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Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | necessary to resolve their inconsistency. Indeed, the Court holds that both 504 and 1983 are wholly unavailable to individuals seeking to secure their rights to a free appropriate public education, despite the fact that the terms and intent of Congress in enacting each of these provisions unquestionably extend to many of those claims. As a result, the Court finds that attorney's fees, which would otherwise be available to those individuals under 505(b) and 1988, are now unavailable. Yet the Court recognizes that there is absolutely no indication in the language of the EHA or in the Act's legislative history that Congress meant to effect such a repeal, let alone any indication that Congress specifically intended to bar the recovery of attorney's fees for parties that prevail in this type of action. The Court's rationale for effectively repealing 504, 505(b), 1983, and 1988 to the extent that they cover petitioners' claim is that the comprehensiveness and detail with which the EHA addresses the problem of providing schooling to handicapped children implies that Congress intended to repeal all other remedies that overlap with the EHA, even if they do not conflict with the EHA.[3] *1026 Repeals by implication, however, are strongly disfavored. St. Martin Evangelical Lutheran ; ; And, as stated above, they are tolerated only to the extent necessary to resolve clear repugnancy between statutes. ; at The function that 504 and 1983 perform of identifying those claims for which attorney's fees are authorized under 505(b) and 1988 is not repugnant to the EHA. The Court therefore has erred in concluding that petitioners cannot obtain attorney's fees. In cases like this, it is particularly important that the Court exercise restraint in concluding that one Act of Congress implicitly repeals another, not only to avoid misconstruction of the law effecting the putative repeal, but also to preserve the intent of later Congresses that have already enacted laws that are dependent on the continued applicability of the law whose implicit repeal is in question. By failing to exercise such restraint here, and hence concluding that the EHA implicitly repealed, in part, 504 and 1983, the Court has not only misconstrued the congressional intent underlying the EHA, it has also frustrated Congress' intent in enacting 505(b) and 1988 each of which was enacted after the EHA and premised on a view of 504 and 1983 that was significantly more expansive than that offered by the Court today. Although in enacting the EHA, Congress was silent with respect to the continued availability of 504 and 1983 for claims that could be brought directly under |
Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | and 1983 for claims that could be brought directly under the EHA, there can be no doubt that, at the time 505(b) and 1988 were passed, Congress believed that the EHA had not eliminated these alternative remedies. Congressional understanding at these later points certainly sheds light on Congress' earlier intent in enacting the EHA, but perhaps more importantly, it demonstrates the extent to which the Court's finding of an implicit repeal has undermined the congressional intent behind the enactment of 505(b) and 1988. *1027 The Department of Health, Education, and Welfare (HEW) promulgated regulations under 504 of the Rehabilitation Act after the EHA was passed. Those regulations contained a lengthy subpart governing the provision of education to the handicapped stating: "A recipient that operates a public elementary or secondary education program shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap." 42 Fed. Reg. 26, 22682 (1977). Thus, the Department charged with enforcing the Rehabilitation Act and the EHA did not understand the latter to repeal the former with respect to handicapped education.[4] And, of course, the interpretation of the Act by the agency responsible for its enforcement is entitled to great deference. Griggs v. Duke Power Furthermore, Congress was very much aware of HEW's interpretation of the two Acts. During oversight hearings on the Rehabilitation Act, held after the enactment of the EHA, representatives of HEW testified that the agency had recently promulgated regulations under 504 and that those regulations addressed discrimination in the provision of education to handicapped children.[5] Hearings on Implementation of Section 504, Rehabilitation Act of 1973, before the Subcommittee on Select Education of the House Committee on Education and Labor, 95th Cong., 1st Sess., 296-297 (1977) (statement of David Tatel, Director, *1028 Office for Civil Rights, Department of Health, Education, and Welfare);[6] Hearings on the Rehabilitation of the Handicapped Programs, 1976, before the Subcommittee on the Handicapped of the Senate Committee on Labor and Public Welfare, 94th Cong., 2d Sess., 1498, 1499, 1508, 9-1546 (statement of Martin H. Gerry, Director, Office for Civil Rights, Department of Health, Education, and Welfare). No member of the House or Senate Subcommittee raised any question regarding 504's continued coverage of discrimination in education after the passage of the EHA. Indeed, the Senate Report accompanying the bill that included 505(b) of the Rehabilitation Act explicitly referred to, and approved, the regulations promulgated under 504. The Report then went on to address the need for attorney's fees, referring to the rights that 504 |
Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | need for attorney's fees, referring to the rights that 504 extended to handicapped individuals generally and intimating no exception for handicapped children seeking education. S. Rep. No. 95-890, pp. 19-20 (1978). Similarly, the House Report stated: "The proposed amendment is not in any way unique. At present there are at least 90 separate attorney's fees provisions to promote enforcement of over 90 different *1029 Federal laws. In fact, disabled individuals are one of the very few minority groups in this country who have not been authorized by the Congress to seek attorney's fees. The amendment proposes to correct this omission and thereby assist handicapped individuals in securing the legal protection guaranteed them under title V of the Act." H. R. Rep. No. 95-1149, p. 21 (1978). Neither the terms nor the logic of this statement admits of the possibility that Congress intended to exclude from the coverage of 505(b) the claims of handicapped children seeking a free appropriate public education. Finally, although Congress, in enacting 1988, did not specifically refer to the applicability of 1983 to constitutional claims by handicapped children seeking education, it clearly intended to authorize attorney's fees in all cases involving the deprivation of civil rights. Adopted in response to this Court's decision in Alyeska Pipeline Service v. Wilderness Society, 1988 was intended to close "anomalous gaps in our civil rights laws whereby awards of fees are unavailable." S. Rep. No. 94-1011, p. 4 The Senate Report thus stated: "In many cases arising under our civil rights laws, the citizen who must sue to enforce the law has little or no money with which to hire a lawyer. If private citizens are to be able to assert their civil rights, and if those who violate the Nation's fundamental laws are not to proceed with impunity, then citizens must have the opportunity to recover what it costs them to vindicate these rights in court. " `Not to award counsel fees in cases such as this would be tantamount to repealing the Act itself by frustrating its basic purpose. Without counsel fees the grant of Federal jurisdiction is but an empty gesture' Hall quoting "The remedy of attorney's fees has always been recognized as particularly appropriate in the civil rights area, and civil rights and attorney's fees have always been closely interwoven." It would be anomalous, to say the least, for Congress to have passed a provision as broad as 1988, and to provide an equally broad explanation, and yet to leave a "gap" in its own coverage of the constitutional claims of handicapped children seeking a free appropriate |
Justice Brennan | 1,984 | 13 | dissenting | Smith v. Robinson | https://www.courtlistener.com/opinion/111264/smith-v-robinson/ | the constitutional claims of handicapped children seeking a free appropriate public education.[7] See also H. R. Rep. No. 94-1558, pp. 4-5 In sum, the Court's conclusion that the EHA repealed the availability of 504 and 1983 to individuals seeking a free appropriate public education runs counter to well-established principles of statutory interpretation. It finds no support in the terms or legislative history of the EHA. And, most importantly, it undermines the intent of Congress in enacting both 505(b) and 1988. Had this case arisen prior to the enactment of 505(b) and 1988, Congress could have taken account of the Court's expansive interpretation of the EHA. Presumably, it would have either clarified the applicability of 504 and 1983 to claims for a free appropriate public education, or it would have extended the coverage of 505(b) and 1988 to certain claims brought under the EHA. But with today's decision coming as it does after Congress has *1031 spoken on the subject of attorney's fees, Congress will now have to take the time to revisit the matter. And until it does, the handicapped children of this country whose difficulties are compounded by discrimination and by other deprivations of constitutional rights will have to pay the costs. It is at best ironic that the Court has managed to impose this burden on handicapped children in the course of interpreting a statute wholly intended to promote the educational rights of those children. |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | This case requires us to interpret the Carriage of Goods by Sea Act (COGSA), 46 U.S. C. App. 1300 et seq., as it relates to a contract containing a clause requiring arbitration in a foreign country. The question is whether a foreign arbitration clause in a bill of lading is invalid under COGSA because it lessens liability in the sense that COGSA prohibits. Our holding that COGSA does not forbid selection of the foreign forum makes it unnecessary to resolve the further question whether the Federal Arbitration Act (FAA), 9 U.S. C. 1 et seq. (1988 ed. and Supp. V), would override COGSA were it interpreted otherwise. In our view, the relevant provisions of COGSA and the FAA are in accord, not in conflict. I The contract at issue in this case is a standard form bill of lading to evidence the purchase of a shipload of Moroccan oranges and lemons. The purchaser was Bacchus Associates (Bacchus), a New York partnership that distributes fruit at wholesale throughout the Northeastern United States. Bacchus dealt with Galaxie Negoce, S. A. (Galaxie), a Moroccan fruit supplier. Bacchus contracted with Galaxie to purchase the shipload of fruit and chartered a ship to transport it from Morocco to Massachusetts. The ship was the M/V Sky Reefer, a refrigerated cargo ship owned by M. H. Maritima, S. A., a Panamanian company, and time-chartered to Nichiro Gyogyo Kaisha, Ltd., a Japanese company. Stevedores *531 hired by Galaxie loaded and stowed the cargo. As is customary in these types of transactions, when it received the cargo from Galaxie, Nichiro as carrier issued a form bill of lading to Galaxie as shipper and consignee. Once the ship set sail from Morocco, Galaxie tendered the bill of lading to Bacchus according to the terms of a letter of credit posted in Galaxie's favor. Among the rights and responsibilities set out in the bill of lading were arbitration and choice-of-law clauses. Clause 3, entitled "Governing Law and Arbitration," provided: "(1) The contract evidenced by or contained in this Bill of Lading shall be governed by the Japanese law. "(2) Any dispute arising from this Bill of Lading shall be referred to arbitration in Tokyo by the Tokyo Maritime Arbitration Commission (TOMAC) of The Japan Shipping Exchange, Inc., in accordance with the rules of TOMAC and any amendment thereto, and the award given by the arbitrators shall be final and binding on both parties." App. 49. When the vessel's hatches were opened for discharge in Massachusetts, Bacchus discovered that thousands of boxes of oranges had shifted in the cargo holds, resulting in |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | of oranges had shifted in the cargo holds, resulting in over $1 million damage. Bacchus received $733,442.90 compensation from petitioner Vimar Seguros y (Vimar Seguros), Bacchus' marine cargo insurer that became subrogated pro tanto to Bacchus' rights. Petitioner and Bacchus then brought suit against Maritima in personam and M/V Sky Reefer in rem in the District Court for the District of Massachusetts under the bill of lading. These defendants, respondents here, moved to stay the action and compel arbitration in Tokyo under clause 3 of the bill of lading and 3 of the FAA, which requires courts to stay proceedings and enforce arbitration agreements covered by the Act. Petitioner and Bacchus opposed the motion, arguing the arbitration *532 clause was unenforceable under the FAA both because it was a contract of adhesion and because it violated COGSA 3(8). The premise of the latter argument was that the inconvenience and costs of proceeding in Japan would "lesse[n]. liability" as those terms are used in COGSA. The District Court rejected the adhesion argument, observing that Congress defined the arbitration agreements enforceable under the FAA to include maritime bills of lading, 9 U.S. C. 1, and that petitioner was a sophisticated party familiar with the negotiation of maritime shipping transactions. It also rejected the argument that requiring the parties to submit to arbitration would lessen respondents' liability under COGSA 3(8). The court granted the motion to stay judicial proceedings and to compel arbitration; it retained jurisdiction pending arbitration; and at petitioner's request, it certified for interlocutory appeal under 28 U.S. C. 1292(b) its ruling to compel arbitration, stating that the controlling question of law was "whether [COGSA 3(8)] nullifies an arbitration clause contained in a bill of lading governed by COGSA." Pet. for Cert. 30a. The First Circuit affirmed the order to arbitrate. Although it expressed grave doubt whether a foreign arbitration clause lessened liability under COGSA 3(8), the Court of Appeals assumed the clause was invalid under COGSA and resolved the conflict between the statutes in favor of the FAA, which it considered to be the later enacted and more specific statute, We granted certiorari, to resolve a Circuit split on the enforceability of foreign arbitration clauses in maritime bills of lading. Compare the case below (enforcing foreign arbitration clause assuming arguendo it violated COGSA), with State Establishment for Agricultural Product (CA11) (declining to enforce foreign arbitration clause because that would violate COGSA), cert. denied, We now affirm. *533 II The parties devote much of their argument to the question whether COGSA or the FAA has priority. "[W]hen two statutes are capable |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | or the FAA has priority. "[W]hen two statutes are capable of co-existence," however, "it is the duty of the courts, absent a clearly expressed congressional intention to the contrary, to regard each as effective." ; Pittsburgh & Lake Erie R. There is no conflict unless COGSA by its own terms nullifies a foreign arbitration clause, and we choose to address that issue rather than assume nullification arguendo, as the Court of Appeals did. We consider the two arguments made by petitioner. The first is that a foreign arbitration clause lessens COGSA liability by increasing the transaction costs of obtaining relief. The second is that there is a risk foreign arbitrators will not apply COGSA. A The leading case for invalidation of a foreign forum selection clause is the opinion of the Court of Appeals for the Second Circuit in Indussa The court there found that COGSA invalidated a clause designating a foreign judicial forum because it "puts `a high hurdle' in the way of enforcing liability, and thus is an effective means for carriers to secure settlements lower than if cargo [owners] could sue in a convenient forum." at 203 (citation omitted). The court observed "there could be no assurance that [the foreign court] would apply [COGSA] in the same way as would an American tribunal subject to the uniform control of the Supreme Court." Following Indussa, the Courts of Appeals without exception have invalidated foreign forum selection clauses under 3(8). See Union Ins. Soc. of Canton, ; Conklin & Garrett, ; see also G. Gilmore & C. Black, Law of Admiralty *534 145-146, n. 23 (2d ed. 1975) (approving Indussa rule). As foreign arbitration clauses are but a subset of foreign forum selection clauses in general, the Indussa holding has been extended to foreign arbitration clauses as well. See State Establishment for Agricultural Product ; cf. Vimar Seguros y (assuming, arguendo, Indussa applies). The logic of that extension would be quite defensible, but we cannot endorse the reasoning or the conclusion of the Indussa rule itself. The determinative provision in COGSA, examined with care, does not support the arguments advanced first in Indussa and now by petitioner. Section 3(8) of COGSA provides as follows: "Any clause, covenant, or agreement in a contract of carriage relieving the carrier or the ship from liability for loss or damage to or in connection with the goods, arising from negligence, fault, or failure in the duties and obligations provided in this section, or lessening such liability otherwise than as provided in this chapter, shall be null and void and of no effect." 46 |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | shall be null and void and of no effect." 46 U.S. C. App. 1303(8). The liability that may not be lessened is "liability for loss or damage arising from negligence, fault, or failure in the duties and obligations provided in this section." The statute thus addresses the lessening of the specific liability imposed by the Act, without addressing the separate question of the means and costs of enforcing that liability. The difference is that between explicit statutory guarantees and the procedure for enforcing them, between applicable liability principles and the forum in which they are to be vindicated. The liability imposed on carriers under COGSA 3 is defined by explicit standards of conduct, and it is designed to correct specific abuses by carriers. In the 19th century it was a prevalent practice for common carriers to insert *535 clauses in bills of lading exempting themselves from liability for damage or loss, limiting the period in which plaintiffs had to present their notice of claim or bring suit, and capping any damages awards per package. See 2A M. Benedict on Admiralty 11, pp. 2-2 to 2-3 ; 2 T. Schoenbaum, Admiralty and Maritime Law 10-13 ; Yancey, The Carriage of Goods: Hague, COGSA, Visby, and Hamburg, 57 Tulane L. Rev. 1238, 1239-1240 (1983). Thus, 3, entitled "Responsibilities and liabilities of carrier and ship," requires that the carrier "exercise due diligence to [m]ake the ship seaworthy" and "[p]roperly man, equip, and supply the ship" before and at the beginning of the voyage, 3(1), "properly and carefully load, handle, stow, carry, keep, care for, and discharge the goods carried," 3(2), and issue a bill of lading with specified contents, 3(3). 46 U.S. C. App. 1303(1), (2), and (3). Section 3(6) allows the cargo owner to provide notice of loss or damage within three days and to bring suit within one year. These are the substantive obligations and particular procedures that 3(8) prohibits a carrier from altering to its advantage in a bill of lading. Nothing in this section, however, suggests that the statute prevents the parties from agreeing to enforce these obligations in a particular forum. By its terms, it establishes certain duties and obligations, separate and apart from the mechanisms for their enforcement. Petitioner's contrary reading of 3(8) is undermined by the Court's construction of a similar statutory provision in Carnival Cruise There a number of Washington residents argued that a Florida forum selection clause contained in a cruise ticket should not be enforced because the expense and inconvenience of litigation in Florida would "caus[e] plaintiffs unreasonable hardship in asserting their rights," |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | Florida would "caus[e] plaintiffs unreasonable hardship in asserting their rights," and therefore "`lessen, weaken, or avoid the right of any claimant to a trial by court of competent jurisdiction on the question of liability for loss or injury, or the measure of damages therefor' " *536 in violation of the Limitation of Vessel Owner's Liability Act, (quoting 46 U.S. C. App. 183c). We observed that the clause "does not purport to limit petitioner's liability for negligence," 499 U.S., -597, and enforced the agreement over the dissent's argument, based in part on the Indussa line of cases, that the cost and inconvenience of traveling thousands of miles "lessens or weakens [plaintiffs'] ability to recover," If the question whether a provision lessens liability were answered by reference to the costs and inconvenience to the cargo owner, there would be no principled basis for distinguishing national from foreign arbitration clauses. Even if it were reasonable to read 3(8) to make a distinction based on travel time, airfare, and hotels bills, these factors are not susceptible of a simple and enforceable distinction between domestic and foreign forums. Requiring a Seattle cargo owner to arbitrate in New York likely imposes more costs and burdens than a foreign arbitration clause requiring it to arbitrate in Vancouver. It would be unwieldy and unsupported by the terms or policy of the statute to require courts to proceed case by case to tally the costs and burdens to particular plaintiffs in light of their means, the size of their claims, and the relative burden on the carrier. Our reading of "lessening such liability" to exclude increases in the transaction costs of litigation also finds support in the goals of the Brussels Convention for the Unification of Certain Rules Relating to Bills of Lading, (1924) on which COGSA is modeled. Sixty-six countries, including the United States and Japan, are now parties to the Convention, see Department of State, Office of the Legal Adviser, Treaties in Force: A List of Treaties and Other International Agreements of the United States in Force on January 1, p. 367 and it appears that none has interpreted its enactment of 3(8) of the Hague Rules to prohibit foreign forum selection clauses, see International Uniform Laws in National Courts: *537 The Influence of Domestic Law in Conflicts of Interpretation, The English courts long ago rejected the reasoning later adopted by the Indussa court. See Maharani Woollen Mills v. Anchor Line, [1927] 29 Lloyd's List L. Rep. 169 (C. A.) (Scrutton, L. J.) ("[T]he liability of the carrier appears to me to remain exactly the same under |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | carrier appears to me to remain exactly the same under the clause. The only difference is a question of procedurewhere shall the law be enforced? and I do not read any clause as to procedure as lessening liability"). And other countries that do not recognize foreign forum selection clauses rely on specific provisions to that effect in their domestic versions of the Hague Rules, see, e. g., Sea-Carriage of Goods Act 1924, 9(2) (Australia); Carriage of Goods by Sea Act, No. 1 of 1986, 3 (South Africa). In light of the fact that COGSA is the culmination of a multilateral effort "to establish uniform ocean bills of lading to govern the rights and liabilities of carriers and shippers inter se in international trade," Robert C. Herd & we decline to interpret our version of the Hague Rules in a manner contrary to every other nation to have addressed this issue. See It would also be out of keeping with the objects of the Convention for the courts of this country to interpret COGSA to disparage the authority or competence of international forums for dispute resolution. Petitioner's skepticism over the ability of foreign arbitrators to apply COGSA or the Hague Rules, and its reliance on this aspect of Indussa must give way to contemporary principles of international comity and commercial practice. As the Court observed in The when it enforced a foreign forum selection clause, the historical judicial resistance *538 to foreign forum selection clauses "has little place in an era when businesses once essentially local now operate in world markets." "The expansion of American business and industry will hardly be encouraged," we explained, "if, notwithstanding solemn contracts, we insist on a parochial concept that all disputes must be resolved under our laws and in our courts." See Mitsubishi (if international arbitral institutions "are to take a central place in the international legal order, national courts will need to `shake off the old judicial hostility to arbitration,' and also their customary and understandable unwillingness to cede jurisdiction of a claim arising under domestic law to a foreign or transnational tribunal") (citation omitted); ; see also Allison, Arbitration of Private Antitrust Claims in International Trade: A Study in the Subordination of National Interests to the Demands of a World Market, 18 N. Y. U. J. Int'l Law & Pol. 361, 439 (1986). That the forum here is arbitration only heightens the irony of petitioner's argument, for the FAA is also based in part on an international convention, 9 U.S. C. 201 et seq. (codifying the United Nations Convention on the Recognition and |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | seq. (codifying the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards, June 10, 1958, [1970] 21 U. S. T. 2517, T. I. A. S. No. 6997), intended "to encourage the recognition and enforcement of commercial arbitration agreements in international contracts and to unify the standards by which agreements to arbitrate are observed and arbitral awards are enforced in the signatory countries," The FAA requires enforcement of arbitration agreements in contracts that involve interstate commerce, see Allied-Bruce Terminix and in maritime transactions, including bills *539 of lading, see 9 U.S. C. 1, 2, 201, 202, where there is no independent basis in law or equity for revocation, cf. Carnival Cruise If the United States is to be able to gain the benefits of international accords and have a role as a trusted partner in multilateral endeavors, its courts should be most cautious before interpreting its domestic legislation in such manner as to violate international agreements. That concern counsels against construing COGSA to nullify foreign arbitration clauses because of inconvenience to the plaintiff or insular distrust of the ability of foreign arbitrators to apply the law. B Petitioner's second argument against enforcement of the Japanese arbitration clause is that there is no guarantee foreign arbitrators will apply COGSA. This objection raises a concern of substance. The central guarantee of 3(8) is that the terms of a bill of lading may not relieve the carrier of the obligations or diminish the legal duties specified by the Act. The relevant question, therefore, is whether the substantive law to be applied will reduce the carrier's obligations to the cargo owner below what COGSA guarantees. See Mitsubishi Petitioner argues that the arbitrators will follow the Japanese Hague Rules, which, petitioner contends, lessen respondents' liability in at least one significant respect. The Japanese version of the Hague Rules, it is said, provides the carrier with a defense based on the acts or omissions of the stevedores hired by the shipper, Galaxie, see App. 112, Article 3(1) (carrier liable "when he or the persons employed by him" fail to take due care), while COGSA, according to petitioner, makes nondelegable the carrier's obligation to "properly and carefully stow the goods carried," COGSA 3(2), 46 U.S. C. App. 1303(2); see Associated Metals & *540 Minerals But see COGSA 4(2)(i), 46 U.S. C. App. 1304(2)(i) ("Neither the carrier nor the ship shall be responsible for loss or damage arising or resulting from [a]ct or omission of the shipper or owner of the goods, his agent or representative"); COGSA 3(8), 46 U.S. C. App. 1303(8) (agreement may not |
Justice Kennedy | 1,995 | 4 | majority | Vimar Seguros Y Reaseguros, SA v. M/V Sky Reefer | https://www.courtlistener.com/opinion/117959/vimar-seguros-y-reaseguros-sa-v-mv-sky-reefer/ | COGSA 3(8), 46 U.S. C. App. 1303(8) (agreement may not relieve or lessen liability "otherwise than as provided in this chapter"); Hegarty, A COGSA Carrier's Duty to Load and Stow Cargo is Nondelegable, or Is It?: Associated Metals & Minerals 18 Tulane Mar. L. J. 125 (1993). Whatever the merits of petitioner's comparative reading of COGSA and its Japanese counterpart, its claim is premature. At this interlocutory stage it is not established what law the arbitrators will apply to petitioner's claims or that petitioner will receive diminished protection as a result. The arbitrators may conclude that COGSA applies of its own force or that Japanese law does not apply so that, under another clause of the bill of lading, COGSA controls. Respondents seek only to enforce the arbitration agreement. The District Court has retained jurisdiction over the case and "will have the opportunity at the award-enforcement stage to ensure that the legitimate interest in the enforcement of the laws has been addressed." Mitsubishi at ; cf. 1 Restatement (Third) of Foreign Relations Law of the United States 482(2)(d) (1986) ("A court in the United States need not recognize a judgment of the court of a foreign state if the judgment itself, is repugnant to the public policy of the United States"). Were there no subsequent opportunity for review and were we persuaded that "the choice-of-forum and choice-of-law clauses operated in tandem as a prospective waiver of a party's right to pursue statutory remedies we would have little hesitation in condemning the agreement as against public policy." Mitsubishi Cf. (nullifying choice-of-law provision under the Harter Act, the statutory precursor to COGSA, *541 where British law would give effect to provision in bill of lading that purported to exempt carrier from liability for damage to goods caused by carrier's negligence in loading and stowage of cargo); The Hollandia, [1983] A. C. 565, 574 575 (H. L. 1982) (noting choice-of-forum clause "does not ex facie offend against article III, paragraph 8," but holding clause unenforceable where "the foreign court chosen as the exclusive forum would apply a domestic substantive law which would result in limiting the carrier's liability to a sum lower than that to which he would be entitled if [English COGSA] applied"). Under the circumstances of this case, however, the First Circuit was correct to reserve judgment on the choice-of-law question, n. 3, as it must be decided in the first instance by the arbitrator, cf. Mitsubishi 473 U. S., As the District Court has retained jurisdiction, mere speculation that the foreign arbitrators might apply Japanese law which, depending on the |
Justice Ginsburg | 2,004 | 5 | concurring | Aetna Health Inc. v. Davila | https://www.courtlistener.com/opinion/136991/aetna-health-inc-v-davila/ | The Court today holds that the claims respondents asserted under Texas law are totally preempted by 502(a) of the Employee Retirement Income Security Act of 1974 (ERISA or Act), 29 U.S. C. 1132(a). That decision is consistent with our governing case law on ERISA's preemptive scope. I therefore join the Court's opinion. But, with greater enthusiasm, as indicated by my dissenting opinion in Great-West Life & Annuity Ins. I also join "the rising judicial chorus urging that Congress and [this] Court revisit what is an unjust and increasingly tangled ERISA regime." Because the Court has coupled an encompassing interpretation of ERISA's preemptive force with a cramped construction of the "equitable relief" allowable under 502(a)(3), a "regulatory vacuum" exists: "[V]irtually all state law remedies are preempted but very few federal substitutes are provided." A series of the Court's decisions has yielded a host of situations in which persons adversely affected by ERISA-proscribed wrongdoing cannot gain make-whole relief. First, in Massachusetts Mut. Life Ins. the Court stated, in dicta: "[T]here is a stark absencein [ERISA] itself and in its legislative historyof any reference to an intention to authorize the recovery of extracontractual damages" for consequential injuries. Then, in the Court held that 502(a)(3)'s term "`equitable relief' refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." Most recently, in Great-West, the *223 Court ruled that, as " 502(a)(3), by its terms, only allows for equitable relief," the provision excludes "the imposition of personal liability for a contractual obligation to pay money." As the array of lower court cases and opinions documents, see, e. g., ; cert. pending sub nom. Vytra Healthcare v. Cicio, No. 03-69 [REPORTER'S NOTE: See post, p. 933], fresh consideration of the availability of consequential damages under 502(a)(3) is plainly in order. See 107 ("gaping wound" caused by the breadth of preemption and limited remedies under ERISA, as interpreted by this Court, will not be healed until the Court "start[s] over" or Congress "wipe[s] the slate clean"); ; Langbein, What ERISA Means by "Equitable": The Supreme Court's Trail of Error in Russell, Mertens, and Great-West, ("The Supreme Court needs to realign ERISA remedy law with the trust remedial tradition that Congress intended [when it provided in 502(a)(3) for] `appropriate equitable relief.'"). The Government notes a potential amelioration. Recognizing that "this Court has construed Section 502(a)(3) not to authorize an award of money damages against a non-fiduciary," the Government suggests that the Act, as currently written and interpreted, may "allo[w] at least some forms of `make-whole' relief against |
Justice Ginsburg | 2,004 | 5 | concurring | Aetna Health Inc. v. Davila | https://www.courtlistener.com/opinion/136991/aetna-health-inc-v-davila/ | may "allo[w] at least some forms of `make-whole' relief against a breaching fiduciary in light of the general availability of such relief in equity at the time of the divided bench." Brief for United States as Amicus Curiae 27-28, n. 13 (emphases added); cf. ante, at 220 ("entity with discretionary authority over benefits determinations" is a "plan fiduciary"); Tr. of Oral Arg. 13 ("Aetna is [a fiduciary]and CIGNA is for purposes of claims processing."). As the Court points out, respondents here declined *224 the opportunity to amend their complaints to state claims for relief under 502(a); the District Court, therefore, properly dismissed their suits with prejudice. See ante, at 221, n. 7. But the Government's suggestion may indicate an effective remedy others similarly circumstanced might fruitfully pursue. "Congress intended ERISA to replicate the core principles of trust remedy law, including the make-whole standard of relief." Langbein 1319. I anticipate that Congress, or this Court, will one day so confirm. |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | The petitioner, Sandra Adickes, brought suit against the respondent, S. H. Kress & to recover damages for alleged violations of 42 U.S. C. 1983. n one count of her complaint she alleged that a police officer of the City of Hattiesburg, Mississippi, had conspired with employees of Kress to deprive her of rights secured by the Constitution and that this joint action of a state official and private individuals was sufficient to constitute a violation of 1983. She further alleged in another count that Kress' refusal to serve her while she was in the company of Negroes was action "under color of" a custom of refusing to serve Negroes and whites together in Mississippi, and that this action was a violation of 1983. The trial judge granted a motion for summary judgment in favor of Kress on the conspiracy allegation and, after full presentation of evidence by the petitioner, granted a motion for a directed verdict in favor of the respondent on the custom allegation. Both decisions rested on conclusions that there were no issues of fact supported by sufficient evidence to require a jury trial. think the trial court and the Court of Appeals which affirmed were wrong in allowing summary judgment on the conspiracy allegation. Andassuming for present purposes that the trial court's statutory interpretation concerning "custom or usage" was correctit was error to direct a verdict on that count. n my judgment, on this record, petitioner should have been permitted to have the jury consider both her claims. Summary judgments may be granted only when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact" Fed. Rule Civ. Proc. 6 (c). Petitioner in this case alleged that she went into Kress in the company of Negroes *176 and that the waitress refused to serve her, stating "[w]e have to serve the colored, but we are not going to serve the whites that come in with them." Petitioner then alleged that she left the store with her friends and as soon as she stepped outside a policeman arrested her and charged her with vagrancy. On the basis of these facts she argued that there was a conspiracy between the store and the officer to deprive her of federally protected rights. The store filed affidavits denying any such conspiracy and the trial court granted the motion for summary judgment, concluding that petitioner had not alleged any basic facts sufficient to support a finding of conspiracy. The existence or nonexistence of a |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | a finding of conspiracy. The existence or nonexistence of a conspiracy is essentially a factual issue that the jury, not the trial judge, should decide. n this case petitioner may have had to prove her case by impeaching the store's witnesses and appealing to the jury to disbelieve all that they said was true in the affidavits. The right to confront, cross-examine and impeach adverse witnesses is one of the most fundamental rights sought to be preserved by the Seventh Amendment provision for jury trials in civil cases. The advantages of trial before a live jury with live witnesses, and all the possibilities of considering the human factors, should not be eliminated by substituting trial by affidavit and the sterile bareness of summary judgment. "t is only when the witnesses are present and subject to cross-examination that their credibility and the weight to be given their testimony can be appraised. Trial by affidavit is no substitute for trial by jury which so long has been the hallmark of `even handed justice.'" Second, it was error for the trial judge to direct a verdict in favor of the respondent on the "custom" *1 count. The trial judge surveyed the evidence and concluded that it was insufficient to prove the existence of a custom of not serving white people in the company of Negroes. He thereupon took the case away from the jury, directing a verdict for the respondent. The Court of Appeals affirmed this conclusion. n my opinion this was clear error. Petitioner testified at trial as follows: "Q. Did you have occasion to know of specific instances where white persons in the company of Negroes were discriminated against? A. Yes. "Q. How many such instances can you recall? A. can think of about three at the moment. "Q. Will you describe the three instances to us? A. know that people were turned away from a white church, an integrated group was turned away from a white church in Hattiesburg. was not present but this was explained to me. saw a rabbi being beaten because he was in the company of Negroes. "Q. This was a white rabbi? A. Yes. And people were turned away from a drug store in Hattiesburg, an integrated group. don't remember the name of the drug store. "Q. On the basis of what you studied and on the basis of what you observed, and on the basis of your conversations with other persons there, did you come to a conclusion with regard to the custom and usage with regard to the white community towards serving persons, |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | usage with regard to the white community towards serving persons, white persons, in the company of Negroes? A. Yes. "Q. What was that conclusion? A. The conclusion was that white personsit was a custom and usage not to serve white persons in the company of Negroes." *178 This evidence, although weakened by the cross-examination, was sufficient, think, to require the court to let the case go to the jury and secure petitioner's constitutionally guaranteed right to a trial by that jury. See do not find it necessary at this time to pass on the validity of the statutory provision concerning "custom or usage" or on the trial court's views, concurred in by the Court of Appeals, on the proper interpretation of that term. Assuming that the trial court's interpretation was correct and that the provision as so interpreted is valid, there was enough evidence in this record to warrant submitting the entire question of custom or usage to the jury in accordance with instructions framed to reflect those views. For the foregoing reasons concur in the judgment reversing the Court of Appeals and remanding for a new trial on both counts. MR. JUSTCE DOUGLAS, dissenting in part. The statutory words "under color of any statute, ordinance, regulation, custom, or usage, of any State," 42 U.S. C. 1983, are seriously emasculated by today's ruling. Custom, it is said, must have "the force of law"; and "law," as read the opinion, is used in the Hamiltonian sense.[1] *179 The Court requires state involvement in the enforcement of a "custom" before that "custom" can be actionable under 42 U.S. C. 1983. That means, according to the Court, that "custom" for the purposes of 1983 "must have the force of law by virtue of the persistent practices of state officials." That construction of 1983 is, to borrow a phrase from the first Mr. Justice Harlan, "too narrow and artificial." Civil Rights Cases, (dissenting opinion). Section 1983 by its terms protects all "rights" that are "secured by the Constitution and laws" of the United There is no more basic "right" than the exemption from discrimination on account of racean exemption that stems not only from the Equal Protection Clause of the Fourteenth Amendment but from the Thirteenth Amendment and from a myriad of "laws" enacted by Congress. And so far as 1983 is concerned it is sufficient that the deprivation of that right be "under color" of "any custom of any State." The "custom" to be actionable must obviously reflect more than the prejudices of a few; it must reflect the dominant communal sentiment. The |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | a few; it must reflect the dominant communal sentiment. The "custom of any State" can of course include the predominant attitude backed by some direct or indirect sanctions inscribed in law books. Thus in another restaurant case involving racial discrimination, there was no state law or municipal ordinance that in terms required segregation of the races in restaurants. But segregation was basic to the structure of as a community as revealed by a mosaic of laws. The same is true of Mississippi in the present case. n at the time of the discrimination perpetrated in this case, there were numerous Mississippi laws that were designed to continue a regime of segregation of *180 the races. The state legislature had passed a resolution condemning this Court's as "unconstitutional" infringements on ' rights. Miss. Laws 196, c. 466, Senate Concurrent Resolution No. 12. Part of the Mississippi program to perpetuate the segregated way of life was the State Sovereignty Commission, Miss. Code Ann. 9028-31 et seq. of which the Governor was chairman and which was charged with the duty "to do and perform any and all acts and things deemed necessary and proper to protect the sovereignty of the State of Mississippi from encroachment thereon by the Federal Government" 9028-3. Miss. Code Ann. 406.3 required "the entire executive branch of the government of the State of Mississippi to prohibit by any lawful, peaceful, and constitutional means, the causing of a mixing or integration of the white and Negro races in public schools, public parks, public waiting rooms, public places of amusement, recreation or assembly in this state, by any branch of the federal government" Every word and deed of a state officer, agent, or employee that was connected with maintaining segregated schools in Mississippi was deemed to be "the sovereign act of the sovereign State of Mississippi." 406.4 t was unlawful for a white student to attend any school of high school or lower level that was attended by Negro students. 6220. Separate junior college districts were established for blacks and whites. 647-14 (192). The Ellisville State School for the feeble-minded was required to provide for separate maintenance of blacks and whites. 6766. The State nsane Hospital was required to keep the two races separate, 63, as was the South Mississippi Charity Hospital. 6927. Separate entrances were required to be maintained at state hospitals *181 for black and white patients. 6973. t was the responsibility of those in authority to furnish a sufficient number of Negro nurses to attend Negro patients, but the Negro nurses were to be under the supervision of |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | the Negro nurses were to be under the supervision of white supervisors. 6974. t was unlawful for Negro and white convicts to be confined or worked together. 79 County sheriffs were required to maintain segregated rooms in the jails. 429. t was unlawful for taxicab drivers to carry black and white passengers together. 3499. Railroad depots in cities of 3,000 or more inhabitants were required to have separate "closets" for blacks and whites. 7848. And it was a crime to overthrow the segregation laws of the State. 206 (7). The situation was thus similar to that which existed in Garner. Although there was no law that in terms required segregation of the races in restaurants, it was plain that the discrimination was perpetrated pursuant to a deeply entrenched custom in that was "at least as powerful as any law." ; cf. The "custom of any State," however, can be much more pervasive. t includes the unwritten commitment, stronger than ordinances, statutes, and regulations, by which men live and arrange their lives. Bronislaw Malinowski, the famed anthropologist, in speaking of the "cake of custom" of a Melanesian community "safeguarding life, property and personality" said:[2] "There is no religious sanction to these rules, no fear, superstitious or rational, enforces them, no *182 tribal punishment visits their breach, nor even the stigma of public opinion or moral blame. The forces which make these rules binding we shall lay bare and find them not simple but clearly definable, not to be described by one word or one concept, but very real none the less. The binding forces of Melanesian civil law are to be found in the concatenation of the obligations, in the fact that they are arranged into chains of mutual services, a give and take extending over long periods of time and covering wide aspects of interest and activity. To this there is added the conspicuous and ceremonial manner in which most of the legal obligations have to be discharged. This binds people by an appeal to their vanity and self-regard, to their love of self-enhancement by display. Thus the binding force of these rules is due to the natural mental trend of self-interest, ambition and vanity, set into play by a special social mechanism into which the obligatory actions are framed." This concept of "custom" is, think, universal and as relevant here as elsewhere. t makes apparent that our problem under 42 U.S. C. 1983 does not make our sole aim the search for "state action" in the Hamiltonian sense of "law." That restricted kind of a search certainly is not |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | "law." That restricted kind of a search certainly is not compelled by grammar. "Of" is a word of many meanings, one of which indicates "the thing or person whence anything originates, comes, is acquired or sought." 7 Oxford English Dictionary (definition ). The words "under color of any custom of any State" do no more than describe the geographical area or political entity in which the "custom" originates and where it is found. The philosophy of the Black Codes reached much further than the sanctions actually prescribed in them. Federal judges, who entered the early school desegregation *183 decrees, often felt the ostracism of the community, though the local "law" never even purported to place penalties on judges for doing such acts. Forty years ago in Washington, D. C., a black who was found after the sun set in the northwest section of the District on or above Chevy Chase Circle was arrested, though his only "crime" was waiting for a bus to take him home after caddying at a plush golf course in the environs. There was no "law" sanctioning such an arrest. t was done "under color" of a "custom" of the Nation's Capital. Harry Golden[3] recently wrote: "Southerners drew a line and prohibited Negroes crossing it. They doomed themselves to a lifetime of guarding that line, fearing it would be breached. Because the white Southerner must forever watch that line, the Negro intrudes upon the white at every level of life." s not the maintenance of that line by habit a "custom?" Title 42 U.S. C. 1983 was derived from 1 of the "Ku Klux Klan Act" of 1871, The "under color of" provisions of 1 of the 1871 Act, in turn, were derived from 2 of the Civil Rights Act of 1866, The meaning of "under color of custom" in the context of the 1866 Act is therefore relevant to the meaning of that phrase as it is used in 1983, for, as the Court states, the "under color of" provisions mean the same thing for 1983 as they do for 18 U.S. C. 242, the direct descendant of 2 of the 1866 Act.[4]Ante, at 12 n. 7. *184 A "custom" of the community or State was one of the targets of the Civil Rights Act of 1866. Section 1, which we upheld in provided a civil remedy for specified private acts of racial discrimination. Section 2 of that Act provided criminal sanctions for acts done "under color of any" custom of a State. A Congress that in 1866 was not bent only on "the nullification |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | that in 1866 was not bent only on "the nullification of racist laws," was not restricting itself strictly to state action; it was out to ban racial discrimination partly as respects private actions, partly under state law in the Hamiltonian sense, and partly under the color of "custom." Of course, 2 of the 1866 Act did not cover purely private actions as did 1 of the Act, and that was the point of our discussion of 2 in But the Court does not come to grips with the fact that actions taken "under color of any custom" were covered by 2 of the 1866 Act quite apart from *18 actions taken under "color of any statute, ordinance, [or] regulation"in other words, quite apart from actions taken under "color of law" in the traditional sense. nstead, the Court seems to divide all actions into two groupsthose constituting "state action" and those constituting purely "private action"with coverage of 2 limited to the former. While 2 did not reach "private violations," it did reach discrimination based on "color of custom," which is far beyond the realm of a mere private predilection or prejudice. And, despite the Court's suggestion to the contrary, the use of the term "under color of law" by the Court in was merely a shorthand reference for all the "under color of" provisions in 2 and had no relevance to the specific problem of defining the meaning of "under color of custom."[] Section 2, like 1, involved in was bottomed on the Thirteenth Amendment, for it was enacted before the Fourteenth Amendment was adopted. As we stated in : "Surely Congress has the power under the Thirteenth Amendment rationally to determine what are the badges and the incidents of slavery, and the *186 authority to translate that determination into effective legislation." While the Privileges and mmunities Clause, the Due Process Clause, and the Equal Protection Clause of the Fourteenth Amendment are each protective of the individual as against "state" action, the guarantees of the Thirteenth Amendment and various laws of the United are not so restricted. And 1983 protects not only Fourteenth Amendment rights, but "any rights secured by the Constitution and laws." With regard to 1983's scope of protection for violations of these rights, Congress in 1983 aimed partly at "state" action and it was with that aspect of it that we were concerned in f the wrong done to the individual was under "color" of "custom" alone, the ingredients of the cause of action were satisfied.[6] The adoption of the Fourteenth Amendment *187 expanded the substantive rights covered |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | of the Fourteenth Amendment *187 expanded the substantive rights covered by 1 of the 1871 Act vis-à-vis those covered by 2 of the 1866 Act. But that expanded coverage did not make "state action" a necessary ingredient in all of the remedial provisions of 1 of the 1871 Act. Neither all of 1 of the 1871 Act nor all of its successor, 1983, was intended to be conditioned by the need for "state" complicity. Moreover, a majority of the Court held in United 782 and n. 6, that of the Fourteenth Amendment enables Congress to punish interferences with constitutional rights "whether or not state officers or others acting under the color of state law are implicated." There the statute involved (18 U.S. C. 241) proscribed all conspiracies to impair any right "secured" by the Constitution. A majority agreed that in order for a conspiracy to qualify it need not involve any "state" action. By the same reasoning the "custom of any State" as used in 1983 need not involve official state development, maintenance, or participation. The reach of 1983 is constitutional rights, including those under the Fourteenth Amendment; and Congress rightfully was concerned with their full protection, whoever might be the instigator or offender. To repeat, 1983 was "one of the means whereby Congress exercised the power vested in it by of the Fourteenth Amendment to enforce the provisions of that Amendment." Yet powers exercised by Congress may stem from more than one constitutional source. ; Veazie ; ; United Moreover, 1983 protects "any rights" that are "secured" by "the Constitution and laws" *1 of the United which makes unmistakably clear that 1983 does not cover, reach, protect, or secure only Fourteenth Amendment rights. The Thirteenth Amendment and its enabling legislation cover a wide range of "rights" designed to rid us of all the badges of slavery. And, as have said, the phrase "under color of any custom" derives from 2 of the 1866 Act which rested on the Thirteenth Amendment whose enforcement does not turn on "state action."[7] The failure of the Court to come to face with those realities leads to the regressive decision announced today. t is time we stopped being niggardly in construing civil rights legislation. t is time we kept up with Congress and construed its laws in the full amplitude needed to rid their enforcement of the lingering tolerance for racial discrimination that we sanction today. MR. JUSTCE BRENNAN, concurring in part and dissenting in part. Petitioner contends that in respondent, while acting "under color of statute" or "under color of custom, or usage" |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | color of statute" or "under color of custom, or usage" of the State of Mississippi, subjected her to the deprivation of her right under the Equal Protection Clause of the Fourteenth Amendment not to be denied service in respondent's restaurant due to racial discrimination in which the State of Mississippi was involved, and that therefore respondent is liable to her in damages under 42 U.S. C. 1983. To recover under 1983 petitioner must prove two separate and independent elements: first, that respondent subjected her to the *189 deprivation of a right "secured by the Constitution and laws"; and, second, that while doing so respondent acted under color of a statute, ordinance, regulation, custom, or usage of the State of Mississippi. Whether a person suing under 1983 must show state action in the first elementthe deprivation of a right "secured by the Constitution and laws"depends on the nature of the particular right asserted. For example, a person may be deprived of a right secured by the Constitution and 42 U.S. C. 1982 by a private person acting completely independently of state government. See On the other hand, the constitutional right to equal protection of the laws, unelaborated by any statute, can be violated only by action involving a State. The discussion in United of various constitutional uses of the word "State" suggests that as an original matter "State" in the Equal Protection Clause might have been interpreted in any of several ways. Moreover, some have thought that historical evidence points to an interpretation covering some categories of state inaction in the face of wholly private conduct, see, e. g., 378 U.S. 2, ; R. The Quest for Equality 24-6 ; J. tenBroek, Equal Under Law 201-239 (196). However, our cases have held that the Equal Protection Clause applies only to action by state government or officials and those significantly involved with them. ; Whether and when a person suing under 1983 must show state action in the second elementaction under color of a statute, ordinance, regulation, custom, or *190 usage of a Statedepends on an analysis of the text, legislative history, and policy of 1983. See Part infra. These two inquiries are wholly different, thought in particular cases a showing of state action under one element may suffice under the other. n the present case petitioner alleged as the first element under 1983 a deprivation of her right to equal protection. Therefore, under our cases, she must show state action. She asserts that there was state action in two different respects. First, she contends that there was a conspiracy between respondent |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | First, she contends that there was a conspiracy between respondent and local police to discriminate against her in restaurant service because she, a white person, sought service while accompanied by Negro friends. The Court treats this aspect of her claim in Part of its opinion, which join.[1] Petitioner contends, alternatively, that respondent's discrimination was authorized and encouraged by Mississippi statutes. To that contention now turn. The state-action doctrine reflects the profound judgment that denials of equal treatment, and particularly denials on account of race or color, are singularly grave when government has or shares responsibility for them. Government is the social organ to which all in our society look for the promotion of liberty, justice, fair and equal treatment, and the setting of worthy norms and goals for social conduct. Therefore something is uniquely amiss in a society where the government, the authoritative oracle of community values, involves itself in racial *191 discrimination. Accordingly, in the cases that have come before us this Court has condemned significant state involvement in racial discrimination, however subtle and indirect it may have been and whatever form it may have taken. See, e. g., ; These decisions represent vigilant fidelity to the constitutional principle that no State shall in any significant way lend its authority to the sordid business of racial discrimination. Among the state-action cases that most nearly resemble the present one are the sit-in cases decided in and n the petitioners were convicted of trespass for refusing to leave a lunch counter at a Kress store in South Carolina. A ordinance at that time imposed on the proprietors of restaurants the duty to segregate the races in their establishments, and there was evidence that the Kress manager was aware of the ordinance. We held that the existence of the ordinance, together with a showing that the Kress manager excluded the petitioners solely because they were Negroes, was sufficient to constitute discriminatory state action in violation of the Fourteenth Amendment: "When the State has commanded a particular result, it has saved to itself the power to determine that result and thereby `to a significant extent' has `become involved' in it, and, in fact, has removed that decision from the sphere of private choice. "Consequently these convictions cannot stand, even assuming, as respondent contends, that the manager would have acted as he did independently of the existence of the ordinance." *192 Although the case involved trespass convictions, the Court did not rely on the State's enforcement of its neutral trespass laws in analyzing the elements of state action present. Nor did it cite the |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | elements of state action present. Nor did it cite the logical starting point for an analysis in terms of judicial enforcement. The denial of equal protection occurred when the petitioners were denied service in the restaurant. That denial of equal protection tainted the subsequent convictions. And as we noted in no "proof [was] required that the restaurant owner had actually been influenced by the state statute" Thus Peterson establishes the proposition that where a State commands a class of persons to discriminate on the basis of race, discrimination by a private person within that class is state action, regardless of whether he was motivated by the command. The Court's intimation in the present case that private discrimination might be state action only where the private person acted under compulsion imposed by the State echoes MR. JUSTCE HARLAN'S argument in Peterson that private discrimination is state action only where the State motivates the private person to discriminate. See -23. That argument was squarely rejected by the Court in Peterson, and see no reason to resurrect it now. The rationale of Peterson was extended in Lombard v. 373 U.S. 7 There the petitioners were convicted of trespass for refusing to leave a restaurant after being denied service. Prior to the arrests the mayor and superintendent of police of New Orleans had publicly stated that sit-in demonstrations were undesirable and that relevant trespass laws would be fully enforced. Although these statements, unlike the ordinance in Peterson, were not discriminatory on their face, the Court interpreted them *193 as evidencing state support for the system of racial segregation prevalent in the private institutions against which the petitioners' sit-in was directed. Moreover, the statements, unlike the ordinance in Peterson, did not command restaurateurs to discriminate. A restaurateur in New Orleans, unlike one in could integrate his services without violating any law. Although there was evidence that the restaurateur's actions were influenced by the official statements, the Court did not rely on this factor. The Court held on the basis of the statements alone that the degree of state involvement in the private discriminatory denial of service to the petitioners was sufficient to make that denial state action violative of the Fourteenth Amendment. As in Peterson, the Court's analysis of state action did not turn on the actual enforcement of the State's criminal law. Lombard, therefore, advances at least two propositions. First, an authoritative expression of state policy that is nondiscriminatory on its face may be found to be discriminatory when considered against the factual background of its promulgation. Cf. ; Second, where a state policy |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | of its promulgation. Cf. ; Second, where a state policy enforces privately chosen racial discrimination in places of public accommodation, it renders such private discrimination unconstitutional state action, regardless of whether the private discriminator was motivated or influenced by it. The principles of Peterson and Lombard were extended further in That case involved trespass convictions arising out of a sit-in at a segregated restaurant. At the time, a Florida regulation required restaurants to maintain separate lavatory and toilet facilities for each race as well as each sex. However, the regulation did not require segregation of a restaurant itself; nor did the *194 convictions of the demonstrators result from anything they did with respect to the facilities that were the subject of the regulation. Nevertheless, this Court reversed the convictions on the ground that by virtue of the regulation the State had become sufficiently involved in the privately chosen segregation of the restaurant to make that segregation state action. The Court commented: "While these Florida regulations do not directly and expressly forbid restaurants to serve both white and colored people together, they certainly embody a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together." 378 U.S., at Robinson involved neither a state command of restaurant segregation, as in Peterson, nor a state policy of enforcing restaurant segregation, as in Lombard. t involved state imposition of burdens amounting to discouragement of private integration. t is true that the burden in that case happened to take the form of a requirement of segregated lavatory facilities; but any other burdenfor example, a tax on integrated restaurants would have sufficed to render the privately chosen restaurant segregation unconstitutional state action. Again, the Court's finding of state action did not depend on the use of the State's trespass law. Robinson thus stands for the proposition that state discouragement of a particular kind of privately chosen integration renders that kind of privately chosen segregation unconstitutional state action. The step from Peterson, Lombard, and Robinson to the present case is a small one. ndeed, it may be no step at all, since those cases together hold that a state *19 policy of discouraging privately chosen integration or encouraging privately chosen segregation, even though the policy is expressed in a form nondiscriminatory on its face, is unconstitutional and taints the privately chosen segregation it seeks to bring about. These precedents suggest that the question of state action in this case is whether, as petitioner contends, Mississippi statutes do in fact manifest a state policy of encouraging |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | statutes do in fact manifest a state policy of encouraging and supporting restaurant segregation so that respondent's alleged privately chosen segregation is unconstitutional state action. To establish the existence in of a state statutory policy to maintain segregation in restaurant facilities, petitioner relies principally on Miss. Code Ann. 2046. which, on its face, "authorizes" and "empowers" owners of hotels, restaurants, and other places of public accommodation and amusement to refuse to serve whomsoever they choose.[2] The decision whether to serve a particular *196 individual is left to the unfettered discretion of the restaurant management, which may refuse service for any reason or for no reason. Thus, while there is no explicit command in 2046. that segregated eating facilities be maintained, a refusal to serve on the basis of race alone falls clearly within the broad terms of the statute. The restaurateur is informed, in essence, that he may discriminate for racial or any other reasons and that he may call upon the police power of the State to make that private decision effective through the trespass sanctions expressly incorporated in 2046. t is clear that, to the extent that the statute authorizes and empowers restaurateurs to discriminate on the basis of race, it cannot pass muster under the Fourteenth Amendment. at 7-727 Burton involved a statute that permitted a restaurateur to refuse service to "persons whose reception or entertainment by him would be offensive to the major part of his customers" MR. JUSTCE STEWART took the position that the state courts had "construed this legislative enactment as authorizing discriminatory classification based exclusively on color." 36 U.S., at 7-727. Justices Frankfurter, HARLAN, and Whittaker, the only other Justices who dealt at length with the statute,[3]*197 agreed that it would violate the Fourteenth Amendment if so construed. However, they thought the construction adopted by the state courts insufficiently clear to make possible a final determination of the issue. The language of 2046. is considerably broader than that involved in Burton. Although 2046. apparently has not been authoritatively interpreted by the state courts, its plain language clearly authorizes a restaurateur to refuse service for any reason, which obviously includes a refusal based upon race. Were there any conceivable doubt that 2046. was intended to authorize, inter alia, "discriminatory classification based exclusively on color," it is completely dispelled by a consideration of the historical context in which 2046. was enacted. A legislative or constitutional provision need not be considered in isolation, but may be examined "in terms of its `immediate objective,' its `ultimate effect' and its `historical context and the conditions existing prior to |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | and its `historical context and the conditions existing prior to its enactment.' " ; cf. Lombard v. Through the 190's and 1960's Mississippi had a "steel-hard, inflexible, undeviating official policy of segregation." United See generally J. Silver, Mississippi: The Closed Society Section 2046. itself was originally enacted in 196 in the wake of our decisions in (194); (19). t was passed contemporaneously with numerous statutes and resolutions condemning Brown,[4] requiring racial segregation in various transportation facilities,[] and committing the state government to continued adherence to the principles of racial *198 segregation.[6] Together with these other statutes and resolutions, 2046. is indexed in the 196 Mississippi Session Laws under "Segregation" and "Races."[7] Prior *199 to 196, the State had declared unlawful any conspiracy "[t]o overthrow or violate the segregation laws of this state"[8] Subsequent to the passage of 2046., breach of the peace, vagrancy, and trespass statutes similar to 2046.[9] were enacted or employed to give local officials additional weapons to combat attempts to desegregate places of public accommodation. See, e. g., 343 F.2d 2 (C. A. th Cir. 196).[10] llustrative of the practical effect of these various provisions is the incident that gave rise to this litigation. *200 Petitioner was arrested for vagrancy shortly after she had unsuccessfully sought service at respondent's store. n ordering dismissal of the charges after removal of the prosecutions to the federal courts, the Court of Appeals for the Fifth Circuit noted "[t]he utter baselessness of any conceivable contention that the vagrancy statutes prohibited any conduct in which these persons were engaged" and concluded that the arrests had been made solely because petitioner had attempted to receive service at a city library and at respondent's store in the company of Negro friends. 474-47[] n sum, it may be said of the various statutes and resolutions that constituted Mississippi's response to Brown that "they are bound together as the parts of a single plan. The plan may make the parts unlawful." Swift & 196 U.S. 37, (190) Section 2046. was an integral part of this scheme to foster and encourage the practice of segregation in places of public accommodation and elsewhere, which it furthered by authorizing discrimination and by affording those who elected to discriminate on the basis of race a remedy under state law. ndeed, it is difficult to conceive of any purpose for the enactment of 2046. other than to make clear the authorization of private discrimination where such express authorization did not exist previously. Cf. v. Reitman, 64 Cal. *201 2d 29, 44, 4 P.2d 82, 83-836 aff'd, Judge Waterman, dissenting in the |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | 4 P.2d 82, 83-836 aff'd, Judge Waterman, dissenting in the Court of Appeals, states that under the common law an innkeeper, and by analogy a restaurateur, did not have the right to serve only whomever he wished and to discriminate on the basis of race in selecting his customers. 1-3. See 378 U.S. 2, Since the common law is presumed to apply in Mississippi, Western Union Telegraph Judge Waterman concludes that the State has "drastically changed the common law" by enacting 2046.[12] 409 F. 2d, at 2. Further support for this view can be found in the preamble to 2046. which states that that provision "confer[s] upon any person the further right to refuse to sell or render a service to any person" Miss. Laws 196, c. 27. (Emphasis added.) This formulation suggests that the legislature intended to alter the existing state law. t is not completely clear, however, that the common law in regard to innkeepers and restaurateurs, as understood by Judge Waterman, was ever widely enforced in Mississippi in racial matters. n Reconstruction times *202 the State enacted a civil rights law that forbade discrimination in places of public accommodation and amusement. See Miss. Laws c. LX. t was upheld and applied in That law, however, quickly fell into desuetude.[] Thus some question exists as to whether Mississippi "changed" the law as it existed in that State in 196. At least it can be said, however, that Mississippi, by enacting 2046., clarified the state law, and in doing so elected to place the full authority of the State behind private acts of discrimination. Since 2046. authorizes discrimination on the basis of race, it is invalid as applied to authorize such discrimination in particular cases. The remaining question concerning this aspect of the present case is what nexus between 2046. and respondent's alleged discrimination petitioner must show to establish that that discrimination is state action violative of the Fourteenth Amendment. Our prior decisions leave no doubt that the mere existence of efforts by the State, through legislation or otherwise, to authorize, encourage, or otherwise support racial discrimination in a particular facet of life constitutes illegal state involvement in those pertinent private acts of discrimination that subsequently occur. See, e. g., Lombard v. *203 [14] This is so, as we noted in at whether or not the private discriminator was actually influenced in the commission of his act by the policy of the State. Thus, when private action conforms with state policy, it becomes a manifestation of that policy and is thereby drawn within the ambit of state action. n |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | is thereby drawn within the ambit of state action. n sum, if an individual discriminates on the basis of race and does so in conformity with the State's policy to authorize or encourage such discrimination, neither the State nor the private party will be heard to say that their mutual involvement is outside the prohibitions of the Fourteenth Amendment. Therefore, in light of the statutory scheme including 2046., which authorized and encouraged restaurant segregation, petitioner will fully satisfy the state-action requirement of the Fourteenth Amendment if she establishes that she was refused service on the basis of race. turn now to the other elements of petitioner's case under 1983. Title 42 U.S. C. 1983 derives from 1 of the Civil Rights Act of 1871, entitled, "An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United and for other Purposes."[1] The 1871 Act, popularly known as the "Ku *204 Klux Klan Act," was, as its legislative history makes absolutely clear, a response to the outrages committed by the Klan in many parts of the South. The conditions that gave rise to the Act were discussed extensively in n the context of that case we pointed out that although the 1871 Act was engendered by the activities of the Klan, the language and purposes of 1983 are not restricted to that evil. See 36 U.S., at 183. See *20 United where Mr. Justice Holmes, speaking for the Court, commented on 6 of the Enforcement Act of 1870, as amended, now 18 U.S. C. 241, in words applicable to 1983: "Just as the Fourteenth Amendment was adopted with a view to the protection of the colored race but has been found to be equally important in its application to the rights of all, [the statute] had a general scope and used general words that have become the most important now that the Ku Klux have passed away [W]e cannot allow the past so far to affect the present as to deprive citizens of the United of the general protection which on its face [the statute] most reasonably affords." Stirred to action by the wholesale breakdown of protection of civil rights in the South, Congress carried to completion the creation of a comprehensive scheme of remediescivil, criminal, and military[16]for the protection of constitutional rights from all major interference. n the 1871 Act, Congress undertook to provide broad federal civil remedies against interference with the exercise and actual enjoyment of constitutional rights, particularly the right to equal protection. Section 1 (now 1983) provided a civil remedy for deprivation of |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | 1 (now 1983) provided a civil remedy for deprivation of any constitutional right by a person acting "under color of any law, statute, ordinance, regulation, custom, or usage of any State" Section 2 (now surviving *206 in part as 198 (3)) provided a civil and a criminal remedy against conspiratorial interference with any person's enjoyment of equal protection. Section 6 (now 1986) cast the net of civil liability even more widely by providing a remedy against any person who, having the ability by reasonable diligence to prevent a violation of 2, fails to do so. These remedies were bolstered by other criminal provisions of 2 and by previously enacted criminal laws. Section 2 of the Civil Rights Act of 1866, re-enacted as 17 of the Enforcement Act of 1870, as amended, now 18 U.S. C. 242, provided a criminal remedy against what amounts to a violation of 1983. Section 6 of the Enforcement Act of 1870, as amended, now 18 U.S. C. 241, provided a criminal remedy against conspiracies to interfere with the exercise or enjoyment of a federal right.[17] The history of this scheme of remedies for the protection of civil rights was, until very recently, one of virtual nullification by this Court. Key provisions were declared unconstitutional or given an unduly narrow construction wholly out of keeping with their purposes.[18] n United the Court invalidated the criminal provision of 2 of the *207 Ku Klux Klan Act, the criminal analogue to 198 (3), on the ground that Congress was not authorized by of the Fourteenth Amendment to prohibit interference by private persons with the exercise of Fourteenth Amendment rights, except perhaps in extreme and remote circumstances. Essential to the holding was a recognition that the language of 2 plainly reaches conspiracies not involving state officials. See The statute (Rev. Stat. 19) was repealed in 1909. 3 Stat. 4. n 341 U.S. 61 (191), the Court, under the influence of construed 198 (3). Pointing out that the language of 198 (3) is exactly the same (except for the remedy provided) as the language of the statute condemned in the Court thought it necessary to read in a limitation of the section to conspiracies involving state action, in order to sustain its constitutionality. This limiting construction necessarily carried over to 1986, whose scope is keyed to that of 198. Section 241 of 18 U.S. C. fared little better. That statute, as indicated, deals generally with conspiracies to interfere with the exercise of federal rights. t was established soon after its enactment that 241 reaches conspiracies among private persons to interfere |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | enactment that 241 reaches conspiracies among private persons to interfere with "rights which arise from the relationship of the individual and the Federal Government." United (191) See, e. g., Ex parte Yarbrough, 0 U.S. 61 ; United ; 144 U.S. 3 ; n re Quarles, 18 U.S. 32 (189). However, the concept of "arising from" was given a very narrow construction in United 92 U.S. 42 Moreover, in United the Court divided 4 to 4 on the question whether 241 reaches private conspiracies to *208 interfere with the exercise of Fourteenth Amendment rights, which arise from the relation of an individual and a State. The four members of the Court who thought 241 does not protect the exercise of Fourteenth Amendment rights placed considerable reliance on the argument that 241 would be unconstitutional if construed otherwise. See 341 U.S., at -78. See Although the other principal criminal statute protecting civil rights, 18 U.S. C. 242, the criminal analogue to 1983, was construed to protect Fourteenth Amendment rights, it was nonetheless held constitutional. However, under this statute a violation can be found only if the defendant acted "willfully," that is, with "a specific intent to deprive a person of a federal right made definite by decision or other rule of law." See 32 U.S. 91, (194). Moreover, this Court has never had occasion to consider whether 242 reaches wholly nonofficial conduct. Thus, until very recently, the construction of the surviving remedial civil rights statutes was narrowed or placed in doubt by a restrictive view of the power of Congress under of the Fourteenth Amendment. But that view of congressional power has now been completely rejected by this Court. n United and United the Court expressly held that 241 does protect Fourteenth Amendment rights, thereby squarely resolving the issue that divided the court in Because the conspiracy in was alleged to have been carried out by private persons acting in conjunction with state officials,[19] the Court found it unnecessary to consider whether 241 *209 would be constitutional if construed to reach wholly private conspiracies to interfere with the exercise of Fourteenth Amendment rights. However, to put the point beyond doubt, six members of the Court in expressly stated their view that Congress has power under of the Fourteenth Amendment to protect Fourteenth Amendment rights against interference by private persons, without regard to state involvement in the private interference. See United 4-786 (opinion of BRENNAN, J., joined by Warren, C. J., and DOUGLAS, J.). This general view of congressional power under was expressly adopted by the Court in where we said: "By including |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | adopted by the Court in where we said: "By including the draftsmen sought to grant to Congress, by a specific provision applicable to the Fourteenth Amendment, the same broad powers expressed in the Necessary and Proper Clause, Art. 8, cl. 18. Correctly viewed, is a positive grant of legislative power authorizing Congress to exercise its discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment." 384 U.S., at 60-61. See South[20] Thus the holding of and the Civil Rights Cases, that Congress cannot under protect the exercise of Fourteenth Amendment rights from private interference has been overruled. See United -783 Consequently, the interpretation of the civil rights statutes need no longer be warped by unwarranted concern that Congress lacks power under to reach conduct by persons other than public officials. There is no doubt that 1983 protects Fourteenth Amendment rights. See ; at 20-206 Accordingly, the only substantial question in this branch of the present case is whether 1983 was intended by Congress to reach nonofficial conduct of the kind at issue here. Petitioner contends that respondent's discrimination against her was within the scope of 1983 on either of two grounds. First, she claims that respondent acted under color of Mississippi statutory law, and in particular Mississippi Code 2046. Second, she claims that respondent acted under color of a custom or usage of Mississippi, which prescribed segregation of the races in dining facilities. Petitioner's claim that respondent acted under color of Mississippi statutory law is similar to her claim that respondent's action constituted state action. ndeed, the two claims would be proved by the same factual showing if respondent were a state official who acted by virtue of his official capacity or a private party acting in conjunction with such state official, for when a state official acts by virtue of his official capacity it is precisely the use or misuse of state authority that makes the action state action. However, when a private party acts alone,[21] more must be shown, in my view, to establish that he acts "under color of" a state statute or other authority than is needed to show that his action constitutes state action. *2 As pointed out in Part under the constitutional principle that no State shall have any significant involvement whatever in racial discrimination, and under our prior cases, the mere existence of a state policy authorizing, encouraging, or otherwise supporting racial discrimination in a particular kind of service is sufficient to render private discrimination in that service state action. However, the statutory term "under color |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | that service state action. However, the statutory term "under color of any statute" has a narrower meaning than the constitutional concept of "state action." The "under color" language of 1983 serves generally to limit the kinds of constitutional violation for which the section provides a remedy. To understand how that language applies to private persons, it is helpful to consider its application to state officials. n other legal usage, the word "color," as in "color of authority," "color of law," "color of office," "color of title," and "colorable," suggests a kind of holding out and means "appearance, semblance, or simulacrum," but not necessarily the reality. See H. Black, Law Dictionary 331-332 However, as the word appears in 1983, it covers both actions actually authorized by a State, see ; 273 U.S. 36 ; 307 U.S. 8 and misuse of state authority in ways not intended by the State, see, e. g., n some of these latter situations there is a holding out in that the official uses his actual authority to give the appearance that he has authority to take the particular action he is taking. n other cases the abuse of power is so palpable that the victim or any observer may well be aware that the official is exceeding his authority, so that any holding out of authority would be wholly transparent. n these cases the misuse of authority alone is enough to warrant recovery. See, e. g., *212 United v. Classic, 3 U.S. 299, 3 ; Catlette v. United 2 F.2d 902 Thus, a public official acting by virtue of his official capacity always acts under color of a state statute or other law, whether or not he overtly relies on that authority to support his action, and whether or not that action violates state law. A private person acts "under color of" a state statute or other law when he, like the official, in some way acts consciously pursuant to some law that gives him aid, comfort, or incentive, cf. 378 U.S. 0 ; 224 F.2d 72 (C. A. 4th Cir. 19), appeal dismissed, 31 U.S. 901 ; or when he acts in conjunction with a state official, as in United n the present case Mississippi statutory law did authorize and encourage respondent to discriminate against petitioner on the basis of race. Therefore petitioner can establish that respondent acted "under color of" Mississippi statutory law by showing that respondent was aware of that body of law as prescribing, encouraging, authorizing, legitimating, effectuating, or otherwise supporting its refusal to serve petitioner. The vice of action under color |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | refusal to serve petitioner. The vice of action under color of statute exists wherever the private discriminator consciously draws from a state statute any kind of support for his discrimination. Therefore, it is irrelevant that petitioner was not arrested under the trespass provision of 2046. Petitioner's second contention, that respondent discriminated againt her "under color of [a] custom, or usage" of Mississippi, presents more difficulty. have found few prior cases construing the phrase "under color of custom, or usage" in the context of 1983;[22] and it *2 has not been litigated under 18 U.S. C. 242, though in that context it was briefly discussed in the opinions in t is true that on occasion this Court has summed up the statutory language "under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory" as meaning "under color of law," and as incorporating a requirement of state action akin to that of the Equal Protection Clause. See, e. g., United at 794 n. 7. But the loose and vague phrase "under color of law" has always been used by the Court in the context of cases in which reliance was put on something other than "custom or usage." The Court *214 has never held, or even intimated, that "custom or usage" means "law." ndeed, MR. JUSTCE HARLAN, dissenting in used a different formula in summarizing the "under color of" language in 242; he said it referred to "action taken pursuant to state or community authority." 392 U.S., at 44. Moreover, he referred to "discriminations which were legitimated by a state or community sanction sufficiently powerful to deserve the name `custom.' " at 47. (Emphasis added.) See ("abuses so recurrent as to amount to `custom, or usage' "). Thus, "under color of law" has not been the only formula used by members of this Court to summarize the parallel language in 242 and 1983.[23] t is true that the phrase "under color *21 of law" occurs in the debates on the 1871 Act, see n. 2, infra. But since in the original version of 1983, as introduced and enacted, the word "law" was the first word in the enumeration following "color of,"[24] the use of "under color of law" as a handy formula in debate is readily explained. More importantly, the phrase has never been taken to be a considered, comprehensive, and authoritative summation of the provisions of 1983. As this Court said over a century ago and has since repeated, "n expounding a statute, we must not be guided by a single sentence or member of a |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | be guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy." United v. Boisdoré's Heirs, 8 How. 1, ; Mastro Plastics 30 U.S. 270, 28 ; Richards v. United ; Dandridge v. 17 The legislative history of 1983 provides no direct guidance for the interpretation of the phrase "custom or usage." Much of the lengthy debate concerned the truth of the allegations of KKK outrages and the constitutionality and wisdom of other sections of the Act. Little attention was given to the precise wording of 1983, and there was no sustained discussion of the meaning of "custom or usage."[2] Consequently, in my *216 view, we are called on to analyze the purposes Congress sought to achieve by enacting 1983 in the context of the Civil Rights Act of 1871. Only by relating the *217 phrase "custom or usage" to congressional purposes can we properly interpret and apply the statutory language today. n seeking to determine the purposes of 1983, it is important to recall that it originated as part of a statute directed against the depredations of a private army. Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley, a supporter of the bill). The Klan was recognized by Congress to be a widespread conspiracy "operating wholly outside the law," and employing a variety of methods to coerce Negroes and others to forgo exercise of civil rights theoretically protected by the Constitution and federal statutes. n some areas of the South the Klan was strong enough to paralyze the operations of state government. As Representative Coburn, a supporter of the bill, noted: "Such, then, is the character of these outrages numerous, repeated, continued from month to month and year to year, extending over many ; all similar in their character, aimed at a similar class of citizens; all palliated or excused or *218 justified or absolutely denied by the same class of men. Not like the local outbreaks sometimes appearing in particular districts, where a mob or a band of regulators may for a time commit crimes and defy the law, but having every mark and attribute of a systematic, persistent, well-defined organization, with a fixed purpose, with a regular plan of action. "The development of this condition of affairs was not the work of a day or even of a year. t could not be, in the nature of things; it must be slow; one fact to be piled on another, week after week, year after year. "Such occurrences show that there |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | after week, year after year. "Such occurrences show that there is a pre-concerted and effective plan by which thousands of men are deprived of the equal protection of the laws. The arresting power is fettered, the witnesses are silenced, the courts are impotent, the laws are annulled, the criminal goes free, the persecuted citizen looks in vain for redress. This condition of affairs extends to counties and ; it is, in many places, the rule, and not the exception." Cong. Globe, 42d Cong., 1st Sess., 48-49. See at App. 172 (remarks of Sen. Pool, a supporter); at 63 ; at 1-160 Thus the mischief that the legislation of 1871 was intended to remedy derived, not from state action, but from concerted "private" action that the were unwilling or unable to cope with. Senator Schurz, a moderate opponent who on behalf of the President had personally investigated the disorders in the South, summed up the condition to be dealt with: "The real evil in the southern you will find in the baffled pro-slavery tendency prevailing there; *219 in a diseased public sentiment which partly vents itself in violent acts, partly winks at them, and partly permits itself to be overawed by them. That public sentiment is not only terrorizing timid people, but it is corrupting the jury-box, it is overawing the witness-stand, and it is thus obstructing the functions of justice." Representative [later President] Garfield, a moderate supporter, focused more specifically on one of the principal evils 1983 was designed to remedy: "[T]he chief complaint is not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them." at App. 13. Accordingly, in his view, 1983 was intended to provide a remedy in federal court for, inter alia, certain denials of equal protection that occurred even in with just and equal laws when some private persons acted against others and the State failed to provide protection. Thus, both the House and the Senate were quite aware that the task before them was to devise a scheme of remedies against privately instigated interference with the exercise of constitutional rights, through terror, force of numbers, concerted action, and other means. The debates in both Houses make it clear that many of those who gave the most careful attention to the conditions that called for the bill, to the provisions of the bill itself, and to the |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | to the provisions of the bill itself, and to the problems of constitutionality and policy it presented, did not think that in 1983 the Federal Government undertook to provide a federal remedy for every isolated act by private persons that *220 amounted to interference with the exercise of a constitutional right. See, e. g., at 78-79 ; at 14 ; at App. 13 (remarks of Rep. Garfield); at App. 79 (remarks of Rep. A. Perry, a supporter).[] Where, for example, the injury to federal rights was the result of a genuinely individual act of private prejudice, then it could not be said that the state and local authorities were failing to give equal protection by countenancing major interference with the exercise of federal rights. ndeed, in most instances it could rightly be said that the acts of discrimination were isolated precisely because the State was affirmatively fulfilling its obligation to afford equal protection. n such circumstances no useful purpose would be served by providing a federal remedy for the isolated wrong, and the resulting federal intrusion into state affairs would be unjustified. Near the conclusion of the debate, Rep. Garfield observed: " believe, Mr. Speaker, that we have at last secured a bill, trenchant in its provisions, that reaches down into the very heart of the Ku Klux organization, and yet is so guarded as to preserve intact the autonomy of the the machinery of the State governments, and the municipal organizations established under State laws." This statute, "trenchant" but measured, provided a scheme of three civil remedies, currently codified in 1983, 198, and 1986. n view of the purposes these remedies were designed to achieve, 1983 would be read too narrowly if it were restricted to acts of state officials and those acting in concert with them. Congress did not say, "Every state official and others acting *221 in concert with him"; Congress said, "[A]ny [now Every] person who, under color" (emphasis added). Similarly, it would be read too broadly if interpreted to reach acts of purely individual discrimination. As read 1983 together with the other sections, against the background of the congressional debates, understand them to protect the exercise of constitutional rights by reaching three kinds of interference that are sufficiently "major" in their effects to have warranted congressional action. The first category is that involving action under color of authority derived from state government and this category of invasions is clearly within 1983. Where state officials or private persons acting consciously with state support participate in the interference with the exercise of federal rights, the interference assumes |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | interference with the exercise of federal rights, the interference assumes a far graver cast than it otherwise would have, and the authority of the State is brought into conflict with the authority of the Constitution. See, e. g., The second category is that involving conspiracy, which is within the ambit of 198. t is well recognized in the criminal law that conspiratorial agreements for concerted action present aggravated dangers to society, see United v. Rabinowich, ; Pinkerton v. United ; Krulewitch v. United ; Note, Developments in the LawCriminal Conspiracy, (199), and for this general reason, as exemplified in the activities of the Ku Klux Klan, Congress provided for a civil remedy against conspiratorial interference with the right to equal protection.[27] *222 The third category is that where, in the absence of the overt elements of a conspiracy, constitutional rights are violated by widespread habitual practices or conventions regarded as prescribing norms for conduct, and supported by common consent, or official or unofficial community sanctionsin short, customs and usages. Where violation of constitutional rights is customary, the violation is, by definition, widespread and enduring, and therefore worthy of congressional response. As read 1983, that response was made in the provision of a remedy against. "[e]very person who, under color of any custom, or usage, of any State subjects, or causes to be subjected, any citizen of the United or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution"[28] The excerpts from the congressional debate that have quoted make clear that Congress wanted a civil remedy, not only against conspiratorial violence, but against the perhaps more subtle but potentially more virulent customary infringements of constitutional rights. The Ku Klux Klan was an extreme reflection of broadly held attitudes toward Negroes and longstanding practices of denying them rights that the Constitution secured for all people. The fundamental evil was a "diseased public sentiment" reflected in multifarious efforts to confine Negroes in their former status of inferiority. Accordingly, a statute designed to reach "down into the very heart of the Ku Klux organization" had to deal with the widespread manifestations of that diseased public * sentiment. Respect for constitutional rights was to be "embodied not only in the laws, but intrenched in the daily habits of the American people" Cong. Globe, 42d Cong., 1st Sess., 339 (remarks of Rep. Kelley). Congress could not legislate popular sentiments, but in providing generally in the Ku Klux Klan Act for the protection of constitutional rights against major types of interference it could, and think it did |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | major types of interference it could, and think it did in 1983, provide a remedy against violations that in particular were so common as to be customary. As this Court recently said in construing another of the early civil rights statutes, "We think that history leaves no doubt that, if we are to give [the statute] the scope that its origins dictate, we must accord it a sweep as broad as its language." United The language of 1983 imposes no obstacle to an interpretation carrying out the congressional purposes have identified. think it clearly possible for a private person or entity like respondent to "subject" a person or "[cause him] to be subjected to the deprivation" of a constitutional right, as those quoted words are used in 1983. n we held that a cause of action was stated under 1983 by an allegation that police officers invaded petitioners' home in violation of the Fourth and Fourteenth Amendments. Certainly if "deprivation" in 1983 means something like "extinguishment," then no cause of action could have been stated, for no policeman, nor even any state government as a whole, can extinguish a constitutional right, at least not while this Court sits. Cf. Panhandle Oil v. Knox, 2 U.S. 218, (Holmes, J., dissenting).[29] A constitutional *224 right can be extinguished only by amendment of the Constitution itself. f "deprivation" meant "extinguishment," 1983and 18 U.S. C. 242would be a nullity. Thus all the cases finding violations of these sections must be taken to have held that "deprivation" as used in these statutes means, not "extinguishment," but rather something like "violation," "denial," or "infringement." Cf. at 420-; Cong. Globe, 39th Cong., 1st Sess., 60 (remarks of Sen. Trumbull, manager of 1866 Civil Rights bill, on 242). As the present case illustrates, it is possible for private action in some circumstances to constitute state action violating a constitutional right, and such action amounts to "deprivation" within the meaning of 1983. n discussing petitioner's contention that respondent acted under color of state law have already indicated my understanding of the words "under color of." See at 2-212. would apply that understanding here as well. read "custom, or usage" in 1983 to mean what it has usually meant at common lawa widespread and longstanding practice, commonly regarded as prescribing norms for conduct, and backed by sanctions. *22 See, e. g., 437, 44-446 ; United v. Arredondo, 7-714 The sanctions need not be imposed by the State. A custom can have the effect or force of law even where it is not backed by the force of the State. See, |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | is not backed by the force of the State. See, e. g., 1 How. 39, 4 (184); Merchants' 61 ; cf.[30] The power of custom to generate and impose rules of conduct, even without the support of the State, has long been recognized. See, e. g., Mercer 9 ; 1 W. Blackstone, Commentaries *64; B. Cardozo, The Nature of the Judicial Process 8-64 (1921).[31] *2 Of course, a custom or usage is within 1983 only if it is a custom of a "State or Territory." t was recognized during the debate on the Ku Klux Klan Act that the word "State" does not refer only to state government. n[32] decided just two years before the debate, this Court said of the word "State" as used in the Constitution: "t describes sometimes a people or community of individuals united more or less closely in political relations, inhabiting temporarily or permanently the same country; often it denotes only the country or territorial region, inhabited by such a community; not unfrequently it is applied to the government under which the people live; at other times it represents the combined idea of people, territory, and government. "t is not difficult to see that in all these senses the primary conception is that of a people or community. The people, in whatever territory dwelling, either temporarily or permanently, and whether organized under a regular government, or united by looser and less definite relations, constitute the state. "This is undoubtedly the fundamental idea upon which the republican institutions of our own country are established. "n the Constitution the term state most frequently expresses the combined idea just noticed, of people, territory, and government. A state, in the ordinary sense of the Constitution, is a political community of free citizens, occupying a territory of defined boundaries, and organized under a *227 government sanctioned and limited by a written constitution, and established by the consent of the governed." This language was quoted in the debate. See Cong. Globe, 42d Cong., 1st Sess., App. 80 (remarks of Rep. A. Perry). When the word "State" in 1983 is so understood, then it is not at all strained or tortured indeed, it is perfectly naturalto read "custom" as meaning simply "custom" in the enumeration "statute, ordinance, regulation, custom, or usage, of any State." Moreover, agree with the Court that just as an ordinance can be state action, so, too, can a custom of a subdivision of a State be a custom "of [a] State" for purposes of 1983; and in my view a custom of the people living in a subdivision |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | view a custom of the people living in a subdivision is a custom of the subdivision. Thus a person acts under color of a custom or usage of a State when there is among the people of a State or subdivision of a State a widespread and longstanding practice regarded as prescribing norms for conduct and supported by community sentiment or sanctions, and a person acts in accordance with this custom either from a belief that the norms it prescribes authorize or require his conduct or from a belief that the community at large regards it as authorizing or requiring his conduct.[33] *228 The Court eschews any attempt to interpret 1983 against the background of a rational scheme of congressional purposes. nstead it relies basically on three sets of materials to support its restrictive interpretation of the statute. First are cases; some make casual use of the vague phrase "under color of law" as a summation of the "under color" language of 1983, and the rest interpret the significance of custom either under an erroneous theory of constitutional law or outside the specific context of 1983 altogether. have already shown why these cases are hardly relevant, much less controlling, here. See at 2-214 and n. 22. The Court's second set of authorities consists of three quotations from the legislative history purporting to explain the scope of 1983. have already shown that such quotations cannot be set up as a reliable guide to interpretation. See n. 2, Given the demonstrable lack of consensus among the debaters on this precise issue, it is highly misleading to select two or three statements arguably favorable to one view and pronounce them authoritative. Moreover, as have already indicated, see n. 2, the remarks of Representative Shellabarger and Senator Edmunds consist merely of a handy formula for a debate not directed to matters of draftsmanship, and are themselves subject to varying interpretation. Finally, the Court dwells on the relative lack of controversy over 1983 in contrast to the heated debate over 2 of the 1871 Act. However, despite Senator Edmunds' complacent prediction, 1983 was opposed, and opposed vigorously. Senator Johnston commented, "The Senator from Vermont [Senator Edmunds] said that there would be no objection to the first section of the bill. That section, in my view, has only the slight objection of being unconstitutional." Cong. Globe, 42d Cong., 1st Sess., App. 21. Representative *229 McHenry called 1983 an "outrage," a "flagrant infraction" of the Constitution. Representative Edward Rice characterized it as bringing "lambs to the slaughter"; it was, he said, "a provision for dragging persons from |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | it was, he said, "a provision for dragging persons from their homes, from their neighbors, and from the vicinage of the witnesses for the redress of private grievances to the Federal courts." at 39. See at App. 216-217 (remarks of Sen. Thurman). Moreover, the Court does not adequately characterize the controversy over 2 of the Act. As originally proposed, 2 would have made a federal crime of any conspiracy in a State to commit an act that if committed on a federal enclave would constitute "murder, manslaughter, mayhem, robbery, assault and battery, perjury, subornation of perjury, criminal obstruction of legal process or resistance of officers in discharge of official duty, arson, or larceny." See at App. 68-69 (remarks of Rep. Shellabarger). Extreme opponents of the bill attacked this section, as they attacked other sections. Moderate opponents objected not because the section reached private conduct but because it ousted the from a broad range of their criminal jurisdiction even where they were successfully meeting their constitutional obligation to provide equal protection. See, e. g., Representative Garfield, for example, criticized the original 2, see at App. 13, but praised and voted for the final bill, including 2, which he understood to reach private conduct, see On its intrinsic merits, the Court's conclusion that custom "for purposes of 1983 must have the force of law" would be wholly acceptable if the phrase "force of law" meant, as at common law, merely that custom must have the effect of lawthat it be generally regarded as having normative force, whether or not enforced *230 or otherwise supported by government. t is clear, however, that this is not the Court's meaning. The Court takes the position that custom can acquire the force of law only "by virtue of the persistent practices of state officials." Little in the debate supports this narrow reading of the statute. The statement by Representative Garfield on which the Court relies, ante, at 167, refers not merely to "permanent and well-settled" official practices, but more broadly to "systematic mal-administration of [the laws], or a neglect or refusal to enforce" them. n short, under Representative Garfield's theory of the Equal Protection Clause, private customary violations of constitutional rights on the basis of race were denials of equal protection because of the failure of the State to prevent or remedy them. Mere state inaction converted customary private discrimination into a denial of equal protection, which Congress under 1 and had power to remedy. See Cong. Globe, 42d Cong., 1st Sess., 333-334 (remarks of Rep. Hoar, a moderate supporter); at 37 Our cases have never |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | Hoar, a moderate supporter); at 37 Our cases have never explicitly held that state inaction alone in the face of purely private discrimination constitutes a denial of equal protection. But cf. at 72; Catlette v. United 2 F.2d 902, ; Lynch v. United (C. A. th Cir. 191); Henkin, : Notes for a Revised Opinion, 0 U. Pa. L. Rev. ; see Nevertheless, the constitutional theory of the men who enacted 1983 remains relevant for our interpretation of its meaning. Representative Garfield's theory of 1 of the Fourteenth Amendment and of congressional power under 1 and had strong support in the debate. See n. Recognition of that theoryand a fortiori of the other principal theory among the bill's supporters, the *231 radical view that the Fourteenth Amendment empowers Congress to assert plenary jurisdiction over state affairs, see ibid.only provides further confirmation for the conclusion that "custom" in 1983 means custom of the people of a State, not custom of state officials. Since this case is being remanded, think it proper to express my views on the kinds of relief to which petitioner may be entitled if she should prevail on the merits. Section 1983 in effect authorizes the federal courts to protect rights "secured by the Constitution and laws" by invoking any of the remedies known to the arsenal of the law. Standards governing the granting of relief under 1983 are to be developed by the federal courts in accordance with the purposes of the statute and as a matter of federal common law. See (191); 386 U.S. 47 ; 8-87 (C. A. 3d Cir. 196); cf. U.S. 229, ; J. Case v. Borak, 3 U.S. 4, Of course, where justice requires it, federal district courts are duty-bound to enrich the jurisprudence of 1983 by looking to the remedies provided by the wherein they sit. 42 U.S. C. 19. But resort to state law as such should be had only in cases where for some reason federal remedial law is not and cannot be made adequate to carry out the purposes of the statute. Section 1983 does not in general impose strict liability on all who come within its prohibitions; certain broad immunities are recognized. See ; at 3-. n some types of cases where the wrong under 1983 is closely analogous to a wrong *232 recognized in the law of torts, it is appropriate for the federal court to apply the relevant tort doctrines as to the bearing of particular mental elements on the existence and amount of liability. See, e. g., n other types of cases, however, the |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | See, e. g., n other types of cases, however, the common law of torts may be divided on important questions of defenses and relief, or it may be inadequate to carry out the purposes of the statute. Thus the common law is not an infallible guide for the development of 1983. n particular, denial of equal protection on the basis of race was the central evil that 1983 was designed to stamp out. Where that is the basis for recovery, relief should not depend on the vagaries of the general common law but should be governed by uniform and effective federal standards. The appropriateness of any particular remedy in a given case depends on the circumstances of that case, and especially on the degree of culpability of the defendant. n my view, where a plaintiff shows a voluntary denial of equal protection on the ground of race amounting to a violation of 1983 he is entitled to recover compensation for actual damages, if any, simply on the basis of the proved violation. The question of compensatory damages is one of allocation of actual loss, and, as between the innocent plaintiff and the defendant who deliberately discriminates on the basis of race, think it just and faithful to the statutory purposes to impose the loss on the discriminator, even if he was unaware that his discrimination constituted state action denying equal protection. Proof of an evil motive or of a specific intent to deprive a person of a constitutional right is generally not required under 1983. ; And, indeed, in 273 U.S. 36 and 307 U.S. 8 this Court upheld complaints seeking *233 $,000 recoveries from state election officials who merely carried out their official duty to prevent the plaintiffs from voting under discriminatory state statutes which made them ineligible to vote. Of course, there may be cases where it would be proper to give declaratory or injunctive relief without damages. See v. Hot Shoppes, nc., 0 U. S. App. D. C. 38, 370, 293 F.2d 83, To recover punitive damages, believe a plaintiff must show more than a bare violation of 1983. On the other hand, he need not show that the defendant specifically intended to deprive him of a recognized federal right, as is required by the word "willfully" in 18 U.S. C. 242, see Nor need he show actual damages. at 87-; Tracy v. Robbins, 40 F. R. D. 108, 1 t is sufficient for the plaintiff to show either that the defendant acted "under color of [a] statute, ordinance, regulation, custom, or usage of any State or |
Justice Black | 1,970 | 21 | concurring | Adickes v. SH Kress & Co. | https://www.courtlistener.com/opinion/108153/adickes-v-sh-kress-co/ | statute, ordinance, regulation, custom, or usage of any State or Territory," with actual knowledge that he was violating a right "secured by the Constitution and laws," or that the defendant acted with reckless disregard of whether he was thus violating such a right. Cf. C. McCormick, Handbook on the Law of Damages 79 (193). However, in my view, a proprietor of a place of public accommodation who discriminates on the basis of race after our decision in and the enactment of the Civil Rights Act of 42 U.S. C. 2000a to 2000h-6, does so with reckless disregard as a matter of law, and therefore may be found liable for punitive damages.[34] Of course, it is proper for the factfinder to consider the degree of recklessness or actual knowledge and other circumstances in assessing the amount of punitive damages to award in a particular case. *234 t may be argued that it is inequitable to impose punitive damages on a defendant, a restaurateur for example, who knowingly or recklessly violates a constitutional right and 1983 out of fear that he will lose some of his customers if he does not. That argument is plainly unacceptable. The protection of constitutional rights may not be watered down because some members of the public actively oppose the exercise of constitutional rights by others. 38 U.S. 1 (198). To give any weight at all to that argument would be to encourage popular opposition to compliance with the Constitution. Moreover, the argument is particularly devoid of merit in the context of 1983, which was enacted by a Congress determined to stamp out widespread violations of constitutional rights at virtually any cost, and which imposed liability even on persons who simply failed to prevent certain violations. See Cong. Globe, 41st Cong., 1st Sess., 804 (remarks of Rep. Poland). f 1983 is given an interpretation befitting its purposes, the threat of withdrawal of patronage will be largely empty since no other place of public accommodation in the community will be in a better position to discriminate. The prospect of substantial punitive damages may be the most effective means to persuade all proprietors of places of public accommodation to respect constitutional rights. |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | Global warming may be a "crisis," even "the most pressing environmental problem of our time." Pet. for Cert. 26, 22. Indeed, it may ultimately affect nearly everyone on the planet in some potentially adverse way, and it may be that governments have done too little to address it. It is not a problem, however, that has escaped the attention of policymakers in the Executive *14 and Legislative Branches of our Government, who continue to consider regulatory, legislative, and treaty-based means of addressing global climate change. Apparently dissatisfied with the pace of progress on this issue in the elected branches, petitioners have come to the courts claiming broad-ranging injury, and attempting to tie that injury to the Government's alleged failure to comply with a rather narrow statutory provision. I would reject these challenges as nonjusticiable. Such a conclusion involves no judgment on whether global warming exists, what causes it, or the extent of the problem. Nor does it render petitioners without recourse. This Court's standing jurisprudence simply recognizes that redress of grievances of the sort at issue here "is the function of Congress and the Chief Executive," not the federal courts. I would vacate the judgment below and remand for dismissal of the petitions for review. I Article III, 2, of the Constitution limits the federal judicial power to the adjudication of "Cases" and "Controversies." "If a dispute is not a proper case or controversy, the courts have no business deciding it, or expounding the law in the course of doing so." "Standing to sue is part of the common understanding of what it takes to make a justiciable case," Steel and has been described as "an essential and unchanging part of the case-or-controversy requirement of Article III," Defenders of Our modern framework for addressing standing is familiar: "A plaintiff must allege personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief." at ). Applying that standard here, petitioners bear the burden of alleging an injury that is fairly traceable to the Environmental Protection Agency's failure to promulgate new motor vehicle greenhouse gas emission standards, and that is likely to be redressed by the prospective issuance of such standards. Before determining whether petitioners can meet this familiar test, however, the Court changes the rules. It asserts that "States are not normal litigants for the purposes of invoking federal jurisdiction," and that given "Massachusetts' stake in protecting its quasi-sovereign interests, the Commonwealth is entitled to special solicitude in our standing analysis." Ante, at 1454, 1455 Relaxing Article III standing requirements because asserted injuries |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | 1454, 1455 Relaxing Article III standing requirements because asserted injuries are pressed by a State, however, has no basis in our jurisprudence, and support for any such "special solicitude" is conspicuously absent from the Court's opinion. The general judicial review provision cited by the Court, 42 U.S.C. 7(b)(1), affords States no special rights or status. The Court states that "Congress has ordered EPA to protect Massachusetts (among others)" through the statutory provision at issue, 7521(a)(1), and that "Congress has. recognized a concomitant procedural right to challenge the rejection of its rule-making petition as arbitrary and capricious." Ante, at 1454. The reader might think from this unfortunate phrasing that Congress said something about the rights *1465 of States in this particular provision of the statute. Congress knows how to do that when it wants to, see, e.g., 7426(b) (affording States the right to petition EPA to directly regulate certain sources of pollution), but it has done nothing of the sort here. Under the law on which petitioners rely, Congress treated public and private litigants exactly the same. Nor does the case law cited by the Court provide any support for the notion that Article III somehow implicitly treats public and private litigants differently. The Court has to go back a full century in an attempt to justify its novel standing rule, but even there it comes up short. The Court's analysis hinges on a case that did indeed draw a distinction between a State and private litigants, but solely with respect to available remedies. The case had nothing to do with Article III standing. In Tennessee Copper, the State of Georgia sought to enjoin copper companies in neighboring Tennessee from discharging pollutants that were inflicting "a wholesale destruction of forests, orchards and crops" in bordering Georgia counties. Although the State owned very little of the territory allegedly affected, the Court reasoned that Georgiain its capacity as a "quasi-sovereign""has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain." The Court explained that while "[t]he very elements that would be relied upon in a suit between fellow-citizens as a ground for equitable relief [were] wanting," a State "is not lightly to be required to give up quasi-sovereign rights for pay." Thus while a complaining private litigant would have to make do with a legal remedyone "for pay"the State was entitled to equitable relief. See -238, In contrast to the present case, there was no question in Tennessee Copper about Article III injury. See There was certainly no suggestion that the State could |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | See There was certainly no suggestion that the State could show standing where the private parties could not; there was no dispute, after all, that the private landowners had "an action at law." Tennessee Copper has since stood for nothing more than a State's right, in an original jurisdiction action, to sue in a representative capacity as parens patriae. See, e.g., 68 L. Ed. 2d Nothing about a State's ability to sue in that capacity dilutes the bedrock requirement of showing injury, causation, and redressability to satisfy Article III. A claim of parens patriae standing is distinct from an allegation of direct injury. See Far from being a substitute for Article III injury, parens patriae actions raise an additional hurdle for a state litigant: the articulation of a "quasi-sovereign interest" "apart from the interests of particular private parties." Alfred L. Snapp & S. Ct. 3260, (cited ante, at 1454). Just as an association suing on behalf of its members must show not only that it represents the members but that at least one satisfies Article III requirements, so too a State asserting quasi-sovereign interests as parens patriae must still show that its citizens satisfy Article III. Focusing on Massachusetts's interests as quasi-sovereign makes the required showing here harder, not easier. The Court, in effect, takes what has always been regarded as a necessary condition for *1466 parens patriae standinga quasi-sovereign interestand converts it into a sufficient showing for purposes of Article III. What is more, the Court's reasoning falters on its own terms. The Court asserts that Massachusetts is entitled to "special solicitude" due to its "quasi-sovereign interests," ante, at 1455, but then applies our Article III standing test to the asserted injury of the State's loss of coastal property. See ante, at 1456 (concluding that Massachusetts "has alleged a particularized injury in its capacity as a landowner" ). In the context of parens patriae standing, however, we have characterized state ownership of land as a "nonsovereign interes[t]" because a State "is likely to have the same interests as other similarly situated proprietors." Alfred L. Snapp & S. Ct. 3260. On top of everything else, the Court overlooks the fact that our cases cast significant doubt on a State's standing to assert a quasi-sovereign interestas opposed to a direct injuryagainst the Federal Government. As a general rule, we have held that while a State might assert a quasi-sovereign right as parens patriae "for the protection of its citizens, it is no part of its duty or power to enforce their rights in respect of their relations with the Federal Government. |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | rights in respect of their relations with the Federal Government. In that field it is the United States, and not the State, which represents them." ; see also Alfred L. Snapp & S. Ct. 3260. All of this presumably explains why petitioners never cited Tennessee Copper in their briefs before this Court or the D.C. Circuit. It presumably explains why not one of the legion of amici supporting petitioners ever cited the case. And it presumably explains why not one of the three judges writing below ever cited the case either. Given that one purpose of the standing requirement is "`to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination,'" ante, at 1452-1453 ), it is ironic that the Court today adopts a new theory of Article III standing for States without the benefit of briefing or argument on the point.[1] II It is not at all clear how the Court's "special solicitude" for Massachusetts plays out in the standing analysis, except as an implicit concession that petitioners cannot establish standing on traditional terms. But the status of Massachusetts as *1467 a State cannot compensate for petitioners' failure to demonstrate injury in fact, causation, and redressability. When the Court actually applies the three-part test, it focuses, as did the dissent below, see (C.A.D.C.2005) (opinion of Tatel, J.), on the State's asserted loss of coastal land as the injury in fact. If petitioners rely on loss of land as the Article III injury, however, they must ground the rest of the standing analysis in that specific injury. That alleged injury must be "concrete and particularized," Defenders of 504 U.S., and "distinct and palpable," 468 U.S., at Central to this concept of "particularized" injury is the requirement that a plaintiff be affected in a "personal and individual way," Defenders of 504 U.S., n. 1, and seek relief that "directly and tangibly benefits him" in a manner distinct from its impact on "the public at large," Without "particularized injury, there can be no confidence of `a real need to exercise the power of judicial review' or that relief can be framed `no broader than required by the precise facts to which the court's ruling would be applied.'" The very concept of global warming seems inconsistent with this particularization requirement. Global warming is a phenomenon "harmful to humanity at large," and the redress petitioners seek is focused no more on them than on the public generallyit is literally to change the atmosphere around the world. If petitioners' particularized injury is loss of coastal land, |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | world. If petitioners' particularized injury is loss of coastal land, it is also that injury that must be "actual or imminent, not conjectural or hypothetical," Defenders of "real and immediate," Los and "certainly impending," As to "actual" injury, the Court observes that "global sea levels rose somewhere between 10 and 20 centimeters over the 20th century as a result of global warming" and that "[t]hese rising seas have already begun to swallow Massachusetts' coastal land." Ante, at 1456. But none of petitioners' declarations supports that connection. One declaration states that "a rise in sea level due to climate change is occurring on the coast of Massachusetts, in the metropolitan Boston area," but there is no elaboration. Petitioners' Standing Appendix in No. 03-1361, etc. (CADC), p. 196 (Stdg.App.). And the declarant goes on to identify a "significan[t]" non-global-warming cause of Boston's rising sea level: land subsidence. ; see also Thus, aside from a single conclusory statement, there is nothing in petitioners' 43 standing declarations and accompanying exhibits to support an inference of actual loss of Massachusetts coastal land from 20th century global sea level increases. It is pure conjecture. The Court's attempts to identify "imminent" or "certainly impending" loss of Massachusetts coastal land fares no better. See ante, at 1456-1457. One of petitioners' declarants predicts global warming will cause sea level to rise by 20 to 70 centimeters by the year 2100. Stdg.App. 216. Another uses a computer modeling *1468 program to map the Commonwealth's coastal land and its current elevation, and calculates that the high-end estimate of sea level rise would result in the loss of significant state-owned coastal land. But the computer modeling program has a conceded average error of about 30 centimeters and a maximum observed error of 70 centimeters. As an initial matter, if it is possible that the model underrepresents the elevation of coastal land to an extent equal to or in excess of the projected sea level rise, it is difficult to put much stock in the predicted loss of land. But even placing that problem to the side, accepting a century-long time horizon and a series of compounded estimates renders requirements of imminence and immediacy utterly toothless. See Defenders of (while the concept of "`imminence'" in standing doctrine is "somewhat elastic," it can be "stretched beyond the breaking point"). "Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." at (internal quotation marks omitted; emphasis added). III Petitioners' reliance on Massachusetts's loss of coastal land as their injury in |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | on Massachusetts's loss of coastal land as their injury in fact for standing purposes creates insurmountable problems for them with respect to causation and redressability. To establish standing, petitioners must show a causal connection between that specific injury and the lack of new motor vehicle greenhouse gas emission standards, and that the promulgation of such standards would likely redress that injury. As is often the case, the questions of causation and redressability overlap. See n. 19, (observing that the two requirements were "initially articulated by this Court as two facets of a single causation requirement" ). And importantly, when a party is challenging the Government's allegedly unlawful regulation, or lack of regulation, of a third party, satisfying the causation and redressability requirements becomes "substantially more difficult." Defenders of ; see also Petitioners view the relationship between their injuries and EPA's failure to promulgate new motor vehicle greenhouse gas emission standards as simple and direct: Domestic motor vehicles emit carbon dioxide and other greenhouse gases. Worldwide emissions of greenhouse gases contribute to global warming and therefore also to petitioners' alleged injuries. Without the new vehicle standards, greenhouse gas emissionsand therefore global warming and its attendant harmshave been higher than they otherwise would have been; once EPA changes course, the trend will be reversed. The Court ignores the complexities of global warming, and does so by now disregarding the "particularized" injury it relied on in step one, and using the dire nature of global warming itself as a bootstrap for finding causation and redressability. First, it is important to recognize the extent of the emissions at issue here. Because local greenhouse gas emissions disperse throughout the atmosphere and remain there for anywhere from 50 to 200 years, it is global emissions data that are relevant. See App. to Pet. for Cert. A-73. According to one of petitioners' declarations, domestic motor vehicles contribute about 6 percent of global carbon dioxide emissions and 4 percent of global greenhouse gas emissions. Stdg.App. 232. The amount of global emissions at issue here is *1469 smaller still; 202(a)(1) of the Clean Air Act covers only new motor vehicles and new motor vehicle engines, so petitioners' desired emission standards might reduce only a fraction of 4 percent of global emissions. This gets us only to the relevant greenhouse gas emissions; linking them to global warming and ultimately to petitioners' alleged injuries next requires consideration of further complexities. As EPA explained in its denial of petitioners' request for rulemaking, "predicting future climate change necessarily involves a complex web of economic and physical factors including: our ability to predict future |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | economic and physical factors including: our ability to predict future global anthropogenic emissions of [greenhouse gases] and aerosols; the fate of these emissions once they enter the atmosphere (e.g., what percentage are absorbed by vegetation or are taken up by the oceans); the impact of those emissions that remain in the atmosphere on the radiative properties of the atmosphere; changes in critically important climate feedbacks (e.g., changes in cloud cover and ocean circulation); changes in temperature characteristics (e.g., average temperatures, shifts in daytime and evening temperatures); changes in other climatic parameters (e.g., shifts in precipitation, storms); and ultimately the impact of such changes on human health and welfare (e.g., increases or decreases in agricultural productivity, human health impacts)." App. to Pet. for Cert. A-83 through A-84. Petitioners are never able to trace their alleged injuries back through this complex web to the fractional amount of global emissions that might have been limited with EPA standards. In light of the bit-part domestic new motor vehicle greenhouse gas emissions have played in what petitioners describe as a 150-year global phenomenon, and the myriad additional factors bearing on petitioners' alleged injurythe loss of Massachusetts coastal landthe connection is far too speculative to establish causation. IV Redressability is even more problematic. To the tenuous link between petitioners' alleged injury and the indeterminate fractional domestic emissions at issue here, add the fact that petitioners cannot meaningfully predict what will come of the 80 percent of global greenhouse gas emissions that originate outside the United States. As the Court acknowledges, "developing countries such as China and India are poised to increase greenhouse gas emissions substantially over the next century," ante, at 1458, so the domestic emissions at issue here may become an increasingly marginal portion of global emissions, and any decreases produced by petitioners' desired standards are likely to be overwhelmed many times over by emissions increases elsewhere in the world. Petitioners offer declarations attempting to address this uncertainty, contending that "[i]f the U.S. takes steps to reduce motor vehicle emissions, other countries are very likely to take similar actions regarding their own motor vehicles using technology developed in response to the U.S. program." Stdg.App. 220; see also In other words, do not worry that other countries will contribute far more to global warming than will U.S. automobile emissions; someone is bound to invent something, and places like the People's Republic of China or India will surely require use of the new technology, regardless of cost. The Court previously has explained that when the existence of an element of standing "depends on the unfettered choices made |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | an element of standing "depends on the unfettered choices made by independent actors not before the courts and whose *1470 exercise of broad and legitimate discretion the courts cannot presume either to control or to predict," a party must present facts supporting an assertion that the actor will proceed in such a manner. Defenders of 504 U.S., ; internal quotation marks omitted). The declarations' conclusory (not to say fanciful) statements do not even come close. No matter, the Court reasons, because any decrease in domestic emissions will "slow the pace of global emissions increases, no matter what happens elsewhere." Ante, at 1458. Every little bit helps, so Massachusetts can sue over any little bit. The Court's sleight-of-hand is in failing to link up the different elements of the three-part standing test. What must be likely to be redressed is the particular injury in fact. The injury the Court looks to is the asserted loss of land. The Court contends that regulating domestic motor vehicle emissions will reduce carbon dioxide in the atmosphere, and therefore redress Massachusetts's injury. But even if regulation does reduce emissionsto some indeterminate degree, given events elsewhere in the worldthe Court never explains why that makes it likely that the injury in factthe loss of landwill be redressed. Schoolchildren know that a kingdom might be lost "all for the want of a horseshoe nail," but "likely" redressability is a different matter. The realities make it pure conjecture to suppose that EPA regulation of new automobile emissions will likely prevent the loss of Massachusetts coastal land. V Petitioners' difficulty in demonstrating causation and redressability is not surprising given the evident mismatch between the source of their alleged injurycatastrophic global warmingand the narrow subject matter of the Clean Air Act provision at issue in this suit. The mismatch suggests that petitioners' true goal for this litigation may be more symbolic than anything else. The constitutional role of the courts, however, is to decide concrete casesnot to serve as a convenient forum for policy debates. See Valley Forge Christian 454 U.S. 4, S. Ct. 752, When dealing with legal doctrine phrased in terms of what is "fairly" traceable or "likely" to be redressed, it is perhaps not surprising that the matter is subject to some debate. But in considering how loosely or rigorously to define those adverbs, it is vital to keep in mind the purpose of the inquiry. The limitation of the judicial power to cases and controversies "is crucial in maintaining the tripartite allocation of power set forth in the Constitution." 547 U.S., at 126 S.Ct., at In |
Justice Roberts | 2,007 | 0 | dissenting | Massachusetts v. EPA | https://www.courtlistener.com/opinion/145749/massachusetts-v-epa/ | in the Constitution." 547 U.S., at 126 S.Ct., at In my view, the Court todayaddressing Article III's "core component of standing," Defenders of fails to take this limitation seriously. To be fair, it is not the first time the Court has done so. Today's decision recalls the previous high-water mark of diluted standing requirements, United *1471 SCRAP involved "[p]robably the most attenuated injury conferring Art. III standing" and "surely went to the very outer limit of the law"until today. 495 U.S., at -159, ; see also Lujan v. National Federation, In SCRAP, the Court based an environmental group's standing to challenge a railroad freight rate surcharge on the group's allegation that increases in railroad rates would cause an increase in the use of nonrecyclable goods, resulting in the increased need for natural resources to produce such goods. According to the group, some of these resources might be taken from the Washington area, resulting in increased refuse that might find its way into area parks, harming the group's members. Over time, SCRAP became emblematic not of the looseness of Article III standing requirements, but of how utterly manipulable they are if not taken seriously as a matter of judicial self-restraint. SCRAP made standing seem a lawyer's game, rather than a fundamental limitation ensuring that courts function as courts and not intrude on the politically accountable branches. Today's decision is SCRAP for a new generation.[2] Perhaps the Court recognizes as much. How else to explain its need to devise a new doctrine of state standing to support its result? The good news is that the Court's "special solicitude" for Massachusetts limits the future applicability of the diluted standing requirements applied in this case. The bad news is that the Court's self-professed relaxation of those Article III requirements has caused us to transgress "the properand properly limitedrole of the courts in a democratic society." I respectfully dissent. |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | Confronted with an insupportable limiting construction of an unconstitutionally vague statute, the majority in turn concocts its own limiting construction of the state court's formulation. Like "nonsense upon stilts,"[1] however, the majority's reconstruction only highlights the deficient character of the nebulous formulation that it seeks to advance. Because the metaphor "cold-blooded" by which Idaho defines its "utter disregard" circumstance is both vague and unenlightening, and because the majority's recasting of that metaphor is not dictated by common usage, legal usage, or the usage of the Idaho courts, the statute fails to provide meaningful guidance to the sentencer as required by the Constitution. Accordingly, I dissent. I I discuss the applicable legal standards only briefly, because, for the most part, I agree with the majority about what is required in a case of this kind. As the majority acknowledges, ante, at 474, "an aggravating circumstance must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." A state court's limiting construction can save a flawed statute from unconstitutional vagueness, and where the sentencer is a judge there is nothing wrong with "presum[ing] that the judge knew and applied any existing narrowing construction." Ante, at 471. "The trial judge's familiarity with the State Supreme Court's opinions, however, will serve to narrow his discretion only if that body of case law articulates a construction of the aggravating circumstance that is coherent and consistent, and that meaningfully limits the range of homicides to which the aggravating factor will apply." We have "plainly rejected the submission that a particular set of facts surrounding a murder, however shocking they might be, were enough in themselves, and without some narrowing principle to apply to those facts, to warrant the imposition of the death penalty." A limiting construction must do more than merely invite the sentencer to assess in some indeterminate way the circumstances of each case. The source of this requirement is the paramount need to "`make rationally reviewable the process for imposing a sentence of death.' " quoting U.S. 280, II The Idaho Supreme Court has determined that under our cases Idaho's statutory phrase, "utter disregard for human life," requires a limiting construction, see ; and petitioner does not challenge the Court of Appeals' conclusion that the phrase, unadorned, fails to meet constitutional standards. This is understandable. Every first-degree murder will demonstrate a lack of regard for human life, and there is no *481 cause to believe that some murders somehow demonstrate only partial, |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | cause to believe that some murders somehow demonstrate only partial, rather than "utter" disregard. Nor is there any evidence that the phrase is intended to have a specialized meaningother than that presented by the Idaho Supreme Court in its limiting constructionsthat might successfully narrow the eligible class. The question is whether Osborn `s limiting construction saves the statute.[2] Under Osborn, an offense demonstrates "utter disregard for human life" when the "acts or circumstances surrounding the crime exhibit the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer." 631 P. 2d, at 201. Jettisoning all but the term, "cold-blooded," the majority contends that this cumbersome construction clearly singles out the killing committed "without feeling or sympathy." Ante, at 476. As an initial matter, I fail to see how "without feeling or sympathy" is meaningfully different from "devoid of mercy or compassion"the definition of "pitiless" that the majority concedes to be constitutionally inadequate. See ante, at 471. Even if there is a distinction, however, the "without feeling or sympathy" test, which never has been articulated by any Idaho court, does not flow ineluctably from the phrase at issue in this case: "cold-blooded." I must stress in this regard the rather obvious point that a "facial" challenge of this natureone alleging that a limiting construction provides inadequate guidancecannot be defeated merely by a demonstration *482 that there exists a narrowing way to apply the contested language. The entire point of the challenge is that the language's susceptibility to a variety of interpretations is what makes it (facially) unconstitutional. To save the statute, the State must provide a construction that, on its face, reasonably can be expected to be applied in a consistent and meaningful way so as to provide the sentencer with adequate guidance. The metaphor "cold-blooded" does not do this. I begin with "ordinary usage." The majority points out that the first definition in Webster's Dictionary under the entry "cold-blooded" is "`marked by absence of warm feelings: without consideration, compunction, or clemency.' " Ante, at 472, quoting Webster's Third New International Dictionary 442 If Webster's' rendition of the term's ordinary meaning is to be credited, then Idaho has singled out murderers who act without warm feelings: those who act without consideration, compunction, or clemency. Obviously that definition is no more illuminating than the adjective "pitiless" as defined by the majority. What murderer does act with consideration or compunction or clemency?[3] In its eagerness to boil the phrase down to a serviceable core, the majority virtually ignores the very definition it cites. Instead, the majority comes up with |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | very definition it cites. Instead, the majority comes up with a hybrid all its own"without feeling or sympathy"and then goes one step further, asserting that because the term "cold-blooded" so obviously means "without feeling," it cannot refer as ordinarily understood to murderers who "kill with anger, jealousy, revenge, or a variety of other emotions." Ante, at 476. That is incorrect. In everyday parlance, the term "coldblooded" routinely is used to describe killings that fall outside the majority's definition. In the first nine weeks of this *483 year alone, the label "cold-blooded" has been applied to a murder by an ex-spouse angry over visitation rights,[4] a killing by a jealous lover,[5] a revenge killing,[6] an ex-spouse "full of hatred,"[7] the close-range assassination of an enemy official by a foe in a bitter ethnic conflict,[8] a murder prompted by humiliation and hatred,[9] killings by fanatical cult members,[10] a murderer who enjoyed killing,[11] and, perhaps most appropriately, *484 all murders.[12] All these killings occurred with "feelings" of one kind or another. All were described as cold-blooded. The majority's assertion that the Idaho construction narrows the class of capital defendants because it rules out those who "kill with anger, jealousy, revenge, or a variety of other emotions" clearly is erroneous, because in ordinary usage the nebulous description "cold-blooded" simply is not limited to defendants who kill without emotion. In legal usage, the metaphor "cold blood" does have a specific meaning. "Cold blood" is used "to designate a willful, deliberate, and premeditated homicide." Black's Law Dictionary 260 As such, the term is used to differentiate between first- and second-degree murders.[13] For example, in United Justice *485 O'Connor, writing for the Court, described the District of Columbia's homicide statute: "`In homespun terminology, intentional murder is in the first degree if committed in cold blood, and is murder in the second degree if committed on impulse or in the sudden heat of passion.' " quoting Murder in cold blood is, in this sense, the opposite of murder in "hot blood." Arguably, then, the Osborn formulation covers every intentional or first-degree murder. An aggravating circumstance so construed would clearly be unconstitutional under Godfrey. Finally, I examine the construction's application by the Idaho courts. The majority acknowledges the appropriateness of examining "other state decisions when the construction of an aggravating circumstance has been unclear," such as where state courts have not adhered to a single limiting construction. Ante, at 477. Here, however, the majority believes such an inquiry is "irrelevant," ante, at 476, because "there is no question that Idaho's formulation of its limiting construction has been consistent," ante, |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | Idaho's formulation of its limiting construction has been consistent," ante, at 477. The majority misses the point. Idaho's application of the Osborn formulation is relevant not because that formulation has been inconsistently invoked, but because the construction has never meant what the majority says it does. In other words, it is the majority's reconstruction of the (unconstitutional) construction that has not been applied consistently (or ever, for that matter). If, for example, a State declared that "jaberwocky" was an aggravating circumstance, and then carefully invoked "jaberwocky" in every one of its capital cases, this Court could not simply decide that "jaberwocky" means "killing a police officer" and then dispense with any inquiry into whether the term ever had been understood in that way by the State's courts, simply because the "jaberwocky" construction consistently had been reaffirmed. An examination of the Idaho cases reveals that the Osborn formulation is not much better than "jaberwocky." As *486 noted above, the Idaho courts never have articulated anything remotely approaching the majority's novel "those who kill without feeling or sympathy" interpretation. All kinds of other factors, however, have been invoked by Idaho courts applying the circumstance. For example, in the killer's coldbloodedness supposedly was demonstrated by his refusal to render aid to his victim and the fact that "[h]is only concern was to cover up his own participation in the incident." In a finding of "utter disregard" was held to be supported by evidence that the defendant "approached Mr. Herndon with a gun, then made him drop his pants and crawl into the cabin where he proceeded to bludgeon the skulls of both of his victims with a hammer. He then left them lying on the floor to die and Mr. Herndon was left lying on the floor of the cabin convulsing." And, in the present case, the trial judge's determination that Creech exhibited utter disregard for human life appears to have been based primarily on the fact that Creech had "intentionally destroyed another human being at a time when he was completely helpless." App. 34. Each of these characteristics is frightfully deplorable, but what they have to do with a lack of emotionor with each other, for that matter eludes me. Without some rationalizing principle to connect them, the findings of "cold-bloodedness" stand as nothing more than fact-specific, "gut-reaction" conclusions that are unconstitutional under The futility of the Idaho courts' attempt to bring some rationality to the "utter disregard" circumstance is glaringly evident in the sole post-Osborn case that endeavors to explain the construction in any depth. In P.2d 252, the court declared |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | construction in any depth. In P.2d 252, the court declared that the "utter disregard" factor refers to "the defendant's lack of conscientious scruples against killing *487 another human being." Accord, Thus, the latest statement from the Idaho Supreme Court on the issue says nothing about emotionless crimes, but, instead, sweepingly includes every murder committed that is without "`conscientious scruples against killing.' " I can imagine no crime that would not fall within that construction. Petitioner in his brief embraces Fain `s broad construction. "In every case in which the Idaho Supreme Court has upheld a death sentence based wholly or in part on a finding of utter disregard for human life, the defendant had acted without conscientious scruple against killing." Brief for Petitioner 25. Petitioner cites this reassuring fact as the "best evidence that Idaho's utter disregard factor is not so broad that it operates simply as a catch-all for murders not covered by other aggravating circumstances." This "best evidence" is not very good evidence, especially when viewed against the fact that the Idaho Supreme Court never has reversed a finding of utter disregard.[14] Equally unsettling is petitioner's frank admission that the Osborn construction "does not make findings of the aggravating factors depend on the presence of particular facts. Instead Idaho has chosen to rely on the ability of the sentencing judge to make principled distinctions between capital and non-capital cases *488 with guidance that is somewhat subjective" Brief for Petitioner 9. That kind of gestalt approach to capital sentencing is precisely what Cartwright and Godfrey forbid. Ultimately, it hardly seems necessary to look beyond the record of this case to determine that either the majority's construction is inadequate, or that there was insufficient evidence to support the "utter disregard" factor here. The record, which the majority takes pains to assure us "could not be more chilling," ante, at 465,[15] includes an explicit finding by the trial judge that Creech was the subject of an unprovoked attack and that the killing took place in an "excessive violent rage." App. 52. If Creech somehow is covered by the "utter disregard" factor as understood by the majority (one who kills not with anger, but indifference, ante, at 476), then there can be no doubt that the factor is so broad as to cover any case. If Creech is not covered, then his sentence was wrongly imposed. III Let me be clear about what the majority would have to show in order to save the Idaho statute: that, on its face, the Osborn construction"the highest, the utmost, callous disregard for human life, i. |
Justice Blackmun | 1,993 | 11 | dissenting | Arave v. Creech | https://www.courtlistener.com/opinion/112838/arave-v-creech/ | construction"the highest, the utmost, callous disregard for human life, i. e., the cold-blooded, pitiless slayer"refers clearly and exclusively to crimes that occur "without feeling or sympathy," that is, to those that occur *489 without "anger, jealousy, revenge, or a variety of other emotions." No such showing has been made. There is, of course, something distasteful and absurd in the very project of parsing this lexicon of death. But as long as we are in the death business, we shall be in the parsing business as well. Today's majority stretches the bounds of permissible construction past the breaking point. "`Vague terms do not suddenly become clear when they are defined by reference to other vague terms,' " -694, n. 16 quoting nor do sweeping categories become narrow by mere restatement. The Osborn formulation is worthless, and neither common usage, nor legal terminology, nor the Idaho cases support the majority's attempt to salvage it. The statute is simply unconstitutional and Idaho should be busy repairing it. I would affirm the judgment of the Court of Appeals. |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | Petitioners were convicted of conspiracy to import marihuana (Count I), in violation of 21 U.S. C. 963, and conspiracy to distribute marihuana (Count II), in violation of 21 U.S. C. 846. Petitioners received consecutive sentences on each count. The United Court of Appeals for the Fifth Circuit, sitting en banc, affirmed petitioners' convictions and sentences. United We granted certiorari to consider whether Congress intended consecutive sentences to be imposed for the violation of these two conspiracy statutes and, if so, whether such cumulative punishment violates the Double Jeopardy *335 Clause of the Fifth Amendment of the United Constitution. The facts forming the basis of petitioners' convictions are set forth in the panel opinion of the Court of Appeals, United and need not be repeated in detail here. For our purposes, we need only relate that the petitioners were involved in an agreement, the objectives of which were to import marihuana and then to distribute it domestically. Petitioners were charged and convicted under two separate statutory provisions and received consecutive sentences. The length of each of their combined sentences exceeded the maximum 5-year sentence which could have been imposed either for a conviction of conspiracy to import or for a conviction of conspiracy to distribute. The statutes involved in this case are part of the Comprehensive Drug Abuse Prevention and Control Act of 1970, 21 U.S. C. 801 et seq. Section 846 is in Subchapter I of the Act and provides: "Any person who attempts or conspires to commit any offense defined in this subchapter is punishable by imprisonment or fine or both which may not exceed the maximum punishment prescribed for the offense, the commission of which was the object of the attempt or conspiracy." This provision proscribes conspiracy to commit any offense defined in Subchapter I, including conspiracy to distribute marihuana which is specifically prohibited in 21 U.S. C. 841 (a) (1). Section 846 authorizes imposition of a sentence of imprisonment or a fine that does not exceed the penalty specified for the object offense. Section 963, which is part of Subchapter II of the Act, contains a provision identical to 846 and proscribes conspiracy to commit any offense defined in Subchapter II, including conspiracy to import marihuana which is specifically prohibited by 21 U.S. C. 960 (a) (1). As in 846, 963 *336 authorizes a sentence of imprisonment or a fine that does not exceed the penalties specified for the object offense. Thus, a conspiratorial agreement which envisages both the importation and distribution of marihuana violates both statutory provisions, each of which authorizes a separate punishment. Petitioners do |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | provisions, each of which authorizes a separate punishment. Petitioners do not dispute that their conspiracy to import and distribute marihuana violated both 846 and 963. Rather, petitioners contend it is not clear whether Congress intended to authorize multiple punishment for violation of these two statutes in a case involving only a single agreement or conspiracy, even though that isolated agreement had dual objectives. Petitioners argue that because Congress has not spoken with the clarity required for this Court to find an "unambiguous intent to impose multiple punishment," we should invoke the rule of lenity and hold that the statutory ambiguity on this issue prevents the imposition of multiple punishment. Petitioners further contend that even if cumulative punishment was authorized by Congress, such punishment is barred by the Double Jeopardy Clause of the Fifth Amendment. In resolving petitioners' initial contention that Congress did not intend to authorize multiple punishment for violations of 846 and 963, our starting point must be the language of the statutes. Absent a "clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive." Consumers Product Safety Here, we confront separate offenses with separate penalty provisions that are contained in distinct Subchapters of the Act. The provisions are unambiguous on their face and each authorizes punishment for a violation of its terms. Petitioners contend, however, that the question presented is not whether the statutes are facially ambiguous, but whether consecutive sentences may be imposed when convictions under those statutes arise from participation in a single conspiracy *337 with multiple objectivesa question raised, rather than resolved, by the existence of both provisions. The answer to petitioners' contention is found, we believe, in application of the rule announced by this Court in and most recently applied last Term in In Whalen, the Court explained that the "rule of statutory construction" stated in Blockburger is to be used "to determine whether Congress has in a given situation provided that two statutory offenses may be punished cumulatively." The Court then referenced the following test set forth in Blockburger: "The applicable rule is that where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Our decision in Whalen was not the first time this Court has looked to the Blockburger rule to determine whether Congress intended that two statutory offenses be punished cumulatively. We previously stated in although our analysis there was of necessity based |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | stated in although our analysis there was of necessity based on a claim of double jeopardy since the case came to us from a state court, that "[t]he established test for determining whether two offenses are sufficiently distinguishable to permit the imposition of cumulative punishment was stated in" Similarly, in Iannelli v. United we explained: "The test articulated in serves a generally similar function of identifying congressional intent to impose separate sanctions for multiple offenses arising in the course of a single act or transaction. In determining whether separate *338 punishment might be imposed, Blockburger requires that courts examine the offenses to ascertain `whether each provision requires proof of a fact which the other does not.' As Blockburger and other decisions applying its principle reveal, the Court's application of the test focuses on the statutory elements of the offense. If each requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes." In Gore v. United the Court rejected the opportunity to abandon Blockburger as the test to apply in determining whether Congress intended to impose multiple punishment for a single act which violates several statutory provisions. In reaffirming Blockburger, the Court explained: "The fact that an offender violates by a single transaction several regulatory controls devised by Congress as means for dealing with a social evil as deleterious as it is difficult to combat does not make the several different regulatory controls single and identic." Finally, in American Tobacco Co. v. United defendants who had been convicted of conspiracy in restraint of trade in violation of 1 of the Sherman Act (15 U.S. C. 1), and conspiracy to monopolize in violation of 2 (15 U.S. C. 2), sought review of their convictions contending that separate sentences for these offenses were impermissible because there was "but one conspiracy, namely, a conspiracy to fix prices." In rejecting this claim, the Court noted the presence of separate statutory offenses and then, relying on Blockburger, upheld the sentences on the ground that " 1 and 2 of the Sherman Act require proof of conspiracies which are reciprocally distinguishable from and independent of each *339 other although the objects of the conspiracies may partially overlap." The statutory provisions at issue here clearly satisfy the rule announced in Blockburger and petitioners do not seriously contend otherwise. Sections 846 and 963 specify different ends as the proscribed object of the conspiracy distribution as opposed to importationand it is beyond peradventure that "each provision requires proof of a fact [that] the |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | that "each provision requires proof of a fact [that] the other does not." Thus, application of the Blockburger rule to determine whether Congress has provided that these two statutory offenses be punished cumulatively results in the unequivocal determination that 846 and 963, like 1 and 2 of the Sherman Act which were at issue in American Tobacco, proscribe separate statutory offenses the violations of which can result in the imposition of consecutive sentences. Our conclusion in this regard is not inconsistent with our earlier decision in Braverman v. United on which petitioners rely so heavily. Petitioners argue that Blockburger cannot be used for divining legislative intent when the statutes at issue are conspiracy statutes. Quoting Braverman, they argue that whether the objective of a single agreement is to commit one or many crimes, it is in either case the agreement which constitutes the conspiracy which the statute punishes. "The one agreement cannot be taken to be several agreements and hence several conspiracies because it envisages the violation of several statutes rather than one." Braverman, however, does not support petitioners' position. Unlike the instant case or this Court's later decision in American Tobacco, the conspiratorial agreement in Braverman, although it had many objectives, violated but a single statute. The Braverman Court specifically noted: "Since the single continuing agreement, which is the conspiracy here, thus embraces its criminal objects, it *340 differs from successive acts which violate a single penal statute and from a single act which violates two statutes. See 301-[30]4; Albrecht v. United The single agreement is the prohibited conspiracy, and however diverse its objects it violates but a single statute, 37 of the Criminal Code. For such a violation, only the single penalty prescribed by the statute can be imposed." Later in American Tobacco, the Court distinguished Braverman: "In contrast to the single conspiracy described in [Braverman] in separate counts, all charged under the general conspiracy statute, we have here separate statutory offenses, one a conspiracy in restraint of trade that may stop short of monopoly, and the other a conspiracy to monopolize that may not be content with restraint short of monopoly. One is made criminal by 1 and the other by 2 of the Sherman Act." See also Pinkerton v. United The Blockburger test is a "rule of statutory construction," and because it serves as a means of discerning congressional purpose the rule should not be controlling where, for example, there is a clear indication of contrary legislative intent. Nothing, however, in the legislative history which has been brought to our attention discloses an intent contrary to |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | been brought to our attention discloses an intent contrary to the presumption which should be accorded to these statutes after application of the Blockburger test. In fact, the legislative history is silent on the question of whether consecutive sentences can be imposed for conspiracy to import and distribute drugs. Petitioners read this silence as an "ambiguity" over whether Congress intended to authorize *341 multiple punishment.[1] Petitioners, however, read much into nothing. Congress cannot be expected to specifically address each issue of statutory construction which may arise. But, as we have previously noted, Congress is "predominantly a lawyer's body," Callanan v. United and it is appropriate for us "to assume that our elected representatives know the law." As a result, if anything is to be assumed from the congressional *342 silence on this point, it is that Congress was aware of the Blockburger rule and legislated with it in mind. It is not a function of this Court to presume that "Congress was unaware of what it accomplished." U. S. Railroad Retirement 449 U.S.[2] Finally, petitioners contend that because the legislative history is "ambiguous" on the question of multiple punishment, we should apply the rule of lenity so as not to allow consecutive sentences in this situation. Last Term in Bifulco v. United we recognized that the rule of lenity is a principle of statutory construction which applies not only to interpretations of the substantive ambit of criminal prohibitions, but also to the penalties they impose. Quoting Ladner v. United we stated: "This policy of lenity means that the Court will not interpret a federal criminal statute so as to increase the penalty that it places on an individual when such an interpretation can be based on no more than a guess as to what Congress intended.'" We emphasized that the "touchstone" of the rule of lenity "is statutory ambiguity." And we stated: "Where Congress has manifested its intention, we may not manufacture ambiguity in order to defeat that intent." Lenity thus serves only as an aid for resolving an ambiguity; it is not to be used to beget one. The rule comes into operation "at the end of the process of construing what Congress has expressed, not at the beginning as an overriding consideration of being lenient to wrongdoers." Callanan v. United *343 In light of these principles, the rule of lenity simply has no application in this case; we are not confronted with any statutory ambiguity. To the contrary, we are presented with statutory provisions which are unambiguous on their face and a legislative history which gives us no |
Justice Rehnquist | 1,981 | 19 | majority | Albernaz v. United States | https://www.courtlistener.com/opinion/110428/albernaz-v-united-states/ | their face and a legislative history which gives us no reason to pause over the manner in which these provisions should be interpreted. The conclusion we reach today regarding the intent of Congress is reinforced by the fact that the two conspiracy statutes are directed to separate evils presented by drug trafficking. "Importation" and "distribution" of marihuana impose diverse societal harms, and, as the Court of Appeals observed, Congress has in effect determined that a conspiracy to import drugs and to distribute them is twice as serious as a conspiracy to do either object singly. This result is not surprising for, as we observed many years ago, the history of the narcotics legislation in this country "reveals the determination of Congress to turn the screw of the criminal machinerydetection, prosecution and punishment tighter and tighter." Gore v. United Having found that Congress intended to permit the imposition of consecutive sentences for violations of 846 and 963, we are brought to petitioners' argument that notwithstanding this fact, the Double Jeopardy Clause of the Fifth Amendment of the United Constitution precludes the imposition of such punishment. While the Clause itself simply states that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb," the decisional law in the area is a veritable Sargasso Sea which could not fail to challenge the most intrepid judicial navigator. We have previously stated that the Double Jeopardy Clause "protects against a second prosecution for the same offense after acquittal. It protects against a second prosecution for the offense after conviction. And it protects against multiple punishments for the same offense." North *344 Last Term in this Court stated that "the question whether punishments imposed by a court after a defendant's conviction upon criminal charges are unconstitutionally multiple cannot be resolved without determining what punishments the Legislative Branch has authorized." ; ; In determining the permissibility of the imposition of cumulative punishment for the crime of rape and the crime of unintentional killing in the course of rape, the Court recognized that the "dispositive question" was whether Congress intended to authorize separate punishments for the two crimes. This is so because the "power to define criminal offenses and to prescribe punishments to be imposed upon those found guilty of them, resides wholly with the Congress." As we previously noted in "[w]here consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorization by imposing multiple punishments for the same offense." Thus, |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | We consider whether attempting to compel a person to recommend that his employer approve an investment con- stitutes “the obtaining of property from another” under 18 U.S. C. I New York’s Common Retirement Fund is an employee pension fund for the State of New York and its local gov- ernments. As sole trustee of the Fund, the State Comp- troller chooses Fund investments. When the Comptroller decides to approve an investment he issues a “Commit- ment.” A Commitment, however, does not actually bind the Fund. For that to happen, the Fund and the recipient of the investment must enter into a limited partnership agreement. Petitioner Giridhar Sekhar was a managing partner of FA Technology Ventures. In October 2009, the Comptrol- ler’s office was considering whether to invest in a fund managed by that firm. The office’s general counsel made a written recommendation to the Comptroller not to invest in the fund, after learning that the Office of the New York 2 SEKHAR v. UNITED STATES Opinion of the Court Attorney General was investigating another fund man- aged by the firm. The Comptroller decided not to issue a Commitment and notified a partner of FA Technology Ventures. That partner had previously heard rumors that the general counsel was having an extramarital affair. The general counsel then received a series of anony- mous e-mails demanding that he recommend moving for- ward with the investment and threatening, if he did not, to disclose information about his alleged affair to his wife, government officials, and the media. App. 59–61. The general counsel contacted law enforcement, which traced some of the e-mails to petitioner’s home computer and other e-mails to offices of FA Technology Ventures. Petitioner was indicted for, and a jury convicted him of, attempted extortion, in violation of the Hobbs Act, 18 U.S. C. That Act subjects a person to criminal liability if he “in any way or degree obstructs, delays, or affects commerce or the movement of any article or com- modity in commerce, by robbery or extortion or attempts or conspires so to do.” The Act defines “extor- tion” to mean “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 1 On the verdict form, the jury was asked to specify the property that petitioner attempted to extort: (1) “the Commitment”; (2) “the Comptroller’s ap- proval of the Commitment”; or (3) “the General Counsel’s —————— 1 Petitioner was also convicted of several counts of interstate trans- mission of extortionate threats, in violation of |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | of interstate trans- mission of extortionate threats, in violation of 18 U.S. C. Under a person is criminally liable if he, “with intent to extort from any person, firm, association, or corporation, any money or other thing of value, transmits in interstate or foreign commerce any com- munication containing any threat to injure the property or reputation of the addressee.” In this case, both parties concede that the definition of “extortion” under the Hobbs Act also applies to the counts. We express no opinion on the validity of that concession. Cite as: 570 U. S. (2013) 3 Opinion of the Court recommendation to approve the Commitment.” App. 141– 142. The jury chose only the third option. The Court of Appeals for the Second Circuit affirmed the conviction. The court held that the general counsel “had a property right in rendering sound legal advice to the Comptroller and, specifically, to recommend—free from threats—whether the Comptroller should issue a Com- mitment for [the funds].” The court concluded that petitioner not only attempted to deprive the general counsel of his “property right,” but that peti- tioner also “attempted to exercise that right by forcing the General Counsel to make a recommendation determined by [petitioner].” We granted certiorari. 568 U. S. (2013). II A Whether viewed from the standpoint of the common law, the text and genesis of the statute at issue here, or the jurisprudence of this Court’s prior cases, what was charged in this case was not extortion. It is a settled principle of interpretation that, absent other indication, “Congress intends to incorporate the well-settled meaning of the common-law terms it uses.” “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of cen- turies of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word in the body of learning from which it was taken and the meaning its use will convey to the judicial mind unless otherwise instructed.” Morissette v. United States, Or as Justice Frankfurter colorfully put it, “if a word is obviously transplanted from another legal source, whether 4 SEKHAR v. UNITED STATES Opinion of the Court the common law or other legislation, it brings the old soil with it.” Some Reflections on the Reading of Statutes, 47 Colum. L. Rev. 527, 537 (1947). The Hobbs Act punishes “extortion,” one of the oldest crimes in our legal tradition, see E. Coke, The Third Part of the Institutes of the Laws of England 148–150 (1648) (reprint 2008). The crime originally applied only to extor- tionate action by |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | The crime originally applied only to extor- tionate action by public officials, but was later extended by statute to private extortion. See 4 C. Torcia, Wharton’s Criminal Law 699 (14th ed. 1981). As far as is known, no case predating the Hobbs Act—English, federal, or state—ever identified conduct such as that charged here as extortionate. Extortion required the obtaining of items of value, typically cash, from the victim. See, e.g., (justice of the peace properly indicted for extorting money); Com- (officer properly convicted for demanding a fee for letting a man out of prison); (jailer properly indicted for extorting money from pris- oner); Queen v. Woodward, 11 Mod. 137, 88 Eng. Rep. 949 (K. B. 1707) (upholding indictment for extorting “money and a note”). It did not cover mere coercion to act, or to refrain from acting. See, e.g., King v. Burdett, 1 Ld. Raym. 149, 91 Eng. Rep. 996 (K. B. 1696) (dictum) (extortion consisted of the “taking of money for the use of the stalls,” not the deprivation of “free liberty to sell [one’s] wares in the market according to law”). The text of the statute at issue confirms that the alleged property here cannot be extorted. Enacted in 1946, the Hobbs Act defines its crime of “extortion” as “the ob- taining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S. C. (emphasis added). Obtaining property re- quires “not only the deprivation but also the acquisition of Cite as: 570 U. S. (2013) 5 Opinion of the Court property.” ). That is, it requires that the victim “part with” his property, R. Perkins & R. Boyce, Criminal Law 451 (3d ed. 1982), and that the extor- tionist “gain possession” of it, n. 8; see also Webster’s New International Dictionary 1682 (2d ed. 1949) (defining “obtain”); Murray, Note, Protesters, Extortion, and Coercion: Preventing RICO from Chilling First Amendment Freedoms, 706 (Murray). The property extorted must there- fore be transferable—that is, capable of passing from one person to another. The alleged property here lacks that defining feature.2 The genesis of the Hobbs Act reinforces that conclusion. The Act was modeled after of the New York Penal Law (1909), which was derived from the famous Field Code, a 19th-century model penal code, see 4 Commission- ers of the Code, Penal Code of the State of New York p. 220 (1865) (reprint 1998). Congress borrowed, nearly verbatim, the New York statute’s definition of extortion. See 537 U. S., The New York statute contained, in |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | See 537 U. S., The New York statute contained, in addition to the felony crime of extortion, a new (that is to say, nonexistent at common law) misde- meanor crime of coercion. Whereas the former required, as we have said, “ ‘the criminal acquisition of property,’ ” ib the latter required merely the use of threats “to —————— 2 It may well be proper under the Hobbs Act for the Government to charge a person who obtains money by threatening a third party, who obtains funds belonging to a corporate or governmental entity by threatening the entity’s agent, see 2 J. Bishop, Criminal Law p. 334, and n. 3 (9th ed. 19) ), or who obtains “goodwill and customer revenues” by threatening a market competitor, see, e.g., United (CA9 1980). Each of these might be considered “obtaining property from another.” We need not consider those situations, however, because the Government did not charge any of them here. 6 SEKHAR v. UNITED STATES Opinion of the Court compel another person to do or to abstain from doing an act which such other such person has a legal right to do or to abstain from doing.” N. Y. Penal Law (1909), earlier codified in N. Y. Penal Code (1881). Congress did not copy the coercion provision. The omission must have been deliberate, since it was perfectly clear that extortion did not include coercion. At the time of the borrowing (1946), New York courts had consistently held that the sort of interference with rights that occurred here was coercion. See, e.g., (compelling store owner to become a member of a trade association and to remove advertisements); 195 N.E. 162 (compelling victim to enter into agreement with union); People v. Kaplan, 240 A.D. 72, 74–75, 269 N. Y. S. 161, 163–164, aff ’d, (compelling union members to drop lawsuits against union leadership).3 —————— 3 Also revealing, the New York code prohibited conspiracy “[t]o pre- vent another from exercising a lawful trade or calling, or doing any other lawful act, by force, threats, intimidation.” N. Y. Penal Law (1909) (emphasis added). That separate codification, which Con- gress did not adopt, is further evidence that the New York crime of extortion (and hence the federal crime) did not reach interference with a person’s right to ply a lawful trade, similar to the right claimed here. Seeking to extract something from the void, the Government relies on cases that interpret a provision of the New York code defining the kinds of threats that qualify as threats to do “unlawful injury to the person or property,” which is |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | do “unlawful injury to the person or property,” which is what the extortion statute requires. See N. Y. Penal Code (1881); N. Y. Penal Law (1909). Those cases held that they include threats to injure a business by preventing the return of workers from a strike, and threats to terminate a person’s employment, People ex rel. 130 N. Y. S. 698, 700–701 (1911), aff’d, (1912) Those cases are entirely inapposite here, where the issue is not what constitutes a qualifying threat but what consti- tutes obtainable property. Cite as: 570 U. S. (2013) 7 Opinion of the Court And finally, this Court’s own precedent similarly de- mands reversal of petitioner’s convictions. In we held that protesters did not commit extortion under the Hobbs Act, even though they “interfered with, disrupted, and in some instances completely deprived” abortion clinics of their ability to run their business. 537 U. S., at –405. We reasoned that the protesters may have deprived the clinics of an “alleged property right,” but they did not pursue or receive “ ‘something of value from’ ” the clinics that they could then “exercise, transfer, or sell” themselves. The opinion supported its holding by citing the three New York coercion cases discussed above. See –406. This case is easier than where one might at least have said that physical occupation of property amounted to obtaining that property. The deprivation alleged here is far more abstract. rested its decision, as we do, on the term “obtaining.” n. 6. The principle announced there—that a defendant must pursue something of value from the victim that can be exercised, transferred, or sold—applies with equal force here.4 Whether one considers the personal right at issue —————— 4 The Government’s attempt to distinguish is unconvinc- ing. In its view, had the protesters sought to force the clinics to pro- vide services other than abortion, extortion would have been a proper charge. Petitioner committed extortion here, the Government says, because he did not merely attempt to prevent the general counsel from giving a recommendation but tried instead to force him to issue one. That distinction is, not to put too fine a point on it, nonsensical. It is coercion, not extortion, when a person is forced to do something and when he is forced to do nothing. See, e.g., N. Y. Penal Law (1909) (it is a misdemeanor to coerce a “person to do or to abstain from doing an act”). Congress’s enactment of the Hobbs Act did not, through the phrase “obtaining of property from another,” suddenly transform every act that coerces affirmative conduct into |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | another,” suddenly transform every act that coerces affirmative conduct into a crime punishable for up to 20 years, while leaving those who “merely” coerce inaction immune from federal punishment. 8 SEKHAR v. UNITED STATES Opinion of the Court to be “property” in a broad sense or not, it certainly was not obtainable property under the Hobbs Act.5 B The Government’s shifting and imprecise characteriza- tion of the alleged property at issue betrays the weakness of its case. According to the jury’s verdict form, the “prop- erty” that petitioner attempted to extort was “the General Counsel’s recommendation to approve the Commitment.” App. 142. But the Government expends minuscule effort in defending that theory of conviction. And for good reason—to wit, our decision in which reversed a business owner’s mail-fraud conviction for “obtaining money or property” through misrepresentations made in an application for a video-poker license issued by the State. We held that a “license” is not “property” while in the State’s hands and so cannot be “obtained” from the State. at 20–22. Even less so can an employee’s yet-to-be-issued recom- mendation be called obtainable property, and less so still a yet-to-be-issued recommendation that would merely ap- prove (but not effect) a particular investment. Hence the Government’s reliance on an alternative, more sophisticated (and sophistic) description of the property. Instead of defending the jury’s description, the Gov- ernment hinges its case on the general counsel’s “intangi- ble property right to give his disinterested legal opinion to —————— 5 The concurrence contends that the “right to make [a] recommenda- tion” is not property. Post, at 4 (ALITO, J., concurring in judgment). We are not sure of that. If one defines property to include anything of value, surely some rights to make recommendations would qualify—for example, a member of the Pulitzer Prize Committee’s right to recom- mend the recipient of the prize. We suppose that a prominent journal- ist would not give up that right (he cannot, of course, transfer it) for a significant sum of money—so it must be valuable. But the point relevant to the present case is that it cannot be transferred, so it cannot be the object of extortion under the statute. Cite as: 570 U. S. (2013) 9 Opinion of the Court his client free of improper outside interference.” Brief for United States 39. But what, exactly, would the petitioner have obtained for himself? A right to give his own disin- terested legal opinion to his own client free of improper interference? Or perhaps, a right to give the general coun- sel’s disinterested legal opinion to the general counsel’s |
Justice Scalia | 2,013 | 9 | majority | Sekhar v. United States | https://www.courtlistener.com/opinion/944097/sekhar-v-united-states/ | general coun- sel’s disinterested legal opinion to the general counsel’s client? Either formulation sounds absurd, because it is. Clearly, petitioner’s goal was not to acquire the general coun- sel’s “intangible property right to give disinterested legal advice.” It was to force the general counsel to offer advice that accorded with petitioner’s wishes. But again, that is coercion, not extortion. See Murray 721–722. No fluent speaker of English would say that “petitioner obtained and exercised the general counsel’s right to make a rec- ommendation,” any more than he would say that a person “obtained and exercised another’s right to free speech.” He would say that “petitioner forced the general counsel to make a particular recommendation,” just as he would say that a person “forced another to make a statement.” Adopting the Government’s theory here would not only make nonsense of words; it would collapse the longstand- ing distinction between extortion and coercion and ignore Congress’s choice to penalize one but not the other. See That we cannot do. The judgment of the Court of Appeals for the Second Circuit is reversed. It is so ordered. Cite as: 570 U. S. (2013) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 12–357 GIRIDHAR C. SEKHAR, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT [June 26, 2013] JUSTICE ALITO, with whom JUSTICE KENNEDY and JUS- TICE SOTOMAYOR join, concurring in the judgment. |
Justice Blackmun | 1,974 | 11 | dissenting | Warden v. Marrero | https://www.courtlistener.com/opinion/109074/warden-v-marrero/ | The Court holds that the no-parole provision of the repealed statute, 26 U.S. C. 7237 (d) (1964 ed. and Supp. V), is saved by both the general saving clause, 1 U.S. C. 109, and the specific saving clause, 1103 (a), of the 1970 Act. I believe that neither provision can be read to cover postsentencing parole eligibility and I therefore respectfully dissent. *665 I Section 109. Parole eligibility, in my view, is not a "penalty" envisioned by, and within the meaning of, the general saving statute, 1 U.S. C. 109. The purpose and thrust of 109, the pertinent portion of which was enacted originally in 1871, c. 71, is to preclude the technical abatement of a prosecution for an offense that was committed before the criminal statute was repealed. Quite appropriately, this recognizes that, apart from exceptional circumstances,[1] one who violates the criminal law should not escape sanction if, subsequent to the commission of his criminal act, the law happens to be repealed. This saving statute, however, is not in line with the traditional common-law rule favoring application of existing law. United ; United See United ; The statute has never been applied by this Court other than to prevent technical abatement of a prosecution.[2] Those federal courts that have interpreted the statute's reference to "penalty" to include the terms of the sentence have dealt only with the length of the sentence actually imposed. United ; (CA4), cert. denied, ; ;[3] In this case, however, we are faced with a decidedly different situation. Respondent Marrero in no way is seeking to avoid punishment for his criminal act, and he is still fully subject to the service of his sentence. What Marrero seeks is merely the opportunity to be considered for parole. Eligibility for parole will not free him from his imposed sentence. The decision whether he should be accorded parole lies within the discretion of the Board of Parole. If for any reason the Board feels that parole would not be appropriate for the respondent, it can be denied, and Marrero will remain incarcerated for the term to which he is subject. Moreover, even if parole is deemed appropriate and is granted, respondent still would be subject to the conditions the parole authorities choose to place on his conditional freedom. As the Fourth Circuit aptly has observed, parole "is not a release of the prisoner from all disciplinary restraint but is rather merely `an extension of the prison walls'; and the prisoner while on parole remains `in the legal custody and under the control of' the Parole Board," United States |
Justice Blackmun | 1,974 | 11 | dissenting | Warden v. Marrero | https://www.courtlistener.com/opinion/109074/warden-v-marrero/ | and under the control of' the Parole Board," United States ex rel. ; See also *667 United The "sentence" to be served by respondent is still 10 years, whether or not he is granted parole. Cf. In short, it is by no means clear to me that respondent Marrero is seeking to be relieved of the obligations of the "sentence" imposed upon him. By expanding the term "penalty" to include parole ineligibility, rather than restricting it to the sentence imposed, the Court, in my view, misconceives the nature of parole ineligibility and extends 109 well beyond its prior limits. To say that Congress intended parole ineligibility to be a "penalty" under the repealed statute is merely to state the conclusion. The appropriate question is whether Congress intended parole ineligibility to be the type of "penalty" preserved by the general saving statute. Until today, 109 has not been read so broadly, and I believe this extension goes beyond the intended narrow anti-abatement reach of 109. To repeat: 109 "was meant to obviate mere technical abatement." 379 U. S., at This unprecedented extension of 109 might be justified, and perhaps made acceptable, if it were possible in any way to conclude that the Court's reading serves to effectuate congressional intent or to promote some valid policy. But the result reached clearly does a disservice in both respects. As is demonstrated in Part II, infra, Congress did not affirmatively intend to save the no-parole provision. And on pure policy grounds, the result reached by the Court is wholly illogical. Presumably, the purposes behind parole ineligibility are to effect a deterrence to the commission of narcotics offenses, and to keep serious drug offenders behind bars for longer periods. By repealing the parole ineligibility provision, Congress rejected any deterrence *668 rationale that had existed. A person who, on or subsequent to May 1, 1971, might anticipate the commission of a drug offense and who is cognizant of the law, knows that he is eligible for parole under 18 U.S. C. 4202 after service of one-third of his more-than-180-day sentence. The anomalous effect of the Court's action is that it keeps an inmate who is convicted of an offense committed on April 30, 1971, incarcerated for the full length of his term, while his fellow inmate who committed the identical crime on May 2 and who behaved identically in prison, is eligible for release after one-third the time. Surely, disparate treatment of this kind serves only to frustrate the inmate's sense of justice and to undermine whatever rehabilitative attempts currently are being made.[4] II Section 1103 |
Justice Blackmun | 1,974 | 11 | dissenting | Warden v. Marrero | https://www.courtlistener.com/opinion/109074/warden-v-marrero/ | whatever rehabilitative attempts currently are being made.[4] II Section 1103 (a). In passing the Comprehensive Drug Abuse Prevention and Control Act of 1970, with its specific repealer provisions in 1101 (b) (3) (A) and (b) (4) (A), Congress unequivocally withdrew and rejected the concept of parole ineligibility. It concluded that the criminal process is ill served by a law that removes the incentives and the rehabilitative potential of a parole system. The only reference in the 1970 Act to pre-Act offenders is in the saving provision of 1103 (a), 84 *, and it precludes abatement only of "prosecutions." Although we pretermitted this precise question in the Court clearly distinguished postsentence parole eligibility from the specific terms of the sentence already handed down. I believe this distinction is crucial and that it requires a different result in the instant situation. In determining whether 1103 (a) bars parole eligibility for pre-Act offenders, the Court should ascertain what Congress intended. While there is no precise legislative history on this question, I think the wording of 1103 (a) and the overall purposes of the 1970 Act preclude the result reached by the Court. Section 1103 (a) applies only to "prosecutions." We reached the outer limit of this term in Bradley. Certainly the legislative and judicial history of the even broader language of the general saving provision, 109, hardly supports the extravagant interpretation of 1103 (a) reached today. In light of the clear history and law under 109, had Congress wanted to save more than the prosecution itself, it could well have done so in specific terms. Instead, it chose the narrowest possible saving clause. Particularly in light of the fact that the text of the 1970 Act specifically rejects the concept of paroleless sentencing, it is illogical and unwarranted to assume that Congress intended the term "prosecutions" to be read so broadly. For me there is no ambiguity in 1103 (a). I would take the limited saving clause at its word. Assuming, arguendo, that there is some doubt as to the congressional intent, it is harsh, to say the least, to resolve the doubt in the manner chosen by the Court. In light of the general rule favoring application of existing law, United and the general rule favoring construction of ambiguous statutes in favor of criminal defendants, United I see no other choice than to resolve any doubts in favor of eligibility. The Court would justify its broad reading of the word "prosecution" by stating that "a pragmatic view of sentencing requires [this] conclusion." Ante, at 658. Needless to say, no authority, legal or |
Justice Blackmun | 1,974 | 11 | dissenting | Warden v. Marrero | https://www.courtlistener.com/opinion/109074/warden-v-marrero/ | Ante, at 658. Needless to say, no authority, legal or otherwise, is cited for this proposition other than the majority's own intuition, and I venture to say that none could be cited. Parole eligibility is determined by a parole board at its discretion, and the existence of parole eligibility is either guaranteed by statute or, as in the case of the repealed Act, is denied by statute. One thing is clear: the sentencing judge has no explicit control over the determination. Congress has never instructed district courts to assess sentences according to parole eligibility dates and if in fact some judges do this, it hardly justifies this Court's flat conclusion that parole eligibility is "implicit in the terms of the sentence" and is "thus determined at the time of sentencing." Whatever else Bradley held, it clearly stated that the parole eligibility determination under 18 U.S. C. 4202 (as opposed to preclusion of early parole in the terms of the sentence, as in Bradley) does not lie with the district judge, and the determination is "made long after sentence has been entered and the prosecution terminated." 410 U. S., at (emphasis added).[5] Even assuming footnote 6 in Bradley did not conclusively decide the instant issue, the Court's opinion renders the words of *671 the footnote a nullity. The majority states that we "could not reasonably be thought to have decided in a footnote a question `on which' we said in the text, `we express no opinion,' " ante, at 659. It then goes on to decide that very issue, relying almost entirely on Bradley and concluding that "under the teaching of Bradley" ineligibility for parole "is part of the `prosecution.' " Ante, at 658. At the least, Bradley precludes the approach taken by the majority. To my mind, it precludes the result reached. III Respondent Marrero does not seek release. He seeks only to be treated in the manner Congress now has recognized as appropriate for all criminal offenders, including those convicted of narcotics violations. If a professional Board of Parole determines that parole is in the best interests of an inmate and of society, Congress has determined that the inmate should be paroled. The Court, in my view, makes a serious mistake in expanding 109 so drastically, and in interpreting 1103 (a) contrary to its intent and language, in order to preclude this result. With only one exception,[6] the federal courts of appeals that have considered this issue currently reject the Government's argument.[7] Inasmuch as I believe the Government's *672 position here is incorrect, in terms both of the laws |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | The Sixth and Fourteenth Amendments of our Constitution guarantee that a person brought to trial in any state or federal court must be afforded the right to the assistance of counsel before he can be validly convicted and punished by imprisonment. This clear constitutional rule has emerged from a series of cases decided here over the last 50 years.[1] The question before us now is whether a defendant in a state criminal trial has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so. Stated another way, the question is whether a State may constitutionally hale a person into its criminal courts and there force a lawyer upon him, even when he insists that he wants to conduct his own defense. It is not an easy question, but we have concluded that a State may not constitutionally do so. I Anthony Faretta was charged with grand theft in an information filed in the Superior Court of Los Angeles County, Cal. At the arraignment, the Superior Court Judge assigned to preside at the trial appointed the public defender to represent Faretta. Well before the date of trial, however, Faretta requested that he be permitted to represent himself. Questioning by the judge revealed that Faretta had once represented himself in a criminal prosecution, that he had a high school education, and that he did not want to be represented by the public defender because he believed that that office was "very loaded down with a heavy case load." The judge *808 responded that he believed Faretta was "making a mistake" and emphasized that in further proceedings Faretta would receive no special favors.[2] Nevertheless, after establishing that Faretta wanted to represent himself and did not want a lawyer, the judge, in a "preliminary ruling," accepted Faretta's waiver of the assistance of counsel. The judge indicated, however, that he might reverse this ruling if it later appeared that Faretta was unable adequately to represent himself. Several weeks thereafter, but still prior to trial, the judge sua sponte held a hearing to inquire into Faretta's ability to conduct his own defense, and questioned him specifically about both the hearsay rule and the state law governing the challenge of potential jurors.[3] After consideration *809 of Faretta's answers, and observation of his demeanor, the judge ruled that Faretta had not made an intelligent and knowing waiver of his right to the assistance *810 of counsel, and also ruled that Faretta had no constitutional right to conduct his own defense.[4] The judge, accordingly, reversed his earlier ruling permitting self-representation and again appointed |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | accordingly, reversed his earlier ruling permitting self-representation and again appointed the public defender to represent Faretta. Faretta's subsequent request for leave to act as cocounsel was rejected, as were his efforts to make certain motions on his own behalf.[5] Throughout *811 the subsequent trial, the judge required that Faretta's defense be conducted only through the appointed lawyer from the public defender's office. At the conclusion of the trial, the jury found Faretta guilty as charged, and the judge sentenced him to prison. The California Court of Appeal, relying upon a then-recent California Supreme Court decision that had expressly decided the issue,[6] affirmed the trial judge's ruling that Faretta had no federal or state constitutional right *812 to represent himself.[7] Accordingly, the appellate court affirmed Faretta's conviction. A petition for rehearing was denied without opinion, and the California Supreme Court denied review.[8] We granted certiorari. II In the federal courts, the right of self-representation has been protected by statute since the beginnings of our Nation. Section 35 of the Judiciary Act of 1789, 92, enacted by the First Congress and signed by President Washington one day before the Sixth Amendment *813 was proposed, provided that "in all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance of counsel." The right is currently codified in 28 U.S. C. 1654. With few exceptions, each of the several States also accords a defendant the right to represent himself in any criminal case.[9] The Constitutions of 36 States explicitly confer that right.[10] Moreover, many state courts have *814 expressed the view that the right is also supported by the Constitution of the United States.[11] This Court has more than once indicated the same view. In the Court recognized that the Sixth Amendment right to the assistance of counsel implicitly embodies a "correlative right to dispense with a lawyer's help." The defendant in that case, indicted for federal mail fraud violations, insisted on conducting his own defense without benefit of counsel. He also requested a bench trial and signed a waiver of his right to trial by jury. The prosecution consented to the waiver of a jury, and the waiver was accepted by the court. The defendant was convicted, but the Court of Appeals reversed the conviction on the ground that a person accused of a felony could not competently waive his right to trial by jury except upon the advice of a lawyer. This Court reversed and reinstated the conviction, holding that "an accused, in the exercise of a free and intelligent choice, and |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | in the exercise of a free and intelligent choice, and with the considered approval of the court, may waive trial by jury, and so likewise may he competently and intelligently waive his Constitutional right to assistance of counsel." The Adams case does not, of course, necessarily resolve the issue before us. It held only that "the Constitution *8 does not force a lawyer upon a defendant." at[12] Whether the Constitution forbids a State from forcing a lawyer upon a defendant is a different question. But the Court in Adams did recognize, albeit in dictum, an affirmative right of self-representation: "The right to assistance of counsel and the correlative right to dispense with a lawyer's help are not legal formalisms. They rest on considerations that go to the substance of an accused's position before the law. ". What were contrived as protections for the accused should not be turned into fetters. To deny an accused a choice of procedure in circumstances in which he, though a layman is as capable as any lawyer of making an intelligent choice, is to impair the worth of great Constitutional safeguards by treating them as empty verbalisms. ". When the administration of the criminal law is hedged about as it is by the Constitutional safeguards for the protection of an accused, to deny him in the exercise of his free choice the right to dispense with some of these safeguards is to imprison a man in his privileges and call it the Constitution." at -280 In other settings as well, the Court has indicated that *816 a defendant has a constitutionally protected right to represent himself in a criminal trial. For example, in the Court held that the Confrontation Clause of the Sixth Amendment gives the accused a right to be present at all stages of the proceedings where fundamental fairness might be thwarted by his absence. This right to "presence" was based upon the premise that the "defense may be made easier if the accused is permitted to be present at the examination of jurors or the summing up of counsel, for it will be in his power, if present, to give advice or suggestion or even to supersede his lawyers altogether and conduct the trial himself." And in the Court, in holding that a convicted person had no absolute right to argue his own appeal, said this holding was in "sharp contrast" to his "recognized privilege of conducting his own defense at the trial." The United States Courts of Appeals have repeatedly held that the right of self-representation is protected by the Bill |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | that the right of self-representation is protected by the Bill of Rights. In United the Court of Appeals for the Second Circuit emphasized that the Sixth Amendment grants the accused the rights of confrontation, of compulsory process for witnesses in his favor, and of assistance of counsel as minimum procedural requirements in federal criminal prosecutions. The right to the assistance of counsel, the court concluded, was intended to supplement the other rights of the defendant, and not to impair "the absolute and primary right to conduct one's own defense in propria persona." The court found support for its decision in the language of the 1789 federal statute; in the statutes and rules governing criminal procedure, see 28 U.S. C. 1654, and Fed. Rule Crim. Proc. 44; in the many state constitutions that expressly guarantee self-representation; *817 and in this Court's recognition of the right in Adams and Price. On these grounds, the Court of Appeals held that implicit in the Fifth Amendment's guarantee of due process of law, and implicit also in the Sixth Amendment's guarantee of a right to the assistance of counsel, is "the right of the accused personally to manage and conduct his own defense in a criminal case." 330 F.2d, See also United States ex rel. (CA2); (CA5); United 4 F.2d 1165, (CA6); 8 F.2d 100, (CA7); United (CA8); (CA9); compare United States v. Dougherty, 4 U. S. App. D. C. 76, 86, (intimating right is constitutional but finding it unnecessary to reach issue) with -366 (plurality opinion stating right is no more than statutory in nature). This Court's past recognition of the right of self-representation, the federal-court authority holding the right to be of constitutional dimension, and the state constitutions pointing to the right's fundamental nature form a consensus not easily ignored. "[T]he mere fact that a path is a beaten one," Mr. Justice Jackson once observed, "is a persuasive reason for following it."[13] We confront here a nearly universal conviction, on the part of our people as well as our courts, that forcing a lawyer upon an unwilling defendant is contrary to his basic right to defend himself if he truly wants to do so. *818 III This consensus is soundly premised: The right of self-representation finds support in the structure of the Sixth Amendment, as well as in the English and colonial jurisprudence from which the Amendment emerged. A The Sixth Amendment includes a compact statement of the rights necessary to a full defense: "In all criminal prosecutions, the accused shall enjoy the right to be informed of the nature and cause of |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | right to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence." Because these rights are basic to our adversary system of criminal justice, they are part of the "due process of law" that is guaranteed by the Fourteenth Amendment to defendants in the criminal courts of the States.[14] The rights to notice, confrontation, and compulsory process, when taken together, guarantee that a criminal charge may be answered in a manner now considered fundamental to the fair administration of American justice through the calling and interrogation of favorable witnesses, the cross-examination of adverse witnesses, and the orderly introduction of evidence. In short, the Amendment constitutionalizes the right in an adversary criminal trial to make a defense as we know it. See (Harlan, J., concurring). *819 The Sixth Amendment does not provide merely that a defense shall be made for the accused; it grants to the accused personally the right to make his defense. It is the accused, not counsel, who must be "informed of the nature and cause of the accusation," who must be "confronted with the witnesses against him," and who must be accorded "compulsory process for obtaining witnesses in his favor." Although not stated in the Amendment in so many words, the right to self-representationto make one's own defense personallyis thus necessarily implied by the structure of the Amendment.[] The right to defend *820 is given directly to the accused; for it is he who suffers the consequences if the defense fails. The counsel provision supplements this design. It speaks of the "assistance" of counsel, and an assistant, however expert, is still an assistant. The language and spirit of the Sixth Amendment contemplate that counsel, like the other defense tools guaranteed by the Amendment, shall be an aid to a willing defendantnot an organ of the State interposed between an unwilling defendant and his right to defend himself personally. To thrust counsel upon the accused, against his considered wish, thus violates the logic of the Amendment. In such a case, counsel is not an assistant, but a master;[16] and the right to make a defense is stripped of the personal character upon which the Amendment insists. It is true that when a defendant chooses to have a lawyer manage and present his case, law and tradition may allocate to the counsel the power to make binding decisions of trial strategy in many areas. Cf. ; ; This allocation can only |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | in many areas. Cf. ; ; This allocation can only be justified, however, by the defendant's consent, at the *821 outset, to accept counsel as his representative. An unwanted counsel "represents" the defendant only through a tenuous and unacceptable legal fiction. Unless the accused has acquiesced in such representation, the defense presented is not the defense guaranteed him by the Constitution, for, in a very real sense, it is not his defense. B The Sixth Amendment, when naturally read, thus implies a right of self-representation. This reading is reinforced by the Amendment's roots in English legal history. In the long history of British criminal jurisprudence, there was only one tribunal that ever adopted a practice of forcing counsel upon an unwilling defendant in a criminal proceeding. The tribunal was the Star Chamber. That curious institution, which flourished in the late 16th and early 17th centuries, was of mixed executive and judicial character, and characteristically departed from common-law traditions. For those reasons, and because it specialized in trying "political" offenses, the Star Chamber has for centuries symbolized disregard of basic individual rights.[17] The Star Chamber not merely allowed but required defendants to have counsel. The defendant's answer to an indictment was not accepted unless it was signed by counsel. When counsel refused to sign the answer, for whatever reason, the defendant was *822 considered to have confessed.[18] Stephen commented on this procedure: "There is something specially repugnant to justice in using rules of practice in such a manner as *823 to debar a prisoner from defending himself, especially when the professed object of the rules so used is to provide for his defense." 1 J. Stephen, A History of the Criminal Law of England 3-342 (1883). The Star Chamber was swept away in 16 by the revolutionary fervor of the Long Parliament. The notion of obligatory counsel disappeared with it. By the common law of that time, it was not representation by counsel but self-representation that was the practice in prosecutions for serious crime. At one time, every litigant was required to "appear before the court in his own person and conduct his own cause in his own words."[19] While a right to counsel developed early in civil cases and in cases of misdemeanor, a prohibition against the assistance of counsel continued for centuries in prosecutions for felony or treason.[20] Thus, in the 16th and 17th centuries the accused felon or traitor stood alone, with neither counsel nor the benefit of other rightsto notice, confrontation, and compulsory processthat we now associate with a genuinely fair adversary proceeding. The trial was merely |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | with a genuinely fair adversary proceeding. The trial was merely a "long argument between the prisoner and the *824 counsel for the Crown."[21] As harsh as this now seems, at least "the prisoner was allowed to make what statements he liked. Obviously this public oral trial presented many more opportunities to a prisoner than the secret enquiry based on written depositions, which, on the continent, had taken the place of a trial."[22] With the Treason Act of 1695, there began a long and important era of reform in English criminal procedure. The 1695 statute granted to the accused traitor the rights to a copy of the indictment, to have his witnesses testify under oath, and "to make full Defense, by Counsel learned in the Law."[23] It also provided for court appointment of counsel, but only if the accused so desired.[24]*825 Thus, as new rights developed, the accused retained his established right "to make what statements he liked."[25] The right to counsel was viewed as guaranteeing a choice between representation by counsel and the traditional practice of self-representation. The ban on counsel in felony cases, which had been substantially eroded in the courts,[26] was finally eliminated by statute in 1836.[27] In more recent years, Parliament has provided for court appointment of counsel in serious criminal cases, but only at the accused's request.[28] At no point in this process of reform in England was counsel ever forced upon the *826 defendant. The common-law rule, succinctly stated in R. v. Woodward, [1944] K. B. 118, 119, [1944] 1 All E. R. 9, 160, has evidently always been that "no person charged with a criminal offence can have counsel forced upon him against his will."[29] See 3 Halsbury's Laws of England ¶ 11, pp. 624-625 (4th ed. 1973); R. v. Maybury, 11 L. T. R. (n. s.) 566 (Q. B. 1865). C In the American Colonies the insistence upon a right of self-representation was, if anything, more fervent than in England. The colonists brought with them an appreciation of the virtues of self-reliance and a traditional distrust of lawyers. When the Colonies were first settled, "the lawyer was synonymous with the cringing Attorneys-General and Solicitors-General of the Crown and the arbitrary Justices of the King's Court, all bent on the conviction of those who opposed the King's prerogatives, and twisting the law to secure convictions."[30] This prejudice gained strength in the Colonies where "distrust *827 of lawyers became an institution."[31] Several Colonies prohibited pleading for hire in the 17th century.[32] The prejudice persisted into the 18th century as "the lower classes came to identify |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | the 18th century as "the lower classes came to identify lawyers with the upper class."[33] The years of Revolution and Confederation saw an upsurge of antilawyer sentiment, a "sudden revival, after the War of the Revolution, of the old dislike and distrust of lawyers as a class."[34] In the heat of these sentiments the Constitution was forged. This is not to say that the Colonies were slow to recognize the value of counsel in criminal cases. Colonial judges soon departed from ancient English practice and allowed accused felons the aid of counsel for their defense.[35] At the same time, however, the basic right of *828 self-representation was never questioned. We have found no instance where a colonial court required a defendant in a criminal case to accept as his representative an unwanted lawyer. Indeed, even where counsel was permitted, the general practice continued to be self-representation.[36] The right of self-representation was guaranteed in many colonial charters and declarations of rights. These early documents establish that the "right to counsel" meant to the colonists a right to choose between pleading through a lawyer and representing oneself.[37] After the *829 Declaration of Independence, the right of self-representation, along with other rights basic to the making of a defense, entered the new state constitutions in wholesale fashion.[38] The right to counsel was clearly thought to *830 supplement the primary right of the accused to defend himself,[39] utilizing his personal rights to notice, confrontation, and compulsory process. And when the Colonies or newly independent States provided by statute rather than by constitution for court appointment of counsel in criminal cases, they also meticulously preserved the right of the accused to defend himself personally.[40] *831 The recognition of the right of self-representation was not limited to the state lawmakers. As we have noted, 35 of the Judiciary Act of 1789, signed one day before the Sixth Amendment was proposed, guaranteed in the federal courts the right of all parties to "plead and manage their own causes personally or by the assistance of counsel." See 28 U.S. C. 1654. At the time James Madison drafted the Sixth Amendment, some state constitutions guaranteed an accused the right to be heard "by himself" and by counsel; others provided that an accused was to be "allowed" counsel.[] The various state proposals for the Bill of Rights had similar variations in terminology.[42]*832 In each case, however, the counsel provision was embedded in a package of defense rights granted personally to the accused. There is no indication that the differences in phrasing about "counsel" reflected any differences of principle about self-representation. |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | phrasing about "counsel" reflected any differences of principle about self-representation. No State or Colony had ever forced counsel upon an accused; no spokesman had ever suggested that such a practice would be tolerable, much less advisable. If anyone had thought that the Sixth Amendment, as drafted, failed to protect the long-respected right of self-representation, there would undoubtedly have been some debate or comment on the issue. But there was none. In sum, there is no evidence that the colonists and the Framers ever doubted the right of self-representation, or imagined that this right might be considered inferior to the right of assistance of counsel. To the contrary, the colonists and the Framers, as well as their English ancestors, always conceived of the right to counsel as an "assistance" for the accused, to be used at his option, in defending himself. The Framers selected in the Sixth Amendment a form of words that necessarily implies the right of self-representation. That conclusion is supported by centuries of consistent history. IV There can be no blinking the fact that the right of an accused to conduct his own defense seems to cut against the grain of this Court's decisions holding that the Constitution requires that no accused can be convicted and imprisoned unless he has been accorded the right to the assistance of counsel. See ; ; ; For it is surely true that the basic thesis of those decisions is that the help of a lawyer is essential to assure *833 the defendant a fair trial.[43] And a strong argument can surely be made that the whole thrust of those decisions must inevitably lead to the conclusion that a State may constitutionally impose a lawyer upon even an unwilling defendant. But it is one thing to hold that every defendant, rich or poor, has the right to the assistance of counsel, and quite another to say that a State may compel a defendant to accept a lawyer he does not want. The value of state-appointed counsel was not unappreciated by the Founders,[44] yet the notion of compulsory counsel was utterly foreign to them. And whatever else may be said of those who wrote the Bill of Rights, surely there can be no *834 doubt that they understood the inestimable worth of free choice.[45] It is undeniable that in most criminal prosecutions defendants could better defend with counsel's guidance than by their own unskilled efforts. But where the defendant will not voluntarily accept representation by counsel, the potential advantage of a lawyer's training and experience can be realized, if at all, only imperfectly. |
Justice Stewart | 1,975 | 18 | majority | Faretta v. California | https://www.courtlistener.com/opinion/109309/faretta-v-california/ | and experience can be realized, if at all, only imperfectly. To force a lawyer on a defendant can only lead him to believe that the law contrives against him. Moreover, it is not inconceivable that in some rare instances, the defendant might in fact present his case more effectively by conducting his own defense. Personal liberties are not rooted in the law of averages. The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of "that respect for the individual which is the lifeblood of the law." (BRENNAN, J., concurring).[46] *835 V When an accused manages his own defense, he relinquishes, as a purely factual matter, many of the traditional benefits associated with the right to counsel. For this reason, in order to represent himself, the accused must "knowingly and intelligently" forgo those relinquished benefits. -465. Cf. Von (plurality opinion of Black, J.). Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that "he knows what he is doing and his choice is made with eyes open." 317 U. S., at Here, weeks before trial, Faretta clearly and unequivocally declared to the trial judge that he wanted to represent himself and did not want counsel. The record affirmatively shows that Faretta was literate, competent, and understanding, and that he was voluntarily exercising his informed free will. The trial judge had warned Faretta that he thought it was a mistake not to accept *836 the assistance of counsel, and that Faretta would be required to follow all the "ground rules" of trial procedure.[47] We need make no assessment of how well or poorly Faretta had mastered the intricacies of the hearsay rule and the California code provisions that govern challenges of potential jurors on voir dire.[48] For his technical legal knowledge, as such, was not relevant to an assessment of his knowing exercise of the right to defend himself. In forcing Faretta, under these circumstances, to accept against his will a state-appointed public defender, the California courts deprived him of his constitutional right to conduct his own defense. Accordingly, the judgment before us is vacated, and |
Justice Scalia | 1,993 | 9 | majority | Local 144 Nursing Home Pension Fund v. Demisay | https://www.courtlistener.com/opinion/112882/local-144-nursing-home-pension-fund-v-demisay/ | This case presents the question whether a federal district court may issue an injunction pursuant to 302 of the Labor Management Relations Act, 1947 (LMRA), as amended, 29 U.S. C. 186 (1988 ed. and Supp. III), requiring the trustees of a multiemployer trust fund to transfer assets from that fund to a new multiemployer trust fund established by employers who broke away from the first fund. I Respondents include a group of employers that, until 1981, were members of a multiemployer bargaining association, the Greater New York Health Care Facilities Association, Inc. (Greater Employer Association). Two trust fundsthe *583 Local 144 Nursing Home Pension Fund and the New York City Nursing Home-Local 144 Welfare Fund (collectively, Greater Funds)were established pursuant to collectivebargaining agreements between the Greater Employer Association and the relevant union, Local 144 of the Hotel, Hospital, Nursing Home and Allied Services Employees Union, Service Employees International Union, AFLCIO (Local 144). Prior to 1981, the respondent employers made contributions to the Greater Funds on behalf of their employees in accordance with the terms of collective-bargaining agreements negotiated between the Greater Employer Association and Local 144. In 1981, the respondent employers broke away from the Greater Employer Association and executed independent collective-bargaining agreements with Local 144. The initial agreements required continuing employer contributions to the Greater Funds, but those concluded in provided for establishment of a new set of trust funds, the Local 144 Southern New York Residential Health Care Facilities Association Pension Fund and the Local 144 Southern New York Residential Health Care Facilities Association Welfare Fund (Southern Funds). At approximately the same time, the respondent employers ended their participation in the Greater In negotiating the transfer from the Greater Funds to the Southern Funds, the "primary concern" of Local 144 was to make sure that the shift would not cause its members to lose benefits. To address that concern, the respondent employers guaranteed in their collective-bargaining agreements that the Southern Funds would recognize all credited service time earned under the Greater Funds and, more generally, that employees would not lose any benefits as a result of the withdrawal from the Greater See That guarantee obviously created some peculiar liabilities for the Southern For example, an employee who had earned nine years' credited service time under the Greater *584 Funds would, after just one more year of service, acquire vested rights to pension benefits pursuant to the 10-year vesting requirement of the Southern Fundseven though the Southern Funds had received only one year of employer contributions for that employee. See The Southern Funds' assumption of these liabilities, however, did |
Justice Scalia | 1,993 | 9 | majority | Local 144 Nursing Home Pension Fund v. Demisay | https://www.courtlistener.com/opinion/112882/local-144-nursing-home-pension-fund-v-demisay/ | See The Southern Funds' assumption of these liabilities, however, did not alter the obligations of the Greater Funds, which were not parties to the collective-bargaining agreements: They remained liable to the departing employees for all vested benefits. See and n. 5, 65; 935 F.2d, at -531. To help cover the Southern Funds' liabilities and in general to help finance the change from the Greater Funds to the Southern Funds, the respondent employersjoined by several of their employees and the trustees of the Southern Fundsbrought this action to compel petitioners, the Greater Funds and the Greater Funds' trustees, to transfer an appropriate fractional share of the Greater Funds' assets to the Southern They asserted right to relief under the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 1001 et seq. (1988 ed. and Supp. III), and under 302 of the LMRA; only the latter claim is at issue here. The relevant portions of 302 are set forth in the margin.[1] To describe respondents' claim, it is necessary to sketch *585 the structure of that provision. Subsection (a) prohibits an employer (or an association of employers, such as the Greater Employer Association) from, inter alia, making payments to any representative of its employees, including the employees' union and union officials. Paragraph (b)(1) is the "reciprocal" of subsection (a), making it unlawful for employee representatives to receive the payments prohibited by subsection (a). The prohibitions of subsection (a) and paragraph (b)(1) are drawn broadly and would prevent payments to union employee health and welfare funds such as those at issue here. See generally United ; Goetz, Employee Benefit Trusts under Section 302 *586 of Labor Management Relations Act, Subsection 302(c), however, provides exceptions to the prohibitions. Most significantly for our purposes, paragraph (c)(5) excepts payments to an employee trust fund so long as certain conditions are met, including that the trust fund be "established for the sole and exclusive benefit of the employees," and that the payments be "held in trust for the purpose of paying" employee benefits. Respondents' theory is that the Greater Funds cannot meet those last quoted conditions unless they transfer to the Southern Funds the portion of their reserves that is attributable to the respondents' past contributions. If they fail to do so, according to respondents, they will suffer from a "structural defect" which can be remedied by federal courts pursuant to the power conferred by 302(e) to "restrain violations of this section." The District Court granted petitioners' motion for summary judgment. Though it agreed with respondents that it had power to "review a challenge that |
Justice Scalia | 1,993 | 9 | majority | Local 144 Nursing Home Pension Fund v. Demisay | https://www.courtlistener.com/opinion/112882/local-144-nursing-home-pension-fund-v-demisay/ | respondents that it had power to "review a challenge that the Greater Funds are structurally deficient under [ 302(c)(5)'s] `sole and exclusive' benefit standard," 710 F. Supp., 62, it found no "structural defect," since there was no allegation of corruption in the Greater Funds and since the transfer of assets would not further any collective-bargaining policies. The Court of Appeals reversed, holding that the Greater Funds "would suffer from a `structural defect'" unless the funds transferred a portion of their assets to the Southern It remanded for the District Court "to shape an appropriate remedy guided by the principle that a fair portion of the reserves reflecting contributions made to the Greater Funds on behalf of the [respondents' employees] should be reallocated to the Southern " We granted certiorari, *587 II Both the District Court and the Court of Appeals relied on the Second Circuit's earlier decision in Local 50, Bakery and Confectionery Workers Union, which held that federal courts have "`jurisdiction under [ 302(e)] to enforce a trust fund's compliance with the statutory standards set forth in subsection (c)(5) by eliminating those offensive features in the structure or operation of the trust that would cause it to fail to qualify for a (c)(5) exception.'" ). Local 50 and the decision below are among a large body of conflicting cases bearing upon federal courts' powers under 302(e) to supervise the administration of 302(c)(5) trust funds. A number of courts have held that 302(e) confers broad supervisory powers. See, e. g., ; Others have held that it confers no supervisory powers at all. See, e. g., ; ; Still others have acknowledged supervisory powers limited in various respects. See ; Our most recent case in this area expressly reserved the question. See Mine Workers Health and Retirement We hold today that 302(e) does not provide authority for a federal court to issue injunctions against a trust fund or its trustees requiring the trust funds to be administered in the manner described in 302(c)(5). By its unmistakable *588 language, 302(e) provides district courts with jurisdiction "to restrain violations of this section." A "violation" of 302 occurs when the substantive restrictions in 302(a) and (b) are disobeyed, which happens, not when funds are administered by the trust fund, but when they are "pa[id], len[t], or deliver[ed]" to the trust fund, 302(a), or when they are "receive[d], or accept[ed]" by the trust fund, or "request[ed], [or] demand[ed]" for the trust fund, 302(b)(1). And the exception to violation set forth in paragraph (c)(5) relates, not to the purpose for which the trust fund is in |
Justice Scalia | 1,993 | 9 | majority | Local 144 Nursing Home Pension Fund v. Demisay | https://www.courtlistener.com/opinion/112882/local-144-nursing-home-pension-fund-v-demisay/ | to the purpose for which the trust fund is in fact used (an unrestricted fund that happens to be used "for the sole and exclusive benefit of the employees" does not qualify); but rather to the purpose for which the trust fund is "established," 302(c)(5), and for which the payments are "held in trust," 302(c)(5)(A).[2] The trustees' failure to *589 comply with these latter purposes may be a breach of their contractual or fiduciary obligations and may subject them to suit for such breach; but it is no violation of 302.[3] A few courts and some academic commentators have drawn an analogy between 301 and 302 of the LMRA and have suggested that, as 301 has been held to create a federal common law governing labor contracts, see Textile so too should 302 be viewed as authorizing the development of "a specialized body of federal common law of trust administration." Goetz, Developing Federal Labor Law of Welfare and Pension Plans, One court *590 has said, quoting Lincoln that "jurisdiction in a case of this kind can be found within the `penumbra of express statutory mandate' of Section 302." quoted approvingly in (CA9), cert. denied, U.S. 874 See also cert. denied, A comparison of 302(e) with 301(a) shows that the analogy to Lincoln is inapt. The latter provides a federal cause of action for any "violation of contracts between an employer and a labor organization." Subsection 302(e), by contrast, provides no cause of action for a "violation of the fiduciary duties imposed pursuant to an employee benefit trust fund"; rather, it allows federal courts to "restrain violations" of 302, which, as we have explained, occur when payments to a nonqualifying trust are made or received. The text of 302 requires that, if payments are to be exempt from its prohibition, they must be "held in trust for the purpose of paying" employee benefits and the trust must be "established" for the sole and exclusive benefit of the employees. There is nothing to suggest that this had the ambitious purpose of establishing an entire body of federal trust law, rather than merely describing the character of the trust to which payments are allowed, leaving it to state law to determine when breaches of that trust have occurred and how they may be remedied. As observed by the court in n. 14, 302(c)(5) is akin to a provision such as 401(a) of the Internal Revenue Code, 26 U.S. C. 401(a) (1988 ed. and Supp. III), which (in connection with 26 U.S. C. 501 (1988 ed. and Supp. III)) provides a tax exemption for |
Justice Scalia | 1,993 | 9 | majority | Local 144 Nursing Home Pension Fund v. Demisay | https://www.courtlistener.com/opinion/112882/local-144-nursing-home-pension-fund-v-demisay/ | (1988 ed. and Supp. III)) provides a tax exemption for employer-created pension trust funds so long as, inter alia, they are "created for the exclusive benefit of [the employer's] employees or their beneficiaries." No one would contend that that provision confers *591 upon the federal courts authority to govern and enforce the trusts, and there is no more reason to reach such a conclusion here. Respondents point to our statement in -427, that "[c]ontinuing compliance with [the standards of 302(c)(5)] in the administration of welfare funds was made explicitly enforceable in federal district courts by civil proceedings under 302(e)." See also 455 U. S., at The statement is perhaps susceptible of the reading that "compliance" was "made enforceable" by authorizing district courts to prohibit further payments to an entity that was not established, or does not hold its funds in trust, for the requisite purposes. But in any case, Arroyo was a criminal prosecution brought under 302(d), and the statement was therefore pure dictum.[4] Also dictum was our statement in later quoted in that "the `sole purpose' of 302(c)(5) is to ensure that employee benefit trust funds `are legitimate trust funds, used actually for the specified benefits to the employees of the employers who contribute to them'" (Emphasis added.) This obiter quotation of a line from the floor debate on the LMRA cannot convert (1) a *592 statutory statement of trust obligations that must exist to obtain an exemption into (2) a statutory authorization to enforce trust obligations.[5] Consistently with the text of 302(c)(5), and the structure of 302 in general, we view the "sole and exclusive benefit" and "held in trust" provisions of that paragraph as neither creating nor imposing a federal trust law standard, but rather as simply requiring a trust obligation for the specified purposes, defined and enforced originally under state law, see Restatement (Second) of Trusts 170(1) and now under ERISA.[6] Cf. Amax Respondents do not deny that the Greater Funds are held subject to such a trust obligation. The fiduciaries of the Greater Funds are subject to the fiduciary obligations of ERISA, including the so-called exclusive benefit requirement of 29 U.S. C. 1104(a)(1)(i), and are liable under 29 U.S. C. 1109(a) to legal and equitable remedies for failure in those obligations. Since the Greater Funds are entities that qualify under 302(c)(5), equitable relief under 302(e) restraining future payments to them would not be appropriate. *593 In addition to the 302 claim, respondents' complaint asserted two ERISA claims, one based on ERISA's asset transfer rules, 29 U.S. C. 1414, and the other on ERISA's above-mentioned fiduciary |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | * In this case, a Federal District Court enjoined a state court from considering a plaintiff’s request to approve a class action. The District Court did so because it had earlier denied a motion to certify a class in a related case, brought by a different plaintiff against the same defen dant alleging similar claims. The federal court thought its injunction appropriate to prevent relitigation of the issue it had decided. We hold to the contrary. In issuing this order to a state court, the federal court exceeded its authority under the “relitigation exception” to the Anti-Injunction Act. That statutory provision permits a federal court to enjoin a state proceeding only in rare cases, when necessary to “pro tect or effectuate [the federal court’s] judgments.” 28 U.S. C. Here, that standard was not met for two reasons. First, the issue presented in the state court was not identical to the one decided in the federal tribunal. And second, the plaintiff in the state court did not have the requisite connection to the federal suit to be bound by —————— * JUSTICE THOMAS joins Parts I and II–A of this opinion. 2 SMITH v. BAYER CORP. Opinion of the Court the District Court’s judgment. I Because the question before us involves the effect of a former adjudication on this case, we begin our statement of the facts not with this lawsuit, but with another. In August 2001, George McCollins sued respondent Bayer Corporation in the Circuit Court of Cabell County, West Virginia, asserting various state-law claims arising from Bayer’s sale of an allegedly hazardous prescription drug called Baycol (which Bayer withdrew from the market that same month). McCollins contended that Bayer had vio lated West Virginia’s consumer-protection statute and the company’s express and implied warranties by selling him a defective product. And pursuant to West Virginia Rule of Civil Procedure 23 (2011), McCollins asked the state court to certify a class of West Virginia residents who had also purchased Baycol, so that the case could proceed as a class action. Approximately one month later, the suit now before us began in a different part of West Virginia. Petitioners Keith Smith and Shirley Sperlazza (Smith for short) filed state-law claims against Bayer, similar to those raised in McCollins’ suit, in the Circuit Court of Brooke County, West Virginia. And like McCollins, Smith asked the court to certify under West Virginia’s Rule 23 a class of Baycol purchasers residing in the State. Neither Smith nor McCollins knew about the other’s suit. In January 2002, Bayer removed McCollins’ case to the United States District |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | 2002, Bayer removed McCollins’ case to the United States District Court for the Southern District of West Virginia on the basis of diversity jurisdiction. See 28 U.S. C. 1441. The case was then transferred to the District of Minnesota pursuant to a preexisting order of the Judicial Panel on Multi-District Litigation, which had consolidated all federal suits involving Baycol (num bering in the tens of thousands) before a single District Cite as: 564 U. S. (2011) 3 Opinion of the Court Court Judge. See Bayer, however, could not remove Smith’s case to federal court because Smith had sued several West Virginia defendants in addition to Bayer, and so the suit lacked complete diversity. See Smith’s suit thus remained in the state court house in Brooke County. Over the next six years, the two cases proceeded along their separate pretrial paths at roughly the same pace. By both courts were preparing to turn to their respec tive plaintiffs’ motions for class certification. The Federal District Court was the first to reach a decision. Applying Federal Rule of Civil Procedure 23,2 the Dis trict Court declined to certify McCollins’ proposed class of West Virginia Baycol purchasers. The District Court’s reasoning proceeded in two steps. The court first ruled that, under West Virginia law, each plaintiff would have to prove “actual injury” from his use of Baycol to recover. App. to Pet. for Cert. 44a. The court then held that be cause the necessary showing of harm would vary from plaintiff to plaintiff, “individual issues of fact predomi nate[d]” over issues common to all members of the pro posed class, and so the case was not suitable for class treatment. at 45a. In the same order, the District Court also dismissed McCollins’ claims on the merits in light of his failure to demonstrate physical injury from his use of Baycol. McCollins chose not to appeal. Although McCollins’ suit was now concluded, Bayer asked the District Court for another order based upon it, —————— 1 The Class Action Fairness Act of 2005, which postdates and therefore does not govern this lawsuit, now enables a defendant to remove to federal court certain class actions involving nondiverse parties. See 28 U.S. C. 1453(b); see also infra, at 1. 2 Although McCollins had originally sought certification under West Virginia Rule of Civil Procedure 23 (2011), federal procedural rules govern a case that has been removed to federal court. See Shady Grove Orthopedic Associates, P. A. v. Allstate Ins. Co., 559 U. S. 4 SMITH v. BAYER CORP. Opinion of the Court this one affecting Smith’s case in |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | Opinion of the Court this one affecting Smith’s case in West Virginia. In a motion—receipt of which first apprised Smith of McCol lins’ suit—Bayer explained that the proposed class in Smith’s case was identical to the one the federal court had just rejected. Bayer therefore requested that the federal court enjoin the West Virginia state court from hearing Smith’s motion to certify a class. According to Bayer, that order was appropriate to protect the District Court’s judgment in McCollins’ suit denying class certification. The District Court agreed and granted the The Court of Appeals for the Eighth Circuit affirmed. In re Baycol Prods. Litigation, The court noted that the Anti-Injunction Act generally prohib its federal courts from enjoining state court proceedings. But the court held that the Act’s relitigation exception authorized the injunction here because ordinary rules of issue preclusion barred Smith from seeking certification of his proposed class. According to the court, Smith was invoking a similar class action rule as McCollins had used to seek certification “of the same class” in a suit alleging “the same legal theories,” ; the issue in the state court therefore was “sufficiently identical” to the one the federal court had decided to warrant preclusion, In addition, the court held, the parties in the two proceedings were sufficiently alike: Because Smith was an unnamed member of the class McCollins had proposed, and because their “interests were aligned,” Smith was appropriately bound by the federal court’s judgment. We granted certiorari, 561 U. S. because the order issued here implicates two circuit splits arising from application of the Anti-Injunction Act’s relitigation excep tion. The first involves the requirement of preclusion law that a subsequent suit raise the “same issue” as a previous case.3 The second concerns the scope of the rule that a —————— 3 In re Baycol Prods. Litigation, (CA8 Cite as: 564 U. S. (2011) 5 Opinion of the Court court’s judgment cannot bind nonparties.4 We think the District Court erred on both grounds when it granted the injunction, and we now reverse. II The Anti-Injunction Act, first enacted in 193, provides that “A court of the United States may not grant an injunc tion to stay proceedings in a State court except as expressly authorized by Act of Congress, or where necessary in aid of its jurisdiction, or to protect or effectuate its judgments.” 28 U.S. C. The statute, we have recognized, “is a necessary concomi tant of the Framers’ decision to authorize, and Congress’ decision to implement, a dual system of federal and state courts.” Chick Kam 146 And the Act’s |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | federal and state courts.” Chick Kam 146 And the Act’s core message is one of respect for state courts. The Act broadly commands that those tribunals “shall remain free from interference by federal courts.” Atlantic Coast R. Co. v. Locomotive Engi —————— ) (case below) (holding that two cases involve the same issue when “[t]he state and federal [class] certification rules are not signifi cantly different”), with J. R. Clearwater (holding that two cases implicate different issues even when “[the state rule] is modeled on the Federal Rules” because a “[state] court might well exercise [its] discretion in a different manner”). 4 593 F.3d, (“[T]he denial of class certification is binding on unnamed [putative] class members” because they are “in privity to [the parties] in the prior action”) and In re Bridge stone/, Inc., Tires Prods. Liability Litigation, 68–69 (same), with In re Ford Motor Co., 1245 (CA11 2006) (holding that “[t]he denial of class certification” prevents a court from “binding” anyone other than “the parties appear ing before it”) and In re General Motors Corp. Pick-Up Truck Fuel Tank Prods. Liability Litigation, (holding that putative “class members are not parties” and so cannot be bound by a court’s ruling when “there is no class pending”). 6 That edict is subject to only “three specifically defined exceptions.” And those exceptions, though designed for important purposes, “are narrow and are ‘not [to] be enlarged by loose statutory construction.’ ” Chick Kam 486 U.S., at 146 (quoting Atlantic Coast ; alteration in original). Indeed, “[a]ny doubts as to the propriety of a federal injunction against state court pro ceedings should be resolved in favor of permitting the state courts to proceed.” This case involves the last of the Act’s three exceptions, known as the relitigation exception. That exception is de signed to implement “well-recognized concepts” of claim and issue preclusion. Chick Kam The provision authorizes an injunction to prevent state litigation of a claim or issue “that previously was pre sented to and decided by the federal court.” But in applying this exception, we have taken special care to keep it “strict and narrow.” After all, a court does not usually “get to dictate to other courts the preclu sion consequences of its own judgment.” 18 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure p. 82 (hereinafter Wright & Miller). Deciding whether and how prior litigation has preclusive effect is usually the bailiwick of the second court (here, the one in West Virginia). So issuing an injunction under the relitigation exception is resorting to heavy artillery.5 For that reason, |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | relitigation exception is resorting to heavy artillery.5 For that reason, every benefit of the doubt goes toward the state court, see Atlantic Coast 29; an injunction can issue only if preclusion is clear beyond —————— 5 That is especially so because an injunction is not the only way to correct a state trial court’s erroneous refusal to give preclusive effect to a federal judgment. As we have noted before, “the state appellate courts and ultimately this Court” can review and reverse such a ruling. See Atlantic Coast R. 28 Cite as: 564 U. S. (2011) Opinion of the Court peradventure. The question here is whether the federal court’s rejec tion of McCollins’ proposed class precluded a later adjudi cation in state court of Smith’s certification motion. For the federal court’s determination of the class issue to have this preclusive effect, at least two conditions must be met.6 First, the issue the federal court decided must be the same as the one presented in the state tribunal. See 18 Wright & Miller at 412. And second, Smith must have been a party to the federal suit, or else must fall within one of a few discrete exceptions to the general rule against binding nonparties. See 18A 30. In fact, as we will explain, the issues before the two courts were not the same, and Smith was neither a party nor the ex ceptional kind of nonparty who can be bound. So the courts below erred in finding the certification issue pre cluded, and erred all the more in thinking an injunction appropriate. —————— 6 We have held that federal common law governs the preclusive effect of a decision of a federal court sitting in diversity. See Semtek Int’l Inc. v. Lockheed Martin Corp., Smith assumes that federal common law should here incorporate West Virginia’s preclusion law, see Brief for Petitioners 15–16, whereas Bayer favors looking only to federal rules of preclusion because of the federal inter ests at stake in this case, see Brief for Respondent 18. We do not think the question matters here. Neither party identifies any way in which federal and state principles of preclusion law differ in any relevant respect. Nor have we found any such divergence. e.g., (describing elements of issue preclusion), with S.E.2d 114, 120 (1995) (same). We therefore need not decide whether, in general, federal common law ought to incorporate state law in situations such as this. Because we rest our decision on the Anti-Injunction Act and the principles of issue preclusion that inform it, we do not consider Smith’s argument, based on Phillips |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | it, we do not consider Smith’s argument, based on Phillips Petroleum (5), that the District Court’s action violated the Due Process Clause. 8 SMITH v. BAYER CORP. Opinion of the Court A In our most recent case on the relitigation exception, Chick Kam v. Exxon, we applied the “same issue” requirement of preclusion law to invalidate a federal court’s The federal court had dismissed a suit involving Singapore law on grounds of forum non conveniens. After the plaintiff brought the same claim in Texas state court, the federal court issued an injunction barring the plaintiff from pursuing relief in that alternate forum. We held that the District Court had gone too far. “[A]n essential prerequisite for applying the relitigation exception,” we explained, “is that the is sues which the federal injunction insulates from litigation in state proceedings actually have been decided by the federal court.” That prerequisite, we thought, was not satisfied because the issue to be adjudicated in state court was not the one the federal court had resolved. The federal court had considered the permissibility of the claim under federal forum non conveniens principles. But the Texas courts, we thought, “would apply a significantly different forum non conveniens analysis,” ; they had in prior cases rejected the strictness of the federal doctrine. Our conclusion followed: “[W]hether the Texas state courts are an appropriate forum for [the plaintiff’s] Singapore law claims has not yet been litigated.” Because the legal standards in the two courts differed, the issues before the courts differed, and an injunction was unwarranted. The question here closely resembles the one in Chick Kam The class Smith proposed in state court mir rored the class McCollins sought to certify in federal court: Both included all Baycol purchasers resident in West Virginia. Moreover, the substantive claims in the two suits broadly overlapped: Both complaints alleged that Bayer had sold a defective product in violation of the State’s consumer protection law and the company’s war Cite as: 564 U. S. (2011) 9 Opinion of the Court ranties. So far, so good for preclusion. But not so fast: a critical question—the question of the applicable legal standard—remains. The District Court ruled that the proposed class did not meet the requirements of Federal Rule 23 (because individualized issues would predominate over common ones). But the state court was poised to consider whether the proposed class satisfied West Vir ginia Rule 23. If those two legal standards differ (as federal and state forum non conveniens law differed in Chick Kam )—then the federal court resolved an issue not before the state court. |
Justice Kagan | 2,011 | 3 | majority | Smith v. Bayer Corp. | https://www.courtlistener.com/opinion/218922/smith-v-bayer-corp/ | federal court resolved an issue not before the state court. In that event, much like in Chick Kam “whether the [West Virginia] state cour[t]” should certify the proposed class action “has not yet been litigated.” 486 U.S., The Court of Appeals and Smith offer us two competing ways of deciding whether the West Virginia and Federal Rules differ, but we think the right path lies somewhere in the middle. The Eighth Circuit relied almost exclusively on the near-identity of the two Rules’ texts. See 593 F.3d, at That was the right place to start, but not to end. Federal and state courts, after all, can and do apply iden tically worded procedural provisions in widely varying ways. If a State’s procedural provision tracks the lan guage of a Federal Rule, but a state court interprets that provision in a manner federal courts have not, then the state court is using a different standard and thus deciding a different issue. See 18 Wright & Miller at 454 (stating that preclusion is “inappropriate” when “different legal standards masquerad[e] behind similar legal labels”). At the other extreme, Smith contends that the source of law is all that matters: a different sovereign must in each and every case “have the opportunity, if it chooses, to construe its procedural rule differently.” Brief for Petitioners 22 ). But if state courts have made crystal clear 10 SMITH v. BAYER CORP. Opinion of the Court that they follow the same approach as the federal court applied, we see no need to ignore that determination; in that event, the issues in the two cases would indeed be the same. So a federal court considering whether the relitiga tion exception applies should examine whether state law parallels its federal counterpart. But as suggested earlier, see the federal court must resolve any uncer tainty on that score by leaving the question of preclusion to the state courts. Under this approach, the West Virginia Supreme Court has gone some way toward resolving the matter before us by declaring its independence from federal courts’ inter pretation of the Federal Rules—and particularly of Rule 23. In In re W. Va. Rezulin Litigation, S.E.2d 52 (In re Rezulin), the West Virginia high court considered a plaintiff’s motion to certify a class— coincidentally enough, in a suit about an allegedly defec tive pharmaceutical product. The court made a point of complaining about the parties’ and lower court’s near exclusive reliance on federal cases about Federal Rule 23 to decide the certification question. Such cases, the court cautioned, “ ‘may be persuasive, but [they are] not |
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