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Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | case from that same forum. Finally, our decision in Shamrock & Gas confirms this reasoning and result. See Part IV–, infra. Cite as: 87 U. S. (209) LITO, J., dissenting statute, nd in they assert, “defendant” refers only to an original defendant—one named in the plaintiff ’s complaint. s I will show, they are mistaken about See Part IV, infra. ut even if that general removal law were best read to leave out third-party de- fendants, there would be ample grounds to conclude that such defendants are covered by CF. nd the majority’s and respondent’s objections to this reading of CF, based on comparisons to other federal laws, are unconvincing. The first basis for reading CF to extend more broadly than is that CF’s text is broader. s discussed, see CF sweeps in “any defendant,” in contrast to ’s “the defendant or the defendants.” So even if we read the latter phrase narrowly, we would have to acknowledge that “Congress did not adopt that ready alternative.” dvocate Health Care Network v. Stapleton, U. S. (207) (slip op., at 8). “Instead, it added language whose most natural reading is to enable” any defendant to remove, and “[t]hat drafting decision indicates that Con- gress did not in fact want” to replicate in CF the (pur- portedly) narrower reach of Respondent scoffs at the idea that the word “any” could make the difference. In his view, “any defendant” in CF means “any one of the defendants,” not “any kind of defendant.” Thus, he contends, if covers only one kind of defendant—the original kind, the kind named in a complaint—CF must do the same. On this account, CF refers to “any defendant” only because it was meant to eliminate (for class actions) ’s requirement that all “the defendants” agree to remove. Respondent is right that the word “any” in CF eliminated the defendant- unanimity rule. ut the modifier’s overall effect on the 2 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting plain meaning of CF’s removal provision is what counts in a case interpreting CF; and that effect is to guaran- tee a broad reach for the word “defendant.” Nor is it baffling how “any” could be expansive in the way respondent finds so risible. In ordinary language, replacing “the Xs” with “any X” will often make the term “X” go from covering only paradigm instances of X to covering all cases. Compare: • “Visitors to the prison may not use the phones except at designated times.” • “Visitors to the prison may not use any phone except at designated times.” On |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | may not use any phone except at designated times.” On a natural reading, “the phones” refers to telephones provided by the prison, whereas “any phone” includes visitors’ cellphones. Likewise, even if the phrase “the defendant” reached only original defendants, the phrase “any defendant” would presumptively encompass all kinds. gain, putting the word “any” into a “phrase suggests a broad meaning.” 2 U.S., at 28–29. In fact, the text makes it indisputable that CF’s “any defendant” is broader in some ways. CF reaches at least two sets of defendants left out by : in-state (or “forum”) defendants, and nondiverse defendants. See 43(b). So respondent and the majority are reduced to claiming that when CF says “any defend- ant,” it is stretching farther than ’s “the defendant” in some directions but not others—picking up forum de- fendants and nondiverse defendants while avoiding all contact with third-party defendants. ut the shape of “any” is not so contorted. If context shows that “any de- fendant” covers some additional kinds, common sense tells us it presumptively covers the others. Cite as: 87 U. S. (209) 3 LITO, J., dissenting 2 Respondent’s answer from precedent backfires. gainst our many cases reading the word “any” capaciously (which is to say, naturally), see 44 U.S., at (THOMS, J., dissenting) (collecting cases), he cites two cases that assigned the word a narrower scope. ut in both, context compelled that departure from plain meaning. In United (8), we read “any person” to refer exclusively to those over whom the United States had jurisdiction, but only because that was the undisputed scope of other instances of the same phrase in the same ct. Here, by contrast, even the majority agrees that petitioner’s reading of “any defendant” in CF is “plausible.” nte, at nd in at 388–3, the Court read “any court” to refer only to do- mestic courts because of the “legal presumption that Con- gress ordinarily intends its statutes to have domestic, not extraterritorial, application.” No presumption helps re- spondent here. Indeed, our presumptions in this area cut against the majority and respondent’s view. That view insists on reading CF’s “any defendant” narrowly, to match the allegedly narrower scope of “the defendant” in ut our case law teaches precisely that CF should not be read as narrowly as While removal under is presumed narrow in various ways out of respect for States’ “rightful independence,” Shamrock 33 U.S., 9, we have expressly limited this “antiremoval” presumption to cases interpreting s JUSTICE GINSURG recently wrote for the Court: “[N]o antiremoval presumption attends cases invoking CF, which Congress enacted to facilitate adjudica- tion |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | cases invoking CF, which Congress enacted to facilitate adjudica- tion of certain class actions in federal court. See Standard Fire Ins. 68 U.S., at 9 (‘CF’s primary objective’ is to ‘ensur[e] “Federal court con- 4 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting sideration of interstate cases of national importance.” ’ (quoting )); S. Rep. No. 09–4, p. 43 (CF’s ‘provisions should be read broadly, with a strong preference that interstate class actions should be heard in a federal court if properly removed by any defendant.’).” Dart Cherokee asin Operating v. Owens, 74 U.S. So the strongest argument for reading to exclude third-party defendants is an interpretive canon that we have pointedly refused to apply to CF. Our precedent on this point is thus a second basis—apart from the plain meaning of “any defendant”—for holding that CF co- vers third-party defendants even if does not. Respondent and the majority object that this reading ignores the backdrop against which CF was enacted and the significance of CF’s contrast with the language of other (subject-matter-specific) removal statutes. nd to these objections, respondent adds a third and bolder claim: that CF does not empower petitioner to remove because it does not create removal authority at all, but only chan- nels removals already authorized by (on which petitioner cannot rely in this case). ll three objections fail. In respondent’s telling, it has been the uniform view of the lower courts that a third-party defendant is not among “the defendants” empowered to remove under Since those courts’ decisions studded the legal “backdrop” when Congress enacted CF, respondent contends, we should presume CF used “defendant” in the same narrow sense. ut this story exaggerates both the degree of lower court harmony and the salience of the resulting “backdrop” to Congress’s work on CF. Cite as: 87 U. S. (209) LITO, J., dissenting First, though respondent repeatedly declares that the lower courts have reached a “consensus,” see rief for Respondent i, 4, 9, 32, 3, they have not. “Several cases have permitted removal on the basis of a third party claim where a separate and independent controversy is stated.” Carl Engineers, 3–36 (C 0) (collecting cases). efore CF, at least a half-dozen district courts took this view.3 nd though courts of appeals rarely get to opine on this issue (because blocks most appeals from district court orders sending a removed case back to state court), two Circuits have actually allowed third- party defendants to remove under See Texas ex rel. d. of Regents of Univ. of Tex. System v. Walker, 42 F.3d 3, 6 (C |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | of Tex. System v. Walker, 42 F.3d 3, 6 (C 998); United enefit Life Ins. v. United States Life Ins. Even a treatise cited by respondent destroys his “consen- sus” claim, as it admits that courts take “myriad and diverging views on whether third-party defendants may remove an action.” 6 J. Moore, D. Coquillette, G. Joseph, & G. Vario, Moore’s Federal Practice (3d ed. 209). Second, even if the lower courts all agreed, the “legal backdrop” created by their decisions would matter only insofar as it told us what we can “safely assume” about what Congress “intend[ed].” McFarland v. Scott, 2 U.S. 849, 86 So the less salient that backdrop would have been to Congress, the less relevant it is to interpret- ing Congress’s actions. nd I doubt the backdrop here would have been very salient. For one thing, it consisted mostly of trial court decisions; and the lower the courts, —————— 3 See Carl Engineers, Inc. v. Lafourche Parish Police Jury, 622 F.2d 33, 3 (C 0) (collecting four); Charter Medical Corp. v. Friese, (ND Ga. 9); Patient Care, 7 F. Supp. 644 6 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting the less visible the backdrop. Indeed, I can find no case where we have read a special meaning into a federal statutory term based mainly on trial court interpretations. ut even if several higher courts had spoken—and spoken with one voice—there would be a problem: We have no evidence Congress was listening. In preparing and passing CF, Congress never adverted to third- party defendants’ status. y respondent’s admission, Congress was “silen[t]” on them in the seven years of hearings, drafts, and debates leading up to CF’s adop- tion. rief for Respondent 4. Yet if Congress was not thinking about a question, neither was it thinking about lower courts’ answer to the question. So we cannot pre- sume it adopted that answer. 2 Respondent also thinks we should read CF to exclude third-party defendants in light of the contrast between CF’s “any defendant” and the language of two other removal laws that more clearly encompass third-party defendants. The merica Invents ct (I), for example, allows “any party” to remove a lawsuit involving patent or copyright claims. 28 U.S. C. §§44(a), (b)(). The ank- ruptcy Code likewise allows “[a] party” to remove in cases related to bankruptcy. §42(a). Thus, respondent says, when Congress wanted to include more than original defendants, it knew how. It used terms like “any party” and “a party”—as CF did not. Note, however, that the cited terms would have covered even original plaintiffs, |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | that the cited terms would have covered even original plaintiffs, whom no one thinks CF meant to reach (and for good reason, see Part So CF’s terms had to be narrower than (say) the I’s “any party,” regardless of whether CF was going to cover third-party defendants. Its failure to use the I’s and ankruptcy Code’s broader terms, then, tells us noth- ing about third-party defendants’ status under CF. Cite as: 87 U. S. (209) 7 LITO, J., dissenting Only the meaning of CF’s “any defendant” does that. nd it favors petitioner. See Parts I–, 3 Respondent’s final and most radical argument against petitioner’s CF claim is that CF’s removal language does not independently authorize removal at all. On this view, all that does is “make a few surgical changes [in certain class-action cases] to the procedures that ordi- narily govern removal,” while the actual power to remove comes from the general removal provision, rief for Respondent 49 nd so, the argu- ment goes, removals under CF are still subject to (a)’s restriction to “civil action[s]” over which federal courts have “original jurisdiction.” Since this limitation is often read to mean that federal jurisdiction must have existed from the start of the civil action, see Part IV–C, infra, and that was not the case here, no removal is possible. The premise of this objection is as weak as it is auda- cious. If CF does not authorize removal, then neither does fter all, they use the same operative lan- guage, with the one providing that a class action “may be removed,” and the other providing that a civil action “may be removed,” So must, after all, be its own font of removal power and not a con- duit for removals sourced by Respondent argues that this reading of CF’s would render it unconstitutional. The argument is as follows: Section 43(b) provides that a “class action” may be removed, but it does not specify that the class action must fall within federal courts’ jurisdiction. So if were a separate source of removal authority, it would authorize removals of class actions over which federal courts lacked jurisdiction, contrary to rticle I of the Constitution. y contrast, (a) limits itself to author- 8 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting izing removal of cases over which federal courts have “original jurisdiction.” Thus, only if (a)—including its jurisdictional limit—governs the removals described in CF will CF’s removal language be constitutional. This argument fails. Section 43 implicitly limits removal to class actions where there is minimal diversity, thus satisfying rticle I. fter |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | where there is minimal diversity, thus satisfying rticle I. fter all, §43(a) incorporates the definition of “class action” found in the first paragraph of See ut the very next para- graph, codifies the part of CF that created federal jurisdiction over class actions involving minimal diversity. This proves that the class actions addressed by CF’s removal language, in are those involving minimal diversity, as described in In fact, re- spondent effectively concedes that applies only to actions described in since the latter is also what codifies those CF-removal rules that respondent does acknowledge, see rief for Respondent 2—the require- ments of more than $ million in controversy but only minimal diversity, see ecause CF’s re- moval language in applies only to class actions described in it raises no constitutional trouble to read as its own source of removal authority and not a funnel for IV So far I have accepted, arguendo, the majority and respondent’s view that third-party defendants are not covered by the general removal provision, ut I agree with petitioner that this is incorrect. On a proper reading of too, third-party defendants are “defend- ants” entitled to remove. Though a majority of District Courts would disagree, their exclusion of third-party defendants has rested (in virtually every instance) on a misunderstanding of a previous case of ours, and the mere fact that this misreading has spread is no reason for us to Cite as: 87 U. S. (209) 9 LITO, J., dissenting go along with it. Nor, contrary to the majority, does a refusal to recognize third-party defendants under find support in our precedent embracing the so-called “well-pleaded complaint” rule, which is all about how a plaintiff can make its case unremovable, not about which defendants may seek removal in those cases that can be removed. Look at lower court cases excluding third-party defend- ants from Trace their lines of authority—the cases and sources they cite, and those they cite—and the lines will invariably converge on one point: our decision in Shamrock ut nothing in that case justifies the com- mon reading of among the lower courts, a reading that treats some defendants who never chose the state forum differently from others. s a preliminary matter, Shamrock is too sensible to produce such an arbitrary result. That case involved a close ancestor of today’s general removal provision, one that allowed removal of certain state-court actions at the motion of “the defendant or defendants therein.” 33 U.S., 4, n. nd our holding was simple: If sues in state court, and brings a counterclaim against this does not then allow to |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | brings a counterclaim against this does not then allow to remove the case to federal court. s the original plaintiff who chose the forum, does not get to change its mind now. That is all that Shamrock held. The issue of third-party defendants never arose. nd none of the Court’s three rationales would support a bar on removal by parties other than original plaintiffs. Shamrock looked to statutory history, text, and purpose. s to history, it noted that removal laws had evolved to give the power to remove first to “defendants,” then to “ ‘either party, or any one or more of the plaintiffs or defendants,’ ” and finally to “defendants” again. The 20 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting last revision must have been designed to withdraw removal power from someone, we inferred, and the only candidate was the plaintiff. at –08. Second, we said there was no basis in the text for distinguishing mere plaintiffs from plaintiffs who had been countersued, so we would treat them the same; neither could remove. 8. Third, we offered a policy rationale: “[T]he plaintiff, hav- ing submitted himself to the jurisdiction of the state court, was not entitled to avail himself of a right of removal con- ferred only on a defendant who has not submitted himself to the jurisdiction.” 6. In this vein, we quoted a House Report calling it “ ‘just and proper to require the plaintiff to abide his selection of a forum.’ ” n. 2 (quoting H. R. Rep. No. 078, 49th Cong., st Sess., (886)). So history, language, and logic demanded that original plaintiffs remain unable to remove even if countersued. None of these considerations applies to third-party defendants. If anything, all three point the other way. First, the statutory history cited by the Court shows that Congress (and the Shamrock Court itself) took “the plaintiffs or defendants” to be jointly exhaustive catego- ries. y that logic, since third-party defendants are cer- tainly not plaintiffs—in any sense—they must be “defend- ants” under Cf. Webster 9 (defining “defendant” as “opposed to plaintiff ”); 4 OED 377 (same). Second, and relatedly, the text of the general removal statute, then and now, does not distinguish original from third-party de- fendants when it comes to granting removal power—any more than it had distinguished plaintiffs who were and were not countersued when it came to withdrawing the right to remove, as Shamrock emphasized. nd finally, Shamrock ’s focus on fairness—reflected in its point that plaintiffs may fairly be stuck with the forum they chose—urges the opposite treatment for |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | stuck with the forum they chose—urges the opposite treatment for third-party de- fendants. Like original defendants, they never chose to Cite as: 87 U. S. (209) 2 LITO, J., dissenting submit themselves to the state-court forum. Thus, all three grounds for excluding original plaintiffs in Shamrock actually support allowing third-party defendants to remove under Respondent leans on his claim that District Courts to address the issue have reached a “consensus” that Sham- rock bars third-party defendants from removing. ut as we saw above, rumors of a “consensus” have been greatly exaggerated. See Part I––, nd in any case, no interpretive principle requires leaving intact the lower courts’ misreading of a case of ours. Certainly there is no reason to presume that Congress embraces the lower courts’ majority view. For one thing, the cases distorting postdate the last revision of the relevant statutory language, so they could not have in- formed Congress’s view of what it was signing onto. nd it would be naive to assume that Congress now agrees with those lower court cases just because it has not reacted to them. Congress does not accept the common reading of every law it leaves alone. ecause life is short, the U. S. Code is long, and court cases are legion, it normally takes more than a court’s misreading of a law to rouse Congress to issue a correction. That is why “ ‘Congressional inaction lacks persuasive significance’ in most circumstances.” Star thletica, L. L. C. v. Varsity rands, Inc., 80 U. S. (207) (slip op., at 7) (quoting Pension enefit Guaranty 60 (990); quotation altered). In particular, “it is inappropri- ate to give weight to ‘Congress’ unenacted opinion’ when construing judge-made doctrines, because doing so allows the Court to create law and then ‘effectively codif[y]’ it ‘based only on Congress’ failure to address it.’ ” Hallibur- ton v. Erica P. John Fund, Inc., 73 U.S. 28, (THOMS, J., concurring in judgment). ecause the 22 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting decisions misreading Shamrock are not a reliable indicator of Congress’s intent regarding we owe them no deference. C Finally, according to the majority, reading to include third-party defendants would run afoul of our precedent establishing the “well-pleaded complaint” rule (WPC rule). ssuming that I have been able to recon- struct the majority’s argument from this rule accurately, I think it rests on a non sequitur. The WPC rule is all about a plaintiff ’s ability to choose the forum in which its case is heard, by controlling whether there is federal jurisdiction; the rule has nothing |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | controlling whether there is federal jurisdiction; the rule has nothing to do with the division of labor or authority among defendants. Under the WPC rule, we consider only the plaintiff ’s claims to see if there is federal-question jurisdiction. Whether the defendant raises federal counterclaims (or even federal defenses) is irrelevant. See, e.g., Holmes Group, Inc. v. Vornado ir Circulation Systems, Inc., 3 U.S. 826, 83 (2002). Likewise, in a case involving stand- ard diversity jurisdiction (based on complete diversity under §332(a) rather than minimal diversity under CF), it is “the sum demanded in the initial plead- ing” that determines whether the amount in controversy is large enough. §446(c)(2). In both kinds of cases, a federal court trying to figure out if it has “original jurisdiction,” as required for removal of cases under must shut its eyes to the defendant’s filings. Only the plaintiff ’s complaint counts. So says the WPC rule. ut that is all about jurisdiction. The majority and respondent would take things a step further. Even after assuring itself of jurisdiction, they urge, a court should consult only the plaintiff ’s complaint to see if a party is a “defendant” empowered to remove under Since third-party defendants (by definition) are not named until Cite as: 87 U. S. (209) 23 LITO, J., dissenting the countercomplaint, they are not “defendants.” I cannot fathom why this rule about who is a “defend- ant” should follow from the WPC rule about when there is federal jurisdiction. nd the majority makes no effort to fill the logical gap; it betrays almost no awareness of the gap, drawing the relevant inference in two conclusory sentences. See ante, at 6. ut since this Court’s reasons for the WPC rule have sounded in policy, the argument could only be that the same policy goals would support today’s restriction on who is a “defendant.”4 What are the policy goals behind the WPC rule? We have de- scribed them as threefold. See Holmes Group, Inc., 3 U.S., at 83–832. First, “since the plaintiff is ‘the master of the complaint,’ the well-pleaded-complaint rule enables him, ‘by eschew- ing claims based on federal law, to have the cause heard in state court.’ Caterpillar Inc., [482 U. S.,] at 398–399. [llowing a defendant’s counterclaims or defenses to create federal-question jurisdiction], in contrast, would leave acceptance or rejection of a state forum to the master of the counterclaim. It would al- low a defendant to remove a case brought in state court under state law, thereby defeating a plaintiff ’s choice of forum, simply by raising a federal counter- claim.” |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | choice of forum, simply by raising a federal counter- claim.” ut this concern is not implicated here; adopting peti- tioner’s reading of “defendant” would in no way reduce the —————— 4 The Court insists that its position is based on “statutory context,” not the logic behind the well-pleaded complaint rule. nte, at 6–7. ut the only context to which the Court points is our precedent establishing the well-pleaded complaint rule. nte, at 6. It is that rule—the rule that federal jurisdiction over an action turns entirely on the plaintiff’s complaint—that leads the Court to think furthermore that “ ‘the defendant’ to [an] action is the defendant to that complaint.” 24 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting extent of a plaintiff ’s control over the forum. Plaintiffs would be able to keep state-law cases in state court no matter what we held about and any cases remov- able by third-party defendants would have been removable by original defendants anyway. In other words, the issue here is who can remove under that provision, not which cases can be removed. However we resolved that “who” question, removability under (a) would still require cases to fall within federal courts’ “original jurisdiction,” and that would still turn just on the plaintiff ’s choices—on whether the plaintiff had raised federal claims (or sued diverse parties for enough money). So a case that a plaintiff had brought “in state court under state law,” would remain beyond federal jurisdiction, and thus unremovable under even if we held that third-party defendants are “defendants” under that provision. y the same token, such a holding would not undermine the second policy justification that Holmes gave for the WPC rule: namely, to avoid “radically expand[ing] the class of removable cases, contrary to the ‘[d]ue regard for the rightful independence of state governments.’ ” at 832. s noted, our decision on the scope of ’s “de- fendants” would not expand the class of removable cases at all, because it would have no impact on whether a case fell within federal courts’ jurisdiction. It would only ex- pand the set of people (“the defendants”) who would have to consent to such removal: Now third-party and original defendants would have to agree. The majority declares that treating third-party defend- ants as among “the defendants” under “makes little sense.” nte, at 8. Perhaps its concern is that such a ruling would make no meaningful difference since third- party defendants would still be powerless to remove unless they secured the consent of the original defendants, who are their adversaries in litigation. ut for |
Justice Alito | 2,019 | 8 | dissenting | Home Depot U. S. A., Inc. v. Jackson | https://www.courtlistener.com/opinion/4623615/home-depot-u-s-a-inc-v-jackson/ | original defendants, who are their adversaries in litigation. ut for one thing, there Cite as: 87 U. S. (209) 2 LITO, J., dissenting may be cases in which original defendants do consent. Though original and third-party defendants are rivals as to claims brought by the one against the other, they may well agree that a federal forum would be preferable. fter all, neither will have chosen the state forum in which both find themselves prior to removal. More to the point, even if third-party defendants could not secure the agreement needed to remove an entire civil action under counting them as “defendants” under would make a difference by allowing them to invoke (c)(2), which would permit them to remove certain claims (not whole actions) without original defend- ants’ consent. See Part I–, eing able to remove claims under (c)(2) has, in fact, been the main bene- fit to third-party defendants in those jurisdictions that have ruled that they are “defendants” under See Carl 622 F.2d, at 36. ut this effect of such a ruling is immune to the objection that it would “radically expand the class of removable cases” since (c)(2) does not address the removal of a whole case (a “civil action”) at all, but only of some claims within a case—and only those that could have been brought in federal court from the start, “in a separate suit from that filed by the original plaintiff.” at 36. Notably, then, any claims that were raised by the original plaintiff would get to remain in state court. Here too, the WPC rule’s concern to avoid “radically expand[ing] the class of removable cases” is just not implicated. This leaves Holmes’s final rationale for the WPC rule: —————— Or perhaps the majority fears that petitioner’s position would make it harder for original defendants under by requiring them to get the consent of the third-party defendants against whom they have just brought suit. ut this is an illusory problem. Original defendants hoping to remove under (a) without having to get their adver- saries to agree could simply remove the case before roping in any third- party defendants. 26 HOME DEPOT U. S., INC. v. JCKSON LITO, J., dissenting that it promotes “clarity and ease of administration” in the resolution of procedural 3 U.S., ut petitioner’s and respondent’s views on who is a “defend- ant” are equally workable, so this last factor does not cut one way or the other. In sum, the actual WPC rule, which limits the filings courts may consult in determining if they have jurisdic- tion, is based on policy |
per_curiam | 2,008 | 200 | per_curiam | Wright v. Van Patten | https://www.courtlistener.com/opinion/145839/wright-v-van-patten/ | The Court of Appeals for the Seventh Circuit held that respondent Joseph Van Patten was entitled to relief under reasoning that his lawyer's assistance was presumptively ineffective owing to his participation in a plea hearing by speaker phone. Van We granted certiorari, vacated the judgment, and remanded the case for further consideration in light of On remand, the Seventh Circuit adhered to its original decision, concluding that "[n]othing in requires that our opinion be changed." Van We grant the petition for certiorari now before us and this time reverse the judgment of the Seventh Circuit. I Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His counsel was not physically present at the plea hearing but was linked to the courtroom by speaker phone. After the state trial court imposed the maximum term of 25 years in prison, Van Patten retained different counsel and moved in the Wisconsin Court of Appeals to withdraw his no-contest plea. The thrust of the motion was that Van Patten's Sixth Amendment right to counsel had been violated by his trial counsel's physical absence from the plea hearing. The Wisconsin Court of Appeals noted that, under state law, a postconviction motion to withdraw a no-contest plea will be granted only if a defendant establishes "manifest injustice" by clear and convincing evidence. See State v. Van Pattten, No. 96-3036-CR (Wis.App., May 28, 1997), App. to Pet. for Cert. A47-A48. While the court acknowledged that "the violation of the defendant's Sixth Amendment right to counsel may constitute a manifest injustice," at A48, it found that the absence of Van Patten's lawyer from the plea hearing did not violate his right to counsel: "The plea hearing transcript neither indicates any deficiency in the plea colloquy, nor suggests that Van Patten's attorney's participation by telephone interfered in any way with [Van Patten's] ability to communicate with his attorney about his plea. Van Patten confirmed that he had thoroughly discussed his case and plea decision with his attorney and was satisfied with the legal representation he had received. The court gave Van Patten the opportunity to speak privately with his attorney over the phone if he had questions about the plea, but Van Patten declined. Further, when Van Patten exercised his right to allocution at sentencing, in the personal presence of his attorney, he raised no objection to his plea." at A49-A50. Applying the court concluded that "[t]he record does not support, nor does Van Patten's appellate brief include, any argument that counsel's performance was deficient or prejudicial," No. |
per_curiam | 2,008 | 200 | per_curiam | Wright v. Van Patten | https://www.courtlistener.com/opinion/145839/wright-v-van-patten/ | any argument that counsel's performance was deficient or prejudicial," No. 96-3036-CR, App. to Pet. for Cert. A51, and denied Van Patten's motion. *745 After the Wisconsin Supreme Court declined further review, Van Patten petitioned for a writ of habeas corpus under in Federal District Court. The District Court denied relief, but the Court of Appeals for the Seventh Circuit reversed. It held that Van Patten's Sixth Amendment claim should have been resolved, not under Strickland's two-pronged test (which requires a showing of deficient performance and prejudice to the defendant), but under the standard discussed in United Although the Seventh Circuit recognized that this case "presents [a] novel question," and conceded that "[u]nder Strickland, it seems clear [that] Van Patten would have no viable claim," the court concluded that "it is clear to us that Van Patten's case must be resolved under" The resolution was in Van Patten's favor. While the prison warden's petition for certiorari was pending, this Court decided had invoked this Court's cases recognizing "that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial," at The issue was the significance of these precedents in a case under 2254, which bars relief on any claim "adjudicated on the merits" in state court, unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (d)(1). The prejudicial conduct involved in was courtroom conduct of private actors. We held that the "inheren[t] prejudic[e]" test, which we thus far have applied only in cases involving government-sponsored conduct, see, e.g., ; did not clearly extend to the conduct of independently acting courtroom spectators. See at ("[A]lthough the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators' conduct. Indeed, part of the legal test of Williams and Flynnasking whether the practices furthered an essential state interestsuggests that those cases apply only to state-sponsored practices"). For that reason, we reversed the Court of Appeals' grant of habeas relief. 's explanation of the "clearly established Federal law" requirement prompted us to remand Van Patten's case to the Seventh Circuit for further consideration. A majority of the panel reaffirmed its original judgment, however, on the ground that "[u]nlike this case does not concern an open constitutional question," because "[t]he Supreme Court has long recognized a defendant's right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings." 489 F.3d, at |
per_curiam | 2,008 | 200 | per_curiam | Wright v. Van Patten | https://www.courtlistener.com/opinion/145839/wright-v-van-patten/ | at a critical stage of the proceedings." 489 F.3d, at Judge Coffey disagreed, observing that "the United States Supreme Court has never held that an attorney is presumed to be ineffective if he participates in a plea hearing by speaker phone rather than by physical appearance." He found that "[t]he Majority Opinion does not comport with" ib and dissented from "the court's erroneous decision to allow" its original opinion "to stand as written," We reach the same conclusion. II ordinarily applies to claims of ineffective assistance of counsel at the plea hearing stage. See ("[T]he two-part test applies to challenges to guilty pleas based on ineffective assistance of counsel"). And it was in a different context that "recognized a narrow exception to Strickland's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense." held that a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial," when "circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," at 6, not Strickland, applies "when the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," -660,[*] and one circumstance warranting the presumption is the "complete denial of counsel," that is, when "counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," and n. 25, No decision of this Court, however, squarely addresses the issue in this case, see or clearly establishes that should replace Strickland in this novel factual context. Our precedents do not clearly hold that counsel's participation by speaker phone should be treated as a "complete denial of counsel," on par with total absence. Even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere telephone contact amounted to total absence or "prevented [counsel] from assisting the accused," so as to entail application of The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time. Cf. United Our cases provide no categorical answer to this |
per_curiam | 2,008 | 200 | per_curiam | Wright v. Van Patten | https://www.courtlistener.com/opinion/145839/wright-v-van-patten/ | Cf. United Our cases provide no categorical answer to this question, and for that matter the several proceedings in this case hardly point toward one. The Wisconsin Court of Appeals held counsel's performance by speaker phone to be constitutionally effective; neither the Magistrate Judge, the District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh Circuit itself stated that "[u]nder *747 Strickland, it seems clear Van Patten would have no viable claim." 434 F.3d, Because our cases give no clear answer to the question presented, let alone one in Van Patten's favor, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" 549 U.S., at (quoting (d)(1)). Under the explicit terms of 2254(d)(1), therefore, relief is unauthorized. * * * Petitioner tells us that "[i]n urging review, [the State] does not condone, recommend, or encourage the practice of defense counsel assisting clients by telephone rather than in person at court proceedings, even in nonadversarial hearings such as the plea hearing in this case," Pet. for Cert. 5, and he acknowledges that "[p]erhaps, under similar facts in a direct federal appeal, the Seventh Circuit could have properly reached the same result it reached here," Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in the judgment. |
per_curiam | 1,999 | 200 | per_curiam | Texas v. Lesage | https://www.courtlistener.com/opinion/1854808/texas-v-lesage/ | Respondent François Daniel Lesage, an African immigrant of Caucasian descent, applied for admission to the Ph.D. program in counseling psychology at the University of Texas' Department of Education for the -1997 academic year. In the year Lesage applied, the school received 223 applications for the program and offered admission to roughly 20 candidates. App. to Pet. for Cert. A-22. It is undisputed that the school considered the race of its applicants at some stage during the review process. The school rejected Lesage's application and offered admission to at least one minority candidate. Lesage filed suit seeking money damages and injunctive relief. He alleged that, by establishing and maintaining a race-conscious admissions process, the school had violated the Equal Protection Clause of the Fourteenth Amendment and Rev. Stat. 1977, 42 U.S. C. 1981, Rev. Stat. 1979, as amended, 42 U.S. C. 1983 (1994 ed., Supp. III), and 42 U.S. C. 2000d. Petitioners sought summary judgment, offering evidence that, even if the school's admissions process had been completely colorblind, Lesage would not have been admitted. At least 80 applicants had higher undergraduate grade point averages (GPA's) than Lesage, 152 applicants had higher Graduate Record Examination (GRE) scores, and 73 applicants had both higher GPA's and higher GRE scores. App. to Pet. for Cert. A-23. In an affidavit, Professor Ricardo Ainslie, one of two members of the school's admissions committee, stated that Lesage's personal statement indicated that he had "`a rather superficial interest in the field with a limited capacity to convey his interests and ideas,' " and that his letters of recommendation were "weak." at A-24. Ainslie stated that Lesage's application was rejected early in the review process, when the committee was winnowing the full application pool to a list of 40. The District Court concluded that "any consideration of race had no effect *20 on this particular individual's rejection," and that there was "uncontested evidence that the students ultimately admitted to the program ha[d] credentials that the committee considered superior to Plaintiff's." at A-26 to A-27. It therefore granted summary judgment for petitioners with respect to all of Lesage's claims for relief. The Court of Appeals for the Fifth Circuit reversed. The court did not review the District Court's conclusion that there was no genuine issue as to whether the school would have rejected Lesage under a colorblind admissions process. Instead, it held that such a determination was "irrelevant to the pertinent issue on summary judgment, namely, whether the state violated Lesage's constitutional rights by rejecting his application in the course of operating a racially discriminatory admissions program." An applicant who |
per_curiam | 1,999 | 200 | per_curiam | Texas v. Lesage | https://www.courtlistener.com/opinion/1854808/texas-v-lesage/ | of operating a racially discriminatory admissions program." An applicant who was rejected at a stage of the review process that was race conscious, the court reasoned, has "suffered an implied injury" the inability to compete on an equal footing. Because there remained a factual dispute as to whether the stage of review during which Lesage's application was eliminated was in some way race conscious, the court held that summary judgment was inappropriate and remanded the case for trial. Insofar as the Court of Appeals held that summary judgment was inappropriate on Lesage's 1983 action seeking damages for the school's rejection of his application for the -1997 academic year even if petitioners conclusively established that Lesage would have been rejected under a race-neutral policy, its decision is inconsistent with this Court's well-established framework for analyzing such claims. Under Mt. Healthy City Bd. of even if the government has considered an impermissible criterion in making a decision adverse to the plaintiff, it can nonetheless defeat liability by demonstrating that it would have made the same decision absent *21 the forbidden consideration. See See also ; Board of Comm'rs, Wabaunsee Our previous decisions on this point have typically involved alleged retaliation for protected First Amendment activity rather than racial discrimination, but that distinction is immaterial. The underlying principle is the same: The government can avoid liability by proving that it would have made the same decision without the impermissible motive. Simply put, where a plaintiff challenges a discrete governmental decision as being based on an impermissible criterion and it is undisputed that the government would have made the same decision regardless, there is no cognizable injury warranting relief under 1983. Of course, a plaintiff who challenges an ongoing raceconscious program and seeks forward-looking relief need not affirmatively establish that he would receive the benefit in question if race were not considered. The relevant injury in such cases is "the inability to compete on an equal footing." Northeastern Fla. Chapter, Associated Gen. Contractors of See also Adarand Constructors, But where there is no allegation of an ongoing or imminent constitutional violation to support a claim for forward-looking relief, the government's conclusive demonstration that it would have made the same decision absent the alleged discrimination precludes any finding of liability. Lesage's second amended complaint sought injunctive relief and alleged that petitioners "have established and are maintaining, under color of the laws of the State of Texas, an affirmative action admissions program at the College of Education that classifies applicants on the basis of race and ethnicity." App. to Pet. for Cert. A-22 (emphasis added). But |
per_curiam | 1,999 | 200 | per_curiam | Texas v. Lesage | https://www.courtlistener.com/opinion/1854808/texas-v-lesage/ | ethnicity." App. to Pet. for Cert. A-22 (emphasis added). But in deciding that summary judgment was improper, the Court of Appeals did not distinguish between Lesage's retrospective claim for damages and his forwardlooking *22 claim for injunctive relief based on continuing discrimination. Further, in their petition for certiorari, petitioners assert that "[t]he case at bar differs from Adarand because there is no allegation that the department of counseling psychology continues to use race-based admissions subsequent to the Fifth Circuit's] decision." Pet. for Cert. 13. The brief in opposition does not contest this statement. It therefore appears, although we do not decide, that Lesage has abandoned any claim that the school is presently administering a discriminatory admissions process. Insofar as the Court of Appeals held that petitioners were not entitled to summary judgment on Lesage's 1983 claim for damages relating to the rejection of his application for the -1997 academic year even if he would have been denied admission under a race-neutral policy, its decision contradicts our holding in Mt. Healthy. We therefore grant the petition for writ of certiorari and reverse the judgment of the Court of Appeals in this respect. Lesage also asserted claims under 42 U.S. C. 1981 and 2000d. Whether these claims remain, and whether Lesage has abandoned his claim for injunctive relief on the ground that petitioners are continuing to operate a discriminatory admissions process, are matters open on remand. The case is remanded for further proceedings consistent with this opinion. It is so ordered |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | It is admittedly difficult to be outraged about the treatment accorded by the federal judiciary to petitioners' demand for a jury trial in this lawsuit. Outrage is an emotion all but *338 impossible to generate with respect to a corporate defendant in a securities fraud action, and this case is no exception. But the nagging sense of unfairness as to the way petitioners have been treated, engendered by the imprimatur placed by the Court of Appeals on respondent's "heads I win, tails you lose" theory of this litigation, is not dispelled by this Court's antiseptic analysis of the issues in the case. It may be that if this Nation were to adopt a new Constitution today, the Seventh Amendment guaranteeing the right of jury trial in civil cases in federal courts would not be included among its provisions. But any present sentiment to that effect cannot obscure or dilute our obligation to enforce the Seventh Amendment, which was included in the Bill of Rights in 1791 and which has not since been repealed in the only manner provided by the Constitution for repeal of its provisions. The right of trial by jury in civil cases at common law is fundamental to our history and jurisprudence. Today, however, the Court reduces this valued right, which Blackstone praised as "the glory of the English law," to a mere "neutral" *339 factor and in the name of procedural reform denies the right of jury trial to defendants in a vast number of cases in which defendants, heretofore, have enjoyed jury trials. Over 35 years ago, Mr. Justice Black lamented the "gradual process of judicial erosion which in one-hundred-fifty years has slowly worn away a major portion of the essential guarantee of the Seventh Amendment." Regrettably, the erosive process continues apace with today's decision.[1] I The Seventh Amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United than according to the rules of the common law." The history of the Seventh Amendment has been amply documented by this Court and by legal scholars,[2] and it would serve no useful purpose to attempt here to repeat all that has been written on the subject. Nonetheless, the decision of this case turns on the scope and effect of the Seventh Amendment, which, perhaps more than with any other provision of the Constitution, are determined by reference to the historical *340 setting in which the |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | by reference to the historical *340 setting in which the Amendment was adopted. See It therefore is appropriate to pause to review, albeit briefly, the circumstances preceding and attending the adoption of the Seventh Amendment as a guide in ascertaining its application to the case at hand. A It is perhaps easy to forget, now more than 200 years removed from the events, that the right of trial by jury was held in such esteem by the colonists that its deprivation at the hands of the English was one of the important grievances leading to the break with England. See Sources and Documents Illustrating the American Revolution 1764-1788 and the Formation of the Federal Constitution 94 (S. Morison 2d ed. 1929); R. Pound, The Development of Constitutional Guarantees of Liberty 69-72 (1957); C. Ubbelohde, The Vice-Admiralty Courts and the American Revolution 208-211 (1960). The extensive use of vice-admiralty courts by colonial administrators to eliminate the colonists' right of jury trial was listed among the specific offensive English acts denounced in the Declaration of Independence.[3] And after *341 war had broken out, all of the 13 newly formed restored the institution of civil jury trial to its prior prominence; 10 expressly guaranteed the right in their state constitutions and the 3 others recognized it by statute or by common practice.[4] Indeed, "[t]he right to trial by jury was probably the only one universally secured by the first American state constitutions" L. Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History 281 (1960).[5] One might justly wonder then why no mention of the right of jury trial in civil cases should have found its way into the Constitution that emerged from the Philadelphia Convention in 1787. Article III, 2, cl. 3, merely provides that "The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury." The omission of a clause protective of the civil jury right was not for lack of trying, however. Messrs. Pinckney and Gerry proposed to provide a clause securing the right of jury trial in civil cases, but their efforts failed.[6] Several reasons *342 have been advanced for this failure. The Federalists argued that the practice of civil juries among the several varied so much that it was too difficult to draft constitutional language to accommodate the different state practices. See[7] Whatever the reason for the omission, however, it is clear that even before the delegates had left Philadelphia, plans were under way to attack the proposed Constitution on the ground that it failed to contain a guarantee of civil jury |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | that it failed to contain a guarantee of civil jury trial in the new federal courts. See R. Rutland, George Mason 91 (1961); Wolfram 662. The virtually complete absence of a bill of rights in the proposed Constitution was the principal focus of the Anti-Federalists' attack on the Constitution, and the lack of a provision for civil juries featured prominently in their arguments. See Their pleas struck a responsive chord in the populace, and the price exacted in many for approval of the Constitution was the appending of a list of recommended amendments, chief among them a clause securing the right of jury trial in civil cases.[8] Responding to the pressures for a civil jury *343 guarantee generated during the ratification debates, the first Congress under the new Constitution at its first session in 1789 proposed to amend the Constitution by adding the following language: "In suits at common law, between man and man, the trial by jury, as one of the best securities to the rights of the people, ought to remain inviolate." 1 Annals of Cong. 435 (1789). That provision, altered in language to what became the Seventh Amendment, was proposed by the Congress in 1789 to the legislatures of the several and became effective with its ratification by Virginia on December 15, 1791.[9] The foregoing sketch is meant to suggest what many of those who oppose the use of juries in civil trials seem to ignore. The founders of our Nation considered the right of trial by jury in civil cases an important bulwark against tyranny and corruption, a safeguard too precious to be left to the whim of the sovereign, or, it might be added, to that of the judiciary.[10] Those who passionately advocated the right to a civil jury trial did not do so because they considered the jury a familiar procedural device that should be continued; the concerns for the institution of jury trial that led to the passages of the Declaration of Independence and to the Seventh Amendment were not animated by a belief that use of juries would lead to more efficient judicial administration. Trial by a jury of laymen rather than by the sovereign's judges *344 was important to the founders because juries represent the layman's common sense, the "passional elements in our nature," and thus keep the administration of law in accord with the wishes and feelings of the community. O. Holmes, Collected Legal Papers 237 Those who favored juries believed that a jury would reach a result that a judge either could not or would not reach.[11] It is |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | judge either could not or would not reach.[11] It is with these values that underlie the Seventh Amendment in mind that the Court should, but obviously does not, approach the decision of this case. B The Seventh Amendment requires that the right of trial by jury be "preserved." Because the Seventh Amendment demands preservation of the jury trial right, our cases have uniformly held that the content of the right must be judged by historical standards. E. g., ; -; ; Capital Traction ; Thus, in Baltimore & Carolina (5), the Court stated that "[t]he right of trial by jury thus preserved is the right which existed under the English common law when the Amendment was adopted." *345 And in (5), the Court held: "In order to ascertain the scope and meaning of the Seventh Amendment, resort must be had to the appropriate rules of the common law established at the time of the adoption of that constitutional provision in 1791."[12] If a jury would have been impaneled in a particular kind of case in 1791, then the Seventh Amendment requires a jury trial today, if either party so desires. To be sure, it is the substance of the right of jury trial that is preserved, not the incidental or collateral effects of common-law practice in 1791. "The aim of the Amendment, as this Court has held, is to preserve the substance of the common-law right of trial by jury, as distinguished from mere matters of form or procedure, and particularly to retain the common-law distinction between the province of the court and that of the jury." Baltimore & Carolina at Accord, ; Gasoline Products (1); Ex parte "The Amendment did not bind the federal courts to the exact procedural incidents or details of jury trial according to the common law of 1791, any more than it tied them to the common-law system of pleading or the specific rules of evidence then prevailing." To say that the Seventh Amendment does not tie federal courts to the exact procedure of the common law in 1791 does *346 not imply, however, that any nominally "procedural" change can be implemented, regardless of its impact on the functions of the jury. For to sanction creation of procedural devices which limit the province of the jury to a greater degree than permitted at common law in 1791 is in direct contravention of the Seventh Amendment. See ; ; ; Ex parte at -310. And since we deal here not with the common law qua common law but with the Constitution, no amount of argument that |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | law but with the Constitution, no amount of argument that the device provides for more efficiency or more accuracy or is fairer will save it if the degree of invasion of the jury's province is greater than allowed in 1791. To rule otherwise would effectively permit judicial repeal of the Seventh Amendment because nearly any change in the province of the jury, no matter how drastic the diminution of its functions, can always be denominated "procedural reform." The guarantees of the Seventh Amendment will prove burdensome in some instances; the civil jury surely was a burden to the English governors who, in its stead, substituted the vice-admiralty court. But, as with other provisions of the Bill of Rights, the onerous nature of the protection is no license for contracting the rights secured by the Amendment. Because " `[m]aintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.' " quoted in Beacon Theatres, C Judged by the foregoing principles, I think it is clear that petitioners were denied their Seventh Amendment right to a *347 jury trial in this case. Neither respondent nor the Court doubts that at common law as it existed in 1791, petitioners would have been entitled in the private action to have a jury determine whether the proxy statement was false and misleading in the respects alleged. The reason is that at common law in 1791, collateral estoppel was permitted only where the parties in the first action were identical to, or in privity with, the parties to the subsequent action.[13] It was not until 1971 that the doctrine of mutuality was abrogated by this Court in certain limited circumstances. Blonder-Tongue Laboratories,[14] But developments in the judge-made doctrine of collateral estoppel, however salutary, cannot, consistent with the Seventh Amendment, contract in any material fashion the right to a jury trial that a defendant would have enjoyed in 1791. In the instant case, resort to the doctrine of collateral estoppel does more than merely contract the right to a jury trial: It eliminates the right entirely and therefore contravenes the Seventh Amendment. The Court responds, however, that at common law "a litigant was not entitled to have a jury [in a subsequent action at law between the same parties] determine issues that had been previously adjudicated by a chancellor in equity," and that "petitioners have advanced no persuasive reason why the meaning of the Seventh Amendment should depend |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | reason why the meaning of the Seventh Amendment should depend on *348 whether or not mutuality of parties is present." Ante, at 333, 335. But that is tantamount to saying that since a party would not be entitled to a jury trial if he brought an equitable action, there is no persuasive reason why he should receive a jury trial on virtually the same issues if instead he chooses to bring his lawsuit in the nature of a legal action. The persuasive reason is that the Seventh Amendment requires that a party's right to jury trial which existed at common law be "preserved" from incursions by the government or the judiciary. Whether this Court believes that use of a jury trial in a particular instance is necessary, or fair or repetitive is simply irrelevant. If that view is "rigid," it is the Constitution which commands that rigidity. To hold otherwise is to rewrite the Seventh Amendment so that a party is guaranteed a jury trial in civil cases unless this Court thinks that a jury trial would be inappropriate. No doubt parallel "procedural reforms" could be instituted in the area of criminal jurisprudence, which would accomplish much the same sort of expedition of court calendars and conservation of judicial resources as would the extension of collateral estoppel in civil litigation. Government motions for summary judgment, or for a directed verdict in favor of the prosecution at the close of the evidence, would presumably save countless hours of judges' and jurors' time. It can scarcely be doubted, though, that such "procedural reforms" would not survive constitutional scrutiny under the jury trial guarantee of the Sixth Amendment. Just as the principle of separation of powers was not incorporated by the Framers into the Constitution in order to promote efficiency or dispatch in the business of government, the right to a jury trial was not guaranteed in order to facilitate prompt and accurate decision of lawsuits. The essence of that right lies in its insistence that a body of laymen not permanently attached to the sovereign participate along with the judge in the factfinding *349 necessitated by a lawsuit. And that essence is as much a part of the Seventh Amendment's guarantee in civil cases as it is of the Sixth Amendment's guarantee in criminal prosecutions. Cf. Relying on Gasoline Products and Fidelity & Deposit Co. v. United the Court seems to suggest that the offensive use of collateral estoppel in this case is permissible under the limited principle set forth above that a mere procedural change that does not invade the province |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | a mere procedural change that does not invade the province of the jury and a defendant's right thereto to a greater extent than authorized by the common law is permissible. But the Court's actions today constitute a far greater infringement of the defendant's rights than it ever before has sanctioned. In Galloway, the Court upheld the modern form of directed verdict against a Seventh Amendment challenge, but it is clear that a similar form of directed verdict existed at common law in 1791. E. g., Beauchamp v. Borret, Peake 148, 170 Eng. Rep. 110 (N. P. 1792); Coupey v. Henley, 2 Esp. 540, 542, 170 Eng. Rep. 448, 449 (C. P. 1797).[15] The modern form did not materially alter the function of the jury. Similarly, the modern device of summary judgment was found not to violate the Seventh Amendment because in 1791 a demurrer to the evidence, a procedural device substantially similar to summary judgment, was a common practice. E. g., Pawling v. United[16]*350 The procedural devices of summary judgment and directed verdict are direct descendants of their common-law antecedents. They accomplish nothing more than could have been done at common law, albeit by a more cumbersome procedure. See also Montgomery Ward & And while at common law there apparently was no practice of setting aside a verdict in part,[17] the Court in Gasoline Products permitted a partial retrial of "distinct and separable" issues because the change in procedure would not impair the substance of the right to jury 283 U.S., at The parties in Gasoline Products still enjoyed the right to have a jury determine all issues of fact. By contrast, the development of nonmutual estoppel is a substantial departure from the common law and its use in this case completely deprives petitioners of their right to have a jury determine contested issues of fact. I am simply unwilling to accept the Court's presumption that the complete extinguishment of petitioners' right to trial by jury can be justified as a mere change in "procedural incident or detail." Over 40 years ago, Mr. Justice Sutherland observed in a not dissimilar case: "[T]his court in a very special sense is charged with the duty of construing and upholding the Constitution; and in the discharge of that important duty, it ever must be alert to see that a doubtful precedent be not extended by mere analogy to a different case if the result will be to weaken or subvert what it conceives to be a principle of the fundamental law of the land." *351 II Even accepting, arguendo, the majority's position that |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | land." *351 II Even accepting, arguendo, the majority's position that there is no violation of the Seventh Amendment here, I nonetheless would not sanction the use of collateral estoppel in this case. The Court today holds: "The general rule should be that in cases where a plaintiff could easily have joined in the earlier action or where, either for the reasons discussed above or for other reasons, the application of offensive estoppel would be unfair to a defendant, a trial judge should not allow the use of offensive collateral estoppel." Ante, at 331. In my view, it is "unfair" to apply offensive collateral estoppel where the party who is sought to be estopped has not had an opportunity to have the facts of his case determined by a jury. Since in this case petitioners were not entitled to a jury trial in the Securities and Exchange Commission (SEC) lawsuit,[18] I would not estop them from relitigating the issues determined in the SEC suit before a jury in the private action. I believe that several factors militate in favor of this result. First, the use of offensive collateral estoppel in this case runs counter to the strong federal policy favoring jury trials, even if it does not, as the majority holds, violate the Seventh Amendment. The Court's decision in Beacon Theatres, exemplifies that policy. In Beacon Theatres the Court held that where both equitable and legal claims or defenses are presented in a single case, "only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims." *352[19] And in the Court stated: "The right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment. A right so fundamental and sacred to the citizen, whether guaranteed by the Constitution or provided by statute, should be jealously guarded by the courts." Accord, ; Today's decision will mean that in a large number of private cases defendants will no longer enjoy the right to jury [20] Neither the Court nor respondent has adverted or cited to any unmanageable problems that have resulted *353 from according defendants jury trials in such cases. I simply see no "imperative circumstances" requiring this wholesale abrogation of jury trials.[21] Second, I believe that the opportunity for a jury trial in the second action could easily lead to a different result from that |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | action could easily lead to a different result from that obtained in the first action before the court and therefore that it is unfair to estop petitioners from relitigating the issues before a jury. This is the position adopted in the Restatement (Second) of Judgments, which disapproves of the application of offensive collateral estoppel where the defendant has an opportunity for a jury trial in the second lawsuit that was not available in the first action.[22] The Court accepts the proposition that it is unfair to apply offensive collateral estoppel "where the second action affords the defendant procedural opportunities unavailable in the first action that could readily cause a different result." Ante, at 331. Differences in discovery opportunities between the two actions are cited as examples of situations where it would be unfair to permit offensive collateral estoppel. Ante, at 331 n. 15. But in the Court's view, the fact that petitioners would have been entitled to a jury trial in the present action is not such a "procedural opportunit[y]" because "the presence or absence of a jury as factfinder is basically neutral, quite unlike, for example, the *354 necessity of defending the first lawsuit in an inconvenient forum." Ante, at 332 n. 19 (emphasis added). As is evident from the prior brief discussion of the development of the civil jury trial guarantee in this country, those who drafted the Declaration of Independence and debated so passionately the proposed Constitution during the ratification period, would indeed be astounded to learn that the presence or absence of a jury is merely "neutral," whereas the availability of discovery, a device unmentioned in the Constitution, may be controlling. It is precisely because the Framers believed that they might receive a different result at the hands of a jury of their peers than at the mercy of the sovereign's judges, that the Seventh Amendment was adopted. And I suspect that anyone who litigates cases before juries in the 1970's would be equally amazed to hear of the supposed lack of distinction between trial by court and trial by jury. The Court can cite no authority in support of this curious proposition. The merits of civil juries have been long debated, but I suspect that juries have never been accused of being merely "neutral" factors.[23] Contrary to the majority's supposition, juries can make a difference, and our cases have, before today at least, recognized this obvious fact. Thus, in we stated that "the purpose of the jury trial in civil cases [is] to assure a fair and equitable resolution of factual issues, Gasoline Products (1)" |
Justice Rehnquist | 1,979 | 19 | dissenting | Parklane Hosiery Co. v. Shore | https://www.courtlistener.com/opinion/109964/parklane-hosiery-co-v-shore/ | fair and equitable resolution of factual issues, Gasoline Products (1)" And in Byrd v. Blue Ridge *355 Rural Electrical the Court conceded that "the nature of the tribunal which tries issues may be important in the enforcement of the parcel of rights making up a cause of action or defense It may well be that in the instant personal-injury case the outcome would be substantially affected by whether the issue of immunity is decided by a judge or a jury." See ; cf. Jurors bring to a case their common sense and community values; their "very inexperience is an asset because it secures a fresh perception of each trial, avoiding the stereotypes said to infect the judicial eye." H. Kalven & H. Zeisel, The American Jury 8 (1966). The ultimate irony of today's decision is that its potential for significantly conserving the resources of either the litigants or the judiciary is doubtful at best. That being the case, I see absolutely no reason to frustrate so cavalierly the important federal policy favoring jury decisions of disputed fact questions. The instant case is an apt example of the minimal savings that will be accomplished by the Court's decision. As the Court admits, even if petitioners are collaterally estopped from relitigating whether the proxy was materially false and misleading, they are still entitled to have a jury determine whether respondent was injured by the alleged misstatements and the amount of damages, if any, sustained by respondent. Ante, at 325 n. 2. Thus, a jury must be impaneled in this case in any event. The time saved by not trying the issue of whether the proxy was materially false and misleading before the jury is likely to be insubstantial.[24] It is just as probable that today's decision will have the result of coercing defendants to agree to consent orders or settlements *356 in agency enforcement actions in order to preserve their right to jury trial in the private actions. In that event, the Court, for no compelling reason, will have simply added a powerful club to the administrative agencies' arsenals that even Congress was unwilling to provide them. |
Justice Stevens | 2,006 | 16 | concurring | Carey v. Musladin | https://www.courtlistener.com/opinion/145770/carey-v-musladin/ | In *655 this Court issued two opinions announcing two separate holdings In Part II-B of Justice O'Connor's opinion, the Court held that an incorrect application of federal law was not necessarily an "`unreasonable application of clearly established Federal law'" within the meaning of (d)(1) -413, In Parts III and IV of my opinion, in which Justice O'Connor joined, the Court held that the Virginia Supreme Court's rejection of the petitioner's claim that he had received ineffective assistance of counsel was both contrary to and an unreasonable application of law as determined by our earlier opinion in Strickland v Washington, 466 US 104 S Ct 2052, 80 L Ed 2d 674 529 US, at 390-398, In Strickland, we held that the petitioner had not been denied the effective assistance of counsel and upheld his sentence of death 466 US, at 700, 104 S Ct 2052 While our ultimate holding rejected the petitioner's ineffective-assistance claim, the reasoning in our opinion (including carefully considered dicta) set forth the standards for evaluating such claims that have been accepted as "clearly established law" for over 20 years See 529 US, at 391, Nevertheless, in a somewhat ironic dictum in her opinion, Justice O'Connor stated that the statutory phrase "clearly established Federal law, as determined by the Supreme Court of the United States," refers to "the holdings, as opposed to the dicta, of this Court's decisions as of the time of the relevant state-court decision" Id, That dictum has been repeated in three subsequent opinions in which a bare majority of the Court rejected constitutional claims that four of us would have upheld[*] Because I am persuaded that Justice O'Connor's dictum about dicta represents an incorrect interpretation of the statute's text, and because its repetition today is wholly unnecessary, I do not join the Court's opinion Virtually every one of the Court's opinions announcing a new application of a constitutional principle contains some explanatory language that is intended to provide guidance to lawyers and judges in future cases See, eg, Crawford v Washington, 541 US 36, 124 S Ct 1354, 158 L Ed 2d 177 ; Strickland, 466 US 104 S Ct 2052; Miranda v Arizona, 384 US 436, 86 S Ct 1602, 16 L Ed 2d 694 ; see also Marbury v Madison, 2 L Ed 60 It is quite wrong to invite state-court judges to discount the importance of such guidance on the ground that it may not have been strictly necessary as an explanation of the Court's specific holding in the case Cf County of Allegheny v American Civil Liberties Union, Greater Pittsburgh |
Justice Stevens | 2,006 | 16 | concurring | Carey v. Musladin | https://www.courtlistener.com/opinion/145770/carey-v-musladin/ | County of Allegheny v American Civil Liberties Union, Greater Pittsburgh Chapter, 492 US 573, 109 S Ct 3086, 106 L Ed 2d 472 (KENNEDY, J, concurring in judgment in part and dissenting in part) ("As a general rule, the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also their explications of the governing rules of law"); Sheet Metal Workers v EEOC, 478 US 421, 106 S Ct 3019, 92 L Ed 2d 344 (O'Connor, J, concurring in part and dissenting in part) ("Although technically dicta, an important part of the Court's rationale for the result that it reache[s] is entitled to greater weight ") The text of the Antiterrorism and Effective Death Penalty Act of itself provides sufficient obstacles to obtaining habeas relief without placing a *656 judicial thumb on the warden's side of the scales Ultimately, however, my reasons for joining the Court's judgment in this case are essentially the same as those expressed by Justice SOUTER, with one caveat In my opinion, there is no merit whatsoever to the suggestion that the First Amendment may provide some measure of protection to spectators in a courtroom who engage in actual or symbolic speech to express any point of view about an ongoing proceeding Justice KENNEDY, concurring in the judgment Trials must be free from a coercive or intimidating atmosphere This fundamental principle of due process is well established It was recognized in Frank v Mangum, 237 US 309, 35 S Ct 582, 59 L Ed 969 though the Court credited the determination of the state court and granted no relief; and it was the square holding in Moore v Dempsey, 261 US 86, 43 S Ct 265, 67 L Ed 543 though the Court remanded for factfinding rather than for a new trial The disruptive presence of the press required reversal in Sheppard v Maxwell, 384 US 333, 86 S Ct 1507, 16 L Ed 2d 600 where "newsmen took over practically the entire courtroom, hounding most of the participants in the trial," and Estes v Texas, 381 US 532, 85 S Ct 1628, 14 L Ed 2d 543 where the presence of cameras distracted jurors throughout the proceedings The rule against a coercive or intimidating atmosphere at trial exists because "we are committed to a government of laws and not of men," under which it is "of the utmost importance that the administration of justice be absolutely fair and orderly," and "[t]he constitutional safeguards relating to the integrity of the criminal process attend every stage of a criminal |
Justice Stevens | 2,006 | 16 | concurring | Carey v. Musladin | https://www.courtlistener.com/opinion/145770/carey-v-musladin/ | of the criminal process attend every stage of a criminal proceeding culminating with a trial `in a court-room presided over by a judge'" Cox v Louisiana, 379 US 559, 85 S Ct 476, 13 L Ed 2d 487 ); (finding a statute did not on its face violate First Amendment rights where it prohibited picketing in courthouses) Cf Wood v Georgia, 370 US 375, 82 S Ct 1364, 8 L Ed 2d 569 ; Turner v Louisiana, 379 US 466, 85 S Ct 546, 13 L Ed 2d 424 The rule settled by these cases requires a court, on either direct or collateral review, to order a new trial when a defendant shows his conviction has been obtained in a trial tainted by an atmosphere of coercion or intimidation similar to that documented in the foregoing cases This would seem to be true whether the pressures were from partisans, or, as seems to have been the case in Sheppard, from persons reacting to the drama of the moment who created an environment so raucous that calm deliberation by the judge or jury was likely compromised in a serious way If, in a given case, intimidation of this nature was brought about by the wearing of buttons, relief under the Antiterrorism and Effective Death Penalty Act of (AEDPA) would likely be available even in the absence of a Supreme Court case addressing the wearing of buttons While general rules tend to accord courts "more leeway in reaching outcomes in case-by-case determinations," Yarborough v Alvarado, 541 US 652, 124 S Ct 2140, 158 L Ed 2d 938 AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied, cf Wright v West, 505 US 277, 112 S Ct 2482, 120 L Ed 2d 225 (KENNEDY, J, concurring in judgment) In the case before us there is no indication the atmosphere at respondent's trial was one of coercion or intimidation to the severe extent demonstrated in the cases just discussed The instant case does present the issue whether as a preventative measure, or as a general rule to preserve the calm and dignity of a court, buttons proclaiming a message relevant to the case ought to be prohibited as a matter of course That rule has not been clearly established by our cases to date It may be that trial judges as a general practice already take careful measures to preserve the decorum of courtrooms, thereby accounting for the lack of guiding precedents on this subject In all events, it seems |
Justice Stevens | 2,006 | 16 | concurring | Carey v. Musladin | https://www.courtlistener.com/opinion/145770/carey-v-musladin/ | guiding precedents on this subject In all events, it seems to me the case as presented to us here does call for a new rule, perhaps justified as much as a preventative measure as by the urgent needs of the situation That rule should be explored in the court system, and then established in this Court before it can be grounds for relief in the procedural posture of this case For these reasons, I concur in the judgment of the Court Justice SOUTER, concurring in the judgment In this habeas proceeding, a federal court may not set aside the state judgment sustaining Musladin's conviction without finding it contrary to, or an unreasonable application of, clearly established federal law (d)(1) While the ground between criteria entailed by "clearly established" and "unreasonable application" may be murky, it makes sense to regard the standard governing this case as clearly established by this Court We have a number of decisions dealing with threats to the fundamental fairness of a criminal trial posed by conditions in (or originating in) the courtroom, see, eg, Holbrook v 475 US 560, 106 S Ct 1340, 89 L Ed 2d 525 ; Estelle v 425 US 501, 96 S Ct 1691, 48 L Ed 2d 126 ; Sheppard v Maxwell, 384 US 333, 86 S Ct 1507, 16 L Ed 2d 600 ; Estes v Texas, 381 US 532, 85 S Ct 1628, 14 L Ed 2d 543 and the two most recent ones agree on a general formulation harking back to Estes, id, 85 S Ct 1628: the question is whether the practice or condition presents "`an unacceptable risk of impermissible factors coming into play'" in the jury's consideration of the case 106 S Ct 1340 The Court's intent to adopt a standard at this general and comprehensive level could not be much clearer As for the applicability of this standard, there is no serious question that it reaches the behavior of spectators The focus of the later cases is on appearances within the courtroom open to the jurors' observation There is no suggestion in the opinions, and no reason to think now, that it should matter whether the State or an individual may be to blame for some objectionable sight; either way, the trial judge has an affirmative obligation to control the courtroom and keep it free of improper influence Sheppard, 86 S Ct 1507 And since the - standard is a guide for trial judges, not for laypersons without schooling in threats to the fairness of trials, its general formulation is enough to tell trial judges |
Justice Stevens | 2,006 | 16 | concurring | Carey v. Musladin | https://www.courtlistener.com/opinion/145770/carey-v-musladin/ | trials, its general formulation is enough to tell trial judges that it applies to the behavior of courtroom visitors Nor is there any reasonable doubt about the pertinence of the standard to the practice in question; one could not seriously deny that allowing spectators at a criminal trial to wear visible buttons with the victim's photo can raise a risk of improper considerations The display is no part of *658 the evidence going to guilt or innocence, and the buttons are at once an appeal for sympathy for the victim (and perhaps for those who wear the buttons) and a call for some response from those who see them On the jurors' part, that expected response could well seem to be a verdict of guilty, and a sympathetic urge to assuage the grief or rage of survivors with a conviction would be the paradigm of improper consideration The only debatable question is whether the risk in a given case reaches the "unacceptable" level While there is a fair argument that any level of risk from wearing buttons in a courtroom is unacceptable, two considerations keep me from concluding that the state court acted unreasonably in failing to see the issue this way and reverse the conviction First, of the several courts that have considered the influence of spectators' buttons, the majority have left convictions standing See, eg, State v Speed, 265 Kan 26, 961 P2d 13, ; State v Braxton, 344 NC 702, 477 SE2d 172, ; State v Lord, 128 Wash App 216, 114 P3d 1241, ; Nguyen v State, 977 SW2d 450, I am wary of assuming that every trial and reviewing judge in those cases was unreasonable as well as mistaken in failing to embrace a no-risk standard, and so I would find it hard to say the state judges were unreasonable in this case, given the lack of detail about the buttons' display Second, an interest in protected expression on the part of the spectators wearing mourners' buttons has been raised, but not given focus or careful attention in this or any other case that has come to our notice Although I do not find such a First Amendment interest intuitively strong here, in the absence of developed argument it would be preferable not to decide whether protection of speech could require acceptance of some risk raised by spectators' buttons For these reasons, I think Musladin has not shown the state judge's application of our law to be unreasonable, and on that ground concur in the Court's judgment |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | Appellant was one of several plaintiffs in this suit challenging the configuration of a Florida legislative district under the Equal Protection Clause. All parties except appellant reached a provisional settlement agreement and, after a fairness hearing, a three-judge District Court approved the remedial districting plan proposed in the agreement. Appellant claims that the District Court acted without giving the State an adequate opportunity to make its own redistricting choice by approving the remedial plan without first adjudicating the legality of the original plan, that the court had no authority to approve any settlement over his objection, and that the remedial plan violates the Constitution. We hold that the State exercised the choice to which it was entitled under our cases, that appellant has no right to block the settlement, and that he has failed to point up any unconstitutionality in the plan proposed. I After the 1990 Decennial Census, the Florida Legislature adopted a reapportionment plan for Florida's 40 Senate districts and 120 House districts. Following the procedure for *570 reapportionment set forth in the State Constitution, see Fla. Const., Art. III, 16(c) (1970), the attorney general of Florida petitioned the State Supreme Court for a declaration that the plan comported with state and federal law. That court approved the redistricting plan, while noting that time constraints imposed by the State Constitution precluded a full review of objections raised to the plan under 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973. The court retained jurisdiction to entertain further objections to the plan. See In re Constitutionality of Senate Joint Resolution (Fla.), amended, ; Since five Florida counties, including Hillsborough County where the city of Tampa is located, are covered jurisdictions under 5 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973c, see 28 CFR pt. 51, App. ; see at n. 2, the state attorney general submitted the redistricting plan to the United States Department of Justice for preclearance. On June 16, the Department declined to preclear the proposed State Senate districts, on the grounds that the redistricting plan divided "politically cohesive minority populations" in the Hillsborough County area and failed to create a majority-minority district in that region. Letter from Assistant United States Attorney General John Dunne to Florida Attorney General Robert A. Butter worth (quoted in In re Constitutionality of Senate Joint Resolution ); see De aff'd in part and rev'd in part, The Supreme Court of Florida then entered an order encouraging the state legislature to adopt a new plan to address the Justice Department's objection, and |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | a new plan to address the Justice Department's objection, and noting that if the legislature failed to act, the court itself would adopt a reapportionment plan. See 815 F. Supp., at ; see * -545. The state court was advised that the Governor had no intent to convene the legislature in extraordinary session and that neither the President of the Senate nor the Speaker of the House of Representatives would convene his respective House. ; see 815 F. Supp., at The court concluded that a legislative impasse had occurred and, invoking authority under state law, revised the Senate redistricting plan to address the Justice Department's The amended plan, known as Plan 330, called for an irregularly shaped Senate District 21, with a voting-age population 45.8% black and 9.4% Hispanic and comprising portions of four counties in the Tampa Bay area. The district included the central portions of Tampa in Hillsborough County, the eastern shore of Tampa Bay running south to Bradenton in Manatee County, central portions of St. Petersburg in Pinellas County, a narrow projection eastward through parts of Hillsborough and Polk Counties, and a narrow finger running north from St. Petersburg to Clearwater. See Juris. Statement 29a. Although the State Supreme Court acknowledged that the district was "more contorted" than other possible plans and that black residents in different parts of the district might have little in common besides their race, it decided that such concerns "must give way to racial and ethnic fairness." See 601 So. 2d, Elections were held under Plan 330 in and 1994.[1] On April 14, 1994, appellant and five other residents of Hillsborough County filed this suit in the District Court invoking jurisdiction under 28 U.S. C. 1331, 1343, and 2201, et seq., naming the State of Florida, its attorney general, and the United States Department of Justice as defendants, and alleging that District 21 in Plan 330 violated the Equal Protection *572 Clause. The plaintiffs sought declaratory and injunctive relief, including an order requiring Florida to reconfigure the district. See App. 14. A three-judge District Court was convened and ultimately permitted intervention by the State Senate, House of Representatives, Secretary of State, District 21 Senator James T. Hargrett, Jr., and a group of black and Hispanic voters residing in District 21. Record 33, 78; 159 Tr. 25, 30 At a status conference held on July 6, 1995, shortly after we decided v. all parties agreed to the appointment of a mediator to seek resolution of the suit,[2] see Record 78, at 2; 134 Tr. 13, 14, 16 though pretrial proceedings continued during the |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | Tr. 13, 14, 16 though pretrial proceedings continued during the ensuing mediation. After the mediator declared an impasse in late October, see 166 Tr. 8 the parties continued discussions on their own and on November 2, 1995, filed with the District Court a settlement agreement signed on behalf of all parties except appellant. App. 17-21. The agreement noted that while the defendants and defendantintervenors denied the plaintiffs' claims that District 21 was unconstitutional, all parties to the settlement concurred that "there is a reasonable factual and legal basis for the plaintiffs' claim." The agreement proposed revising District 21 under a new plan, called Plan 386, which would be subject to public comment and, if approved by the District Court after a public hearing, would be used in state elections unless Florida adopted a new plan. District *573 21, as revised in Plan 386, would no longer extend into Polk County or north toward Clearwater, would have a boundary length decreased by 58%, and would include a resident black voting-age population reduced from 45.0% to 36.2%. The proposed district would cover portions of three counties instead of four and continue to include land on both sides of Tampa Bay. Record 169, attachment 4. At a status conference held the same day the parties filed the settlement agreement, the District Court sought and received specific assurances from lawyers for the President of the Senate and the Speaker of the House that they were authorized to represent their respective government bodies in the litigation and enter into the settlement proposed. 180 Tr. 23-24 Appellant argued that the District Court was required to hold Plan 330 unconstitutional before it could adopt a new districting plan, see but the District Court disagreed, noting that "there is simply not a litigable issue with respect to what we have for shorthand purposes referred to as liability and we ought simply then to proceed to resolve the issue of the fairness of this proposed settlement and entertain any objections [concerning it]." The District Court scheduled a hearing on the proposed plan for November 20, giving notice in 13 area newspapers and making details of the plan available for review in the clerk's office. See App. 161. Before the hearing, the settling parties submitted evidence including affidavits and declarations addressing the factors considered in revising District 21, Record 188, and appellant submitted his own remedial plan for a District 21 wholly contained within Hillsborough County, Record 172, at A4. At the hearing, counsel for the State Senate summarized the prehearing filings submitted by proponents of the settlement and the |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | prehearing filings submitted by proponents of the settlement and the rationale behind the agreement. App. 160-172. The District Court denied appellant's motion for ruling on his motion for summary judgment on the legality of Plan 330, saying that "[i]t makes *574 no difference whether we grant the motion or not. [I]f we granted your motion, we would be in this precise posture we are in now." 3. Appellant then argued that District 21, as redrawn in Plan 386, would still be unconstitutional because only race could explain its contours, see 5-188, and counsel for a former state legislator spoke to the same effect, On March 19, the District Court approved the settlement. See The panel majority first held that it was not obliged to find the existing District 21 unconstitutional in order to approve the settlement. While recognizing the need to "guard against any disingenuous adventures" by litigants, the majority noted that a State should not be deprived of the opportunity to avoid "an expensive and protracted contest and the possibility of an adverse and disruptive adjudication" by a rule insisting on "a public mea culpa " as the sole condition for dispensing with "a dispositive, specific determination of the controlling constitutional issue." and n. 2. To balance the competing interests, the court required a showing of a substantial "evidentiary and legal" basis for the plaintiffs' claim before the settlement would be approved, and it held the standard satisfied. "Each party either states unequivocally that existing District 21 is unconstitutionally configured or concedes, for purposes of settlement, that the plaintiffs have established prima facie unconstitutionality." The majority found that the "boundaries of current District 21 are markedly uneven and, in some respects, extraordinary," and that the district "bears at least some of the conspicuous signs of a racially conscious contrivance," The District Court then turned to the merits of Plan 386 to determine whether its formation had been "dominated by the single-minded focus" on race that it understood to be constitutionally forbidden under 920 F. Supp., at *575 1254. The court observed that the November 20 hearing "produced but two dissenters, plaintiff Lawyer and a former state Senator, both of whom neither presented relevant evidence nor offered germane legal argument." The District Court concluded that a "constitutional objection to the proposed District 21 is not established. In its shape and composition, proposed District 21 is, all said and done, demonstrably benign and satisfactorily tidy, especially given the prevailing geography." The court noted that the new district's percentage of minority residents would approximate the racial features of the region surrounding Tampa |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | would approximate the racial features of the region surrounding Tampa Bay better than Plan 330 did, that the district's boundaries would be "less strained and irregular" than those in Plan 330, and that all candidates, regardless of race, would have an opportunity to seek office, with "both a fair chance to win and the usual risk of defeat." 1256. Chief Judge Tjoflat concurred specially. He agreed that Plan 386 was constitutional but thought that the new plan could not be approved without a judicial determination that Plan 330 was unconstitutional, as he concluded it was. at 1256-. We noted probable jurisdiction, and now affirm. II A Appellant argues that the District Court erred in approving the settlement agreement without formally holding Plan 330 unconstitutional, thereby denying the State's legislature and Supreme Court the opportunity to devise a new redistricting plan.[3] See Brief for Appellant 23, 32-33. Appellant *576 relies on in which we recognized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court' [and that] [a]bsent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state apportionment nor permit federal litigation to be used to impede it." ). Appellant cites for the proposition that when a federal court declares an existing apportionment plan unconstitutional, it should, if possible, afford "a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than devise and order into effect its own plan." Appellant claims that the District Court's approval of the settlement agreement without first holding Plan 330 unconstitutional impaired the State's interest in exercising "primary responsibility for apportionment of [its] federal congressional and state legislative districts," and had the derivative effect of "eviscerat[ing] the individual rights of" appellant, as a citizen and voter, to "the liberties derived from the diffusion of sovereign power to representative state government," Brief for Appellant 26. The substance of what appellant claims as a right to the benefit of political diffusion is nothing other than the rule declared in the cases he cites, that state redistricting responsibility should be accorded primacy to the extent possible when a federal court exercises remedial power. See 507 U. S., A State should be given the opportunity to make its own redistricting decisions so long as that is practically possible and the State chooses to take the opportunity. *577 When it does take the opportunity, the discretion of the federal court is limited except to the extent that the plan itself runs |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | limited except to the extent that the plan itself runs afoul of federal law. In this case, the State has selected its opportunity by entering into the settlement agreement, which for reasons set out below in Part IIB it had every right to do. And it has availed itself of that opportunity by proposing a plan as embodied in the settlement agreement. There can be no question on the present record that proponents of the plan included counsel authorized to represent the State itself, and there is no reason to suppose that the State's attorney general lacked authority to propose a plan as an incident of his authority to represent the State in this litigation.[4] The evidence, indeed, was entirely in his favor. The participation of counsel for each legislative chamber confirmed both the continuing refusal of the legislature to address the issue in *578 formal session and the authority of the attorney general to propose the settlement plan on the State's behalf.[5] On these facts, the District Court's approval of the settlement agreement was entirely consistent with the principles underlying our cases that have granted relief on the ground that a district court had failed to respect the affected government's entitlement to originate its own redistricting policy. Since the State, through its attorney general, has taken advantage of the option recognized in and to make redistricting decisions in the first instance, there are no reasons in those cases to burden its exercise of choice by requiring a formal adjudication of unconstitutionality. B We find no merit, either, in appellant's apparently distinct claim that, regardless of any effect on the State's districting responsibility, the District Court was bound to adjudicate liability before settlement because appellant did not agree to settle. See Brief for Appellant "It has never been supposed that one partywhether an original party, a party *579 that was joined later, or an intervenorcould preclude other parties from settling their own disputes."[6] While appellant was entitled to present evidence and have his objections heard at the hearing to consider approval of the agreement, he "does not have power to block the decree merely by withholding [his] consent." ; cf.7B C. Wright, A. & M. Kane, Federal Practice and Procedure 1797.1, p. 412 (fact of opposition does not necessitate disapproval of class-action settlement under Federal Rule of Civil Procedure 23). While a settlement agreement subject to court approval in a nonclass action may not impose duties or obligations on an unconsenting party or "dispose" of his claims, see the agreement here did none of those things. It disposed of appellant's |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | here did none of those things. It disposed of appellant's claim not in the forbidden sense of cutting him off from a remedy to which he was entitled, but only in the legitimate sense of granting him an element of the very relief he had sought. As a remedy for what appellant claimed to be an unconstitutional plan he had requested the elimination of that plan, and the settlement and decree gave him that relief. To afford him a right to the formality of a decree in addition to the substance of the relief sought would be to allow a sore winner to obscure the point of the suit. In most civil litigation, and in this suit in particular, "the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces The real value of the judicial pronouncementwhat makes it a proper judicial *580 resolution of a `case or controversy' rather than an advisory opinionis in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. " Appellant, of course, wanted something more than being rid of Plan 330, for he wanted a new plan that would be constitutional. But insofar as he would have been entitled to that following a formal decree of the court, he is now in the same position he would have enjoyed if he had had such a decree: his views on the merits of the proposed plan were heard, and his right to attack it in this appeal is entirely unimpaired. To the extent that he claims anything more, he is trying to do what we have previously said he may not do: to demand an adjudication that the State of Florida, represented by the attorney general, could indeed have demanded, see 507 U. S., ; 437 U. S., but instead waived. III The District Court concluded that Plan 386 did not subordinate traditional districting principles to race.[7] See -1255. That finding is subject to review for clear error, see -917, of which we find none. The District Court looked to the shape and composition of District 21 as redrawn in Plan 386 and found them "demonstrably benign and satisfactorily tidy." 920 F. Supp., The district is located entirely in the Tampa Bay area, has an end-to-end distance no greater than that of most Florida *581 Senate districts,[8] and in shape does not stand out as different from numerous other Florida House and Senate districts. See App. |
Justice Souter | 1,997 | 20 | majority | Lawyer v. Department of Justice | https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/ | from numerous other Florida House and Senate districts. See App. 26, 60-75. While District 21 crosses a body of water and encompasses portions of three counties, evidence submitted showed that both features are common characteristics of Florida legislative districts, being products of the State's geography and the fact that 40 Senate districts are superimposed on 67 counties. See[9] Addressing composition, the District Court found that the residents of District 21 "regard themselves as a community." 920 F. Supp., Evidence indicated that District 21 comprises a predominantly urban, low-income population, the poorest of the nine districts in the Tampa Bay region and among the poorest districts in the State, whose white and black members alike share a similarly depressed economic condition, see App. 30-31, 49-51, and interests that reflect it, The fact that District 21 under Plan 386 is not a majority black district, the black voting-age population being 36.2%, supports the District Court's finding that the district is not a "safe" one for black-preferred candidates, but one that "offers to any candidate, without regard to race, the opportunity" to seek and be elected to office. *582 Based on these and other considerations,[10] the District Court concluded that traditional districting principles had not been subordinated to race in drawing revised District 21. Appellant calls this finding clearly erroneous, charging that District 21 encompasses more than one county, crosses a body of water, is irregular in shape, lacks compactness, and contains a percentage of black voters significantly higher than the overall percentage of black voters in Hillsborough, Manatee, and Pinellas Counties. Brief for Appellant 40-45. Appellant's first four points ignore unrefuted evidence showing that on each of these points District 21 is no different from what Florida's traditional districting principles could be expected to produce. See As to appellant's final point, we have never suggested that the percentage of black residents in a district may not exceed the percentage of black residents in any of the counties from which the district is created, and have never recognized similar racial composition of different political districts as being necessary to avoid an inference of racial gerrymandering in any one of them. Since districting can be difficult, after all, just because racial composition varies from place to place, and counties and voting districts do not depend on common principles of size and location, facts about the one do not as such necessarily entail conclusions about the other. In short, the evidence amply supports the trial court's views that race did not predominate over Florida's traditional districting principles in drawing Plan 386. Appellant has provided nothing |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | Seventeen years ago, in this Court held that the 42d Congress did not intend to subject a municipal corporation to liability as a "person" within the meaning of 42 U.S. C. 1983. Since then, the Congress has remained silent, but this Court has reaffirmed that holding on at least three separate occasions. ; City of ; See also Mt. Healthy City Board of Today, the Court abandons this long and consistent line of precedents, offering in justification only an elaborate canvass of the same legislative history which was before the Court in 1961. Because I cannot agree that this Court is "free to disregard these precedents," which have been "considered maturely and recently" by this Court, 60, I am compelled to dissent. I As this Court has repeatedly recognized, at 175 n. 12; considerations of stare decisis are at their strongest when this Court confronts its previous constructions of legislation. In all cases, private parties shape their conduct according to this Court's settled construction of the law, but the Congress is at *715 liberty to correct our mistakes of statutory construction, unlike our constitutional interpretations, whenever it sees fit. The controlling principles were best stated by Mr. Justice Brandeis: "Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions." (footnotes omitted). Only the most compelling circumstances can justify this Court's abandonment of such firmly established statutory precedents. The best exposition of the proper burden of persuasion was delivered by Mr. Justice Harlan in Monroe itself: "From my point of view, the policy of stare decisis, as it should be applied in matters of statutory construction, and, to a lesser extent, the indications of congressional acceptance of this Court's earlier interpretation, require that it appear beyond doubt from the legislative history of the 1871 statute that [United States v.] Classic, [ ] and Screws [v. United States, ] misapprehended the meaning of the controlling provision, before a departure from what was decided in those cases would be justified." (footnote omitted; emphasis added). The Court does not demonstrate that any exception to this general rule is properly applicable here. The Court's first assertion, that Monroe "was a departure from prior practice," ante, at 695, is patently erroneous. Neither in |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | prior practice," ante, at 695, is patently erroneous. Neither in nor in nor in any of the school board cases cited by the Court, ante, at 663 n. 5, was the question now before us raised by any of the litigants or addressed by this Court. As recently as four Terms ago, we said in : "Moreover, when questions of jurisdiction have been passed on in prior decisions sub silentio, this Court has never considered itself bound when a subsequent case finally brings the jurisdictional issue before us." The source of this doctrine that jurisdictional issues decided sub silentio are not binding in other cases seems to be Mr. Chief Justice Marshall's remark in United[1] While the Chief Justice also said that such decisions may "have much weight, as they show that this point neither occurred to the bar or the bench," Bank of the United unconsidered assumptions of jurisdiction simply cannot outweigh four consistent decisions of this Court, explicitly considering and rejecting that jurisdiction. Nor is there any indication that any later Congress has ever approved suit against any municipal corporation under 1983. Of all its recent enactments, only the Civil Rights Attorney's Fees Awards Act of 1976, 2, 42 U.S. C. 19 (1976 ed.), explicitly deals with the Civil Rights Act of 1871.[2] The 1976 Act provides that attorney's fees may be awarded *717 to the prevailing party "[i]n any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title." There is plainly no language in the 1976 Act which would enlarge the parties suable under those substantive sections; it simply provides that parties who are already suable may be made liable for attorney's fees. As the Court admits, ante, at 699, the language in the Senate Report stating that liability may be imposed "whether or not the agency or government is a named party," S. Rep. No. 94-1011, p. 5 suggests that Congress did not view its purpose as being in any way inconsistent with the well-known holding of Monroe. The Court's assertion that municipalities have no right to act "on an assumption that they can violate constitutional rights indefinitely," ante, at 700, is simply beside the point. Since Monroe, municipalities have had the right to expect that they would not be held liable retroactively for their officers' failure to predict this Court's recognition of new constitutional rights. No doubt innumerable municipal insurance policies and indemnity ordinances have been founded on this assumption, which is wholly justifiable under established principles of stare decisis. To obliterate those legitimate expectations without |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | principles of stare decisis. To obliterate those legitimate expectations without more compelling justifications than those advanced by the Court is a significant departure from our prior practice. I cannot agree with MR. JUSTICE POWELL's view that "[w]e owe somewhat less deference to a decision that was rendered without benefit of a full airing of all the relevant considerations." Ante, at 709 n. 6. Private parties must be able to rely upon explicitly stated holdings of this Court without being *718 obliged to peruse the briefs of the litigants to predict the likelihood that this Court might change its mind. To cast such doubt upon each of our cases, from forward, in which the explicit ground of decision "was never actually briefed or argued," ante, at 708 would introduce intolerable uncertainty into the law. Indeed, in Marbury itself, the argument of Charles Lee on behalf of the applicantswhich, unlike the arguments in Monroe, is reproduced in the Reports of this Court where anyone can see itdevotes not a word to the question of whether this Court has the power to invalidate a statute duly enacted by the Congress. Neither this ground of decision nor any other was advanced by Secretary of State Madison, who evidently made no -154. More recent landmark decisions of this Court would appear to be likewise vulnerable under my Brother POWELL'S analysis. In none of the parties requested the Court to overrule ; it did so only at the request of an amicus n. 3. That Marbury, Mapp, and countless other decisions retain their vitality despite their obvious flaws is a necessary byproduct of the adversary system, in which both judges and the general public rely upon litigants to present "all the relevant considerations." Ante, at 709 n. 6 While it undoubtedly has more latitude in the field of constitutional interpretation, this Court is surely not free to abandon settled statutory interpretation at any time a new thought seems appealing.[3] Thus, our only task is to discern the intent of the 42d Congress. That intent was first expounded in Monroe, and it *719 has been followed consistently ever since. This is not some esoteric branch of the law in which congressional silence might reasonably be equated with congressional indifference. Indeed, this very year, the Senate has been holding hearings on a bill, S. 35, 95th Cong., 1st Sess. which would remove the municipal immunity recognized by Monroe. 124 Cong. Rec. D117 (daily ed. Feb. 8, 1978). In these circumstances, it cannot be disputed that established principles of stare decisis require this Court to pay the highest degree |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | stare decisis require this Court to pay the highest degree of deference to its prior holdings. Monroe may not be overruled unless it has been demonstrated "beyond doubt from the legislative history of the 1871 statute that [Monroe] misapprehended the meaning of the controlling provision." Monroe, The Court must show not only that Congress, in rejecting the Sherman amendment, concluded that municipal liability was not unconstitutional, but also that, in enacting 1, it intended to impose that liability. I am satisfied that no such showing has been made. II Any analysis of the meaning of the word "person" in 1983, which was originally enacted as 1 of the Ku Klux Klan Act of April 20, 1871, must begin, not with the Sherman amendment, but with the Dictionary Act. The latter Act, which supplied rules of construction for all legislation, provided: "That in all acts hereafter passed the word `person' may extend and be applied to bodies politic and corporate. unless the context shows that such words were intended to be used in a more limited sense" Act of Feb. 25, 1871, 2, The Act expressly provided that corporations need not be included within the scope of the word "person" where the context suggests a more limited reach. Not a word in the legislative history of the Act gives any indication of the contexts *720 in which Congress felt it appropriate to include a corporation as a person. Indeed, the chief cause of concern was that the Act's provision that "words importing the masculine gender may be applied to females," might lead to an inadvertent extension of the suffrage to women. Cong. Globe, 41st Cong., 3d Sess., 777 (1871) (remarks of Sen. Sawyer). There are other factors, however, which suggest that the Congress which enacted 1983 may well have intended the word "person" "to be used in a more limited sense," as Monroe concluded. It is true that this Court had held that both commercial corporations, Louisville R. and municipal corporations, (9), were "citizens" of a State within the meaning of the jurisdictional provisions of Art. III. Congress, however, also knew that this label did not apply in all contexts, since this Court, in (9), had held commercial corporations not to be "citizens" within the meaning of the Privileges and Immunities Clause, U. S. Const., Art. IV, 2. Thus, the Congress surely knew that, for constitutional purposes, corporations generally enjoyed a different status in different contexts. Indeed, it may be presumed that Congress intended that a corporation should enjoy the same status under the Ku Klux Klan Act as it did |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | status under the Ku Klux Klan Act as it did under the Fourteenth Amendment, since it had been assured that 1 "was so very simple and really reenact[ed] the Constitution." Cong. Globe, 42d Cong., 1st Sess., 569 (1871) (remarks of Sen. Edmunds). At the time 1983 was enacted the only federal case to consider the status of corporations under the Fourteenth Amendment had concluded, with impeccable logic, that a corporation was neither a "citizen" nor a "person." Insurance (No. 7,052) (CC La. 1870). Furthermore, the state courts did not speak with a single voice with regard to the tort liability of municipal corporations. Although many Members of Congress represented *721 States which had retained absolute municipal tort immunity, see, e. g., other States had adopted the currently predominant distinction imposing liability for proprietary acts, see generally 2 F. Harper & F. James, Law of Torts 29.6 (1956), as early as Nevertheless, no state court had ever held that municipal corporations were always liable in tort in precisely the same manner as other persons. The general remarks from the floor on the liberal purposes of 1 offer no explicit guidance as to the parties against whom the remedy could be enforced. As the Court concedes, only Representative Bingham raised a concern which could be satisfied only by relief against governmental bodies. Yet he never directly related this concern to 1 of the Act. Indeed, Bingham stated at the outset, "I do not propose now to discuss the provisions of the bill in detail," Cong. Globe, 42d Cong., 1st Sess., App. 82 (1871), and, true to his word, he launched into an extended discourse on the beneficent purposes of the Fourteenth Amendment. While Bingham clearly stated that Congress could "provide that no citizen in any State shall be deprived of his property by State law or the judgment of a State court without just compensation therefor," he never suggested that such a power was exercised in 1.[4] *722 Finally, while Bingham has often been advanced as the chief expositor of the Fourteenth Amendment, ; there is nothing to indicate that his colleagues placed any greater credence in his theories than has this Court. See ; Thus, it ought not lightly to be presumed, as the Court does today, ante, at 690 n. 53, that 1983 "should prima facie be construed to include `bodies politic' among the entities that could be sued." Neither the Dictionary Act, the ambivalent state of judicial decisions, nor the floor debate on 1 of the Act gives any indication that any Member of Congress had any inkling that |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | indication that any Member of Congress had any inkling that 1 could be used to impose liability on municipalities. Although Senator Thurman, as the Court emphasizes, ante, at 686 n. 45, expressed his belief that the terms of 1 "are as comprehensive as can be used," Cong. Globe, 42d Cong., 1st Sess., App. 217 (1871), an examination of his lengthy remarks demonstrates that it never occurred to him that 1 did impose or could have imposed any liability upon municipal corporations. In an extended parade of horribles, this "old Roman," who was one of the Act's most implacable opponents, suggested that state legislatures, Members of Congress, and state judges might be held liable under the Act. If, at that point in the debate, he had any idea that 1 was designed to impose tort liability upon cities and counties, he would surely have raised an additional outraged objection. Only once was that possibility placed squarely before the Congressin its consideration of the Sherman amendmentand the Congress squarely rejected it. The Court is probably correct that the rejection of the Sherman amendment does not lead ineluctably to the conclusion that Congress intended municipalities to be immune from liability under all circumstances. Nevertheless, it cannot be *723 denied that the debate on that amendment, the only explicit consideration of municipal tort liability, sheds considerable light on the Congress' understanding of the status of municipal corporations in that context. Opponents of the amendment were well aware that municipalities had been subjected to the jurisdiction of the federal courts in the context of suits to enforce their contracts, Cong. Globe, 42d Cong., 1st Sess., 789 (1871) (remarks of Rep. Kerr), but they expressed their skepticism that such jurisdiction should be exercised in cases sounding in tort: "Suppose a judgment obtained under this section, and no property can be found to levy upon except the courthouse, can we levy on the court-house and sell it? So this section provides, and that too in an action of tort, in an action ex delicto, where the county has never entered into any contract, where the State has never authorized the county to assume any liability of the sort or imposed any liability upon it. It is in my opinion simply absurd." Whatever the merits of the constitutional arguments raised against it, the fact remains that Congress rejected the concept of municipal tort liability on the only occasion in which the question was explicitly presented. Admittedly this fact is not conclusive as to whether Congress intended 1 to embrace a municipal corporation within the meaning of "person," and |
Justice Rehnquist | 1,978 | 19 | dissenting | Monell v. New York City Dept. of Social Servs. | https://www.courtlistener.com/opinion/109881/monell-v-new-york-city-dept-of-social-servs/ | embrace a municipal corporation within the meaning of "person," and thus the reasoning of Monroe on this point is subject to challenge. The meaning of 1 of the Act of 1871 has been subjected in this case to a more searching and careful analysis than it was in Monroe, and it may well be that on the basis of this closer analysis of the legislative debates a conclusion contrary to the Monroe holding could have been reached when that case was decided 17 years ago. But the rejection of the Sherman amendment remains instructive in that here alone did the legislative debates squarely focus on the liability of municipal corporations, and that liability was rejected. *724 Any inference which might be drawn from the Dictionary Act or from general expressions of benevolence in the debate on 1 that the word "person" was intended to include municipal corporations falls far short of showing "beyond doubt" that this Court in Monroe "misapprehended the meaning of the controlling provision." Errors such as the Court may have fallen into in Monroe do not end the inquiry as to stare decisis; they merely begin it. I would adhere to the holding of Monroe as to the liability of a municipal corporation under 1983. III The decision in was the fountainhead of the torrent of civil rights litigation of the last 17 years. Using 1983 as a vehicle, the courts have articulated new and previously unforeseeable interpretations of the Fourteenth Amendment. At the same time, the doctrine of municipal immunity enunciated in Monroe has protected municipalities and their limited treasuries from the consequences of their officials' failure to predict the course of this Court's constitutional jurisprudence. None of the Members of this Court can foresee the practical consequences of today's removal of that protection. Only the Congress, which has the benefit of the advice of every segment of this diverse Nation, is equipped to consider the results of such a drastic change in the law. It seems all but inevitable that it will find it necessary to do so after today's decision. I would affirm the judgment of the Court of Appeals. |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | n this action, we must decide whether a mother, the custodian of a child pursuant to a court order, may invoke the Fifth Amendment privilege against self-incrimination to resist an order of the juvenile court to produce the child. We hold that she may not. Petitioner Maurice is an abused child. When he was three months old, he was hospitalized with a fractured left femur, and examination revealed several partially healed bone fractures and other indications of severe physical abuse. n the hospital, respondent Bouknight, Maurice's mother, *552 was observed shaking Maurice, dropping him in his crib despite his spica cast, and otherwise handling him in a manner inconsistent with his recovery and continued health. Hospital personnel notified the Baltimore City Department of Social Services (BCDSS), petitioner in No. 88-1182, of suspected child abuse. n February 1987, BCDSS secured a court order removing Maurice from Bouknight's control and placing him in shelter care. Several months later, the shelter care order was inexplicably modified to return Maurice to Bouknight's custody temporarily. Following a hearing held shortly thereafter, the juvenile court declared Maurice to be a "child in need of assistance," thus asserting jurisdiction over Maurice and placing him under BCDSS' continuing oversight. BCDSS agreed that Bouknight could continue as custodian of the child, but only pursuant to extensive conditions set forth in a court-approved protective supervision order. The order required Bouknight to "cooperate with BCDSS," "continue in therapy," participate in parental aid and training programs, and "refrain from physically punishing [Maurice]." App. to Pet. for Cert. 86a. The order's terms were "all subject to the further Order of the Court." at 87a. Bouknight's attorney signed the order, and Bouknight in a separate form set forth her agreement to each term. Eight months later, fearing for Maurice's safety, BCDSS returned to juvenile court. BCDSS caseworkers related that Bouknight would not cooperate with them and had in nearly every respect violated the terms of the protective order. BCDSS stated that Maurice's father had recently died in a shooting incident and that Bouknight, in light of the results of a psychological examination and her history of drug use, could not provide adequate care for the child. App. 33-34. On April 20, the court granted BCDSS' petition to remove Maurice from Bouknight's control for placement in foster care. BCDSS officials petitioned for judicial relief from Bouknight's failure to produce Maurice or reveal where he could be found. The petition *553 recounted that on two recent visits by BCDSS officials to Bouknight's home, she had refused to reveal the location of the child or had indicated |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | to reveal the location of the child or had indicated that the child was with an aunt whom she would not identify. The petition further asserted that inquiries of Bouknight's known relatives had revealed that none of them had recently seen Maurice and that BCDSS had prompted the police to issue a missing persons report and referred the case for investigation by the police homicide division. Also on April 20, the juvenile court, upon a hearing on the petition, cited Bouknight for violating the protective custody order and for failing to appear at the hearing. Bouknight had indicated to her attorney that she would appear with the child, but expressed fear that if she appeared the State would " `snatch the child.' " The court issued an order to show cause why Bouknight should not be held in civil contempt for failure to produce the child. Expressing concern that Maurice was endangered or perhaps dead, the court issued a bench warrant for Bouknight's appearance. Maurice was not produced at subsequent hearings. At a hearing one week later, Bouknight claimed that Maurice was with a relative in Dallas. nvestigation revealed that the relative had not seen Maurice. The next day, following another hearing at which Bouknight again declined to produce Maurice, the juvenile court found Bouknight in contempt for failure to produce the child as ordered. There was and has been no indication that she was unable to comply with the order. The court directed that Bouknight be imprisoned until she "purge[d] herself of contempt by either producing [Maurice] before the court or revealing to the court his exact whereabouts." App. to Pet. for Cert. 82a. The juvenile court rejected Bouknight's subsequent claim that the contempt order violated the Fifth Amendment's guarantee against self-incrimination. The court stated that the production of Maurice would purge the contempt and that "[t]he contempt is issued not because she refuse[d] to *554 testify in any proceeding [but] because she has failed to abide by the Order of this Court, mainly [for] the production of Maurice " App. 150. While that decision was being appealed, Bouknight was convicted of theft and sentenced to 18 months' imprisonment in separate proceedings. The Court of Appeals of Maryland vacated the juvenile court's judgment upholding the contempt order. n re Maurice The Court of Appeals found that the contempt order unconstitutionally compelled Bouknight to admit through the act of production "a measure of continuing control and dominion over Maurice's person" in circumstances in which "Bouknight has a reasonable apprehension that she will be prosecuted." CHEF JUSTCE REHNQUST granted BCDSS' application |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | she will be prosecuted." CHEF JUSTCE REHNQUST granted BCDSS' application for a stay of the judgment and mandate of the Maryland Court of Appeals, pending disposition of the petition for a writ of certiorari. We granted certiorari, and we now reverse. The Fifth Amendment provides that "No person shall be compelled in any criminal case to be a witness against himself." The Fifth Amendment's protection "applies only when the accused is compelled to make a testimonial communication that is incriminating." ; see ; The juvenile court concluded that Bouknight could comply with the order through the unadorned act of producing the child, and we thus address that aspect of the order. When the government demands that an item be produced, "the only thing compelled is the act of producing *555 the [item]." ; see United The Fifth Amendment's protection may nonetheless be implicated because the act of complying with the government's demand testifies to the existence, possession, or authenticity of the things produced. See Doe ; Doe at -614, and n. 13; But a person may not claim the Amendment's protections based upon the incrimination that may result from the contents or nature of the thing demanded. Doe 465 U. S., at and n. 10; ; at -410. Bouknight therefore cannot claim the privilege based upon anything that examination of Maurice might reveal, nor can she assert the privilege upon the theory that compliance would assert that the child produced is in fact Maurice (a fact the State could readily establish, rendering any testimony regarding existence or authenticity insufficiently incriminating, see ). Rather, Bouknight claims the benefit of the privilege because the act of production would amount to testimony regarding her control over, and possession of, Maurice. Although the State could readily introduce evidence of Bouknight's continuing control over the child e. g., the custody order, testimony of relatives, and Bouknight's own statements to Maryland officials before invoking the privilege her implicit communication of control over Maurice at the moment of production might aid the State in prosecuting Bouknight. The possibility that a production order will compel testimonial assertions that may prove incriminating does not, in all s, justify invoking the privilege to resist production. See infra, at 556-558. Even assuming that this limited testimonial assertion is sufficiently incriminating and "sufficiently testimonial for purposes of the privilege," Bouknight may not invoke the privilege to resist the production order because she has assumed custodial duties related *556 to production and because production is required as part of a noncriminal regulatory regime. The Court has on several occasions recognized that |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | regulatory regime. The Court has on several occasions recognized that the Fifth Amendment privilege may not be invoked to resist compliance with a regulatory regime constructed to effect the State's public purposes unrelated to the enforcement of its criminal laws. n the Court considered an application of the Emergency Price Control Act of 1942 and a regulation issued thereunder which required licensed businesses to maintain records and make them available for inspection by administrators. The Court indicated that no Fifth Amendment protection attached to production of the "required records," which the " `defendant was required to keep, not for his private uses, but for the benefit of the public, and for public inspection.' " ). The Court's discussion of the constitutional implications of the scheme focused upon the relation between the Government's regulatory objectives and the Government's interest in gaining access to the records in Shapiro's possession: "t may be assumed at the outset that there are limits which the Government cannot constitutionally exceed in requiring the keeping of records which may be inspected by an administrative agency and may be used in prosecuting statutory violations committed by the record-keeper himself. But no serious misgiving that those bounds have been overstepped would appear to be evoked when there is a sufficient relation between the activity sought to be regulated and the public concern so that the Government can constitutionally regulate or forbid the basic activity concerned, and can constitutionally require the keeping of particular records, subject to inspection by the Administrator." See n re Harris, (regarding a court order that a bankrupt produce account *5 books, "[t]he question is not of testimony but of surrender not of compelling the bankrupt to be a witness against himself in a criminal case, past or future, but of compelling him to yield possession of property that he no longer is entitled to keep"). The Court has since refined those limits to the government's authority to gain access to items or information vested with this public character. The Court has noted that "the requirements at issue in Shapiro were imposed in `an essentially non-criminal and regulatory area of inquiry,' " and that Shapiro's reach is limited where requirements "are directed to a `selective group inherently suspect of criminal activities.' " ; see ; confirms that the ability to invoke the privilege may be greatly diminished when invocation would interfere with the effective operation of a generally applicable, civil regulatory requirement. n the Court upheld enforcement of California's statutory requirement that drivers of cars involved in accidents stop and provide their names and addresses. |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | involved in accidents stop and provide their names and addresses. A plurality found the risk of incrimination too insubstantial to implicate the Fifth Amendment, and noted that the statute "was not intended to facilitate criminal convictions but to promote the satisfaction of civil liabilities," was " `directed at the public at large,' " (quoting at ), and required disclosure of no inherently illegal activity. See United Justice Harlan, the author of and concurred in the judgment. He distinguished *558 those three cases as considering statutory schemes that "focused almost exclusively on conduct which was criminal," While acknowledging that in particular cases the California statute would compel incriminating testimony, he concluded that the noncriminal purpose and the general applicability of the reporting requirement demanded compliance even in such cases. When a person assumes control over items that are the legitimate object of the government's noncriminal regulatory powers, the ability to invoke the privilege is reduced. n the Court surveyed a range of cases involving the custody of public documents and records required by law to be kept because they related to "the appropriate subjects of governmental regulation and the enforcement of restrictions validly established." The principle the Court drew from these cases is: "[W]here, by virtue of their character and the rules of law applicable to them, the books and papers are held subject to examination by the demanding authority, the custodian has no privilege to refuse production although their contents tend to criminate him. n assuming their custody he has accepted the incident obligation to permit inspection." See v. United ; Curcio v. United (19) n Shapiro, the Court interpreted this principle as extending well beyond the corporate -20, and emphasized that Shapiro had assumed and retained control over documents in which the Government had a direct and particular regulatory interest. ndeed, it was in part Shapiro's custody over items having this public nature that allowed the Court in at and to distinguish *559 the measures considered in those cases from the regulatory requirement at issue in Shapiro. These principles readily apply to this case. Once Maurice was adjudicated a child in need of assistance, his care and safety became the particular object of the State's regulatory interests. See ; Md. Cts. & Jud. Proc. Code Ann. 3-801(e), 3-804(a) ; see App. 105 ("This court has jurisdiction to require at all times to know the whereabouts of the minor child. We asserted jurisdiction over that child in the spring of 1987"). Maryland first placed Maurice in shelter care, authorized placement in foster care, and then entrusted responsibility for Maurice's care |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | in foster care, and then entrusted responsibility for Maurice's care to Bouknight. By accepting care of Maurice subject to the custodial order's conditions (including requirements that she cooperate with BCDSS, follow a prescribed training regime, and be subject to further court orders), Bouknight submitted to the routine operation of the regulatory system and agreed to hold Maurice in a manner consonant with the State's regulatory interests and subject to inspection by BCDSS. Cf. n assuming the obligations attending custody, Bouknight "has accepted the incident obligation to permit inspection." 221 U. S., The State imposes and enforces that obligation as part of a broadly directed, noncriminal regulatory regime governing children cared for pursuant to custodial orders. See Md. Cts. & Jud. Proc. Code Ann. 3-802(a) (setting forth child protective purposes of subtitle, including "provid[ing] for the care, protection, and wholesome mental and physical development of children coming within the provisions of this subtitle"); see Md. Cts. & Jud. Proc. Code Ann. 3-820(b), (c) ; n re Jessica Persons who care for children pursuant to a custody order, and who may be subject to a request for access to the child, are hardly a " `selective group inherently suspect of criminal activities.' " at (quoting Albertson v. *560 Subversive Activities Control 382 U. S., at ). The juvenile court may place a child within its jurisdiction with social service officials or "under supervision in his own home or in the custody or under the guardianship of a relative or other fit person, upon terms the court deems appropriate." Md. Cts. & Jud. Proc. Code Ann. 3-820(c)(1)(i) Children may be placed, for example, in foster care, in homes of relatives, or in the care of state officials. See, e. g., n re Jessica n re Arlene G., ; Maryland Dept. of Health and Mental Even when the court allows a parent to retain control of a child within the court's jurisdiction, that parent is not one singled out for criminal conduct, but rather has been deemed to be, without the State's assistance, simply "unable or unwilling to give proper care and attention to the child and his problems." Md. Cts. & Jud. Proc. Code Ann. 3-801(e) ; see n re Jertrude O., cert. denied, The provision that authorized the juvenile court's efforts to gain production of Maurice reflects this broad applicability. See Md. Cts. & Jud. Proc. Code Ann. 3-814(c) ("f a parent, guardian, or custodian fails to bring the child before the court when requested, the court may issue a writ of attachment directing that the child be taken into custody and |
Justice O'Connor | 1,989 | 14 | majority | Baltimore CityDept. of Social Servs. v. Bouknight | https://www.courtlistener.com/opinion/112360/baltimore-citydept-of-social-servs-v-bouknight/ | attachment directing that the child be taken into custody and brought before the court. The court may proceed against the parent, guardian, or custodian for contempt"). This provision "fairly may be said to be directed at parents, guardians, and custodians who accept placement of juveniles in custody." Similarly, BCDSS' efforts to gain access to children, as well as judicial efforts to the same effect, do not "focu[s] almost exclusively on conduct which was criminal." Many orders will arise in circumstances entirely devoid of *561 criminal conduct. Even when criminal conduct may exist, the court may properly request production and return of the child, and enforce that request through exercise of the contempt power, for reasons related entirely to the child's wellbeing and through measures unrelated to criminal law enforcement or investigation. See Maryland Cts. & Jud. Proc. Code Ann. 3-814(c) This case provides an illustration: concern for the child's safety underlay the efforts to gain access to and then compel production of Maurice. See App. 33-39, 53-55, 150, 155-158; see Finally, production in the vast majority of cases will embody no incriminating testimony, even if in particular cases the act of production may incriminate the custodian through an assertion of possession or the existence, or the identity, of the child. Cf. 402 U. S., -431; These orders to produce children cannot be characterized as efforts to gain some testimonial component of the act of production. The government demands production of the very public charge entrusted to a custodian, and makes the demand for compelling reasons unrelated to criminal law enforcement and as part of a broadly applied regulatory regime. n these circumstances, Bouknight cannot invoke the privilege to resist the order to produce Maurice. We are not called upon to define the precise limitations that may exist upon the State's ability to use the testimonial aspects of Bouknight's act of production in subsequent criminal proceedings. But we note that imposition of such limitations is not foreclosed. The same custodial role that limited the ability to resist the production order may give rise to corresponding limitations upon the direct and indirect use of that testimony. See and n. 11. The State's regulatory requirement in the usual case may neither compel incriminating testimony nor aid a criminal prosecution, but the Fifth Amendment protections are not thereby necessarily unavailable to the person who complies *562 with the regulatory requirement after invoking the privilege and subsequently faces prosecution. See -59 ; see Leary v. United ; ; 390 U. S., ; cf. Doe n. 17 n a broad range of s, the Fifth Amendment |
Justice Stevens | 1,986 | 16 | dissenting | Los Angeles v. Heller | https://www.courtlistener.com/opinion/111630/los-angeles-v-heller/ | Whenever the Court decides a case without the benefit of briefs or argument on the merits, there is a danger that it will issue an opinion without the careful deliberation and explication that the issues require. Today's "per curiam" opinion is a fair illustration of the problem. The two important issues presented in this case are not even identified in that document. The District Court's decision to dismiss the action against the city, the Police Department, and the Police Commissioners necessarily rested on two assumptions: (1) there was an inherent inconsistency between the jury verdict in favor of Officer Bushey and a possible verdict against the municipal defendants and (2) that inconsistency required the dismissal of the action against the municipal defendants. Far from specifically addressing those issues, however, the District Court dismissed the action against the city on the ground that it had "become moot."[1] In a similar vein, this *801 Court rests its summary decision on the maxim that "juries act in accordance with the instructions given them." Ante, at 798. In my view, neither of the necessary assumptions for the District Court's action and for this Court's reinstatement of its decision is remotely present in this case. I The first necessary assumption is that there would be an inevitable inconsistency between the jury verdict of no liability for Officer Bushey and a possible verdict of liability against the municipal entities; in the absence of such an inconsistency, the District Court's decision, and this Court's reinstatement of it, are simply inexplicable. It is undisputed that Ronald Heller crashed through a plate-glass window after some kind of an altercation with Officer Bushey. He had been stopped on suspicion of driving while intoxicated and given sobriety tests.[2] In his claim against the municipal entities, Heller contended that the city and the Police Department had adopted a policy of condoning excessive force in making arrests, that the policy was unlawful, and that he had been injured by the application of that policy at the time of his arrest. In his claim against Officer Bushey, Heller contended that his constitutional rights were violated because Officer Bushey had employed "unreasonable force" in arresting him. On the day before trial, the District Judge bifurcated the trial into two phases the first against Officer Bushey and the second against the municipal entities. The record contains no explanation for this decision, but it does reveal that Heller's counsel opposed bifurcation.[3] *802 In the proceeding against Officer Bushey, considerable evidence of the Los Angeles Police Department's policy and custom on the use of force |
Justice Stevens | 1,986 | 16 | dissenting | Los Angeles v. Heller | https://www.courtlistener.com/opinion/111630/los-angeles-v-heller/ | Police Department's policy and custom on the use of force was introduced. An expert witness testified regarding Los Angeles' officially sanctioned use of "escalating force," culminating in the use of the notorious "chokehold."[4] Officer Bushey himself testified that Heller's flight through the window resulted from his attempt to impose a chokehold, and that he was carefully following official Police Department policy.[5] Officer Bushey's superior, Sergeant Shrader, also testified that Officer Bushey's actions were in complete compliance with official Police Department policy.[6] Finally, Officer Bushey's attorney repeatedly *803 emphasized that his client's actions were entirely consistent with established Department policy.[7] In submitting the claim against Officer Bushey to the jury, the trial judge gave an instruction that simply stated that whether or not the force used in making an arrest in unreasonable "is an issue to be determined in the light of all the surrounding circumstances."[8] After deliberating several hours, the jury returned a general verdict in favor of the officer. Thus, despite the majority's summary assertion to the contrary, it is perfectly obvious that the general verdict rejecting the excessive force claim against Officer Bushey did not necessarily determine the constitutionality of the city's "escalating force" policy a subject on which the jury had received no instructions at all. The verdict merely determined that the officer's action was not unreasonable "in the light of all the surrounding circumstances" which, of course, included the evidence that Officer Bushey was merely obeying orders and following established Police Department policy. As a result, there was no necessary inconsistency between the verdict for Officer Bushey and a possible verdict of liability *804 against the municipal defendants. On that basis alone, the District Court plainly erred in dismissing as "moot" the suit against the municipal defendants, and the Court of Appeals was plainly correct to reverse the dismissal.[9] II In view of the fact that the Court of Appeals correctly concluded that there was no necessary inconsistency between a verdict exonerating Officer Bushey and a verdict holding the city and Police Department liable for the "escalating force" policy, it did not have to consider the appropriate response to a possible inconsistency in the context of a bifurcated trial. Inconsistent verdicts are, of course, a familiar phenomenon. In a criminal case, a jury's apparently inconsistent verdict is allowed to stand.[10] In a civil case, the rule is less *805 clear.[11] Nevertheless, in contrast to the Court's blithe assumption today, it is far from certain that the District Court's action the dismissal was an appropriate response, even if somehow a verdict against the |
Justice Stevens | 1,986 | 16 | dissenting | Los Angeles v. Heller | https://www.courtlistener.com/opinion/111630/los-angeles-v-heller/ | an appropriate response, even if somehow a verdict against the municipal entities might have created an inconsistency. First, the Court ignores the fact that, in certain circumstances, a court retains the authority, even in a civil case, to allow an apparently inconsistent verdict to stand.[12] Second, the Court ignores the *806 fact that, when faced with an apparently inconsistent verdict, a court has a duty to attempt to read the verdict in a manner that will resolve inconsistencies.[13] Third, the Court ignores the fact that, upon receiving an apparently inconsistent verdict, the trial judge has the responsibility, not to retain half of the verdict, but to resubmit the question to the jury.[14] Finally, the Court ignores the fact that, if verdicts are genuinely inconsistent and if the evidence might support either of the "inconsistent" verdicts, the appropriate remedy is ordinarily, not simply to accept one verdict and dismiss the other, but to order an entirely new trial.[15] *807 Although the Court fails to address it, the question this case raises (if, in fact, the initial view of inevitable inconsistency is accepted) is whether a different set of principles should apply in a bifurcated trial more narrowly, in a trial that was bifurcated over the objection of the plaintiff. Because the question has not been argued, I do not foreclose the possibility that bifurcation should make a difference, but it is not immediately apparent to me why it should. In this case, the same jury would have passed on the municipal entities' liability, and would have relied on the evidence adduced in the first phase of the trial as well as that presented in the second phase. At the very least, it is unclear to me why the normal devices for addressing an apparently inconsistent verdict construing the verdict in a manner that resolves the inconsistency; resubmitting the case to the jury for it to resolve the inconsistency; or even ordering a new trial should be unavailable in a bifurcated context. If the Court's unprecedented, ill-considered, and far-reaching decision happens to be correct, defendants as a class have been presented with a tactical weapon of great value. By persuading trial judges to bifurcate trials in which both the principal and its agents are named as defendants, and to require the jury to bring in its verdict on the individual claim first, they may obtain the benefit of whatever intangible factors have prompted juries to bring in a multitude of inconsistent verdicts in past years; defendants will no longer have to abide the mechanisms that courts have used to |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | The Court today applies a presumption that when Con- gress enacts statutes authorizing administrative agencies to resolve disputes in an adjudicatory setting, it intends those agency decisions to have preclusive effect in Article III courts. That presumption was first announced in poorly supported dictum in a 1991 decision of this Court, and we have not applied it since. Whatever the validity of that presumption with respect to statutes enacted after its creation, there is no justification for applying it to the Lanham Act, passed in 1946. Seeing no other reason to conclude that Congress implicitly authorized the decisions of the Trademark Trial and Appeal Board (TTAB) to have preclusive effect in a subsequent trademark infringement suit, I would affirm the decision of the Court of Appeals. I A The presumption in favor of administrative preclusion the Court applies today was first announced in Fed. Sav. & Loan (1991). In that case, the Court confronted the question 2 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting “whether claimants under the Age Discrimination in Employment Act of 1967 [(ADEA)] are collaterally estopped to relitigate in federal court the judicially unre- viewed findings of a state administrative agency made with respect to an age-discrimination claim.” It answered that question in the negative, concluding that the availability of administrative preclusion was an issue of statutory construction and that the particular statute at issue “carrie[d] an implication that the federal courts should recognize no [such] preclusion.” at 110. Despite rejecting the availability of preclusion, the Court nevertheless, in dictum, announced a presumption in favor of giving preclusive effect to administrative de- terminations “where Congress has failed expressly or impliedly to evince any intention on the issue.” at 110. That dictum rested on two premises. First, that “Con- gress is understood to legislate against a background of common-law adjudicatory principles.” at And, second, that the Court had “long favored application of the common-law doctrines of collateral estoppel (as to issues) and res judicata (as to claims) to those determina- tions of administrative bodies that have attained finality.” I do not quarrel with the first premise, but I have seri- ous doubts about the second. The Court in offered only one decision predating the enactment of the ADEA to shore up its assertion that Congress had legislated against a background principle in favor of administrative preclu- sion—United States v. Utah Constr. & Mining 384 U.S. 394, 422 (1966). See1 And that decision cannot be read for the broad proposition —————— 1 The Court also cited University of (1986), but because that decision postdated the enactment |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | University of (1986), but because that decision postdated the enactment of the ADEA by almost two decades and itself primarily relied on Utah Construction it cannot be evidence of any background principle existing at the relevant time. Cite as: 575 U. S. (2015) 3 THOMAS, J., dissenting asserted by the Court. Like itself, Utah Construction discussed admin- istrative preclusion only in dictum. The case arose out of a contract dispute between the United States and a private The contract at issue con- tained a disputes clause providing for an administrative process by which “ ‘disputes concerning questions of fact arising under th[e] contract’ ” would be decided by the contracting officer, subject to written appeal to the head of the department. at 397–398. The Wunderlich Act of 1954 likewise provided that such administrative factfind- ing would be “final and conclusive” in a later breach-of- contract action “ ‘unless the same is fra[u]dulent or capri- cious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evi- dence.’ ” Because both “the disputes clause [of the contract] and the Wunderlich Act categorically state[d] that administrative findings on factual issues relevant to questions arising under the contract [would] be final and conclusive on the parties,” the Court required the lower courts to accept those findings. Only after acknowledging that its decision “rest[ed] upon the agree- ment of the parties as modified by the Wunderlich Act” did the Court go on to comment that the decision was “harmo- nious with general principles of collateral estoppel.” at 421. To create a presumption based solely on dictum would be bad enough, but the principles Utah Construction re- ferred to were far too equivocal to constitute “long- established and familiar” background principles of the common law of the sort on which we base our statutory inferences. Isbrandtsen (1952). Although Utah Construction asserted that “[w]hen an administrative agency is acting in a judicial capacity and resolves disputed issues of fact properly before it which the parties have had an adequate opportunity to 4 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting litigate, the courts have not hesitated to apply res judicata to enforce repose,” it admitted that “courts have used language to the effect that res judicata principles do not apply to administrative proceedings.” – 422. These contradictory signals are not typically the stuff of which background rules of common law are made. Cf. Kirtsaeng v. John Wiley & Sons, Inc., 568 U. S. (2013) (slip op., at 17) (presuming that Congress intended to retain the “first |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | at 17) (presuming that Congress intended to retain the “first sale” doctrine in copyright statutes based on that common-law doctrine’s “impeccable historic pedigree”). B If the occasion had arisen in for the Court to examine the history of administrative preclusion, it would have discovered that the issue was far from settled. At common law, principles of res judicata and collateral estoppel applied only to a decision by a “court of competent jurisdiction.” Aurora ; accord, ; Re- statement of Judgments 7, and Comment f, pp. 20, 41, 45 (1942). That rule came with the corollary requirement that the court be “legally constituted”—that is, a court “known to and recognized by the law.” 2 H. Law of Judgments p. 614 (1891). A court not “legally con- stituted” lacked jurisdiction to enter a legally binding judgment, and thus any such judgment could have no preclusive effect. Nineteenth century courts generally understood the term “court of competent jurisdiction” to include all courts with authority and jurisdiction conclusively to resolve a dispute. See J. Wells, A Treatise on the Doctrines of Res Judicata and Stare Decisis pp. 336–338 (18); 2 13–614. Thus, courts of law, courts of equity, admiralty courts, and foreign courts could all satisfy the requirement of a “[c]ourt of competent juris- Cite as: 575 U. S. (2015) 5 THOMAS, J., dissenting diction.” 6 Wheat., at This broad definition served the interest in finality that supports preclusion doctrines, without which “an end could never be put to litigation.” But however broadly “[c]ourt of competent jurisdiction” was defined, it would require quite a leap to say that the concept encompasses administrative agencies, which were recognized as categorically different from courts. E.g., ; F. Administrative Agencies and the Courts 241–242 (1951) (taking the position that agencies “are not courts, and their determinations are not judgments”). This distinction stems from the Constitution itself, which vests the “judi- cial Power” not in administrative agencies, but in federal courts, whose independence is safeguarded by certain constitutional requirements. Art. III, One of the consequences of this allocation of judicial power is that agencies possess limited ability to act in a judicial capacity in cases resolving traditional disputes between private parties. See infra, at 11–12. It is therefore unsurprising that federal courts— including this Court—have been far more hesitant than today’s majority to extend common-law preclusion princi- ples to decisions of administrative tribunals. In Pearson, for example, this Court declined to recognize any preclu- sive effect of a decision of an immigration board. 202 U.S., at 284–285. Writing for the Court, Justice Holmes explained that “[t]he board is an |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | the Court, Justice Holmes explained that “[t]he board is an instrument of the execu- tive power, not a court”; that it consisted of officials “whose duties are declared to be administrative by” stat- ute; and that “[d]ecisions of a similar type long have been recognized as decisions of the executive department, and cannot constitute res judicata in a technical sense.” Other courts likewise declined to apply general preclu- sion principles to decisions of administrative agencies. For example, as late as 1947, the D. C. Circuit would rely 6 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting on the “well settled doctrine that res judicata and equita- ble estoppel do not ordinarily apply to decisions of admin- istrative tribunals.” Churchill Tabernacle v. FCC, 160 F.2d 244, 246 (1947). The Restatement of Judgments also reflected this prac- tice: It contained no provision for administrative preclu- sion and explained that it would not address “the effect of the decisions of administrative tribunals.” Restatement of Judgments, Scope Note, at 2. It rejected the idea of any consistent practice in favor of administrative preclusion, noting that “the question whether the decisions of a par- ticular tribunal are binding in subsequent controversies depends upon the character of the tribunal and the nature of its procedure and the construction of the statute creat- ing the tribunal and conferring powers upon it.” Consistent with that comment, federal courts approved of administrative preclusion in narrow circumstances arguably involving only claims against the Government, over which Congress exercises a broader measure of con- trol.2 In the 19th century, for instance, this Court effec- tively gave preclusive effect to the decisions of the U. S. Land Department with respect to land patents when it held such patents unreviewable in federal court “for mere errors of judgment.” Smelting 646 (1882) (“A patent, in a court of law, is conclusive as to all matters properly determined by the Land Depart- ment”). Commentators explained that these cases could —————— 2 This distinction reaches at least as far back as 17th-century Eng- land. See Jaffe, The Right to Judicial Review I, 413 (1958) (explaining that, since the 17th century in England, courts have been “identified with the enforcement of private right, and admin- istrative agencies with the execution of public policy”); see also Hetley v. Boyer, Croc. Jac. 336, 79 Eng. Rep. 2 (K. B. 1614) (reviewing the actions of the “commissioners of the sewers,” who had exceeded the bounds of their traditional jurisdiction and had imposed on citizens’ core private rights). Cite as: 575 U. S. (2015) 7 THOMAS, J., dissenting not |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | as: 575 U. S. (2015) 7 THOMAS, J., dissenting not truly be understood to involve an application of res judicata or collateral estoppel—for, after all, administra- tive agencies are not courts—but rather a “species of equitable estoppel.” ; see also 2 A. Freeman, Law of Judgments p. 1335 (5th ed. rev. 15) (explaining that “the immunity from judicial review” for certain administrative decisions was “not based upon the doctrine of res judicata nor governed by exactly the same rules”). As one commentator put it, res judicata could “not apply, in any strict or technical sense, to the decisions of administrative agencies.” at 241. This history undercuts any suggestion in Utah Con- struction that administrative preclusion was widely ac- cepted at common law. Accordingly, at least for statutes passed before I would reject the presumption of administrative preclusion.3 II In light of this history, I cannot agree with the majority’s decision to apply administrative preclusion in the context of the Lanham Act.4 To start, the Lanham Act was en- —————— 3 I have no occasion to consider whether the discussion in Elliott, or Utah Construction could be understood to create a back- ground principle in favor of administrative preclusion that would apply, as a matter of statutory interpretation, to statutes passed after those decisions. 4 The majority insists that we must apply the presumption of admin- istrative preclusion because the Court has “repeatedly endorsed Utah Construction” and the parties do not challenge “its historical accuracy.” Ante, at 12, n. 2. But regardless of whether the Court has endorsed Utah Construction’s dictum, the Court has never applied the presump- tion of administrative preclusion to the Lanham Act. Even if the Court’s description of the presumption were not dictum, no principle of stare decisis requires us to extend a tool of statutory interpretation from one statute to another without first considering whether it is appropriate for that statute. Cf. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 469–470 (2008) (THOMAS, J., dissenting) (“[S]tare decisis, 8 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting acted in 1946, 20 years before this Court said—even in dic- tum—that administrative preclusion was an established common-law principle. Thus, even if one thought that the dictum in Utah Construction were sufficient to establish a common-law principle in favor of preclusion, that conclu- sion would not warrant applying ’s presumption to this enactment from the 1940’s. And, construing the Act on its own terms, I see no reason to conclude that Con- gress intended administrative preclusion to apply to TTAB findings of fact in a subsequent trademark infringement |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | to TTAB findings of fact in a subsequent trademark infringement suit. The Act says nothing to indicate such an intent, and several features of the Act support the contrary inference. The first feature indicating that Congress did not intend preclusion to apply is the limited authority the Act gives the TTAB. The Act authorizes the TTAB only to “deter- mine and decide the respective rights of [trademark] registration,” 15 U.S. C. thereby withholding any authority from the TTAB to “determine the right to use” a trademark or to “decide broader questions of in- fringement or unfair competition,” TTAB Manual of Pro- cedure §.01 (2014). This limited job description indi- cates that TTAB’s conclusions regarding registration were never meant to become decisive—through application of administrative preclusion—in subsequent infringement suits. See 15 U.S. C. (providing that registration of a mark “shall be prima facie evidence of the validity of —————— designed to be a principle of stability or repose, [should not] become a vehicle of change whereby an error in one area metastasizes into others, thereby distorting the law”). As for the parties’ lack of argu- ment, I would not treat tools of statutory interpretation as claims that can be forfeited. If, for example, one party peppered its brief with legislative history, and the opposing party did not challenge the propri- ety of using legislative history, I still would not consider myself bound to rely upon it. The same is true here: Although the Court has com- mented in the past that the presumption of administrative preclusion would apply to other statutes, we are not bound to apply it now to the Lanham Act, even if the parties have assumed we would. Cite as: 575 U. S. (2015) 9 THOMAS, J., dissenting the registered mark” but “shall not preclude another person from proving any legal or equitable defense or defect”). Giving preclusive effect to the TTAB’s decision on likelihood of confusion would be an end-run around the statutory limitation on its authority, as all parties agree that likelihood of confusion is the central issue in a subse- quent infringement suit. A second indication that Congress did not intend admin- istrative preclusion to apply is the Lanham Act’s provision for judicial review. After the TTAB issues a registration decision, a party “who is dissatisfied with the decision” may either appeal to the Federal Circuit or file a civil action in district court seeking review. (b)(1).5 And it is undisputed that a civil action in district court would entail de novo review of the TTAB’s decision. Ante, at 5. Although under ordinary preclusion principles |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | TTAB’s decision. Ante, at 5. Although under ordinary preclusion principles “the failure to pursue an appeal does not undermine issue preclusion,” ante, at 13, the availability of de novo judicial review of an administrative decision does. That is true both because the judicial review afforded by the Act marks the first opportunity for consideration of the issue by an Article III court and because Congress has deviated from the usual practice of affording deference to the factfind- ings of an initial tribunal in affording de novo review of the TTAB’s decisions. The decision to provide this de novo review is even more striking in light of the historical background of the choice: Congress passed the Lanham Act the same year it passed the Administrative Procedure Act, following a lengthy period of disagreement in the courts about what deference administrative findings of fact were entitled to receive on direct review. The issue had been the subject of debate for over 50 years, with varying results. See generally 2 J. —————— 5 The original 1946 Lanham Act provided for appeal to the Court of Customs and Patent Appeals. See 10 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting Administrative Justice and the Supremacy of Law 39–75 (17). Sometimes this Court refused to re- view factual determinations of administrative agencies at all, Smelting 646, and sometimes it allowed lower courts to engage in essentially de novo review of factual determinations, see ICC v. Alabama Midland R. ; Reckendorfer v. Faber, In the early 20th century, the Court began to move toward substantial-evidence review of administrative determinations involving mixed questions of law and fact, ICC v. Union Pacific R. but reserved the authority to review de novo any so-called “jurisdictional facts.” 62– 63 (1932). Courts then struggled to determine the bound- ary between jurisdictional and nonjurisdictional facts, and thus to determine the appropriate standard of review for administrative decisions. See, e.g., (Frankfurter, J., concurring in result) (noting the “casuistic difficulties spawned” in and the “attritions of that case through later decisions”). Although Congress provided for substantial- evidence review in the Administrative Procedure Act, 5 U.S. C. it required de novo review in the Lan- ham Act. I need not take a side in this historical debate about the proper level of review for administrative findings of fact to conclude that its existence provides yet another reason to doubt that Congress intended administrative preclusion to apply to the Lanham Act. III In addition to being unsupported by our precedents or historical evidence, the majority’s application of adminis- trative preclusion raises serious constitutional concerns. |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | majority’s application of adminis- trative preclusion raises serious constitutional concerns. Cite as: 575 U. S. (2015) 11 THOMAS, J., dissenting A Executive agencies derive their authority from Article II of the Constitution, which vests “[t]he executive power” in “a President of the United States,” Art. II, cl. 1. Execu- tive agencies are thus part of the political branches of Government and make decisions “not by fixed rules of law, but by the application of governmental discretion or pol- icy.” at 35–36; see, e.g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. (Rehnquist, J., concurring in part and dissenting in part) (An agency “is entitled to assess administrative records and evaluate priorities in light of the philosophy of the administration”). They are not constituted to exercise “independent judg- ment,” but to be responsive to the pressures of the political branches. Perez v. Mortgage Bankers Assn., ante, at 8 (THOMAS, J., concurring in judgment). Because federal administrative agencies are part of the Executive Branch, it is not clear that they have power to adjudicate claims involving core private rights. Under our Constitution, the “judicial power” belongs to Article III courts and cannot be shared with the Legislature or the Executive. v. Marshall, 564 U. S. – (2011) (slip op., at 16–17); see also Perez, ante, at 8–11 (opinion of THOMAS, J.). And some historical evidence suggests that the adjudication of core private rights is a function that can be performed only by Article III courts, at least absent the consent of the parties to adjudication in another forum. See Nelson, Adjudication in the Political Branches, 107 Colum. L. Rev. 5, 561–574 (2007) (here- inafter Nelson); see also Department of Transportation v. Association of American Railroads, ante, at 4 (THOMAS, J., concurring in judgment) (explaining that “there are cer- tain core functions” that require the exercise of a particu- lar constitutional power and that only one branch can constitutionally perform). 12 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting To the extent that administrative agencies could, con- sistent with the Constitution, function as courts, they might only be able to do so with respect to claims involving public or quasi-private rights. See Northern Pipeline Constr. v. Marathon Pipe Line 68–70 (1982) (plurality opinion); see also Nelson 561–574; Dick- Public rights are those belonging to the public as a whole, see Nelson 566, whereas quasi-private rights, or statutory entitlements, are those “ ‘privileges’ ” or “ ‘franchises’ ” that are bestowed by the government on individuals, ; see, e.g., Ex parte Bakelite Corp., (discussing claims “arising |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | ; see, e.g., Ex parte Bakelite Corp., (discussing claims “arising be- tween the government and others, which from their na- ture do not require judicial determination and yet are susceptible of it”). The historical treatment of administrative preclusion is consistent with this understanding. As discussed above, most administrative adjudications that were given preclu- sive effect in Article III courts involved quasi-private rights like land grants. See Smelting 104 U.S., at 646. And in the context of land grants, this Court recog- nized that once “title had passed from the government,” a more complete form of judicial review was available be- cause “the question became one of private right.” Johnson v. Towsley, It is true that, in the New Deal era, the Court some- times gave preclusive effect to administrative findings of fact in tax cases, which could be construed to implicate private rights. See, e.g., Sunshine Anthracite Coal v. Adkins, ; Tait v. Western Maryland R. But administrative tax determinations may simply have en- joyed a special historical status, in which case this practice might be best understood as a limited deviation from a general distinction between public and private rights. See Nelson 588–0. Cite as: 575 U. S. (2015) 13 THOMAS, J., dissenting B Trademark registration under the Lanham Act has the characteristics of a quasi-private right. Registration is a creature of the Lanham Act, which “confers important legal rights and benefits on trademark owners who regis- ter their marks.” Ante, at 3 (internal quotation marks omitted). Because registration is merely a statutory gov- ernment entitlement, no one disputes that the TTAB may constitutionally adjudicate a registration claim. See at (slip op., at 19); Nelson 568–569. By contrast, the right to adopt and exclusively use a trademark appears to be a private property right that “has been long recognized by the common law and the chancery courts of England and of this country.” Trade-Mark Cases, (19). As this Court explained when addressing Congress’ first trademark statute, enacted in 10, the exclusive right to use a trademark “was not created by the act of Congress, and does not now depend upon it for its enforcement.” “The whole system of trade-mark property and the civil remedies for its protec- tion existed long anterior to that act, and have remained in full force since its passage.” Thus, it appears that the trademark infringement suit at issue in this case might be of a type that must be decided by “Article III judges in Article III courts.” 564 U. S., at (slip op., at 18). The majority, however, would have Article III courts |
Justice Thomas | 2,015 | 1 | dissenting | B&B Hardware, Inc. v. Hargis Industries, Inc. | https://www.courtlistener.com/opinion/2788685/bb-hardware-inc-v-hargis-industries-inc/ | at 18). The majority, however, would have Article III courts decide infringement claims where the central issue— whether there is a likelihood of consumer confusion be- tween two trademarks—has already been decided by an executive agency. This raises two potential constitutional concerns. First, it may deprive a trademark holder of the opportunity to have a core private right adjudicated in an Article III court. See at (slip op., at 21). Second, it may effect a transfer of a core attribute of the judicial power to an executive agency. Cf. Perez, ante, at 10–12 14 B&B HARDWARE, INC. v. HARGIS INDUSTRIES, INC. THOMAS, J., dissenting (opinion of THOMAS, J.) (explaining that interpretation of regulations having the force and effect of law is likely a core attribute of the judicial power that cannot be trans- ferred to an executive agency). Administrative preclusion thus threatens to “sap the judicial power as it exists under the Federal Constitution, and to establish a government of a bureaucratic character alien to our own system, wher- ever fundamental rights depend upon the facts, and finality as to facts becomes in effect finality in law.” At a minimum, this practice raises serious questions that the majority does not adequately confront. The ma- jority does not address the distinction between private rights and public rights or the nature of the power exer- cised by an administrative agency when adjudicating facts in private-rights disputes. And it fails to consider whether applying administrative preclusion to a core factual de- termination in a private-rights dispute comports with the separation of powers. * * * I would hold that the TTAB’s trademark-registration decisions are not entitled to preclusive effect in a subse- quent infringement suit. The common law does not sup- port a general presumption in favor of administrative preclusion for statutes passed before this Court’s decision in and the text, structure, and history of the Lanham Act provide no support for such preclusion. I disagree with the majority’s willingness to endorse Asto- ria’s unfounded presumption and to apply it to an adjudi- cation in a private-rights dispute, as that analysis raises serious constitutional questions. Because I can resolve this case on statutory grounds, however, I leave these questions for another day. I respectfully dissent |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | As we have interpreted it, 10(b) of the Securities Exchange Act of 1934 imposes private civil liability on those who commit a manipulative or deceptive act in connection with the purchase or sale of securities. In this case, we *167 must answer a question reserved in two earlier decisions: whether private civil liability under 10(b) extends as well to those who do not engage in the manipulative or deceptive practice, but who aid and abet the violation. See Herman & ; & I In and 1988, the Colorado Springs-Stetson Hills Public Building Authority (Authority) issued a total of $26 million in bonds to finance public improvements at Stetson Hills, a planned residential and commercial development in Colorado Springs. Petitioner Central Bank of Denver served as indenture trustee for the bond issues. The bonds were secured by landowner assessment liens, which covered about 250 acres for the bond issue and about 272 acres for the 1988 bond issue. The bond covenants required that the land subject to the liens be worth at least 160% of the bonds' outstanding principal and interest. The covenants required AmWest Development, the developer of Stetson Hills, to give Central Bank an annual report containing evidence that the 160% test was met. In January 1988, AmWest provided Central Bank with an updated appraisal of the land securing the bonds and of the land proposed to secure the 1988 bonds. The 1988 appraisal showed land values almost unchanged from the appraisal. Soon afterwards, Central Bank received a letter from the senior underwriter for the bonds. Noting that property values were declining in Colorado Springs and that Central Bank was operating on an appraisal over 16 months old, the underwriter expressed concern that the 160% test was not being met. Central Bank asked its in-house appraiser to review the updated 1988 appraisal. The in-house appraiser decided that the values listed in the appraisal appeared optimistic considering the local real estate market. He suggested that * Central Bank retain an outside appraiser to conduct an independent review of the 1988 appraisal. After an exchange of letters between Central Bank and AmWest in early 1988, Central Bank agreed to delay independent review of the appraisal until the end of the year, six months after the June 1988 closing on the bond issue. Before the independent review was complete, however, the Authority defaulted on the 1988 bonds. Respondents First Interstate Bank of Denver and Jack K. Naber had purchased $2.1 million of the 1988 bonds. After the default, respondents sued the Authority, the 1988 underwriter, a junior underwriter, an AmWest director, and |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | the 1988 underwriter, a junior underwriter, an AmWest director, and Central Bank for violations of 10(b) of the Securities Exchange Act of 1934. The complaint alleged that the Authority, the underwriter defendants, and the AmWest director had violated 10(b). The complaint also alleged that Central Bank was "secondarily liable under 10(b) for its conduct in aiding and abetting the fraud." App. 26. The United States District Court for the District of Colorado granted summary judgment to Central Bank. The United States Court of Appeals for the Tenth Circuit reversed. First Interstate Bank of Denver, N. The Court of Appeals first set forth the elements of the 10(b) aiding and abetting cause of action in the Tenth Circuit: (1) a primary violation of 10(b); (2) recklessness by the aider and abettor as to the existence of the primary violation; and (3) substantial assistance given to the primary violator by the aider and abettor. Applying that standard, the Court of Appeals found that Central Bank was aware of concerns about the accuracy of the 1988 appraisal. Central Bank knew both that the sale of the 1988 bonds was imminent and that purchasers were using the 1988 appraisal to evaluate the collateral for the bonds. Under those circumstances, the court said, Central Bank's awareness of the alleged inadequacies of the updated, *169 but almost unchanged, 1988 appraisal could support a finding of extreme departure from standards of ordinary care. The court thus found that respondents had established a genuine issue of material fact regarding the recklessness element of aiding and abetting liability. On the separate question whether Central Bank rendered substantial assistance to the primary violators, the Court of Appeals found that a reasonable trier of fact could conclude that Central Bank had rendered substantial assistance by delaying the independent review of the appraisal. Like the Court of Appeals in this case, other federal courts have allowed private aiding and abetting actions under 10(b). The first and leading case to impose the liability was aff'd, cert. denied, The court reasoned that "[i]n the absence of a clear legislative expression to the contrary, the statute must be flexibly applied so as to implement its policies and purposes." -681. Since numerous courts have taken the same position. See, e. g., ; After our decisions in Santa Fe and & where we paid close attention to the statutory text in defining the scope of conduct prohibited by 10(b), courts and commentators began to question whether aiding and abetting liability under 10(b) was still available. Professor opined that the "theory of secondary liability [under 10(b) was] no |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | that the "theory of secondary liability [under 10(b) was] no longer viable in light of recent Supreme Court decisions strictly interpreting the federal securities laws." Secondary Liability Under Section 10(b) of the Securities Act of 1934, In 1981, the District Court for the Eastern District of Michigan found it "doubtful that a claim for `aiding and abetting' *170 will continue to exist under 10(b)." The same year, the Ninth Circuit stated that the "status of aiding and abetting as a basis for liability under the securities laws [was] in some doubt." The Ninth Circuit later noted that "[a]iding and abetting and other `add-on' theories of liability have been justified by reference to the broad policy objectives of the securities acts. The Supreme Court has rejected this justification for an expansive reading of the statutes and instead prescribed a strict statutory construction approach to determining liability under the acts." (19). The Fifth Circuit has stated: "[I]t is now apparent that openended readings of the duty stated by Rule 10b5 threaten to rearrange the congressional scheme. The added layer of liability for aiding and abetting is particularly problematic. There is a powerful argument that aider and abettor liability should not be enforceable by private parties pursuing an implied right of action." Indeed, the Seventh Circuit has held that the defendant must have committed a manipulative or deceptive act to be liable under 10(b), a requirement that in effect forecloses liability on those who do no more than aid or abet a 10b5 violation. See, e. g., We granted certiorari to resolve the continuing confusion over the existence and scope of the 10(b) aiding and abetting action. II In the wake of the 1929 stock market crash and in response to reports of widespread abuses in the securities industry, the 73d Congress enacted two landmark pieces of securities legislation: the Securities Act of 1933 (1933 Act) and the *171 Securities Exchange Act of 1934 (1934 Act). as amended, 15 U.S. C. 77a et seq. (1988 ed. and Supp. IV); as amended, 15 U.S. C. 78a et seq. (1988 ed. and Supp. IV). The 1933 Act regulates initial distributions of securities, and the 1934 Act for the most part regulates postdistribution trading. Blue Chip Together, the Acts "embrace a fundamental purpose to substitute a philosophy of full disclosure for the philosophy of caveat emptor. " Affiliated Ute Citizens of The 1933 and 1934 Acts create an extensive scheme of civil liability. The Securities and Exchange Commission () may bring administrative actions and injunctive proceedings to enforce a variety of statutory prohibitions. Private plaintiffs may |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | to enforce a variety of statutory prohibitions. Private plaintiffs may sue under the express private rights of action contained in the Acts. They may also sue under private rights of action we have found to be implied by the terms of 10(b) and 14(a) of the 1934 Act. Superintendent of Ins. of N. ( 10(b)); J. I. Case ( 14(a)). This case concerns the most familiar private cause of action: the one we have found to be implied by 10(b), the general antifraud provision of the 1934 Act. Section 10(b) states: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce or of the mails, or of any facility of any national securities exchange. "(b) To use or employ, in connection with the purchase or sale of any security registered on a national securities exchange or any security not so registered, any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the [] may prescribe." 15 U.S. C. 78j. *172 Rule 10b5, adopted by the in 1942, casts the proscription in similar terms: "It shall be unlawful for any person, directly or indirectly, by the use of any means or instrumentality of interstate commerce, or of the mails or of any facility of any national securities exchange, "(a) To employ any device, scheme, or artifice to defraud, "(b) To make any untrue statement of a material fact or to omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading, or "(c) To engage in any act, practice, or course of business which operates or would operate as a fraud or deceit upon any person, "in connection with the purchase or sale of any security." 17 CFR 240.10b5 In our cases addressing 10(b) and Rule 10b5, we have confronted two main issues. First, we have determined the scope of conduct prohibited by 10(b). See, e. g., ; ; ; Santa Fe ; & Second, in cases where the defendant has committed a violation of 10(b), we have decided questions about the elements of the 10b5 private liability scheme: for example, whether there is a right to contribution, what the statute of limitations is, whether there is a reliance requirement, and whether there is an in pari delicto defense. See Musick, & ; Lampf, Pleva, Lipkind, Prupis & ; Basic ; Bateman Eichler, Hill Richards, ; see also Blue Chip ; cf. Virginia Bank, ( 14); The latter issue, |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | Chip ; cf. Virginia Bank, ( 14); The latter issue, determining the elements of the 10b5 private liability scheme, has posed difficulty because Congress did not create a private 10(b) cause of action and had no occasion to provide guidance about the elements of a private liability scheme. We thus have had "to infer how the 1934 Congress would have addressed the issue[s] had the 10b5 action been included as an express provision in the 1934 Act." Musick, With respect, however, to the first issue, the scope of conduct prohibited by 10(b), the text of the statute controls our decision. In 10(b), Congress prohibited manipulative or deceptive acts in connection with the purchase or sale of securities. It envisioned that the would enforce the statutory prohibition through administrative and injunctive actions. Of course, a private plaintiff now may bring suit against violators of 10(b). But the private plaintiff may not bring a 10b5 suit against a defendant for acts not prohibited by the text of 10(b). To the contrary, our cases considering the scope of conduct prohibited by 10(b) in private suits have emphasized adherence to the statutory language, "`[t]he starting point in every case involving construction of a statute.' " & (quoting Blue Chip ); see ; Santa Fe We have refused to allow 10b5 challenges to conduct not prohibited by the text of the statute. In & we considered whether negligent acts could violate 10(b). We first noted that "[t]he words `manipulative or deceptive' used in conjunction with `device or contrivance' strongly suggest that 10(b) was intended to proscribe knowing or intentional misconduct." 425 U.S., The argued that the broad congressional purposes behind the Actto protect investors from false and *174 misleading practices that might injure themsuggested that 10(b) should also reach negligent conduct. We rejected that argument, concluding that the 's interpretation would "add a gloss to the operative language of the statute quite different from its commonly accepted meaning." In Santa Fe another case involving "the reach and coverage of 10(b)," we considered whether 10(b) "reached breaches of fiduciary duty by a majority against minority shareholders without any charge of misrepresentation or lack of disclosure." We held that it did not, reaffirming our decision in & and emphasizing that the "language of 10(b) gives no indication that Congress meant to prohibit any conduct not involving manipulation or deception." Later, in we considered whether 10(b) is violated when a person trades securities without disclosing inside information. We held that 10(b) is not violated under those circumstances unless the trader has an independent duty of disclosure. In reaching |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | the trader has an independent duty of disclosure. In reaching our conclusion, we noted that "not every instance of financial unfairness constitutes fraudulent activity under 10(b)." We stated that "the 1934 Act cannot be read more broadly than its language and the statutory scheme reasonably permit," and we found "no basis for applying a new and different theory of liability" in that case. "Section 10(b) is aptly described as a catchall provision, but what it catches must be fraud. When an allegation of fraud is based upon nondisclosure, there can be no fraud absent a duty to speak." -2. Adherence to the text in defining the conduct covered by 10(b) is consistent with our decisions interpreting other provisions of the securities Acts. In for example, we interpreted the word "seller" in 12(1) of the 1933 Act by "look[ing] first at the *175 language of 12(1)." Ruling that a seller is one who solicits securities sales for financial gain, we rejected the broader contention, "grounded in tort doctrine," that persons who participate in the sale can also be deemed sellers. We found "no support in the statutory language or legislative history for expansion of 12(1)," and stated that "[t]he ascertainment of congressional intent with respect to the scope of liability created by a particular section of the Securities Act must rest primarily on the language of that section." Last Term, the Court faced a similar issue, albeit outside the securities context, in a case raising the question whether knowing participation in a breach of fiduciary duty is actionable under the Employee Retirement Income Security Act of (ERISA). The petitioner in said that the knowing participation cause of action had been available in the common law of trusts and should be available under ERISA. We rejected that argument and noted that no provision in ERISA "explicitly require[d] [nonfiduciaries] to avoid participation (knowing or unknowing) in a fiduciary's breach of fiduciary duty." While plaintiffs had a remedy against nonfiduciaries at common law, that was because "nonfiduciaries had a duty to the beneficiaries not to assist in the fiduciary's breach." No comparable duty was set forth in ERISA. Our consideration of statutory duties, especially in cases interpreting 10(b), establishes that the statutory text controls the definition of conduct covered by 10(b). That bodes ill for respondents, for "the language of Section 10(b) does not in terms mention aiding and abetting." Brief for as Amicus Curiae 8 (hereinafter Brief for ). To overcome this problem, respondents and the suggest (or hint at) the novel argument that the use of the phrase "directly or indirectly" in |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | that the use of the phrase "directly or indirectly" in the text of 10(b) covers aiding and abetting. See Brief for Respondents 15 ("Inclusion of those who act `indirectly' suggests a legislative purpose fully *176 consistent with the prohibition of aiding and abetting"); Brief for 8 ("[W]e think that when read in context [ 10(b)] is broad enough to encompass liability for such `indirect' violations"). The federal courts have not relied on the "directly or indirectly" language when imposing aiding and abetting liability under 10(b), and with good reason. There is a basic flaw with this interpretation. According to respondents and the the "directly or indirectly" language shows that "Congress intended to reach all persons who engage, even if only indirectly, in proscribed activities connected with securities transactions." The problem, of course, is that aiding and abetting liability extends beyond persons who engage, even indirectly, in a proscribed activity; aiding and abetting liability reaches persons who do not engage in the proscribed activities at all,but who give a degree of aid to those who do. A further problem with respondents' interpretation of the "directly or indirectly" language is posed by the numerous provisions of the 1934 Act that use the term in a way that does not impose aiding and abetting liability. See 7(f)(2)(C), 15 U.S. C. 78g(f)(2)(C) (direct or indirect ownership of stock); 9(b)(2)(3), 15 U.S. C. 78i(b)(2)(3) (direct or indirect interest in put, call, straddle, option, or privilege); 13(d)(1), 15 U.S. C. 78m(d)(1) (direct or indirect ownership); 16(a), 15 U.S. C. 78p(a) (direct or indirect ownership); 20, 15 U.S. C. 78t (direct or indirect control of person violating Act). In short, respondents' interpretation of the "directly or indirectly" language fails to support their suggestion that the text of 10(b) itself prohibits aiding and abetting. See 5B A. Jacobs, Litigation and Practice Under Rule 10b5 40.07, p. 2-465 Congress knew how to impose aiding and abetting liability when it chose to do so. See, e. g., Act of Mar. 4, 1909, 332, as amended, 18 U.S. C. 2 (general criminal aiding and abetting statute); Packers and Stockyards Act, 1921, ch. 64, 202, as amended, 7 U.S. C. 192(g) *177 (1988 ed. and Supp. IV) (civil aiding and abetting provision); see generally infra, at 181-185. If, as respondents seem to say, Congress intended to impose aiding and abetting liability, we presume it would have used the words "aid" and "abet" in the statutory text. But it did not. Cf. 486 U. S., ; Blue Chip We reach the uncontroversial conclusion, accepted even by those courts recognizing a 10(b) aiding and |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | accepted even by those courts recognizing a 10(b) aiding and abetting cause of action, that the text of the 1934 Act does not itself reach those who aid and abet a 10(b) violation. Unlike those courts, however, we think that conclusion resolves the case. It is inconsistent with settled methodology in 10(b) cases to extend liability beyond the scope of conduct prohibited by the statutory text. To be sure, aiding and abetting a wrongdoer ought to be actionable in certain instances. Cf. Restatement (Second) of Torts 876(b) The issue, however, is not whether imposing private civil liability on aiders and abettors is good policy but whether aiding and abetting is covered by the statute. As in earlier cases considering conduct prohibited by 10(b), we again conclude that the statute prohibits only the making of a material misstatement (or omission) or the commission of a manipulative act. See Santa Fe ("language of 10(b) gives no indication that Congress meant to prohibit any conduct not involving manipulation or deception"); & The proscription does not include giving aid to a person who commits a manipulative or deceptive act. We cannot amend the statute to create liability for *178 acts that are not themselves manipulative or deceptive within the meaning of the statute. III Because this case concerns the conduct prohibited by 10(b), the statute itself resolves the case, but even if it did not, we would reach the same result. When the text of 10(b) does not resolve a particular issue, we attempt to infer "how the 1934 Congress would have addressed the issue had the 10b5 action been included as an express provision in the 1934 Act." Musick, 508 U. S., For that inquiry, we use the express causes of action in the securities Acts as the primary model for the 10(b) action. The reason is evident: Had the 73d Congress enacted a private 10(b) right of action, it likely would have designed it in a manner similar to the other private rights of action in the securities Acts. See -297. In Musick, for example, we recognized a right to contribution under 10(b). We held that the express rights of contribution contained in 9 and 18 of the Acts were "important feature[s] of the federal securities laws and that consistency require[d] us to adopt a like contribution rule for the right of action existing under Rule 10b5." In Basic we decided that a plaintiff in a 10b5 action must prove that he relied on the defendant's misrepresentation in order to recover damages. In so holding, we stated that the "analogous express right |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | In so holding, we stated that the "analogous express right of action" 18(a) of the 1934 Act "includes a reliance requirement." And in Blue Chip we held that a 10b5 plaintiff must have purchased or sold the security to recover damages for the defendant's misrepresentation. We said that "[t]he principal express nonderivative private civil remedies, created by Congress contemporaneously with the passage of 10(b), are by their terms expressly limited to purchasers or sellers of securities." -736. *179 Following that analysis here, we look to the express private causes of action in the 1933 and 1934 Acts. See, e. g., Musick, ; Blue Chip In the 1933 Act, 11 prohibits false statements or omissions of material fact in registration statements; it identifies the various categories of defendants subject to liability for a violation, but that list does not include aiders and abettors. 15 U.S. C. 77k. Section 12 prohibits the sale of unregistered, nonexempt securities as well as the sale of securities by means of a material misstatement or omission; and it limits liability to those who offer or sell the security. 15 U.S. C. 77l. In the 1934 Act, 9 prohibits any person from engaging in manipulative practices such as wash sales, matched orders, and the like. 15 U.S. C. 78i. Section 16 regulates short-swing trading by owners, directors, and officers. 15 U.S. C. 78p. Section 18 prohibits any person from making misleading statements in reports filed with the 15 U.S. C. 78r. And 20A, added in 1988, prohibits any person from engaging in insider trading. 15 U.S. C. 78t1. This survey of the express causes of action in the securities Acts reveals that each (like 10(b)) specifies the conduct for which defendants may be held liable. Some of the express causes of action specify categories of defendants who may be liable; others (like 10(b)) state only that "any person" who commits one of the prohibited acts may be held liable. The important point for present purposes, however, is that none of the express causes of action in the 1934 Act further imposes liability on one who aids or abets a violation. Cf. 7 U.S. C. 25(a)(1) (1988 ed. and Supp. IV) (Commodity Exchange Act's private civil aiding and abetting provision). From the fact that Congress did not attach private aiding and abetting liability to any of the express causes of action in the securities Acts, we can infer that Congress likely would not have attached aiding and abetting liability to 10(b) had it provided a private 10(b) cause of action. See *1 Musick, There is no reason to |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | of action. See *1 Musick, There is no reason to think that Congress would have attached aiding and abetting liability only to 10(b) and not to any of the express private rights of action in the Act. In Blue Chip we noted that it would be "anomalous to impute to Congress an intention to expand the plaintiff class for a judicially implied cause of action beyond the bounds itdelineated for comparable express causes of action." Here, it would be just as anomalous to impute to Congress an intention in effect to expand the defendant class for 10b5 actions beyond the bounds delineated for comparable express causes of action. Our reasoning is confirmed by the fact that respondents' argument would impose 10b5 aiding and abetting liability when at least one element critical for recovery under 10b5 is absent: reliance. A plaintiff must show reliance on the defendant's misstatement or omission to recover under 10b5. Basic Were we to allow the aiding and abetting action proposed in this case, the defendant could be liable without any showing that the plaintiff relied upon the aider and abettor's statements or actions. See also Allowing plaintiffs to circumvent the reliance requirement would disregard the careful limits on 10b5 recovery mandated by our earlier cases. IV Respondents make further arguments for imposition of 10(b) aiding and abetting liability, none of which leads us to a different answer. A The text does not support their point, but respondents and some amici invoke a broad-based notion of congressional *181 intent. They say that Congress legislated with an understanding of general principles of tort law and that aiding and abetting liability was "well established in both civil and criminal actions by 1934." Brief for 10. Thus, "Congress intended to include" aiding and abetting liability in the 1934 Act. A brief history of aiding and abetting liability serves to dispose of this argument. Aiding and abetting is an ancient criminal law doctrine. See United ; 1 M. Hale, Pleas of the Crown 615 (1736). Though there is no federal common law of crimes, Congress in 1909 enacted what is now 18 U.S. C. 2, a general aiding and abetting statute applicable to all federal criminal offenses. Act of Mar. 4, 1909, 332, The statute decrees that those who provide knowing aid to persons committing federal crimes, with the intent to facilitate the crime, are themselves committing a crime. Nye & The Restatement of Torts, under a concert of action principle, accepts a doctrine with rough similarity to criminal aiding and abetting. An actor is liable for harm resulting to a |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | abetting. An actor is liable for harm resulting to a third person from the tortious conduct of another "if he knows that the other's conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other" Restatement (Second) of Torts 876(b) ; see also W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 322-324 The doctrine has been at best uncertain in application, however. As the Court of Appeals for the District of Columbia Circuit noted in a comprehensive opinion on the subject, the leading cases applying this doctrine are statutory securities cases, with the common-law precedents "largely confined to isolated acts of adolescents in rural society." Indeed, in some States, it is still unclear whether there is aiding and abetting tort liability of the kind set forth in 876(b) of the Restatement. *1 See, e. g., 9 F. Supp. 453, ; In re Asbestos School Litigation, No. 83-0268, 1991 U. S. Dist. LEXIS 10471, *34 (cause of action under Restatement 876 "has not yet been applied as a basis for liability" by Pennsylvania courts); Meadow Limited (aiding and abetting tort based on Restatement 876 "not expressly recognized by the state courts of the Commonwealth" of Virginia); More to the point, Congress has not enacted a general civil aiding and abetting statuteeither for suits by the Government (when the Government sues for civil penalties or injunctive relief) or for suits by private parties. Thus, when Congress enacts a statute under which a person may sue and recover damages from a private defendant for the defendant's violation of some statutory norm, there is no general presumption that the plaintiff may also sue aiders and abettors. See, e. g., Electronic Laboratory Supply Congress instead has taken a statute-by-statute approach to civil aiding and abetting liability. For example, the Internal Revenue Code contains a full section governing aiding and abetting liability, complete with description of scienter and the penalties attached. 26 U.S. C. 6701 (1988 ed. and Supp. IV). The Commodity Exchange Act contains an explicit aiding and abetting provision that applies to private suits brought under that Act. 7 U.S. C. 25(a)(1) (1988 ed. and Supp. IV); see also, e. g., 12 U.S. C. 93(b)(8) (1988 ed. and Supp. IV) (National Bank Act defines violations to include "aiding or abetting"); 12 U.S. C. 504(h) (1988 ed. and Supp. IV) (Federal Reserve Act defines violations to include *183 "aiding or abetting"); Packers and Stockyards Act, 1921, ch. 64, 202, 7 U.S. C. 192(g) (civil aiding and abetting provision). Indeed, various provisions of the |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | (civil aiding and abetting provision). Indeed, various provisions of the securities laws prohibit aiding and abetting, although violations are remediable only in actions brought by the See, e. g., 15 U.S. C. 78o (b)(4)(E) (1988 ed. and Supp. IV) ( may proceed against brokers and dealers who aid and abet a violation of the securities laws); Insider Trading Sanctions Act of Stat. 1264 (civil penalty provision added in applicable to those who aid and abet insider trading violations); 15 U.S. C. 78u2 (1988 ed., Supp. IV) (civil penalty provision added in 1990 applicable to brokers and dealers who aid and abet various violations of the Act). With this background in mind, we think respondents' argument based on implicit congressional intent can be taken in one of three ways. First, respondents might be saying that aiding and abetting should attach to all federal civil statutes, even laws that do not contain an explicit aiding and abetting provision. But neither respondents nor their amici cite, and we have not found, any precedent for that vast expansion of federal law. It does not appear Congress was operating on that assumption in 1934, or since then, given that it has been quite explicit in imposing civil aiding and abetting liability in other instances. We decline to recognize such a comprehensive rule with no expression of congressional direction to do so. Second, on a more narrow ground, respondents' congressional intent argument might be interpreted to suggest that the 73d Congress intended to include aiding and abetting only in 10(b). But nothing in the text or history of 10(b) even implies that aiding and abetting was covered by the statutory prohibition on manipulative and deceptive conduct. Third, respondents' congressional intent argument might be construed as a contention that the 73d Congress intended to impose aiding and abetting liability for all of the express *184 causes of action contained in the 1934 Actand thus would have imposed aiding and abetting liability in 10(b) actions had it enacted a private 10(b) right of action. As we have explained, however, none of the express private causes of action in the Act imposes aiding and abetting liability, and there is no evidence that Congress intended that liability for the express causes of action. Even assuming, moreover, a deeply rooted background of aiding and abetting tort liability, it does not follow that Congress intended to apply that kind of liability to the private causes of action in the securities Acts. Cf. 508 U. S., In addition, Congress did not overlook secondary liability when it created the private rights of action in |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | liability when it created the private rights of action in the 1934 Act. Section 20 of the 1934 Act imposes liability on "controlling person[s]"persons who "contro[l] any person liable under any provision of this chapter or of any rule or regulation thereunder." 15 U.S. C. 78t(a). This suggests that "[w]hen Congress wished to create such [secondary] liability, it had little trouble doing so." 486 U. S., ; cf. Touche & ; see also -98. Aiding and abetting is "a method by which courts create secondary liability" in persons other than the violator of the statute. Pinter v., The fact that Congress chose to impose some forms of secondary liability, but not others, indicates a deliberate congressional choice with which the courts should not interfere. We note that the 1929 Uniform Sale of Securities Act contained a private aiding and abetting cause of action. And at *185 the time Congress passed the 1934 Act, the blue sky laws of 11 States and the Territory of Hawaii provided a private right of action against those who aided a fraudulent or illegal sale of securities. See Abrams, The Scope of Liability Under Section 12 of the Securities Act of 1933: "Participation" and the Pertinent Legislative Materials, 15 Ford. Urb. L. J. 877, 945, and n. 423 (listing provisions). Congress enacted the 1933 and 1934 Acts against this backdrop, but did not provide for aiding and abetting liability in any of the private causes of action it authorized. In sum, it is not plausible to interpret the statutory silence as tantamount to an implicit congressional intent to impose 10(b) aiding and abetting liability. B When Congress reenacts statutory language that has been given a consistent judicial construction, we often adhere to that construction in interpreting the reenacted statutory language. See, e. g., Keene ; ; Congress has not reenacted the language of 10(b) since 1934, however, so we need not determine whether the other conditions for applying the reenactment doctrine are present. Cf. Nonetheless, the parties advance competing arguments based on other post-1934 legislative developments to support their differing interpretations of 10(b). Respondents note that and 1988 Committee Reports, which make oblique references to aiding and abetting liability, show that those Congresses interpreted 10(b) to cover aiding and abetting. H. R. Rep. No. 100-910, pp. 27-28 ; H. R. Rep. No. 5, p. 10 But "[w]e have observed on more than one occasion that the interpretation given by one Congress (or a committee or Member thereof) to an earlier statute is of little assistance in discerning the meaning of that statute." *186 Public Employees |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | in discerning the meaning of that statute." *186 Public Employees Retirement System of ; see (19); Consumer Product Safety Respondents observe that Congress has amended the securities laws on various occasions since when courts first began to interpret 10(b) to cover aiding and abetting, but has done so without providing that aiding and abetting liability is not available under 10(b). From that, respondents infer that these Congresses, by silence, have acquiesced in the judicial interpretation of 10(b). We disagree. This Court has reserved the issue of 10b5 aiding and abetting liability on two previous occasions. Herman & 459 U. S., at ; & 425 U. S., at Furthermore, our observations on the acquiescence doctrine indicate its limitations as an expression of congressional intent. "It does not follow that Congress' failure to overturn a statutory precedent is reason for this Court to adhere to it. It is `impossible to assert with any degree of assurance that congressional failure to act represents' affirmative congressional approval of the [courts'] statutory interpretation. Congress may legislate, moreover, only through the passage of a bill which is approved by both Houses and signed by the President. See U. S. Const., Art. I, 7, cl. 2. Congressional inaction cannot amend a duly enacted statute." ; see ("[W]e walk on quicksand when we try to find in the absence of corrective legislation a controlling legal principle"). Central Bank, for its part, points out that in 1957, 1959, and 1960, bills were introduced that would have amended the securities laws to make it "unlawful to aid, abet, counsel, command, induce, or procure the violation of any provision" *187 of the 1934 Act. S. 1179, 86th Cong., 1st Sess. 22 (1959); see also S. 3770, 86th Cong., 2d Sess. 20 (1960); S. 2545, 85th Cong., 1st Sess. 20 (1957). These bills prompted "industry fears that private litigants, not only the may find in this section a vehicle by which to sue aiders and abettors," and the bills were not passed. Legislation: Hearings before a Subcommittee of the Senate Committee on Banking and Currency on S. 1178, S. 1179, S. 0, S. 1, and S. 11, 86th Cong., 1st Sess., 288, 370 (1959). According to Central Bank, these proposals reveal that those Congresses interpreted 10(b) not to cover aiding and abetting. We have stated, however, that failed legislative proposals are "a particularly dangerous ground on which to rest an interpretation of a prior statute." Pension Benefit Guaranty "Congressional inaction lacks persuasive significance because several equally tenable inferences may be drawn from such inaction, including the inference that the existing legislation already |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | such inaction, including the inference that the existing legislation already incorporated the offered change." ; see United It is true that our cases have not been consistent in rejecting arguments such as these. Compare 281-2 with Pension Benefit Guaranty ; compare Merrill Lynch, Pierce, Fenner & Smith, 456 U.S. 3, 381-3 (19), with n. 11. As a general matter, however, we have stated that these arguments deserve little weight in the interpretive process. Even were that not the case, the competing arguments here would not point to a definitive answer. We therefore reject them. As we stated last Term, Congress has acknowledged the 10b5 action without any further attempt to define it. Musick, -294. We find our role limited when the issue is the scope of conduct prohibited by the *188 statute. That issue is our concern here, and we adhere to the statutory text in resolving it. C The points to various policy arguments in support of the 10b5 aiding and abetting cause of action. It argues, for example, that the aiding and abetting cause of action deters secondary actors from contributing to fraudulent activities and ensures that defrauded plaintiffs are made whole. Brief for 16-17. Policy considerations cannot override our interpretation of the text and structure of the Act, except to the extent that they may help to show that adherence to the text and structure would lead to a result "so bizarre" that Congress could not have intended it. ; cf. ; Santa Fe That is not the case here. Extending the 10b5 cause of action to aiders and abettors no doubt makes the civil remedy more far reaching, but it does not follow that the objectives of the statute are better served. Secondary liability for aiders and abettors exacts costs that may disserve the goals of fair dealing and efficiency in the securities markets. As an initial matter, the rules for determining aiding and abetting liability are unclear, in "an area that demands certainty and predictability." That leads to the undesirable result of decisions "made on an ad hoc basis, offering little predictive value" to those who provide services to participants in the securities business. "[S]uch a shifting and highly fact-oriented disposition of the issue of who may [be liable for] a damages claim for violation of Rule 10b5" is not a "satisfactory basis for a rule of liability imposed on the conduct of business transactions." Blue Chip ; see also Virginia Bank- *189 501 U. S., 06 Because of the uncertainty of the governing rules, entities subject to secondary liability as aiders and abettors may |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | entities subject to secondary liability as aiders and abettors may find it prudent and necessary, as a business judgment, to abandon substantial defenses and to pay settlements in order to avoid the expense and risk of going to trial. In addition, "litigation under Rule 10b5 presents a danger of vexatiousness different in degree and in kind from that which accompanies litigation in general." Blue Chip ; see Virginia Bank, 05; S. Rep. No. 792, 73d Cong., 2d Sess., p. 21 (1934) (attorney's fees provision is protection against strike suits). Litigation under 10b5 thus requires secondary actors to expend large sums even for pretrial defense and the negotiation of settlements. See 138 Cong. Rec. S12605 (remarks of Sen. Sanford) (asserting that in 83% of 10b5 cases major accounting firms pay $8 in legal fees for every $1 paid in claims). This uncertainty and excessive litigation can have ripple effects. For example, newer and smaller companies may find it difficult to obtain advice from professionals. A professional may fear that a newer or smaller company may not survive and that business failure would generate securities litigation against the professional, among others. In addition, the increased costs incurred by professionals because of the litigation and settlement costs under 10b5 may be passed on to their client companies, and in turn incurred by the company's investors, the intended beneficiaries of the statute. See Winter, Paying Lawyers, Empowering Prosecutors, and Protecting Managers: Raising the Cost of Capital in America, 42 Duke L. J. 945, 948-966 We hasten to add that competing policy arguments in favor of aiding and abetting liability can also be advanced. The point here, however, is that it is far from clear that Congress *190 in 1934 would have decided that the statutory purposes would be furthered by the imposition of private aider and abettor liability. D At oral argument, the suggested that 18 U.S. C. 2 is "significant" and "very important" in this case. Tr. of Oral Arg. 41, 43. At the outset, we note that this contention is inconsistent with the 's argument that recklessness is a sufficient scienter for aiding and abetting liability. Criminal aiding and abetting liability under 2 requires proof that the defendant "in some sort associate[d] himself with the venture, that he participate[d] in it as in something that he wishe[d] to bring about, that he [sought] by his action to make it succeed." Nye & 336 U. S., at But recklessness, not intentional wrongdoing, is the theory underlying the aiding and abetting allegations in the case before us. Furthermore, while it is true that an |
Justice Kennedy | 1,994 | 4 | majority | Central Bank of Denver , NA v. First Interstate Bank of Denver , NA | https://www.courtlistener.com/opinion/117837/central-bank-of-denver-na-v-first-interstate-bank-of-denver-na/ | case before us. Furthermore, while it is true that an aider and abettor of a criminal violation of any provision of the 1934 Act, including 10(b), violates 18 U.S. C. 2, it does not follow that a private civil aiding and abetting cause of action must also exist. We have been quite reluctant to infer a private right of action from a criminal prohibition alone; in for example, we refused to infer a private right of action from "a bare criminal statute." And we have not suggested that a private right of action exists for all injuries caused by violations of criminal prohibitions. See Touche If we were to rely on this reasoning now, we would be obliged to hold that a private right of action exists for every provision of the 1934 Act, for it is a criminal violation to violate any of its provisions. 15 U.S. C. 78ff. And thus, given 18 U.S. C. 2, we would also have to hold that a civil aiding and abetting cause of action is available for every provision of the Act. There would be no logical * stopping point to this line of reasoning: Every criminal statute passed for the benefit of some particular class of persons would carry with it a concomitant civil damages cause of action. This approach, with its far-reaching consequences, would work a significant shift in settled interpretive principles regarding implied causes of action. See, e. g., Transamerica Mortgage Advisors, We are unwilling to reverse course in this case. We decline to rely only on 18 U.S. C. 2 as the basis for recognizing a private aiding and abetting right of action under 10(b). V Because the text of 10(b) does not prohibit aiding and abetting, we hold that a private plaintiff may not maintain an aiding and abetting suit under 10(b). The absence of 10(b) aiding and abetting liability does not mean that secondary actors in the securities markets are always free from liability under the securities Acts. Any person or entity, including a lawyer, accountant, or bank, who employs a manipulative device or makes a material misstatement (or omission) on which a purchaser or seller of securities relies may be liable as a primary violator under 10b5, assuming all of the requirements for primary liability under Rule 10b5 are met. See -108. In any complex securities fraud, moreover, there are likely to be multiple violators; in this case, for example, respondents named four defendants as primary violators. App. 24-25. Respondents concede that Central Bank did not commit a manipulative or deceptive act within the meaning |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | Whether state or federal, elected or appointed, judges perform a function fundamentally different from that of the people's elected representatives. Legislative and executive officials act on behalf of the voters who placed them in office; "judge[s] represen[t] the Law." Unlike their counterparts in the political branches, judges are expected to *804 refrain from catering to particular constituencies or committing themselves on controversial in advance of adversarial presentation. Their mission is to decide "individual cases and controversies" on individual records, neutrally applying legal principles, and, when necessary, "stand[ing] up to what is generally supreme in a democracy: the popular will," Scalia, The Rule of Law as a Law of Rules, A judiciary capable of performing this function, owing fidelity to no person or party, is a "longstanding AngloAmerican tradition," United an essential bulwark of constitutional government, a constant guardian of the rule of law. The guarantee of an independent, impartial judiciary enables society to "withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia Bd. of "Without this, all the reservations of particular rights or privileges would amount to nothing." The Federalist No. 78, p. 466 (C. Rossiter ed. 1961). The ability of the judiciary to discharge its unique role rests to a large degree on the manner in which judges are selected. The Framers of the Federal Constitution sought to advance the judicial function through the structural protections of Article III, which provide for the selection of judges by the President on the advice and consent of the Senate, generally for lifetime terms. Through its own Constitution, Minnesota, in common with most other States, has decided to allow its citizens to choose judges directly in periodic elections. But Minnesota has not thereby opted to install a corps of political actors on the bench; rather, it has endeavored to preserve the integrity of its judiciary by other means. Recognizing that the influence of political parties is incompatible with the judge's role, for example, Minnesota *805 has designated all judicial elections nonpartisan. See And it has adopted a provision, here called the Announce Clause, designed to prevent candidates for judicial office from "publicly making known how they would decide likely to come before them as judges." Republican Party of The question this case presents is whether the First Amendment stops Minnesota from furthering its interest in judicial integrity through this precisely targeted speech restriction. I The speech restriction must fail, in the Court's view, because an electoral process |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | must fail, in the Court's view, because an electoral process is at stake; if Minnesota opts to elect its judges, the Court asserts, the State may not rein in what candidates may say. See ante, at 781 (notion that "right to speak out on " may be abridged in an election context "sets our First Amendment jurisprudence on its head"); ante, at 787-788 (power to dispense with elections does not include power to curtail candidate speech if State leaves election process in place); ("[W]hen a state opts to hold an election, it must commit itself to a complete election, replete with free speech and association."); I do not agree with this unilocular, "an election is an election," approach. Instead, I would differentiate elections for political offices, in which the First Amendment holds full sway, from elections designed to select those whose office it is to administer justice without respect to persons. Minnesota's choice to elect its judges, I am persuaded, does not preclude the State from installing an election process geared to the judicial office. Legislative and executive officials serve in representative capacities. They are agents of the people; their primary function is to advance the interests of their constituencies. Candidates for political offices, in keeping with their representative *806 role, must be left free to inform the electorate of their positions on specific Armed with such information, the individual voter will be equipped to cast her ballot intelligently, to vote for the candidate committed to positions the voter approves. Campaign statements committing the candidate to take sides on contentious are therefore not only appropriate in political elections; they are "at the core of our electoral process," for they "enhance the accountability of government officials to the people whom they represent," Judges, however, are not political actors. They do not sit as representatives of particular persons, communities, or parties; they serve no faction or constituency. "[I]t is the business of judges to be indifferent to popularity." n. 29 They must strive to do what is legally right, all the more so when the result is not the one "the home crowd" wants. Rehnquist, Dedicatory Address: Act Well Your Part: Therein All Honor Lies, 7 Pepperdine L. Rev. 227, 229-300 Even when they develop common law or give concrete meaning to constitutional text, judges act only in the context of individual cases, the outcome of which cannot depend on the will of the public. See 319 U. S., at Thus, the rationale underlying unconstrained speech in elections for political officethat representative government depends on the public's ability to choose agents who |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | government depends on the public's ability to choose agents who will act at its behestdoes not carry over to campaigns for the bench. As to persons aiming to occupy the seat of judgment, the Court's unrelenting reliance on decisions involving contests for legislative and executive posts is manifestly out of place. E. g., ante, at 781-782 ). See O', The Canons in the Courts: Recent First Amendment Rulings, (reliance on cases involving nonjudicial campaigns, particularly is "grievously misplaced"; "[h]ow any thoughtful judge could derive from that ruling any possible guidance for cases that involve judicial campaign speech seems baffling"). In view of the magisterial role judges must fill in a system of justice, a role that removes them from the partisan fray, States may limit judicial campaign speech by measures impermissible in elections for political office. See ("Mode of appointment is only one factor that enables distinctions to be made among different kinds of public official. Judges remain different from legislators and executive officials, even when all are elected, in ways that bear on the strength of the state's interest in restricting their freedom of speech."). The Court sees in this conclusion, and in the Announce Clause that embraces it, "an obvious tension," ante, at 787: The Minnesota electorate is permitted to select its judges by popular vote, but is not provided information on "subjects of interest to the voters," in particular, the voters are not told how the candidate would decide controversial cases or if elected. This supposed tension, however, rests on the false premise that by departing from the federal model with respect to who chooses judges, Minnesota necessarily departed from the federal position on the criteria relevant to the exercise of that choice.[1] *808 The Minnesota Supreme Court thought otherwise: "The methods by which the federal system and other states initially select and then elect or retain judges are varied, yet the explicit or implicit goal of the constitutional provisions and enabling legislation is the same: to create and maintain an independent judiciary as free from political, economic and social pressure as possible so judges can decide cases without those influences." Peterson, 490 N. W. 2d, at 420. Nothing in the Court's opinion convincingly explains why Minnesota may not pursue that goal in the manner it did. Minnesota did not choose a judicial selection system with all the trappings of legislative and executive races. While providing for public participation, it tailored judicial selection to fit the character of third branch office holding. See at The balance the State sought to achieveallowing the people to elect judges, but |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | State sought to achieveallowing the people to elect judges, but safeguarding the process so that the integrity of the judiciary would not be compromisedshould encounter *809 no First Amendment shoal. See generally O', II Proper resolution of this case requires correction of the Court's distorted construction of the provision before us for review. According to the Court, the Announce Clause "prohibits a judicial candidate from stating his views on any specific nonfanciful legal question within the province of the court for which he is running, except in the context of discussing past decisionsand in the latter context as well, if he expresses the view that he is not bound by stare decisis. " Ante, at 773. In two key respects, that construction misrepresents the meaning of the Announce Clause as interpreted by the Eighth Circuit and embraced by the Minnesota Supreme Court, In re Code of Judicial Conduct, 639 N.W.2d which has the final word on this matter, see Hortonville Joint School Dist. No. First and most important, the Court ignores a crucial limiting construction placed on the Announce Clause by the courts below. The provision does not bar a candidate from generally "stating [her] views" on legal questions, ante, at 773; it prevents her from "publicly making known how [she] would decide " 2 F.3d, at That limitation places beyond the scope of the Announce Clause a wide range of comments that may be highly informative to voters. Consistent with the Eighth Circuit's construction, such comments may include, for example, statements of historical fact ("As a prosecutor, I obtained 15 drunk driving convictions"); qualified statements ("Judges should use sparingly their discretion to grant lenient sentences to drunk drivers"); and statements framed *810 at a sufficient level of generality ("Drunk drivers are a threat to the safety of every driver"). What remains within the Announce Clause is the category of statements that essentially commit the candidate to a position on a specific issue, such as "I think all drunk drivers should receive the maximum sentence permitted by law." See Tr. of Oral Arg. 45 (candidate may not say "`I'm going to decide this particular issue this way in the future' "). Second, the Court misportrays the scope of the Clause as applied to a candidate's discussion of past decisions. Citing an apparent concession by respondents at argument, the Court concludes that "statements critical of past judicial decisions are not permissible if the candidate also states that he is against stare decisis, " ante, at 772 (emphasis deleted). That conclusion, however, draws no force from the meaning attributed to the Announce |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | draws no force from the meaning attributed to the Announce Clause by the Eighth Circuit. In line with the Minnesota Board on Judicial Standards, the Court of Appeals stated without qualification that the Clause "does not prohibit candidates from discussing appellate court decisions." (citing Minn. Bd. on Judicial Standards, Informal Opinion, Oct. 10, 1990, App. ("In all election contests, a candidate for judicial office may discuss decisions and opinions of the Appellate courts.")). The Eighth Circuit's controlling construction should not be modified by respondents' on the spot answers to fast-paced hypothetical questions at oral argument. Moose Lodge No. The Announce Clause is thus more tightly bounded, and campaigns conducted under that provision more robust, than the Court acknowledges. Judicial candidates in Minnesota may not only convey general information about themselves, see ante, at 774, they may also describe their conception of the role of a judge and their views on a wide range of subjects *811 of interest to the voters. See App. 97-103; Brief for Minnesota State Bar Association as Amicus Curiae 22-23 (e. g., the criteria for deciding whether to depart from sentencing guidelines, the remedies for racial and gender bias, and the balance between "free speech rights [and] the need to control [hate crimes]" ). Further, they may discuss, criticize, or defend past decisions of interest to voters. What candidates may not dosimply or with sophisticationis remove themselves from the constraints characteristic of the judicial office and declare how they would decide an issue, without regard to the particular context in which it is presented, sans briefs, oral argument, and, as to an appellate bench, the benefit of one's colleagues' analyses. Properly construed, the Announce Clause prohibits only a discrete subcategory of the statements the Court's misinterpretation encompasses. The Court's characterization of the Announce Clause as "election-nullifying," ante, at 782, "plac[ing] most subjects of interest to the voters off limits," ante, at 787, is further belied by the facts of this case. In his 1996 bid for office, petitioner Gregory Wersal distributed literature sharply criticizing three Minnesota Supreme Court decisions. Of the court's holding in the first casethat certain unrecorded confessions must be suppressedWersal asked, "Should we conclude that because the Supreme Court does not trust police, it allows confessed criminals to go free?" App. 37. Of the second case, invalidating a state welfare law, Wersal stated: "The Court should have deferred to the Legislature. It's the Legislature which should set our spending policies." And of the third case, a decision involving abortion rights, Wersal charged that the court's holding was "directly contrary to the opinion of |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | the court's holding was "directly contrary to the opinion of the U. S. Supreme Court," "unprecedented," and a "pro-abortion stance." When a complaint was filed against Wersal on the basis of those statements, the Lawyers Professional Responsibility Board concluded that no discipline was warranted, *812 in part because it thought the campaign materials did not violate the Announce Clause, And when, at the outset of his 1998 campaign, Wersal sought to avoid the possibility of sanction for future statements, he pursued the option, available to all Minnesota judicial candidates, Tr. of Oral Arg. 12-13, of requesting an advisory opinion concerning the application of the Announce Clause. App. 24-26. In response to that request, the Board indicated that it did not anticipate any adverse action against him.[2] Wersal has thus never been sanctioned under the Announce Clause for any campaign statement he made. On the facts before us, in sum, the Announce Clause has hardly stifled the robust communication of ideas and views from judicial candidate to voter. III Even as it exaggerates the reach of the Announce Clause, the Court ignores the significance of that provision to the integrated system of judicial campaign regulation Minnesota has developed. Coupled with the Announce Clause in Minnesota's Code of Judicial Conduct is a provision that prohibits candidates from "mak[ing] pledges or promises of conduct in office other than the faithful and impartial performance of the duties of the office." Minn. Code of Judicial Conduct, Canon 5(A)(3)(d)(i) Although the Court is correct that this "pledges or promises" provision is not directly at issue in this case, see ante, at 770, the Court errs in overlooking the interdependence of that prohibition and the one before us. In my view, the constitutionality of the Announce *813 Clause cannot be resolved without an examination of that interaction in light of the interests the pledges or promises provision serves. A All parties to this case agree that, whatever the validity of the Announce Clause, the State may constitutionally prohibit judicial candidates from pledging or promising certain results. See Brief for Petitioners Republican Party of Minnesota et al. 36-37; Tr. of Oral Arg. -16 (petitioners' acknowledgment that candidates may be barred from making a "pledge or promise of an outcome"); Brief for Respondents 11; see also Brief for Brennan Center for Justice et al. as Amici Curiae 23 ("All of the parties and amici in this case agree that judges should not make explicit promises or commitments to decide particular cases in a particular manner."). The reasons for this agreement are apparent. Pledges or promises of conduct in office, |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | agreement are apparent. Pledges or promises of conduct in office, however commonplace in races for the political branches, are inconsistent "with the judge's obligation to decide cases in accordance with his or her role." Tr. of Oral Arg. 16; see Brief for Petitioners Republican Party of Minnesota et al. 36 ("[B]ecause [judges] have a duty to decide a case on the basis of the law and facts before them, they can be prohibited, as candidates, from making such promises."). This judicial obligation to avoid prejudgment corresponds to the litigant's right, protected by the Due Process Clause of the Fourteenth Amendment, to "an impartial and disinterested tribunal in both civil and criminal cases," The proscription against pledges or promises thus represents an accommodation of "constitutionally protected interests [that] lie on both sides of the legal equation." Balanced against the candidate's interest in free expression is the litigant's "powerful and independent constitutional interest in fair adjudicative procedure." ; see Buckley, 997 F. 2d, *8 at 227 ("Two principles are in conflict and must, to the extent possible, be reconciled. The roots of both principles lie deep in our constitutional heritage."). The impartiality guaranteed to litigants through the Due Process Clause adheres to a core principle: "[N]o man is permitted to try cases where he has an interest in the outcome." In re (19). Our cases have "jealously guarded" that basic concept, for it "ensur[es] that no person will be deprived of his interests in the absence of a proceeding in which he may present his case with assurance that the arbiter is not predisposed to find against him." 446 U. S., at Applying this principle in we held that due process was violated where a judge received a portion of the fines collected from defendants whom he found guilty. Such an arrangement, we said, gave the judge a "direct, personal, substantial[, and] pecuniary interest" in reaching a particular outcome and thereby denied the defendant his right to an impartial arbiter. extended `s reasoning, holding that due process was similarly violated where fines collected from guilty defendants constituted a large part of a village's finances, for which the judge, who also served as the village mayor, was responsible. Even though the mayor did not personally share in those fines, we concluded, he "perforce occupie[d] two practically and seriously inconsistent positions, one partisan and the other judicial." We applied the principle of and most recently in Aetna Life Ins. That decision invalidated a ruling of the Alabama Supreme Court written by a justice who had a personal interest in the resolution of a dispositive |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | had a personal interest in the resolution of a dispositive issue. The Alabama Supreme Court's ruling was issued while the justice was pursuing a separate lawsuit in an Alabama lower court, and its outcome "had the clear and immediate effect of enhancing both the legal status *815 and the settlement value" of that separate suit. As in and we held, the justice therefore had an interest in the outcome of the decision that unsuited him to participate in the 5 U.S., It mattered not whether the justice was actually influenced by this interest; "[t]he Due Process Clause," we observed, "may sometimes bar trial by judges who have no actual bias and who would do their very best to weigh the scales of justice equally between contending parties." These cases establish three propositions important to this dispute. First, a litigant is deprived of due process where the judge who hears his case has a "direct, personal, substantial, and pecuniary" interest in ruling against him. Second, this interest need not be as direct as it was in where the judge was essentially compensated for each conviction he obtained; the interest may stem, as in from the judge's knowledge that his success and tenure in office depend on certain outcomes. "[T]he test," we have said, "is whether the situation is one `which would offer a possible temptation to the average man as a judge [that] might lead him not to hold the balance nice, clear and true.' " (quoting 273 U. S., at 5). And third, due process does not require a showing that the judge is actually biased as a result of his self-interest. Rather, our cases have "always endeavored to prevent even the probability of unfairness." In re 349 U. S., at "[T]he requirement of due process of law in judicial procedure is not satisfied by the argument that men of the highest honor and the greatest self-sacrifice could carry it on without danger of injustice." 273 U. S., at 5.[3] *816 The justification for the pledges or promises prohibition follows from these principles. When a judicial candidate promises to rule a certain way on an issue that may later reach the courts, the potential for due process violations is grave and manifest. If successful in her bid for office, the judicial candidate will become a judge, and in that capacity she will be under pressure to resist the pleas of litigants who advance positions contrary to her pledges on the campaign trail. If the judge fails to honor her campaign promises, she will not only face abandonment by supporters of |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | promises, she will not only face abandonment by supporters of her professed views; she will also "ris[k] being assailed as a dissembler," willing to say one thing to win an election and to do the opposite once in office. A judge in this position therefore may be thought to have a "direct, personal, substantial, [and] pecuniary interest" in ruling against certain litigants, 273 U. S., for she may be voted off the bench and thereby lose her salary and emoluments unless she honors the pledge that secured her election. See Shepard, Campaign Speech: Restraint and Liberty in Judicial Ethics, 1083 1092 (1996); see ; see also The Federalist No. 79, p. 2 (C. Rossiter ed. 1961) ("In the general course of human nature, a power over a man's subsistence amounts to a power over his will." (emphasis deleted)). Given this grave danger to litigants from judicial campaign promises, States are justified in barring expression of such commitments, for they typify the "situatio[n] in which experience teaches that the probability of actual bias on the part of the judge is too high to be constitutionally tolerable." By removing this source of "possible temptation" for a judge to rule on the basis of self-interest, 273 U. S., at 5, the pledges or promises prohibition furthers the State's "compellin[g] interest in maintaining a judiciary fully capable of performing" its appointed task, 2 : "judging [each] particular controversy fairly on the basis of its own circumstances," United See O', In addition to protecting litigants' due process rights, the parties in this case further agree, the pledges or promises clause advances another compelling state interest: preserving the public's confidence in the integrity and impartiality of its judiciary. See Tr. of Oral Arg. 16 (petitioners' statement that pledges or promises properly fosters "public perception of the impartiality of the judiciary"). See 379 U.S. 9, ; In re 349 U. S., at )). Because courts control *818 neither the purse nor the sword, their authority ultimately rests on public faith in those who don the robe. See U.S. 361, As the Minnesota Supreme Court has recognized, all legal systemsregardless of their method of judicial selection"can function only so long as the public, having confidence in the integrity of its judges, accepts and abides by judicial decisions." Complaint Concerning Winton, Prohibiting a judicial candidate from pledging or promising certain results if elected directly promotes the State's interest in preserving public faith in the bench. When a candidate makes such a promise during a campaign, the public will no doubt perceive that she is doing so in the hope |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | doubt perceive that she is doing so in the hope of garnering votes. And the public will in turn likely conclude that when the candidate decides an issue in accord with that promise, she does so at least in part to discharge her undertaking to the voters in the previous election and to prevent voter abandonment in the next. The perception of that unseemly quid pro quo a judicial candidate's promises on in return for the electorate's votes at the pollsinevitably diminishes the public's faith in the ability of judges to administer the law without regard to personal or political self-interest.[4] Then-Justice Rehnquist's observations *819 about the federal system apply with equal if not greater force in the context of Minnesota's elective judiciary: Regarding the appearance of judicial integrity, "[one must] distinguish quite sharply between a public statement made prior to nomination for the bench, on the one hand, and a public statement made by a nominee to the bench. For the latter to express any but the most general observation about the law would suggest that, in order to obtain favorable consideration of his nomination, he deliberately was announcing in advance, without benefit of judicial oath, briefs, or argument, how he would decide a particular question that might come before him as a judge." B The constitutionality of the pledges or promises clause is thus amply supported; the provision not only advances due process of law for litigants in Minnesota courts, it also reinforces the authority of the Minnesota judiciary by promoting public confidence in the State's judges. The Announce Clause, however, is equally vital to achieving these compelling ends, for without it, the pledges or promises provision would be feeble, an arid form, a matter of no real importance. Uncoupled from the Announce Clause, the ban on pledges or promises is easily circumvented. By prefacing a campaign commitment with the caveat, "although I cannot promise anything," or by simply avoiding the language of promises or pledges altogether, a candidate could declare with impunity how she would decide specific Semantic sanitizing of the candidate's commitment would not, however, diminish its pernicious effects on actual and perceived judicial impartiality. To use the Court's example, a candidate *820 who campaigns by saying, "If elected, I will vote to uphold the legislature's power to prohibit same-sex marriages," ante, at 780, will feel scarcely more pressure to honor that statement than the candidate who stands behind a podium and tells a throng of cheering supporters: "I think it is constitutional for the legislature to prohibit same-sex marriages," ante, at 779. Made during a |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Republican Party of Minn. v. White | https://www.courtlistener.com/opinion/121170/republican-party-of-minn-v-white/ | to prohibit same-sex marriages," ante, at 779. Made during a campaign, both statements contemplate a quid pro quo between candidate and voter. Both effectively "bind [the candidate] to maintain that position after election." Ante, at 770. And both convey the impression of a candidate prejudging an issue to win votes. Contrary to the Court's assertion, the "nonpromissory" statement averts none of the dangers posed by the "promissory" one. See ante, at 780-781 (emphasis deleted). By targeting statements that do not technically constitute pledges or promises but nevertheless "publicly mak[e] known how [the candidate] would decide" legal 2 F.3d, at the Announce Clause prevents this end run around the letter and spirit of its companion provision.[5] No less than the pledges or promises clause itself, the Announce *821 Clause is an indispensable part of Minnesota's effort to maintain the health of its judiciary, and is therefore constitutional for the same reasons. * * * This Court has recognized in the past, as Justice O'Connor does today, see ante, at 788-790 (concurring opinion), a "fundamental tension between the ideal character of the judicial office and the real world of electoral politics," 501 U. S., at We have no warrant to resolve that tension, however, by forcing States to choose one pole or the other. Judges are not politicians, and the First Amendment does not require that they be treated as politicians simply because they are chosen by popular vote. Nor does the First Amendment command States that wish to promote the integrity of their judges in fact and appearance to abandon systems of judicial selection that the people, in the exercise of their sovereign prerogatives, have devised. For more than three-quarters of a century, States like Minnesota have endeavored, through experiment tested by experience, to balance the constitutional interests in judicial integrity and free expression within the unique setting of an elected judiciary. P. McFadden, Electing Justice: The Law and Ethics of Judicial Election Campaigns 86 (1990); Brief for the Conference of Chief Justices as Amicus Curiae 5. The Announce Clause, borne of this long effort, "comes to this Court bearing a weighty title of respect," 339 U.S. 0, 5 I would uphold it as an essential component in Minnesota's accommodation of the complex and competing concerns in this sensitive area. Accordingly, I would affirm the judgment of the Court of Appeals for the Eighth Circuit. |
Justice Thomas | 2,019 | 1 | concurring | Merck Sharp & Dohme Corp. v. Albrecht | https://www.courtlistener.com/opinion/4621279/merck-sharp-dohme-corp-v-albrecht/ | I join the Court’s opinion and write separately to explain my understanding of the relevant pre-emption principles and how they apply to this case. The Supremacy Clause of the Constitution provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Au- thority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Art. VI, cl. 2. Under this Clause, “[w]here state and federal law ‘directly conflict,’ state law must give way.” PLIVA, Although the Court has articulated several theories of pre-emption, Merck’s sole argument here is that state law is pre-empted because it is impossible for Merck to comply with federal and state law. I remain skeptical that “physical impossibility” is a proper test for deciding whether a direct conflict exists between federal and state law. But even under our impossibility precedents, Merck’s pre-emption defense fails. 2 MERCK SHARP & DOHME CORP. v. ALBRECHT THOMAS, J., concurring I As I have explained before, it is not obvious that the “ ‘physical impossibility’ standard is the best proxy for determining when state and federal laws ‘directly conflict’ for purposes of the Supremacy Clause.” (opinion concurring in judg- ment). Evidence from the founding suggests that, under the original meaning of the Supremacy Clause, federal law pre-empts state law only if the two are in logical contra- diction. See ibid.; Nelson, Preemption, 260–261 (2000). Sometimes, federal law will logically contradict state law even if it is possible for a person to comply with both. For instance, “if federal law gives an individual the right to engage in certain behavior that state law prohibits, the laws would give contradictory commands notwithstanding the fact that an individual could comply with both by electing to refrain from the covered behavior.” 555 U.S., at (opinion of THOMAS, J.). Merck does not advance this logical-contradiction standard, and it is doubtful that a pre-emption defense along these lines would succeed here. “To say, as the statute does, that [Merck] may not market a drug without federal approval (i.e., without [a Food and Drug Admin- istration (FDA)] approved label) is not to say that federal approval gives [Merck] the unfettered right, for all time, to market its drug with the specific label that was federally approved.” Nothing in the federal brand- name-drug “statutory or regulatory scheme necessarily insulates [Merck] from liability under state law simply because |
Justice Thomas | 2,019 | 1 | concurring | Merck Sharp & Dohme Corp. v. Albrecht | https://www.courtlistener.com/opinion/4621279/merck-sharp-dohme-corp-v-albrecht/ | necessarily insulates [Merck] from liability under state law simply because the FDA has approved a particular label.” at 593. The relevant question would be whether federal law gives Merck “an unconditional right to market [a] federally approved drug at all times with the precise label initially approved by the FDA,” or whether it instead provides a federal floor that can be supplemented by dif- Cite as: 587 U. S. (2019) 3 THOMAS, J., concurring ferent state standards, see Brief for Cato Institute as Amicus Curiae 14, n. 4. Absent a federal statutory right to sell a brand-name drug with an FDA-approved label, FDA approval “does not represent a finding that the drug, as labeled, can never be deemed unsafe by later federal action, or as in this case, the application of state law.” II Applying the Court’s impossibility precedents leads to the same conclusion. The question for impossibility is whether it was “lawful under federal law for [Merck] to do what state law required of ” it. Because “[p]re-emption analysis requires us to compare federal and state law,” I “begin by identifying the [rele- vant] state tort duties and federal labeling requirements.” Respondents’ claim here is “that state law obligated Merck to add a warning about atypical femur fractures” to the Warnings and Precautions section of Fosamax’s label. In re Fosamax (Alendronate Sodium) Prods. Liability Litig., Under the Federal Food, Drug, and Cosmetic Act, a manu- facturer of a brand-name drug “bears responsibility for the content of its label at all times.” – 571 (majority opinion). The manufacturer “is charged both with crafting an adequate label and with ensuring that its warnings remain adequate as long as the drug is on the market.” Generally, to propose labeling changes, the manufacturer can submit a Prior Approval Supplement (PAS) application, which requires FDA ap- proval before the changes are made. (b) (2018). Alternatively, under the FDA’s Changes Being Effected (CBE) regulation, if the manufacturer would like to change a label to “add or strengthen a contraindication, warning, precaution, or adverse reaction” “to reflect newly acquired information,” it can change the label immediately 4 MERCK SHARP & DOHME CORP. v. ALBRECHT THOMAS, J., concurring upon filing its supplemental application with the FDA, without waiting for FDA approval. see If the FDA later disapproves the CBE application, “it may order the manufacturer to cease distribution of the drug product(s)” with the new labeling. Here, Merck’s impossibility pre-emption defense fails because it does not identify any federal law that “prohibited [it] from adding any and all warnings that would satisfy state law.” Ante, at 13. |
Justice Thomas | 2,019 | 1 | concurring | Merck Sharp & Dohme Corp. v. Albrecht | https://www.courtlistener.com/opinion/4621279/merck-sharp-dohme-corp-v-albrecht/ | all warnings that would satisfy state law.” Ante, at 13. By its reference to “the Laws of the United States,” the Supremacy Clause “requires that pre-emptive effect be given only to those federal standards and policies that are set forth in, or necessarily follow from, the statutory text that was produced through the constitutionally required bicameral and presentment procedures.” Merck’s primary argument, based on various agency com- munications, is that the FDA would have rejected a hypo- thetical labeling change submitted via the CBE process. But neither agency musings nor hypothetical future rejec- tions constitute pre-emptive “Laws” under the Supremacy Clause. As the Court describes, in 2008 Merck submitted PAS applications to add certain language regarding fractures to the Adverse Reactions and the Warnings and Precautions sections of Fosamax’s label. Ante, at 6. In 2009, the FDA sent Merck a “complete response” letter “agree[ing] that atypical and subtrochanteric fractures should be added” to the Adverse Reactions section. App. 510–511. But the letter said that Merck’s proposed Warnings and Precau- tions language, which focused on “the risk factors for stress fractures,” was “inadequate” because “[i]dentification of ‘stress fractures’ may not be clearly related to the atypical subtrochanteric fractures that have been reported in the literature.” In accord with FDA regulations, the letter required Merck to take one of three actions: (1) Cite as: 587 U. S. (2019) 5 THOMAS, J., concurring “[r]esubmit the application addressing all deficiencies identified in the complete response letter”; (2) “[w]ithdraw the application without prejudice to a subsequent submission”; or (3) “[a]sk the agency to provide an opportunity for a hearing,” after which “the agency will either approve” or “refuse to approve the application.” 21 CFR see App. 512. As this regulation sug- gests and the FDA has explained, complete response letters merely “infor[m] sponsors of changes that must be made before an application can be approved, with no implication as to the ultimate approvability of the applica- tion.” (2008) In other words, the 2009 letter neither marked “the consum- mation of the agency’s decisionmaking process” nor de- termined Merck’s “rights or obligations.” (internal quotation marks omit- ted). Instead, it was “of a merely tentative or interlocutory nature.” Therefore, the letter was not a final agency action with the force of law, so it cannot be “Law” with pre-emptive effect. Merck’s argument that the 2009 letter and other agency communications suggest that the FDA would have denied a future labeling change fares no better: hypothetical agency action is not “Law.” As Merck acknowledges, it could have resubmitted its PAS applications, sought a hearing, or changed its label |
Justice Thomas | 2,019 | 1 | concurring | Merck Sharp & Dohme Corp. v. Albrecht | https://www.courtlistener.com/opinion/4621279/merck-sharp-dohme-corp-v-albrecht/ | its PAS applications, sought a hearing, or changed its label at any time through the CBE process. See Reply Brief 13. Indeed, when Merck instead decided to withdraw its PAS applications, it added atypi- cal femoral fractures to the Adverse Reactions section through the CBE process. That process also enabled Merck to add language to the Warnings and Precautions section, but Merck did not do so. If it had, it could have satisfied its federal and alleged state-law duties—meaning that it was possible for Merck to independently satisfy both sets of duties. Merck’s belief that the FDA would have eventually rejected a CBE application does not make 6 MERCK SHARP & DOHME CORP. v. ALBRECHT THOMAS, J., concurring an earlier CBE change impossible. As the Court correctly explains, “ ‘the possibility of impossibility [is] not enough.’ ” Ante, at 13–14. The very point of the CBE process is that a manufacturer can “unilaterally” make a labeling change that does not violate other federal law, 555 U.S., at 573; see ; e.g., 21 U.S. C. at least until the FDA rules on its application.* Because Merck points to no statute, regulation, or other agency action with the force of law that would have pro- hibited it from complying with its alleged state-law duties, its pre-emption defense should fail as a matter of law. —————— *In 2007, Congress “granted the FDA statutory authority to require a manufacturer to change its drug label based on safety information that becomes available after a drug’s initial approval,” but even after this amendment, brand-name-drug “manufacturers remain responsible for updating their labels.” –568; see 21 U.S. C. As I understand the Court’s opinion, if proper agency actions pursuant to this amendment, or other federal law, “prohibited the drug manufacturer from satisfy[ing] state law,” state law would be pre-empted under our impossibility precedents regardless of whether the manufacturer “show[ed] that it fully informed the FDA of the justifications for the warning required by state law.” Ante, at 13; see, e.g., ; Of course, the only proper agency actions are those “that are set forth in, or necessarily follow from, the statutory text,” and they must have the force of law to be pre-emptive. I am aware of no such agency action here that prevented Merck from comply- ing with state law. Cite as: 587 U. S. (2019) 1 ALITO, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 17–290 MERCK SHARP & DOHME CORP., PETITIONER v. DORIS ALBRECHT, ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT [May |
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