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Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | Travis County encompassed the same coverage issues raised in the declaratory judgment action and determined that a stay was warranted in order to avoid piecemeal litigation and to bar London Underwriters' attempts at forum shopping. London Underwriters filed a timely appeal. See Moses H. Memorial (a district court's order staying federal proceedings in favor of pending *281 state litigation is a "final decisio[n]" appealable under 28 U.S. C. 1291). The United States Court of Appeals for the Fifth Circuit affirmed. Noting that under Circuit precedent, "[a] district court has broad discretion to grant (or decline to grant) declaratory judgment," citing Torch, the Court of Appeals did not require application of the test articulated in Colorado and Moses H. under which district courts must point to "exceptional circumstances" to justify staying or dismissing federal proceedings. Citing the interests in avoiding duplicative proceedings and forum shopping, the Court of Appeals reviewed the District Court's decision for abuse of discretion, and found 41 F.3d, We granted certiorari, to resolve Circuit conflicts concerning the standard governing a district court's decision to stay a declaratory judgment action in favor of parallel state litigation, compare, e. g., Employers Ins. of (pursuant to Colorado and Moses H. a district court may not stay or dismiss a declaratory judgment action absent "exceptional circumstances"); Lumbermens Mut. Casualty with Travelers Ins. (the "exceptional circumstances" test of Colorado and Moses H. is inapplicable in declaratory judgment actions); and the applicable standard for an appellate court's review of a district court's decision to stay a declaratory judgment action, compare, e. g., United States Fidelity & Guaranty ; Christopher with Genentech, ; Cincinnati Ins. We now affirm. II Over 50 years ago, in this Court addressed circumstances virtually identical to those present in the case before us today. An insurer, anticipating a coercive suit, sought a declaration in federal court of nonliability on an insurance policy. The District Court dismissed the action in favor of pending state garnishment proceedings, to which the insurer had been added as a defendant. The Court of Appeals reversed, finding an abuse of discretion, and ordered the District Court to proceed to the merits. Reversing the Court of Appeals and remanding to the District Court, this Court held that, "[a]lthough the District Court had jurisdiction of the suit under the Federal Declaratory Judgments Act, it was under no compulsion to exercise that jurisdiction." The Court explained that "[o]rdinarily it would be uneconomical as well as vexatious for a federal court to proceed in a declaratory judgment suit where another suit is pending in a state court presenting the |
Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | another suit is pending in a state court presenting the same issues, not governed by federal law, between the same parties." The question for a district court presented with a suit under the Declaratory Judgment Act, the Court found, is "whether the questions in controversy between the parties to the federal suit, and which are not foreclosed under the applicable substantive law, can better be settled in the proceeding pending in the state court." Brillhart makes clear that district courts possess discretion in determining whether and when to entertain an action under the Declaratory Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites. Although Brillhart did not set out an exclusive list of factors governing the district court's exercise of this discretion, it did provide some useful guidance in that regard. *283 The Court indicated, for example, that in deciding whether to enter a stay, a district court should examine "the scope of the pending state court proceeding and the nature of defenses open there." This inquiry, in turn, entails consideration of "whether the claims of all parties in interest can satisfactorily be adjudicated in that proceeding, whether necessary parties have been joined, whether such parties are amenable to process in that proceeding, etc." Other cases, the Court noted, might shed light on additional factors governing a district court's decision to stay or to dismiss a declaratory judgment action at the outset. See But Brillhart indicated that, at least where another suit involving the same parties and presenting opportunity for ventilation of the same state law issues is pending in state court, a district court might be indulging in "[g]ratuitous interference," ib if it permitted the federal declaratory action to proceed. Brillhart, without more, clearly supports the District Court's decision in this (That the court here stayed, rather than dismissed, the action is of little moment in this regard, because the state court's decision will bind the parties under principles of res judicata.) Nonetheless, London Underwriters argue, and several Courts of Appeals have agreed, that intervening case law has supplanted Brillhart `s notions of broad discretion with a test under which district courts may stay or dismiss actions properly within their jurisdiction only in "exceptional circumstances." In London Underwriters' view, recent cases have established that a district court must point to a compelling reasonwhich, they say, is lacking herein order to stay a declaratory judgment action in favor of pending state proceedings. To evaluate this argument, it is necessary to examine three cases handed down several decades after In Colorado Water Conservation the Government brought an action |
Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | after In Colorado Water Conservation the Government brought an action in Federal District Court under 28 U.S. C. 1345 seeking *284 a declaration of its water rights, the appointment of a water master, and an order enjoining all uses and diversions of water by other parties. See Pet. for Cert. in Colorado Water Conservation O. T. No. 74-940, pp. 39a-40a. The District Court dismissed the action in deference to ongoing state proceedings. The Court of Appeals reversed, on the ground that the District Court had jurisdiction over the Government's suit and that abstention was inappropriate. This Court reversed again. Without discussing Brillhart, the Court began with the premise that federal courts have a "virtually unflagging obligation" to exercise the jurisdiction conferred on them by Congress. Colorado citing The Court determined, however, that a district court could nonetheless abstain from the assumption of jurisdiction over a suit in "exceptional" circumstances, and it found such exceptional circumstances on the facts of the -820. Specifically, the Court deemed dispositive a clear federal policy against piecemeal adjudication of water rights; the existence of an elaborate state scheme for resolution of such claims; the absence of any proceedings in the District Court, other than the filing of the complaint, prior to the motion to dismiss; the extensive nature of the suit; the 300-mile distance between the District Court and the situs of the water district at issue; and the prior participation of the Federal Government in related state proceedings. Two years after Colorado we decided in which a plurality of the Court stated that, while "`the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction,' " quoting a district court is "`under no compulsion to exercise that jurisdiction,' " 437 U.S., quoting Brillhart, 316 *285 U. S., Will concerned an action seeking damages for an alleged violation of federal securities laws brought in federal court during the pendency of related state proceedings. Although the case arose outside the declaratory judgment context, the plurality invoked Brillhart as the appropriate authority. Colorado according to the plurality, "in no way undermine[d] the conclusion of Brillhart that the decision whether to defer to the concurrent jurisdiction of a state court is, in the last analysis, a matter committed to the district court's discretion." Will, Justice Blackmun, concurring in the judgment, criticized the plurality for not recognizing that Colorado had undercut the "sweeping language" of Four Justices in dissent urged that the Colorado "exceptional circumstances" test supplied the governing standard. The plurality's suggestion in Will that |
Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | supplied the governing standard. The plurality's suggestion in Will that Brillhart might have application beyond the context of declaratory judgments was rejected by the Court in Moses H. Memorial In Moses H. the Court established that the Colorado "exceptional circumstances" test, rather than the more permissive Brillhart analysis, governs a district court's decision to stay a suit to compel arbitration under 4 of the Arbitration Act in favor of pending state litigation. Noting that the combination of Justice Blackmun and the four dissenting Justices in Will had made five to require application of Colorado the Court rejected the argument that Will had worked any substantive changes in the law. "`Abdication of the obligation to decide cases,' " the Court reasoned, "`can be justified only in the exceptional circumstance where the order to the parties to repair to the State court would clearly serve an important countervailing interest.' " quoting Colorado As it had in Colorado the Court articulated nonexclusive factors relevant to the existence of such exceptional circumstances, including the assumption by either court of jurisdiction *286 over a res, the relative convenience of the fora, avoidance of piecemeal litigation, the order in which jurisdiction was obtained by the concurrent fora, whether and to what extent federal law provides the rules of decision on the merits, and the adequacy of state proceedings. Evaluating each of these factors, the Court concluded that the District Court's stay of federal proceedings was, under the circumstances, inappropriate. Relying on these post-Brillhart developments, London Underwriters contend that the Brillhart regime, under which district courts have substantial latitude in deciding whether to stay or to dismiss a declaratory judgment suit in light of pending state proceedings (and need not point to "exceptional circumstances" to justify their actions), is an outmoded relic of another era. We disagree. Neither Colorado which upheld the dismissal of federal proceedings, nor Moses H. which did not, dealt with actions brought under the Declaratory Judgment Act, 28 U.S. C. 2201(a) (1988 ed., Supp. V). Distinct features of the Declaratory Judgment Act, we believe, justify a standard vesting district courts with greater discretion in declaratory judgment actions than that permitted under the "exceptional circumstances" test of Colorado and Moses H. No subsequent case, in our view, has called into question the application of the Brillhart standard to the Brillhart facts. Since its inception, the Declaratory Judgment Act has been understood to confer on federal courts unique and substantial discretion in deciding whether to declare the rights of litigants. On its face, the statute provides that a court "may declare the rights and other |
Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | provides that a court "may declare the rights and other legal relations of any interested party seeking such declaration," 28 U.S. C. 2201(a) (1988 ed., Supp. V) (emphasis added). See generally E. Borchard, Declaratory Judgments 312-314 (2d ed. 1); Borchard, Discretion to Refuse Jurisdiction of Actions for Declaratory Judgments, The statute's textual commitment to discretion, and the breadth *287 of leeway we have always understood it to suggest, distinguish the declaratory judgment context from other areas of the law in which concepts of discretion surface. See generally Shapiro, Jurisdiction and Discretion, 60 N. Y. U. L. Rev. 543 ; cf. O. Fiss & D. Rendleman, Injunctions 106-108 (2d ed. 1984) (describing courts' nonstatutory discretion, through application of open-ended substantive standards like "irreparable injury," in the injunction context). We have repeatedly characterized the Declaratory Judgment Act as "an enabling Act, which confers a discretion on the courts rather than an absolute right upon the litigant." Public Serv. Comm'n of ; see also ; Cardinal Chemical When all is said and done, we have concluded, "the propriety of declaratory relief in a particular case will depend upon a circumspect sense of its fitness informed by the teachings and experience concerning the functions and extent of federal judicial power." Acknowledging, as they must, the unique breadth of this discretion to decline to enter a declaratory judgment, London Underwriters nonetheless contend that, after Colorado and Moses H. district courts lack discretion to decline to hear a declaratory judgment suit at the outset. See Brief for Petitioners 22 ("District courts must hear declaratory judgment cases absent exceptional circumstances; district courts may decline to enter the requested relief following a full trial on the merits, if no beneficial purpose is thereby served or if equity otherwise counsels"). We are not persuaded by this distinction. London Underwriters' argument depends on the untenable proposition that a district court, knowing at the commencement of litigation that it will exercise its broad statutory discretion to decline declaratory relief, must nonetheless go through the futile exercise of hearing a case on the merits first. Nothing in the language of the Declaratory Judgment Act recommends London *288 Underwriters' reading, and we are unwilling to impute to Congress an intention to require such a wasteful expenditure of judicial resources. If a district court, in the sound exercise of its judgment, determines after a complaint is filed that a declaratory judgment will serve no useful purpose, it cannot be incumbent upon that court to proceed to the merits before staying or dismissing the action. We agree, for all practical purposes, with Professor Borchard, who |
Justice O'Connor | 1,995 | 14 | majority | Wilton v. Seven Falls Co. | https://www.courtlistener.com/opinion/117948/wilton-v-seven-falls-co/ | We agree, for all practical purposes, with Professor Borchard, who observed half a century ago that "[t]here is nothing automatic or obligatory about the assumption of `jurisdiction' by a federal court" to hear a declaratory judgment action. Borchard, Declaratory Judgments, at 313. By the Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court's quiver; it created an opportunity, rather than a duty, to grant a new form of relief to qualifying litigants. Consistent with the nonobligatory nature of the remedy, a district court is authorized, in the sound exercise of its discretion, to stay or to dismiss an action seeking a declaratory judgment before trial or after all arguments have drawn to a close.[2] In the declaratory judgment context, the normal principle that federal courts should adjudicate claims within their jurisdiction yields to considerations of practicality and wise judicial administration. III As Judge Friendly observed, the Declaratory Judgment Act "does not speak," on its face, to the question whether discretion to entertain declaratory judgment actions is vested in district courts alone or in the entire judicial system. Friendly, Indiscretion about Discretion, 31 Emory L. *, The Court of Appeals reviewed the District Court's decision to stay London Underwriters' action for abuse of discretion, and found London Underwriters urge us to follow those other Courts of Appeals that review decisions to grant (or to refrain from granting) declaratory relief de novo. See, e. g., Genentech, Inc. v. Eli Lilly & Co., 998 F. 2d, at ; Cincinnati Ins. 867 F. 2d, at We decline this invitation. We believe it more consistent with the statute to vest district courts with discretion in the first instance, because facts bearing on the usefulness of the declaratory judgment remedy, and the fitness of the case for resolution, are peculiarly within their grasp. Cf. First Options of Chicago, (citation omitted); While it may be true that sound administration of the Declaratory Judgment Act calls for the exercise of "judicial discretion, hardened by experience into rule," Borchard, Declaratory Judgments, at 293, proper application of the abuse of discretion standard on appellate review can, we think, provide appropriate guidance to district courts. In this regard, we reject London Underwriters' suggestion, Brief for Petitioners 14, that review for abuse of discretion "is tantamount to no review" at all. IV In sum, we conclude that governs this declaratory judgment action and that district courts' decisions about the propriety of hearing declaratory judgment actions, which are necessarily bound up with their decisions about the propriety *290 of granting declaratory relief, should be reviewed for abuse of |
Justice Stevens | 2,004 | 16 | concurring | Ashcroft v. American Civil Liberties Union | https://www.courtlistener.com/opinion/137005/ashcroft-v-american-civil-liberties-union/ | When it first reviewed the constitutionality of the Child Online Protection Act (COPA), the Court of Appeals held that the statute's use of "contemporary community standards" to identify materials that are "harmful to minors" was a serious, and likely fatal, defect. American Civil Liberties I have already explained at some length why I agree with that holding. See ("In the context of the Internet, community standards become a sword, rather than a shield. If a prurient appeal is offensive in a puritan village, it may be a crime to post it on the World Wide Web"). *674 I continue to believe that the Government may not penalize speakers for making available to the general World Wide Web audience that which the least tolerant communities in America deem unfit for their children's consumption, cf. and consider that principle a sufficient basis for deciding this case. But COPA's use of community standards is not the statute's only constitutional defect. Today's decision points to another: that, as far as the record reveals, encouraging deployment of user-based controls, such as filtering software, would serve Congress' interest in protecting minors from sexually explicit Internet materials as well or better than attempting to regulate the vast content of the World Wide Web at its source, and at a far less significant cost to First Amendment values. In registering my agreement with the Court's less-restrictive-means analysis, I wish to underscore just how restrictive COPA is. COPA is a content-based restraint on the dissemination of constitutionally protected speech. It enforces its prohibitions by way of the criminal law, threatening noncompliant Web speakers with a fine of as much as $50,000, and a term of imprisonment as long as six months, for each offense. (a). Speakers who "intentionally" violate COPA are punishable by a fine of up to $50,000 for each day of the violation. And because implementation of the various adult-verification mechanisms described in the statute provides only an affirmative defense, 231(c)(1), even full compliance with COPA cannot guarantee freedom from prosecution. Speakers who dutifully place their content behind age screens may nevertheless find themselves in court, forced to prove the lawfulness of their speech on pain of criminal conviction. Cf. Criminal prosecutions are, in my view, an inappropriate means to regulate the universe of materials classified as "obscene," *675 since "the line between communications which `offend' and those which do not is too blurred to identify criminal conduct." See also COPA's creation of a new category of criminally punishable speech that is "harmful to minors" only compounds the problem. It may be, as JUSTICE BREYER contends, that |
Justice Stevens | 2,004 | 16 | concurring | Ashcroft v. American Civil Liberties Union | https://www.courtlistener.com/opinion/137005/ashcroft-v-american-civil-liberties-union/ | the problem. It may be, as JUSTICE BREYER contends, that the statute's coverage extends "only slightly" beyond the legally obscene, and therefore intrudes little into the realm of protected expression. Post, at 679 But even with JUSTICE BREYER's guidance, I find it impossible to identify just how far past the already ill-defined territory of "obscenity" he thinks the statute extends. Attaching criminal sanctions to a mistaken judgment about the contours of the novel and nebulous category of "harmful to minors" speech clearly imposes a heavy burden on the exercise of First Amendment freedoms. COPA's criminal penalties are, moreover, strong medicine for the ill that the statute seeks to remedy. To be sure, our cases have recognized a compelling interest in protecting minors from exposure to sexually explicit materials. See, e. g., As a parent, grandparent, and great-grandparent, I endorse that goal without reservation. As a judge, however, I must confess to a growing sense of unease when the interest in protecting children from prurient materials is invoked as a justification for using criminal regulation of speech as a substitute for, or a simple backup to, adult oversight of children's viewing habits. In view of the gravity of the burdens COPA imposes on Web speech, the possibility that Congress might have accomplished the goal of protecting children from harmful materials by other, less drastic means is a matter to be considered with special care. With that observation, I join the opinion of the Court. |
Justice Stevens | 1,998 | 16 | concurring | Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers | https://www.courtlistener.com/opinion/118207/textron-lycoming-reciprocating-engine-div-avco-corp-v-automobile/ | If the Union's allegations are true, it seems clear that petitioner violated its statutory duty to bargain in good faith. Our conclusion that the federal courts do not have 301(a) jurisdiction over the Union's suit therefore comports with the important goal of protecting the primary jurisdiction of the National Labor Relations in resolving disputes arising from the collective-bargaining process. As the Court has long recognized, "[i]t is implicit in the entire structure of the [National Labor Relations] Act that the acts to oversee and referee the process of collective bargaining." H. K. Porter "Congress evidently considered that centralized administration of specially designed procedures was necessary to obtain uniform application of its substantive rules." The rules governing disputes that arise out of the collective-bargaining process are within the special competence of the National Labor Relations Cf. San Diego Building Trades The fact that the undoubtedly has more expertise in the collective-bargaining area than federal judges provides an additional reason for concluding that Congress meant what it said in 301(a) and for rejecting the Union's and the Government's broad reading of the "[s]uits for violation of contracts" language. Justice Breyer, concurring in part and concurring in the judgment. I agree with the first five pages of the Court's opinion. See ante, at 654-658. I also agree with the Court that the Union failed to show (or even to allege) a significant likelihood that it would strike and that Textron would then sue it *663 for breach of its collective-bargaining agreement. See ante, at 661. I write separately, however, because this factual circumstance has more significance than the Court's opinion suggests. See ante, at 658-660. Indeed, in my view, if the Union had shown that a strike and consequent employer breach-of-contract lawsuit were imminent, then the Declaratory Judgment Act, 28 U.S. C. 2201, would have authorized the District Court to adjudicate this controversy. Unlike the Court, I would not leave the matter undecided. My conclusion flows from the following two legal propositions: Proposition One. The Declaratory Judgment Act permits a federal court to "declare the rights and other legal relations of any interested party" as long as there exists an "actual controversy" that is "within [the] jurisdiction" of a federal court. 28 U.S. C. 2201(a). Proposition Two. Section 301 of the Labor Management Relations Act, 47 (LMRA), 29 U.S. C. 185(a), permits a federal court to adjudicate both an employer's claim that a contract's (i. e., a collective-bargaining agreement's) "no strike" clause forbids an ongoing strike and the related Union defense that it is free to strike because the contract itself is invalid. |
Justice Stevens | 1,998 | 16 | concurring | Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers | https://www.courtlistener.com/opinion/118207/textron-lycoming-reciprocating-engine-div-avco-corp-v-automobile/ | is free to strike because the contract itself is invalid. See ante, at 657-658; Brief for Petitioner 29 ("[B]efore enforcing an agreement, courts must adjudicate affirmative defenses such as fraud in the collective bargaining process"); Brief for United States as Amicus Curiae 13-14; Kaiser Steel Proposition One means that the Declaratory Judgment Act gives a federal court the power to declare the "rights" and "legal relations" of both union and employer where the "controversy" described in Proposition Two is "actual," e. g., where the strike and consequent employer lawsuit is imminent. Moreover, this Court has pointed out that "[f]ederal courts have regularly taken original jurisdiction over declaratory judgment suits in which, if the declaratory judgment defendant [such as the employer here] brought a coercive *664 action to enforce its rights, that suit would necessarily present a federal question." Franchise Tax Bd. of Hence the characterization of the Union's "no valid contract" claim as a "defense" that could not independently support 301 jurisdiction is beside the point. See ibid.; Public Serv. Comm'n of (52) ; see also 10A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2767, p. 741 ("federal nature of the right claimed not to exist is crucial to jurisdiction"). This conclusion draws support in principle from the Declaratory Judgment Act's basic objective, which is "to permit adjudication of either party's claims of right." Franchise Tax at n. And the conclusion draws support in practice from the prevalence in the lower courts of "reverse" declaratory judgment actions that focus upon a party's likely defense, including actions found in contexts such as that now before us. See, e. g., El Paso Bldg. & Constr. Trades (CA5 67) (union threatened to strike, then filed declaratory judgment action for determination of contract's validity, and court took jurisdiction under 301); McNally Pittsburg, (CA10 87) ; Mobil Oil (CA5 73) rev'd on other grounds, (74) Cf. Walker Process Equipment, (65) I cannot find any reason for an exception that would forbid "reverse" declaratory judgment actions in labor law contexts such as this one. To the contrary, this Court has suggested that the availability of declaratory judgment actions furthers the LMRA's basic purposes. See Textile (57) ( 301 designed to promote "industrial peace" by "provid[ing] the necessary legal remedies"); (quoting from floor statement of Representative Barden, 93 Cong. Rec. 3656-3657 (47), that "the section contemplates not only the ordinary lawsuits for damages but also such other remedial proceedings, both legal and equitable, as might be appropriate. [including a suit] under the Declaratory Judgments Act in order to secure declarations from the Court |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | In Minnesota, the Twin Cities Area New Party (Party) is a recognized minor political party entitled by state law to have the names of its candidates for public office appear on the state ballots. In April 1994, Andy Dawkins was qualified to be a candidate for election to the Minnesota Legislature as the representative of House District 65A. With Dawkins' consent, the Party nominated him as its candidate for that office. In my opinion the Party and its members had a constitutional right to have their candidate's name appear on the ballot despite the fact that he was also the nominee of another party. The Court's conclusion that the Minnesota statute prohibiting multiple-party candidacies is constitutional rests on three dubious premises: (1) that the statute imposes only a *371 minor burden on the Party's right to choose and to support the candidate of its choice; (2) that the statute significantly serves the State's asserted interests in avoiding ballot manipulation and factionalism; and (3) that, in any event, the interest in preserving the two-party system justifies the imposition of the burden at issue in this case. I disagree with each of these premises. I The members of a recognized political party unquestionably have a constitutional right to select their nominees for public office and to communicate the identity of their nominees to the voting public. Both the right to choose and the right to advise voters of that choice are entitled to the highest respect. The Minnesota statutes place a significant burden on both of those rights. The Court's recital of burdens that the statute does not inflict on the Party, ante, at 363, does nothing to minimize the severity of the burdens that it does impose. The fact that the Party may nominate its second choice surely does not diminish the significance of a restriction that denies it the right to have the name of its first choice appear on the ballot. Nor does the point that it may use some of its limited resources to publicize the fact that its first choice is the nominee of some other party provide an adequate substitute for the message that is conveyed to every person who actually votes when a party's nominees appear on the ballot. As to the first point, the State contends that the fusion ban in fact limits by only a few candidates the range of individuals a party may nominate, and that the burden is therefore quite small. But the number of candidates removed from the Party's reach cannot be the determinative factor. The ban leaves the Party |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | cannot be the determinative factor. The ban leaves the Party free to nominate any eligible candidate except the particular "`standard bearer who best represents the party's ideologies and preferences.' " *372 The Party could perhaps choose to expend its resources supporting a candidate who was not in fact the best representative of its members' views. But a party's choice of a candidate is the most effective way in which that party can communicate to the voters what the party represents and, thereby, attract voter interest and support.[1] Political parties "exist to advance their members' shared political beliefs," and "in the context of particular elections, candidates are necessary to make the party's message known and effective, and vice versa." Colorado Republican Federal Campaign See also ("Political parties have, or at least hope to have, a continuing existence, representing particular philosophies. Each party has an interest in finding the best candidate to advance its philosophy in each election"). The State next argues thatinstead of nominating a second-choice candidatethe Party could remove itself from *373 the ballot altogether, and publicly endorse the candidate of another party. But the right to be on the election ballot is precisely what separates a political party from any other interest group.[2] The Court relies on the fact that the Party remains free "to spread its message to all who will listen," ante, at 361, through forums other than the ballot. Given the limited resources available to most minor parties, and the less-than-universal interest in the messages of third parties, it is apparent that the Party's message will, in this manner, reach a much smaller audience than that composed of all voters who can read the ballot in the polling booth. The majority rejects as unimportant the limits that the fusion ban may impose on the Party's ability to express its political views, ante, at 362-363, relying on our decision in in which we noted that "the purpose of casting, counting, and recording votes is to elect public officials, not to serve as a general forum for political expression." But in we concluded simply that an individual voter's interest in expressing his disapproval of the single candidate running for office in a particular election did not require the State to finance and provide a mechanism for tabulating write-in votes. Our conclusion that the ballot is not principally a forum for the individual expression of political sentiment through the casting of a vote does not justify the conclusion that the ballot serves no expressive purpose for the parties who place candidates on the ballot. Indeed, the long-recognized right to |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | place candidates on the ballot. Indeed, the long-recognized right to choose a "`standard bearer who best represents the party's ideologies and preferences,' " 489 U. S., at is inescapably an expressive right. "To the extent that party labels *374 provide a shorthand designation of the views of party candidates on matters of public concern, the identification of candidates with particular parties plays a role in the process by which voters inform themselves for the exercise of the franchise." In this case, and presumably in most cases, the burden of a statute of this kind is imposed upon the members of a minor party, but its potential impact is much broader. Popular candidates like Andy Dawkins sometimes receive nationwide recognition. Fiorello LaGuardia, Earl Warren, Ronald Reagan, and Franklin D. Roosevelt are names that come readily to mind as candidates whose reputations and political careers were enhanced because they appeared on election ballots as fusion candidates. See Note, Fusion and the Associational Rights of Minor Political Parties, A statute that denied a political party the right to nominate any of those individuals for high office simply because he had already been nominated by another party would, in my opinion, place an intolerable burden on political expression and association. II Minnesota argues that the statutory restriction on the Party's right to nominate the candidate of its choice is justified by the State's interests in avoiding voter confusion, preventing ballot clutter and manipulation, encouraging candidate competition, and minimizing intra party factionalism. None of these rationales can support the fusion ban because the State has failed to explain how the ban actually serves the asserted interests. I believe that the law significantly abridges First Amendment freedoms and that the State therefore must shoulder a correspondingly heavy burden of justification if the law is to survive judicial scrutiny. But even accepting the majority's view that the burdens imposed by the law are not weighty, *375 the State's asserted interests must at least bear some plausible relationship to the burdens it places on political parties. See Although the Court today suggests that the State does not have to support its asserted justifications for the fusion ban with evidence that they have any empirical validity, ante, at 364, we have previously required more than a bare assertion that some particular state interest is served by a burdensome election requirement. See, e. g., ; ;[3] While the State describes some imaginative theoretical sources of voter confusion that could result from fusion candidacies, in my judgment the argument that the burden on First Amendment interests is justified by this concern |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | burden on First Amendment interests is justified by this concern is meritless and severely underestimates the intelligence of the *376 typical voter.[4] We have noted more than once that "[a] State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism." ; ; The State's concern about ballot manipulation, readily accepted by the majority, is similarly farfetched. The possibility that members of the major parties will begin to create dozens of minor parties with detailed, issue-oriented titles for the sole purpose of nominating candidates under those titles, see ante, at 365, is entirely hypothetical. The majority dismisses out-of-hand the Party's argument that the risk of this type of ballot manipulation and crowding is more easily averted by maintaining reasonably stringent requirements for the creation of minor parties. In fact, though, the Party's point merely illustrates the idea that a State can place some kindsbut not every kindof limitation on the abilities of small parties to thrive. If the State wants to make it more difficult for any group to achieve the legal status of being a political party, it can do so within reason and still not run up against the First Amendment. "The State has the undoubted right to require candidates to make a preliminary showing of substantial support in order to qualify for a place on the ballot, because it is both wasteful and confusing to encumber the ballot with the names of frivolous candidates." -789, n. 9. See also But once the State has established a standard for achieving party status, forbidding an acknowledged party to put on the ballot its chosen candidate clearly frustrates core associational rights.[5] *377 The State argues that the fusion ban promotes political stability by preventing intraparty factionalism and party raiding. States do certainly have an interest in maintaining a stable political system. But the State has not convincingly articulated how the fusion ban will prevent the factionalism it fears. Unlike the law at issue in for example, this law would not prevent sore-loser candidates from defecting with a disaffected segment of a major party and running as an opposition candidate for a newly formed minor party. Nor does this law, like those aimed at requiring parties to show a modicum of support in order to secure a place on the election ballot, prevent the formation of numerous small parties. Indeed, the activity banned by Minnesota's law is the formation of coalitions, not the division and dissension of "splintered parties and unrestrained factionalism." As |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | division and dissension of "splintered parties and unrestrained factionalism." As for the State's argument that the fusion ban encourages candidate competition, this claim treats "candidates" as fungible goods, ignoring entirely each party's interest in nominating not just any candidate, but the candidate who best represents the party's views. Minnesota's fusion ban simply cannot be justified with reference to this or any of the above-mentioned rationales. I turn, therefore, to what appears to be the true basis for the Court's holdingthe interest in preserving the two-party system. III Before addressing the merits of preserving the two-party system as a justification for Minnesota's fusion ban, I should note that, in my view, it is impermissible for the Court to consider this rationale. Minnesota did not argue in its *378 briefs that the preservation of the two-party system supported the fusion ban, and indeed, when pressed at oral argument on the matter, the State expressly rejected this rationale. Tr. of Oral Arg. 26. Our opinions have been explicit in their willingness to consider only the particular interests put forward by a State to support laws that impose any sort of burden on First Amendment rights. See ; (state laws that burden First Amendment rights are upheld when they are "`tied to a particularized legitimate purpose' ") ); Even if the State had put forward this interest to support its laws, it would not be sufficient to justify the fusion ban. In most States, perhaps in all, there are two and only two major political parties. It is not surprising, therefore, that most States have enacted election laws that impose burdens on the development and growth of third parties. The law at issue in this case is undeniably such a law. The fact that the law was both intended to disadvantage minor parties and has had that effect is a matter that should weigh against, rather than in favor of, its constitutionality.[6] *379 Our jurisprudence in this area reflects a certain tension: On the one hand, we have been clear that political stability is an important state interest and that incidental burdens on the formation of minor parties are reasonable to protect that interest, see 415 U. S., ; on the other, we have struck down state elections laws specifically because they give "the two old, established parties a decided advantage over any new parties struggling for existence,"[7] Between these boundaries, we have acknowledged that there is "no litmus-paper test for separating those restrictions that are valid from those that are invidiousThe rule is not self-executing and is no substitute for the hard judgments |
Justice Stevens | 1,997 | 16 | dissenting | Timmons v. Twin Cities Area New Party | https://www.courtlistener.com/opinion/118102/timmons-v-twin-cities-area-new-party/ | not self-executing and is no substitute for the hard judgments that must be made." Nothing in the Constitution prohibits the States from maintaining single-member districts with winner-take-all voting arrangements. And these elements of an election system do make it significantly more difficult for third parties to thrive. But these laws are different in two respects from the fusion bans at issue here. First, the method by which they hamper third-party development is not one that impinges on the associational rights of those third parties; minor parties remain free to nominate candidates of their choice, and to rally support for those candidates. The small parties' relatively limited likelihood of ultimate success on election day does not deprive them of the right to try. Second, the establishment of single-member districts correlates *380 directly with the States' interests in political stability. Systems of proportional representation, for example, may tend toward factionalism and fragile coalitions that diminish legislative effectiveness. In the context of fusion candidacies, the risks to political stability are extremely attenuated.[8] Of course, the reason minor parties so ardently support fusion politics is because it allows the parties to build up a greater base of support, as potential minor party members realize that a vote for the smaller party candidate is not necessarily a "wasted" vote. Eventually, a minor party might gather sufficient strength thatwere its members so inclinedit could successfully run a candidate not endorsed by any major party, and legislative coalition building will be made more difficult by the presence of third-party legislators. But the risks to political stability in that scenario are speculative at best.[9] In some respects, the fusion candidacy is the best marriage of the virtues of the minor party challenge to entrenched viewpoints[10] and the political stability that the two-party *381 system provides. The fusion candidacy does not threaten to divide the legislature and create significant risks of factionalism, which is the principal risk proponents of the two-party system point to. But it does provide a means by which voters with viewpoints not adequately represented by the platforms of the two major parties can indicate to a particular candidate thatin addition to his support for the major party viewshe should be responsive to the views of the minor party whose support for him was demonstrated where political parties demonstrate supporton the ballot. The strength of the two-party systemand of each of its major componentsis the product of the power of the ideas, the traditions, the candidates, and the voters that constitute the parties.[11] It demeans the strength of the two-party system to assume that the major |
Justice Blackmun | 1,979 | 11 | dissenting | Arkansas v. Sanders | https://www.courtlistener.com/opinion/110119/arkansas-v-sanders/ | This case illustrates the difficulties and confusion that United has spawned and will continue to spawn. For reasons stated in dissent in at 18-22 and 24, I continue to feel that that decision was wrong. The Court today goes farther down the road, undermines the automobile exception, and, while purporting to clarify the confusion occasioned by creates, in my view, only greater difficulties for law enforcement officers, for prosecutors, for those suspected of criminal activity, and, of course, for the courts themselves. Still hanging in limbo, and probably soon to be litigated, are the briefcase, the wallet, the package, the paper bag, and every other kind of container. *769 I am unpersuaded by the Court's casual statement, ante, at 762 n. 9, that and this case are factually similar "in several critical respects." Even accepting as good law, which I do not, this, for me, is a different case. In the defendants were arrested, and a 200-pound, double-locked footlocker was seized, as the locker was being loaded into the open trunk of a stationary automobile. The relationship between the footlocker and the vehicle was sufficiently attenuated that the Government chose not to argue in this Court that the automobile exception applied. Here, in contrast, the Little Rock police stopped a taxicab on a busy highway at the height of late afternoon traffic. They had probable cause to believe the taxi contained contraband narcotics. They opened the trunk, and briefly examined the contents of a small unlocked suitcase inside. The State has vigorously contended throughout these proceedings that the warrantless search of the trunk and the unlocked suitcase was constitutionally permissible under the automobile exception.[1] I fully agree. If "contraband goods concealed and illegally transported in an automobile or other vehicle may be searched for without a warrant," then, in my view, luggage and similar containers found in an automobile may be searched for contraband without a warrant. The luggage, like the automobile transporting it, is mobile. And the expectation of privacy in a suitcase found in the car is probably not significantly greater than the expectation of privacy in a locked glove compartment or trunk. To be sure, as the dissent acknowledged in impounding the luggage without searching it *770 would be a less intrusive alternative than searching it on the spot. But this Court has not distinguished between the "lesser" intrusion of a seizure and the "greater" intrusion of a search, either with respect to automobiles, or with respect to persons subject to custodial arrest. United[2] And I see no reason to impose such a distinction here. Given the |
Justice Blackmun | 1,979 | 11 | dissenting | Arkansas v. Sanders | https://www.courtlistener.com/opinion/110119/arkansas-v-sanders/ | no reason to impose such a distinction here. Given the significant encroachment on privacy interests entailed by a seizure of personal property, the additional intrusion of a search may well be regarded as incidental. Moreover, the additional protection provided by a search warrant will be minimal. Since the police, by hypothesis, have probable cause to seize the property, we can assume that a warrant will be routinely forthcoming in the overwhelming majority of cases. Finally, the carving out of a special warrant requirement for one type of personal property, but not for others, will impose untoward costs on the criminal justice systems of this country in terms of added delay and uncertainty.[3] *771 The impractical nature of the Court's line-drawing is brought into focus if one places himself in the position of the policeman confronting an automobile that properly has been stopped. In approaching the vehicle and its occupants, the officer must divide the world of personal property into three groups. If there is probable cause to arrest the occupants, then under he may search objects within the occupants' immediate control, with or without probable cause. If there is probable cause to search the automobile itself, then under Carroll and Chambers the entire interior area of the automobile may be searched, with or without a warrant. But under and the present case, if any suitcase-like object is found in the car outside the immediate control area of the occupants, it cannot be searched, in the absence of exigent circumstances, without a warrant. The inherent opaqueness of these "principles," in terms of the policies underlying the Fourth and Fourteenth Amendments, and the confusion to be created for all concerned, are readily illustrated. Suppose a portable luggage-container-rack is affixed to the top of the vehicle. Is the arresting officer constitutionally able to open this on the spot, on the theory that it is like the car's trunk, or must he remove it and take it to the station for a warrant, on the theory that it is like the 200-pound footlocker in ? Or suppose there is *772 probable cause to arrest persons seated in the front seat of the automobile, and a suitcase rests on the back seat. Is that suitcase within the area of immediate control, such that the -Sanders rules do not apply? Or suppose the arresting officer opens the car's trunk and finds that it contains an array of containersan orange crate, a lunch bucket, an attache case, a duffelbag, a cardboard box, a backpack, a totebag, and a paper bag. Which of these may be searched immediately, |
Justice Blackmun | 1,979 | 11 | dissenting | Arkansas v. Sanders | https://www.courtlistener.com/opinion/110119/arkansas-v-sanders/ | a paper bag. Which of these may be searched immediately, and which are so "personal" that they must be impounded for future search only pursuant to a warrant? The problems of distinguishing between "luggage" and "some integral part of the automobile," ante, at 763; between luggage that is within the "immediate control" of the arrestee and luggage that is not; and between "personal luggage" and other "containers and packages" such as those most curiously described ante, at 764-765, n. 13, will be legion. The lines that will be drawn will not make much sense in terms of the policies of the Fourth and Fourteenth Amendments. And the heightened possibilities for error will mean that many convictions will be overturned, highly relevant evidence again will be excluded, and guilty persons will be set free in return for little apparent gain in precise and clearly understood constitutional analysis. In my view, it would be better to adopt a clear-cut rule to the effect that a warrant should not be required to seize and search any personal property found in an automobile that may in turn be seized and searched without a warrant pursuant to Carroll and Chambers. Cf. United -22, and n. 3 (dissenting opinion). Such an approach would simplify the constitutional law of criminal procedure without seriously derogating from the values protected by the Fourth Amendment's prohibition of unreasonable searches and seizures. |
Justice Blackmun | 1,978 | 11 | concurring | In Re Primus | https://www.courtlistener.com/opinion/109870/in-re-primus/ | Although I join the opinion of the Court, my understanding of the first paragraph of Part VI requires further explanation. The dicta contained in that paragraph are unnecessary to the decision of this case and its First Amendment overtones. I, for one, am not now able to delineate in the area of political solicitation the extent of state authority to proscribe misleading statements. Despite the positive language of the text,[*]*440 footnote 33 explains that the Court also has refused to draw a line regarding misrepresentation: "We have no occasion here to delineate the precise contours of permissible state regulation. Thus, for example, a different situation might be presented if an innocent or merely negligent misstatement were made by a lawyer on behalf of an organization engaged in furthering associational or political interests." It may well be that the State is able to proscribe such solicitation. The resolution of that issue, however, requires a balancing of the State's interests against the important First Amendment values that may lurk in even a negligent misstatement. The Court wisely has postponed this task until an appropriate case is presented and full arguments are carefully considered. MR. |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | We granted certiorari to determine whether the Court has jurisdiction to review decisions of the courts of appeals denying *9 applications for certificates of appealability. The Court, we hold, does have jurisdiction. I In 1992, petitioner Arnold Hohn was charged with a number of drug-related offenses, including the use or carrying of a firearm during and in relation to a drug trafficking offense, 18 U.S. C. 924(c)(1). Over defense counsel's objection, the District Court instructed the jury that "use" of a firearm meant having the firearm "available to aid in the commission of" the offense. App. 7, 32. The jury convicted Hohn on all counts. Hohn did not challenge the instruction in his direct appeal, and the Court of Appeals affirmed. United Two years after Hohn's conviction became final, we held the term "use" in 924(c)(1) required active employment of the firearm. Proximity and accessibility alone were not sufficient. Hohn filed a pro se motion under 28 U.S. C. 2255 to vacate his 18 U.S. C. 924(c)(1) conviction in light of Bailey on the grounds the evidence presented at his trial was insufficient to prove use of a firearm. Although the Government conceded the jury instruction given at Hohn's trial did not comply with Bailey, the District Court denied relief because, in its view, Hohn had waived the claim by failing to challenge the instruction on direct appeal. While Hohn's motion was pending before the District Court, Congress enacted the Antiterrorism and Effective Death Penalty Act of (AEDPA), Section 102 of AEDPA amends the statutory provision which had required state prisoners to obtain a certificate of probable cause before appealing the denial of a habeas petition. The amended provision provides: "Unless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals from *240 "(A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court; or "(B) the final order in a proceeding under section 2255." 28 U.S. C. 2253(c)(1) (1994 ed., Supp. II). Certificates of appealability may issue "only if the applicant has made a substantial showing of the denial of a constitutional right." 2253(c)(2). Hohn filed a notice of appeal on July 29, three months after AEDPA's enactment. The Court of Appeals treated the notice of appeal as an application for a certificate of appealability and referred it to a three-judge panel. The panel decided Hohn's application did not meet the standard for a 2253(c) certificate. In the panel's view, "Bailey did no more than |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | certificate. In the panel's view, "Bailey did no more than interpret a statute, and an incorrect application of a statute by a district court, or any other court, does not violate the Constitution." Given this determination, the panel declined to issue a certificate of appealability. Judge McMillian dissented. In his view, Bailey cast doubt on whether Hohn's conduct in fact violated 18 U.S. C. 924(c)(1). The Due Process Clause, he reasoned, does not "tolerat[e] convictions for conduct that was never criminal," so Hohn had made a sufficient showing of a constitutional When the Court of Appeals denied Hohn's rehearing petition and a suggestion for rehearing en banc, four judges noted they would have granted the suggestion. Hohn petitioned this Court for a writ of certiorari to review the denial of the certificate, seeking to invoke our jurisdiction under 28 U.S. C. 1254(1). The Government now found itself in agreement with Hohn, saying his claim was, in fact, constitutional in nature. It asked us to vacate the judgment and remand so the Court of Appeals could reconsider in light of this concession. We may not vacate and remand, of course, unless we first have jurisdiction over the *241 case; and since Hohn and the Government both argue in favor of our jurisdiction, we appointed an amicus curiae to argue the contrary position. II Title 28 U.S. C. 1254 is the statute most often invoked for jurisdiction in this Court. It provides in relevant part: "Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods: "(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree." The first phrase of the quoted statute confines our jurisdiction to "[c]ases in" the courts of appeals. The question is whether an application for a certificate meets the description. There can be little doubt that Hohn's application for a certificate of appealability constitutes a case under 1254(1). As we have noted, "[t]he words `case' and `cause' are constantly used as synonyms in statutes each meaning a proceeding in court, a suit, or action." The dispute over Hohn's entitlement to a certificate falls within this definition. It is a proceeding seeking relief for an immediate and redressable injury, i. e., wrongful detention in violation of the Constitution. There is adversity as well as the other requisite qualities of a "case" as the term is used in both Article III of the Constitution and the statute here under consideration. This is significant, we think, for cases |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | here under consideration. This is significant, we think, for cases are addressed in the ordinary course of the judicial process, and, as a general rule, when the district court has denied relief and applicable requirements of finality have been satisfied, the next step is review in the court of appeals. That the statute permits the certificate to be issued by a "circuit justice or judge" does not mean the action of the circuit judge in denying the certificate *242 is his or her own action, rather than the action of the court of appeals to whom the judge is appointed. The course of events here illustrates the point. The application moved through the Eighth Circuit in the same manner as cases in general do. The matter was entered on the docket of the Court of Appeals, submitted to a panel, and decided in a published opinion, including a dissent. App. 4-5. The court entered judgment on it, issued a mandate, and entertained a petition for rehearing and suggestion for rehearing en banc. The Eighth Circuit has since acknowledged its rejection of Hohn's application made Circuit law. United cert. pending, No. 97-5460. One judge specifically indicated he was bound by the decision even though he believed it was wrongly -76 These factors suggest Hohn's certificate application was as much a case in the Court of Appeals as are the other matters decided by it. We also draw guidance from the fact that every Court of Appeals except the Court of Appeals for the District of Columbia Circuit has adopted Rules to govern the disposition of certificate applications. E. g., Rules 22, 22.1 ; Rules 22, 27(b) and (f) ; Rules 3.4, 22.1, 111.3(b) and (c), 111.4(a) and (b)(vii) ; Rules 22(a) and (b)(3)(g), 34(b) ; Rules 8.1(g), 8.6, 8.10, 22, 27.2.3 ; Rules 28(f), (g), and (j) ; Rules 22(a)(2), (h)(2), and (h)(3)(i), 22.1 ; Rules 22A(d), 27B(b)(2) and (c)(2) ; Rules 3-1(b), 22-2, 22-3(a)(3) and (b)(4), 22-4(c), 22-5(c), (d)(1), (d)(3), and (e) ; Rules 11.2(b), 22.1, 22.2.3 ; Rules 22-1, 22-3(a)(3), (a)(4), (a)(6), and (a)(7), and (b), 27-1(d)(3) We also note the Internal Operating Procedures for the Court of Appeals for the Eighth Circuit require certificate applications to be heard as a general matter by three-judge administrative panels. Internal Operating Procedures, pt. I.D.3 ; see also Interim Processing Guidelines for Certificates *243 of Appealability under 28 U.S. C. 2253 and for Motions under 28 U.S. C. 4, pt. I (CA1), 28 U.S. C. A., p. 135 (1998 Pamphlet); Internal Operating Procedures 10.3.2, 15.1 ; Criminal Justice Act Implementation Plan, pt. |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | Procedures 10.3.2, 15.1 ; Criminal Justice Act Implementation Plan, pt. I.2 (CA4), 28 U.S. C. A., p. 576 (1998 Pamphlet); Internal Operating Procedures 1(a)(1) and (c)(7) ; Rule 27-1, Advisory Committee Note (1) (CA9), 28 U.S. C. A., p. 290 (1998 Pamphlet); Emergency General Order in re Procedures Regarding the Prison Litigation Reform Act and the Antiterrorism and Effective Death Penalty Act (CA10), 28 U.S. C. A., p. 487 (1998 Pamphlet); Internal Operating Procedure 11, following Rule 47-6 These directives would be meaningless if applications for certificates of appealability were not matters subject to the control and disposition of the courts of appeals. It is true the President appoints "circuit judges for the several circuits," 28 U.S. C. but it is true as well the court of appeals "consist[s] of the circuit judges of the circuit in regular active service," 43. In this instance, as in all other cases of which we are aware, the order denying the certificate was issued in the name of the court and under its seal. That is as it should be, for the order was judicial in character and had consequences with respect to the finality of the order of the District Court and the continuing jurisdiction of the Court of Appeals. The Federal Rules of Appellate Procedure make specific provision for consideration of applications for certificates of appealability by the entire court. Rule 22(b) states: "In a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court, an appeal by the applicant for the writ may not proceed unless a district or a circuit judge issues a certificate of appealability pursuant to section 2253(c) of title 28, United States Code. If the district judge has denied the certificate, the applicant for the writ may then request issuance of the certificate by a circuit *2 judge. If such a request is addressed to the court of appeals, it shall be deemed addressed to the judges thereof and shall be considered by a circuit judge or judges as the court deems appropriate. If no express request for a certificate is filed, the notice of appeal shall be deemed to constitute a request addressed to the judges of the court of appeals." On its face, the Rule applies only to state, and not federal, prisoners. It is nonetheless instructive on the proper construction of 2253(c). Rule 22(b) by no means prohibits application to an individual judge, nor could it, given the language of the statute. There would be incongruity, nevertheless, were the same ruling deemed in one instance |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | incongruity, nevertheless, were the same ruling deemed in one instance the order of a judge acting ex curia and in a second the action of the court, depending upon the caption of the application or the style of the order. Our conclusion is further confirmed by Federal Rule of Appellate Procedure 27(c). It states: "In addition to the authority expressly conferred by these rules or by law, a single judge of a court of appeals may entertain and may grant or deny any request for relief which under these rules may properly be sought by motion, except that a single judge may not dismiss or otherwise determine an appeal or other proceeding, and except that a court of appeals may provide by order or rule that any motion or class of motions must be acted upon by the court. The action of a single judge may be reviewed by the court." As the Rule makes clear, even when individual judges are authorized under the Rules to entertain certain requests for relief, the court may review their decisions. The Eighth Circuit's Rules are even more explicit, specifically listing grants of certificates of probable cause by an individual judge as one of the decisions subject to revision by the court under Federal Rule 27(c). Rule 27B(b)(2) The recognition *245 that decisions made by individual circuit judges remain subject to correction by the entire court of appeals reinforces our determination that decisions with regard to an application for a certificate of appealability should be regarded as an action of the court itself and not of the individual judge. We must reject the suggestion contained in the Advisory Committee's Notes on Federal Rule of Appellate Procedure 22(b) that "28 U.S. C. 2253 does not authorize the court of appeals as a court to grant a certificate of probable cause." 28 U.S. C. App., p. 609. It is more consistent with the Federal Rules and the uniform practice of the courts of appeals to construe 2253(c)(1) as conferring the jurisdiction to issue certificates of appealability upon the court of appeals rather than by a judge acting under his or her own seal. See In re Burwell, Some early cases from this Court acknowledged a distinction between acting in an administrative and a judicial capacity. When judges perform administrative functions, their decisions are not subject to our review. United ; see also v. United States, 117 U. S. Appx. 697, 702, 704 (1864). Those opinions were careful to say it was the nonjudicial character of the judges' actions which deprived this Court of jurisdiction. (tribunal not |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | judges' actions which deprived this Court of jurisdiction. (tribunal not judicial when the proceedings were ex parte and did not involve the issuance of process, summoning of witnesses, or entry of a judgment); Decisions regarding applications for certificates of appealability, in contrast, are judicial in nature. It is typical for both parties to enter appearances and to submit briefs at appropriate times and for the court of appeals to enter a judgment and to issue a mandate at the end of the proceedings, as happened here. App. 4-6. Construing the issuance of a certificate of appealability as an administrative function, moreover, would suggest an entity not wielding judicial power might review the *246 decision of an Article III court. In light of the constitutional questions which would surround such an arrangement, see Hayburn's Case, we should avoid any such implication. We further disagree with the contention, advanced by the dissent and by Court-appointed amicus, that a request to proceed before a court of appeals should be regarded as a threshold inquiry separate from the merits which, if denied, prevents the case from ever being in the court of appeals. Precedent forecloses this argument. In Ex parte Quirin, we confronted the analogous question whether a request for leave to file a petition for a writ of habeas corpus was a case in a district court for the purposes of the then-extant statute governing court of appeals review of district court decisions. See 28 U.S. C. 225(a) First (1940 ed.) (courts of appeals had jurisdiction to review final decisions "[i]n the district courts, in all cases save where a direct review of the decision may be had in the Supreme Court"). We held the request for leave constituted a case in the district court over which the court of appeals could assert jurisdiction, even though the district court had denied the request. We reasoned, "[p]resentation of the petition for judicial action is the institution of a suit. Hence the denial by the district court of leave to file the petitions in these causes was the judicial determination of a case or controversy, reviewable on appeal to the Court of Appeals." We reached a similar conclusion in There President Nixon sought to appeal an interlocutory District Court order rejecting his claim of absolute immunity. The Court of Appeals summarily dismissed the appeal because, in its view, the order failed to present a "serious and unsettled question" of law sufficient to bring the case within the collateral order doctrine announced in Because the Court of Appeals had dismissed for failure to *247 satisfy this |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | of Appeals had dismissed for failure to *247 satisfy this threshold jurisdictional requirement, respondent Fitzgerald argued, "the District Court's order was not an appealable `case' properly `in' the Court of Appeals within the meaning of 1254." Turning aside this argument, we ruled "petitioner did present a `serious and unsettled' and therefore appealable question to the Court of Appeals. It follow[ed] that the case was `in' the Court of Appeals under 1254 and properly within our certiorari jurisdiction." We elaborated: "There can be no serious doubt concerning our power to review a court of appeals' decision to dismiss for lack of jurisdiction. If we lacked authority to do so, decisions to dismiss for want of jurisdiction would be insulated entirely from review by this Court." n. ; see also United (holding appeal of District Court's denial of motion to quash subpoena duces tecum was in the Court of Appeals for purposes of 1254(1)). We have shown no doubts about our jurisdiction to review dismissals by the Courts of Appeals for failure to file a timely notice of appeal under 1254(1). The filing of a proper notice of appeal is mandatory and jurisdictional. ; United ; Advisory Committee's Notes on Fed. Rule App. Proc. 3, 28 U.S. C. App., p. 589. The failure to satisfy this jurisdictional prerequisite has not kept the case from entering the Court of Appeals, however. We have reviewed these dismissals often and without insisting the petitioner satisfy the requirements for an extraordinary writ and without suggesting our lack of jurisdiction to do so. E. g., ; ; United We have also held that 1254(1) permits us to review denials of motions for leave to intervene in the Court of Appeals in proceedings to review the decision of an administrative *248 agency. Automobile ; see also Izumi Seimitsu Kogyo Kabushiki Together these decisions foreclose the proposition that the failure to satisfy a threshold prerequisite for court of appeals jurisdiction, such as the issuance of a certificate of appealability, prevents a case from being in the court of appeals for purposes of 1254(1). It would have made no difference had the Government declined to oppose Hohn's application for a certificate of appealability. In Scofield, we held that 1254(1) gave us jurisdiction to review the Court of Appeals' denial of a motion for leave to intervene despite the fact that neither the agency nor any of the other parties opposed In the same manner, petitions for certiorari to this Court are often met with silence or even acquiescence; yet no one would suggest this deprives the petitions of the adversity |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | one would suggest this deprives the petitions of the adversity needed to constitute a case. Assuming, of course, the underlying action satisfies the other requisites of a case, including injury in fact, the circumstance that the question before the court is a preliminary issue, such as the denial of a certificate of appealability or venue, does not oust appellate courts of the jurisdiction to review a ruling on the matter. For instance, a case does not lack adversity simply because the remedy sought from a particular court is dismissal for improper venue rather than resolution of the merits. Federal Rule of Civil Procedure 12(b)(3) specifically permits a party to move to dismiss for improper venue before joining issue on any substantive point through the filing of a responsive pleading, and we have long treated appeals of dismissals for improper venue as cases in the courts of appeals, see, e. g., ; Brunette Machine Works, ; ; Fourco Glass ; Mis- *249 sissippi Publishing It is true we have held appellate jurisdiction improper when district courts have denied, rather than granted, motions to dismiss for improper venue. The jurisdictional problem in those cases, however, was the interlocutory nature of the appeal, not the absence of a proper case. Lauro Lines ; Van In any event, concerns about adversity are misplaced in this case. Here the Government entered an appearance in response to the initial application and filed a response opposing Hohn's petition for rehearing and suggestion for rehearing en banc. App. 4, 5. The argument that this Court lacks jurisdiction under 1254(1) to review threshold jurisdictional inquiries is further refuted by the recent amendment to 28 U.S. C. 4(b)(3). The statute requires state prisoners filing second or successive habeas applications under 2254 to first "move in the appropriate court of appeals for an order authorizing the district court to consider the application." 28 U.S. C. 4(b)(3)(A) (1994 ed., Supp. II). The statute further provides "[t]he grant or denial of an authorization by a court of appeals to file a second or successive application shall not be appealable and shall not be the subject of a petition for rehearing or for a writ of certiorari." 4(b)(3)(E). It would have been unnecessary to include a provision barring certiorari review if a motion to file a second or successive application would not otherwise have constituted a case in the court of appeals for purposes of 28 U.S. C. 1254(1). We are reluctant to adopt a construction making another statutory provision superfluous. See, e. g., ; United Inclusion of a specific provision barring certiorari review |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | ; United Inclusion of a specific provision barring certiorari review of denials of motions to file second or successive applications is instructive for another reason. The requirements for certificates *250 of appealability and motions for second or successive applications were enacted in the same statute. The clear limit on this Court's jurisdiction to review denials of motions to file second or successive petitions by writ of certiorari contrasts with the absence of an analogous limitation to certiorari review of denials of applications for certificates of appealability. True, the phrase concerning the grant or denial of second or successive applications refers to an action "by a court of appeals"; still, we think a Congress concerned enough to bar our jurisdiction in one instance would have been just as explicit in denying it in the other, were that its intention. See, e. g., U.S. 29- ). The dissent claims the absence of similar language in 2253(c) can be explained by Congress' reliance on the rule holding certificate applications unreviewable under 1254(1). Post, at -2. As we later discuss, any such reliance is lessened by the Court's consistent practice of treating denials of certificate applications as falling within its statutory certiorari jurisdiction. See infra, at 252. Today's holding conforms our commonsense practice to the statutory scheme, making it unnecessary to invoke our extraordinary jurisdiction in routine cases, which present important and meritorious claims. The United States does not dispute that Hohn's claim has considerable merit and acknowledges that the trial court committed an error of constitutional magnitude. The only contested issue is whether the constitutional violation was a substantial one. Brief in Opposition 7-8. Were we to adopt the position advanced by the dissent, the only way we could consider his meritorious claim would be through the All Writs Act, 28 U.S. C. *251 1651(a). Our rule permits us to carry out our normal function of reviewing possible misapplications of law by the courts of appeals without having to resort to extraordinary remedies. Our decision, we must acknowledge, is in direct conflict with the portion of our decision in holding that we lack statutory certiorari jurisdiction to review refusals to issue certificates of probable cause. Given the number and frequency of the cases, and the difficulty of reconciling our practice with a requirement that only an extraordinary writ can be used to address them, we do not think stare decisis concerns require us to adhere to that decision. Its conclusion was erroneous, and it should not be followed. Stare decisis is "the preferred course because it promotes the evenhanded, predictable, and consistent development |
Justice Kennedy | 1,998 | 4 | majority | Hohn v. United States | https://www.courtlistener.com/opinion/118230/hohn-v-united-states/ | course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." "Considerations of stare decisis have special force in the area of statutory interpretation, for here, unlike in the context of constitutional interpretation, the legislative power is implicated, and Congress remains free to alter what we have done." We have recognized, however, that stare decisis is a "principle of policy" rather than "an inexorable command." For example, we have felt less constrained to follow precedent where, as here, the opinion was rendered without full briefing or argument. ). The role of stare decisis, furthermore, is "somewhat reduced in the case of a procedural rule which does not serve as a guide to lawful behavior." United (citing at *252 828). Here we have a rule of procedure that does not alter primary conduct. And what is more, the rule of procedure announced in has often been disregarded in our own practice. Both Hohn and the United States cite numerous instances in which we have granted writs of certiorari to review denials of certificate applications without requiring the petitioner to move for leave to file for an extraordinary writ, as previously required by our rules, and without requiring any extraordinary showing or exhibiting any doubts about our jurisdiction to do so. 17 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4036, pp. 15-16 (collecting cases). Included among these examples are several noteworthy decisions which resolved significant issues of federal law. See, e. g., on collateral attack); These deviations have led litigants and the legal community to question the vitality of the rule announced in As commentators have observed: "More recent cases have regularly granted certiorari following denial of leave to proceed in forma pauperis, or refusal to certify probable cause, without any indication that review was by common law writ rather than statutory certiorari. At least as to these two questions, statutory certiorari should be available." Wright, Miller, & Cooper, Our frequent disregard for the rule announced in weakens the suggestion that Congress could have placed significant reliance on it, especially in light of the commentary on our practice in the legal literature. This is not to say opinions passing on jurisdictional issues sub silentio may be said to have overruled an opinion addressing the issue directly. See, e. g., United Our decisions remain *253 binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality. Rodriguez de Once we |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | I agree with JUSTICE STEVENS that Patrick Hamacher has no standing to seek declaratory or injunctive relief against a freshman admissions policy that will never cause him any harm. I write separately to note that even the Court's new gloss on the law of standing should not permit it to reach the issue it decides today. And because a majority of the Court has chosen to address the merits, I also add a word to say that even if the merits were reachable, I would dissent from the Court's judgment. I The Court's finding of Article III standing rests on two propositions: first, that both the University of Michigan's undergraduate college's transfer policy and its freshman admissions policy seek to achieve student body diversity through the "use of race," ante, at 261-263, 265-269, and second, that Hamacher has standing to challenge the transfer policy on the grounds that diversity can never be a "compelling state interest" justifying the use of race in any admissions decision, freshman or transfer, ante, at 269. The Court concludes that, because Hamacher's argument, if successful, would seal the fate of both policies, his standing to challenge the transfer policy also allows him to attack the freshman admissions policy. Ante, at 266, n. 16 ("[P]etitioners challenged any use of race by the University to promote diversity, including through the transfer policy"); ante, at 267, n. 16 ("`[T]he University considers race for a purpose to achieve a diversity that we believe is not compelling, and if that is struck down as a rationale, then the [result] would be [the] same with respect to the transfer policy as with respect to the [freshman] admissions policy, Your Honor' " (quoting Tr. of Oral Arg. 7-8)). I agree with JUSTICE STEVENS'S critique *292 that the Court thus ignores the basic principle of Article III standing that a plaintiff cannot challenge a government program that does not apply to him. See ante, at 286-287, and n. 6 (dissenting opinion).[1] But even on the Court's indulgent standing theory, the decision should not go beyond a recognition that diversity can serve as a compelling state interest justifying race-conscious decisions in education. Ante, at 268 (citing Grutter v. Bollinger, post, at 327-333). Since, as the Court says, "petitioners did not raise a narrow tailoring challenge to the transfer policy," ante, at 266, n. 16, our decision in Grutter is fatal to Hamacher's sole attack upon the transfer policy, which is the only policy before this Court that he claims aggrieved him. Hamacher's challenge to that policy having failed, his standing is presumably spent. The |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | that policy having failed, his standing is presumably spent. The further question whether the freshman admissions plan is narrowly tailored to achieving student body diversity remains legally irrelevant to Hamacher and should await a plaintiff who is actually hurt by it.[2] *293 II The cases now contain two pointers toward the line between the valid and the unconstitutional in race-conscious admissions schemes. Grutter reaffirms the permissibility of individualized consideration of race to achieve a diversity of students, at least where race is not assigned a preordained value in all cases. On the other hand, Justice Powell's opinion in Regents of Univ. of rules out a racial quota or set-aside, in which race is the sole fact of eligibility for certain places in a class. Although the freshman admissions system here is subject to argument on the merits, I think it is closer to what Grutter approves than to what condemns, and should not be held unconstitutional on the current record. The record does not describe a system with a quota like the one struck down in which "insulate[d]" all non-minority candidates from competition from certain seats. ; see also (stating that invalidated "a plan that completely eliminated nonminorities from consideration for a specified percentage of opportunities"). The plan "focused solely on ethnic diversity" and effectively told nonminority applicants that "[n]o matter how strong their qualifications, quantitative and extracurricular, including their own potential for contribution to educational diversity, they are never afforded the chance to compete with applicants from the preferred groups for the [set-aside] special admissions seats." (emphasis in original). The plan here, in contrast, lets all applicants compete for all places and values an applicant's offering for any place not only on grounds of race, but on grades, test scores, strength of high school, quality of course of study, residence, alumni relationships, leadership, personal character, socioeconomic *294 disadvantage, athletic ability, and quality of a personal essay. Ante, at 255. A nonminority applicant who scores highly in these other categories can readily garner a selection index exceeding that of a minority applicant who gets the 20-point bonus. Cf. (upholding a program in which gender "was but one of numerous factors [taken] into account in arriving at [a] decision" because "[n]o persons are automatically excluded from consideration; all are able to have their qualifications weighed against those of other applicants" (emphasis deleted)). Subject to one qualification to be taken up below, this scheme of considering, through the selection index system, all of the characteristics that the college thinks relevant to student diversity for every one of the student places to be |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | diversity for every one of the student places to be filled fits Justice Powell's description of a constitutionally acceptable program: one that considers "all pertinent elements of diversity in light of the particular qualifications of each applicant" and places each element "on the same footing for consideration, although not necessarily according them the same weight." In the Court's own words, "each characteristic of a particular applicant [is] considered in assessing the applicant's entire application." Ante, at 271. An unsuccessful nonminority applicant cannot complain that he was rejected "simply because he was not the right color"; an applicant who is rejected because "his combined qualifications did not outweigh those of the other applicant" has been given an opportunity to compete with all other applicants. The one qualification to this description of the admissions process is that membership in an underrepresented minority is given a weight of 20 points on the 150-point scale. On the face of things, however, this assignment of specific points does not set race apart from all other weighted considerations. Nonminority students may receive 20 points for athletic ability, socioeconomic disadvantage, attendance at a socioeconomically *295 disadvantaged or predominantly minority high school, or at the Provost's discretion; they may also receive 10 points for being residents of Michigan, 6 for residence in an underrepresented Michigan county, 5 for leadership and service, and so on. The Court nonetheless finds fault with a scheme that "automatically" distributes 20 points to minority applicants because "[t]he only consideration that accompanies this distribution of points is a factual review of an application to determine whether an individual is a member of one of these minority groups." Ante, at 271-272. The objection goes to the use of points to quantify and compare characteristics, or to the number of points awarded due to race, but on either reading the objection is mistaken. The very nature of a college's permissible practice of awarding value to racial diversity means that race must be considered in a way that increases some applicants' chances for admission. Since college admission is not left entirely to inarticulate intuition, it is hard to see what is inappropriate in assigning some stated value to a relevant characteristic, whether it be reasoning ability, writing style, running speed, or minority race. Justice Powell's plus factors necessarily are assigned some values. The college simply does by a numbered scale what the law school accomplishes in its "holistic review," Grutter, post, at 337; the distinction does not imply that applicants to the undergraduate college are denied individualized consideration or a fair chance to compete on the basis |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | consideration or a fair chance to compete on the basis of all the various merits their applications may disclose. Nor is it possible to say that the 20 points convert race into a decisive factor comparable to reserving minority places as in Of course we can conceive of a point system in which the "plus" factor given to minority applicants would be so extreme as to guarantee every minority applicant a higher rank than every nonminority applicant in the university's admissions system, see n. 53 But petitioners do not have a convincing argument *296 that the freshman admissions system operates this way. The present record obviously shows that nonminority applicants may achieve higher selection point totals than minority applicants owing to characteristics other than race, and the fact that the university admits "virtually every qualified under-represented minority applicant," App. to Pet. for Cert. 111a, may reflect nothing more than the likelihood that very few qualified minority applicants apply, Brief for Respondent Bollinger et al. 39, as well as the possibility that self-selection results in a strong minority applicant pool. It suffices for me, as it did for the District Court, that there are no -like set-asides and that consideration of an applicant's whole spectrum of ability is no more ruled out by giving 20 points for race than by giving the same points for athletic ability or socioeconomic disadvantage. Any argument that the "tailoring" amounts to a set-aside, then, boils down to the claim that a plus factor of 20 points makes some observers suspicious, where a factor of 10 points might not. But suspicion does not carry petitioners' ultimate burden of persuasion in this constitutional challenge,and it surely does not warrant condemning the college's admissions scheme on this record. Because the District Court (correctly, in my view) did not believe that the specific point assignment was constitutionally troubling, it made only limited and general findings on other characteristics of the university's admissions practice, such as the conduct of individualized review by the Admissions Review Committee. As the Court indicates, we know very little about the actual role of the review committee. Ante, ("The record does not reveal precisely how many applications are flagged for this individualized consideration [by the committee]"); see also ante, at 279-280 (O'CONNOR, J., concurring) ("The evidence in the record reveals very little about how the review committee actually functions"). The point system cannot operate as a de facto set-aside if the *297 greater admissions process, including review by the committee, results in individualized review sufficient to meet the Court's standards. Since the record is quiet, |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | to meet the Court's standards. Since the record is quiet, if not silent, on the case-by-case work of the committee, the Court would be on more defensible ground by vacating and remanding for evidence about the committee's specific determinations.[3] Without knowing more about how the Admissions Review Committee actually functions, it seems especially unfair to treat the candor of the admissions plan as an Achilles' heel. In contrast to the college's forthrightness in saying just what plus factor it gives for membership in an underrepresented minority, it is worth considering the character of one alternative thrown up as preferable, because supposedly not based on race. Drawing on admissions systems used at public universities in California, Florida, and Texas, the United States contends that Michigan could get student diversity in satisfaction of its compelling interest by guaranteeing admission to a fixed percentage of the top students from each high school in Michigan. Brief for United States as Amicus Curiae 18; Brief for United States as Amicus Curiae in Grutter v. Bollinger, O. T. 2002, No. 02-241, pp. 13-17. While there is nothing unconstitutional about such a practice, it nonetheless suffers from a serious disadvantage.[4] It *298 is the disadvantage of deliberate obfuscation. The "percentage plans" are just as race conscious as the point scheme (and fairly so), but they get their racially diverse results without saying directly what they are doing or why they are doing it. In contrast, Michigan states its purpose directly and, if this were a doubtful case for me, I would be tempted to give Michigan an extra point of its own for its frankness. Equal protection cannot become an exercise in which the winners are the ones who hide the ball. III If this plan were challenged by a plaintiff with proper standing under Article III, I would affirm the judgment of the District Court granting summary judgment to the college. As it is, I would vacate the judgment for lack of jurisdiction, and I respectfully dissent. JUSTICE GINSBURG, with whom JUSTICE SOUTER joins, dissenting.[*] I Educational institutions, the Court acknowledges, are not barred from any and all consideration of race when making admissions decisions. Ante, at 268; see Grutter v. Bollinger, post, at 326-333. But the Court once again maintains that the same standard of review controls judicial inspection of all official race classifications. Ante, at 270 ; ). This insistence on "consistency," 515 U. S., at would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law, see and n. 8 But we are not far distant from |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | and n. 8 But we are not far distant from an overtly discriminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident in our communities and schools. *299 In the wake "of a system of racial caste only recently ended," large disparities endure. Unemployment,[1] poverty,[2] and access to health care[3] vary disproportionately by race. Neighborhoods and schools remain racially divided.[4] African-American and Hispanic children are all too often educated in poverty-stricken *300 and underperforming institutions.[5] Adult African-Americans and Hispanics generally earn less than whites with equivalent levels of education.[6] Equally credentialed job applicants receive different receptions depending on their race.[7] Irrational prejudice is still encountered in real estate markets[8] and consumer transactions.[9] "Bias both *301 conscious and unconscious, reflecting traditional and unexamined habits of thought, keeps up barriers that must come down if equal opportunity and nondiscrimination are ever genuinely to become this country's law and practice." ; see generally Civil Rights Perestroika: Intergroup Relations After Affirmative Action, The Constitution instructs all who act for the government that they may not "deny to any person the equal protection of the laws." Amdt. 14, 1. In implementing this equality instruction, as I see it, government decisionmakers may properly distinguish between policies of exclusion and inclusion. See Actions designed to burden groups long denied full citizenship stature are not sensibly ranked with measures taken to hasten the day when entrenched discrimination and its aftereffects have been extirpated. See Carter, When Victims Happen To Be Black, 97 Yale L. J. 420, 433-434 (1988) ] was the same as the issue in ] is to pretend that history never happened and that the present doesn't exist."). Our jurisprudence ranks race a "suspect" category, "not because [race] is inevitably an impermissible classification, but because it is one which usually, to our national shame, has been drawn for the purpose of maintaining racial inequality." Norwalk But where race is considered "for the purpose of achieving equality," no automatic proscription is in order. *302 For, as insightfully explained: "The Constitution is both color blind and color conscious. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitution is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination." United ; see Wechsler, The Nationalization of Civil Liberties and Civil Rights, Supp. to 12 Tex. Q. 10, 23 (Brown may be seen as disallowing racial classifications that "impl[y] an invidious assessment" while allowing |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | disallowing racial classifications that "impl[y] an invidious assessment" while allowing such classifications when "not invidious in implication" but advanced to "correct inequalities"). Contemporary human rights documents draw just this line; they distinguish between policies of oppression and measures designed to accelerate de facto equality. See Grutter, post, at 344 (GINSBURG, J., concurring) (citing the United Nations-initiated Conventions on the Elimination of All Forms of Racial Discrimination and on the Elimination of All Forms of Discrimination against Women). The mere assertion of a laudable governmental purpose, of course, should not immunize a race-conscious measure from careful judicial inspection. See Jefferson County, 372 F. 2d, at ("The criterion is the relevancy of color to a legitimate governmental purpose."). Close review is needed "to ferret out classifications in reality malign, but masquerading as benign," and to "ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups," II Examining in this light the admissions policy employed by the University of Michigan's College of Literature, Science, and the Arts (College), and for the reasons well stated by *303 JUSTICE SOUTER, I see no constitutional infirmity. See ante, at 293-298 (dissenting opinion). Like other topranking institutions, the College has many more applicants for admission than it can accommodate in an entering class. App. to Pet. for Cert. 108a. Every applicant admitted under the current plan, petitioners do not here dispute, is qualified to attend the College. at 111a. The racial and ethnic groups to which the College accords special consideration (African-Americans, Hispanics, and Native-Americans) historically have been relegated to inferior status by law and social practice; their members continue to experience class-based discrimination to this day, see There is no suggestion that the College adopted its current policy in order to limit or decrease enrollment by any particular racial or ethnic group, and no seats are reserved on the basis of race. See Brief for Respondent Bollinger et al. 10; Tr. of Oral Arg. 41-42 (in the range between 75 and 100 points, the review committee may look at applications individually and ignore the points). Nor has there been any demonstration that the College's program unduly constricts admissions opportunities for students who do not receive special consideration based on race. Cf. Liu, The Causation Fallacy: and the Basic Arithmetic of Selective Admissions,[10] *304 The stain of generations of racial oppression is still visible in our society, see and the determination to hasten its removal remains vital. One can reasonably anticipate, therefore, that colleges and universities will seek to |
Justice Souter | 2,003 | 20 | second_dissenting | Gratz v. Bollinger | https://www.courtlistener.com/opinion/130154/gratz-v-bollinger/ | reasonably anticipate, therefore, that colleges and universities will seek to maintain their minority enrollmentand the networks and opportunities thereby opened to minority graduateswhether or not they can do so in full candor through adoption of affirmative action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage. For example, schools may encourage applicants to write of their cultural traditions in the essays they submit, or to indicate whether English is their second language. Seeking to improve their chances for admission, applicants may highlight the minority group associations to which they belong, or the Hispanic surnames of their mothers or grandparents. In turn, teachers' recommendations may emphasize who a student is as much as what he or she has accomplished. See, e. g., Steinberg, Using Synonyms for Race, College Strives for Diversity, *305 N. Y. Times, Dec. 8, 2002, section 1, p. 1, col. 3 (describing admissions process at Rice University); cf. Brief for United States as Amicus Curiae 14-15 (suggesting institutions could consider, inter alia, "a history of overcoming disadvantage," "reputation and location of high school," and "individual outlook as reflected by essays"). If honesty is the best policy, surely Michigan's accurately described, fully disclosed College affirmative action program is preferable to achieving similar numbers through winks, nods, and disguises.[11] * * * For the reasons stated, I would affirm the judgment of the District Court. |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | Long ago, William Blackstone wrote that "the law of the land postpone[s] even public necessity to the sacred and inviolable rights of private property." 1 Commentaries on the Laws of England 134-135 (1765) (hereinafter Blackstone). The Framers embodied that principle in the Constitution, allowing the government to take property not for "public necessity," but instead for "public " Amdt. 5. *506 Defying this understanding, the Court replaces the Public Use Clause with a "`[P]ublic [P]urpose'" Clause, ante, at 9-40 (or perhaps the "Diverse and Always Evolving Needs of Society" Clause, ante, at 9 (capitalization added)), a restriction that is satisfied, the Court instructs, so long as the purpose is "legitimate" and the means "not irrational," ante, at 4 (internal quotation marks omitted). This deferential shift in phraseology enables the Court to hold, against all common sense, that a costly urban-renewal project whose stated purpose is a vague promise of new jobs and increased tax revenue, but which is also suspiciously agreeable to the Pfizer Corporation, is for a "public " I cannot agree. If such "economic development" takings are for a "public use," any taking is, and the Court has erased the Public Use Clause from our Constitution, as JUSTICE O'CONNOR powerfully argues in dissent. Ante, at 494, 501-505. I do not believe that this Court can eliminate liberties expressly enumerated in the Constitution and therefore join her dissenting opinion. Regrettably, however, the Court's error runs deeper than this. Today's decision is simply the latest in a string of our cases construing the Public Use Clause to be a virtual nullity, without the slightest nod to its original meanin In my view, the Public Use Clause, originally understood, is a meaningful limit on the government's eminent domain power. Our cases have strayed from the Clause's original meaning, and I would reconsider them. I The Fifth Amendment provides: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb, nor shall be compelled in any *507 criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation." (Emphasis added.) It is the last of these liberties, the Takings Clause, that is |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | the last of these liberties, the Takings Clause, that is at issue in this case. In my view, it is "imperative that the Court maintain absolute fidelity to" the Clause's express limit on the power of the government over the individual, no less than with every other liberty expressly enumerated in the Fifth Amendment or the Bill of Rights more generally. (internal quotation marks omitted). Though one component of the protection provided by the Takings Clause is that the government can take private property only if it provides "just compensation" for the taking, the Takings Clause also prohibits the government from taking property except "for public " Were it otherwise, the Takings Clause would either be meaningless or empty. If the Public Use Clause served no function other than to state that the government may take property through its eminent domain powerfor public or private usesthen it would be surplusage. See ante, at 496 (O'CONNOR, J., dissenting); see also ; Alternatively, the Clause could distinguish those takings that require compensation from those that do not. That interpretation, however, "would permit private property to be taken or appropriated for private use without any compensation whatever." In other words, the Clause would require the government to compensate for takings done "for public use," leaving it free to take property for purely private uses without the payment of compensation. *50 This would contradict a bedrock principle well established by the time of the founding: that all takings required the payment of compensation. 1 Blackstone 135; 2 J. Kent, Commentaries on American Law 2 (127) (hereinafter Kent); For the National Gazette, Property (Mar. 27, 1792), in 14 Papers of James Madison 2, 267 (R. Rutland et al. eds. 193) (arguing that no property "shall be taken directly even for public use without indemnification to the owner").[1] The Public Use Clause, like the Just Compensation Clause, is therefore an express limit on the government's power of eminent domain. The most natural reading of the Clause is that it allows the government to take property only if the government owns, or the public has a legal right to use, the property, as opposed to taking it for any public purpose or necessity whatsoever. At the time of the founding, dictionaries primarily defined the noun "use" as "[t]he act of employing any thing to any purpose." 2 S. Johnson, A Dictionary of the English Language 2194 (4th ed. 1773) (hereinafter Johnson). The term "use," moreover, "is from the Latin utor, which means `to use, make use of, avail one's self of, employ, apply, enjoy, etc." J. Lewis, |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | avail one's self of, employ, apply, enjoy, etc." J. Lewis, Law of Eminent Domain 165, p. 224, n. 4 (1) (hereinafter Lewis). When the government takes property and gives it to a private individual, and the public has no right to use the property, it strains language to say that the public is "employing" the property, regardless of the incidental benefits that might accrue to the public from the private The term "public use," then, means that either the government or its citizens as a whole must actually *509 "employ" the taken property. See Granted, another sense of the word "use" was broader in meaning, extending to "[c]onvenience" or "help," or "[q]ualities that make a thing proper for any purpose." Nevertheless, read in context, the term "public use" possesses the narrower meanin Elsewhere, the Constitution twice employs the word "use," both times in its narrower sense. Claeys, Public-Use Limitations and Natural Property Rights, 2004 Mich. St. L. Rev. 77, 97 Article I, 10, provides that "the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shall be for the Use of the Treasury of the United States," meaning the Treasury itself will control the taxes, not use it to any beneficial end. And Article I, grants Congress power "[t]o raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years." Here again, "use" means "employed to raise and support Armies," not anything directed to achieving any military end. The same word in the Public Use Clause should be interpreted to have the same meanin Tellingly, the phrase "public use" contrasts with the very different phrase "general Welfare" used elsewhere in the Constitution. See ; preamble (Constitution established "to promote the general Welfare"). The Framers would have used some such broader term if they had meant the Public Use Clause to have a similarly sweeping scope. Other founding-era documents made the contrast between these two usages still more explicit. See Sales, Classical Republicanism and the Fifth Amendment's "Public Use" Requirement, 49 Duke L. J. 339, 367-36 (1999) (hereinafter Sales) (noting contrast between, on the one hand, the term "public use" used by 6 of the first 13 States and, on the other, *510 the terms "public exigencies" employed in the Massachusetts Bill of Rights and the Northwest Ordinance, and the term "public necessity" used in the Vermont Constitution of 176). The Constitution's text, in short, suggests that the Takings Clause authorizes the taking of property only if the public has a right to employ it, |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | only if the public has a right to employ it, not if the public realizes any conceivable benefit from the takin The Constitution's common-law background reinforces this understandin The common law provided an express method of eliminating uses of land that adversely impacted the public welfare: nuisance law. Blackstone and Kent, for instance, both carefully distinguished the law of nuisance from the power of eminent domain. Compare 1 Blackstone 135 (noting government's power to take private property with compensation) with 3 ; see also 2 Kent 274-276 (distinguishing the two). Blackstone rejected the idea that private property could be taken solely for purposes of any public benefit. "So great is the regard of the law for private property," he explained, "that it will not authorize the least violation of it; no, not even for the general good of the whole community." 1 Blackstone 135. He continued: "If a new road were to be made through the grounds of a private person, it might perhaps be extensively beneficial to the public; but the law permits no man, or set of men, to do this without the consent of the owner of the land." Only "by giving [the landowner] full indemnification" could the government take property, and even then "[t]he public [was] now considered as an individual, treating with an individual for an exchange." When the public took property, in other words, it took it as an individual buying property from another typically would: for one's own The Public Use Clause, in short, embodied the Framers' understanding that property is a natural, fundamental right, prohibiting the government from "tak[ing] property from A. and *511 giv[ing] it to B." 3 Dall. 36, 3 (179); see also 65 (129); Vanhorne's The public purpose interpretation of the Public Use Clause also unnecessarily duplicates a similar inquiry required by the Necessary and Proper Cla The Takings Clause is a prohibition, not a grant of power: The Constitution does not expressly grant the Federal Government the power to take property for any public purpose whatsoever. Instead, the Government may take property only when necessary and proper to the exercise of an expressly enumerated power. See (176) For a law to be within the Necessary and Proper Clause, as I have elsewhere explained, it must bear an "obvious, simple, and direct relation" to an exercise of Congress' enumerated powers, and it must not "subvert basic principles of" constitutional design, Gonzales v. Raich, ante, at 65 (THOMAS, J., dissenting). In other words, a taking is permissible under the Necessary and Proper Clause only if it serves a valid public |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | and Proper Clause only if it serves a valid public purpose. Interpreting the Public Use Clause likewise to limit the government to take property only for sufficiently public purposes replicates this inquiry. If this is all the Clause means, it is, once again, surplusage. See The Clause is thus most naturally read to concern whether the property is used by the public or the government, not whether the purpose of the taking is legitimately public. II Early American eminent domain practice largely bears out this understanding of the Public Use Cla This practice *512 concerns state limits on eminent domain power, not the Fifth Amendment, since it was not until the late 19th century that the Federal Government began to use the power of eminent domain, and since the Takings Clause did not even arguably limit state power until after the passage of the Fourteenth Amendment. See Note, The Public Use Limitation on Eminent Domain: An Advance Requiem, 5 Yale L. J. 599, 599-600, and nn. 3-4 (1949); Barron ex rel. (133) Nevertheless, several early state constitutions at the time of the founding likewise limited the power of eminent domain to "public uses." See Sales 367-369, 137 (emphasis deleted). Their practices therefore shed light on the original meaning of the same words contained in the Public Use Cla States employed the eminent domain power to provide quintessentially public goods, such as public roads, toll roads, ferries, canals, railroads, and public parks. Lewis 1, 16-171, 1, at 227-2, 234-241, 243. Though use of the eminent domain power was sparse at the time of the founding, many States did have so-called Mill Acts, which authorized the owners of grist mills operated by water power to flood upstream lands with the payment of compensation to the upstream landowner. See, e. 17, at 245-246; Those early grist mills "were regulated by law and compelled to serve the public for a stipulated toll and in regular order," and therefore were actually used by the public. Lewis 17, at 246, 3; see also at 1-19. They were common carriersquasi-public entities. These were "public uses" in the fullest sense of the word, because the public could legally use and benefit from them equally. See Public Use Limitations 903 (common-carrier status traditionally afforded to "private beneficiaries of a state franchise *513 or another form of state monopoly, or to companies that operated in conditions of natural monopoly"). To be sure, some early state legislatures tested the limits of their state-law eminent domain power. Some States enacted statutes allowing the taking of property for the purpose of building private |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | the taking of property for the purpose of building private roads. See Lewis 167, at 230. These statutes were mixed; some required the private landowner to keep the road open to the public, and others did not. See 167, at 230-234. Later in the 19th century, moreover, the Mill Acts were employed to grant rights to private manufacturing plants, in addition to grist mills that had common-carrier duties. See, e. M. The Transformation of American Law 170-160, pp. 51-52 (1977). These early uses of the eminent domain power are often cited as evidence for the broad "public purpose" interpretation of the Public Use Clause, see, e. ante, at 9-40, n. (majority opinion); Brief for Respondents 30; Brief for American Planning Assn. et al. as Amici Curiae 6-7, but in fact the constitutionality of these exercises of eminent domain power under state public use restrictions was a hotly contested question in state courts throughout the 19th and into the 20th century. Some courts construed those clauses to authorize takings for public purposes, but others adhered to the natural meaning of "public "[2] As noted above, *514 the earliest Mill Acts were applied to entities with duties to remain open to the public, and their later extension is not deeply probative of whether that subsequent practice is consistent with the original meaning of the Public Use Cla See At the time of the founding, "[b]usiness corporations were only beginning to upset the old corporate model, in which the raison d'être of chartered associations was their service to the public," so it was natural to those who framed the first Public Use Clauses to think of mills as inherently public entities. The disagreement among state courts, and state legislatures' attempts to circumvent public use limits on their eminent domain power, cannot obscure that the Public Use Clause is most naturally read to authorize takings for public use only if the government or the public actually uses the taken property. III Our current Public Use Clause jurisprudence, as the Court notes, has rejected this natural reading of the Cla Ante, at 9-43. The Court adopted its modern reading blindly, with little discussion of the Clause's history and original meaning, in two distinct lines of cases: first, in cases adopting the "public purpose" interpretation of the Clause, and second, in cases deferring to legislatures' judgments regarding what constitutes a valid public purpose. Those questionable cases converged in the boundlessly broad and deferential *515 conception of "public use" adopted by this Court in 34 U.S. 26 and Hawaii Housing (194), cases that take center stage in |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | and Hawaii Housing (194), cases that take center stage in the Court's opinion. See ante, at 40-42. The weakness of those two lines of cases, and consequently and fatally undermines the doctrinal foundations of the Court's decision. Today's questionable application of these cases is further proof that the "public purpose" standard is not susceptible of principled application. This Court's reliance by rote on this standard is ill advised and should be reconsidered. A As the Court notes, the "public purpose" interpretation of the Public Use Clause stems from Fallbrook Irrigation (196). Ante, at 9-40. The issue in was whether a condemnation for purposes of constructing an irrigation ditch was for a public This was a public use, Justice Peckham declared for the Court, because "[t]o irrigate and thus to bring into possible cultivation these large masses of otherwise worthless lands would seem to be a public purpose and a matter of public interest, not confined to landowners, or even to any one section of the State." That broad statement was dictum, for the law under review also provided that "[a]ll landowners in the district have the right to a proportionate share of the water." Thus, the "public" did have the right to use the irrigation ditch because all similarly situated members of the publicthose who owned lands irrigated by the ditchhad a right to use it. The Court cited no authority for its dictum, and did not discuss either the Public Use Clause's original meaning or the numerous authorities that had adopted the "actual use" test (though it at least acknowledged the conflict of authority in state courts, see at 15; 2). Instead, the Court reasoned that "[t]he use must be regarded as a public use, or else it would seem to follow that no general *516 scheme of irrigation can be formed or carried into effect." This is no statement of constitutional principle: Whatever the utility of irrigation districts or the merits of the Court's view that another rule would be "impractical given the diverse and always evolving needs of society," ante, at 9, the Constitution does not embody those policy preferences any more than it "enact[s] Mr. Herbert Spencer's Social Statics," 19 U.S. 45, ; but see at 5-62 This Court's cases followed 's test with little analysis. In 19 U.S. 361 this Court relied on little more than a citation to in upholding another condemnation for the purpose of laying an irrigation 19 U. S., at 369-. As in use of the "public purpose" test was unnecessary to the result the Court reached. The government condemned the |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | to the result the Court reached. The government condemned the irrigation ditch for the purpose of ensuring access to water in which "[o]ther land owners adjoining the defendant in error might share," 19 U. S., at and therefore Clark also involved a condemnation for the purpose of ensuring access to a resource to which similarly situated members of the public had a legal right of access. Likewise, in the Court upheld a condemnation establishing an aerial right-of-way for a bucket line operated by a mining company, relying on little more than Clark, see This case, too, could have been disposed of on the narrower ground that "the plaintiff [was] a carrier for itself and others," 200 U. S., -5, and therefore that the bucket line was legally open to the public. Instead, the Court unnecessarily rested its decision on the "inadequacy of use by the general public as a universal test." This Court's cases quickly incorporated the public purpose standard set forth in Clark and by barren citation. See, *517 e. Rindge ; ; Mt. Vernon-Woodberry Cotton Duck ; B A second line of this Court's cases also deviated from the Public Use Clause's original meaning by allowing legislatures to define the scope of valid "public uses." United 160 U.S. (196), involved the question whether Congress' decision to condemn certain private land for the purpose of building battlefield memorials at Gettysburg, Pennsylvania, was for a public at 679-60. Since the Federal Government was to use the lands in question, at 62, there is no doubt that it was a public use under any reasonable standard. Nonetheless, the Court, speaking through Justice Peckham, declared that "when the legislature has declared the use or purpose to be a public one, its judgment will be respected by the courts, unless the use be palpably without reasonable foundation." at 60. As it had with the "public purpose" dictum in the Court quickly incorporated this dictum into its Public Use Clause cases with little discussion. See, e. United States ex rel. 7 U.S. 546, ; Old Dominion Land There is no justification, however, for affording almost insurmountable deference to legislative conclusions that a use serves a "public " To begin with, a court owes no deference to a legislature's judgment concerning the quintessentially legal question of whether the government owns, or the public has a legal right to use, the taken property. Even under the "public purpose" interpretation, moreover, it is most implausible that the Framers intended to defer to legislatures as to what satisfies the Public Use Clause, uniquely *51 among all the express |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | the Public Use Clause, uniquely *51 among all the express provisions of the Bill of Rights. We would not defer to a legislature's determination of the various circumstances that establish, for example, when a search of a home would be reasonable, see, e. 59-590 (190), or when a convicted double-murderer may be shackled during a sentencing proceeding without on-the-record findings, see or when state law creates a property interest protected by the Due Process Clause, see, e. Castle Rock v. Gonzales, post, at 6-; Board of Regents of State 40 U.S. 564, ; Still worse, it is backwards to adopt a searching standard of constitutional review for nontraditional property interests, such as welfare benefits, see, e. while deferring to the legislature's determination as to what constitutes a public use when it exercises the power of eminent domain, and thereby invades individuals' traditional rights in real property. The Court has elsewhere recognized "the overriding respect for the sanctity of the home that has been embedded in our traditions since the origins of the Republic," Payton, when the issue is only whether the government may search a home. Yet today the Court tells us that we are not to "second-guess the City's considered judgments," ante, at 4, when the issue is, instead, whether the government may take the infinitely more intrusive step of tearing down petitioners' homes. Something has gone seriously awry with this Court's interpretation of the Constitution. Though citizens are safe from the government in their homes, the homes themselves are not. Once one accepts, as the Court at least nominally does, ante, at 7, that the Public Use Clause is a limit on the eminent domain power of the Federal Government and the States, there is no justification for the almost complete deference it grants to legislatures as to what satisfies it. *519 C These two misguided lines of precedent converged in 34 U.S. 26 and Hawaii Housing (194). Relying on those lines of cases, the Court in and upheld condemnations for the purposes of slum clearance and land redistribution, respectively. "Subject to specific constitutional limitations," proclaimed, "when the legislature has spoken, the public interest has been declared in terms wellnigh conclusive. In such cases the legislature, not the judiciary, is the main guardian of the public needs to be served by social legislation." 34 U. S., at That reasoning was question begging, since the question to be decided was whether the "specific constitutional limitation" of the Public Use Clause prevented the taking of the appellant's (concededly "nonblighted") department store. also appeared to reason that any exercise by Congress |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | store. also appeared to reason that any exercise by Congress of an enumerated power (in this case, its plenary power over the District of Columbia) was per se a "public use" under the Fifth Amendment. But the very point of the Public Use Clause is to limit that power. See at 50. More fundamentally, and erred by equating the eminent domain power with the police power of States. See ; at Traditional uses of that regulatory power, such as the power to abate a nuisance, required no compensation whatsoever, see -9 (17), in sharp contrast to the takings power, which has always required compensation, see at 50, 1. The question whether the State can take property using the power of eminent domain is therefore distinct from the question whether it can regulate property pursuant to the police power. See, e. ; Mugler, *520 at -9. In for example, if the slums at issue were truly "blighted," then state nuisance law, see, e. ; not the power of eminent domain, would provide the appropriate remedy. To construe the Public Use Clause to overlap with the States' police power conflates these two categories.[3] The "public purpose" test applied by and also cannot be applied in principled manner. "When we depart from the natural import of the term `public use,' and substitute for the simple idea of a public possession and occupation, that of public utility, public interest, common benefit, general advantage or convenience we are afloat without any certain principle to guide us." 1 Wend. 9, (NY 137) Once one permits takings for public purposes in addition to public uses, no coherent principle limits what could constitute a valid public useat least, none beyond JUSTICE O'CONNOR's (entirely proper) appeal to the text of the Constitution itself. See ante, at 494, 501-505 (dissenting opinion). I share the Court's skepticism about a public use standard that requires courts to second-guess the policy wisdom of public works projects. Ante, at 46-49. The "public purpose" standard this Court has adopted, however, demands the use of such judgment, for the Court concedes that the Public Use Clause would forbid a purely private takin *521 Ante, at 7-. It is difficult to imagine how a court could find that a taking was purely private except by determining that the taking did not, in fact, rationally advance the public interest. Cf. ante, at 502-503 (O'CONNOR, J., dissenting) (noting the complicated inquiry the Court's test requires). The Court is therefore wrong to criticize the "actual use" test as "difficult to administer." Ante, at 9. It is far easier to analyze |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | administer." Ante, at 9. It is far easier to analyze whether the government owns or the public has a legal right to use the taken property than to ask whether the taking has a "purely private purpose"unless the Court means to eliminate public use scrutiny of takings entirely. Ante, at 7-, 4-49. Obliterating a provision of the Constitution, of course, guarantees that it will not be misapplied. For all these reasons, I would revisit our Public Use Clause cases and consider returning to the original meaning of the Public Use Clause: that the government may take property only if it actually uses or gives the public a legal right to use the property. IV The consequences of today's decision are not difficult to predict, and promise to be harmful. So-called "urban renewal" programs provide some compensation for the properties they take, but no compensation is possible for the subjective value of these lands to the individuals displaced and the indignity inflicted by uprooting them from their homes. Allowing the government to take property solely for public purposes is bad enough, but extending the concept of public purpose to encompass any economically beneficial goal guarantees that these losses will fall disproportionately on poor communities. Those communities are not only systematically less likely to put their lands to the highest and best social use, but are also the least politically powerful. If ever there were justification for intrusive judicial review of constitutional provisions that protect "discrete and insular minorities," United States v. Carolene Products Co., 304 U. S. *522 144, 152, n. 4 (193), surely that principle would apply with great force to the powerless groups and individuals the Public Use Clause protects. The deferential standard this Court has adopted for the Public Use Clause is therefore deeply perverse. It encourages "those citizens with disproportionate influence and power in the political process, including large corporations and development firms," to victimize the weak. Ante, at 505 (O'CONNOR, J., dissenting). Those incentives have made the legacy of this Court's "public purpose" test an unhappy one. In the 1950's, no doubt emboldened in part by the expansive understanding of "public use" this Court adopted in cities "rushed to draw plans" for downtown development. B. Frieden & L. Sagalyn, Downtown, Inc. How America Rebuilds Cities 17 (199). "Of all the families displaced by urban renewal from 1949 through 1963, 63 percent of those whose race was known were nonwhite, and of these families, 56 percent of nonwhites and 3 percent of whites had incomes low enough to qualify for public housing, which, however, was seldom available |
Justice Thomas | 2,005 | 1 | second_dissenting | Kelo v. New London | https://www.courtlistener.com/opinion/799984/kelo-v-new-london/ | to qualify for public housing, which, however, was seldom available to them." at Public works projects in the 1950's and 1960's destroyed predominantly minority communities in St. Paul, Minnesota, and Baltimore, Maryland. at -29. In 191, urban planners in Detroit, Michigan, uprooted the largely "lower-income and elderly" Poletown neighborhood for the benefit of the General Motors Corporation. J. Wylie, Poletown: Community Betrayed 5 (199). Urban renewal projects have long been associated with the displacement of blacks; "[i]n cities across the country, urban renewal came to be known as `Negro removal.'" Pritchett, The "Public Menace" of Blight: Urban Renewal and the Private Uses of Eminent Domain, Over 97 percent of the individuals forcibly removed from their homes by the "slum-clearance" project upheld by this Court in were 34 U. S., at 30. Regrettably, the predictable consequence of the Court's decision will be to exacerbate these effects. *523 * * * The Court relies almost exclusively on this Court's prior cases to derive today's far-reaching, and dangerous, result. See ante, at 9-43. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham's high opinion of reclamation laws, see When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution's original meanin For the reasons I have given, and for the reasons given in JUSTICE O'CONNOR's dissent, the conflict of principle raised by this boundless use of the eminent domain power should be resolved in petitioners' favor. I would reverse the judgment of the Connecticut Supreme Court. |
Justice Black | 1,970 | 21 | dissenting | Vale v. Louisiana | https://www.courtlistener.com/opinion/108183/vale-v-louisiana/ | The Fourth Amendment to the United Constitution prohibits only "unreasonable searches."[*] A warrant has never been thought to be an absolute requirement for a constitutionally proper search. Searches, whether with or without a warrant, are to be judged by whether they are reasonable, and, as I said, speaking for the Court in common sense dictates that reasonableness varies with the circumstances of the search. See, e. g., ; The Louisiana Supreme Court held not only that the police action here was reasonable but also that failure to conduct an immediate search would have been unreasonable. With that view I am in complete agreement, for the following reasons. The police, having warrants for Vale's arrest, were watching his mother's house from a short distance away. Not long after they began their vigil a car arrived, *37 sounded its horn, and backed into a parking space near the house. The driver did not get out, but instead honked the car horn again. Vale, who had been arrested twice the month before and against whom an indictment for a narcotics offense was then pending, came out of his mother's house and talked to the driver of the car. At the conclusion of the conversation Vale looked both ways, up and down the street, and then went back inside the house. When he reappeared he stopped before going to the car and stood, as one of the officers testified, "[l]ooking back and forth like to see who might be coming or who was in the neighborhood." He then walked to the car and leaned in. From this behavior the officers were convinced that a narcotics transaction was taking place at that very moment. They drove down the street toward Vale and the parked car. When they came within a few car lengths of the two men Vale saw them and began to walk quickly back toward the house. At the same time the driver of the car attempted to pull away. The police brought both parties to the transaction to a stop. They then saw that the driver of the car was one Saucier, a known narcotics addict. He hurriedly placed something in his mouth, and apparently swallowed it. The police placed both Vale and Saucier under arrest. At this point the police had probable cause to believe that Vale was engaged in a narcotics transfer, and that a supply of narcotics would be found in the house, to which Vale had returned after his first conversation, from which he had emerged furtively bearing what the police could readily deduce was a supply of |
Justice Black | 1,970 | 21 | dissenting | Vale v. Louisiana | https://www.courtlistener.com/opinion/108183/vale-v-louisiana/ | what the police could readily deduce was a supply of narcotics, and toward which he hurried after seeing the police. But the police did not know then who else might be in the house. Vale's arrest took place near the house, and anyone observing from inside would surely have been alerted to destroy the stocks of contraband which *38 the police believed Vale had left there. The police had already seen Saucier, the narcotics addict, apparently swallow what Vale had given him. Believing that some evidence had already been destroyed and that other evidence might well be, the police were faced with the choice of risking the immediate destruction of evidence or entering the house and conducting a search. I cannot say that their decision to search was unreasonable. Delay in order to obtain a warrant would have given an accomplice just the time he needed. That the arresting officers did, in fact, believe that others might be in the house is attested to by their actions upon entering the door left open by Vale. The police at once checked the small house to determine if anyone else was present. Just as they discovered the house was empty, however, Vale's mother and brother arrived. Now what had been a suspicion became a certainty: Vale's relatives were in possession and knew of his arrest. To have abandoned the search at this point, and left the house with Vale, would not have been the action of reasonable police officers. As MR. JUSTICE WHITE said, dissenting in : "For the police to search the house while the evidence they had probable cause to search out and seize was still there cannot be considered unreasonable." In my view, whether a search incident to a lawful arrest is reasonable should still be determined by the facts and circumstances of each case. ; United For the reasons given above I am convinced that the search here was reasonable, even though Vale had not yet crossed the threshold of the house toward which he was headed. *39 Moreover, the circumstances here were sufficiently exceptional to justify a search, even if the search was not strictly "incidental" to an arrest. The Court recognizes that searches to prevent the destruction or removal of evidence have long been held reasonable by this Court. McDonald v. United ; Carroll v. United Whether the "exceptional circumstances" justifying such a search exist or not is a question that may be, as it is here, quite distinct from whether or not the search was incident to a valid arrest. See United v. Jeffers, ; |
Justice Black | 1,970 | 21 | dissenting | Vale v. Louisiana | https://www.courtlistener.com/opinion/108183/vale-v-louisiana/ | incident to a valid arrest. See United v. Jeffers, ; Johnson v. United It is thus unnecessary to determine whether the search was valid as incident to the arrest under either or under the pre-Chimel standard as interpreted in Shipley v. It is only necessary to find that, given Vale's arrest in a spot readily visible to anyone in the house and the probable existence of narcotics inside, it was reasonable for the police to conduct an immediate search of the premises. The Court, however, finds the search here unreasonable. First, the Court suggests that the contraband was not "in the process of destruction." None of the cases cited by the Court supports the proposition that "exceptional circumstances" exist only when the process of destruction has already begun. On the contrary we implied that those circumstances did exist when "evidence or contraband was threatened with removal or destruction." Johnson v. United See also Chapman v. United ; Hernandez v. United cert. denied, *40 Second, the Court seems to argue that the search was unreasonable because the police officers had time to obtain a warrant. I agree that the opportunity to obtain a warrant is one of the factors to be weighed in determining reasonableness. Trupiano v. United ; United But the record conclusively shows that there was no such opportunity here. As I noted above, once the officers had observed Vale's conduct in front of the house they had probable cause to believe that a felony had been committed and that immediate action was necessary. At no time after the events in front of Mrs. Vale's house would it have been prudent for the officers to leave the house in order to secure a warrant. The Court asserts, however, that because the police obtained two warrants for Vale's arrest there is "no reason to suppose that it was impracticable for them to obtain a search warrant as well." The difficulty is that the two arrest warrants on which the Court seems to rely so heavily were not issued because of any present misconduct of Vale's; they were issued because the bond had been increased for an earlier narcotics charge then pending against Vale. When the police came to arrest Vale, they knew only that his bond had been increased. There is nothing in the record to indicate that, absent the increased bond, there would have been probable cause for an arrest, much less a search. Probable cause for the search arose for the first time when the police observed the activity of Vale and Saucier in and around the house. |
Justice Black | 1,970 | 21 | dissenting | Vale v. Louisiana | https://www.courtlistener.com/opinion/108183/vale-v-louisiana/ | activity of Vale and Saucier in and around the house. I do not suggest that all arrests necessarily provide the basis for a search of the arrestee's house. In this case there is far more than a mere street arrest. The police also observed Vale's use of the house as a base of operations for his commercial business, his attempt to *41 return hurriedly to the house on seeing the officers, and the apparent destruction of evidence by the man with whom Vale was dealing. Furthermore the police arrival and Vale's arrest were plainly visible to anyone within the house, and the police had every reason to believe that someone in the house was likely to destroy the contraband if the search were postponed. This case raises most graphically the question how does a policeman protect evidence necessary to the State if he must leave the premises to get a warrant, allowing the evidence he seeks to be destroyed. The Court's answer to that question makes unnecessarily difficult the conviction of those who prey upon society. |
Justice Scalia | 1,989 | 9 | concurring | Duquesne Light Co. v. Barasch | https://www.courtlistener.com/opinion/112169/duquesne-light-co-v-barasch/ | I join the Court in reaffirming our established rule that no single ratemaking methodology is mandated by the Constitution, which looks to the consequences a governmental authority produces rather than the techniques it employs. See, e. g., ; ; I think it important to observe, however, that while "prudent investment" (by which I mean capital reasonably expended to meet the utility's legal obligation to assure adequate service) need not be taken into account as such in ratemaking formulas, it may need to be taken into account in assessing the constitutionality of the particular consequences produced by those formulas. We cannot determine whether the payments a utility has been allowed to collect constitute a fair return on investment, and thus whether the government's action is confiscatory, unless we agree upon what the relevant "investment" is. For that purpose, all prudently incurred investment may well have to be counted. As the Court's opinion describes, that question is not presented in the present suit, which challenges techniques rather than consequences. |
Justice Burger | 1,973 | 12 | majority | Gilligan v. Morgan | https://www.courtlistener.com/opinion/108837/gilligan-v-morgan/ | Respondents, alleging that they were full-time students and officers in the student government at Kent State University in Ohio, filed this action[1] in the District Court on behalf of themselves and all other students on October 15, 1970. The essence of the complaint is that, during a period of civil disorder on and around the University campus in May 1970, the National Guard, called by the Governor of Ohio to preserve civil order and protect public property, violated students' rights of speech and assembly and caused injury to a number of students and death to several, and that the actions of the National Guard were without legal justification. They sought injunctive relief against the Governor to restrain him in the future from prematurely ordering National Guard troops to duty in civil disorders and an injunction to restrain leaders of the National Guard from future violation of the students' constitutional rights. They also sought a declaratory judgment that 2923.55 of the Ohio Revised Code[2] is unconstitutional. The District Court held that the complaint failed to state a claim upon which relief could be granted and dismissed the suit. The Court of Appeals[3] unanimously affirmed the District Court's dismissal with respect to injunctive relief against the Governor's "premature" employment of the Guard on future occasions and with respect to the *4 validity of the state statute.[4] At the same time, however, the Court of Appeals, with one judge dissenting, held that the complaint stated a cause of action with respect to one issue which was remanded to the District Court with directions to resolve the following question: "Was there and is there a pattern of training, weaponry and orders in the Ohio National Guard which singly or together require or make inevitable the use of fatal force in suppressing civilian disorders when the total circumstances at the critical time are such that nonlethal force would suffice to restore order and the use of lethal force is not reasonably necessary?"[5] We granted certiorari to review the action of the Court of Appeals.[6] I We note at the outset that since the complaint was filed in the District Court in 1970, there have been a number of changes in the factual situation. At the oral argument, we were informed that none of the named respondents is still enrolled in the University.[7] Likewise, the officials originally named as party defendants no longer hold offices in which they can exercise any authority over the State's National Guard,[8] although the suit is against such parties and their successors in office. In addition, both the petitioners, and the |
Justice Burger | 1,973 | 12 | majority | Gilligan v. Morgan | https://www.courtlistener.com/opinion/108837/gilligan-v-morgan/ | successors in office. In addition, both the petitioners, and the Solicitor General appearing as amicus curiae, have informed us that since 1970 the Ohio National Guard has adopted new "use of force" rules substantially differing from those in *5 effect when the complaint was filed; we are also informed that the initial training of National Guard recruits relating to civil disorder control[9] has been revised. Respondents assert, nevertheless, that these changes in the situation do not affect their right to a hearing on their entitlement to injunctive and supervisory relief. Some basis, therefore, exists for a conclusion that the case is now moot; however, on the record before us we are not prepared to resolve the case on that basis and therefore turn to the important question whether the claims alleged in the complaint, as narrowed by the Court of Appeals' remand, are justiciable. II We can treat the question of justiciability on the basis of an assumption that respondents' claims, within the framework of the remand order, are true and could be established by evidence. On that assumption, we address the question whether there is any relief a District Court could appropriately fashion. It is important to note at the outset that this is not a case in which damages are sought for injuries sustained during the tragic occurrence at Kent State. Nor is it an action seeking a restraining order against some specified and imminently threatened unlawful action. Rather, it is a broad call on judicial power to assume continuing regulatory jurisdiction over the activities of the Ohio National Guard. This far-reaching demand for relief presents important questions of justiciability. Respondents continue to seek for the benefit of all Kent State students a judicial evaluation of the appropriateness of the "training, weaponry and orders" of the Ohio *6 National Guard. They further demand, and the Court of Appeals' remand would require, that the District Court establish standards for the training, kind of weapons and scope and kind of orders to control the actions of the National Guard. Respondents contend that thereafter the District Court must assume and exercise a continuing judicial surveillance over the Guard to assure compliance with whatever training and operations procedures may be approved by that court. Respondents press for a remedial decree of this scope, even assuming that the recently adopted changes are deemed acceptable after an evidentiary hearing by the court. Continued judicial surveillance to assure compliance with the changed standards is what respondents demand. In relying on the Due Process Clause of the Fourteenth Amendment, respondents seem to overlook the explicit command |
Justice Burger | 1,973 | 12 | majority | Gilligan v. Morgan | https://www.courtlistener.com/opinion/108837/gilligan-v-morgan/ | the Fourteenth Amendment, respondents seem to overlook the explicit command of Art. I, 8, cl. 16, which vests in Congress the power: "To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress." (Emphasis added.) The majority opinion in the Court of Appeals does not mention this very relevant provision of the Constitution. Yet that provision is explicit that the Congress shall have the responsibility for organizing, arming, and disciplining the Militia (now the National Guard), with certain responsibilities being reserved to the respective States. Congress has enacted appropriate legislation pursuant to Art. I, 8, cl. 16,[10] and has also authorized the President *7 as the Commander in Chief of the Armed Forces to prescribe regulations governing organization and discipline of the National Guard.[11] The Guard is an essential reserve component of the Armed Forces of the United States, available with regular forces in time of war. The Guard also may be federalized in addition to its role under state governments, to assist in controlling civil disorders.[12] The relief sought by respondents, requiring initial judicial review and continuing surveillance by a federal court over the training, weaponry, and orders of the Guard, would therefore embrace critical areas of responsibility vested by the Constitution in the Legislative and Executive Branches of the Government.[13] The Court of Appeals invited the District Court on remand to survey certain materials not then in the record of the case: "[F]or example: Prevention and Control of Mobs and Riots, Federal Bureau of Investigation, U. S. Dept. of Justice, J. Edgar Hoover (1967); 32 C. F. R. 501 (1971), `Employment of Troops in Aid of Civil Authorities'; Instructions for Members of the Force at Mass Demonstrations, Police Department, City of New York (no date); Report of the National Advisory Commission on Civil Disorders" *8 This would plainly and explicitly require a judicial evaluation of a wide range of possibly dissimilar procedures and policies approved by different law enforcement agencies or other authorities; and the examples cited may represent only a fragment of the accumulated data and experience in the various States, in the Armed Services, and in other concerned agencies of the Federal Government. Trained professionals, subject to the day-to-day control of the responsible civilian authorities, necessarily must make comparative judgments on the merits as to evolving methods of training, equipping, and controlling military forces with respect |
Justice Burger | 1,973 | 12 | majority | Gilligan v. Morgan | https://www.courtlistener.com/opinion/108837/gilligan-v-morgan/ | methods of training, equipping, and controlling military forces with respect to their duties under the Constitution. It would be inappropriate for a district judge to undertake this responsibility in the unlikely event that he possessed requisite technical competence to do so. Judge Celebrezze, in dissent, correctly read when he said: "I believe that the congressional and executive authority to prescribe and regulate the training and weaponry of the National Guard, as set forth above, clearly precludes any form of judicial regulation of the same matters. I can envision no form of judicial relief which, if directed at the training and weaponry of the National Guard, would not involve a serious conflict with a "`coordinate political department; a lack of judicially discoverable and manageable standards for resolving [the question]; the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; the impossibility of a court's undertaking independent resolution without expressing lack of the respect due coordinate branches of government; an unusual need for unquestioning adherence to a *9 political decision already made; [and] the potentiality of embarrassment from multifarious pronouncements by various departments on one question.' "Any such relief, whether it prescribed standards of training and weaponry or simply ordered compliance with the standards set by Congress and/or the Executive, would necessarily draw the courts into a nonjusticiable political question, over which we have no jurisdiction." In this Court noted that: "Justiciability is itself a concept of uncertain meaning and scope. Its reach is illustrated by the various grounds upon which questions sought to be adjudicated in federal courts have been held not to be justiciable. Thus, no justiciable controversy is presented when the parties seek adjudication of only a political question, when the parties are asking for an advisory opinion, when the question sought to be adjudicated has been mooted by subsequent developments, and when there is no standing to maintain the action. Yet it remains true that `[j]usticiability is not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures.'"[14] In determining justiciability, the analysis in Flast thus suggests that there is no justiciable controversy (a) "when the parties are asking for an advisory opinion," (b) "when the question sought to be adjudicated has been mooted by subsequent developments," and *10 (c) "when there is no standing to maintain the action." As we noted in and repeated in Flast, "[j]usticiability is not a legal concept with a fixed content or susceptible of scientific verification. Its utilization is the resultant of many subtle pressures" |
Justice Burger | 1,973 | 12 | majority | Gilligan v. Morgan | https://www.courtlistener.com/opinion/108837/gilligan-v-morgan/ | verification. Its utilization is the resultant of many subtle pressures" 367 U.S., at In testing this case by these standards drawn specifically from Flast, there are serious deficiencies with respect to each. The advisory nature of the judicial declaration sought is clear from respondents' argument and, indeed, from the very language of the court's remand. Added to this is that the nature of the questions to be resolved on remand are subjects committed expressly to the political branches of government. These factors, when coupled with the uncertainties as to whether a live controversy still exists and the infirmity of the posture of respondents as to standing, render the claim and the proposed issues on remand nonjusticiable. It would be difficult to think of a clearer example of the type of governmental action that was intended by the Constitution to be left to the political branches directly responsibleas the Judicial Branch is notto the electoral process. Moreover, it is difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive Branches. The ultimate responsibility for these decisions is appropriately vested in branches of the government which are periodically subject to electoral accountability. It is this power of oversight and control of military force by elected representatives and officials which underlies our entire constitutional system; the majority opinion of the *11 Court of Appeals failed to give appropriate weight to this separation of powers.[15] Voting rights cases such as and prisoner rights cases such as are cited by the court as supporting the "diminish [ing] vitality of the political question doctrine." Yet, because this doctrine has been held inapplicable to certain carefully delineated situations, it is no reason for federal courts to assume its demise. The voting rights cases, indeed, have represented the Court's efforts to strengthen the political system by assuring a higher level of fairness and responsiveness to the political processes, not the assumption of a continuing judicial review of substantive political judgments entrusted expressly to the coordinate branches of government. In concluding that no justiciable controversy is presented, it should be clear that we neither hold nor imply that the conduct of the National Guard is always beyond judicial review or that there may not be accountability in a judicial forum for violations of law or for specific *12 unlawful conduct by military personnel,[16] whether by way of damages or injunctive |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | Unlike the Court, I believe the District Court's remand order is reviewable on appeal. And, reviewing the decision below, I would hold that Powerex is an organ of the Government of British Columbia. I The majority concludes that (d) took from the Ninth Circuit the power to review the District Court's remand decision. The statutory argument is a strong one. Section 1447(c) says that, "[i]f at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded" to state court; and 1447(d), referring to subsection (c), adds that a district court "order remanding a case to the State court from which it was removed is not reviewable on appeal or otherwise." Thermtron Nonetheless this Court has found exceptions to 1447's seemingly blanket prohibition. See, e.g., In doing so, the Court has recognized that even a statute silent on the subject can create an important conflict with 1447(d)'s "no appellate review" instruction. And where that is so, we have, *2422 in fact, resolved the conflict by reading a later more specific statute as creating an implicit exception to 1447(d) (though did not say as much). at -896. The subject matter of the Foreign Sovereign Immunity Act of 's removal provision, foreign sovereigns, is special. And the FSIA creates serious conflicts with 1447(d)'s "no appellate review" instruction. The FSIA is later enacted and subject-matter specific. Consequently, I would read into the FSIA a similar exception to 1447(d), applicable here. illustrates my starting point: a conflict with 1447(d). The Westfall Act, the specific statute at issue in that case, provides for removal to federal court of a state-court lawsuit brought against a federal employee where the state-court lawsuit attacks employee actions within the scope of federal employment. 28 U.S.C. 2679(d)(2)-(3). The Westfall Act authorizes the Attorney General to certify that the employee's actions at issue fall within the scope of federal employment. And the Westfall Act says that the certification "conclusively establish[es]" that fact for removal purposes. 2679(d)(1)-(2). In we pointed out that 1447(d) would permit a district court, without appellate review, to remand in the face of a contrary Attorney General certification. 549 U.S., at -895. Doing so, without appellate review, would thereby permit the district court to substitute its own judgment (as to whether the employee's actions were within the federal "scope of employment") for that of the Attorney General. And the district court would thereby have the unreviewable power to make the Attorney General's determination non conclusive, contrary to what the statute says. Because 1447(d), if applied, would render this statutory |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | statute says. Because 1447(d), if applied, would render this statutory instruction "weightless," we found a conflict with 1447(d). And we resolved the conflict in favor of the later enacted, more specific Westfall Act. at A similarly strong conflict exists here, albeit not with a separate removal provision, but rather with a comprehensive statutory scheme. To understand how that is so, imagine a case not now before us. Imagine that a private plaintiff brings a lawsuit in state court against a noncommercial division of a foreign nation's government, say, a branch of that nation's defense ministry or, for that matter, against the foreign nation itself. The FSIA provides a specific guarantee that such a suit cannot continue (except in certain instances that, for purposes of my example, are not relevant). 28 U.S.C. 1602-1605. It achieves this objective by authorizing the foreign government to remove the case to federal court where a federal judge will determine if the defendant is indeed a foreign government and, if so, dismiss the case. 1441(d). What happens if the foreign sovereign removes the case to federal court only to have the federal judge mistakenly remand the case to state court? As in an ordinary case, the lawsuit may well continue in the state tribunal. But, if so, unlike the ordinary case (say, a wrongly remanded diversity or "arising under" case) but like the removing party will have lost considerably more than a choice of forum. The removing party will have lost that which a different portion of the special statute sought to provide, namely, the immunity from suit that the FSIA sought to assure. That assurance forms a separate and central FSIA objective. The very purpose of sovereign immunity is to avoid subjecting a foreign sovereign to the rigors and "inconvenience of suit." Dole Food In such a case, a state court likely will feel bound by the federal court's prior judgment on the lack of immunity (under state law-of-the-case doctrine) and this Court's review (of an adverse state-court judgment) will come too late. In such a case, the FSIA's basic objective (unrelated to choice of forum) will have become "weightless." at -895. It is difficult to see how this conflict between the FSIA's basic objective and 1447(d) is any less serious than the conflict at issue in The statutory objective here, harmonious relations with foreign sovereigns, is more, not less, important. See Ex parte Peru, See also, e.g., Republic of ; Schooner ; H.R.Rep. No. 94-1487, p. 13 (hereinafter H.R. Rep.) (FSIA intended to avoid "adverse foreign relations consequences"). Neither is a 1447(d) exception here |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | "adverse foreign relations consequences"). Neither is a 1447(d) exception here likely to undermine 1447(d)'s basic purpose: avoiding the procedural delay that an added federal appeal would create. Avoiding that delay is important in a typical case where only choice of forum is at issue. But that same delay is necessary, indeed, crucial, in the special case where a foreign sovereign's immunity from suit is at issue. At the same time, foreign affairs is itself an exceptional topic, with special risks, special expertise, and special federal authority; hence, our finding a 1447(d) exception in the FSIA is unlikely to lead courts to create a series of exceptions affecting more typical cases. See, e.g., (avoidance of delay is 1447(d)'s basic purpose). Finally, as in the FSIA is a specific, later enacted statute. Cf. at ; see generally Long Island Care at Home, WL 1661472 (where statutory provisions are inconsistent, "normally the specific governs the general"); ; 4 U.S. 6, Taken together, these considerations lead me to believe that, were a foreign noncommercial government entity's immunity from suit at issue, the FSIA would conflict with 1447(d), leading a court properly to read the FSIA as implicitly creating an exception to 1447(d), and thereby protecting the sovereign's right to appeal a wrongful remand order. The removing defendant in this case, of course, is not a foreign sovereign immune from suit. It is a foreign governmental entity that acts in a commercial capacity and consequently is subject to suit. 28 U.S.C. 1605(a)(2). But the FSIA nonetheless creates an important, though different, conflict. That conflict arises because a different FSIA provision says, "[u]pon removal the action shall be tried by the court without jury." 1441(d) ; see H.R. Rep., at 33 ("[O]ne effect of removing an action under the new section 1441(d) will be to extinguish a demand for a jury trial made in the state court"); S.Rep. No. 94-1310, p. 32 (hereinafter S. Rep.) (same). A wrongful remand would destroy this statutory right. The state court trial would often proceed with a jury; and it is questionable whether even this Court could *2424 later set aside an adverse state court judgment for that reasonat least Congress seems to have thought as much. See H.R. Rep., at 33 ("Because the judicial power of the United States specifically encompasses actions between a State, or the Citizens thereof, and foreign States, this preemption of State court [jury trial] procedures in cases involving foreign sovereigns is clearly constitutional" (emphasis added; citations and internal quotation marks omitted)); S. Rep., at 32 (same). The conflict is important, this case is special, |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | 32 (same). The conflict is important, this case is special, and we should resolve it by reading the FSIA as implicitly pre-empting the general application of 1447(d). Indeed, I do not see how we could read the FSIA differently in this respect depending upon whether commercial or noncommercial sovereign activity is at issue. For these reasons, I believe that the Ninth Circuit correctly determined that it possessed legal authority to review the case. It is true, as the majority states, that Congress has in other contexts carved out certain removal orders as being specifically reviewable on appeal. Ante, at 2419-2420. The majority reads these specific statutes to suggest that had Congress intended 1447(d) not to apply in FSIA cases, it could simply have said so. However, in fact, for the reasons articulated above, I believe that Congress must have assumed the FSIA overrode 1447. Congress enacted the FSIA soon after the Court's decision in Thermtron held that implicit 1447(d) exceptions might exist. Cf. 549 U.S., at -895 (despite statutory silence, reading Westfall Act as overriding 1447(d)). And, as I have said, the FSIA would otherwise fail to achieve Congress' basic objectives. Context and purpose make clear that few if any members of Congress could have wanted to block appellate review here. Were the Court to pay greater attention to statutory objectives and purposes and less attention to a technical parsing of language, it might agree. Were it to agree, we would exercise our interpretive obligation, not "lawmaking power," ante, at 2420-2421, n. 5, with increased fidelity to the intention of those to whom our Constitution delegates that lawmaking power, namely the Congress of the United States. And, law in this democracy would be all the better for it. II I part company with the Ninth Circuit on the merits. The Circuit held that the District Court's remand was proper because, in its view, Powerex is not "an organ of a political subdivision" of a "foreign state." 28 U.S.C. 1603(b)(2) Hence, it is not an "agency or instrumentality" of a foreign government and falls outside the scope of the FSIA's provision authorizing removal. 1603(a); see generally In my view, however, Powerex is "an organ" of the Province of British Columbia, a "political subdivision" of Canada. The record makes clear that Powerex is a government-owned and government-operated electric power distribution company, not meaningfully different from ordinary municipal electricity distributors, the Tennessee Valley Authority, or any foreign "nationalized" power producers and distributors, such as Britain's former Central Electricity Generating Board or Electricite de France. See generally C. Harris, Electricity Markets: Pricing, Structures, and |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | France. See generally C. Harris, Electricity Markets: Pricing, Structures, and Economics -20 (summarizing features of electricity companies in United States and Europe, among others); J. Marginal Cost Pricing in Practice 3-6, 32, 37 (1964) (summarizing features of *2425 France hydropower industry). See also http://tva.com/ abouttva/index.htm (summarizing general features of Tennessee Valley Authority) (all Internet materials as visited June 8, and available in Clerk of Court's case file); Government Corporation Control Act, 101, -598 (describing Tennessee Valley Authority as "`wholly owned Government Corporation'"); 1 S. Ct. 961, ; Dept. of Labor, Bureau of Labor Statistics, Career Guide to Industries, Utilities, online at http://www.bls.gov/oco/ cg/cgs018.htm (describing features of public run utilities); G. Rothwell & T. G & oacute;mez, Electricity Economics: Regulation and Deregulation 129-241 (comparing electricity markets and industries in California and various foreign nations). Powerex is itself owned and operated by BC Hydro, an entity that all apparently concede is governmental in nature. Brief for Respondents 38-40, 42. British Columbia's statutes create BC Hydro as a kind of government agency to produce water-generated electric power. Power Measures Act, S.B. C., ch. 40 (1964); App. to Pet. for Cert. 52a, 118a, 163a-169a. BC Hydro has a board of directors, all of whom are appointed by British Columbia's government. at 58a-59a. It is an "agent of the [provincial] government and its powers may be exercised only as an agent of the government." Hydro Power Authority Act, R.S.B.C. ch. 212, 3(1) (1996). The District Court concluded that BC Hydro is, in fact, a foreign sovereign entity entitled to British Columbia's Minister of Energy issued a written directive ordering that BC Hydro create a subsidiary, Powerex, to carry out the specialized tasks of exporting hydro-generated electric power and of importing power, which it is then to distribute to British Columbia residents. App. 2-239, 250-251, 267. Powerex specifically carries out these obligations in accordance with various treaties between Canada and the United States. App. 133-5; App. to Pet. for Cert. 55a; see Treaty Between the United States of America and Canada Relating to Cooperative Development of the Water Resources of the Columbia River Basin, Jan. 17, 1961, [1964] U.S.T. 55, T.I.A.S. No. 5638, App. to Pet. for Cert. 61a-82a; Treaty Between Canada and the United States of America Relating to the Skagit River and Ross Lake, and the Seven Mile Reservoir on the Pend d'Oreille River, Apr. 2, 1984, 1469 U.N.T.S. 309, T.I.A.S. No. 11088, App. to Pet. for Cert. 138a-145a; British Columbia-Seattle Agreement (Mar. 30, 1984), App. 160-171. Powerex's board members consist of some of BC Hydro's board members and other members whom those members |
Justice Breyer | 2,007 | 2 | dissenting | Powerex Corp. v. Reliant Energy Services, Inc. | https://www.courtlistener.com/opinion/145713/powerex-corp-v-reliant-energy-services-inc/ | BC Hydro's board members and other members whom those members appoint. App. 233-2. The government's comptroller general reviews Powerex's financial operations and regulates the terms under which it conducts business. Financial Administration Act, R.S.B. C, ch. 138, 4.1, 8(2)(c)(i), 75, 79.3 (1996) (FAA), Addendum to Brief for Petitioner 34-36, 40-42 (hereinafter Addendum). British Columbia's fiscal control statute refers to Powerex as a "`government body.'" FAA 1, Addendum 31, 33. And other British Columbia laws refer to its employees as "`public office holders.'" Lobbyists Registration Act, S.B. C., ch. 42, 1 (2001), Addendum 50. Powerex pays no income taxes. See Income Tax Act, R.S. C., ch. 1, 149(1)(d), (d.2) (5th Supp., 1985), Addendum 45; App. to Pet. for Cert. 58a; *2426 Brief for Petitioner 31. The British Columbian government, through BC Hydro, has sole beneficial ownership and control of Powerex. App. 267. If Powerex earns a profit, that profit must be rebated directly or indirectly to British Columbia's residents. App. 2, 238. I can find no significant difference between Powerex and the classical government entities to which I previously referred. at The Ninth Circuit noted that Powerex may earn a profit and that the Government of British Columbia does not provide financial support. And the Ninth Circuit thought these facts made a critical difference. But a well-run nationalized firm should make a reasonable profit; nor should it have to borrow from the government itself. See, e.g., ; Harris, Electricity Markets, at 125, 130-132; Rothwell & The relevant question is not whether Powerex earns a profit but where does that profit go? Here it does not go to private shareholders; it goes to the benefit of the public in payments to the province and reduced electricity prices. App. 2, 238. The Ninth Circuit also pointed out that certain provincial regulations that apply to other governmental departments do not apply to Powerex. That fact proves little. The Tennessee Valley Authority, which is "perhaps the best known of the American public corporations," First Nat. City 625, n. is not subject to certain federal regulations regarding hiring that apply to other governmental departments. See, e.g., 16 U.S.C. 831b. In sum, Powerex is the kind of government entity that Congress had in mind when it wrote the FSIA's "commercial activit[y]" provisions. See generally 28 U.S.C. 1602 et seq.; H.R. Rep., at ; S. Rep., at 14; For these reasons, I believe we should consider, and reverse, the Ninth Circuit's determination. With respect, I dissent. |
per_curiam | 2,000 | 200 | per_curiam | Sinkfield v. Kelley | https://www.courtlistener.com/opinion/2621074/sinkfield-v-kelley/ | These cases involve a challenge to Alabama state legislative districts under the equal protection principles announced *29 by this Court in Appellees, the plaintiffs below, are white Alabama voters who are residents of various majority-white districts. The districts in which appellees reside are adjacent to majorityminority districts. All of the districts were created under a state redistricting plan whose acknowledged purpose was the maximization of the number of majority-minority districts in Alabama. Appellants in No. 00-132 are a group of African-American voters whose initial state lawsuit resulted in the adoption of the redistricting plan at issue. Appellants in No. 00-133 are Alabama state officials. Appellees brought suit in the United States District Court for the Middle District of Alabama challenging their own districts as the products of unconstitutional racial gerrymandering. A three-judge court convened to hear the case pursuant to 28 U.S. C. 2284. The District Court ultimately held that seven of the challenged majority-white districts were the product of unconstitutional racial gerrymandering and enjoined their use in any election. On direct appeal to this Court pursuant to 28 U.S. C. 1253, appellants in both cases contend, among other things, that appellees lack standing to maintain this suit under our decision in United We agree. involved a challenge to Louisiana's districting plan for its Board of Elementary and Secondary Education. The plan contained two majority-minority districts. The appellees lived in a majority-white district that bordered on one of the majority-minority districts. The appellees challenged the entire plan, including their own district, as an unconstitutional racial gerrymander under our decision in United -742. We concluded that the appellees lacked standing to maintain their challenge. We assumed for the sake of argument that the evidence was sufficient to state a Shaw claim with respect to the neighboring majority-minority district. *30 But we concluded that the appellees had not shown a cognizable injury under the Fourteenth Amendment because they did not reside in the majority-minority district and had not otherwise shown that they had "personally been denied equal treatment." The appellees' failure to show the requisite injury, we noted, was not changed by the fact that the racial composition of their own district might have been different had the legislature drawn the adjacent majority-minority district another way. Appellees' position here is essentially indistinguishable from that of the appellees in Appellees are challenging their own majority-white districts as the product of unconstitutional racial gerrymandering under a redistricting plan whose purpose was the creation of majorityminority districts, some of which border appellees' districts. Like the appellees in they have neither alleged nor produced any evidence |
per_curiam | 2,000 | 200 | per_curiam | Sinkfield v. Kelley | https://www.courtlistener.com/opinion/2621074/sinkfield-v-kelley/ | appellees in they have neither alleged nor produced any evidence that any of them was assigned to his or her district as a direct result of having "personally been subjected to a racial classification." ; see also Rather, appellees suggest that they are entitled to a presumption of injuryin-fact because the bizarre shapes of their districts reveal that the districts were the product of an unconstitutional racial gerrymander. See App. to Pet. for Cert. 120a, 148a, 153a. The shapes of appellees' districts, however, were necessarily influenced by the shapes of the majority-minority districts upon which they border, and appellees have produced no evidence that anything other than the deliberate creation of those majority-minority districts is responsible for the districting lines of which they complain. Appellees' suggestion thus boils down to the claim that an unconstitutional use of race in drawing the boundaries of majority-minority districts necessarily involves an unconstitutional use of race in drawing the boundaries of neighboring majority-white *31 districts. We rejected that argument in explaining that evidence sufficient to support a Shaw claim with respect to a majority-minority district did "not prove anything" with respect to a neighboring majority-white district in which the appellees resided. 515 U.S., Accordingly, "an allegation to that effect does not allege a cognizable injury under the Fourteenth Amendment." The judgment of the District Court is vacated, and the cases are remanded with instructions to dismiss the complaint. It is so ordered. |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | We are here concerned with the constitutionality of certain aspects of Indiana's system for pretrial commitment of one accused of crime. Petitioner, Theon Jackson, is a mentally defective deaf mute with a mental level of a pre-school child. He cannot read, write, or otherwise communicate except through limited sign language. In May at age 27, he was charged in the Criminal Court of Marion County, Indiana, with separate robberies of two women. The offenses were alleged to have occurred the preceding July. The first involved property (a purse and its contents) of the value of four dollars. The second concerned five dollars in money. The record sheds no light on these charges since, upon receipt of not-guilty pleas from Jackson, the trial court set in motion the Indiana procedures for determining his competency to stand trial. Ind. Ann. Stat. 9-1706a[1] now Ind. Code 35-5-3-2 *718 As the statute requires, the court appointed two psychiatrists to examine Jackson. A competency hearing was subsequently held at which petitioner was represented by counsel. The court received the examining doctors' joint written report and oral testimony from them and from a deaf-school interpreter through whom they had attempted to communicate with petitioner. The report concluded that Jackson's almost nonexistent communication skill, together with his lack of hearing and his mental deficiency, left him unable to understand the nature of the charges against him or to participate in his defense. One doctor testified that it was extremely *719 unlikely that petitioner could ever learn to read or write and questioned whether petitioner even had the ability to develop any proficiency in sign language. He believed that the interpreter had not been able to communicate with petitioner to any great extent and testified that petitioner's "prognosis appears rather dim." The other doctor testified that even if Jackson were not a deaf mute, he would be incompetent to stand trial, and doubted whether petitioner had sufficient intelligence ever to develop the necessary communication skills. The interpreter testified that Indiana had no facilities that could help someone as badly off as Jackson to learn minimal communication skills. On this evidence, the trial court found that Jackson "lack[ed] comprehension sufficient to make his defense," 9-1706a, and ordered him committed to the Indiana Department of Mental Health until such time as that Department should certify to the court that "the defendant is sane." Petitioner's counsel then filed a motion for a new trial, contending that there was no evidence that Jackson was "insane," or that he would ever attain a status which the court might regard as "sane" in the |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | status which the court might regard as "sane" in the sense of competency to stand trial. Counsel argued that Jackson's commitment under these circumstances amounted to a "life sentence" without his ever having been convicted of a crime, and that the commitment therefore deprived Jackson of his Fourteenth Amendment rights to due process and equal protection, and constituted cruel and unusual punishment under the Eighth Amendment made applicable to the through the Fourteenth. The trial court denied the motion. On appeal the Supreme Court of Indiana affirmed, with one judge dissenting. Rehearing was denied, with two judges dissenting. We granted certiorari, *720 For the reasons set forth below, we conclude that, on the record before us, Indiana cannot constitutionally commit the petitioner for an indefinite period simply on account of his incompetency to stand trial on the charges filed against him. Accordingly, we reverse. I INDIANA COMMITMENT PROCEDURES Section 9-1706a contains both the procedural and substantive requirements for pretrial commitment of incompetent criminal defendants in Indiana. If at any time before submission of the case to the court or jury the trial judge has "reasonable ground" to believe the defendant "to be insane,"[2] he must appoint two examining physicians and schedule a competency hearing. The hearing is to the court alone, without a jury. The examining physicians' testimony and "other evidence" may be adduced on the issue of incompetency. If the court finds the defendant "has not comprehension sufficient to understand the proceedings and make his defense," trial is delayed or continued and the defendant is remanded to the state department of mental health to be confined in an "appropriate psychiatric institution." The section further provides that "[w]henever the defendant shall become sane" the superintendent of the institution shall certify that fact to the court, and the court shall order him brought on to trial. The court may also make such an order sua sponte. There is no statutory provision for periodic review of the defendant's condition by either the court or mental health authorities. Section 9-1706a by its terms does not accord the *721 defendant any right to counsel at the competency hearing or otherwise describe the nature of the hearing; but Jackson was represented by counsel who cross-examined the testifying doctors carefully and called witnesses on behalf of the petitioner-defendant. Petitioner's central contention is that the State, in seeking in effect to commit him to a mental institution indefinitely, should have been required to invoke the standards and procedures of Ind. Ann. Stat. 22-1907, now Ind. Code 16-15-1-3 governing commitment of "feeble-minded" persons. That section provides that upon |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | governing commitment of "feeble-minded" persons. That section provides that upon application of a "reputable citizen of the county" and accompanying certificate of a reputable physician that a person is "feeble-minded and is not insane or epileptic" (emphasis supplied), a circuit court judge shall appoint two physicians to examine such person. After notice, a hearing is held at which the patient is entitled to be represented by counsel. If the judge determines that the individual is indeed "feeble-minded," he enters an order of commitment and directs the clerk of the court to apply for the person's admission "to the superintendent of the institution for feeble-minded persons located in the district in which said county is situated." A person committed under this section may be released "at any time," provided that "in the judgment of the superintendent, the mental and physical condition of the patient justifies it." 22-1814, now Ind. Code 16-15-4-12 The statutes do not define either "feeble-mindedness" or "insanity" as used in 22-1907. But a statute establishing a special institution for care of such persons, 22-1801, refers to the duty of the State to provide care for its citizens who are "feeble-minded, and are therefore unable properly to care for themselves."[3]*722 These provisions evidently afford the State a vehicle for commitment of persons in need of custodial care who are "not insane" and therefore do not qualify as "mentally ill" under the State's general involuntary civil commitment scheme. See 22-1201 to 22-1256, now Ind. Code 16-14-9-1 to XX-XX-X-XX, XX-XX-X-X to XX-XX-X-XX, 35-5-3-4, XX-XX-XX-X to XX-XX-XX-XX, and XX-XX-XX-X, XX-XX-XX-X, and XX-XX-XX-X Scant attention was paid this general civil commitment law by the Indiana courts in the present case. An understanding of it, however, is essential to a full airing of the equal protection claims raised by petitioner. Section 22-1201 (1) defines a "mentally ill person" as one who "is afflicted with a psychiatric disorder which substantially impairs his mental health; and, because of such psychiatric disorder, requires care, treatment, training or detention in the interest of the welfare of such person or the welfare of others of the community in which such person resides." Section 22-1201 (2) defines a "psychiatric disorder" to be any mental illness or disease, including any mental deficiency, epilepsy, alcoholism, or drug addiction. Other sections specify procedures for involuntary commitment of "mentally ill" persons that are substantially similar to those for commitment of the feeble-minded. For example, a citizen's sworn statement and the statement of a physician are required. 22-1212. The circuit court judge, the applicant, and the physician then consult to formulate a treatment plan. 22-1213. |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | the physician then consult to formulate a treatment plan. 22-1213. Notice to the individual is required, 22-1216, and he is examined by two physicians, 22-1215. There are provisions for temporary commitment. A hearing is held before a judge on the issue of mental illness. 22-1209, 22-1216, 22-1217. The individual has a right of appeal. *723 22-1210. An individual adjudged mentally ill under these sections is remanded to the department of mental health for assignment to an appropriate institution. 22-1209. Discharge is in the discretion of the superintendent of the particular institution to which the person is assigned, 22-1223; Official Opinion No. 54, Opinions of the Attorney General of Indiana, Dec. 30, The individual, however, remains within the court's custody, and release can therefore be revoked upon a hearing. II EQUAL PROTECTION Because the evidence established little likelihood of improvement in petitioner's condition, he argues that commitment under 9-1706a in his case amounted to a commitment for life. This deprived him of equal protection, he contends, because, absent the criminal charges pending against him, the State would have had to proceed under other statutes generally applicable to all other citizens: either the commitment procedures for feeble-minded persons, or those for mentally ill persons. He argues that under these other statutes (1) the decision whether to commit would have been made according to a different standard, (2) if commitment were warranted, applicable standards for release would have been more lenient, (3) if committed under 22-1907, he could have been assigned to a special institution affording appropriate care, and (4) he would then have been entitled to certain privileges not now available to him. In the Court held that a state prisoner civilly committed at the end of his prison sentence on the finding of a surrogate was denied equal protection when he was deprived of a jury trial that the State made generally available *724 to all other persons civilly committed. Rejecting the State's argument that Baxstrom's conviction and sentence constituted adequate justification for the difference in procedures, the Court said that "there is no conceivable basis for distinguishing the commitment of a person who is nearing the end of a penal term from all other civil commitments." -112; see United ex rel. (CA2), cert. denied, The Court also held that Baxstrom was denied equal protection by commitment to an institution maintained by the state corrections department for "dangerously mentally ill" persons, without a judicial determination of his "dangerous propensities" afforded all others so committed. If criminal conviction and imposition of sentence are insufficient to justify less procedural and substantive protection against |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | are insufficient to justify less procedural and substantive protection against indefinite commitment than that generally available to all others, the mere filing of criminal charges surely cannot suffice. This was the precise holding of the Massachusetts Court in[4] The Baxstrom principle also has been extended to commitment following an insanity acquittal, ; ; and to commitment in lieu of sentence following *725 conviction as a sex offender. Respondent argues, however, that because the record fails to establish affirmatively that Jackson will never improve, his commitment "until sane" is not really an indeterminate one. It is only temporary, pending possible change in his condition. Thus, presumably, it cannot be judged against commitments under other state statutes that are truly indeterminate. The State relies on the lack of "exactitude" with which psychiatry can predict the future course of mental illness, and on the Court's decision in what is claimed to be "a fact situation similar to the case at hand" in Were the State's factual premise that Jackson's commitment is only temporary a valid one, this might well be a different case. But the record does not support that premise. One of the doctors testified that in his view Jackson would be unable to acquire the substantially improved communication skills that would be necessary for him to participate in any defense. The prognosis for petitioner's developing such skills, he testified, appeared "rather dim." In answer to a question whether Jackson would ever be able to comprehend the charges or participate in his defense, even after commitment and treatment, the doctor said, "I doubt it, I don't believe so." The other psychiatrist testified that even if Jackson were able to develop such skills, he would still be unable to comprehend the proceedings or aid counsel due to his mental deficiency. The interpreter, a supervising teacher at the state school for the deaf, said that he would not be able to serve as an interpreter for Jackson or aid him in participating in a trial, and that the State had no facilities that could, "after a length of time," aid Jackson in so participating. The court also heard petitioner's mother testify that *726 Jackson already had undergone rudimentary out-patient training in communications skills from the deaf and dumb school in Indianapolis over a period of three years without noticeable success. There is nothing in the record that even points to any possibility that Jackson's present condition can be remedied at any future time. Nor does Greenwood,[5] which concerned the constitutional validity of 18 U.S. C. 4244 to 4248, lend support to respondent's position. That |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | C. 4244 to 4248, lend support to respondent's position. That decision, addressing the "narrow constitutional issue raised by the order of commitment in the circumstances of this case," upheld the Federal Government's constitutional authority to commit an individual found by the District Court to be "insane," incompetent to stand trial on outstanding criminal charges, and probably dangerous to the safety of the officers, property, or other interests of the United The Greenwood Court construed the federal statutes to deal "comprehensively" with defendants "who are insane or mentally incompetent to stand trial," and not merely with "the problem of temporary mental disorder." Though Greenwood's prospects for improvement were slim, the Court held that "in the situation before us," where the District Court had made an explicit finding of dangerousness, that fact alone "does not defeat federal power to make this initial commitment." No issue of equal protection was raised or See Petitioner's Brief, No. 460, O. T. 1955, pp. 2, 7-9. It is clear that the Government's substantive power to commit on the particular findings made in that case was the sole question there *727 We note also that neither the Indiana statute nor state practice makes the likelihood of the defendant's improvement a relevant factor. The State did not seek to make any such showing, and the record clearly establishes that the chances of Jackson's ever meeting the competency standards of 9-1706a are at best minimal, if not nonexistent. The record also rebuts any contention that the commitment could contribute to Jackson's improvement. Jackson's 9-1706a commitment is permanent in practical effect. We therefore must turn to the question whether, because of the pendency of the criminal charges that triggered the State's invocation of 9-1706a, Jackson was deprived of substantial rights to which he would have been entitled under either of the other two state commitment statutes. Baxstrom held that the State cannot withhold from a few the procedural protections or the substantive requirements for commitment that are available to all others. In this case commitment procedures under all three statutes appear substantially similar: notice, examination by two doctors, and a full judicial hearing at which the individual is represented by counsel and can cross-examine witnesses and introduce evidence. Under each of the three statutes, the commitment determination is made by the court alone, and appellate review is available. In contrast, however, what the State must show to commit a defendant under 9-1706a, and the circumstances under which an individual so committed may be released, are substantially different from the standards under the other two statutes. Under 9-1706a, the State needed |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | under the other two statutes. Under 9-1706a, the State needed to show only Jackson's inability to stand trial. We are unable to say that, on the record before us, Indiana could have civilly committed him as mentally ill under 22-1209 or committed him as feeble-minded under 22-1907. The *728 former requires at least (1) a showing of mental illness and (2) a showing that the individual is in need of "care, treatment, training or detention." 22-1201 (1). Whether Jackson's mental deficiency would meet the first test is unclear; neither examining physician addressed himself to this. Furthermore, it is problematical whether commitment for "treatment" or "training" would be appropriate since the record establishes that none is available for Jackson's condition at any state institution. The record also fails to establish that Jackson is in need of custodial care or "detention." He has been employed at times, and there is no evidence that the care he long received at home has become inadequate. The statute appears to require an independent showing of dangerousness ("requires detention in the interest of the welfare of such person or others"). Insofar as it may require such a showing, the pending criminal charges are insufficient to establish it, and no other supporting evidence was introduced. For the same reasons, we cannot say that this record would support a feeble-mindedness commitment under 22-1907 on the ground that Jackson is "unable properly to care for [himself]."[6] 22-1801. More important, an individual committed as feeble-minded is eligible for release when his condition "justifies it," 22-1814, and an individual civilly committed as mentally ill when the "superintendent or administrator *729 shall discharge such person, or [when] cured of such illness." 22-1223 (emphasis supplied). Thus, in either case release is appropriate when the individual no longer requires the custodial care or treatment or detention that occasioned the commitment, or when the department of mental health believes release would be in his best interests. The evidence available concerning Jackson's past employment and home care strongly suggests that under these standards he might be eligible for release at almost any time, even if he did not improve.[7] On the other hand, by the terms of his present 9-1706a commitment, he will not be entitled to release at all, absent an unlikely substantial change for the better in his condition.[8] Baxstrom did not deal with the standard for release, but its rationale is applicable here. The harm to the individual is just as great if the State, without reasonable justification, can apply standards making his commitment a permanent one when standards generally applicable to all |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | commitment a permanent one when standards generally applicable to all others afford him a substantial opportunity for early release. As we noted above, we cannot conclude that pending criminal charges provide a greater justification for different *730 treatment than conviction and Consequently, we hold that by subjecting Jackson to a more lenient commitment standard and to a more stringent standard of release than those generally applicable to all others not charged with offenses, and by thus condemning him in effect to permanent institutionalization without the showing required for commitment or the opportunity for release afforded by 22-1209 or 22-1907, Indiana deprived petitioner of equal protection of the laws under the Fourteenth Amendment.[9] *731 III DUE PROCESS For reasons closely related to those discussed in Part II above, we also hold that Indiana's indefinite commitment of a criminal defendant solely on account of his incompetency to stand trial does not square with the Fourteenth Amendment's guarantee of due process. A. The Federal System. In the federal criminal system, the constitutional issue posed here has not been encountered precisely because the federal statutes have been construed to require that a mentally incompetent defendant must also be found "dangerous" before he can be committed indefinitely. But the decisions have uniformly articulated the constitutional problems compelling this statutory interpretation. The federal statute, 18 U.S. C. 4244 to 4246, is not dissimilar to the Indiana law. It provides that a defendant found incompetent to stand trial may be committed "until the accused shall be mentally competent to stand trial or until the pending charges against him are disposed of according to law." 4246. Section *732 4247, applicable on its face only to convicted criminals whose federal sentences are about to expire, permits commitment if the prisoner is (1) "insane or mentally incompetent" and (2) "will probably endanger the safety of the officers, the property, or other interests of the United and suitable arrangements for the custody and care of the prisoner are not otherwise available," that is, in a state facility. See -374. One committed under this section, however, is entitled to release when any of the three conditions no longer obtains, "whichever event shall first occur." 4248. Thus, a person committed under 4247 must be released when he no longer is "dangerous." In Greenwood, the Court upheld the pretrial commitment of a defendant who met all three conditions of 4247, even though there was little likelihood that he would ever become competent to stand trial. Since Greenwood had not yet stood trial, his commitment was ostensibly under 4244. By the related release provision, 4246, |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | was ostensibly under 4244. By the related release provision, 4246, he could not have been released until he became competent. But the District Court had in fact applied 4247, and found specifically that Greenwood would be dangerous if not committed. This Court approved that approach, holding 4247 applicable before trial as well as to those about to be released from Accordingly, Greenwood was entitled to release when no longer dangerous, 4248, even if he did not become competent to stand trial and thus did not meet the requirement of 4246. Under these circumstances, the Court found the commitment constitutional. Since Greenwood, federal courts without exception have found improper any straightforward application of 4244 and 4246 to a defendant whose chance of attaining competency to stand trial is slim, thus effecting *733 an indefinite commitment on the ground of incompetency alone. United v. Curry, ; United v. Walker, ; ; United v. Jackson, ; See In re Harmon, ; United v. Klein, ; ; The holding in each of these cases was grounded in an expressed substantial doubt that 4244 and 4246 could survive constitutional scrutiny if interpreted to authorize indefinite commitment. These decisions have imposed a "rule of reasonableness" upon 4244 and 4246. Without a finding of dangerousness, one committed thereunder can be held only for a "reasonable period of time" necessary to determine whether there is a substantial chance of his attaining the capacity to stand trial in the foreseeable future. If the chances are slight, or if the defendant does not in fact improve, then he must be released or granted a 4247-4248 hearing. B. The Some [10] appear to commit indefinitely a defendant found incompetent to stand trial until he recovers competency. Other require a finding of dangerousness to support such a commitment[11] or provide forms of parole.[12] New York has recently *734 enacted legislation mandating release of incompetent defendants charged with misdemeanors after 90 days of commitment, and release and dismissal of charges against those accused of felonies after they have been committed for two-thirds of the maximum potential prison [13] The practice of automatic commitment with release conditioned solely upon attainment of competence has been decried on both policy and constitutional grounds.[14] Recommendations for changes made by commentators and study committees have included incorporation into pretrial commitment procedures of the equivalent of the federal "rule of reason," a requirement of a finding of dangerousness or of full-scale civil commitment, periodic review by court or mental health administrative personnel of the defendant's condition and progress, and provisions for ultimately dropping charges if the defendant does not |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | provisions for ultimately dropping charges if the defendant does not improve.[15] One source of this criticism is undoubtedly the empirical data available which tend to show that many defendants committed before trial are never tried, and that those defendants committed pursuant to ordinary civil proceedings are, on the average, released sooner than defendants automatically committed solely on account of their incapacity to stand trial.[16] Related to these statistics *735 are substantial doubts about whether the rationale for pretrial commitmentthat care or treatment will aid the accused in attaining competencyis empirically valid given the state of most of our mental institutions.[17] However, very few courts appear to have addressed the problem directly in the state context. In United ex rel. an 86-year-old defendant committed for nearly 20 years as incompetent to stand trial on state murder and kidnaping charges applied for federal habeas corpus. He had been found "not dangerous," and suitable for civil commitment. The District Court granted relief. It held that petitioner's incarceration in an institution for the criminally insane constituted cruel and unusual punishment, and that the "shocking circumstances" of his commitment violated the Due Process Clause. The court quoted approvingly the language of concerning the "substantial injustice in keeping an unconvicted person in custody to await trial where it is plainly evident his mental condition will not permit trial within a reasonable period of time." In a case virtually indistinguishable from the one before us, the Illinois Supreme Court granted relief to an illiterate deaf mute who had been indicted for murder four years previously but found incompetent to stand trial on account of his inability to communicate, and committed. People ex rel. The institution where petitioner was confined had determined, "[I]t now appears that [petitioner] will never acquire the necessary communication skills needed to participate and cooperate in his trial." Petitioner, however, was found to be functioning at a "nearly normal level of performance in areas other than communication." The State contended petitioner should not be released until his competency was restored. The Illinois Supreme Court disagreed. It held: "This court is of the opinion that this defendant, handicapped as he is and facing an indefinite commitment because of the pending indictment against him, should be given an opportunity to obtain a trial to determine whether or not he is guilty as charged or should be released." C. This Case. Respondent relies heavily on Greenwood to support Jackson's commitment. That decision is distinguishable. It upheld only the initial commitment without considering directly its duration or the standards for release. It justified the commitment by treating it |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | standards for release. It justified the commitment by treating it as if accomplished under allied statutory provisions relating directly to the individual's "insanity" and society's interest in his indefinite commitment, factors not considered in Jackson's case. And it sustained commitment only upon the finding of dangerousness. As Part A, shows, all these elements subsequently have been held not simply sufficient, but necessary, to sustain a commitment like the one involved here. The have traditionally exercised broad power to commit persons found to be mentally ill.[18] The substantive limitations on the exercise of this power and the procedures for invoking it vary drastically among *737 the[19] The particular fashion in which the power is exercisedfor instance, through various forms of civil commitment, defective delinquency laws, sexual psychopath laws, commitment of persons acquitted by reason of insanityreflects different combinations of distinct bases for commitment sought to be vindicated.[20] The bases that have been articulated include dangerousness to self, dangerousness to others, and the need for care or treatment or training.[21] Considering the number of persons affected,[22] it is perhaps remarkable that the substantive constitutional limitations on this power have not been more frequently litigated.[23] We need not address these broad questions here. It is clear that Jackson's commitment rests on proceedings that did not purport to bring into play, indeed did not even consider relevant, any of the articulated bases for *738 exercise of Indiana's power of indefinite commitment. The state statutes contain at least two alternative methods for invoking this power. But Jackson was not afforded any "formal commitment proceedings addressed to [his] ability to function in society,"[24] or to society's interest in his restraint, or to the State's ability to aid him in attaining competency through custodial care or compulsory treatment, the ostensible purpose of the commitment. At the least, due process requires that the nature and duration of commitment bear some reasonable relation to the purpose for which the individual is committed. We hold, consequently, that a person charged by a State with a criminal offense who is committed solely on account of his incapacity to proceed to trial cannot be held more than the reasonable period of time necessary to determine whether there is a substantial probability that he will attain that capacity in the foreseeable future. If it is determined that this is not the case, then the State must either institute the customary civil commitment proceeding that would be required to commit indefinitely any other citizen, or release the defendant.[25] Furthermore, even if it is determined that the defendant probably soon will be able to stand |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | that the defendant probably soon will be able to stand trial, his continued commitment must be justified by progress toward that goal. In light of differing state facilities and procedures and a lack of evidence in this record, we do not think it appropriate for us to attempt to prescribe arbitrary time limits. We note, however, that petitioner Jackson has now been confined for three and one-half years on a record that sufficiently establishes *739 the lack of a substantial probability that he will ever be able to participate fully in a trial. These conclusions make it unnecessary for us to reach petitioner's Eighth-Fourteenth Amendment claim. IV DISPOSITION OF THE CHARGES Petitioner also urges that fundamental fairness requires that the charges against him now be dismissed. The thrust of his argument is that the record amply establishes his lack of criminal responsibility at the time the crimes are alleged to have been committed. The Indiana court did not discuss this question. Apparently it believed that by reason of Jackson's incompetency commitment the State was entitled to hold the charges pending indefinitely. On this record, Jackson's claim is a substantial one. For a number of reasons, however, we believe the issue is not sufficiently ripe for ultimate decision by us at this time. A. Petitioner argues that he has already made out a complete insanity defense. Jackson's criminal responsibility at the time of the alleged offenses, however, is a distinct issue from his competency to stand trial. The competency hearing below was not directed to criminal responsibility, and evidence relevant to it was presented only incidentally.[26] Thus, in any event, we would have to remand for further consideration of Jackson's condition in the light of Indiana's law of criminal responsibility. *740 B. Dismissal of charges against an incompetent accused has usually been thought to be justified on grounds not squarely presented here: particularly, the Sixth-Fourteenth Amendment right to a speedy trial,[27] or the denial of due process inherent in holding pending criminal charges indefinitely over the head of one who will never have a chance to prove his innocence.[28] Jackson did not present the Sixth-Fourteenth Amendment issue to the state courts. Nor did the highest state court rule on the due process issue, if indeed it was presented to that court in precisely the above-described form. We think, in light of our holdings in Parts II and III, that the Indiana courts should have the first opportunity to determine these issues. C. Both courts and commentators have noted the desirability of permitting some proceedings to go forward despite the defendant's incompetency.[29] |
Justice Blackmun | 1,972 | 11 | majority | Jackson v. Indiana | https://www.courtlistener.com/opinion/108556/jackson-v-indiana/ | permitting some proceedings to go forward despite the defendant's incompetency.[29] For instance, 4.06 (3) of the Model Penal Code would permit an incompetent accused's attorney to contest any issue "susceptible of fair determination prior to trial and without the personal participation of the defendant." An alternative draft of 4.06 (4) of the Model Penal Code would also permit an evidentiary hearing at which certain *741 defenses, not including lack of criminal responsibility, could be raised by defense counsel on the basis of which the court might quash the indictment. Some have statutory provisions permitting pretrial motions to be made or even allowing the incompetent defendant a trial at which to establish his innocence, without permitting a conviction.[30] We do not read this Court's previous decisions[31] to preclude the from allowing, at a minimum, an incompetent defendant to raise certain defenses such as insufficiency of the indictment, or make certain pretrial motions through counsel. Of course, if the Indiana courts conclude that Jackson was almost certainly not capable of criminal responsibility when the offenses were committed, dismissal of the charges might be warranted. But even if this is not the case, Jackson may have other good defenses that could sustain dismissal or acquittal and that might now be asserted. We do not know if Indiana would approve procedures such as those mentioned here, but these possibilities will be open on remand. Reversed and remanded. MR. JUSTICE POWELL and MR. JUSTICE REHNQUIST took no part in the consideration or decision of this case. |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | This case presents a challenge to a New Jersey stute, 1974 N. J. Laws, c. 25, as violive of the Contract Clause[1] of the United Stes Constitution. Th stute, together with a concurrent and parallel New York stute, 1974 N. Y. Laws, c. 993, repealed a stutory covenant made by the two Stes in 1962 th had limited the ability of The Port Authority of New York and New Jersey[2] to subsidize rail passenger transportion from revenues and reserves. The suit, one for declarory relief, was instituted by appellant United Stes Trust Company of New York in the Superior Court of New Jersey, Law Division, Bergen County. Named as defendants were the Ste of New Jersey, its Governor, and its Attorney General. Plaintiff-appellant sued as trustee for two series of Port Authority Consolided Bonds, as a holder of Port Authority Consolided Bonds, and on behalf of all holders of such bonds.[3] After a trial, the Superior Court ruled th the stutory repeal was a reasonable exercise of New Jersey's police power, and declared th it was not prohibited by the Contract Clause or by its counterpart in the New Jersey Constitution, Art. IV, 7, ¶ 3. Accordingly, appellant's complaint was dismissed. 134 N. J. Super. 124, The Supreme Court of New Jersey, on direct appeal and by per *4 curiam opinion, affirmed "substantially for the reasons set forth in the [trial court's] opinion." 69 N. J. 253, 256, We noted probable jurisdiction.[4] I BACKGROUND A. Establishment of the Port Authority. The Port Authority was established in 1921 by a biste compact to effectue "a better co-ordinion of the terminal, transportion and other facilities of commerce in, about and through the port of New York." 1921 N. J. Laws, c. 151, p. 413; 1921 N. Y. Laws, c. 154, P. 493. See N. J. St. Ann. 32:1-1 et seq. (1940); N. Y. Unconsol. Laws 6401 et seq. (McKinney 1961). The compact, as the Constitution requires, Art. I, cl. 3, received congressional consent. The compact granted the Port Authority enumered powers and, by its Art. III, "such other and additional powers as shall be conferred upon it by the Legislure of either Ste concurred in by the Legislure of the other, or by Act or Acts of Congress." The powers are enumered in Art. VI. Among them is "full power and authority to purchase, construct, lease and/or opere any terminal or transportion facility within said district." "Transportion facility" is defined, in Art. XXII, to include "railroads, steam or electric,. for use for the transportion or carriage of persons or property." The Port |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | the transportion or carriage of persons or property." The Port Authority was conceived as a financially independent entity, with funds primarily derived from prive investors. The preamble to the compact speaks of the "encouragement of *5 the investment of capital," and the Port Authority was given power to mortgage its facilities and to pledge its revenues to secure the payment of bonds issued to prive investors.[5] See generally E. Bard, The Port of New York Authority B. Initial Policy Regarding Mass Transit. Soon after the Port Authority's inception, the two Stes, again with the consent of Congress, agreed upon a comprehensive plan for the entity's development. 1922 N. J. Laws, c. 9; 1922 N. Y. Laws, c. 43. This plan was concerned primarily, if not solely, with transportion of freight by carriers and not with the movement of passengers in the Port Authority district. The plan, however, was not implemented.[6] The New *6 Jersey Legislure th time declared th the plan "does not include the problem of passenger traffic," even though th problem "should be considered in co-operion with the port development commission." 1922 Laws, c. 4. The Port Authority itself recognized the existence of the passenger service problem. 1924 Annual Report 23; 1928 Annual Report 64-66; App. 574a-575a. In 1927 the New Jersey Legislure, in an Act approved by the Governor, directed the Port Authority to make plans "supplementary to or amendory of the comprehensive plan as will provide adeque interste and suburban transportion facilities for passengers." 1927 Laws, c. 277. The New York Legislure followed suit in 1928, but its bill encountered executive veto.[7] The trial court observed th this veto "to all intents and purposes ended any legislive effort to involve the Port Authority in an active role in commuter transit for the next 30 years." 134 N. J. Super., *7 C. Port Authority Fiscal Policy. Four bridges for motor vehicles were constructed by the Port Authority. A separe series of revenue bonds was issued for each bridge. Revenue initially was below expections, but the bridges ultimely accounted for much of the Port Authority's financial strength. The legislures transferred the operion and revenues of the successful Holland Tunnel to the Port Authority, and this more than made up for the early bridge deficits. The Stes in 1931 also enacted stutes creing the general reserve fund of the Port Authority. 1931 N. J. Laws, c. 5; 1931 N. Y. Laws, c. 48. Surplus revenues from all Port Authority facilities were to be pooled in the fund to cree an irrevocably pledged reserve equal to one-tenth of the par |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | an irrevocably pledged reserve equal to one-tenth of the par value of the Port Authority's outstanding bonds. This level was tained 15 years ler, in 1946. In 1952, the Port Authority abandoned the practice of ear-marking specific facility revenues as security for bonds of th facility. The Port Authority's Consolided Bond Resolution established the present method of financing its activities; under this method its bonds are secured by a pledge of the general reserve fund.[8] *8 D. Renewed Interest in Mass Transit. Meanwhile, the two Stes struggled with the passenger transportion problem. Many studies were made. The situion was recognized as critical, gre costs were envisioned, and substantial deficits were predicted for any mass transit operion. The Port Authority itself financed a study conducted by the Metropolitan Rapid Transit Commission which the Stes had established in 1954. In 1958, Assembly Bill No. 16 was introduced in the New Jersey Legislure. This would have had the Port Authority take over, improve, and opere interste rail mass transit between New Jersey and New York. The bill was opposed vigorously by the Port Authority on legal and financial grounds. The Port Authority also retalied, in a sense, by including a new safeguard in its contracts with bondholders. This prohibited the issuance of any bonds, secured by the general reserve fund, for a new facility unless the Port Authority first certified th the issuance of the bonds would not "merially impair the sound credit standing" of the Port Authority. App. 812a Bill No. 16 was not passed. In the two Stes, with the consent of Congress, St. 575, creed the New York-New Jersey Transportion Agency to deal "with mters affecting public mass transit within and between the 2 Stes." N. J. Laws, c. 13, 3.1, as amended by c. 24; N. Y. Laws, c. 420, 3.1. Also in the two Stes enacted legislion providing th upon either Ste's election the Port Authority would be authorized to purchase and own railroad passenger cars for the purpose of leasing them to commuter railroads. N. J. Laws, c. 25; N. Y. Laws, c. 6. Bonds issued for this purpose would be guaranteed by the electing Ste. New York so elected, N. Y. Const., Art. X, 7, effective January 1, 1962, and approximely $0 million of Commuter Car Bonds were issued by the Port Authority to purchase about *9 500 air-conditioned passenger cars and eight locomotives used on the Penn Central and Long Island Railroads. E. The 1962 Stutory Covenant. In the takeover of the Hudson & Manhtan Railroad by the Port Authority was proposed. This was a |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | Railroad by the Port Authority was proposed. This was a prively owned interste electric commuter system then linking Manhtan, Newark, and Hoboken through the Hudson tubes. It had been in reorganizion for many years, and in the Bankruptcy Court and the United Stes District Court had approved a plan th left it with cash sufficient to continue operions for two years but with no funds for capital expenditures. In re Hudson & Manhtan R. Co., aff'd sub nom. A special committee of the New Jersey Sene was formed to determine whether the Port Authority was "fulfilling its stutory duties and obligions," App. 605a. The committee concluded th the solution to bondholder concern was "[l]imiting by a constitutionally protected stutory covenant with Port Authority bondholders the extent to which the Port Authority revenues and reserves pledged to such bondholders can in the future be applied to the deficits of possible future Port Authority passenger railroad facilities beyond the original Hudson & Manhtan Railroad system." 656a. And the trial court found th the 1962 New Jersey Legislure "concluded it was necessary to place a limition on mass transit deficit operions to be undertaken by the Authority in the future so as to promote continued investor confidence in the Authority." 134 N. J. Super., -864. The stutory covenant of 1962 was the result. The covenant itself was part of the biste legislion authorizing the Port Authority to acquire, construct, and opere the Hudson & Manhtan Railroad and the World Trade Center. The stute in relevant part read: "The 2 Stes covenant and agree with each other and * with the holders of any affected bonds, as hereinafter defined, th so long as any of such bonds remain outstanding and unpaid and the holders thereof shall not have given their consent as provided in their contract with the port authority, (a) and (b) neither the Stes nor the port authority nor any subsidiary corporion incorpored for any of the purposes of this act will apply any of the rentals, tolls, fares, fees, charges, revenues or reserves, which have been or shall be pledged in whole or in part as security for such bonds, for any railroad purposes whsoever other than permitted purposes hereinafter set forth." 1962 N. J. Laws, c. 8, 6; 1962 N. Y. Laws, c. 209, 6.[9] The "permitted purposes" were defined to include (i) the Hudson & Manhtan as then existing, (ii) railroad freight facilities, (iii) tracks and reled facilities on Port Authority vehicular bridges, and (iv) a passenger railroad facility if the Port Authority certified th it was "self-supporting" or, |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | if the Port Authority certified th it was "self-supporting" or, if not, th the end of the preceding calendar year the general reserve fund contained the prescribed stutory amount, and th all the Port Authority's passenger revenues, including the Hudson & Manhtan, would not produce deficits in excess of "permitted deficits." A passenger railroad would be deemed "self-supporting" if the amount estimed by the Authority as average annual net income equaled or exceeded the average annual debt service for the following decade. Though the covenant was not explicit on the point, the Stes, the Port Authority, and its bond counsel have agreed th any ste subsidy might be included in the compution of average annual net income of the facility. *11 "Permitted deficits," the alternive method under permitted purpose (iv), was defined to mean th the annual estimed deficit, including debt service, of the Hudson tubes and any additional non-self-sustaining railroad facility could not exceed one-tenth of the general reserve fund, or 1% of the Port Authority's total bonded debt. The terms of the covenant were self-evident. Within its conditions the covenant permitted, and perhaps even contempled, additional Port Authority involvement in deficit rail mass transit as its financial position strengthened, since the limition of the covenant was linked to, and would expand with, the general reserve fund. A constitutional tack on the legislion containing the covenant was promptly launched. New Jersey and New York joined in the defense. The tack proved unsuccessful. Courtesy Sandwich Shop, See aff'd, (CA2), cert. denied, With the legislion embracing the covenant thus effective, the Port Authority on September 1, 1962, assumed the ownership and opering responsibilities of the Hudson & Manhtan through a wholly owned subsidiary, Port Authority Trans-Hudson Corporion (PATH). Funds necessary for this were realized by the successful sale of bonds to prive investors accompanied by the certificion required by 7 of the Consolided Bond Resolution th the operion would not merially impair the credit standing of the Port Authority, the investment stus of the Consolided Bonds, or the ability of the Port Authority to fulfill its commitments to bondholders. This 7 certificion was based on a projection *12 th the annual net loss of the PATH system would level off about $6.6 million from 1969 to 1991. At the time the certificion was made the general reserve fund contained $69 million, and thus the projected PATH deficit was close to the level of "permitted deficits" under the 1962 covenant. 134 N. J. Super., 163, and n. 27, and n. 27. The PATH fare in 1962 was 30 cents and has remained |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | PATH fare in 1962 was 30 cents and has remained th figure despite recommendions for increase. App. 684a-686a. As a result of the continuion of the low fare, PATH deficits have far exceeded the initial projection. Thus, although the general reserve fund had grown to $173 million by 1973, substantially increasing the level of permitted deficits to about $17 million, the PATH deficit had grown to $24.9 million. In accordance with a stipulion of the parties, 682a-683a, the trial court found th the PATH deficit so exceeded the covenant's level of permitted deficits th the Port Authority was unable to issue bonds for any new passenger railroad facility th was not self-supporting. 134 N. J. Super., 163 n. n.[] F. Prospective Repeal of the Covenant. Governor Cahill of New Jersey and Governor Rockefeller of New York in April 1970 jointly sought increased Port Authority participion in mass transit. In November 1972 they agreed upon a *13 plan for expansion of the PATH system. This included the initiion of direct rail service to Kennedy Airport and the construction of a line to Plainfield, N. J., by way of Newark Airport. The plan anticiped a Port Authority investment of something less than $300 million out of a projected total cost of $650 million, with the difference to be supplied by federal and ste grants. It also proposed to make the covenant inapplicable with respect to bonds issued after the legislion went into effect. This program was enacted, effective May 1973, and the 1962 covenant was thereby rendered inapplicable, or in effect repealed, with respect to bonds issued subsequent to the effective de of the new legislion. 1972 N. J. Laws, c. 208; 1972 N. Y. Laws, c. 03, as amended by 1973 N. Y. Laws, c. 318.[11] G. Retroactive Repeal of the Covenant. It soon developed th the proposed PATH expansion would not take place as contempled in the Governors' 1972 plan. New Jersey was unwilling to increase its financial commitment in response to a sharp increase in the projected cost of constructing the Plainfield extension. As a result the anticiped federal grant was not approved. App. 717a. New Jersey had previously prevented outright repeal of the 1962 covenant, but its titude changed with the election of a new Governor in 1973. In early 1974, when bills were pending in the two Stes' legislures to repeal the covenant *14 retroactively, a nional energy crisis was developing. On November 27, 1973, Congress had enacted the Emergency Petroleum Allocion Act, as amended, 15 U.S. C. 751 et seq. (1970 ed., Supp. V). In th |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | C. 751 et seq. (1970 ed., Supp. V). In th Act Congress found th the hardships caused by the oil shortage "jeopardize the normal flow of commerce and constitute a nional energy crisis which is a thre to the public health, safety, and welfare." 15 U.S. C. 751 (a) (3). This time, proposals for retroactive repeal of the 1962 covenant were passed by the legislure and signed by the Governor of each Ste. 1974 N. J. Laws, c. 25; 1974 N. Y. Laws, c. 993.[12] On April the Port Authority announced an increase in its basic bridge and tunnel tolls designed to raise an estimed $40 million annually. App. 405a-407a, 419a-421a, 528a. This went into effect May 5 and was, it was said, "[t]o increase [the Port Authority's] ability to finance vital mass transit improvements." 405a. II At the time the Constitution was adopted, and for nearly a century thereafter, the Contract Clause was one of the few express limitions on ste power. The many decisions of *15 this Court involving the Contract Clause are evidence of its important place in our constitutional jurisprudence. Over the last century, however, the Fourteenth Amendment has assumed a far larger place in constitutional adjudicion concerning the Stes. We feel th the present role of the Contract Clause is largely illumined by two of this Court's decisions. In each, legislion was sustained despite a claim th it had impaired the obligions of contracts. Home Building & Loan is regarded as the leading case in the modern era of Contract Clause interpretion. At issue was the Minnesota Mortgage Mororium Law, enacted in 1933, during the depth of the Depression and when th Ste was under severe economic stress, and appeared to have no effective alternive. The stute was a temporary measure th allowed judicial extension of the time for redemption; a mortgagor who remained in possession during the extension period was required to pay a reasonable income or rental value to the mortgagee. A closely divided Court, in an opinion by Mr. Chief Justice Hughes, observed th "emergency may furnish the occasion for the exercise of power" and th the "constitutional question presented in the light of an emergency is whether the power possessed embraces the particular exercise of it in response to particular conditions." 4. It noted th the debes in the Constitutional Convention were of little aid in the construction of the Contract Clause, but th the general purpose of the Clause was clear: to encourage trade and credit by promoting confidence in the stability of contractual obligions. Nevertheless, a Ste "continues to |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | the stability of contractual obligions. Nevertheless, a Ste "continues to possess authority to safeguard the vital interests of its people. This principle of harmonizing the constitutional prohibition with the necessary residuum of ste power has had progressive recognition in the decisions of this Court." The gre clauses of the Constitution are to be considered in the *16 light of our whole experience, and not merely as they would be interpreted by its Framers in the conditions and with the outlook of their time. This Court's most recent Contract Clause decision is El Th case concerned a 1941 Texas stute th limited to a 5-year period the reinstement rights of an interest-defaulting purchaser of land from the Ste. For many years prior to the enactment of th stute, such a defaulting purchaser, under Texas law, could have reinsted his claim to the land upon written request and payment of delinquent interest, unless rights of third parties had intervened. This Court held th "it is not every modificion of a contractual promise th impairs the obligion of contract under federal law." It observed th the Ste "has the `sovereign right to protect the general welfare of the people' " and " `we must respect the "wide discretion on the part of the legislure in determining wh is and wh is not necessary," ' " quoting East New York Savings 3 U.S. 230, The Court recognized th "the power of a Ste to modify or affect the obligion of contract is not without limit," but held th "the objects of the Texas stute make abundantly clear th it impairs no protected right under the Contract Clause." Both of these cases eschewed a rigid applicion of the Contract Clause to invalide ste legislion. Yet neither indiced th the Contract Clause was without meaning in modern constitutional jurisprudence, or th its limition on ste power was illusory. Whether or not the protection of contract rights comports with current views of wise public policy, the Contract Clause remains a part of our written Constitution. We therefore must tempt to apply th constitutional provision to the instant case with due respect for its purpose and the prior decisions of this Court. *17 III We first examine appellant's general claim th repeal of the 1962 covenant impaired the obligion of the Stes' contract with the bondholders. It long has been established th the Contract Clause limits the power of the Stes to modify their own contracts as well as to regule those between prive parties. ; Dartmouth Yet the Contract Clause does not prohibit the Stes from repealing |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | the Contract Clause does not prohibit the Stes from repealing or amending stutes generally, or from enacting legislion with retroactive effects.[13] Thus, as a preliminary mter, appellant's claim requires a determinion th the repeal has the effect of impairing a contractual obligion. In this case the obligion was itself creed by a stute, the 1962 legislive covenant. It is unnecessary, however, to dwell on the criteria for determining whether ste legislion gives rise to a contractual obligion.[14] The trial court *18 found, 134 N. J. Super., n. n. and appellees do not deny, th the 1962 covenant constituted a contract between the two Stes and the holders of the Consolided Bonds issued between 1962 and the 1973 prospective repeal.[15] The intent to make a contract is clear from the stutory language: "The 2 Stes covenant and agree with each other and with the holders of any affected bonds" 1962 N. J. Laws, c. 8, 6; 1962 N. Y. Laws, c. 209, 6. Moreover, as the chronology set forth above reveals, the purpose of the covenant was to invoke the constitutional protection of the Contract Clause as security against repeal. In return for their promise, the Stes received the benefit they bargained for: public marketability of Port Authority bonds to finance construction of the World Trade Center and acquisition of the Hudson & Manhtan Railroad. We therefore have no doubt th the 1962 covenant has been properly characterized as a contractual obligion of the two Stes. The parties sharply disagree about the value of the 1962 *19 covenant to the bondholders. Appellant claims th after repeal the secondary market for affected bonds became "thin" and the price fell in relion to other formerly comparable bonds. This claim is supported by the trial court's finding th "immediely following repeal and for a number of months thereafter the market price for Port Authority bonds was adversely affected." 134 N. J. Super., 3 A.2d, 865. Appellees respond th the bonds nevertheless retained an "A" ring from the leading evaluing services and th after an initial adverse effect they regained a comparable price position in the market. Findings of the trial court support these claims as well. 3 A.2d, 864-866. The fact is th no one can be sure precisely how much financial loss the bondholders suffered. Factors unreled to repeal may have influenced price. In addition, the market may not have reacted fully, even as yet, to the covenant's repeal, because of the pending litigion and the possibility th the repeal would be nullified by the courts. In any event, the question of valuion |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | by the courts. In any event, the question of valuion need not be resolved in the instant case because the Ste has made no effort to compense the bondholders for any loss sustained by the repeal.[16] As a security provision, the covenant was not superfluous; it limited the Port Authority's deficits and thus protected the general reserve fund from depletion. Nor was the covenant merely modified or replaced by an arguably comparable security provision. Its outright repeal totally elimined an important security provision and thus impaired the obligion of the Stes' contract. See Richmond Mortgage & Loan[17] *20 The trial court recognized th there was an impairment in this case: "To the extent th the repeal of the covenant authorizes the Authority to assume greer deficits for such *21 purposes, it permits a diminution of the pledged revenues and reserves and may be said to constitute an impairment of the stes' contract with the bondholders." 134 N. J. Super., Having thus established th the repeal impaired a contractual obligion of the Stes, we turn to the question whether th impairment violed the Contract Clause. IV Although the Contract Clause appears literally to proscribe "any" impairment, this Court observed in Blaisdell th "the prohibition is not an absolute one and is not to be read with literal exactness like a mhemical formula." Thus, a finding th there has been a technical impairment is merely a preliminary step in resolving the more difficult question whether th impairment is permitted under the Constitution. In the instant case, as in Blaisdell, we must tempt to reconcile the strictures of the Contract Clause with the "essential tributes of sovereign power," necessarily reserved by the Stes to safeguard the welfare of their citizens. The trial court concluded th repeal of the 1962 covenant was a valid exercise of New Jersey's police power because repeal served important public interests in mass transportion, energy conservion, and environmental protection. 134 N. J. Super., 3 A.2d, 873. Yet the Contract Clause limits otherwise legitime exercises of ste legislive authority, and the existence of an important public interest is not always sufficient to overcome th limition. "Undoubtedly, whever is reserved of ste power must be consistent with the fair intent of the constitutional limition of th power." Blaisdell, Moreover, the *22 scope of the Ste's reserved power depends on the nure of the contractual relionship with which the challenged law conflicts. The Stes must possess broad power to adopt general regulory measures without being concerned th prive contracts will be impaired, or even destroyed, as a result. Otherwise, one would be |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | or even destroyed, as a result. Otherwise, one would be able to obtain immunity from ste regulion by making prive contractual arrangements. This principle is summarized in Mr. Justice Holmes' well-known dictum: "One whose rights, such as they are, are subject to ste restriction, cannot remove them from the power of the Ste by making a contract about them." Hudson Wer[18] Yet prive contracts are not subject to unlimited modificion under the police power. The Court in Blaisdell recognized th laws intended to regule existing contractual relionships must serve a legitime public -445. A Ste could not "adopt as its policy the repudiion of debts or the destruction of contracts or the denial of means to enforce them." Legislion adjusting the rights and responsibilities of contracting parties must be upon reasonable conditions and of a character approprie to the public purpose justifying its adoption.[19] As is customary in reviewing economic and social *23 regulion, however, courts properly defer to legislive judgment as to the necessity and reasonableness of a particular measure. East New York Savings 3 U.S. 230 When a Ste impairs the obligion of its own contract, the reserved-powers doctrine has a different basis. The initial inquiry concerns the ability of the Ste to enter into an agreement th limits its power to act in the future. As early as the Court considered the argument th "one legislure cannot abridge the powers of a succeeding legislure." It is often sted th "the legislure cannot bargain away the police power of a Ste."[20] This doctrine requires a determinion of the Ste's power to cree irrevocable contract rights in the first place, rher than an inquiry into the purpose or reasonableness of the subsequent impairment. In short, the Contract Clause does not require a Ste to adhere to a contract th surrenders an essential tribute of its sovereignty. In deciding whether a Ste's contract was invalid ab initio under the reserved-powers doctrine, earlier decisions relied on distinctions among the various powers of the Ste. Thus, the *24 police power and the power of eminent domain were among those th could not be "contracted away," but the Ste could bind itself in the future exercise of the taxing and spending powers.[21] Such formalistic distinctions perhaps cannot be dispositive, but they contain an important element of truth. Whever the propriety of a Ste's binding itself to a future course of conduct in other contexts, the power to enter into effective financial contracts cannot be questioned. Any financial obligion could be regarded in theory as a relinquishment of the Ste's spending power, since money |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | as a relinquishment of the Ste's spending power, since money spent to repay debts is not available for other purposes. Similarly, the taxing power may have to be exercised if debts are to be repaid. Notwithstanding these effects, the Court has regularly held th the Stes are bound by their debt contracts.[22] The instant case involves a financial obligion and thus as a threshold mter may not be said automically to fall *25 within the reserved powers th cannot be contracted away.[23] Not every security provision, however, is necessarily financial. For example, a revenue bond might be secured by the Ste's promise to continue opering the facility in question; yet such a promise surely could not validly be construed to bind the Ste never to close the facility for health or safety reasons. The security provision issue here, however, is different: The Stes promised th revenues and reserves securing the bonds would not be depleted by the Port Authority's operion of deficit-producing passenger railroads beyond the level of "permitted deficits." Such a promise is purely financial and thus not necessarily a compromise of the Ste's reserved powers. Of course, to say th the financial restrictions of the 1962 covenant were valid when adopted does not finally resolve this case. The Contract Clause is not an absolute bar to subsequent modificion of a Ste's own financial obligions.[24] As with laws impairing the obligions of prive contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public In applying * this standard, however, complete deference to a legislive assessment of reasonableness and necessity is not approprie because the Ste's self-interest is stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a Ste could reduce its financial obligions whenever it wanted to spend the money for wh it regarded as an important public purpose, the Contract Clause would provide no protection all.[25] The trial court recognized to an extent the special stus of a Ste's financial obligions when it held th total repudiion, presumably for even a worthwhile public purpose, would be unconstitutional. But the trial court regarded the protection of the Contract Clause as available only in such an extreme case: "The stes' inherent power to protect the public welfare may be validly exercised under the Contract Clause even if it impairs a contractual obligion so long as it does not destroy it." 134 N. J. Super., 190, 3 A.2d, 870-871. The trial court's "total destruction" test is based on wh we think |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | court's "total destruction" test is based on wh we think is a misreading of W. B. Worthen[] In the first place, the impairment held *27 unconstitutional in Kavanaugh was one th affected the value of a security provision, and certainly not every bond would have been worthless. More importantly, Mr. Justice Cardozo needed only to ste an "outermost limits" test in the Court's opinion, 60, because the impairment was so egregious. He expressly recognized th the actual line between permissible and impermissible impairments could well be drawn more narrowly. Thus the trial court was not correct when it drew the negive inference th any impairment less oppressive than the one in Kavanaugh was necessarily constitutional. The extent of impairment is certainly a relevant factor in determining its reasonableness. But we cannot sustain the repeal of the 1962 covenant simply because the bondholders' rights were not totally destroyed. The only time in this century th alterion of a municipal bond contract has been sustained by this Court was in Faitoute Iron & Steel Th case involved the New Jersey Municipal Finance Act, which provided th a bankrupt local government could be placed in receivership by a ste agency. A plan for the composition of creditors' claims was required to be approved by the agency, the municipality, and 85% in amount of the creditors. The plan would be binding on nonconsenting creditors after a ste court conducted a hearing and found th the municipality could not otherwise pay off its creditors and th the plan was in the best interest of all creditors. 504. *28 Under the specific composition plan issue in Faitoute, the holders of revenue bonds received new securities bearing lower interest res and ler murity des. This Court, however, rejected the dissenting bondholders' Contract Clause objections. The reason was th the old bonds represented only theoretical rights; as a practical mter the city could not raise its taxes enough to pay off its creditors under the old contract terms. The composition plan enabled the city to meet its financial obligions more effectively. "The necessity compelled by unexpected financial conditions to modify an original arrangement for discharging a city's debt is implied in every such obligion for the very reason th thereby the obligion is discharged, not impaired." 511. Thus, the Court found th the composition plan was adopted with the purpose and effect of protecting the creditors, as evidenced by their more than 85% approval. Indeed, the market value of the bonds increased sharply as a result of the plan's adoption. 513. It is clear th the instant case |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | plan's adoption. 513. It is clear th the instant case involves a much more serious impairment than occurred in Faitoute. No one has suggested here th the Stes acted for the purpose of benefiting the bondholders, and there is no serious contention th the value of the bonds was enhanced by repeal of the 1962 covenant. Appellees recognized th it would have been impracticable to obtain consent of the bondholders for such a change in the 1962 covenant, Brief for Appellees 97-98, even though only 60% approval would have been adeque. See n. We therefore conclude th repeal of the 1962 covenant cannot be sustained on the basis of this Court's prior decisions in Faitoute and other municipal bond cases. V Mass transportion, energy conservion, and environmental protection are goals th are important and of legitime public concern. Appellees contend th these goals are so *29 important th any harm to bondholders from repeal of the 1962 covenant is grely outweighed by the public benefit. We do not accept this invition to engage in a utilitarian comparison of public benefit and prive loss. Contrary to Mr. Justice Black's fear, expressed in sole dissent in El 379 U. S., 517, the Court has not "balanced away" the limition on ste action imposed by the Contract Clause. Thus a Ste cannot refuse to meet its legitime financial obligions simply because it would prefer to spend the money to promote the public good rher than the prive welfare of its creditors. We can only sustain the repeal of the 1962 covenant if th impairment was both reasonable and necessary to serve the admittedly important purposes claimed by the Ste.[27] The more specific justificion offered for the repeal of the 1962 covenant was the Stes' plan for encouraging users of prive automobiles to shift to public transportion. The Stes intended to discourage prive automobile use by raising bridge and tunnel tolls and to use the extra revenue from those tolls to subsidize improved commuter railroad service. Appellees contend th repeal of the 1962 covenant was necessary to implement this plan because the new mass transit facilities could not possibly be self-supporting and the covenant's "permitted deficits" level had already been exceeded. We reject this justificion because the repeal was neither necessary to achievement of the plan nor reasonable in light of the circumstances. The determinion of necessity can be considered on two levels. First, it cannot be said th total repeal of the covenant *30 was essential; a less drastic modificion would have permitted the contempled plan without entirely removing the covenant's limitions on |
Justice Blackmun | 1,977 | 11 | majority | United States Trust Co. of NY v. New Jersey | https://www.courtlistener.com/opinion/109647/united-states-trust-co-of-ny-v-new-jersey/ | the contempled plan without entirely removing the covenant's limitions on the use of Port Authority revenues and reserves to subsidize commuter railroads.[28] Second, without modifying the covenant all, the Stes could have adopted alternive means of achieving their twin goals of discouraging automobile use and improving mass transit.[29] Appellees contend, however, th choosing among these alternives is a mter for legislive discretion. But a Ste is not completely free to consider impairing the obligions *31 of its own contracts on a par with other policy alternives. Similarly, a Ste is not free to impose a drastic impairment when an evident and more modere course would serve its purposes equally well. In El the imposition of a five-year stute of limitions on wh was previously a perpetual right of redemption was regarded by this Court as "quite clearly necessary" to achieve the Ste's vital interest in the orderly administrion of its school lands 379 U.S., -516. In the instant case the Ste has failed to demonstre th repeal of the 1962 covenant was similarly necessary. We also cannot conclude th repeal of the covenant was reasonable in light of the surrounding circumstances. In this regard a comparison with El again is instructive. There a 19th century stute had effects th were unforeseen and unintended by the legislure when originally adopted. As a result speculors were placed in a position to obtain windfall benefits. The Court held th adoption of a stute of limition was a reasonable means to "restrict a party to those gains reasonably to be expected from the contract" when it was adopted. 379 U.S.,[30] By contrast, in the instant case the need for mass transportion in the New York metropolitan area was not a new development, and the likelihood th publicly owned commuter railroads would produce substantial deficits was well known. As early as 1922, over a half century ago, there were pressures to involve the Port Authority in mass transit. It was with *32 full knowledge of these concerns th the 1962 covenant was adopted. Indeed, the covenant was specifically intended to protect the pledged revenues and reserves against the possibility th such concerns would lead the Port Authority into greer involvement in deficit mass transit. During the 12-year period between adoption of the covenant and its repeal, public perception of the importance of mass transit undoubtedly grew because of increased general concern with environmental protection and energy conservion. But these concerns were not unknown in 1962, and the subsequent changes were of degree and not of kind. We cannot say th these changes caused the covenant |
Justice Stewart | 1,980 | 18 | dissenting | Nachman Corp. v. Pension Benefit Guaranty Corporation | https://www.courtlistener.com/opinion/110257/nachman-corp-v-pension-benefit-guaranty-corporation/ | Title IV of the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S. C. 01 et seq., establishes a system of insurance to cover the termination of private pension plans. Under that Title, the Pension Benefit Guaranty Corporation (PBGC) must "guarantee the payment of all nonforfeitable benefits under the terms of a [covered] plan which terminates."[1] In turn, the PBGC may sue the company that maintained the plan for such part of the "guaranteed" payment as exceeded on the date of termination the value of the plan's assets.[2] *387 The Nachman plan was terminated on December 31, 1975, several months after Title IV had become fully applicable to pension plans such as the one maintained by the petitioner.[3] The issue in this case is, therefore, a narrow one: Whether, "under the terms of [the Nachman] plan," the plan's participants were entitled on the date of termination to "nonforfeitable benefits" in excess of the value of the funds that were then held by the plan.[4] ERISA defines a "nonforfeitable benefit" as follows:[5] "The term `nonforfeitable' when used with respect to a *388 pension benefit or right means a claim obtained by a participant or his beneficiary to that part of an immediate or deferred benefit under a pension plan which arises from the participant's service, which is unconditional, and which is legally enforceable against the plan."[6] *389 No contention is made in this case that the benefits at issue did not arise from services rendered by the plan's participants. Rather, the petitioner's argument is that, in the words of the statute, "under the terms of [the Nachman] plan," the contested benefits were both "[c]onditional" and/or "legally [un]enforceable against the plan." For present purposes, only two provisions of the now-terminated Nachman plan need be considered. First, a sentence in Art. V, 3, stated: "Benefits provided for herein shall be only such benefits as can be provided by the assets of the Fund." Second, Art. X, 3, stated: "In the event of termination of the Plan, the assets then remaining in the Fund, after providing the accrued and anticipated expenses of the Plan and Fund shall be allocated to the extent that they shall be sufficient, for the purposes of paying retirement benefits." (Emphasis added.)[7] *390 These two provisions, neither of which was void on the date of termination,[8] rendered "conditional" every defined benefit set out in the plan. On termination, a participant's right to any benefit defined in dollar terms was expressly hinged on the plan's ability to pay that amount. Like any condition a plan might specifically place on a |
Justice Stewart | 1,980 | 18 | dissenting | Nachman Corp. v. Pension Benefit Guaranty Corporation | https://www.courtlistener.com/opinion/110257/nachman-corp-v-pension-benefit-guaranty-corporation/ | Like any condition a plan might specifically place on a participant's entitlement to *391 a defined retirement benefit, this asset-sufficiency condition deprived the Nachman plan's defined benefits of "nonforfeitable" status to the extent that such benefits could not be defrayed by the plan's assets.[9] The Court does not explain why an asset-sufficiency limitation expressly set out in a pension plan is not a "condition" for purposes of determining the "nonforfeitability" of the plan's pension benefits.[10] By reason of the cited sentences in Art. V, 3, and Art. X, 3, it must also be concluded that the only defined benefits of the plan which on termination were "legally enforceable against the plan" were those that were fully funded. Under contract law, a person is liable only for that which he has promised to pay. The Nachman plan promised each participant that upon termination he would receive, not a particular retirement benefit defined in dollar terms, but rather such a benefit only if it could be funded out of the plan's assets. The Court notes that another sentence in Art. V, 3, of the plan provided that, "[i]n the event of termination of this Plan, there shall be no liability or obligation on the part of the Company to make any further contributions to the Trustee except such contributions, if any, as on the effective date of such termination, may then be accrued but unpaid." But this sentence had an entirely different effect from that of the two provisions discussed above. Since it only purported to limit the employer's liability to the plan and not the plan's obligation to the plan's participants, the sentence in question neither *392 made the benefits provided by the plan "[c]onditional" nor rendered them "legally [un]enforceable against the plan." The Court is, therefore, quite correct in concluding that the sentence in question did not render "forfeitable" any of the retirement benefits provided by the Nachman plan.[11] What the Court misses is the world of difference between the employer disclaimer clause and the provisions in the plan that limited what the plan itself promised to provide its participants. Only the latter made the retirement benefits "forfeitable" for purposes of ERISA.[12] Three aspects of ERISA's legislative history strongly support this interpretation of the statutory scheme. First, Congress discarded on its way to passing the Act a number of alternative definitions of the benefits to be insured, several of which if enacted would have read very much like the definition the PBGC has adopted and which the Court now holds embodies Congress' true intent.[] Few principles of statutory *393 construction |
Justice Stewart | 1,980 | 18 | dissenting | Nachman Corp. v. Pension Benefit Guaranty Corporation | https://www.courtlistener.com/opinion/110257/nachman-corp-v-pension-benefit-guaranty-corporation/ | embodies Congress' true intent.[] Few principles of statutory *393 construction are more compelling than the proposition that Congress does not intend sub silentio to enact statutory language that it has earlier discarded in favor of other language. See Gulf Oil Second, the Conference Report, in describing the bill that finally was enacted, stated that "vested retirement benefits guaranteed by the plan are to be covered" by the Act's insurance scheme. H. R. Rep. No. 93-1280, p. 368 (1974), 3 Leg. Hist. 4635. (Emphasis added.) Only a benefit that is unconditionally promised by a plan is a benefit "guaranteed" by that plan.[14] Third, Congress delayed the effective date of the Act's "minimum vesting standards" in order "to provide sufficient time for pension and profit-sharing retirement plans to adjust to the new vesting and funding standards, to make provision for additional costs which may be experienced, and to permit negotiated agreements to transpire." S. Rep. No. 93-127, *394 p. 36 (1973), 1 Leg. Hist. 622. Disregarding this intent, the Court today effectively rewrites the Nachman plan to make it promise more than it actually did. Nothing in the legislative history, on the other hand, truly supports the result reached by the Court. The Court relies on the fact that the terms "nonforfeitable" and "vested" were often used interchangeably in the legislative materials. This usage is said to be significant, because in the pension field a benefit is usually said to "vest" when a pension plan participant has fulfilled all the specified conditions for eligibility, such as age and length of service. The existence of other kinds of conditions, such as the sufficiency of the plan's assets, would not affect the determination of whether or not a benefit had "vested" in this traditional sense of the word. But many of the statements in the legislative history relied upon by the Court were made in connection with proposed bills that were not enacted and whose express terms would have insured benefits "vested" in the traditional sense of the word. See n. These statements have no bearing on the present case, which concerns the construction of entirely different statutory language. Many of the other statements in the legislative history noted by the Court were made with respect to the bill that originally passed the House of Representatives, quite a different document from the bill that later emerged from the Conference Committee and was enacted into law as ERISA. The House bill provided that the insurance provision would cover only retirement benefits that were "nonforfeitable" by reason of the bill's minimum vesting standards. H. R. 2, |
Justice Stewart | 1,980 | 18 | dissenting | Nachman Corp. v. Pension Benefit Guaranty Corporation | https://www.courtlistener.com/opinion/110257/nachman-corp-v-pension-benefit-guaranty-corporation/ | reason of the bill's minimum vesting standards. H. R. 2, as passed by the House, 93d Cong., 2d Sess., 203, 409 (b) (1) (1974), 3 Leg. Hist. 3973-3979, 4024. See 2 Under the legislation so proposed, there never would have been a time when the insurance scheme was in effect and a substantial portion of every plan's "vested" benefits were not also "nonforfeitable." It was the Conference Committee that created the time gap *395 involved in this case (September 2, 1974, through December 31, 1975) during which pension plans were subject to the Act's insurance program but not to its minimum vesting standards. See H. R. Conf. Rep. No. 93-1280, pp. 48, 245 (1974), 3 Leg. Hist. 4323, 4515. In discussing the Conference Committee bill, certain Members of Congress also equated "vested" rights with "nonforfeitable" rights.[15] But there is no reason to suppose that these statements did not refer to the post-1975 operation of ERISA, when many benefits, "vested" in the traditional sense, also became "nonforfeitable" by reason of the Act's minimum vesting standards.[16] Finally, contrary to the Court's assertion, the construction that I would give to the Act would not render meaningless the decision of Congress to make Title IV fully applicable as of September 2, 1974. That Title insured the following types of benefits provided by plans terminated between September 2, 1974, and December 31, 1975: (1) All benefits made expressly *396 "nonforfeitable" by the terms of plans in existence on January 1, 1974;[17] and (2) at least 20% of the benefits required by the Act's "minimum vesting standards" to be "nonforfeitable" under the terms of plans created after January 1, 1974.[18] For all the reasons discussed, I respectfully dissent. MR. |
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