantity of ; 7 U.S. 717 ; Of course the First Amendment is "an interest of transcending value," but so is life itself. Yet the Court's opinion turns the law on its head to conclude, apparently, that because a decision to take someone's life is of such tremendous import, those who make such decisions need not be "inhibit[ed]" by the safeguards otherwise required by due process of law. Ante, at 208. My belief is to the contrary, and I would hold that no which determines to take a human life is thereby exempted from the constitutional command that it do so only by "due process of law." *0 IV Finally, a few words should be said about matters peripherally suggested by these cases. First, these cases do not in the slightest way draw into question the power of the s to determine whether or not to impose the death penalty itself, any more than 382 U.S. involved the power of the of Pennsylvania to impose criminal punishment on persons who should fire a pistol loaded with blanks at another. Second, these cases do not call upon us to determine whether petitioners' trials were "fairly conducted" in the way referred to by my Brother BLACK. Ante, at 225. What they do call upon us to determine is whether the Due Process Clause requires the s, in his words, "to make certain that men would be governed by law, not the arbitrary fiat of the man or men in power," In re Winship, and whether if a acting through its jury, applies one standard to determine that one convicted criminal should die, "the Due Process Clause commands that every trial in that jurisdiction |
Justice Brennan | 1,971 | 13 | dissenting | McGautha v. California | https://www.courtlistener.com/opinion/108329/mcgautha-v-california/ | Due Process Clause commands that every trial in that jurisdiction must adhere to that standard." Third, we are not called upon to determine whether "the death penalty is appropriate punishment" for the petitioners before us. Ante, at 221. That determination is for the s.[74] The Court, however, apparently believes that the procedures before us are to be upheld because the results in the present cases comport with its own, unarticulated notions of capital sentencing policy. See This fundamental misapprehension of the judicial function pervades the Court's opinion, which after a single brief mention of the Due Process Clause entirely eschews discussion *1 of the Constitution, and instead speaks only of the considerations upon which it believes the s should rest their capital sentencing policy. Ante, at 196-208. Finally, I should add that for several reasons the present cases do not draw into question the power of the s that should so desire to commit their criminal sentencing powers to a jury. For one thing, I see no reason to believe that juries are not capable of explaining, in simple but possibly perceptive terms, what facts they have found and what reasons they have considered sufficient to take a human life. Second, I have already indicated why I believe that life itself is an interest of such transcendent importance that a decision to take a life may require procedural regularity far beyond a decision simply to set a sentence at one or another term of years. Third, where jury sentencing involves such a decision, determination of the ultimate questionhow many years a defendant will actually serveis generally placed very substantially in the hands of a parole board a single, continuing board of professionals whose general supervision and accumulated wisdom can go far toward insuring consistency in sentencing. And finally, in most cases where juries are asked to fix a convicted defendant's sentence at one or another term of years, they must inevitably be aware that, no matter what they do, the defendant will eventually return to society. With this in mind, a jury should at the very least recognize that rehabilitation must be a factor of substantial weight in its deliberations. Of course, none of these cases are before us, and I do not mean to imply that any and every question other than the question of life or death may be submitted by a to a jury to be determined in its unguided, unreviewed, and unreviewable discretion. But I cannot help concluding that the Court's opinion, at its *2 core, rests upon nothing more solid than its inability to imagine |
Justice Stevens | 1,988 | 16 | dissenting | Pinter v. Dahl | https://www.courtlistener.com/opinion/112098/pinter-v-dahl/ | Although I substantially agree with the Court's discussion of the in pari delicto defense in Parts II-A and II-B of its opinion, I disagree with its application of that discussion to the facts of this case.[1] Moreover, I am unable to join Part *656 III because I am persuaded that the discussion of the 12(1) term "seller" in the context of a contribution suit is both advisory, because no such suit was brought in this case, and misleading, because it assumes that the class of persons who sell securities to purchasers (i. e., 12(1) "sellers") is coextensive with the class of potential defendants in claims for contribution, not brought directly under 12(1), asserted by 12(1) sellers. 12(1), Securities Act of 1933, 15 U.S. C. 77l(1). I In this case, Pinter had the burden of proving that Dahl shared at least equal responsibility for the action that resulted in the 12(1) violation, i. e., the failure to register the securities. But, as the Court notes, Pinter has conceded that "nothing in the record indicates whether Dahl was a participant in the decision not to register the securities." Ante, at 640, n. 15; see Brief for Petitioners 27. Further, the Court of Appeals concluded, and it is undisputed here, that there is no evidence that Dahl knew that the failure to register the securities was unlawful.[2] *657 Because "the District Court made no findings as to who was responsible for the failure to register or for the manner in which the offering was conducted," ante, at 641, the majority concludes that we must remand for further findings. It seems to me, though, that the District Court's failure to make findings on the critical issue of responsibility for failure to register is properly attributed to Pinter's failure to direct the court's attention to the issue. Pinter pleaded his in pari delicto defense as follows: "The Plaintiff, M. Dahl, engaged in fraudulent misrepresentations to Pinter and the other Plaintiffs, all as set forth in the Defendant's Counterclaim. He is therefore barred from recovery for the causes of action set forth in [Plaintiffs' First Amended Complaint], by reason of his conduct in pari delicto in connection with the offer, sale and delivery of the securities of that which he complains." App. 67. In light of the fact that the District Court expressly found that the "evidence did not establish that defendants are entitled to any relief on their counterclaims," App. to Pet. for Cert. a-38, it would seem to follow that the District Court also found that there was no factual basis for the in |
Justice Stevens | 1,988 | 16 | dissenting | Pinter v. Dahl | https://www.courtlistener.com/opinion/112098/pinter-v-dahl/ | found that there was no factual basis for the in pari delicto affirmative defense as pleaded. Pinter did, though, in his proposed findings of fact and conclusions of law, set forth a somewhat different theory for the in pari delicto defense. He proposed as a conclusion of law that "[a]s a result of his participation in the solicitation of the investment by other Plaintiffs in the subject lease transactions, Dahl is in pari delicto and cannot recover in this action as a matter of law." 2 Record 274. Thus, if one construes this proposal liberally as amending the pleading, it is fair to conclude that the District Court was at least directed to examine the nature of Dahl's participation in the solicitation of others to invest in the Pinter leases. But nowhere in his proposed findings of fact or conclusions of law did Pinter suggest that Dahl played any role in the failure to register the *658 securities. To be sure, in arguing that the private offering exemption should apply, Pinter asked the court to find that Dahl "received or collected most of the investment proceeds from [the other investors] and hand delivered the funds to Pinter. He had disclosure of or access to all of the information requisite to a registration statement." But all of this was proposed to convince the court that the private offering exemption applied, and, more importantly, none of it suggests that Dahl aided Pinter in any way in the latter's decision not to (or failure to) register the securities. Thus, by permitting Pinter to argue now, on remand, for the first time, that Dahl played a role in the failure to register, the majority gives Pinter a second chance to litigate an issue that he was in no way prevented from litigating the first time before the District Court. Since there is nothing in the record to suggest that the District Court committed any error of law in rejecting the in pari delicto defense, the fact that the Court of Appeals may have entertained a different legal view of the defense than we do is not a sufficient reason for giving Pinter another opportunity to prove facts that he failed to establish at trial.[3] II The question concerning Pinter's possible right to contribution from Dahl relates only to the proceeds of the sales to the *659 plaintiffs other than Dahl who elected to sue Pinter and not Dahl. Initially, it is unclear how this matter is properly before us. The Court acknowledges that "Pinter's pleadings do not state an explicit cause of action for |
Justice Stevens | 1,988 | 16 | dissenting | Pinter v. Dahl | https://www.courtlistener.com/opinion/112098/pinter-v-dahl/ | pleadings do not state an explicit cause of action for contribution against Dahl," see ante, at 630, n. 9, and suggests that "the Court of Appeals construed Pinter's affirmative defense for contributory fault and his incorporation of this defense into his counterclaims, as effectively seeking contribution." If this were so then the matter is easily resolvable, for as I have pointed the District Court expressly found that the "evidence did not establish that defendants are entitled to any relief on their counterclaims," and there is nothing in the record indicating (nor any assertion here) that the District Court applied an erroneous legal standard in rejecting the counterclaims. In any event, Pinter in fact brought no claim for contribution, and the fact that the Court of Appeals saw fit to discuss whether Dahl could be held liable in such a hypothetical lawsuit does not, in my opinion, justify the issuance of an advisory opinion by this Court.[4] Even if there is a right to contribution in cases like this,[5] and even if Pinter had alleged a claim for contribution against *660 Dahl, I see no reason for assuming that the merits of such a claim would be governed by the definition of the term "seller" as used in 12(1). For even if Dahl might be regarded as a seller in an action brought by the other purchasers of unregistered securities, Pinter would have a right to contribution against Dahl only if Dahl had received some of the proceeds of sale for which Pinter had been held accountable. Moreover, the contours of the right to contribution may be such that if Dahl had shared in those proceeds knowing that they had been obtained in violation of law, he might have to return his share even if he was not technically a "seller" of any securities. For it is by no means clear that the class of persons who may be held liable for contribution to those held primarily liable in 12(1) rescission actions should be limited to those who "successfully solici[t] the purchase, motivated at least in part by a desire to serve his own financial interests or those of the securities owner." Ante, at 647. Thus, the Court's discussion of the "seller" issue is neither sufficient nor necessary for the resolution of Pinter's putative contribution claim. It would be necessary, however, in resolving a contribution claim such as this, to determine whether the defendant had to account for any proceeds that were actually held by the third-party (contribution) defendant. For 12(1) is an action for rescission. The statute expressly provides that |
Justice Stevens | 1,988 | 16 | dissenting | Pinter v. Dahl | https://www.courtlistener.com/opinion/112098/pinter-v-dahl/ | is an action for rescission. The statute expressly provides that the purchaser of an unregistered security may "recover the consideration paid for such security with interest thereon, less the amount of any income received thereon, upon the tender of *661 such security." 15 U.S. C. 77l(1). The judgment entered by the District Court tracked the language of the statute. After reciting that the plaintiffs had made a tender of the securities purchased from Pinter, it ordered that each of them "have judgment against B. J. Pinter, individually and d/b/a/ Black Gold Oil Company, in the amount of their purchase price for the securities purchased, plus prejudgment interest thereon at the rate of 6% annum from the date of payment of their purchase price in May, 1981, less the amount of any income a Plaintiff received on the security." App. 92. The District Court found that all of the unregistered securities were "offered, sold and delivered" by the defendant Pinter "individually and d/b/a/ Black Gold Oil Company," App. to Pet. for Cert. a-32, and it is undisputed that all of the proceeds of sale were received by Pinter. Specifically, the District Court found: "Dahl did not receive from defendants any commission, by way of discount or otherwise, in connection with the purchase by any plaintiff of the fractional undivided oil and gas interests involved in this suit." at a-34. Given the undisputed facts, the statutory remedy of rescission[6] was complete when the securities were returned in exchange for the purchase price plus interest. Even if there may be a basis for a right to contribution in cases in which one seller has shared the proceeds of sale with another and has been held liable for those proceeds, it seems obvious to me that the scheme of the statute would be frustrated by allowing a seller to recover from a third party who did not receive any part of the purchase price.[7] The Court of Appeals *662 expressly recognized this independent basis for affirmance when it stated: "In light of the clear purpose of section 12(1) to disgorge the purchase price from the seller of unregistered securities, we view as unsound any result which would permit Pinter to retain part of the consideration paid by plaintiffs." In my opinion, this is a sufficient reason for affirming the judgment of the Court of Appeals. |
Justice Burger | 1,986 | 12 | concurring | Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal. | https://www.courtlistener.com/opinion/111596/pacific-gas-elec-co-v-public-util-commn-of-cal/ | I join JUSTICE POWELL's opinion, but think we need not go beyond the authority of to decide this case. I would not go beyond the central question presented by this case, which is the infringement of Pacific's right to be free from forced association with views with which it disagrees. I would also rely on that part of Miami Herald Publishing holding that a forced right of reply violates a newspaper's right to be free from forced dissemination of views it would not voluntarily disseminate, just as we held that Maynard must be free from being forced by the State to disseminate views with which he disagreed. To compel Pacific to mail messages for others cannot be distinguished from compelling it to carry the messages of others on its trucks, its buildings, or other property used in the conduct of its business. For purposes of this case, those properties cannot be distinguished from property like the mailing envelopes acquired by Pacific from its income and resources. JUSTICE MARSHALL, concurring in the judgment. In PruneYard Shopping we held that a State could, consistently with the Federal Constitution, prohibit the private owner of a shopping center from using state trespass law to exclude peaceful expressive *22 activity in the open areas of the shopping center. Concurring in PruneYard, I viewed the State's abrogation of the property owner's traditional right to exclude as raising the question of how the Federal Constitution limits a State's ability to redefine its common-law property rights. See Today we face a similar question. In the present case, California has taken from appellant the right to deny access to its property its billing envelope to a group that wishes to use that envelope for expressive purposes. Two significant differences between the State's grant of access in this case and the grant of access in PruneYard lead me to find a constitutional barrier here that I did not find in the earlier case. The first difference is the degree of intrusiveness of the permitted access. We noted in PruneYard: "[T]he shopping center by choice of its owner is not limited to the personal use of [its owner]. It is instead a business establishment that is open to the public to come and go as they please." The challenged rule did not permit a markedly greater intrusion onto the property than that which the owner had voluntarily encouraged, nor did it impair the commercial value of the property. ; see also In the present case, by contrast, appellant has never opened up its billing envelope to the use of |
Justice Burger | 1,986 | 12 | concurring | Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal. | https://www.courtlistener.com/opinion/111596/pacific-gas-elec-co-v-public-util-commn-of-cal/ | never opened up its billing envelope to the use of the public.[1] Appellant *23 has not abandoned its right to exclude others from its property to the degree that the shopping center owner had done in PruneYard. Were appellant to use its billing envelope as a sort of community billboard, regularly carrying the messages of third parties, its desire to exclude a particular speaker would be deserving of lesser solicitude. As matters stand, however, appellant has issued no invitation to the general public to use its billing envelope for speech or for any other purpose.[2] Moreover, the shopping center in PruneYard bore a strong resemblance to the streets and parks that are traditional public forums. People routinely gathered there, at the owner's invitation, and engaged in a wide variety of activities. Adding speech to the list of those activities did not in any great way change the complexion of the property. The same is not true in this case. The second difference between this case and PruneYard is that the State has chosen to give TURN a right to speak at the expense of appellant's ability to use the property in question *24 as a forum for the exercise of its own First Amendment rights. While the shopping center owner in PruneYard wished to be free of unwanted expression, he nowhere alleged that his own expression was hindered in the slightest. In contrast, the present case involves a forum of inherently limited scope. By appropriating, four times a year, the space in appellant's envelope that appellant would otherwise use for its own speech, the State has necessarily curtailed appellant's use of its own forum. The regulation in this case, therefore, goes beyond a mere infringement of appellant's desire to remain silent, see post, at 32-35 (REHNQUIST, J., dissenting). While the interference with appellant's speech is, concededly, very slight, the State's justification the subsidization of another speaker chosen by the State is insufficient to sustain even that minor burden. We have held that the State may use its own resources for subsidization, but that interest, standing alone, cannot justify interference with the speech of others. See ; First National Bank of[3] In the *25 instant case, the only state interest identified by appellees is ensuring that ratepayers are "expos[ed] to a variety of views," App. to Juris. Statement A-17, in order to provide "the most complete understanding possible of energy-related issues," at A-22. This is no different from the interest that we found insufficient to justify restraints on individual political expenditures in Even assuming that the State could assert |
Justice Burger | 1,986 | 12 | concurring | Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal. | https://www.courtlistener.com/opinion/111596/pacific-gas-elec-co-v-public-util-commn-of-cal/ | political expenditures in Even assuming that the State could assert a more compelling interest in, for example, curbing actual abuses of the ratemaking process, it has never demonstrated that its regulation is tailored to serve such an interest. Indeed, it disclaims any duty to make that showing, based on its conclusion that ratepayers "own" the extra space. See App. to Juris. Statement A-22. The regulation at issue here, therefore, differs significantly from the Securities and Exchange Commission proxy regulation cited by JUSTICE STEVENS, post, at 39. In PruneYard, I recognized that the State may generally create or abrogate rights " `to attain a permissible legislative object.' " ). In the present case, the State has redefined a property right in the extra space in appellant's billing envelope in such a way as to achieve a result burdening the speech of one party in order to enhance the speech of another that the First Amendment disallows. In doing so, moreover, it has sanctioned an intrusion onto appellant's property that exceeds the slight incursion permitted in PruneYard. Under these circumstances, I believe that the State has crossed the boundary between constitutionally permissible and impermissible redefinitions of private property. In reaching this conclusion, I do not mean to suggest that I would hold, contrary to our precedents, that the corporation's First Amendment rights are coextensive with those of individuals, or that commercial speech enjoys the same protections *26A as individual speech. In essentially all instances, the use of business property to carry out transactions with the general public will permit the State to restrict or mandate speech in order to prevent deception or otherwise protect the public's health and welfare. In many instances, such as in PruneYard, business property will be open to the public to such an extent that the public's expressive activities will not interfere with the owner's use of property to a degree that offends the Constitution. The regulation at issue in this case, I believe, falls on the other side of the line. Accordingly, I join the Court's judgment. |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | The School District of Grad Rapids, Michiga, adopted two programs i which classes for opublic school studets are fiaced by the public school system, taught by teachers hired by the public school system, ad coducted i "leased" classrooms i the opublic schools. Most of the opublic schools ivolved i the programs are sectaria religious schools. This case raises the questio whether these programs impermissibly ivolve the govermet i the support of sectaria religious activities ad thus violate the Establishmet Clause of the First Amedmet. I A At issue i this case are the Commuity ad Shared Time programs offered i the opublic schools of Grad Rapids, Michiga. These programs, first istituted i the 1976-1977 school year, provide classes to opublic school studets at public expese i classrooms located i ad leased from the local opublic schools. The Shared Time program offers classes durig the regular schoolday that are iteded to be supplemetary to the "core curriculum" courses that the State of Michiga requires as a part of a accredited school program. Amog the subjects offered are "remedial" ad "erichmet" mathematics, "remedial" ad "erichmet" readig, art, music, ad physical educatio. A typical opublic school studet atteds these classes for oe or two class periods per week; approximately "te percet of ay give opublic school studet's time durig the academic year would cosist of Shared Time istructio." Americas Uited for Separatio of Church ad Although Shared Time itself is a program offered oly i the opublic schools, there was testimoy that the courses icluded i that program are offered, albeit perhaps i a somewhat differet form, i the *376 public schools as well. All of the classes that are the subject of this case are taught i elemetary schools, with the exceptio of Math Topics, a remedial mathematics course taught i the secodary schools.[1] The Shared Time teachers are full-time employees of the public schools, who ofte move from classroom to classroom durig the course of the schoolday. A "sigificat portio" of the teachers (approximately 10%) "previously taught i opublic schools, ad may of those had bee assiged to the same opublic school where they were previously employed." The School District of Grad Rapids hires Shared Time teachers i accordace with its ordiary hirig procedures. The public school system apparetly provides all of the supplies, materials, ad equipmet used i coectio with Shared Time istructio. See App. 341. The Commuity program is offered throughout the Grad Rapids commuity i schools ad o other sites, for childre as well as adults. The classes at issue here are taught i the opublic elemetary schools |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | at issue here are taught i the opublic elemetary schools ad commece at the coclusio of the regular schoolday. Amog the courses offered are Arts ad Crafts, Home Ecoomics, Spaish, Gymastics, Yearbook Productio, Christmas Arts ad Crafts, Drama, Newspaper, Humaities, Chess, Model *377 Buildig, ad Nature Appreciatio. The District Court foud that "[a]lthough certai Commuity courses offered at opublic school sites are ot offered at the public schools o a Commuity basis, all Commuity programs are otherwise available at the public schools, usually as a part of their more extesive regular curriculum." 546 F. Supp., at Commuity teachers are part-time public school employees. Commuity courses are completely volutary ad are offered oly if 12 or more studets eroll. Because a well-kow teacher is ecessary to attract the requisite umber of studets, the School District accords a preferece i hirig to istructors already teachig withi the school. Thus, "virtually every Commuity course coducted o facilities leased from opublic schools has a istructor otherwise employed full time by the same opublic school." Both programs are admiistered similarly. The Director of the program, a public school employee, seds packets of course listigs to the participatig opublic schools before the school year begis. The opublic school admiistrators the decide which courses they wat to offer. The Director works out a academic schedule for each school, takig ito accout, iter alia, the varyig religious holidays celebrated by the schools of differet deomiatios. Nopublic school admiistrators decide which classrooms will be used for the programs, ad the Director the ispects the facilities ad cosults with Shared Time teachers to make sure the facilities are satisfactory. The public school system pays the opublic schools for the use of the ecessary classroom space by eterig ito "leases" at the rate of $6 per classroom per week. The "leases," however, cotai o metio of the particular room, space, or facility leased ad teachers' rooms, libraries, lavatories, ad similar facilities are made available at o additioal charge. *378 Each room used i the programs has to be free of ay crucifix, religious symbol, or artifact, although such religious symbols ca be preset i the adjoiig hallways, corridors, ad other facilities used i coectio with the program. Durig the time that a give classroom is beig used i the programs, the teacher is required to post a sig statig that it is a "public school classroom."[2] However, there are o sigs posted outside the school buildigs idicatig that public school courses are coducted iside or that the facilities are beig used as a public school aex. Although petitioers label the Shared |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | as a public school aex. Although petitioers label the Shared Time ad Commuity studets as "part-time public school studets," the studets attedig Shared Time ad Commuity courses i facilities leased from a opublic school are the same studets who atted that particular school otherwise. There is o evidece that ay public school studet has ever atteded a Shared Time or Commuity class i a opublic school. The District Court foud that "[t]hough Defedats claim the Shared Time program is available to all studets, the record is abudatly clear that oly opublic school studets wearig the cloak of a `public school studet' ca eroll i it." The District Court oted that "[w]hereas public school studets are assembled at the public facility earest to their residece, studets i religious schools are assembled o the basis of religio without ay cosideratio of residece or school district boudaries." Thus, "beeficiaries are wholly desigated o the basis of religio," ib ad these "public school" classes, i cotrast to ordiary public *379 school classes which are largely eighborhood based, are as segregated by religio as are the schools at which they are offered.[3] Forty of the forty-oe schools at which the programs operate are sectaria i character.[4] The schools of course vary from oe aother, but substatial evidece suggests that they share deep religious purposes. For istace, the Paret Hadbook of oe Catholic school states the goals of Catholic educatio as "[a] God orieted eviromet which permeates the total educatioal program," "[a] Christia atmosphere which guides ad ecourages participatio i the church's commitmet to social justice," ad "[a] cotiuous developmet of kowledge of the Catholic faith, its traditios, teachigs ad theology." A policy statemet of the Christia schools similarly proclaims that "it is ot sufficiet that the teachigs of Christiaity be a separate subject i the curriculum, but the Word of God must be a all-pervadig force i the educatioal program." These Christia schools require all parets seekig to eroll their childre either to subscribe to a particular doctrial statemet or to agree to have their childre taught accordig to the doctrial statemet. The District Court foud that the schools are "pervasively sectaria," ad cocluded "without hesitatio that the purposes of these schools is to advace their particular religios," ad that "a substatial portio of their fuctios are subsumed i the religious missio." *380 B Respodets are six taxpayers who filed suit agaist the School District of Grad Rapids ad a umber of state officials. They charged that the Shared Time ad Commuity programs violated the Establishmet Clause of the First Amedmet of the Costitutio, made |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | Establishmet Clause of the First Amedmet of the Costitutio, made applicable to the States through the Fourteeth Amedmet. After a 8-day bech trial, the District Court etered a judgmet o the merits o behalf of respodets ad ejoied further operatio of the programs.[5] Applyig the familiar three-part purpose, effect, ad etaglemet test set out i the court held that, although the purpose of the programs was secular, their effect was "distictly impermissible." 546 F. Supp., The court relied i particular o the fact that the programs at issue ivolved publicly provided istructioal services that served opublic school studets segregated largely by religio o opublic school premises. The court oted that the programs coferred "direct beefits, both fiacial ad otherwise, to the sectaria istitutios." Fially, the court foud that the programs ecessarily etailed a uacceptable level of etaglemet, both political ad admiistrative, betwee the *381 public school systems ad the sectaria schools. Petitioers appealed the judgmet of the District Court to the Court of Appeals for the Sixth Circuit. A divided pael of the Court of Appeals affirmed. Americas Uited for Separatio of Church ad We grated certiorari, ad ow affirm. II A The First Amedmet's guaratee that "Cogress shall make o law respectig a establishmet of religio," as our cases demostrate, is more tha a pledge that o sigle religio will be desigated as a state religio. Committee for Public & Religious ; ; It is more tha a mere ijuctio that govermetal programs discrimiatig amog religios are ucostitutioal. See, e. g., Abigto School ; The Establishmet Clause istead primarily proscribes "sposorship, fiacial support, ad active ivolvemet of the sovereig i religious activity." ; see As Justice Black, writig for the Court i stated: "Neither [a State or the Federal Govermet] ca pass laws which aid oe religio, aid all religios, or prefer oe religio over aother. No tax i ay amout, large or small, ca be levied to support ay religious activities or istitutios, whatever they may be called, or whatever form they may adopt to teach or practice religio." Sice Everso made clear that the guaratees of the Establishmet Clause apply to the States, we have ofte grappled with the problem of state aid to opublic, religious schools. I all of these cases, our goal has bee to give meaig to the sparse laguage ad broad purposes of the *382 Clause, while ot uduly ifrigig o the ability of the States to provide for the welfare of their people i accordace with their ow particular circumstaces. Providig for the educatio of schoolchildre is surely a praiseworthy purpose. But |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | the educatio of schoolchildre is surely a praiseworthy purpose. But our cases have cosistetly recogized that eve such a praiseworthy, secular purpose caot validate govermet aid to parochial schools whe the aid has the effect of promotig a sigle religio or religio geerally or whe the aid uduly etagles the govermet i matters religious. For just as religio throughout history has provided spiritual comfort, guidace, ad ispiratio to may, it ca serve powerfully to divide societies ad to exclude those whose beliefs are ot i accord with particular religios or sects that have from time to time achieved domiace. The solutio to this problem adopted by the Framers ad cosistetly recogized by this Court is jealously to guard the right of every idividual to worship accordig to the dictates of cosciece while requirig the govermet to maitai a course of eutrality amog religios, ad betwee religio ad o-religio. Oly i this way ca we "make room for as wide a variety of beliefs ad creeds as the spiritual eeds of ma deem ecessary" ad "sposor a attitude o the part of govermet that shows o partiality to ay oe group ad lets each flourish accordig to the zeal of its adherets ad the appeal of its dogma." We have oted that the three-part test first articulated i -613, guides "[t]he geeral ature of our iquiry i this area," : "Every aalysis i this area must begi with cosideratio of the cumulative criteria developed by the Court over may years. Three such tests may be gleaed from our cases. First, the statute must have a secular legislative purpose; secod, its pricipal or primary *383 effect must be oe that either advaces or ihibits religio, Board of v. Alle, ; fially, the statute must ot foster `a excessive govermet etaglemet with religio.' Walz [v. Tax Comm', ]." 403 U. S., -613. These tests "must ot be viewed as settig the precise limits to the ecessary costitutioal iquiry, but serve oly as guidelies with which to idetify istaces i which the objectives of the Establishmet Clause have bee impaired." v. Pitteger, We have particularly relied o Lemo i every case ivolvig the sesitive relatioship betwee govermet ad religio i the educatio of our childre. The govermet's activities i this area ca have a magified impact o impressioable youg mids, ad the occasioal rivalry of parallel public ad private school systems offers a all-too-ready opportuity for divisive rifts alog religious lies i the body politic. See Committee for Public & Religious ; The Lemo test cocetrates attetio o the issues purposes, effect, etaglemet |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | test cocetrates attetio o the issues purposes, effect, etaglemet that determie whether a particular state actio is a improper "law respectig a establishmet of religio." We therefore reaffirm that state actio alleged to violate the Establishmet Clause should be measured agaist the Lemo criteria. As has ofte bee true i school aid cases, there is o dispute as to the first test. Both the District Court ad the Court of Appeals foud that the purpose of the Commuity ad Shared Time programs was "maifestly secular." ; see We fid o reaso to disagree with this holdig, ad therefore go o to cosider whether the primary or pricipal effect of the challeged programs is to advace or ihibit religio. *384 B Our iquiry must begi with a cosideratio of the ature of the istitutios i which the programs operate. Of the 41 private schools where these "part-time public schools" have operated, 40 are idetifiably religious schools. It is true that each school may ot share all of the characteristics of religious schools as articulated, for example, i the complait i v. Pitteger, ; see The District Court foud, however, that "[b]ased upo the massive testimoy ad exhibits, the coclusio is iescapable that the religious istitutios receivig istructioal services from the public schools are sectaria i the sese that a substatial portio of their fuctios are subsumed i the religious missio." 546 F. Supp., ; see Hut v. ; v. Pitteger, ("The very purpose of may of those schools is to provide a itegrated secular ad religious educatio"); ("to assure future adherets to a particular faith" is "a affirmative if ot domiat policy of church schools"). At the religious schools here as at the sectaria schools that have bee the subject of our past cases "the secular educatio those schools provide goes had i had with the religious missio that is the oly reaso for the schools' existece. Withi that istitutio, the two are iextricably itertwied."[6], (opiio of BRENNAN, J.). See v. Pitteger, ; Board of v. Alle, *385 Give that 40 of the 41 schools i this case are thus "pervasively sectaria," the challeged public school programs operatig i the religious schools may impermissibly advace religio i three differet ways. First, the teachers participatig i the programs may become ivolved i itetioally or iadvertetly iculcatig particular religious teets or beliefs. Secod, the programs may provide a crucial symbolic lik betwee govermet ad religio, thereby elistig at least i the eyes of impressioable yougsters the powers of govermet to the support of the religious deomiatio operatig |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | of govermet to the support of the religious deomiatio operatig the school. Third, the programs may have the effect of directly promotig religio by impermissibly providig a subsidy to the primary religious missio of the istitutios affected. (1) Although Establishmet Clause jurisprudece is characterized by few absolutes, the Clause does absolutely prohibit govermet-fiaced or govermet-sposored idoctriatio ito the beliefs of a particular religious faith. See Stoe v. Graham, ; v. Pitteger, ; ("The State must be certai, give the Religio Clauses, that subsidized teachers do ot iculcate religio"); Levitt v. Committee for Public & Religious Liberty, ("[T]he State is costitutioally compelled to assure that the state-supported activity is ot beig used for religious idoctriatio"); Egel v. ; ("Govermet may ot fiace religious groups or udertake religious istructio or bled secular ad sectaria educatio"). Such idoctriatio, if permitted to occur, would have devastatig effects o the right of each idividual volutarily to determie what to believe (ad what ot to believe) free of ay coercive pressures from the State, while at the same time taitig the resultig religious beliefs with a corrosive secularism. *386 I v. Pitteger, the Court ivalidated a statute providig for the loa of state-paid professioal staff icludig teachers to opublic schools to provide remedial ad accelerated istructio, guidace couselig ad testig, ad other services o the premises of the opublic schools. Such a program, if ot subjected to a "comprehesive, discrimiatig, ad cotiuig state surveillace," 403 U. S., (quoted i ), would etail a uacceptable risk that the state-sposored istructioal persoel would "advace the religious missio of the church-related schools i which they serve." 421 U. S., Eve though the teachers were paid by the State, "[t]he potetial for impermissible fosterig of religio uder these circumstaces, although somewhat reduced, is oetheless preset." The program i if ot sufficietly moitored, would simply have etailed too great a risk of state-sposored idoctriatio. The programs before us today share the defect that we idetified i With respect to the Commuity program, the District Court foud that "virtually every Commuity course coducted o facilities leased from opublic schools has a istructor otherwise employed full time by the same opublic school." 546 F. Supp., at These istructors, may of whom o doubt teach i the religious schools precisely because they are adherets of the cotrollig deomiatio ad wat to serve their religious commuity zealously, are expected durig the regular schoolday to iculcate their studets with the teets ad beliefs of their particular religious faiths. Yet the premise of the program is that those istructors ca put aside their religious covictios |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | is that those istructors ca put aside their religious covictios ad egage i etirely secular Commuity istructio as soo as the schoolday is over. Moreover, they are expected to do so before the same religious school studets ad i the same religious school classrooms that they employed to advace religious purposes *387 durig the "official" schoolday. Noetheless, as petitioers themselves asserted, Commuity classes are ot specifically moitored for religious cotet. App. 353. We do ot questio that the dedicated ad professioal religious school teachers employed by the Commuity program will attempt i good faith to perform their secular missio coscietiously. Cf. Lemo, Noetheless, there is a substatial risk that, overtly or subtly, the religious message they are expected to covey durig the regular schoolday will ifuse the supposedly secular classes they teach after school. The dager arises "ot because the public employee [is] likely deliberately to subvert his task to the service of religio, but rather because the pressures of the eviromet might alter his behavior from its ormal course." Wolma v. "The coflict of fuctios iheres i the situatio." The Shared Time program, though structured somewhat differetly, oetheless poses a substatial risk of state-sposored idoctriatio. The most importat differece betwee the programs is that most of the istructors i the Shared Time program are full-time teachers hired by the public schools. Moreover, although "virtually every" Commuity istructor is a full-time religious school teacher, 546 F. Supp., at oly "[a] sigificat portio" of the Shared Time istructors previously worked i the religious schools.[7] Noetheless, as with the Commuity program, o attempt is made to moitor the Shared Time courses for religious cotet. App. 330.[8] *388 Thus, despite these differeces betwee the two programs, our holdig i cotrols the iquiry with respect to Shared Time, as well as Commuity Shared Time istructors are teachig academic subjects i religious schools i courses virtually idistiguishable from the other courses offered durig the regular religious schoolday. The teachers i this program, eve more tha their Commuity colleagues, are "performig importat educatioal services i schools i which educatio is a itegral part of the domiat sectaria missio ad i which a atmosphere dedicated to the advacemet of religious belief is costatly maitaied." v. Pitteger, Teachers i such a atmosphere may well subtly (or overtly) coform their istructio to the eviromet i which they teach, while studets will perceive the istructio provided i the cotext of the domiatly religious message of the istitutio, thus reiforcig the idoctriatig effect. As we stated i "[w]hether the subject is `remedial readig,' `advaced readig,' or simply `readig,' a teacher remais |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | `remedial readig,' `advaced readig,' or simply `readig,' a teacher remais a teacher, ad the dager that religious doctrie will become itertwied with secular istructio persists." Ulike types of aid that the Court has upheld, such as state-created stadardized tests, Committee for Public & Religious Liberty v. Rega, or diagostic services, Wolma v. there is a "substatial risk" that programs operatig i this eviromet would "be used for religious educatioal purposes." Committee for Public & Religious Liberty v. Rega, The Court of Appeals of course recogized that respodets adduced o evidece of specific icidets of religious idoctriatio i this But the absece of proof of specific icidets is ot dispositive. Whe coductig a supposedly secular class i the pervasively sectaria eviromet of a religious school, a teacher may kowigly or uwilligly tailor the cotet of the course to fit the school's aouced goals. If so, there is o reaso to believe *389 that this kid of ideological ifluece would be detected or reported by studets, by their parets, or by the school system itself. The studets are presumably attedig religious schools precisely i order to receive religious istructio. After spedig the balace of their schoolday i classes heavily iflueced by a religious perspective, they would have little motivatio or ability to discer improper ideological cotet that may creep ito a Shared Time or Commuity course. Neither their parets or the parochial schools would have cause to complai if the effect of the publicly supported istructio were to advace the schools' sectaria missio. Ad the public school system itself has o icetive to detect or report ay specific icidets of improper state-sposored idoctriatio. Thus, the lack of evidece of specific icidets of idoctriatio is of little sigificace. (2) Our cases have recogized that the Establishmet Clause guards agaist more tha direct, state-fuded efforts to idoctriate yougsters i specific religious beliefs. Govermet promotes religio as effectively whe it fosters a close idetificatio of its powers ad resposibilities with those of ay or all religious deomiatios as whe it attempts to iculcate specific religious doctries. If this idetificatio coveys a message of govermet edorsemet or disapproval of religio, a core purpose of the Establishmet Clause is violated. See Lych v. Doelly, 465 U.S. (O'CONNOR, J., cocurrig); cf. Abigto School (history teaches that "powerful sects or groups might brig about a fusio of govermetal ad religious fuctios or a cocert or depedecy of oe upo the other to the ed that official support of the State or Federal Govermet would be placed behid the teets of oe or of all orthodoxies"). As we |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | the teets of oe or of all orthodoxies"). As we stated i Larki v. Gredel's De, Ic., : "[T]he mere appearace of a joit exercise of legislative authority by Church ad State provides a sigificat symbolic beefit to *390 religio i the mids of some by reaso of the power coferred." See Widmar v. Vicet, (fidig effect "icidetal" ad ot "primary" because it "does ot cofer ay imprimatur of state approval o religious sects or practices"). It follows that a importat cocer of the effects test is whether the symbolic uio of church ad state effected by the challeged govermetal actio is sufficietly likely to be perceived by adherets of the cotrollig deomiatios as a edorsemet, ad by the oadherets as a disapproval, of their idividual religious choices. The iquiry ito this kid of effect must be coducted with particular care whe may of the citizes perceivig the govermetal message are childre i their formative years.[9] Cf. Widmar v. Vicet, at ; Tilto v. Richardso, The symbolism of a uio betwee church ad state is most likely to ifluece childre of teder years, whose experiece is limited ad whose beliefs cosequetly are the fuctio of eviromet as much as of free ad volutary choice. Our school-aid cases have recogized a sesitivity to the symbolic impact of the uio of church ad state. Grapplig with problems i may ways parallel to those we face today, held that a public school may ot permit part-time religious istructio o its premises as a part of the school program, eve if participatio i that istructio is etirely volutary ad eve if the istructio itself is coducted oly by opublic school persoel. Yet i 343 U. S. *391 306 the Court held that a similar program coducted off the premises of the public school passed costitutioal muster. The differece i symbolic impact helps to explai the differece betwee the cases. The symbolic coectio of church ad state i the McCollum program preseted the studets with a graphic symbol of the "cocert or uio or depedecy" of church ad state, see This very symbolic uio was cospicuously abset i the program.[10] I the programs challeged i this case, the religious school studets sped their typical schoolday movig betwee religious school ad "public school" classes. Both types of classes take place i the same religious school buildig ad both are largely composed of studets who are adherets of the same deomiatio. I this eviromet, the studets would be ulikely to discer the crucial differece betwee the religious school classes ad the "public school" classes, eve if the |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | school classes ad the "public school" classes, eve if the latter were successfully kept free of religious idoctriatio. As oe commetator has writte: "This pervasive [religious] atmosphere makes o the youg studet's mid a lastig imprit that the holy ad trascedetal should be cetral to all facets of life. It icreases respect for the church as a istitutio to guide oe's total life adjustmets ad udoubtedly helps stimulate iterest i religious vocatios. I short, the parochial school's total operatio serves to fulfill both secular ad religious fuctios cocurretly, ad the two caot be completely separated. Support of ay part of its activity etails some support of the disqualifyig religious fuctio of moldig the religious persoality *392 of the youg studet." Giaella, Religious Liberty, Noestablishmet ad Doctrial Developmet: Part II. The Noestablishmet Priciple, Cosequetly, eve the studet who otices the "public school" sig[11] temporarily posted would have before him a powerful symbol of state edorsemet ad ecouragemet of the religious beliefs taught i the same class at some other time durig the day. As Judge Friedly, writig for the Secod Circuit i the compaio case to the case at bar, stated: "Uder the City's pla public school teachers are, so far as appearace is cocered, a regular adjuct of the religious school. They pace the same halls, use classrooms i the same buildig, teach the same studets, ad cofer with the teachers hired by the religious schools, may of them members of religious orders. The religious school appears to the public as a joit eterprise staffed with some teachers paid by its religious sposor ad others by the public." Felto v. Secretary, Uited States Dept. of Ed., This effect the symbolic uio of govermet ad religio i oe sectaria eterprise is a impermissible effect uder the Establishmet Clause. (3) I the Court stated that "[]o tax i ay amout, large or small, ca be levied to support ay religious activities or istitutios, whatever they may be called, or whatever form they may adopt to teach or practice religio." With but oe exceptio, our subsequet cases have struck dow attempts by States to make paymets out of public tax dollars *393 directly to primary or secodary religious educatioal istitutios. See, e. g., Committee for Public & Religious -781 (reimbursemet for maiteace ad repair expeses); Levitt v. Committee for Public & Religious Liberty, (reimbursemet for teacher-prepared tests); (salary supplemets for opublic school teachers). But see Committee for Public & Religious Liberty v. Rega, (permittig public subsidy for certai routiized recordkeepig ad testig services performed by opublic schools but required by state |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | testig services performed by opublic schools but required by state law). Aside from cash paymets, the Court has distiguished betwee two categories of programs i which public fuds are used to fiace secular activities that religious schools would otherwise fud from their ow resources. I the first category, the Court has oted that it is "well established that ot every law that cofers a `idirect,' `remote,' or `icidetal' beefit upo religious istitutios is, for that reaso aloe, costitutioally ivalid." Committee for Public & Religious at ; Roemer v. Marylad Public Works Board, ; Hut v. -743. I such "idirect" aid cases, the govermet has used primarily secular meas to accomplish a primarily secular ed, ad o "primary effect" of advacig religio has thus bee foud. O this ratioale, the Court has upheld programs providig for loas of secular textbooks to opublic school studets, Board of v. Alle, ; see Wolma v. -238; v. Pitteger, 421 U. S., at -362, ad programs providig bus trasportatio for opublic school childre, I the secod category of cases, the Court has relied o the Establishmet Clause prohibitio of forms of aid that provide "direct ad substatial advacemet of the sectaria eterprise." Wolma v. I such "direct * aid" cases, the govermet, although actig for a secular purpose, has doe so by directly supportig a religious istitutio. Uder this ratioale, the Court has struck dow state schemes providig for tuitio grats ad tax beefits for parets whose childre atted religious school, see Sloa v. Lemo, ; Committee for Public & Religious ad programs providig for "loa" of istructioal materials to be used i religious schools, see Wolma v. ; v. Pitteger, I Sloa ad the aid was formally give to parets ad ot directly to the religious schools, while i Wolma ad the aid was i-kid assistace rather tha the direct cotributio of public fuds. Noetheless, these differeces i form were isufficiet to save programs whose effect was idistiguishable from that of a direct subsidy to the religious school. Thus, the Court has ever accepted the mere possibility of subsidizatio, as the above cases demostrate, as sufficiet to ivalidate a aid program. O the other had, this effect is ot wholly uimportat for Establishmet Clause purposes. If it were, the public schools could gradually take o themselves the etire resposibility for teachig secular subjects o religious school premises. The questio i each case must be whether the effect of the proffered aid is "direct ad substatial," Committee for Public & Religious at 784-785, 39, or idirect ad icidetal.[12] "The problem, like may problems i costitutioal |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | idirect ad icidetal.[12] "The problem, like may problems i costitutioal law, is oe of degree." *395 We have oted i the past that the religious school has dual fuctios, providig its studets with a secular educatio while it promotes a particular religious perspective. See -402; Board of v. Alle, I ad Wolma, we held ucostitutioal state programs providig for loas of istructioal equipmet ad materials to religious schools, o the groud that the programs advaced the "primary, religio-orieted educatioal fuctio of the sectaria school." ; Wolma, Cf. Wolma, at (upholdig provisio of diagostic services, which were " `geeral welfare services for childre that may be provided by the State regardless of the icidetal beefit that accrues to church-related schools,' " quotig at 371, 21). The programs challeged here, which provide teachers i additio to the istructioal equipmet ad materials, have a similar ad forbidde effect of advacig religio. This kid of direct aid to the educatioal fuctio of the religious school is idistiguishable from the provisio of a direct cash subsidy to the religious school that is most clearly prohibited uder the Establishmet Clause. Petitioers claim that the aid here, like the textbooks i Alle, flows primarily to the studets, ot to the religious schools.[13] Of course, all aid to religious schools ultimately "flows to" the studets, ad petitioers' argumet if accepted would validate all forms of oideological aid to religious schools, icludig those explicitly rejected i our prior cases. Yet i we held ucostitutioal the loa of istructioal materials to religious schools ad i Wolma, we rejected the fictio that a similar program could be saved by maskig it as aid to idividual studets. Wolma, 433 *, 16. It follows a fortiori that the aid here, which icludes ot oly istructioal materials but the provisio of istructioal services by teachers i the parochial school buildig, "iescapably [has] the primary effect of providig a direct ad substatial advacemet of the sectaria eterprise." Where, as here, o meaigful distictio ca be made betwee aid to the studet ad aid to the school, "the cocept of a loa to idividuals is a trasparet fictio." Wolma v. (opiio of POWELL, J.). Petitioers argue that this "subsidy" effect is ot sigificat i this case, because the Commuity ad Shared Time programs supplemeted the curriculum with courses ot previously offered i the religious schools ad ot required by school rule or state regulatio. Of course, this fails to distiguish the programs here from those foud ucostitutioal i See As i we do ot fid that this feature of the program is cotrollig. First, |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | fid that this feature of the program is cotrollig. First, there is o way of kowig whether the religious schools would have offered some or all of these courses if the public school system had ot offered them first. The distictio betwee courses that "supplemet" ad those that "supplat" the regular curriculum is therefore ot early as clear as petitioers allege. Secod, although the precise courses offered i these programs may have bee ew to the participatig religious schools, their geeral subject matter readig, mathematics, etc. was surely a part of the curriculum i the past, ad the cocers of the Establishmet Clause may thus be triggered despite the "supplemetal" ature of the courses. Cf. v. Pitteger, 421 U. S., -371. Third, ad most importat, petitioers' argumet would permit the public schools gradually to take over the etire secular curriculum of the religious school, for the latter could surely discotiue existig courses so that they might be replaced a year or two later by a Commuity or Shared Time course with the same cotet. The average *397 religious school studet, for istace, ow speds 10% of the schoolday i Shared Time classes. But there is o pricipled basis o which this Court ca impose a limit o the percetage of the religious schoolday that ca be subsidized by the public school. To let the geie out of the bottle i this case would be to permit ever larger segmets of the religious school curriculum to be tured over to the public school system, thus violatig the cardial priciple that the State may ot i effect become the prime supporter of the religious school system. See -625. III We coclude that the challeged programs have the effect of promotig religio i three ways.[14] The state-paid istructors, iflueced by the pervasively sectaria ature of the religious schools i which they work, may subtly or overtly idoctriate the studets i particular religious teets at public expese. The symbolic uio of church ad state iheret i the provisio of secular, state-provided istructio i the religious school buildigs threates to covey a message of state support for religio to studets ad to the geeral public. Fially, the programs i effect subsidize the religious fuctios of the parochial schools by takig over a substatial portio of their resposibility for teachig secular subjects. For these reasos, the coclusio is iescapable that the Commuity ad Shared Time programs have the "primary or pricipal" effect of advacig religio, ad therefore violate the dictates of the Establishmet Clause of the First Amedmet. Nopublic schools have played a importat |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | of the First Amedmet. Nopublic schools have played a importat role i the developmet of America educatio, ad we have log recogized *398 that parets ad their childre have the right to choose betwee public schools ad available sectaria alteratives. AS THE CHIEF JUSTICE oted i : "[N]othig we have said ca be costrued to disparage the role of church-related elemetary ad secodary schools i our atioal life. Their cotributio has bee ad is eormous." But the Establishmet Clause "rest[s] o the belief that a uio of govermet ad religio teds to destroy govermet ad to degrade religio." Egel v. Therefore, "[t]he Costitutio decrees that religio must be a private matter for the idividual, the family, ad the istitutios of private choice, ad that while some ivolvemet ad etaglemet are ievitable, lies must be draw." Because "the cotrollig costitutioal stadards have become firmly rooted ad the broad cotours of our iquiry are ow well defied," Committee for Public & Religious the positio of those lies has by ow become quite clear ad requires affirmace of the Court of Appeals. It is so ordered. CHIEF JUSTICE BURGER, cocurrig i the judgmet i part ad dissetig i part. I agree with the Court that, uder our decisios i ad Earley v. DiCeso, decided together with Lemo, the Grad Rapids Commuity program violates the Establishmet Clause. As to the Shared Time program, I disset for the reasos stated i my dissetig opiio i Aguilar v. Felto, post, p. 402. JUSTICE O'CONNOR, cocurrig i the judgmet i part ad dissetig i part. For the reasos stated i my dissetig opiio i Aguilar v. Felto, post, p. 402, I disset from the Court's holdig that the Grad Rapids Shared Time program impermissibly *399 advaces religio. Like the New York Title I program, the Grad Rapids Shared Time program employs full-time public school teachers who offer supplemetal istructio to parochial school childre o the premises of religious schools. Nothig i the record idicates that Shared Time istructors have attempted to proselytize their studets. I see o reaso why public school teachers i Grad Rapids are ay more likely tha their couterparts i New York to disobey their istructios. The Court relies o the District Court's fidig that a "sigificat portio of the Shared Time istructors previously taught i opublic schools, ad may of those had bee assiged to the same opublic school where they were previously employed." Americas Uited for Separatio of Church ad See ate, at 376, 387, ad 7. I fact, oly 13 Shared Time istructors have ever bee employed by ay parochial school, |
Justice Brennan | 1,985 | 13 | majority | School Dist. of Grand Rapids v. Ball | https://www.courtlistener.com/opinion/111505/school-dist-of-grand-rapids-v-ball/ | Time istructors have ever bee employed by ay parochial school, ad oly a fractio of those 13 ow work i a parochial school where they were previously employed. App. 193. The experiece of these few teachers does ot sigificatly icrease the risk that the perceived or actual effect of the Shared Time program will be to iculcate religio at public expese. I would uphold the Shared Time program. I agree with the Court, however, that the Commuity program violates the Establishmet Clause. The record idicates that Commuity courses i the parochial schools are overwhelmigly taught by istructors who are curret full-time employees of the parochial school. The teachers offer secular subjects to the same parochial school studets who atted their regular parochial school classes. I additio, the supervisors of the Commuity program i the parochial schools are by ad large the pricipals of the very schools where the classes are offered. Whe full-time parochial school teachers receive public fuds to teach secular courses to their parochial school studets *400 uder parochial school supervisio, I agree that the program has the perceived ad actual effect of advacig the religious aims of the church-related schools. This is particularly the case where, as here, religio pervades the curriculum ad the teachers are accustomed to brig religio to play i everythig they teach. I cocur i the judgmet of the Court that the Commuity program violates the Establishmet Clause. |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | I concur in the judgment of the Court and I join its opinion on the assumption that the Court is not deciding either of the following propositions: 1. Whether a State may institute in some state court a civil proceeding to adjudicate obscenity and then, merely by notifying publishers and exhibitors of the pendency of such adjudication, thereby bind them everywhere throughout the jurisdiction. I take it, specifically, that the concluding sentence of the fourth-to-last paragraph of the Court's opinion, ante, at 676, does not resolve that question. If it does, I refrain from joining that resolution. 2. Whether a system which merely allows one to initiate a challenge to an ex parte determination of obscenity is constitutionally proper. I take it that the second paragraph in Part II of the Court's opinion, ante, at 674, does not resolve that question. If it does, I refrain from joining it. I had believed, in this connection, that it is *678 settled that the burden of proving that a particular expression is unprotected rests on the censor, ; Southeastern Promotions, and is not to be shifted to the other side by a mere "avenue for initiating a challenge." I specify these reservations because I feel that each of the stated propositions in the First Amendment area may well be a close and difficult one, that neither has been resolved by this Court, and that, surely, neither needs to be decided in this case. MR. JUSTICE BRENNAN. I concur insofar as the judgment of conviction is reversed. I have frequently stated my view that "at least in the absence of distribution to juveniles or obtrusive exposure to unconsenting adults, the First and Fourteenth Amendments prohibit the State and Federal Governments from attempting wholly to suppress sexually oriented materials on the basis of their allegedly `obscene' contents." See Paris Adult Theatre Upon that view the Alabama Law on Obscenity, which forbids such dissemination of explicit sexual material to consenting adults, is facially unconstitutional in both its civil and criminal aspects. Therefore, while I agree that petitioner could not constitutionally be convicted and sentenced in a criminal proceeding wherein the issue of obscenity vel non was held to be concluded against him by the decree in a civil proceeding to which he was not a party and of which he had no notice, rather than remand for further proceedings not inconsistent with the Court's opinion, I would declare the Alabama law unconstitutional and hold that petitioner cannot be criminally prosecuted for its violation. However, since presently prevailing constitutional jurisprudence *679 accords States a broader power |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | presently prevailing constitutional jurisprudence *679 accords States a broader power to regulate obscenity than I concede, it is appropriate in that circumstance that I state my concern that the Alabama law contains provisions that violate the First and Fourteenth Amendments because they impermissibly create the risk that citizens will shy away from disseminating or possessing literature and materials that the entire Court would agree are constitutionally protected. See I The Alabama Law on Obscenity takes a form that is gaining increasing favor among the States. It permits a test of the issue of obscenity in a civil action prior to any exposure to a criminal penalty. This Court has acknowledged the value of this approach to the solution of the vexing problem of reconciling state efforts to suppress sexually oriented expression with the prohibitions of the First Amendment, as applied to the States through the Fourteenth Amendment. "Instead of requiring the bookseller to dread that the offer for sale of a book may, without prior warning, subject him to a criminal prosecution with the hazard of imprisonment, the civil procedure assures him that such consequences cannot follow unless he ignores a court order specifically directed to him for a prompt and carefully circumscribed determination of the issue of obscenity." Kingsley Books, "[S]uch a procedure provides an exhibitor or purveyor of materials the best possible notice, prior to any criminal indictments, as to whether the materials are unprotected by the First Amendment and subject to state regulation." Paris Adult Theatre See generally Lockhart, Escape from the Chill of Uncertainty: Explicit Sex and the First Amendment, 569-7 *680 The Alabama statute, enacted in 1961 and expressly styled the Alabama Law on Obscenity, Ala. Act. No. 856, Ala. Code, Tit. 14, c. 64A recites in 2 that the Act's purpose is to provide public prosecutors with both a speedy civil remedy for obtaining a judicial determination of the character and contents of publications and an effective power to reach persons responsible for the composition, publication, and distribution of obscene publications within the State. To that end, the statute distinguishes between "mailable" and "nonmailable" matter. This case concerns only the provisions governing "mailable" matter, defined as printed or written material "having second class mailing privileges under the laws of the United States," or which has not been "determined to be nonmailable" under such laws. 3.[1] A criminal prosecution based upon "mailable" matter may be brought only when such matter has been, to the defendant's knowledge, "judicially found to be obscene" in a prior civil proceeding under the Act. 4. A prosecuting attorney (solicitor for |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | proceeding under the Act. 4. A prosecuting attorney (solicitor for any judicial circuit or county solicitor) may commence "an action In Equity for an adjudication of the obscenity of the mailable matter" if he has "reasonable cause to believe that any person, with knowledge of its contents," is shipping mailable obscene publications into Alabama or is selling such publication in the State. 5. The action is "directed *681 against the mailable matter by name or description" and the respondents are the "author, publisher and any other person" responsible for offering the matter "for sale or commercial distribution" in the State or "giving it away or offering to give it away, or possessing it with the intent to sell or commercially distribute or exhibit or give away or offer to give it away." 6. Upon the filing of the complaint and the exhibits, the court "as soon as practicable" must examine the materials and ex parte dismiss the complaint "[i]f there is no probable cause to believe that the mailable matter is obscene." 7. If, however, the court finds probable cause, "it may forthwith issue an order temporarily restraining and prohibiting the sale or distribution of such matter" and issue an order to show cause, "returnable not less than ten days after its service," why the matter shall not be adjudicated obscene. A full adversary hearing follows, to "be heard and disposed of with the maximum promptness and dispatch commensurate with constitutional requirements, including due process, freedom of press and freedom of speech." 9.[2] The *682 proceeding is to be conducted under the Rules of Civil Procedure in equity cases.[3] If, after a full hearing, a publication is found obscene, the respondents may be enjoined from further distribution of that publication in Alabama, and respondents residing in Alabama may be required to dispose of such publications in their possession. 10. An injunction is binding "only upon the Respondents to the action and upon those persons in active concert or participation with such Respondents who receive actual notice" 11. Disobedience of an injunction constitutes contempt of court by any respondent or by "any person in active concert or participation by contract or agreement with such respondent, [who receives] actual notice" of the injunction. 13. If any respondent fails to comply with an order to dispose of the matter, the court may direct the sheriffs in the State to "seize and destroy all such obscene mailable matter." 10 (c). The civil provisions are so interwoven with the Act's criminal and other general provisions, 4, that the constitutional questions raised by them cannot be |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | 4, that the constitutional questions raised by them cannot be properly addressed, in my view, without considering the entire Act as it bears upon "mailable" material. This conclusion is underscored by a "cumulative" obscenity law addressed to "hard-core" pornography enacted by Alabama in 1969. Ala. Code, Tit. 14, c. 64C, 374 (16j-16o) Section 374 (16k) (c) of that statute provides that the prohibition against selling, exhibiting, or possessing such materials shall not "be deemed to apply to mailable matter unless such mailable matter is known by such person to have been judicially found to be obscene or to *683 represent hard-core pornography under this chapter or under the provisions of any other Alabama statutes." I shall not discuss all of the provisions that raise questions but only those that appear to me most clearly to be vulnerable to constitutional challenge. II Burden of proof There can be no question that uncertainty inheres in the definition of obscenity. It is therefore to be expected that those who market written material pertaining to sex should, from fear of criminal prosecution, refrain from handling what may be constitutionally protected literature on that subject. It is this hazard to material protected by the First Amendment which commends Alabama's efforts to minimize that hazard by its regulatory scheme. A civil procedure that complies with the commands of the First Amendment and due process may serve the public interest in controlling obscenity without exposing the marketer to the risks and the stigma of a criminal prosecution, and thus protect, by minimizing the risk of marketer self-censorship, the right to the free publication and dissemination of constitutionally protected literature. But by shifting the determination of obscenity vel non to the civil context, the Alabama scheme creates another potential danger that the dissemination of constitutionally protected material will be suppressed. Although the Act does not specify which party has the burden of proof in the civil proceeding, the Supreme Court of Alabama has held that the burden is on the State to prove the obscenity of the magazines, and it appears that the State may do so by a mere preponderance of the evidence. Tr. of Oral Arg. 4-5. However, I think that the hazards to First Amendment freedoms inhering in the *684 regulation of obscenity require that even in such a civil proceeding, the State comply with the more exacting standard of proof beyond a reasonable doubt. Inherent in all factfinding procedures is the potential for erroneous judgments and, when First Amendment values are implicated, the selection of a standard of proof of necessity implicates the relative |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | of a standard of proof of necessity implicates the relative constitutional acceptability of erroneous judgments. "There is always in litigation a margin of error, representing error in factfinding, which both parties must take into account. Where one party has at stake an interest of transcending value this margin of error is reduced as to him by the process of placing on the other party the burden of persuading the factfinder at the conclusion of the trial of [the existence of the fact] beyond a reasonable doubt." (19). See, e. g., In re 397 U.S. 3, ; cf. In the civil adjudication of obscenity vel non, the bookseller has at stake such an "interest of transcending value"protection of his right to disseminate and the public's right to receive material protected by the First Amendment. Protection of those rights demands that the factfinder be almost certainconvinced beyond a reasonable doubtthat the materials are not constitutionally immune from suppression. Although held that the concept of obscenity as defined in that case is not unconstitutionally vague, we have "expressly recognized the complexity of the test of obscenity. and the vital necessity in its application of safeguards to prevent denial of `the protection of freedom of speech and press' " for nonobscene material. "[T]he Fourteenth Amendment requires that regulation by the States of obscenity conform to procedures that will *685 ensure against the curtailment of constitutionally protected expression, which is often separated from obscenity only by a dim and uncertain line." Bantam Books, 372 U.S. The uncertainty of that line means that erroneous judgments as to whether material is obscene or not are likely in any event, and are particularly so if the factfinder is only marginally confident that the material falls on the unprotected side of the line. In light of the command of the First Amendment, a standard of proof by a mere preponderance of the evidence poses too substantial a danger that protected material will be erroneously suppressed. Moreover, the potential danger of such erroneous determinations is especially acute in light of the fact that the civil proceeding and the interim restraint pending adjudication on the merits operate as a prior restraint; indeed, the possibility of an erroneous determination is heightened by the fact that the material may never be available to the public and thus need never have truly faced the acid test of acceptance under prevailing community standards.[4] Furthermore, in light of the definition of obscenityincorporating, as it does under current law, the notion of patent offensiveness to the average member of the communitythere is an even greater need for |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | member of the communitythere is an even greater need for the judge operating as sole factfinder to be convinced beyond a reasonable doubt that the material is obscene, for his determination is made without a jury's assessment of community values. Moreover, the possible erroneous imposition of civil sanctions under the preponderance-of-the-evidence standard simply creates too great a risk of self-censorship by *686 those engaged in dissemination of printed material pertaining to sex. Cf. Just as the improper allocation of the burden of proof "will create the danger that the legitimate utterance will be penalized" and may thus cause persons to "steer far wider of the unlawful zone," the application of a preponderance-of-the-evidence standard rather than proof beyond a reasonable doubt could cause affected persons to be overly careful about the material in which they deal. While the threat of prosecution and punishment in a criminal proceeding may be greater than the threat of economic loss in civil proceedings, the difference is one of degree. Cf. New York Times The inevitable tendency of the preponderance-of-the-evidence standardby forcing persons dealing in marginal material to make hard judgments as to whether such material is obscene in order to avoid civil sanctionswould be to limit the volume of at least the marginal material a bookseller could permissibly handle, and thus "restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly." This "self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administered." Related to these arguments is another consideration which has particular force in the context where a State purports to make a civil determination of obscenity conclusively binding in a subsequent criminal trial, such as is the case under Alabama's Law on Obscenity. The First Amendment proscribes criminalizing the sale of literature in general. However, criminal statutes prohibiting the sale of obscene literature have been held to be constitutionally permissible. At least two elements *687 must coalesce to constitute such a crime: (1) some overt act or intent to perform some act beyond mere possession concerning (2) obscene material. Each of these two elements would otherwise have to be proved beyond a reasonable doubt in a criminal proceeding, for it is settled that "the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re The requirement that obscenity be proved beyond a reasonable doubt may not be diluted by transporting the determination to a prior civil |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | be diluted by transporting the determination to a prior civil proceeding, for the essence of the "crime" in reality remains the sale of obscene literature rather than disobedience of a court injunction. The dangers emanating from the increased likelihood of error resulting from a preponderance-of-the-evidence standardthe likelihood of self-censorship and the erroneous proscription of constitutionally protected material are no less great in civil than in a criminal regulation; if anything, the actual margin of error even under the beyond-a-reasonable-doubt standard may be greater in civil proceedings since judges and juries may be more reluctant to declare material obscene in a criminal proceeding where incarceration will follow as a consequence. Both proceedings thus present the same hazards to First Amendment freedoms, and those hazards may only be reduced to a tolerable level by applying the same rigorous burden of proof. III Jury Trial This Court has held that a jury trial is not a constitutional requirement in a state civil proceeding determining the obscenity vel non of written materials. However, in light of *688 the Court's definition of those materials which are beyond the pale of constitutional protection, a jury trial even in civil proceedings serves a salutary function. "The jury represents a cross-section of the community and has a special aptitude for reflecting the view of the average person. Jury trial of obscenity therefore provides a peculiarly competent application of the standard for judging obscenity which, by its definition, calls for an appraisal of material according to the average person's application of contemporary community standards. A statute which does not afford the defendant, of right, a jury determination of obscenity falls short, in my view, of giving proper effect to the standard fashioned as the necessary safeguard demanded by the freedoms of speech and press for material which is not obscene. Of course, as with jury questions generally, the trial judge must initially determine that there is a jury question, i. e., that reasonable men may differ whether the material is obscene." Kingsley Books, Although the Court has rejected the contention that the Federal Constitution imposes the requirement of such a jury trial on a State conducting a civil proceeding, it is nevertheless clear that a jury is the most appropriate factfinder on the issue of obscenity, assuming the judge, as he must, has initially determined that the material is not protected as a matter of law. See, e. g., -26. Trial by jury is particularly appropriate if the State chooses to enact a statute such as Alabama's which makes the civil determination of obscenity conclusive in a later criminal |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | the civil determination of obscenity conclusive in a later criminal proceeding involving the parties to the civil action, and States are of course free to adopt such a factfinding procedure as the *689 fairest and most accurate reflection of community standards. IV Effect of the Obscenity Determination in Civil Proceedings on the Criminal Proceeding Accepting as I must for present purposes the Court's current view of the constitutional permissibility of laws forbidding the dissemination of obscene materials, I do not perceive any constitutional defect in a State's criminalizing the knowing sale of material judicially determined to be obscene, provided, of course, that obscenity was determined beyond a reasonable doubt at a proceeding in which the accused was a party and of which he received adequate notice.[5] However, one problem with such a scheme deserves comment. Under prevailing constitutional doctrine, material cannot be proscribed unless, inter alia, " `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest [and] describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." Community standards are inherently in a state of flux, and there is a substantial danger that a civil proceeding declaring given printed matter obscene will forever *690 preclude its introduction into the community, even if the community would no longer view it as "patently offensive" or appealing to the "prurient interest." Some of the most celebrated works of our generation would likely have been the pornography of a prior generation. Thus, I would require that, at a minimum, a person charged with dissemination of material knowing it to have been judicially determined to be obscene in a civil proceeding to which he was a party should be permitted to interject into the criminal trial a claim that community standards had evolved from the time of the civil proceeding to the time the acts for which he was charged were committed. If there is some colorable showing of such a change, I believe that the First Amendment and due process would require that the State again demonstrate beyond a reasonable doubt, in the criminal proceeding, that the material was contemporaneously constitutionally "obscene." Cf.[6] *691 V The Possession Provisions Another potential effect of civil determinations under the Alabama law will be to deter all the acts proscribed by the statute with respect to the material declared obscene. This is precisely what the statute is meant to do, and generally the Constitution does not assure that acts may be performed with safety in connection with material judicially declared obscene. |
Justice Blackmun | 1,976 | 11 | concurring | McKinney v. Alabama | https://www.courtlistener.com/opinion/109401/mckinney-v-alabama/ | performed with safety in connection with material judicially declared obscene. This is not true, however, with respect to the mere "possession" of obscene material. The Act has two provisions that affect possession of obscene material. One provision renders possession of "mailable matter known to have been judicially found to be obscene under this chapter" a misdemeanor subject to a possible fine of $500 and up to six months' imprisonment, or both. 4 (2). This provision is invalid because the First Amendment prohibits States from regulating possession unrelated to distribution or public exhibition. The other provision affecting possession of obscene material, 15, provides that the possession of "any three of the things enumerated in [ 4] (except the possession of them for the purpose of return to the person from whom received)" creates a rebuttable presumption that they are intended for dissemination, and the burden of proof that their possession is for the purpose of return is on the possessor. At the least this presumption shifts to defendants the burden of going forward with the evidence on the issue of possession for the purpose of distribution; and if the possessor seeks to explain possession on the ground that he is holding the materials for return, he has the burden of proof on the issue. Mere possession of *692 obscene material for personal use may not be penalized. The obvious danger in creating a presumption that possession is for the purpose of dissemination is that lawful possession will be penalized or that persons will refrain from lawfully possessing arguably protected material. "The man who knows that he must bring forth proof and persuade another of the lawfulness of his conduct necessarily must steer far wider of the unlawful zone than if the State must bear these burdens." (19). The Alabama law poses a particular hazard in this regard, because the presumption takes effect once the defendant is shown to have possessed "any three of the things enumerated in" 4. The "things" enumerated in 4 are nonmailable obscene matter and mailable matter judicially declared obscene under the Act. Apparently, the presumption would come into play if a person possessed one copy of three different works which fit the statute's description. This would in effect limit persons to the unregulated possession of a maximum of two "things" in their libraries. But even if the presumption were to apply only upon proof of possession of three copies of the same item, it might result in punishment and deterrence of lawful activity, since the right to possess obscene material for personal use is not limited to |
Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | In this case we are called upon to analyze the interaction among five statutory provisions: 1 of the Civil Rights Act of *1022 1871, as amended, 42 U.S. C. 1983; 2 of the Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S. C. 1988; 504 of the Rehabilitation Act of 1973, as amended, 29 U.S. C. 794; 505(b) of the Rehabilitation Act, 29 U.S. C. 794a(b); and 615(e)(2) of the Education of the Handicapped Act (EHA or Act), as added, 20 U.S. C. 1415(e)(2). Section 1983 provides: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." (Emphasis added.) And 1988 provides that the prevailing party in an action prosecuted under 1983 may be awarded reasonable attorney's fees. Similarly, 504 and 505(b) of the Rehabilitation Act provide a cause of action and attorney's fees, respectively, to an individual who, "solely by reason of his handicap," has been "excluded from the participation in, denied the benefits of, [or] subjected to discrimination under any program or activity receiving Federal financial assistance." Finally, 615(e)(2) of the EHA authorizes judicial review of the States' provision of "free appropriate public education" to handicapped children. Unlike 42 U.S. C. 1983 and 504 of the Rehabilitation Act, however, 615(e)(2) has no counterpart in the EHA authorizing the award of attorney's fees to prevailing parties. Petitioners challenge Rhode Island's discriminatory failure to afford Thomas F. Smith III access to certain educational programs made available to other handicapped children. As the Court recognizes, ante, at 1006, 1007, 1008-1009, this challenge states a meritorious claim under the EHA and a *1023 substantial claim under the Equal Protection Clause of the Fourteenth Amendment. In addition, petitioners' claim appears to fall squarely within the terms of 504 of the Rehabilitation Act. Consequently, if 504 and 1983 are available as bases for petitioners' action, petitioners are entitled to recover reasonable attorney's fees under 1988 and, at a minimum, to be given an opportunity to establish the meritoriousness of their 504 claim. ; H. R. Rep. No. 94-1558, p. 4, n. 7 ; Brief for Petitioners 61-62, n. 26 (legislative history establishes that 505(b) incorporates standards governing 1988).[1] To determine whether 504 or 1983 is |
Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | standards governing 1988).[1] To determine whether 504 or 1983 is available, each provision must be read together with the EHA.[2] As the Court demonstrates, in enacting the EHA, Congress surely intended that individuals with claims covered by that Act *1024 would pursue relief through the administrative channels that the Act established before seeking redress in court. See ante, at 1009-1013, 1016-1019. It would make little sense for Congress to have established such a detailed and comprehensive administrative system and yet allow individuals to bypass the system, at their option, by bringing suits directly to the courts under either 504 or 1983. To that extent, therefore, the statutes before us are in conflict with one another. Accordingly, our guide must be the familiar principle of statutory construction that conflicting statutes should be interpreted so as to give effect to each but to allow a later enacted, more specific statute to amend an earlier, more general statute only to the extent of the repugnancy between the two statutes. ; ; We must, therefore, construe the statutory provisions at issue here so as to promote the congressional intent underlying the EHA, which was enacted after 504 and 1983 and which is addressed specifically to the problems facing handicapped schoolchildren. At the same time, however, we must preserve those aspects of 504 and 1983 that are not in irreconcilable conflict with the EHA. The natural resolution of the conflict between the EHA, on the one hand, and 504 and 1983, on the other, is to require a plaintiff with a claim covered by the EHA to pursue relief through the administrative channels established by that Act before seeking redress in the courts under 504 or 1983. Under this resolution, the integrity of the EHA is preserved entirely, and yet 504 and 1983 are also preserved to the extent that they do not undermine the EHA. Although the primary function of 504 and 1983 is to provide direct access to the courts for certain types of claims, these provisions also operate, as this case demonstrates, to identify those types of causes of action for which Congress has authorized the award of attorney's fees to prevailing parties. Significantly, this *1025 function does not in any way conflict with the goals or operation of the EHA. There is no basis, therefore, for concluding that either 504 or 1983 is unavailable for this limited purpose. The Court, however, has responded to the conflict among these statutes by restricting the applicability of 504 and 1983 far more than is necessary to resolve their inconsistency. Indeed, the Court holds that |
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