author_name
stringclasses 26
values | year
int64 1.97k
2.02k
| label
int64 0
200
| category
stringclasses 5
values | case_name
stringlengths 9
127
| url
stringlengths 55
120
| text
stringlengths 1k
3.91k
|
|---|---|---|---|---|---|---|
Justice Scalia | 2,002 | 9 | dissenting | Devlin v. Scardelletti | https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/ | at 10 ("What is most important to this case is that nonnamed class members are parties to the proceedings in the sense of being bound by the settlement"). This will come as news to law students everywhere. There are any number of persons who are not parties to a judgment yet are nonetheless bound by it. See Restatement 41(1), at 393 (listing examples); 75, Comment a, at 210 ("A person is bound by a judgment in an action to which he is not a party if he is in `privity' with a party"). Perhaps the most prominent example is precisely the one we have here. Nonnamed members of a class are bound by the class judgment, even though they are not parties to the judgment, because they are represented by class members who are parties: "A person who is not a party to an action but who is represented by a party is bound by and entitled to the benefits of a judgment as though he were a party. A person is represented by a party who is [t]he representative of a class of persons similarly situated, designated as such with the approval of the court, of which the person is a member." 41(1)(e), at 393. Accord, 75, Comment a, at 210 ("Persons bound through representation by virtue of a relationship with a party are to be contrasted with persons bound by a judgment because they are parties"). Petitioner here, in the words of the Restatement, "is not a party" but "is bound by [the] judgment *19 as though he were a party." Because our "wellsettled" rule allows only "parties" to appeal from a judgment, petitioner may not appeal the class settlement.[3] Second, the Court contends that petitioner should be considered a party to the judgment because he filed an objection to the class settlement. We have already held, however, that filing an objection does not make one a party if he does not also intervene. at II The most pernicious aspect of today's decision, however, is not its result, but its reasoning. I mentioned in a recent dissent the Court's "penchant for eschewing clear rules that might avoid" US Airways, Today's opinion not only eschews such *20 a rule; it destroys one that previously existed. It abandons the bright-line rule that only those persons named as such are parties to a judgment, in favor of a vague inquiry "based on context." Ante, at 10 ("The label `party' does not indicate an absolute characteristic, but rather a conclusion about the applicability of various procedural rules that may differ based on |
Justice Scalia | 2,002 | 9 | dissenting | Devlin v. Scardelletti | https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/ | applicability of various procedural rules that may differ based on context"). Although the Court does not say how one goes about selecting the result-determinative "context" for its oh-so-sophisticated new inquiry, I gather from its repeated invocation of this phrase that the relevant context in the present case is the "goals of class action" ante, at 10, 11. This means, I suppose, that, in a labor case, who are the parties to a judgment will depend on the goals of the labor laws, and, in a First Amendment case, who are the parties to a judgment will depend on the goals of the First Amendment. Or perhaps not. What makes this exponential increase in indeterminacy especially unfortunate is the fact that it is utterly unnecessary. Despite the Court's assertion in one breath that treating nonnamed class members as parties is the "only means" by which they would not be "deprive[d] of the power to preserve their interests," ante, at 10, the Court in the next breath concedes that there is anotherand very easy means for nonnamed class members to do just that: becoming parties to the judgment by moving to intervene. Ante, at 12 (noting "the ease with which nonnamed class members who have objected at the fairness hearing could intervene for purposes of appeal"). The Court does not dispute that nonnamed class members will typically meet the requirements for intervention as of right under Federal Rule of Civil Procedure 24, including intervention only for the purpose of appeal, and even after the class judgment has been entered.[4]Ante, at 11-12. *21 The Court does dispute whether there is any "value" in requiring nonnamed class members who object to the settlement to intervene in order to take an appeal. Ante, at 12. In my view, avoiding the reduction to indeterminacy of the hitherto clear rule regarding who is a party is "value" enough. But beyond that, it makes sense to require objectors to intervene before appealing, for the reason advanced by the Government: to enable district courts "to perform an important screening function." Brief for United States et al. as Amici Curiae 23. For example, when considering whether to allow an objector to intervene, a district court can verify that the objector does not fall outside the definition of the settlement class and is otherwise entitled to relief in the class action, that the objection has not already been resolved in favor of the objector in the approved settlement, and that the objection was presented in a timely manner. The Court asserts that there is no "value" to these screening functions because |
Justice Scalia | 2,002 | 9 | dissenting | Devlin v. Scardelletti | https://www.courtlistener.com/opinion/121145/devlin-v-scardelletti/ | that there is no "value" to these screening functions because a court of appeals can pass on those matters just as easily, and in any event an objector who is unable to obtain relief from the class settlement will not seek to appeal "with any frequency," as he "stands to gain nothing by appeal." Ante, at 13. As to the last point: The person who has nothing to gain from an appeal also had nothing to gain from filing his objection in the first place, but was undeterred (as many are), see, e. g., The belief that meritless objections, undeterred the first time, will be deterred the second, surely suggests the triumph *22 of hope over experience.[5] And as for the suggestion that the court of appeals can pass on these questions just as easily: Since when has it become a principle of our judicial administration that what can be left to the appellate level should be left to the appellate level? Quite the opposite is true. District judges, who issue their decrees in splendid isolation, can be multiplied ad infinitum. Courts of appeals cannot be staffed with too many judges without destroying their ability to maintain, through en banc rehearings, a predictable law of the circuit. In any event, the district court, being intimately familiar with the facts, is in a better position to rule initially upon such questions as whether the objections to the settlement were procedurally deficient, late filed, or simply inapposite to the case. If it denies interventions on such grounds, and if the denials are not appealed, the court of appeals will be spared the trouble of considering those objections altogether. And even when the denials are appealed, the court of appeals will have the benefit of the district court's opinion on these often fact-bound questions. (Typically, the only occasion the district court would have had to pass on these questions is in the course of considering the motion to intervene; when considering whether to approve the class settlement, district courts typically do not treat objections individually even on substance, let alone form. E. g., at) Finally, it is worth observing that the Court's assertions regarding the merits of allowing objectors to appeal a class settlement without intervening apply with equal force to the objectors who sought to appeal *23 the class judgment in Yet there we concluded (no doubt for the reasons discussed above) that "the better practice" is to require objectors "to seek intervention for purposes of appeal." 484 U.S., at For these reasons, I would affirm the Court of Appeals. |
Justice Brennan | 1,977 | 13 | concurring | Whalen v. Roe | https://www.courtlistener.com/opinion/109592/whalen-v-roe/ | I write only to express my understanding of the opinion of the Court, which I join. The New York statute under attack requires doctors to disclose to the State information about prescriptions for certain drugs with a high potential for abuse, and provides for the storage of that information in a central computer file. The Court recognizes that an individual's "interest in avoiding disclosure of personal matters" is an aspect of the right of privacy, ante, at 598-600, and nn. 24-25, but holds that in this case, any such interest has not been seriously enough invaded by the State to require a showing that its program was indispensable to the State's effort to control drug abuse. The information disclosed by the physician under this program is made available only to a small number of public health officials with a legitimate interest in the information. As the record makes clear, New York has long required doctors to make this information available to its officials on request, and that practice is not challenged here. Such limited reporting requirements in the medical field are familiar, ante, at 602 n. 29, and are not generally regarded as an invasion of privacy. Broad dissemination by state officials of such information, however, would clearly implicate constitutionally protected privacy rights, and would presumably be justified only by compelling state interests. See, e. g., What is more troubling about this scheme, however, is the central computer storage of the data thus collected. Obviously, as the State argues, collection and storage of data *607 by the State that is in itself legitimate is not rendered unconstitutional simply because new technology makes the State's operations more efficient. However, as the example of the Fourth Amendment shows, the Constitution puts limits not only on the type of information the State may gather, but also on the means it may use to gather it. The central storage and easy accessibility of computerized data vastly increase the potential for abuse of that information, and I am not prepared to say that future developments will not demonstrate the necessity of some curb on such technology. In this case, as the Court's opinion makes clear, the State's carefully designed program includes numerous safeguards intended to forestall the danger of indiscriminate disclosure. Given this serious and, so far as the record shows, successful effort to prevent abuse and limit access to the personal information at issue, I cannot say that the statute's provisions for computer storage, on their face, amount to a deprivation of constitutionally protected privacy interests, any more than the more traditional reporting provisions. |
Justice Marshall | 1,991 | 15 | majority | Exxon Corp. v. Central Gulf Lines, Inc. | https://www.courtlistener.com/opinion/112609/exxon-corp-v-central-gulf-lines-inc/ | This case raises the question whether admiralty jurisdiction extends to claims arising from agency contracts. In this Court held that an agent who had advanced funds for repairs and supplies necessary for a vessel could not bring a claim in admiralty *605 against the vessel's owners. Minturn has been interpreted by some lower courts as establishing a per se rule excluding agency contracts from admiralty. We now consider whether Minturn should be overruled. I This case arose over an unpaid bill for fuels acquired for the vessel, Green Harbour ex William Hooper (Hooper). The Hooper is owned by respondent Central Gulf Lines, Inc. (Central Gulf) and was chartered by the Waterman Steamship Corporation (Waterman) for use in maritime commerce. Petitioner Exxon Corporation (Exxon) was Waterman's exclusive worldwide supplier of gas and bunker fuel oil for some 40 years. In 1983, Waterman and Exxon negotiated a marine fuel requirements contract. Under the terms of the contract, upon request, Exxon would supply Waterman's vessels with marine fuels when the vessels called at ports where Exxon could supply the fuels directly. Alternatively, in ports where Exxon had to rely on local suppliers, Exxon would arrange for the local supplier to provide Waterman vessels with fuel. In such cases, Exxon would pay the local supplier for the fuel and then invoice Waterman. Thus, while Exxon's contractual obligation was to provide Waterman's vessels with fuel when Waterman placed an order, it met that obligation sometimes in the capacity of "seller" and other times in the capacity of "agent." In the transaction at issue here, Exxon acted as Waterman's agent, procuring bunker fuel for the Hooper from Arabian Marine Operating Co. (Arabian Marine) of Jeddah, Saudi Arabia. In October 1983, Arabian Marine delivered over 4,000 tons of fuel to the Hooper in Jeddah and invoiced Exxon for the cost of the fuel. Exxon paid for the fuel and invoiced Waterman, in turn, for $763,644. Shortly thereafter, Waterman sought reorganization under Chapter 11 of the Bankruptcy Code; Waterman never paid the full amount *606 of the fuel bill. During the reorganization proceedings, Central Gulf agreed to assume personal liability for the unpaid bill if a court were to hold the Hooper liable in rem for that cost. Subsequently, Exxon commenced this litigation in federal district court against Central Gulf in personam and against the Hooper in rem. Exxon claimed to have a maritime lien on the Hooper under the Federal Maritime Lien Act, 46 U.S. C. 971 (198 ed.).[1] The District Court noted that "[a] prerequisite to the existence of a maritime lien based on a breach |
Justice Marshall | 1,991 | 15 | majority | Exxon Corp. v. Central Gulf Lines, Inc. | https://www.courtlistener.com/opinion/112609/exxon-corp-v-central-gulf-lines-inc/ | the existence of a maritime lien based on a breach of contract is that the subject matter of the contract must fall within the admiralty jurisdiction." Relying on the Second Circuit's decision in Shipping cert. denied, the District Court concluded that it did not have admiralty jurisdiction over the claim. See -161. In the Second Circuit held that it was constrained by this Court's decision in and by those Second Circuit cases faithfully adhering to Minturn, to follow a per se rule excluding agency contracts from admiralty jurisdiction. See The District Court also rejected the argument that Exxon should be excepted from the Minturn rule because it had provided credit necessary for the Hooper to purchase the fuel and thus was more than a mere agent. To create such an exception, the District Court reasoned, "`would blur, if not obliterate, a rather clear admiralty distinction.'" quoting[] *607 The District Court denied Exxon's motion for reconsideration. The court first rejected Exxon's claim that in procuring fuel for Waterman it was acting as a seller rather than an agent. Additionally, the District Court declined Exxon's invitation to limit the Minturn rule to either general agency or preliminary service contracts.[3] Finally, the District Court determined that even if it were to limit Minturn, Exxon's contract with Waterman was both a general agency contract and a preliminary services contract and thus was excluded from admiralty jurisdiction under either exception. See The Court of Appeals for the Second Circuit summarily affirmed the judgment of the District Court "substantially for the reasons given" in the District Court's two opinions. App. to Pet. for Cert. A, judgt. order reported at We granted certiorari to resolve a conflict among the Circuits as to the scope of the Minturn decision[4] and to *608 consider whether Minturn should be overruled. Today we are constrained to overrule Minturn and hold that there is no per se exception of agency contracts from admiralty jurisdiction. II Section 1333(1) of Title 8 U.S. C. grants federal district courts jurisdiction over "[a]ny civil case of admiralty or maritime jurisdiction." In determining the boundaries of admiralty jurisdiction, we look to the purpose of the grant. See Insurance As we recently reiterated, the "fundamental interest giving rise to maritime jurisdiction is `the protection of maritime commerce.'" quoting Foremost Ins. This case requires us to determine whether the limits set upon admiralty jurisdiction in Minturn are consistent with that interest. The decision in Minturn has confounded many, and we think the character of that three-paragraph opinion is best appreciated when viewed in its entirety: "The respondents were sued |
Justice Marshall | 1,991 | 15 | majority | Exxon Corp. v. Central Gulf Lines, Inc. | https://www.courtlistener.com/opinion/112609/exxon-corp-v-central-gulf-lines-inc/ | appreciated when viewed in its entirety: "The respondents were sued in admiralty, by process in personam. The libel charges that they are owners of the steamboat Gold Hunter; that they had appointed the libellant their general agent or broker; and exhibits a bill, showing a balance of accounts due libellant for money paid, laid out, and expended for the use of respondents, *609 in paying for supplies, repairs, and advertising of the steamboat, and numerous other charges, together with commissions on the disbursements, &c. "The court below very properly dismissed the libel, for want of jurisdiction. There is nothing in the nature of a maritime contract in the case. The libel shows nothing but a demand for a balance of accounts between agent and principal, for which an action of assumpsit, in a common law court, is the proper remedy. That the money advanced and paid for respondents was, in whole or in part, to pay bills due by a steamboat for repairs or supplies, will not make the transaction maritime, or give the libellant a remedy in admiralty. Nor does the local law of California, which authorizes an attachment of vessels for supplies or repairs, extend to the balance of accounts between agent and principal, who have never dealt on the credit, pledge, or security of the vessel. "The case is too plain for argument." While disagreeing over what sorts of agency contracts fall within Minturn's ambit, lower courts have uniformly agreed that Minturn states a per se rule barring at least some classes of agency contracts from admiralty. See n. 4, supra.[5] Minturn appears to have rested on two rationales: (1) that the agent's claim was nothing more than a "demand for a balance of accounts" which could be remedied at common law through an action of assumpsit; and () that the agent had no contractual or legal right to advance monies "on the credit, pledge, or security of the vessel." The first rationale appears to be an application of the then-accepted rule that "the *610 admiralty has no jurisdiction at all in matters of account between part owners," The Steamboat or in actions in assumpsit for the wrongful withholding of money, see The second rationale appears to be premised on the then-accepted rule that a contract would not be deemed maritime absent a "hypothecation" or a pledge by the vessel's owner of the vessel as security for debts created pursuant to the contract. In other words, to sue in admiralty on a contract, the claimant had to have some form of a lien interest in the vessel, |
Justice Marshall | 1,991 | 15 | majority | Exxon Corp. v. Central Gulf Lines, Inc. | https://www.courtlistener.com/opinion/112609/exxon-corp-v-central-gulf-lines-inc/ | have some form of a lien interest in the vessel, even if the action was one in personam. See e. g., ; see generally, Note, Both of these rationales have since been discredited. In the Court held that an action cognizable as assumpsit would no longer be automatically excluded from admiralty. Rather, "admiralty has jurisdiction, even where the libel reads like indebitatus assumpsit at common law, provided that the unjust enrichment arose as a result of the breach of a maritime contract." Only 16 years after Minturn was decided, the Court also cast considerable doubt on the "hypothecation requirement." In Insurance the Court explained that, in determining whether a contract falls within admiralty, "the true criterion is the nature and subject-matter of the contract, as whether it was a maritime contract, having reference to maritime service or maritime transactions." Several subsequent cases followed this edict of and rejected the relevance of the hypothecation requirement to establishing admiralty jurisdiction. See North Pacific S. S. 9 U.S. 119, ; Detroit Trust[6] Thus, to the extent that Minturn's theoretical underpinnings can be discerned, those foundations are no longer the law of this Court. Minturn's approach to determining admiralty jurisdiction, moreover, is inconsistent with the principle that the "nature and subject-matter" of the contract at issue should be the crucial consideration in assessing admiralty jurisdiction. Insurance While the Minturn Court viewed it as irrelevant "[t]hat the money advanced and paid for respondents was, in whole or in part, to pay bills due by a steamboat for repairs or supplies," the trend in modern admiralty case law, by contrast, is to focus the jurisdictional inquiry upon whether the nature of the transaction was maritime. See e. g., See also Krauss Bros. Lumber 1 Finally, the proposition for which Minturn standsa per se bar of agency contracts from admiraltyill serves the purpose of the grant of admiralty jurisdiction. As noted, the admiralty jurisdiction is designed to protect maritime commerce. See There is nothing in the nature of an agency relationship that necessarily excludes such relationships from the realm of maritime commerce. Rubrics *61 such as "general agent" and "special agent" reveal nothing about whether the services actually performed pursuant to a contract are maritime in nature. It is inappropriate, therefore, to focus on the status of a claimant to determine whether admiralty jurisdiction exists. Sisson, n. We conclude that Minturn is incompatible with current principles of admiralty jurisdiction over contracts and therefore should be overruled. We emphasize that our ruling is a narrow one. We remove only the precedent of Minturn from the body of rules |
Justice Marshall | 1,991 | 15 | majority | Exxon Corp. v. Central Gulf Lines, Inc. | https://www.courtlistener.com/opinion/112609/exxon-corp-v-central-gulf-lines-inc/ | only the precedent of Minturn from the body of rules that have developed over what types of contracts are maritime. Rather than apply a rule excluding all or certain agency contracts from the realm of admiralty, lower courts should look to the subject matter of the agency contract and determine whether the services performed under the contract are maritime in nature. See generally at III There remains the question whether admiralty jurisdiction extends to Exxon's claim regarding the delivery of fuel in Jeddah. We conclude that it does. Like the District Court, we believe it is clear that when Exxon directly supplies marine fuels to Waterman's ships, the arrangement is maritime in nature. See The Golden Gate, cert. denied sub nom. In this case, the only difference between the New York delivery over which the District Court asserted jurisdiction, see n. and the Jeddah delivery was that, in Jeddah, *613 Exxon bought the fuels from a third party and had the third party deliver them to the Hooper. The subject matter of the Jeddah claim, like the New York claim, is the value of the fuel received by the ship. Because the nature and subject-matter of the two transactions are the same as they relate to maritime commerce, if admiralty jurisdiction extends to one, it must extend to the other. North Pacific, at 18[7] We express no view on whether Exxon is entitled to a maritime lien under the Federal Maritime Lien Act. That issue is not before us, and we leave it to be decided on remand. The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | Fully 18 years ago, this Court unanimously held that Title VII of the Civil Rights Act of 1964[1] prohibits employment practices that have discriminatory effects as well as those that are intended to discriminate. Federal courts and agencies consistently have enforced that interpretation, thus promoting our national goal of eliminating barriers that define economic opportunity not by aptitude and ability but by race, color, national *663 origin, and other traits that are easily identified but utterly irrelevant to one's qualification for a particular job.[2] Regrettably, the Court retreats from these efforts in its review of an interlocutory judgment respecting the "peculiar facts" of this lawsuit.[3] Turning a blind eye to the meaning and purpose of Title VII, the majority's opinion perfunctorily rejects a longstanding rule of law and underestimates the probative value of evidence of a racially stratified work force.[4] I cannot join this latest sojourn into judicial activism. *664 I I would have thought it superfluous to recount at this late date the development of our Title VII jurisprudence, but the majority's facile treatment of settled law necessitates such a primer. This Court initially considered the meaning of Title VII in in which a class of utility company employees challenged the conditioning of entry into higher paying jobs upon a high school education or passage of two written tests. Despite evidence that "these two requirements operated to render ineligible a markedly disproportionate number of Negroes,"[5] the Court of Appeals had held that because *665 there was no showing of an intent to discriminate on account of race, there was no Title VII violation. Chief Justice Burger's landmark opinion established that an employer may violate the statute even when acting in complete good faith without any invidious intent.[6] Focusing on 703(a)(2),[7] he explained: "The objective of Congress in the enactment of Title VII is plain from the language of the statute. It was to achieve equality of employment opportunities and remove barriers that have operated in the past to favor an identifiable group of white employees over other employees. Under the Act, practices, procedures, or tests neutral on their face, and even neutral in terms of intent, cannot be maintained if they operate to `freeze' the status quo of prior discriminatory employment practices." 401 U.S., -430. The opinion in made it clear that a neutral practice that operates to exclude minorities is nevertheless lawful if it serves a valid business purpose. "The touchstone is business necessity," the Court stressed. Because "Congress directed the thrust of the Act to the consequences of employment practices, not simply the motivation[,] Congress has placed |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | of employment practices, not simply the motivation[,] Congress has placed on the employer the burden of showing *666 that any given requirement must have a manifest relationship to the employment in question."[8] at 432 (emphasis in original). Congress has declined to act as the Court now sees fit to limit the reach of this "disparate-impact" theory, see ; indeed it has extended its application.[9] This approval lends added force to the holding. The framework, with its focus on ostensibly neutral qualification standards, proved inapposite for analyzing an individual employee's claim, brought under 703(a)(1),[10] that an employer intentionally discriminated on account of race.[11]*667 The means for determining intent absent direct evidence was outlined in McDonnell Douglas and Texas Dept. of Community two opinions written by Justice Powell for unanimous Courts. In such a "disparate-treatment" case, see 431 U. S., at the plaintiff's initial burden, which is "not onerous," is to establish "a prima facie case of racial discrimination," ; that is, to create a presumption of unlawful discrimination by "eliminat[ing] the most common nondiscriminatory reasons for the plaintiff's rejection."[12] "The burden then must shift to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection." ; see Finally, *668 because "Title VII does not permit [the employer] to use [the employee's] conduct as a pretext for the sort of discrimination prohibited by 703(a)(1)," the employee "must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." -805; see While the burdens of producing evidence thus shift, the "ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff."[13] Decisions of this Court and other federal courts repeatedly have recognized that while the employer's burden in a disparate-treatment case is simply one of coming forward with evidence of legitimate business purpose, its burden in a disparate-impact case is proof of an affirmative defense of business necessity.[] Although the majority's opinion blurs *669 that distinction, thoughtful reflection on common-law pleading principles clarifies the fundamental differences between the two types of "burdens of proof."[15] In the ordinary civil trial, the plaintiff bears the burden of persuading the trier of fact that the defendant has harmed her. See, e. g., 2 Restatement (Second) of Torts 328 A, 433 B (1965) (hereinafter Restatement). The defendant may undercut plaintiff's efforts both by confronting plaintiff's evidence during her case in chief and by submitting countervailing evidence during its own case.[16] But if |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | by submitting countervailing evidence during its own case.[16] But if the plaintiff proves the existence of the harmful act, the defendant can escape liability only by persuading the factfinder that the act was justified or excusable. See, e. g., Restatement 454-461, 463-467. The plaintiff in turn may try to refute this affirmative defense. Although the burdens of producing evidence regarding the existence of harm or excuse thus shift between the plaintiff *670 and the defendant, the burden of proving either proposition remains throughout on the party asserting it. In a disparate-treatment case there is no "discrimination" within the meaning of Title VII unless the employer intentionally treated the employee unfairly because of race. Therefore, the employee retains the burden of proving the existence of intent at all times. If there is direct evidence of intent, the employee may have little difficulty persuading the factfinder that discrimination has occurred. But in the likelier event that intent has to be established by inference, the employee may resort to the McDonnell/Burdine inquiry. In either instance, the employer may undermine the employee's evidence but has no independent burden of persuasion. In contrast, intent plays no role in the disparate-impact inquiry. The question, rather, is whether an employment practice has a significant, adverse effect on an identifiable class of workers regardless of the cause or motive for the practice. The employer may attempt to contradict the factual basis for this effect; that is, to prevent the employee from establishing a prima facie case. But when an employer is faced with sufficient proof of disparate impact, its only recourse is to justify the practice by explaining why it is necessary to the operation of business. Such a justification is a classic example of an affirmative defense.[17] *671 Failing to explore the interplay between these distinct orders of proof, the Court announces that our frequent statements that the employer shoulders the burden of proof respecting business necessity "should have been understood to mean an employer's production but not persuasion burden."[18]Ante, at 660. Our opinions always have emphasized that in a disparate-impact case the employer's burden is weighty. "The touchstone," the Court said in "is business necessity." 401 U.S., Later, we held that prison administrators had failed to "rebu[t] the prima facie case of discrimination by showing that the height and weight requirements are essential to effective job performance," Cf. n. I am thus astonished to read that the "touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. [T]here is no requirement that the challenged |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | the challenged practice. [T]here is no requirement that the challenged practice be `essential,' " ante, at 659. This casual almost summary rejection *672 of the statutory construction that developed in the wake of is most disturbing. I have always believed that the opinion correctly reflected the intent of the Congress that enacted Title VII. Even if I were not so persuaded, I could not join a rejection of a consistent interpretation of a federal statute. Congress frequently revisits this statutory scheme and can readily correct our mistakes if we misread its meaning. ; See ; ; see also Rodriguez de Also troubling is the Court's apparent redefinition of the employees' burden of proof in a disparate-impact case. No prima facie case will be made, it declares, unless the employees " `isolat[e] and identif[y] the specific employment practices that are allegedly responsible for any observed statistical disparities.' " Ante, at 656 ). This additional proof requirement is unwarranted.[19] It is elementary that a plaintiff cannot recover upon proof of injury alone; rather, the plaintiff must connect the injury to an act of the defendant in order to establish prima facie that the defendant is liable. E. g., Restatement 430. Although the causal link must have substance, the act *673 need not constitute the sole or primary cause of the harm. 431-433; cf. Price Thus in a disparate-impact case, proof of numerous questionable employment practices ought to fortify an employee's assertion that the practices caused racial disparities.[20] Ordinary principles of fairness require that Title VII actions be tried like "any lawsuit." Cf. U. S. Postal Service Bd. of 7, n. 3 The changes the majority makes today, tipping the scales in favor of employers, are not faithful to those principles. II Petitioners seek reversal of the Court of Appeals and dismissal of this suit on the ground that respondents' statistical evidence failed to prove a prima facie case of discrimination. Brief for Petitioners 48. The District Court concluded "there were `significant disparities' " between the racial composition of the cannery workers and the noncannery workers, but it "made no precise numerical findings" on this and other critical points. See ante, at 650, n. 5. Given this dearth of findings and the Court's newly articulated preference for individualized proof of causation, it would be manifestly unfair to consider respondents' evidence in the aggregate and deem it insufficient. Thus the Court properly rejects petitioners' request for a final judgment and remands for further determination of the strength of respondents' prima facie case. See ante, at 655. Even at this juncture, however, I |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | See ante, at 655. Even at this juncture, however, I believe that respondents' evidence deserves greater credit than the majority allows. *674 Statistical evidence of discrimination should compare the racial composition of employees in disputed jobs to that " `of the qualified population in the relevant labor market.' " Ante, at 650 ). That statement leaves open the definition of the qualified population and the relevant labor market. Our previous opinions, e. g., New York City Transit ; -330; Albemarle Paper ; 430, n. 6, demonstrate that in reviewing statistical evidence, a court should not strive for numerical exactitude at the expense of the needs of the particular case. The District Court's findings of fact depict a unique industry. Canneries often are located in remote, sparsely populated areas of Alaska. 34 EPD ¶ 34,437, p. 33,825 Most jobs are seasonal, with the season's length and the canneries' personnel needs varying not just year to year but day to day. To fill their employment requirements, petitioners must recruit and transport many cannery workers and noncannery workers from States in the Pacific Northwest. Most cannery workers come from a union local based outside Alaska or from Native villages near the canneries. Employees in the noncannery positions the positions that are "at issue" learn of openings by word of mouth; the jobs seldom are posted or advertised, and there is no promotion to noncannery jobs from within the cannery workers' ranks. In general, the District Court found the at-issue jobs to require "skills," ranging from English literacy, typing, and "ability to use seam micrometers, gauges, and mechanic's hand tools" to "good health" and a driver's license.[21] at *675 33,833-33,834. All cannery workers' jobs, like a handful of at-issue positions, are unskilled, and the court found that the intensity of the work during canning season precludes on-the-job training for skilled noncannery positions. It made no findings regarding the extent to which the cannery workers already are qualified for at-issue jobs: individual plaintiffs testified persuasively that they were fully qualified for such jobs,[22] but the court neither credited nor discredited this testimony. Although there are no findings concerning wage differentials, the parties seem to agree that wages for cannery workers are lower than those for noncannery workers, skilled or unskilled. The District Court found that "nearly all" cannery workers are nonwhite, while the percentage of nonwhites employed in the entire Alaska salmon canning industry "has stabilized at about 47% to 50%." The precise stratification of the work force is not described in the findings, but the parties seem to agree that the noncannery |
Justice Stevens | 1,989 | 16 | second_dissenting | Wards Cove Packing Co. v. Atonio | https://www.courtlistener.com/opinion/112270/wards-cove-packing-co-v-atonio/ | findings, but the parties seem to agree that the noncannery jobs are predominantly held by whites. Petitioners contend that the relevant labor market in this case is the general population of the " `external' labor market for the jobs at issue." Brief for Petitioners 17. While they would rely on the District Court's findings in this regard, those findings are ambiguous. At one point the District Court specifies "Alaska, the Pacific Northwest, and California" as "the geographical region from which [petitioners] draw their employees," but its next finding refers to "this relevant geographical area for cannery worker, laborer, and other nonskilled jobs," 34 EPD ¶ 34,437, p. 33,828. There *676 is no express finding of the relevant labor market for noncannery jobs. Even assuming that the District Court properly defined the relevant geographical area, its apparent assumption that the population in that area constituted the "available labor supply," ib is not adequately founded. An undisputed requirement for employment either as a cannery or noncannery worker is availability for seasonal employment in the far reaches of Alaska. Many noncannery workers, furthermore, must be available for preseason work. 33,833-33,834. Yet the record does not identify the portion of the general population in Alaska, California, and the Pacific Northwest that would accept this type of employment.[23] This deficiency respecting a crucial job qualification diminishes the usefulness of petitioners' statistical evidence. In contrast, respondents' evidence, comparing racial compositions within the work force, identifies a pool of workers willing to work during the relevant times and familiar with the workings of the industry. Surely this is more probative than the untailored general population statistics on which petitioners focus. Cf. Hazelwood, 433 U. S., at n. 13; -340, n. 20. *677 Evidence that virtually all the employees in the major categories of at-issue jobs were white,[24] whereas about two-thirds of the cannery workers were nonwhite,[25] may not by itself suffice to establish a prima facie case of discrimination.[26] But such evidence of racial stratification puts the specific employment practices challenged by respondents into perspective. Petitioners recruit employees for at-issue jobs from outside the work force rather than from lower paying, overwhelmingly nonwhite, cannery worker positions. 34 EPD ¶ 34,437, p. 33,828-33,829. Information about availability of at-issue positions is conducted by word of mouth;[27] therefore, *678 the maintenance of housing and mess halls that separate the largely white noncannery work force from the cannery workers, coupled with the tendency toward nepotistic hiring,[28] are obvious barriers to employment opportunities for nonwhites. Putting to one side the issue of business justifications, it would be quite wrong to conclude that |
Justice Burger | 1,983 | 12 | majority | Jones v. Barnes | https://www.courtlistener.com/opinion/111012/jones-v-barnes/ | We granted certiorari to consider whether defense counsel assigned to prosecute an appeal from a criminal conviction has a constitutional duty to raise every nonfrivolous issue requested by the defendant. I In 1976, Richard Butts was robbed at knifepoint by four men in the lobby of an apartment building; he was badly *747 beaten and his watch and money were taken. Butts informed a Housing Authority detective that he recognized one of his assailants as a person known to him as "Froggy," and gave a physical description of the person to the detective. The following day the detective arrested respondent David Barnes, who is known as "Froggy." Respondent was charged with first- and second-degree robbery, second-degree assault, and third-degree larceny. The prosecution rested primarily upon Butts' testimony and his identification of respondent.[1] During cross-examination, defense counsel asked Butts whether he had ever undergone psychiatric treatment; however, no offer of proof was made on the substance or relevance of the question after the trial judge sua sponte instructed Butts not to answer. At the close of trial, the trial judge declined to give an instruction on accessorial liability requested by the defense. The jury convicted respondent of first- and second-degree robbery and second-degree assault. The Appellate Division of the Supreme Court of New York, Second Department, assigned Michael Melinger to represent respondent on appeal. Respondent sent Melinger a letter listing several claims that he felt should be raised.[2] Included were claims that Butts' identification testimony should have been suppressed, that the trial judge improperly excluded psychiatric evidence, and that respondent's trial counsel was ineffective. Respondent also enclosed a copy of a pro se brief he had written. In a return letter, Melinger accepted some but rejected most of the suggested claims, stating that they would not aid *748 respondent in obtaining a new trial and that they could not be raised on appeal because they were not based on evidence in the record. Melinger then listed seven potential claims of error that he was considering including in his brief, and invited respondent's "reflections and suggestions" with regard to those seven issues. The record does not reveal any response to this letter. Melinger's brief to the Appellate Division concentrated on three of the seven points he had raised in his letter to respondent: improper exclusion of psychiatric evidence, failure to suppress Butts' identification testimony, and improper cross-examination of respondent by the trial judge. In addition, Melinger submitted respondent's own pro se brief. Thereafter, respondent filed two more pro se briefs, raising three more of the seven issues Melinger had identified. At oral |
Justice Burger | 1,983 | 12 | majority | Jones v. Barnes | https://www.courtlistener.com/opinion/111012/jones-v-barnes/ | more of the seven issues Melinger had identified. At oral argument, Melinger argued the three points presented in his own brief, but not the arguments raised in the pro se briefs. On May 22, the Appellate Division affirmed by summary order, New The New York Court of Appeals denied leave to appeal, New On August 8, respondent filed a pro se petition for a writ of habeas corpus in the United States District Court for the Eastern District of New York. Respondent raised five claims of error, including ineffective assistance of trial counsel. The District Court held the claims to be without merit and dismissed the petition. United States ex rel. Barnes v. Jones, No. 78-C-1717 The Court of Appeals for the Second Circuit affirmed, In 1980, respondent filed two more challenges in state court. On March 4, 1980, he filed a motion in the trial court for collateral review of his sentence. That motion was denied on April 28, and leave to appeal was denied on October 3. Meanwhile, on March 31, 1980, he filed a petition in the *749 New York Court of Appeals for reconsideration of that court's denial of leave to appeal. In that petition, respondent for the first time claimed that his appellate counsel, Melinger, had provided ineffective assistance. The New York Court of Appeals denied the application on April 16, 1980, New Respondent then returned to United States District Court for the second time, with a petition for habeas corpus based on the claim of ineffective assistance by appellate counsel. The District Court concluded that respondent had exhausted his state remedies, but dismissed the petition, holding that the record gave no support to the claim of ineffective assistance of appellate counsel on "any standard which could reasonably be applied." No. 80-C-2447 reprinted in App. to Pet. for Cert. 28a. The District Court concluded: "It is not required that an attorney argue every conceivable issue on appeal, especially when some may be without merit. Indeed, it is his professional duty to choose among potential issues, according to his judgment as to their merit and his tactical approach." at 28a-29a. A divided panel of the Court of Appeals reversed,[3] Laying down a new standard, the majority held that when "the appellant requests that [his attorney] raise additional colorable points [on appeal], counsel must argue the additional points to the full extent of his professional ability." In the view of the majority, this conclusion followed from In Anders, this Court held that an appointed attorney must advocate his client's cause vigorously and may not withdraw from a |
Justice Burger | 1,983 | 12 | majority | Jones v. Barnes | https://www.courtlistener.com/opinion/111012/jones-v-barnes/ | his client's cause vigorously and may not withdraw from a nonfrivolous appeal. *750 The Court of Appeals majority held that, since Anders bars counsel from abandoning a nonfrivolous appeal, it also bars counsel from abandoning a nonfrivolous issue on appeal. "[A]ppointed counsel's unwillingness to present particular arguments at appellant's request functions not only to abridge defendant's right to counsel on appeal, but also to limit the defendant's constitutional right of equal access to the appellate process" 665 F.2d, The Court of Appeals went on to hold that, "[h]aving demonstrated that appointed counsel failed to argue colorable claims at his request, an appellant need not also demonstrate a likelihood of success on the merits of those claims." The court concluded that Melinger had not met the above standard in that he had failed to press at least two nonfrivolous claims: the trial judge's failure to instruct on accessory liability and ineffective assistance of trial counsel. The fact that these issues had been raised in respondent's own pro se briefs did not cure the error, since "[a] pro se brief is no substitute for the advocacy of experienced counsel." The court reversed and remanded, with instructions to grant the writ of habeas corpus unless the State assigned new counsel and granted a new appeal. Circuit Judge Meskill dissented, stating that the majority had overextended Anders. In his view, Anders concerned only whether an attorney must pursue nonfrivolous appeals; it did not imply that attorneys must advance all nonfrivolous issues. We granted certiorari, and we reverse. II In announcing a new per se rule that appellate counsel must raise every nonfrivolous issue requested by the client,[4]*751 the Court of Appeals relied primarily upon There is, of course, no constitutional right to an appeal, but in and Douglas v. the Court held that if an appeal is open to those who can pay for it, an appeal must be provided for an indigent. It is also recognized that the accused has the ultimate authority to make certain fundamental decisions regarding the case, as to whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal, see ; ABA Standards for Criminal Justice 4-5.2, 21-2.2 (2d ed. 1980). In addition, we have held that, with some limitations, a defendant may elect to act as his or her own advocate, Faretta v. Neither Anders nor any other decision of this Court suggests, however, that the indigent defendant has a constitutional right to compel appointed counsel to press nonfrivolous points requested by the client, if counsel, as a matter of |
Justice Burger | 1,983 | 12 | majority | Jones v. Barnes | https://www.courtlistener.com/opinion/111012/jones-v-barnes/ | requested by the client, if counsel, as a matter of professional judgment, decides not to present those points. This Court, in holding that a state must provide counsel for an indigent appellant on his first appeal as of right, recognized the superior ability of trained counsel in the "examination into the record, research of the law, and marshalling of arguments on [the appellant's] behalf," Douglas v. Yet by promulgating a per se rule that the client, not the professional advocate, must be allowed to decide what issues are to be pressed, the Court of Appeals seriously undermines the ability of counsel to present the client's case in accord with counsel's professional evaluation. Experienced advocates since time beyond memory have emphasized the importance of winnowing out weaker arguments on appeal and focusing on one central issue if possible, *752 or at most on a few key issues. Justice Jackson, after observing appellate advocates for many years, stated: "One of the first tests of a discriminating advocate is to select the question, or questions, that he will present orally. Legal contentions, like the currency, depreciate through over-issue. The mind of an appellate judge is habitually receptive to the suggestion that a lower court committed an error. But receptiveness declines as the number of assigned errors increases. Multiplicity hints at lack of confidence in any one. [E]xperience on the bench convinces me that multiplying assignments of error will dilute and weaken a good case and will not save a bad one." Jackson, Advocacy Before the United States Supreme Court, 25 Temple L. Q. 115, 119 (1951). Justice Jackson's observation echoes the advice of countless advocates before him and since. An authoritative work on appellate practice observes: "Most cases present only one, two, or three significant questions Usually, if you cannot win on a few major points, the others are not likely to help, and to attempt to deal with a great many in the limited number of pages allowed for briefs will mean that none may receive adequate attention. The effect of adding weak arguments will be to dilute the force of the stronger ones." R. Stern, Appellate Practice in the United States 266[5] There can hardly be any question about the importance of having the appellate advocate examine the record with a view to selecting the most promising issues for review. This *753 has assumed a greater importance in an era when oral argument is strictly limited in most courts often to as little as 15 minutes and when page limits on briefs are widely imposed. See, e. g., Fed. |
Justice Burger | 1,983 | 12 | majority | Jones v. Barnes | https://www.courtlistener.com/opinion/111012/jones-v-barnes/ | limits on briefs are widely imposed. See, e. g., Fed. Rule App. Proc. 28(g); McKinney's New York Rules of Court 670.17(g)(2), 670.22 Even in a court that imposes no time or page limits, however, the new per se rule laid down by the Court of Appeals is contrary to all experience and logic. A brief that raises every colorable issue runs the risk of burying good arguments those that, in the words of the great advocate John W. Davis, "go for the jugular," Davis, The Argument of an Appeal, 26 A. B. A. J. 895, 897 (1940) in a verbal mound made up of strong and weak contentions. See generally, e. g., Godbold, Twenty Pages and Twenty Minutes Effective Advocacy on Appeal, 30 Sw. L. J. 801 (1976).[6] This Court's decision in Anders, far from giving support to the new per se rule announced by the Court of Appeals, is to *754 the contrary. Anders recognized that the role of the advocate "requires that he support his client's appeal to the best of his ability." Here the appointed counsel did just that. For judges to second-guess reasonable professional judgments and impose on appointed counsel a duty to raise every "colorable" claim suggested by a client would disserve the very goal of vigorous and effective advocacy that underlies Anders. Nothing in the Constitution or our interpretation of that document requires such a standard.[7] The judgment of the Court of Appeals is accordingly Reversed. JUSTICE BLACKMUN, concurring in the judgment. |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | Respondent, the owner of a tract of land it was developing as a residential subdivision, sued petitioners, the Williamson County (Tennessee) Regional Planning Commission and its members and staff, in United District Court, alleging that petitioners' application of various zoning laws and regulations to respondent's property amounted to a "taking" of that At trial, the jury agreed and awarded respondent $50,000 as just compensation for the "taking." Although the jury's verdict was rejected by the District Court, which granted a judgment notwithstanding the verdict to petitioners, the verdict was reinstated on appeal. Petitioners and their amici urge this Court to overturn the jury's award on the ground that a temporary regulatory interference with an investor's profit expectation does not constitute a "taking" within the meaning of the Just Compensation Clause of the Fifth Amendment,[1] or, alternatively, on the ground that even if such interference does constitute a taking, the Just Compensation Clause does not require money damages as recompense. Before we reach those contentions, *176 we examine the procedural posture of respondent's claim. I A Under Tennessee law, responsibility for land-use planning is divided between the legislative body of each of the State's counties and regional and municipal "planning commissions." The county legislative body is responsible for zoning ordinances to regulate the uses to which particular land and buildings may be put, and to control the density of population and the location and dimensions of buildings. The planning commissions are responsible for more specific regulations governing the subdivision of land within their region or municipality for residential development. 1--40, 1-4-0. Enforcement of both the zoning ordinances and the subdivision regulations is accomplished in part through a requirement that the planning commission approve the plat of a subdivision before the plat may be recorded. 1--402, 1-4-02 Pursuant to 1-7-101, the Williamson County "Quarterly Court," which is the county's legislative body, in 197 adopted a zoning ordinance that allowed "cluster" development of residential areas. Under "cluster" zoning, "both the size and the width of individual residential lots in [a] development may be reduced, provided that the overall density of the entire tract remains constant provided, that is, that an area equivalent to the total of the areas thus `saved' from each individual lot is pooled and retained as common open space." 2 N. Williams, American Land Planning Law 47.01, pp. 2- Cluster zoning thus allows housing units to be grouped, or "clustered" together, rather than being evenly spaced on uniform lots. *177 As required by 1--402, respondent's predecessor-in-interest (developer) in 197 submitted a preliminary plat for the cluster development of its |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | submitted a preliminary plat for the cluster development of its tract, the Temple Hills Country Club Estates (Temple Hills), to the Williamson County Regional Planning Commission for approval. At that time, the county's zoning ordinance and the Commission's subdivision regulations required developers to seek review and approval of subdivision plats in two steps. The developer first was to submit for approval a preliminary plat, or "initial sketch plan," indicating, among other things, the boundaries and acreage of the site, the number of dwelling units and their basic design, the location of existing and proposed roads, structures, lots, utility layouts, and open space, and the contour of the land. App. in No. 82-588 (CA6), pp. 857, 871 (CA App.). Once approved, the preliminary plat served as a basis for the preparation of a final plat. Under the Commission's regulations, however, approval of a preliminary plat "will not constitute acceptance of the final plat." Approval of a preliminary plat lapsed if a final plat was not submitted within one year of the date of the approval, unless the Commission granted an extension of time, or unless the approval of the preliminary plat was renewed. The final plat, which is the official authenticated document that is recorded, was required to conform substantially to the preliminary plat, and, in addition, to include such details as the lines of all streets, lots, boundaries, and building setbacks. On May 197, the Commission approved the developer's preliminary plat for Temple Hills. App. 246-247. The plat indicated that the development was to include 676 acres, of which 260 acres would be open space, primarily in the form of a golf course. A notation on the plat indicated that the number of "allowable dwelling units for total development" was 76, but lot lines were drawn in for only 469 units. The areas in which the remaining 276 units were to be placed were left blank and bore the notation "this parcel not to be developed until approved by the planning commission." *178 The plat also contained a disclaimer that "parcels with note `this parcel not to be developed until approved by the planning commission' not a part of this plat and not included in gross area." The density of 76 allowable dwelling units was calculated by multiplying the number of acres (676) by the number of units allowed per acre (1.089). Although the zoning regulations in effect in 197 required that density be calculated "on the basis of total acreage less fifty percent (50%) of the land lying in the flood plain and less fifty percent (50%) of all |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | the flood plain and less fifty percent (50%) of all land lying on a slope with a grade in excess of twenty-five percent (25%)," CA App. 858, no deduction was made from the 676 acres for such land. Tr. 69. Upon approval of the preliminary plat, the developer conveyed to the county a permanent open space easement for the golf course, and began building roads and installing utility lines for the project. App. 259-260. The developer spent approximately $ million building the golf course, and another $500,000 installing sewer and water facilities. Defendant's Ex. 96. Before housing construction was to begin on a particular section, a final plat of that section was submitted for approval. Several sections, containing a total of 2 units, were given final approval by App. 260, 270, 278, 42. The preliminary plat, as well, was reapproved four times during that period. In 1977, the county changed its zoning ordinance to require that calculations of allowable density exclude 10% of the total acreage to account for roads and utilities. ; CA App. 862. In addition, the number of allowable units was changed to one per acre from the 1.089 per acre allowed in 197. ; Tr. 1169-1170, 11. The Commission continued to apply the zoning ordinance and subdivision regulations in effect in 197 to Temple Hills, however, and reapproved the preliminary plat in 1978. In August the Commission reversed its position and decided that plats submitted for renewal should be evaluated under the zoning *179 ordinance and subdivision regulations in effect when the renewal was sought. App. 279-282. The Commission then renewed the Temple Hills plat under the ordinances and regulations in effect at that time. In January 1980, the Commission asked the developer to submit a revised preliminary plat before it sought final approval for the remaining sections of the subdivision. The Commission reasoned that this was necessary because the original preliminary plat contained a number of surveying errors, the land available in the subdivision had been decreased inasmuch as the State had condemned part of the land for a parkway, and the areas marked "reserved for future development" had never been platted. Plaintiff's Exs. 1078 and 1079; Tr. 164-. A special committee (Temple Hills Committee) was appointed to work with the developer on the revision of the preliminary plat. Plaintiff's Ex. 1081; Tr. 169-170. The developer submitted a revised preliminary plat for approval in October 1980.[2] Upon review, the Commission's staff and the Temple Hills Committee noted several problems with the revised plat. App. 04-05. First, the allowable density under the zoning ordinance and subdivision |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | First, the allowable density under the zoning ordinance and subdivision regulations then in effect was 548 units, rather than the 76 units claimed under the preliminary plat approved in 197. The difference reflected a decrease in 18.5 acres for the parkway, a decrease of 66 acres for the 10% deduction for roads, and an exclusion of 44 acres for 50% of the land lying on slopes exceeding a 25% grade. Second, two cul-de-sac roads that had become necessary because of the land taken for the parkway exceeded the maximum length allowed for such roads under the subdivision regulations in effect in both 1980 and 197. *180 Third, approximately 2,000 feet of road would have grades in excess of the maximum allowed by county road regulations. Fourth, the preliminary plat placed units on land that had grades in excess of 25% and thus was considered undevelopable under the zoning ordinance and subdivision regulations. Fifth, the developer had not fulfilled its obligations regarding the construction and maintenance of the main access road. Sixth, there were inadequate fire protection services for the area, as well as inadequate open space for children's recreational activities. Finally, the lots proposed in the preliminary plat had a road frontage that was below the minimum required by the subdivision regulations in effect in 1980. The Temple Hills Committee recommended that the Commission grant a waiver of the regulations regarding the length of the cul-de-sacs, the maximum grade of the roads, and the minimum frontage requirement. Without addressing the suggestion that those three requirements be waived, the Commission disapproved the plat on two other grounds: first, the plat did not comply with the density requirements of the zoning ordinance or subdivision regulations, because no deduction had been made for the land taken for the parkway, and because there had been no deduction for 10% of the acreage attributable to roads or for 50% of the land having a slope of more than 25%; and second, lots were placed on slopes with a grade greater than 25%. Plaintiff's Ex. 9112. The developer then appealed to the County Board of Zoning Appeals for an "interpretation of the Residential Cluster zoning [ordinance] as it relates to Temple Hills."[] App. 14. *181 On November 11, 1980, the Board determined that the Commission should apply the zoning ordinance and subdivision regulations that were in effect in 197 in evaluating the density of Temple Hills. It also decided that in measuring which lots had excessive grades, the Commission should define the slope in a manner more favorable to the developer. On November 26, respondent, Hamilton |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | more favorable to the developer. On November 26, respondent, Hamilton Bank of Johnson acquired through foreclosure the property in the Temple Hills subdivision that had not yet been developed, a total of 257.65 acres. This included many of the parcels that had been left blank in the preliminary plat approved in 197. In June respondent submitted two preliminary plats to the Commission the plat that had been approved in 197 and subsequently reapproved several times, and a plat indicating respondent's plans for the undeveloped areas, which was similar to the plat submitted by the developer in 1980. The new plat proposed the development of 688 units; the reduction from 76 units represented respondent's concession that 18.5 acres should be removed from the acreage because that land had been taken for the parkway. On June 18, the Commission disapproved the plat for eight reasons, including the density and grade problems cited in the October 1980 denial, as well as the objections the Temple Hills Committee had raised in 1980 to the length of two cul-de-sacs, the grade of various roads, the lack of fire protection, the disrepair of the main-access road, and the minimum frontage. The Commission declined to follow the decision of the Board of Zoning Appeals that the plat *182 should be evaluated by the 197 zoning ordinance and subdivision regulations, stating that the Board lacked jurisdiction to hear appeals from the Commission. B Respondent then filed this suit in the United District Court for the Middle District of Tennessee, pursuant to 42 U.S. C. 19, alleging that the Commission had taken its property without just compensation and asserting that the Commission should be estopped under state law from denying approval of the project.[4] Respondent's expert witnesses testified that the design that would meet each of the Commission's eight objections would allow respondent to build only 67 units, 409 fewer than respondent claims it is entitled to build,[5] and that the development of only 67 sites would result in a net loss of over $1 million. App. 77. Petitioners' expert witness, on the other hand, testified that the Commission's eight objections could be overcome by a design that would allow development of approximately 00 units. Tr. 1467-1468. After a -week trial, the jury found that respondent had been denied the "economically viable" use of its property in violation of the Just Compensation Clause, and that the Commission was estopped under state law from requiring respondent to comply with the current zoning ordinance and *1 subdivision regulations rather than those in effect in 197. App. 2-. The jury awarded |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | those in effect in 197. App. 2-. The jury awarded damages of $50,000 for the temporary taking of respondent's[6] The court entered a permanent injunction requiring the Commission to apply the zoning ordinance and subdivision regulations in effect in 197 to Temple Hills, and to approve the plat submitted in The court then granted judgment notwithstanding the verdict in favor of the Commission on the taking claim, reasoning in part that respondent was unable to derive economic benefit from its property on a temporary basis only, and that such a temporary deprivation, as a matter of law, cannot constitute a taking. In addition, the court modified its permanent injunction to require the Commission merely to apply the zoning ordinance and subdivision regulations in effect in 197 to the project, rather than requiring approval of the plat, in order to allow the parties to resolve "legitimate technical questions of whether plaintiff meets the requirements of the 197 regulations," through the applicable state and local appeals procedures.[7] A divided panel of the United Court of Appeals for the Sixth Circuit reversed. The court *184 held that application of government regulations affecting an owner's use of property may constitute a taking if the regulation denies the owner all "economically viable" use of the land, and that the evidence supported the jury's finding that the property had no economically feasible use during the time between the Commission's refusal to approve the preliminary plat and the jury's verdict. Rejecting petitioners' argument that respondent never had submitted a plat that complied with the 197 regulations, and thus never had acquired that could be taken, the court held that the jury's estoppel verdict indicates that the jury must have found that respondent had acquired a "vested right" under state law to develop the subdivision according to the plat submitted in 197. Even if respondent had no vested right under state law to finish the development, the jury was entitled to find that respondent had a reasonable investment-backed expectation that the development could be completed, and that the actions of the Commission interfered with that expectation. The court rejected the District Court's holding that the taking verdict could not stand as a matter of law. A temporary denial of property could be a taking, and was to be analyzed in the same manner as a permanent taking. Finally, relying upon the dissent in San Gas & Electric the court determined that damages are required to compensate for a temporary taking.[8] *185 II We granted certiorari to address the question whether Federal, State, and local Governments must pay money |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | question whether Federal, State, and local Governments must pay money damages to a landowner whose property allegedly has been "taken" temporarily by the application of government regulations. Petitioners and their amici contend that we should answer the question in the negative by ruling that government regulation can never effect a "taking" within the meaning of the Fifth Amendment. They recognize that government regulation may be so restrictive that it denies a property owner all reasonable beneficial use of its property, and thus has the same effect as an appropriation of the property for public use, which concededly would be a taking under the Fifth Amendment. According to petitioners, however, regulation that has such an effect should not be viewed as a taking. Instead, such regulation should be viewed as a violation of the Fourteenth Amendment's Due Process Clause, because it is an attempt by government to use its police power to effect a result that is so unduly oppressive to the property owner that it constitutionally can be effected only through the power of eminent domain. Violations of the Due Process Clause, petitioners' argument concludes, need not be remedied by "just compensation." The Court twice has left this issue undecided. San Gas & Electric Once again, we find that the question is not properly presented, and must be left for another day. For whether we examine the Planning Commission's application of its regulations under Fifth Amendment "taking" jurisprudence, or under the precept of due process, we conclude that respondent's claim is premature. *186 III We examine the posture of respondent's cause of action first by viewing it as stating a claim under the Just Compensation Clause. This Court often has referred to regulation that "goes too far," Pennsylvania Coal as a "taking." See, e. g., ; ; Prune Yard Shopping ; Kaiser ; ; Penn Central Transp. ; ; United Even assuming that those decisions meant to refer literally to the Taking Clause of the Fifth Amendment, and therefore stand for the proposition that regulation may effect a taking for which the Fifth Amendment requires just compensation, see San -65 and even assuming further that the Fifth Amendment requires the payment of money damages to compensate for such a taking, the jury verdict in this case cannot be upheld. Because respondent has not yet obtained a final decision regarding the application of the zoning ordinance and subdivision regulations to its property, nor utilized the procedures Tennessee provides for obtaining just compensation, respondent's claim is not ripe. A As the Court has made clear in several recent decisions, a claim that |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | has made clear in several recent decisions, a claim that the application of government regulations effects a taking of a property interest is not ripe until the government entity charged with implementing the regulations has reached a final decision regarding the application of the regulations to the property at issue. In for example, the Court rejected a claim that the Surface Mining Control and Reclamation Act of 1977, 0 U.S. C. 1201 et seq., effected a taking because: "There is no indication in the record that appellees have availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting either a variance from the approximate-original-contour requirement of 515(d) or a waiver from the surface mining restrictions in 522(e). If [the property owners] were to seek administrative relief under these procedures, a mutually acceptable solution might well be reached with regard to individual properties, thereby obviating any need to address the constitutional questions. The potential for such administrative solutions confirms the conclusion that the taking issue decided by the District Court simply is not ripe for judicial resolution." Similarly, in the Court held that a challenge to the application of a zoning ordinance was not ripe because the property owners had not yet submitted a plan for development of their In Penn Central Transp. the Court declined to find that the application of New York 's Landmarks Preservation Law to Grand Central Terminal effected a taking because, although the Landmarks Preservation Commission had disapproved a plan for a 50-story office building above the terminal, the property owners had not sought approval for any other plan, and it therefore was not clear whether the Commission would deny approval for all uses that would enable the plaintiffs to derive economic benefit from the -17. Respondent's claim is in a posture similar to the claims the Court held premature in Hodel. Respondent has submitted a plan for developing its property, and thus has passed beyond the Agins threshold. But, like the Hodel plaintiffs, *188 respondent did not then seek variances that would have allowed it to develop the property according to its proposed plat, notwithstanding the Commission's finding that the plat did not comply with the zoning ordinance and subdivision regulations. It appears that variances could have been granted to resolve at least five of the Commission's eight objections to the plat. The Board of Zoning Appeals had the power to grant certain variances from the zoning ordinance, including the ordinance's density requirements and its restriction on placing units on land with slopes having a grade in excess of 25%. |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | land with slopes having a grade in excess of 25%. Tr. 1204-1205; see n. The Commission had the power to grant variances from the subdivision regulations, including the cul-de-sac, road-grade, and frontage requirements.[9] Indeed, the Temple Hills Committee had recommended that the Commission grant variances from those regulations. App. 04-06. Nevertheless, respondent did not seek variances from either the Board or the Commission. Respondent argues that it "did everything possible to resolve the conflict with the commission," Brief for Respondent 42, and that the Commission's denial of approval for respondent's plat was equivalent to a denial of variances. The record does not support respondent's claim, however. There is no evidence that respondent applied to the Board of Zoning Appeals for variances from the zoning ordinance. As noted, the developer sought a ruling that the ordinance in effect in 197 should be applied, but neither respondent nor the developer *189 sought a variance from the requirements of either the 197 or 1980 ordinances. Further, although the subdivision regulations in effect in required that applications to the Commission for variances be in writing, and that notice of the application be given to owners of adjacent property,[10] the record contains no evidence that respondent ever filed a written request for variances from the cul-de-sac, road-grade, or frontage requirements of the subdivision regulations, or that respondent ever gave the required notice.[11] App. 2-; see also Tr. 1255-1257. *190 Indeed, in a letter to the Commission written shortly before its June 18, meeting to consider the preliminary sketch, respondent took the position that it would not request variances from the Commission until after the Commission approved the proposed plat: "[Respondent] stands ready to work with the Planning Commission concerning the necessary variances. Until the initial sketch is renewed, however, and the developer has an opportunity to do detailed engineering work it is impossible to determine the exact nature of any variances that may be needed." Plaintiff's Ex. 9028, p. 6. The Commission's regulations clearly indicated that unless a developer applied for a variance in writing and upon notice to other property owners, "any condition shown on the plat which would require a variance will constitute grounds for disapproval of the plat." CA App. 9. Thus, in the face of respondent's refusal to follow the procedures for requesting a variance, and its refusal to provide specific information about the variances it would require, respondent hardly can maintain that the Commission's disapproval of the preliminary plat was equivalent to a final decision that no variances would be granted. As in Hodel, Agins, and Penn Central, then, respondent |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | granted. As in Hodel, Agins, and Penn Central, then, respondent has not yet obtained a final decision regarding how it will be allowed to develop its Our reluctance to examine taking claims until such a final decision has been made is compelled by the very nature of the inquiry required by the Just Compensation Clause. Although "[t]he question of what constitutes a `taking' for purposes of the Fifth Amendment has proved to be a problem of considerable difficulty," *191 Penn Central Transp. 48 U. S., at 12, this Court consistently has indicated that among the factors of particular significance in the inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations. at See also ; PruneYard Shopping 447 U. S., at ; Kaiser Those factors simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question. Here, for example, the jury's verdict indicates only that it found that respondent would be denied the economically feasible use of its property if it were forced to develop the subdivision in a manner that would meet each of the Commission's eight objections. It is not clear whether the jury would have found that the respondent had been denied all reasonable beneficial use of the property had any of the eight objections been met through the grant of a variance. Indeed, the expert witness who testified regarding the economic impact of the Commission's actions did not itemize the effect of each of the eight objections, so the jury would have been unable to discern how a grant of a variance from any one of the regulations at issue would have affected the profitability of the development. App. 77; see also Accordingly, until the Commission determines that no variances will be granted, it is impossible for the jury to find, on this record, whether respondent "will be unable to derive economic benefit" from the land.[12] *192 Respondent asserts that it should not be required to seek variances from the regulations because its suit is predicated upon 42 U.S. C. 19, and there is no requirement that a plaintiff exhaust administrative remedies before bringing a 19 action. The question whether administrative remedies must be exhausted is conceptually distinct, however, from the question whether an administrative action must be final before it is judicially reviewable. See FTC v. Standard Oil 449 U.S. 22, 24 ; Bethlehem Steel 669 F.2d 90, See generally 1A C. Wright, A. Miller, & |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | F.2d 90, See generally 1A C. Wright, A. Miller, & E. Cooper, Federal Practice and *19 Procedure 52.6 While the policies underlying the two concepts often overlap, the finality requirement is concerned with whether the initial decisionmaker has arrived at a definitive position on the issue that inflicts an actual, concrete injury; the exhaustion requirement generally refers to administrative and judicial procedures by which an injured party may seek review of an adverse decision and obtain a remedy if the decision is found to be unlawful or otherwise inappropriate. Patsy concerned the latter, not the former. The difference is best illustrated by comparing the procedure for seeking a variance with the procedures that, under Patsy, respondent would not be required to exhaust. While it appears that the State provides procedures by which an aggrieved property owner may seek a declaratory judgment regarding the validity of zoning and planning actions taken by county authorities, see 656 S.W.2d 8 (Tenn. 19); Tenn. Code Ann. 27-8-101, 27-9-101 to 27-9-11, and XX-XX-XXX to XX-XX-XXX respondent would not be required to resort to those procedures before bringing its 19 action, because those procedures clearly are remedial. Similarly, respondent would not be required to appeal the Commission's rejection of the preliminary plat to the Board of Zoning Appeals, because the Board was empowered, at most, to review that rejection, not to participate in the Commission's decisionmaking. Resort to those procedures would result in a judgment whether the Commission's actions violated any of respondent's In contrast, resort to the procedure for obtaining variances would result in a conclusive determination by the Commission whether it would allow respondent to develop the subdivision in the manner respondent proposed. The Commission's refusal to approve the preliminary plat does not determine that issue; it prevents respondent from developing its subdivision without obtaining the necessary variances, but leaves open the possibility that respondent *194 may develop the subdivision according to its plat after obtaining the variances. In short, the Commission's denial of approval does not conclusively determine whether respondent will be denied all reasonable beneficial use of its property, and therefore is not a final, reviewable decision. B A second reason the taking claim is not yet ripe is that respondent did not seek compensation through the procedures the State has provided for doing so.[1] The Fifth Amendment does not proscribe the taking of property; it proscribes taking without just compensation. n. 40. Nor does the Fifth Amendment require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a " `reasonable, certain |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | all that is required is that a " `reasonable, certain and adequate provision for obtaining compensation' " exist at the time of the taking. Regional Rail Reorganization Act Cases, -125 ). See also ; Yearsley v. W. A. Ross Construction 09 U.S. 18, ; (192). If the government has provided an adequate process for obtaining compensation; and if resort to that process "yield[s] just compensation," then the property owner "has no claim against *195 the Government" for a taking. 467 U. S., at 101, 1018, n. Thus, we have held that taking claims against the Federal Government are premature until the property owner has availed itself of the process provided by the Tucker Act, 28 U.S. C. 1491. -1020. Similarly, if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation. The recognition that a property owner has not suffered a violation of the Just Compensation Clause until the owner has unsuccessfully attempted to obtain just compensation through the procedures provided by the State for obtaining such compensation is analogous to the Court's holding in There, the Court ruled that a person deprived of property through a random and unauthorized act by a state employee does not state a claim under the Due Process Clause merely by alleging the deprivation of In such a situation, the Constitution does not require predeprivation process because it would be impossible or impracticable to provide a meaningful hearing before the deprivation. Instead, the Constitution is satisfied by the provision of meaningful postdeprivation process. Thus, the State's action is not "complete" in the sense of causing a constitutional injury "unless or until the state fails to provide an adequate postdeprivation remedy for the property loss." 52, n. 12 Likewise, because the Constitution does not require pretaking compensation, and is instead satisfied by a reasonable and adequate provision for obtaining compensation after the taking, the State's action here is not "complete" until the State fails to provide adequate compensation for the taking.[14] *196 Under Tennessee law, a property owner may bring an inverse condemnation action to obtain just compensation for an alleged taking of property under certain circumstances. Tenn. Code Ann. -16-12 The statutory scheme for eminent domain proceedings outlines the procedures by which government entities must exercise the right of eminent domain. -16-101 to XX-XX-XXX. The State is prohibited from "enter[ing] upon [condemned] land" until these procedures have been utilized and compensation has been paid the owner, -16-122, but if a government |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | has been paid the owner, -16-122, but if a government entity does take possession of the land without following the required procedures, "the owner of such land may petition for a jury of inquest, in which case the same proceedings may be had, as near as may be, as hereinbefore provided; or he may sue for damages in the ordinary way" -16-12. The Tennessee state courts have interpreted -16-12 to allow recovery through inverse condemnation where the "taking" is effected by restrictive zoning laws or development regulations. See 620 S.W.2d 52, 5-54 ; Respondent *197 has not shown that the inverse condemnation procedure is unavailable or inadequate, and until it has utilized that procedure, its taking claim is premature. IV We turn to an analysis of respondent's claim under the due process theory that petitioners espouse. As noted, under that theory government regulation does not effect a taking for which the Fifth Amendment requires just compensation; instead, regulation that goes so far that it has the same effect as a taking by eminent domain is an invalid exercise of the police power, violative of the Due Process Clause of the Fourteenth Amendment. Should the government wish to accomplish the goals of such regulation, it must proceed through the exercise of its eminent domain power, and, of course, pay just compensation for any property taken. The remedy for a regulation that goes too far, under the due process theory, is not "just compensation," but invalidation of the regulation, and if authorized and appropriate, actual damages.[15] The notion that excessive regulation can constitute a "taking" under the Just Compensation Clause stems from language in Pennsylvania Coal See San Writing for the Pennsylvania Coal Court, Justice Holmes stated: "The general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking." 260 U.S., at Those who argue that excessive regulation should be considered a violation of the Due Process Clause rather than a "taking" assert that Pennsylvania Coal used the word "taking" not in the literal Fifth Amendment sense, but as a metaphor for actions having the same effect as a taking by eminent domain. See, e. g., Agins v. of 24 Cal. d 266, aff'd, ; Fred F. French Investing v. of New York, 9 N.Y. 2d 587, 50 N.E.2d 81, 85 Because no issue was presented in Pennsylvania Coal regarding compensation, it is argued, the Court was free to use the term loosely.[16] The due process argument finds support, we are told, in the fact that |
Justice Blackmun | 1,985 | 11 | majority | Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City | https://www.courtlistener.com/opinion/111501/williamson-county-regional-planning-commn-v-hamilton-bank-of-johnson-city/ | argument finds support, we are told, in the fact that the Pennsylvania Coal Court framed the question presented as "whether the police power can be stretched so far" as to destroy property 260 U.S., at 41, and by the Court's emphasis upon the need to proceed by eminent domain rather than by regulation when the effect of the regulation would be to destroy property interests: "Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power. But *199 obviously the implied limitation must have its limits, or the contract and due process clauses are gone. One fact for consideration in determining such limits is the extent of the diminution. When it reaches a certain magnitude, in most if not in all cases there must be an exercise of eminent domain and compensation to sustain the act." Further, in earlier cases involving the constitutional limitations on the exercise of police power, Justice Holmes' opinions for the Court made clear that the Court did not view overly restrictive regulation as triggering an award of compensation, but as an invalid means of accomplishing what constitutionally can be accomplished only through the exercise of eminent domain. See, e. g., 256 U.S. 15, (19); Hudson County Water v. McCarter, 209 U.S. 49, 55 (1); 205 U.S. 15, 19 We need not pass upon the merits of petitioners' arguments, for even if viewed as a question of due process, respondent's claim is premature. Viewing a regulation that "goes too far" as an invalid exercise of the police power, rather than as a "taking" for which just compensation must be paid, does not resolve the difficult problem of how to define "too far," that is, how to distinguish the point at which regulation becomes so onerous that it has the same effect as an appropriation of the property through eminent domain or physical possession.[17] As we have noted, resolution of that *200 question depends, in significant part, upon an analysis of the effect the Commission's application of the zoning ordinance and subdivision regulations had on the value of respondent's property and investment-backed profit expectations. That effect cannot be measured until a final decision is made as to how the regulations will be applied to respondent's No such decision had been made at the time respondent filed its 19 action, because respondent failed to apply for variances from the regulations. V In sum, respondent's |
Justice Thomas | 1,999 | 1 | second_dissenting | Minnesota v. Mille Lacs Band of Chippewa Indians | https://www.courtlistener.com/opinion/118273/minnesota-v-mille-lacs-band-of-chippewa-indians/ | I join The Chief Justice 2122s dissent, but write separately because contrary to the majority's assertion, in dicta, *221 ante, at 204, our prior cases do not dictate the conclusion that the 1837 Treaty curtails Minnesota's regulatory authority. As the Court has ruled today that the Chippewa retain the privilege to hunt, fish, and gather on the land they ceded in the 1837 Treaty, the question of the scope of the State's regulatory power over the Chippewas' exercise of those privileges assumes great significanceany limitations that the Federal Treaty may impose upon Minnesota's sovereign authority over its natural resources exact serious federalism costs. The questions presented, however, do not require the Court to decide whether the 1837 Treaty limits the State's regulatory authority in any way. All that they require is a judgment as to whether the usufructuary privileges at issue survive three potentially extinguishing events: President Taylor's 1850 Executive Order, the 1855 Treaty, and Minnesota's admission to the Union in 1858. The Court nevertheless offers the following observation: "Here, the 1837 Treaty gave the Chippewa the right to hunt, fish, and gather in the ceded territory free of ter- ritorial, and later state, regulation, a privilege that others did not enjoy. Today, this freedom from state regulation curtails the State's ability to regulate hunt- ing, fishing, and gathering by the Chippewa in the ceded lands. " Ante, at 204 (emphases added). In light of the importance of this federalism question, the Court should not pass on it, even in dicta, without the benefit of the parties' briefing and argument. But as the Court has done so, I think it important to explain my disagreement with the italicized propositions. The plain language of the 1837 Treaty says nothing about territorial, let alone future state, regulation. The historical evidence that the Court reviews, ante, at 176-178, to the extent that it is relevant, is likewise silent as to whether the Chippewa expected to be subject to any form of regulation *222 in the exercise of their reserved treaty privileges. The historical evidence certainly indicates that the Chippewa desired the privilege of access to the land they were ceding. But the 1837 Journal of Treaty Negotiations does not show that the Chippewa demanded access to the land on any particular terms. See App. 70-78. Indeed, the Court retreats from its assertion that the 1837 Treaty gave the Chippewa an unlimited right to hunt, fish, and gather free from regulation when it states: "We have repeatedly reaffirmed state authority to impose reasonable and necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights |
Justice Thomas | 1,999 | 1 | second_dissenting | Minnesota v. Mille Lacs Band of Chippewa Indians | https://www.courtlistener.com/opinion/118273/minnesota-v-mille-lacs-band-of-chippewa-indians/ | necessary nondiscriminatory regulations on Indian hunting, fishing, and gathering rights in the interest of conservation." Ante, at 205. If the 1837 Treaty gives the Chippewa a right to be free from state regulation, why may Minnesota impose any regulations, reasonable and necessary or otherwise? The Court's answer to that question is that our prior decisions have established that Indians never have "`absolute freedom,' " ante, at 204, from state regulation, no matter what a treaty might say; rather, Indians' hunting, fishing, and gathering activities are limited by those state regulations which are necessary for ensuring the conservation of natural resources. To be sure, Indians do not have absolute freedom from state regulation of their off-reservation activities. Indeed, the general rule is that the off-reservation activities of Indians are subject to a State's nondiscriminatory laws, absent express federal law to the contrary. See, e. g., Oregon Dept. of Fish and ; New The majority, however, overlooks the fact that the scope of a State's regulatory authority depends upon the language of the treaty in question. At a minimum, States may issue and enforce those regulations of Indians' off-reservation usufructuary activities that are necessary in the interest of conservation. Our decisions suggest that state regulatory authority is so limited when, with *223 the treaty in question, the Indians reserved a right to fish, hunt, or gather on ceded lands. But it is doubtful that the so-called "conservation necessity" standard applies in cases, such as this one, where Indians reserved no more than a privilege to hunt, fish, and gather. The conservation necessity standard appears to have its origin in In the 1859 Treaty with the Yakima Indians, the Yakima reserved "`the right of taking fish at all usual and accustomed places, in common with citizens of the Territory.' " (quoting ). The Court held that Washington State had the "power to impose on Indians, equally with others, such restrictions of apurely regulatory nature concerning the time and manner of fishing outside the reservation as are necessary for the conservation of fish, " but that the Treaty foreclosed "the state from charging the Indians a fee of the kind in question." Its conclusion was driven by the language of the Treaty as well as the report of the treaty negotiations and what it revealed to be the Yakimas' understanding of the Treatyto preserve their right "to hunt and fish in accordance with the immemorial customs of their tribes. "[1] Subsequent decisions evaluating state regulation by the conservation necessity standard similarly focused upon the language of the Treaty or agreement at issue and the |
Justice Thomas | 1,999 | 1 | second_dissenting | Minnesota v. Mille Lacs Band of Chippewa Indians | https://www.courtlistener.com/opinion/118273/minnesota-v-mille-lacs-band-of-chippewa-indians/ | language of the Treaty or agreement at issue and the Indians' understanding of the Treaty as revealed by the historical evidence. See ; Puyallup ; see Most important, all the cases that the majority cites in support of the proposition that States may enforce against Indians in their exercise of off-reservation usufructuary activities only those regulations necessary for purposes of conservation, ante, at 204-205, involved the same or substantially similar treaty language reserving a right to hunt or fish. And all but Antoine provided that the Indians could exercise their reserved rights at the usual and accustomed places. In New York ex rel. the Court considered significantly different language. The Big Tree Treaty of 1797, as the agreement was known, provided that the Seneca were to retain "the privilege of fishing and hunting on the said tract of land" conveyed by the agreement. ; see The Court characterized the Senecas' claim as one "sought to be maintained in derogation of the sovereignty of the State." In rejecting such a claim, it stated: "[I]t can hardly be supposed that the thought of the Indians was concerned with the necessary exercise of inherent power under modern conditions for the preservation of wild life. But the existence of the sovereignty of the State was well understood, and this conception involved all that was necessarily implied in that sovereignty, whether fully appreciated or not. We do not think that it is a proper construction of the reservation in the conveyance to regard it as an attempt either to *225 reserve sovereign prerogative or so to divide the inherent power of preservation as to make its competent exercise impossible. Rather we are of the opinion that the clause is fully satisfied by considering it a reservation of a privilege of fishing and hunting upon the granted lands in common with the grantees, and others to whom the privilege might be extended, but subject nevertheless to that necessary power of appropriate reg- ulation, as to all those privileged, which inhered in the sovereignty of the State over the lands where the privi- lege was exercised. " The only fair reading of Kennedy is that the Treaty reserved for the Seneca a privilege in common with all persons to whom the State chose to extend fishing and hunting privileges. The Court did not indicate that the Treaty limited New York's regulatory authority with respect to the Seneca in any way. See (the treaty privilege was subject to "that necessary power of appropriate regulation, as to all those privileged, which inhered in the sovereignty of the State over |
Justice Thomas | 1,999 | 1 | second_dissenting | Minnesota v. Mille Lacs Band of Chippewa Indians | https://www.courtlistener.com/opinion/118273/minnesota-v-mille-lacs-band-of-chippewa-indians/ | privileged, which inhered in the sovereignty of the State over the lands where the privilege was exercised" ). Of course, then, what was "appropriate" state regulation as applied to non-Indians was "appropriate" regulation as applied to the Seneca. Cf. Puyallup Tribe,[2] *226 The 1837 Treaty at issue here did not reserve "the right of taking fish at all usual and accustomed places, in common with citizens of the Territory" like those involved in and Puyallup Tribe. Rather, it provided: "The privilege of hunting, fishing, and gathering the wild rice, upon the lands, the rivers and the lakes included in the territory ceded, is guarantied to the Indians, during the pleasure of the President of the United States." 1837 Treaty with the Chippewa, This language more closely resembles the language of the Big Tree Treaty at issue in Kennedy. Although Minnesota's regulatory authority is not at issue here, in the appropriate case we must explain whether reserved treaty privileges limit States' ability to regulate Indians' off-reservation usufructuary activities in the same way as a treaty reserving rights.[3] This is especially true with respect to the privileges reserved by the Chippewa in the 1837 Treaty, which, as The Chief Justice explains, ante, at 219-220 (dissenting opinion), were clearly of a temporary and precarious nature. |
Justice Powell | 1,980 | 17 | majority | Roberts v. United States | https://www.courtlistener.com/opinion/110234/roberts-v-united-states/ | The question is whether the District Court properly considered, as one factor in imposing sentence, the petitioner's refusal to cooperate with officials investigating a criminal conspiracy in which he was a confessed participant. I Petitioner Winfield Roberts accompanied Cecilia Payne to the office of the United Attorney for the District of Columbia one day in June 1975. Government surveillance previously had revealed that a green Jaguar owned by Payne was used to transport heroin within the District. Payne told investigators that she occasionally lent the Jaguar to petitioner, who was waiting outside in the hall. At Payne's suggestion, the investigators asked petitioner if he would answer some questions. Although petitioner was present voluntarily, the investigators gave him the warnings required by They also told him that he *4 was free to leave. When petitioner indicated that he would stay, the investigators asked whether he knew "Boo" Thornton, then the principal target of the heroin investigation. Petitioner admitted that he had delivered heroin to Thornton on several occasions. Confessing also that he had discussed drug transactions with Thornton in certain intercepted telephone conversations, petitioner explained the meaning of code words used in the conversations. When asked to name suppliers, however, petitioner gave evasive answers. Although the investigators warned petitioner that the extent of his cooperation would bear on the charges brought against him, he provided no further information. Petitioner was indicted on one count of conspiring to distribute heroin, 21 U.S. C. 841, 846, and four counts of using a telephone to facilitate the distribution of heroin, 21 U.S. C. 843 (b).[1] He retained a lawyer, who rejected the Government's continued efforts to enlist petitioner's assistance. In March 1976, petitioner entered a plea of guilty to the conspiracy count and received a sentence of 4 to 15 years' imprisonment, 3 years' special parole, and a $5,000 fine. The Court of Appeals vacated the conviction on the ground that the terms of the plea agreement were inadequately disclosed to the District Court. United On remand, petitioner pleaded guilty to two counts of telephone misuse under an agreement that permitted the Government to seek a substantial sentence. The Government filed a memorandum recommending two consecutive sentences of 16 to 48 months each and a $5,000 fine.[2] The memorandum cited petitioner's previous conviction for 10 counts of bank robbery, his voluntary confession, and his subsequent *5 refusal to name suppliers. The memorandum also emphasized the tragic social consequences of the heroin trade. Since petitioner was not himself an addict and had no familial responsibilities, the Government theorized that he sold heroin to support his |
Justice Powell | 1,980 | 17 | majority | Roberts v. United States | https://www.courtlistener.com/opinion/110234/roberts-v-united-states/ | the Government theorized that he sold heroin to support his extravagant lifestyle while unemployed and on parole. The Government concluded that stern sentences were necessary to deter those who would traffic in deadly drugs for personal profit. At the sentencing hearing, defense counsel noted that petitioner had been incarcerated for two years pending appeal and that codefendant Thornton had been sentenced to probation. Counsel argued that petitioner should receive concurrent sentences that would result in his immediate release. He directed the court's attention to petitioner's voluntary confession, explaining that petitioner had refused to identify other members of the conspiracy because he "wasn't that involved in it." App. 30. The prosecutor responded that the request for probation was "ironic" in light of petitioner's refusal to cooperate in the investigation over the course of "many, many years, knowing what he faces." Thus, the Government could not ask the court "to take into account some extenuating and mitigating circumstances, that the defendant has cooperated." Stressing the seriousness of the offense and the absence of excuse or mitigation, the Government recommended a substantial prison term. The District Court imposed consecutive sentences of one to four years on each count and a special parole term of three years, but it declined to impose a fine. The court explained that these sentences were appropriate because petitioner was on parole from a bank robbery conviction at the time of the offenses, and because he was a dealer who had refused to cooperate with the Government.[3] Petitioner again appealed, *6 contending for the first time that the sentencing court should not have considered his failure to cooperate. The Court of Appeals for the District of Columbia Circuit vacated the special parole term but otherwise affirmed the judgment. 195 U. S. App. D. C. 1, We granted certiorari, and we now affirm. II The principles governing criminal sentencing in the United district courts require no extensive elaboration. Congress has directed that "[n]o limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United may receive and consider for the purpose of imposing an appropriate sentence." 18 U.S. C. 3577. See also 21 U.S. C. 850. This Court has reviewed in detail the history and philosophy of the modern conception that "the punishment should fit the offender and not merely the crime." ; see United Two Terms ago, we reaffirmed the "fundamental sentencing principle" that "`a judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he |
Justice Powell | 1,980 | 17 | majority | Roberts v. United States | https://www.courtlistener.com/opinion/110234/roberts-v-united-states/ | largely unlimited either as to the kind of information he may consider, or the source from which it may come.'" quoting United See also We have, however, sustained due process objections to sentences imposed on the basis of "misinformation of constitutional magnitude." United ; see *7 No such misinformation was present in this case. The sentencing court relied upon essentially undisputed facts. There is no question that petitioner rebuffed repeated requests for his cooperation over a period of three years. Nor does petitioner contend that he was unable to provide the requested assistance. Indeed, petitioner concedes that cooperation with the authorities is a "laudable endeavor" that bears a "rational connection to a defendant's willingness to shape up and change his behavior." Brief for Petitioner 17.[4] Unless a different explanation is provided, a defendant's refusal to assist in the investigation of ongoing crimes gives rise to an inference that these laudable attitudes are lacking. It hardly could be otherwise. Concealment of crime has been condemned throughout our history. The citizen's duty to "raise the `hue and cry' and report felonies to the authorities," was an established tenet of Anglo-Saxon law at least as early as the 13th century. 2 W. Holdsworth, History of English Law 101-102 ; 4 ; see Statute of Westminster First, ; *8 Statute of Westminster Second, 1, The first Congress of the United enacted a statute imposing criminal penalties upon anyone who, "having knowledge of the actual commission of [certain felonies,] shall conceal, and not as soon as may be disclose and make known the same to [the appropriate] authority." Act of Apr. 30, 1790, 6,[5] Although the term "misprision of felony" now has an archaic ring, gross indifference to the duty to report known criminal behavior remains a badge of irresponsible citizenship. This deeply rooted social obligation is not diminished when the witness to crime is involved in illicit activities himself. Unless his silence is protected by the privilege against self-incrimination, see Part III, infra, the criminal defendant no less than any other citizen is obliged to assist the authorities. The petitioner, for example, was asked to expose the purveyors of heroin in his own community in exchange for a favorable disposition of his case. By declining to cooperate, petitioner rejected an "obligatio[n] of community life" that should be recognized before rehabilitation can begin. See Hart, The Aims of the Criminal Law, 23 Law & Contemp. Prob. 401, 437 (1958). Moreover, petitioner's refusal to cooperate protected his former partners in crime, thereby preserving his ability to resume criminal activities upon release. Few facts available to a |
Justice Powell | 1,980 | 17 | majority | Roberts v. United States | https://www.courtlistener.com/opinion/110234/roberts-v-united-states/ | resume criminal activities upon release. Few facts available to a sentencing judge are more relevant to "`the likelihood that [a defendant] will transgress no more, the hope that he may respond to rehabilitative efforts to assist with a lawful future career, [and] the degree to which he does or does not deem himself at war with his society.'" United quoting United *9 III Petitioner does not seriously contend that disregard for the obligation to assist in a criminal investigation is irrelevant to the determination of an appropriate sentence. He rather contends that his failure to cooperate was justified by legitimate fears of physical retaliation and self-incrimination. In view of these concerns, petitioner asserts that his refusal to act as an informer has no bearing on his prospects for rehabilitation. He also believes that the District Court punished him for exercising his Fifth Amendment privilege against self-incrimination. These arguments would have merited serious consideration if they had been presented properly to the sentencing judge. But the mere possibility of unarticulated explanations or excuses for antisocial conduct does not make that conduct irrelevant to the sentencing decision. The District Court had no opportunity to consider the theories that petitioner now advances, for each was raised for the first time in petitioner's appellate brief. Although petitioner knew that his intransigency would be used against him, neither he nor his lawyer offered any explanation to the sentencing court. Even after the prosecutor observed that the failure to cooperate could be viewed as evidence of continuing criminal intent, petitioner remained silent. Petitioner insists that he had a constitutional right to remain silent and that no adverse inferences can be drawn from the exercise of that right. We find this argument singularly unpersuasive. The Fifth Amendment privilege against compelled self-incrimination is not self-executing. At least where the Government has no substantial reason to believe that the requested disclosures are likely to be incriminating, the privilege may not be relied upon unless it is invoked in a timely fashion. 653-6 ; United ; see United *560 (opinion of BURGER, C. J.);[6] In this case, as in petitioner "did not assert his privilege or in any manner suggest that he withheld his testimony because there was any ground for fear of self-incrimination. His assertion of it here is evidently an afterthought." The Court added in Vajtauer that the privilege "must be deemed waived if not in some manner fairly brought to the attention of the tribunal which must pass upon it." Thus, if petitioner believed that his failure to cooperate was privileged, he should have said so at |
Justice Powell | 1,980 | 17 | majority | Roberts v. United States | https://www.courtlistener.com/opinion/110234/roberts-v-united-states/ | to cooperate was privileged, he should have said so at a time when the sentencing court could have determined whether his claim was legitimate.[7] Petitioner would avoid the force of this elementary rule by arguing that Miranda warnings supplied additional protection for his right to remain silent. But the right to silence described in those warnings derives from the Fifth Amendment and adds nothing to it. Although Miranda's requirement of specific warnings creates a limited exception to the rule that the privilege must be claimed, the exception does not apply outside the context of the inherently coercive custodial interrogations for which it was designed. The warnings protect persons who, exposed to such interrogation without the assistance of counsel, otherwise might be unable *561 to make a free and informed choice to remain silent. -476; see[8] There was no custodial interrogation in this case. Petitioner volunteered his confession at his first interview with investigators in 1975, after Miranda warnings had been given and at a time when he was free to leave. He does not claim that he was coerced.[9] Thereafter, petitioner was represented by counsel who was fully apprisedas was petitionerthat the extent of petitioner's cooperation could be expected to affect his sentence. Petitioner did not receive the sentence he now challenges until 1978. During this entire period, neither petitioner nor his lawyer ever claimed that petitioner's unwillingness to provide information vital to law enforcement was based upon the right to remain silent or the fear of self-incrimination. Petitioner has identified nothing that might have impaired his "`free choice to admit, to deny, or to refuse to answer.'" quoting His conduct bears no resemblance to the "insolubly ambiguous" postarrest silence that may be induced by the assurances contained in Miranda warnings. Cf. We conclude that the District Court committed no constitutional error. If we were to invalidate petitioner's sentence on the record before us, we would sanction an unwarranted interference with a function traditionally vested in the trial courts. See Dorszynski v. United[10] Accordingly, the judgment of the Court of Appeals is Affirmed. MR. |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | A federal statute provides that a State may treat as community property, and divide at divorce, a military veteran’s retirement pay. See 10 U.S. C. The statute, however, exempts from this grant of permission any amount that the Government deducts “as a result of a waiver” that the veteran must make “in order to receive” disability benefits. We have held that a State cannot treat as community property, and divide at divorce, this portion (the waived portion) of the veteran’s retirement pay. See 594–595 (1989). In this case a State treated as community property and awarded to a veteran’s spouse upon divorce a portion of the veteran’s total retirement pay. Long after the divorce, the veteran waived a share of the retirement pay in order to receive nontaxable disability benefits from the Federal Government instead. Can the State subsequently in- crease, pro rata, the amount the divorced spouse receives each month from the veteran’s retirement pay in order to indemnify the divorced spouse for the loss caused by the veteran’s waiver? The question is complicated, but the 2 HOWELL v. HOWELL Opinion of the Court answer is not. Our cases and the statute make clear that the answer to the indemnification question is “no.” I A The Federal Government has long provided retirement pay to those veterans who have retired from the Armed Forces after serving, e.g., 20 years or more. It also pro- vides disabled members of the Armed Forces with disabil- ity benefits. In order to prevent double counting, however, federal law typically insists that, to receive disability benefits, a retired veteran must give up an equivalent amount of retirement pay. And, since retirement pay is taxable while disability benefits are not, the veteran often elects to waive retirement pay in order to receive disability benefits. See 10 U.S. C. et seq. (Army retirement benefits); et seq. (Navy and Marines retirement benefits); et seq. (Air Force retirement benefits); 38 U.S. C. (requiring a waiver to receive disability benefits); (exempting disability benefits from taxation). See generally McCarty v. McCarty, 453 U.S. 210, 211–215 (1981) (describing the military’s nondisabil- ity retirement system). In 1981 we considered federal military retirement pay alone, i.e., not in the context of pay waived to receive disability benefits. The question was whether a State could consider any of a veteran’s retirement pay to be a form of community property, divisible at divorce. The Court concluded that the States could not. See McCarty, We noted that the relevant legislative history referred to military retirement pay as a “ ‘personal enti- tlement.’ ” We added that other |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | a “ ‘personal enti- tlement.’ ” We added that other language in the statute as well as its history made “clear that Con- gress intended that military retired pay ‘actually reach the beneficiary.’ ” We found a “conflict between the terms of the federal retirement statutes and the [state- Cite as: 581 U. S. (2017) 3 Opinion of the Court conferred] community property right.” And we concluded that the division of military retirement pay by the States threatened to harm clear and substantial fed- eral interests. Hence federal law pre-empted the state law. In 1982 Congress responded by passing the Uniformed Services Former Spouses’ Protection Act, 10 U.S. C. Congress wrote that a State may treat veterans’ “disposable retired pay” as divisible property, i.e., commu- nity property divisible upon divorce. But the new Act expressly excluded from its definition of “dispos- able retired pay” amounts deducted from that pay “as a result of a waiver required by law in order to receive” disability benefits. (A recent amendment to the statute renumbered the waiver provision. It now appears at See Pub. L. 114–328,) In 1989 we interpreted the new federal language in Major Gerald E. and his wife had divorced in California. At the time of the divorce, they entered into a “property settlement which provided, in part, that Major would pay Mrs. 50 percent of his total military retirement pay, including that portion of retirement pay waived so that Major could receive disability benefits.” The divorce decree incorporated this settlement and permitted the division. Major later moved to modify the decree so that it would omit the portion of the retirement pay that he had waived. The California courts refused to do so. But this Court reversed. It held that federal law forbade California from treating the waived portion as community property divisible at divorce. Justice Thurgood Marshall, writing for the Court, pointed out that federal law, as construed in McCarty, “completely pre-empted the application of state community property law to military retirement pay.” He 4 HOWELL v. HOWELL Opinion of the Court noted that Congress could “overcome” this pre-emption “by enacting an affirmative grant of authority giving the States the power to treat military retirement pay as com- munity property.” He recognized that Congress, with its new Act, had done that, but only to a limited extent. The Act provided a “precise and limited” grant of the power to divide federal military retirement pay. It did not “gran[t]” the States “the authority to treat total retired pay as community property.” Rather, Congress excluded from its grant of authority the |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | property.” Rather, Congress excluded from its grant of authority the disability-related waived portion of military retirement pay. Hence, in respect to the waived portion of retirement pay, McCarty, with its rule of federal pre-emption, still applies. B John Howell, the petitioner, and Sandra Howell, the respondent, were divorced in 1991, while John was serving in the Air Force. Anticipating John’s eventual retirement, the divorce decree treated John’s future retirement pay as community property. It awarded Sandra “as her sole and separate property FIFTY PERCENT (50%) of [John’s] military retirement when it begins.” App. to Pet. for Cert. 41a. It also ordered John to pay child support of $585 per month and spousal maintenance of $150 per month until the time of John’s retirement. In 1992 John retired from the Air Force and began to receive military retirement pay, half of which went to Sandra. About 13 years later the Department of Veterans Affairs found that John was 20% disabled due to a service- related shoulder injury. John elected to receive disability benefits and consequently had to waive about $250 per month of the roughly $1,500 of military retirement pay he shared with Sandra. Doing so reduced the amount of retirement pay that he and Sandra received by about $125 per month each. In re Marriage of Howell, Cite as: 581 U. S. (2017) 5 Opinion of the Court 408, Sandra then asked the Arizona family court to enforce the original decree, in effect restoring the value of her share of John’s total retirement pay. The court held that the original divorce decree had given Sandra a “vested” interest in the prewaiver amount of that pay, and ordered John to ensure that Sandra “receive her full 50% of the military retirement without regard for the disability.” App. to Pet. for Cert. 28a. The Arizona Supreme Court affirmed the family court’s decision. See It asked whether the family court could “order John to indemnify Sandra for the reduction” of her share of John’s military retirement pay. It wrote that the family court order did not “divide” John’s waived military retirement pay, the order did not require John “to rescind” his waiver, nor did the order “direct him to pay any amount to Sandra from his disability pay.” at Rather the family court simply ordered John to “reimburse” Sandra for “reducing her share” of military retirement pay. The high court concluded that because John had made his waiver after, rather than before, the family court divided his military retirement pay, our decision in did not control the case, and thus federal law did |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | did not control the case, and thus federal law did not preempt the family court’s reimbursement 238 Ariz., at 361 P.3d, at 939. Because different state courts have come to different conclusions on the matter, we granted John Howell’s petition for certiorari. Compare Glover v. Ranney, 314 P. 3d 535, 539–540 (Alaska 2013); ; and John- with 1269–1272 (Miss. 2012); and 62–65, 682–685. 6 HOWELL v. HOWELL Opinion of the Court II This Court’s decision in determines the outcome here. In the Court held that federal law com- pletely pre-empts the States from treating waived military retirement pay as divisible community property. 490 U.S., –595. Yet that which federal law pre-empts is just what the Arizona family court did here. App. to Pet. for Cert. 28a, 35a (finding that the divorce decree gave Sandra a “vested” interest in John’s retirement pay and ordering that Sandra receive her share “without regard for the disability”). The Arizona Supreme Court, the respondent, and the Solicitor General try to distinguish But we do not find their efforts convincing. The Arizona Supreme Court, like several other state courts, emphasized the fact that the veteran’s waiver in took place before the divorce proceeding; the waiver here took place several years after the divorce proceedings. See 238 Ariz., at ; see also Abernethy v. Fishkin, 699 So. 2d 235, 240 (Fla. 1997) (noting that a veteran had not yet waived retirement pay at the time of the divorce and permitting indemnification in light of the parties’ “intent to maintain level monthly payments pursuant to their property settlement agreement”). Hence here, as the Solicitor General emphasizes, the nonmilitary spouse and the family court were likely to have assumed that a full share of the veteran’s retirement pay would remain avail- able after the assets were distributed. Nonetheless, the temporal difference highlights only that John’s military retirement pay at the time it came to Sandra was subject to later reduction (should John exer- cise a waiver to receive disability benefits to which he is entitled). The state court did not extinguish (and most likely would not have had the legal power to extinguish) that future contingency. The existence of that contingency meant that the value of Sandra’s share of military retire- Cite as: 581 U. S. (2017) 7 Opinion of the Court ment pay was possibly worth less—perhaps less than Sandra and others thought—at the time of the divorce. So too is an ownership interest in property (say, A’s property interest in Blackacre) worth less if it is subject to defea- sance or termination upon the occurrence of a |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | to defea- sance or termination upon the occurrence of a later event (say, B’s death). See generally Restatement (Third) of Property (2010) (describing property interests that are defeasible); and Comment a (describing contingent future interests subject to divestment). We see nothing in this circumstance that makes the reimbursement award to Sandra any the less an award of the portion of military retirement pay that John waived in order to obtain disability benefits. And that is the portion that Congress omitted from the Act’s definition of “dispos- able retired pay,” namely, the portion that federal law prohibits state courts from awarding to a divorced veter- an’s former spouse. That the Arizona courts referred to Sandra’s interest in the waiv- able portion as having “vested” does not help. State courts cannot “vest” that which (under governing federal law) they lack the authority to give. Cf. 38 U.S. C. (providing that disability benefits are gener- ally nonassignable). Accordingly, while the divorce decree might be said to “vest” Sandra with an immediate right to half of John’s military retirement pay, that interest is, at most, contingent, depending for its amount on a subse- quent condition: John’s possible waiver of that pay. Neither can the State avoid by describing the family court order as an order requiring John to “reim- burse” or to “indemnify” Sandra, rather than an order that divides property. The difference is semantic and nothing more. The principal reason the state courts have given for ordering reimbursement or indemnification is that they wish to restore the amount previously awarded as com- munity property, i.e., to restore that portion of retirement pay lost due to the postdivorce waiver. And we note that 8 HOWELL v. HOWELL Opinion of the Court here, the amount of indemnification mirrors the waived retirement pay, dollar for dollar. Regardless of their form, such reimbursement and indemnification orders displace the federal rule and stand as an obstacle to the accom- plishment and execution of the purposes and objectives of Congress. All such orders are thus pre-empted. The basic reasons McCarty gave for believing that Con- gress intended to exempt military retirement pay from state community property laws apply a fortiori to disabil- ity pay. See 453 U.S., –235 (describing the federal interests in attracting and retaining military personnel). And those reasons apply with equal force to a veteran’s postdivorce waiver to receive disability benefits to which he or she has become entitled. We recognize, as we recognized in the hardship that congressional pre-emption can sometimes work on divorcing spouses. See But we note that a family court, when it |
Justice Breyer | 2,017 | 2 | majority | Howell v. Howell | https://www.courtlistener.com/opinion/4391111/howell-v-howell/ | See But we note that a family court, when it first determines the value of a family’s assets, remains free to take account of the contin- gency that some military retirement pay might be waived, or, as the petitioner himself recognizes, take account of reductions in value when it calculates or recalculates the need for spousal support. See 630–634, and n. 6 (1987); 10 U.S. C. We need not and do not decide these matters, for here the state courts made clear that the original divorce de- cree divided the whole of John’s military retirement pay, and their decisions rested entirely upon the need to re- store Sandra’s lost portion. Consequently, the determina- tion of the Supreme Court of Arizona must be reversed. See III The judgment of the Supreme Court of Arizona is re- versed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 581 U. S. (2017) 9 Opinion of the Court JUSTICE GORSUCH took no part in the consideration or decision of this case. Cite as: 581 U. S. (2017) 1 Opinion of THOMAS, J. SUPREME COURT OF THE UNITED STATES No. 15–1031 JOHN HOWELL, PETITIONER v. SANDRA HOWELL ON WRIT OF CERTIORARI TO THE SUPREME COURT OF ARIZONA [May 15, 2017] JUSTICE THOMAS, concurring in part and concurring in the judgment. I join all of the opinion of the Court except its brief discussion of “purposes and objectives” pre-emption. Ante, at 8. As I have previously explained, “[t]hat framework is an illegitimate basis for finding the pre-emption of state law.” Hillman v. Maretta, 569 U. S. (2013) (THOMAS, J., concurring in judgment) (slip op., at 1); see also In any event, that framework is not necessary to support the Court’s judgment in this case |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | This case primarily concerns Rule 1(c) of the Federal Rules of Civil Procedure and its application to a less-than-precise denomination of a defendant in complaints filed in federal court near the expiration of the period of limitations. Because of an apparent conflict among the Courts of Appeals,[1] we granted certiorari. I The three petitioners instituted this diversity litigation on May 9, 1983, by filing their respective complaints in the United States District Court for the District of New Jersey. Each complaint alleged that the plaintiff was libeled in a cover story entitled "The Charges Against Reagan's Labor Secretary," which appeared in the May 31, 1982, issue of Fortune magazine. The caption of each complaint named *23 "Fortune," without embellishment, as the defendant. See App. 8a. In its paragraph 2, each complaint described Fortune as "a foreign corporation having its principal offices at Time and Life Building, Sixth Avenue and 0th Street, New York, New York 10020." at 9a. "Fortune," however, is only a trademark and the name of an internal division of Time, Incorporated (Time), a New York corporation.[2] On May 20, petitioners' counsel mailed the complaints to Time's registered agent in New Jersey. They were received on May 23. The agent refused service because Time was not named as a defendant. On July 18, 1983, each petitioner amended his complaint to name as the captioned defendant "Fortune, also known as Time, Incorporated," and, in the body of the complaint, to refer to "Fortune, also known as Time, Incorporated," as a New York corporation with a specified registered New Jersey agent. See at 2a, 26a. The amended complaints were served on Time by certified mail on July 21. Time moved to dismiss the amended complaints. The District Court granted those motions. at 96a, 98a, 100a. It ruled that the complaints, as amended, adequately named Time as a defendant, and therefore were not to be dismissed "for failure of capacity of defendant to be sued." Supp. App. to Pet. for Cert. 18a. Under New Jersey law, however, see N. J. Stat. Ann. 2A:14-3 (West 192), a libel action must be commenced within one year of the publication of the alleged libel.[3] Supp. App. to Pet. for Cert. 18a. State law also provides that the " `date upon which a substantial distribution occurs triggers the statute of limitations for any and all actions arising out of that publication,' " at 19a, quoting MacDonald v. Time, Inc., Civil No. 81-479 (DNJ Aug. 2, *24 1981). Supp. App. to Pet. for Cert. 19a.[4] The court found it unnecessary, for purposes of the motion, to |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | court found it unnecessary, for purposes of the motion, to determine the precise date the statute of limitations had begun to run. Although Time acknowledged that the original filings were within the limitations period, it took the position that it could not be named as a party after the period had expired. Time contended that a party must be substituted within the limitations period in order for the amendment to relate back to the original filing date pursuant to Rule 1(c).[] The District Court concluded that the amendments to the complaints did not relate back to the filing of the original complaints because it had not been shown that Time received notice of the institution of the suits within the period provided by law for commencing an action against it. Supp. App. to Pet. for Cert. 23a. It therefore "with great reluctance" granted the motion to dismiss, noting that any dismissal of a claim based upon the statute of limitations "by its very nature is arbitrary." at 24a. The court also ruled that the "equities of this situation" did not demand that relief *2 be afforded to petitioners. The identity of the publisher of Fortune was readily ascertainable from the magazine itself. It rejected petitioners' contention that Time deliberately misled them to believe that Fortune was a separate corporation. It observed that petitioners created the risk by filing their suits close to the end of the limitations period. at 2a. Petitioners moved for reconsideration. By letter opinion filed January 12, the court adhered to its prior ruling. App. to Brief in Opposition 1a. On appeal to the United States Court of Appeals for the Third Circuit, the three actions were consolidated. That court affirmed the orders of the District Court. It ruled that the New Jersey statute of limitations ran "on May 19, 1983, at the latest," for a "substantial distribution" of the issue of May 31, 1982, had "occurred on May 19, 1982, at the latest." It regarded the language of Rule 1(c) as "clear and unequivocal." It also said: "While we are sympathetic to plaintiffs' arguments, we agree with the defendant that it is not this court's role to amend procedural rules in accordance with our own policy preferences." It further held that the period within which the defendant to be brought in must receive notice under Rule 1(c) does not include the time available for service of process. II It is clear, from what has been noted above, that the three complaints as originally drawn were filed within the limitations period; that service was attempted only after |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | within the limitations period; that service was attempted only after that period had expired; and that the amendment of the complaints, and the service of the complaints as so amended, also necessarily took place after the expiration of the limitations period. The District Court and the Court of Appeals so found, and we have no reason to disagree. The parties themselves do not dispute these facts. Instead, their dispute centers on *26 whether Time was sufficiently named as the defendant in the original complaints so that the service that was attempted after the 1-year period but within the time allowed for service was effective, and on whether, in any event, the amendment of the complaints related back to the original filing and accomplished the same result. Petitioners argue that Rule 1(c)'s present form came into being by amendment in 1966 for the express purpose of allowing relation back of a change in the name or identity of a defendant when, although the limitations period for filing had run, the period allowed by Rule 4 for timely service had not yet expired. Brief for Petitioners The Rule was effected, it is said, to ameliorate literal and rigid application of limitations periods to both claim and party amendments. It is urged that the Rules of Civil Procedure should be applied and construed to yield just determinations, that is, determinations on the merits, and that a procedural "double standard" that bars relation back for late notice to a new defendant when a like notice to the original defendant would be timely is unacceptable. Petitioners further argue that the original party named here and the party sought to be substituted had such commonalty of interest that notice to one was in fact notice to the other. Therefore, it is said, where the intended defendant was misdesignated in form only, and knew or reasonably should have known that it was the true target and received the same notice it would have received had the form been flawless, "relation back should be a foregone conclusion." Brief for Petitioners 6. Respondent, of course, takes issue with this approach. It claims that the language of Rule 1(c) is clear and that proper notice of the institution of these actions was not received by it within the period of limitations. It asserts that the equities do not support petitioners' position, and that the interpretation of Rule 1(c) urged by petitioners in effect would be an impermissible rewriting of the Rule by this Court. *27 III As amended, Rule 1 of the Federal Rules of Civil Procedures states: "These rules |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | of the Federal Rules of Civil Procedures states: "These rules shall be construed to secure the just, speedy, and inexpensive determination of every action." Rule 8(f) says: "All pleadings shall be so construed as to do substantial justice." And Justice Black reminded us, more than 30 years ago, in connection with an order adopting revised Rules of this Court, that the "principal function of procedural rules should be to serve as useful guides to help, not hinder, persons who have a legal right to bring their problems before the courts." This Court, too, in the early days of the federal civil procedure rules, when Rule 1(c), see n. consisted only of what is now its first sentence, announced that the spirit and inclination of the rules favored decisions on the merits, and rejected an approach that pleading is a game of skill in which one misstep may be decisive. 3 U.S. 41, (197). It also said that decisions on the merits are not to be avoided on the basis of "mere technicalities." Despite these worthy goals and loftily stated purposes, we conclude that the judgments of the Court of Appeals in the present cases were correct. A The defendant named in the caption of each of the original complaints was "Fortune," and Fortune was described in the body of the complaint as "a foreign corporation" having principal offices in the Time and Life Building in New York City. It also was alleged that Fortune was engaged in the publication of a magazine of that name. Attached to the complaint were a copy of the magazine's cover for its issue of May 31, 1982, an artist's depiction of an alleged payoff, and the text of parts of the article about which petitioners complained. The focus, as pleaded, was on Fortune. *28 We cannot understand why, in litigation of this asserted magnitude, Time was not named specifically as the defendant in the caption and in the body of each complaint. This was not a situation where the ascertainment of the defendant's identity was difficult for the plaintiffs. An examination of the magazine's masthead clearly would have revealed the corporate entity responsible for the publication.[6] Petitioners nonetheless rely on Fortune's status as a division of Time to argue that institution of an action purportedly against the former constituted notice of the action to the latter, as a related entity. Some Courts of Appeals have recognized an "identity-of-interest" exception under which an amendment that substitutes a party in a complaint after the limitations period has expired will relate back to the date of the |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | has expired will relate back to the date of the filing of the original complaint.[7] The Court of Appeals in this case rejected that approach. The object of the exception is to avoid the application of the statute of limitations when no prejudice would result to the party sought to be added. *29 Even if we were to adopt the identity-of-interest exception, and even if Fortune properly could be named as a defendant, we would be compelled to reject petitioners' contention that the facts of this case fall within the exception. Timely filing of a complaint, and notice within the limitations period to the party named in the complaint, permit imputation of notice to a subsequently named and sufficiently related party. In this case, however, neither Fortune nor Time received notice of the filing until after the period of limitations had run. Thus, there was no proper notice to Fortune that could be imputed to Time. See Hernandez ; B The complaints as they were amended, of course, meet the identification standard. While the statement, "Fortune, also known as Time, Incorporated, was and is a corporation of the state of New York," is not a model of accuracy, it does focus on Time and sufficiently describes Time as the targeted defendant. The next question, then, is whether the amendment, made in July 1983, related back to the filing on May 9, a date concededly within the period of the applicable New Jersey statute of limitations. Central to the resolution of this issue is the language of Rule 1(c). See n. Relation back is dependent upon four factors, all of which must be satisfied: (1) the basic claim must have arisen out of the conduct set forth in the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity, the action would have been brought against it; and (4) the second and third requirements must have been fulfilled within the prescribed limitations period. We are not concerned here with the first *30 factor, but we are concerned with the satisfaction of the remaining three. The first intimation that Time had of the institution and maintenance of the three suits took place after May 19, 1983, the date the Court of Appeals said the statute ran "at the latest." 70 F.2d, Only on May 20 did petitioners' counsel mail the complaints to Time's registered agent in New Jersey. Only on May 23 were |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | registered agent in New Jersey. Only on May 23 were those complaints received by the registered agent, and then refused. Only on July 19 did each petitioner amend his complaint. And only on July 21 were the amended complaints served on Time. It seems to us inevitably to follow that notice to Time and the necessary knowledge did not come into being "within the period provided by law for commencing the action against" Time, as is so clearly required by Rule 1(c). That occurred only after the expiration of the applicable 1-year period. This is fatal, then, to petitioners' litigation. We do not have before us a choice between a "liberal" approach toward Rule 1(c), on the one hand, and a "technical" interpretation of the Rule, on the other hand. The choice, instead, is between recognizing or ignoring what the Rule provides in plain language. We accept the Rule as meaning what it says. We are not inclined, either, to temper the plain meaning of the language by engrafting upon it an extension of the limitations period equal to the asserted reasonable time, inferred from Rule 4, for the service of a timely filed complaint. Rule 4 deals only with process. Rule 3 concerns the "commencement" of a civil action. Under Rule 1(c), the emphasis is upon "the period provided by law for commencing the action against" the defendant. An action is commenced by the filing of a complaint and, so far as Time is concerned, no complaint against it was filed on or prior to May 19, 1983. Any possible doubt about this should have been dispelled 20 years ago by the Advisory Committee's 1966 Note about Rule 1(c). The Note specifically states that the Rule's *31 phrase "within the period provided by law for commencing the action" means "within the applicable limitations period": "An amendment changing the party against whom a claim is asserted relates back if the amendment satisfies the usual condition of Rule 1(c) of `arising out of the conduct set forth in the original pleading,' and if, within the applicable limitations period, the party brought in by amendment, first, received such notice of the institution of the action the notice need not be formal that he would not be prejudiced in defending the action, and, second, knew or should have known that the action would have been brought against him initially had there not been a mistake concerning the identity of the proper party" (emphasis supplied). Advisory Committee's Notes on Fed. Rule Civ. Proc. 1, 28 U.S. C. App., p. 1; 39 F. |
Justice Blackmun | 1,986 | 11 | majority | Schiavone v. Fortune | https://www.courtlistener.com/opinion/111710/schiavone-v-fortune/ | Proc. 1, 28 U.S. C. App., p. 1; 39 F. R. D. 83. Although the Advisory Committee's comments do not foreclose judicial consideration of the Rule's validity and meaning, the construction given by the Committee is "of weight." Mississippi Publishing (1). The commentators have accepted the literal meaning of the significant phrase in Rule 1(c) and have agreed with the Advisory Committee's Note. See 3 J. Moore, Federal Practice 1.1[4.-2], p. 1-22 ("the Rule demands a showing that, within the period of limitations, the new party"); 6 C. Wright & A. Miller, Federal Practice and Procedure 1498, p. 20 (Supp. 1986) ("in order for an amendment adding a party to relate back under Rule 1(c) the party to be added must have received notice of the action before the statute of limitations has run"). The linchpin is notice, and notice within the limitations period. Of course, there is an element of arbitrariness here, but that is a characteristic of any limitations period. And it is an arbitrariness imposed by the legislature and not by the judicial process. See Note: Federal Rule of Civil Procedure *32 1(c): Relation Back of Amendments, 7 Minn. L. Rev. 83, 8, n. 8[8] The judgments of the Court of Appeals are affirmed. It is so ordered. |
Justice Stevens | 1,993 | 16 | dissenting | Delo v. Lashley | https://www.courtlistener.com/opinion/112831/delo-v-lashley/ | Thirty days after his 17th birthday, respondent entered his cousin's home, murdered her, and stole about $15. He was promptly arrested and made a series of confessions to the police. A portion of one of those confessions apparently referred to other crimes, but that portion was not admitted into evidence and is not in the record. Although it seems probable that several of those "other" crimes were committed in connection with the murder, a comment by respondent's counsel in a pretrial conference indicates that one of them involved the same victim's house "a week or two beforehand."[1] The record tells us nothing about the manner in which that specific statement was elicited, the seriousness of the incident, the dates when that or any of the other incidents occurred, or even whether counsel's description of the statement was accurate. Yet that one vague reference may now explain the Court's willingness to reinstate respondent's *281 death sentence without hearing argument on the merits of the novel and important constitutional question that the case presents. That question is whether the presumption of innocence (uncontradicted in any way by the prosecution) supports an instruction to the jury at sentencing that the capital defendant's lack of a significant criminal history is a factor mitigating against its imposition of the death penalty. The Court acknowledges that the defendant's testimonial assertion of innocence would support the instruction, see ante, at 277; it fails to recognize that the presumption of innocence does so as well. The question arises because the record on which the jury relied in imposing the death sentence contains no evidence of any criminal activity by respondent except the serious felony for which he has been convicted and sentenced. Speculation by appellate judges, see ante, at 273-274, about a matter that was neither available to the sentencing authority nor mentioned by the State in its petition in this Court is not a substitute for admissible evidence presented in an adversary proceeding.[2] Speculation about his juvenile record is impermissible; state law prohibits any use of such evidence in adult *282 criminal proceedings.[3] Accordingly, as the case comes to us, the record is silent on the question whether respondent led an entirely blameless life prior to this offense. Missouri's capital sentencing statute provides that the absence of any significant history of prior criminal activity is a circumstance militating against the imposition of the death penalty.[4] In Missouri, thereforeas in the many States with the same statutory mitigating factorthe jury should be so instructed when the record contains no evidence of any prior record of criminal activity. The |
Justice Stevens | 1,993 | 16 | dissenting | Delo v. Lashley | https://www.courtlistener.com/opinion/112831/delo-v-lashley/ | no evidence of any prior record of criminal activity. The legal basis for the Court's summary disposition of this case is the general rule that a trial judge's instructions to the jury must normally relate to evidence in the record. That general rule, however, has no application to an instruction on the presumption of innocence in an ordinary criminal trial. In my opinion, the general rule is equally inapplicable in the capital sentencing process when the defendant requests an *283 instruction explaining the statutory mitigating circumstance at issue in this case. I It has been settled for almost a century that the presumption of innocence, when uncontradicted, is an adequate substitute for affirmative evidence. In 1895 the Court held that refusing to give an instruction on the presumption of innocence was reversible error, explaining that "this presumption is an instrument of proof created by the law in favor of one accused, whereby his innocence is established until sufficient evidence is introduced to overcome the proof which the law has created." A few years later, in his landmark treatise on evidence, Professor Thayer, while noting that a presumption is not itself evidence, concluded: "What appears to be true may be stated thus: "1. A presumption operates to relieve the party in whose favor it works from going forward in argument or evidence. "2. It serves therefore the purposes of a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence." J. Thayer, A Preliminary Treatise on Evidence at the Common Law, Appendix B, p. 575 (1898) (hereinafter Thayer).[5] The presumption of innocence plays a unique role in criminal proceedings. As Chief Justice Burger explained in his opinion for the Court in : *284 "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice. Long ago this Court stated: "`The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.'" The failure to instruct the jury on the presumption may violate the Due Process Clause of the Fourteenth Amendment even when a proper instruction on the prosecution's burden of proving guilt beyond a reasonable doubt has been given. Whether the omission amounts to a constitutional violation in a noncapital case depends on "the totality of the circumstances," In my judgment, the instruction should always be given in a capital case. That conclusion is not essential to my appraisal |
Justice Stevens | 1,993 | 16 | dissenting | Delo v. Lashley | https://www.courtlistener.com/opinion/112831/delo-v-lashley/ | capital case. That conclusion is not essential to my appraisal of the capital case before us today, however, because the totality of circumstances here included respondent's age, the sentence to which he was subject, andof special importancethe trial judge's erroneous refusal to prohibit cross-examination about his juvenile record. As Chief Judge Arnold explained: "[T]rial counsel made a reasonable effort to introduce [affirmative evidence showing that petitioner had no significant criminal history] but was prevented from doing so by an incorrect ruling of the state trial court. The court told counsel that if she insisted on offering evidence that Lashley had no criminal record, it would permit the state to counter this evidence by showing that petitioner had committed juvenile offenses. This ruling *285 was flatly contrary to state law."[6] This erroneous ruling by the trial judge unquestionably explains why the record contains no specific testimony about respondent's prior criminal history. Even though due process may not automatically entitle a defendant to an instruction that he is presumed innocent of other offenses at the penalty phase of the trial, under the instruction should certainly be given when a trial court error is responsible for the absence of evidence supporting the instruction. The failure to instruct the jury on the presumption of innocence at the guilt phase of respondent's trialwhether or not respondent had presented any evidence of his innocencewould have been constitutional error requiring reversal of his conviction. Under our holding in the comparable refusal in this case was also constitutional error requiring the vacation of respondent's death sentence.[7] The Court of Appeals, therefore, properly set aside a sentence of death imposed by a *286 jury uninformed that the state legislature had expressly authorized it to withhold that sentence because the defendant had no prior criminal record.[8] II The mitigating factor in question corresponds precisely to the presumption of innocence. When the trial record reveals no prior criminal history at all the presumption serves as "a prima facie case, and in that sense it is, temporarily, the substitute or equivalent for evidence," Thayer 575, that a criminal defendant is blameless in spite of his indictment, and that even after conviction of one crime, he is presumptively innocent of all other crimes. The State cannot refute the presumption of innocence at the guilt phase of the trial without presenting any evidence that the defendant committed the act for which he was indicted; similarly, it has no basis for objecting to a mitigating instruction on the absence of a prior criminal history if it has done nothing to rebut the prima facie case |
Justice Stevens | 1,993 | 16 | dissenting | Delo v. Lashley | https://www.courtlistener.com/opinion/112831/delo-v-lashley/ | it has done nothing to rebut the prima facie case established by the presumption of innocence at the sentencing phase of the trial.[9] *287 In this case, as the Court expressly acknowledges, nothing in the record "disturbed the presumption that Lashley was a first offender." Ante, at 279. There was no danger that the "jury might conclude improperly that he was a repeat offender." What was lacking, however, was advice to the jury that Missouri law draws a distinction between first offenders and repeat offenders and provides that membership in one class rather than the other shall be considered a mitigating fact no matter how serious the offense committed by the defendant may be. Failure to advise the jury about the mitigating effect of his status as first offender is just as unfair as the failure to advise the jury that it should consider evidence offered by a defendant "as mitigating evidence and that it could give mitigating effect to that evidence in imposing sentence."[10] *288 Because "no one is better able than the defendant to make the required proffer," ante, at 278, the Court considers it fair to require him to attest to his own innocence of any criminal history before the jury may be allowed to rely on the mitigating circumstance when it considers putting him to death. This suggestion is inconsistent with our refusal to allow the capital sentencing process to burden the defendant's Fifth Amendment privilege against self-incrimination.[11] It obviously would have been constitutional error for the prosecutor or the judge to comment on the defendant's failure to testify at the guilt or sentencing phase of the trial; it is equally wrong to deny him an otherwise appropriate mitigating instruction because he failed to testify. Admittedly, my analysis of the case enables the respondent to obtain a double benefit from his youth. That he was barely 17 years old when he committed the offense is itself a mitigating circumstance; it also serves to shield any earlier misbehavior from scrutiny when his life is at stake. I believe, however, that such a double benefit is entirely appropriate when a State seeks to take the life of a young person. To deny that benefit undermines important protections that the law has traditionally provided to youthful offenders because of their lesser moral culpability and greater potential for rehabilitation. It is doubly disturbing that the Court acts summarily in this case, thus expediting the execution of a defendant who, I firmly believe, should not be eligible for *289 the death penalty at all. See I respectfully dissent. |
per_curiam | 1,972 | 200 | per_curiam | Cool v. United States | https://www.courtlistener.com/opinion/108635/cool-v-united-states/ | The petition for a writ of certiorari is granted. In this case, the court below held in effect that in a criminal trial, the jury may be instructed to ignore defense testimony unless it believes beyond a reasonable doubt that the testimony is true. That holding is fundamentally inconsistent with our prior decisions in In re and and must therefore be reversed. After a jury trial, petitioner was found guilty of possessing and concealing, with intent to defraud, counterfeit obligations of the United States. The evidence showed that on June 2, 1970, petitioner, her husband, and one Robert E. Voyles were traveling together by car between St. Louis, Missouri, and Brazil, Indiana. Upon reaching Brazil, Voyles left petitioner and her husband and passed two counterfeit bills at a local store. He was then arrested shortly after he entered the car in which petitioner and her husband were waiting. After his arrest, Voyles was placed in the police car and taken to the station house. Petitioner and her husband *101 were told to follow in their own car. A Mr. Baumunk testified that he saw petitioner throw a paper sack out of the car window as petitioner was following the police car. The bag was subsequently found to contain counterfeit bills. Police also found three counterfeit bills crumpled up under the right seat of petitioner's car. Although petitioner testified in her own defense, she relied primarily on the testimony of Voyles. Voyles freely admitted his own guilt,[1] but steadfastly insisted that neither petitioner nor her husband had anything to do with the crime. He testified that petitioner had merely agreed to give him a ride and knew nothing about the counterfeit bills that he carried with him. When the car stopped in Brazil, Voyles allegedly removed some of the counterfeit bills from his satchel which he kept in petitioner's trunk, and concealed the rest of the bills in a sack which he placed under the front bumper by the headlight. The defense argued that it was this sack that Baumunk saw fall to the ground as petitioner drove to the police station. Voyles also stated that after he had rejoined petitioner, he saw police approaching the car and threw the remaining bills on his person onto the car floor, again without the knowledge of petitioner. Petitioner thus asserts that she was not in knowing possession of the bills on the car floor. With the case in this posture, the Government's position clearly depended upon its ability to discredit Voyles, since his testimony was completely exculpatory. Over strenuous defense objection,[2] the trial |
per_curiam | 1,972 | 200 | per_curiam | Cool v. United States | https://www.courtlistener.com/opinion/108635/cool-v-united-states/ | testimony was completely exculpatory. Over strenuous defense objection,[2] the trial judge gave the jury *102 a lengthy "accomplice instruction" to be used in evaluating Voyles' testimony. After first defining the word "accomplice" and warning that an accomplice's testimony is "open to suspicion," the judge made the following statement: "However, I charge you that the testimony of an accomplice is competent evidence and it is for you to pass upon the credibility thereof. If the testimony carries conviction and you are convinced it is true beyond a reasonable doubt, the jury should give it the same effect as you would to a witness not in any respect implicated in the alleged crime and you are not only justified, but it is your duty, not to throw this testimony out because it comes from a tainted source." (Emphasis added.) The clear implication of this instruction was that the jury should disregard Voyles' testimony unless it was "convinced it is true beyond a reasonable doubt."[3] Such *103 an instruction places an improper burden on the defense and allows the jury to convict despite its failure to find guilt beyond a reasonable doubt.[4] Accomplice instructions have long been in use and have been repeatedly approved. See, e. g., In most instances, they represent no more than a commonsense recognition that an accomplice may have a special interest in testifying, thus casting doubt upon his veracity. See, e. g., But in most of the recorded cases, the instruction has been used when the accomplice turned State's evidence and testified against the defendant. See generally and cases cited therein. No constitutional problem is posed when the judge instructs a jury to receive the prosecution's accomplice testimony "with care and caution." See, e. g., United Cf. United *104 But there is an essential difference between instructing a jury on the care with which it should scrutinize certain evidence in determining how much weight to accord it and instructing a jury, as the judge did here, that as a predicate to the consideration of certain evidence, it must find it true beyond a reasonable doubt. In we held that a criminal defendant has a Sixth Amendment right to present to the jury exculpatory testimony of an accomplice. The instruction given below impermissibly obstructs the exercise of that right by totally excluding relevant evidence unless the jury makes a preliminary determination that it is extremely reliable. Moreover, the instruction also has the effect of substantially reducing the Government's burden of proof. We held in In re that the Constitution requires proof of guilt beyond a reasonable doubt. It is |
per_curiam | 1,972 | 200 | per_curiam | Cool v. United States | https://www.courtlistener.com/opinion/108635/cool-v-united-states/ | requires proof of guilt beyond a reasonable doubt. It is possible that Voyles' testimony would have created a reasonable doubt in the minds of the jury, but that it was not considered because the testimony itself was not believable beyond a reasonable doubt. By creating an artificial barrier to the consideration of relevant defense testimony putatively credible by a preponderance of the evidence, the trial judge reduced the level of proof necessary for the Government to carry its burden. Indeed, where, as here, the defendant's case rests almost entirely on accomplice testimony, the effect of the judge's instructions is to require the defendant to establish his innocence beyond a reasonable doubt. Because such a requirement is plainly inconsistent with the constitutionally rooted presumption of innocence, the conviction must be reversed and the cause remanded for further proceedings not inconsistent with this opinion. It is so ordered. *105 MR. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE and MR. |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | The question for decision is whether the National Bank Act, Rev. Stat. 5197, as amended, 12 U.S. C. 85,[1] authorizes a national bank based in one State to charge its out-of-state credit-card customers an interest rate on unpaid balances allowed by its home State, when that rate is greater than that permitted by the State of the bank's nonresident customers. The Minnesota Supreme Court held that the bank is allowed by 85 to charge the higher rate. We affirm. I The First National Bank of Omaha (Omaha Bank) is a national banking association with its charter address in Omaha, Neb.[2] Omaha Bank is a card-issuing member in the BankAmericard plan. This plan enables cardholders to purchase goods and services from participating merchants and to *302 obtain cash advances from participating banks throughout the United States and the world. Omaha Bank has systematically sought to enroll in its BankAmericard program the residents, merchants, and banks of the nearby State of Minnesota. The solicitation of Minnesota merchants and banks is carried on by respondent First of Omaha Service Corp. (Omaha Service Corp.), a wholly owned subsidiary of Omaha Bank. Minnesota residents are obligated to pay Omaha Bank interest on the outstanding balances of their BankAmericards. Nebraska law permits Omaha Bank to charge interest on the unpaid balances of cardholder accounts at a rate of 18% per year on the first $999.99, and 12% per year on amounts of $1,000 and over.[3] Minnesota law, however, fixes the permissible annual interest on such accounts at 12%.[4] To compensate *303 for the reduced interest, Minnesota law permits banks to charge annual fees of up to $15 for the privilege of using a bank credit card.[5] *304 The instant case began when petitioner Marquette National Bank of Minneapolis (Marquette),[6] itself a national banking association enrolled in the BankAmericard plan,[7] brought suit in the District Court of Hennepin County, Minn., to enjoin Omaha Bank and Omaha Service Corp. from soliciting in Minnesota for Omaha Bank's BankAmericard program until such time as that program complied with Minnesota law.[8] Marquette claimed to be losing customers to Omaha Bank because, unlike the Nebraska bank, Marquette was forced by the low rate of interest permissible under Minnesota law to charge a $10 annual fee for the use of its credit cards. App. 7a-15a, 45a-48a. Marquette named as defendants Omaha Bank, Omaha Service Corp., which is organized under the laws of Nebraska but qualified to do business and doing business in Minnesota,[9] and the Credit Bureau of St. Paul, Inc., a corporation organized under the laws of Minnesota having its principal office |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | organized under the laws of Minnesota having its principal office *305 in St. Paul, Minn. Omaha Service Corp. participates in Omaha Bank's BankAmericard program by entering into agreements with banks and merchants necessary to the operation of the BankAmericard scheme. at 30a. At the time Marquette filed its complaint, Omaha Service Corp. had not yet entered into any such agreements in Minnesota, although it intended to do so. at 30a, 92a, 94a. For its services, Omaha Service Corp. receives a fee from Omaha Bank, but it does not itself extend credit or receive interest.[10] at 94a, 97a-110a. It was alleged that the Credit Bureau of St. Paul, Inc., solicited prospective cardholders for Omaha Bank's BankAmericard program in Minnesota. at 9a, 30a. The defendants sought to remove Marquette's action to Federal District Court. See 12 U.S. C. 94.[11] Marquette responded by dismissing without prejudice its action against Omaha Bank, see Fed. Rule Civ. Proc. 41 (a) (1) (i), and the District Court, citing remanded the case to the District Court of Hennepin County. Marquette Nat. Marquette thereupon moved for partial summary judgment to have Omaha Bank's BankAmericard program declared in violation of the Minnesota usury statute, Minn. Stat. 48.185[12] and permanently to enjoin the remaining defendants from engaging in *306 any activity in connection with the offering or operation of that program in further violation of Minnesota law. Defendants argued that the National Bank Act, Rev. Stat. 5197, as amended, 12 U.S. C. 85,[13] pre-empted Minn. Stat. 48.185 and enforcement of that statute against Omaha Bank's BankAmericard program. Upon being notified of this challenge to Minn. Stat. 48.185, the Attorney General of the State of Minnesota[14] intervened as a party plaintiff and joined in Marquette's prayer for a declaratory judgment and permanent injunction. The District Court of Hennepin County granted plaintiffs' motion for partial summary judgment, holding in an unreported opinion that "nothing contained in the National Bank Act, 12 U.S. C. 85, precludes or preempts the application and enforcement of Minnesota Statutes, 48.185 to the First National Bank of Omaha's BankAmericard program as solicited and operated in the State of Minnesota." App. 139a-140a. The court enjoined Omaha Service Corp., "as agent of the First National Bank of Omaha," from "engaging in any solicitation of residents of the State of Minnesota or other activity in connection with the offering or operation of a bank credit card program in the State of Minnesota in violation of Minnesota Statutes, 48.185."[15] at 140a-141a. On appeal, the Minnesota Supreme Court reversed. Noting that Marquette's dismissal of Omaha Bank was a procedural device that removed the |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | of Omaha Bank was a procedural device that removed the case from the jurisdiction of the federal courts of the Eighth Circuit, and noting that a recent decision of the Court of Appeals for the Eighth Circuit had made it plain that in its judgment the usury laws of Nebraska rather than Minnesota should govern the operation of Omaha Bank's BankAmericard program in Minnesota, see[16] the Minnesota Supreme Court concluded that it would be "inappropriate for this court to permit the use of procedural devices to obtain a result inconsistent with the existing doctrine in the Eighth Circuit."[17] Plaintiffs filed timely petitions for writs of certiorari,[18] which we granted, in order to decide the appropriate application of 12 U.S. C. 85. II In the present posture of this case Omaha Bank is no longer a party defendant. The federal question presented for decision is nevertheless the application of 12 U.S. C. 85 to the operation of Omaha Bank's BankAmericard program. There is no allegation in petitioners' complaints that either Omaha Service Corp. or the Minnesota merchants and banks participating in the BankAmericard program are themselves *308 extending credit in violation of Minn. Stat. 48.185 and we therefore have no occasion to determine the application of the National Bank Act in such a case. Omaha Bank is a national bank; it is an "instrumentalit[y] of the Federal government, created for a public purpose, and as such necessarily subject to the paramount authority of the United States." The interest rate that Omaha Bank may charge in its BankAmericard program is thus governed by federal law. See Farmers' & Mechanics' Nat. The provision of 85 called into question states: "Any association may take, receive, reserve, and charge on any loan or discount made, or upon any notes, bills of exchange, or other evidences of debt, interest at the rate allowed by the laws of the State, Territory, or District where the bank is located, and no more, except that where by the laws of any State a different rate is limited for banks organized under State laws, the rate so limited shall be allowed for associations organized or existing in any such State under this chapter." (Emphasis supplied.) Section 85 thus plainly provides that a national bank may charge interest "on any loan" at the rate allowed by the laws of the State in which the bank is "located." The question before us is therefore narrowed to whether Omaha Bank and its BankAmericard program are "located" in Nebraska and for that reason entitled to charge its Minnesota customers the rate of interest authorized |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | to charge its Minnesota customers the rate of interest authorized by Nebraska law.[19] *309 There is no question but that Omaha Bank itself, apart from its BankAmericard program, is located in Nebraska. Petitioners concede as much. See Brief for Petitioner in No. 77-1258, p. 3; Brief for Petitioner in No. 77-1265, pp. 3, 16, 33-. The National Bank Act requires a national bank to state in its organization certificate "[t]he place where its operations of discount and deposit are to be carried on, designating the State, Territory, or district, and the particular county and city, town, or village." Rev. Stat. 51, 12 U.S. C. 22. The charter address of Omaha Bank is in Omaha, Douglas County, Neb. The bank operates no branch banks in Minnesota, cf. Seattle Trust & Savings nor apparently could it under federal law.[20] See 12 U.S. C. 36 (c).[21] The State of Minnesota, however, contends that this conclusion *310 must be altered if Omaha Bank's BankAmericard program is considered: "In the context of a national bank which systematically solicits Minnesota residents for credit cards to be used in transactions with Minnesota merchants the bank must be deemed to be `located' in Minnesota for purposes of this credit card program." Reply Brief for Petitioner in No. 77-1258, p. 7. We disagree. Section 85 was originally enacted as 30 of the National Bank Act of 1864,[22][23] The congressional debates surrounding the enactment of 30 were conducted on the assumption that a national bank was "located" for purposes of the section in the State named in its organization certificate. See Cong. Globe, 38th Cong., 1st Sess., 2123-2127 (1864). Omaha Bank cannot be deprived of this location merely because it is extending credit to residents of a foreign State. Minnesota residents were always free to visit Nebraska and receive loans in that State. It has *311 not been suggested that Minnesota usury laws would apply to such transactions. Although the convenience of modern mail permits Minnesota residents holding Omaha Bank's BankAmericards to receive loans without visiting Nebraska, credit on the use of their cards is nevertheless similarly extended by Omaha Bank in Nebraska by the bank's honoring of the sales drafts of participating Minnesota merchants and banks.[24] Finance charges on the unpaid balances of cardholders *312 are assessed by the bank in Omaha, Neb., and all payments on unpaid balances are remitted to the bank in Omaha, Neb. Furthermore, the bank issues its BankAmericards in Omaha, Neb., after credit assessments made by the bank in that city. App. 30a. Nor can the fact that Omaha Bank's BankAmericards are used "in |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | can the fact that Omaha Bank's BankAmericards are used "in transactions with Minnesota merchants" be determinative of the bank's location for purposes of 85. The bank's BankAmericards enables its holder "to purchase goods and services from participating merchants and obtain cash advances from participating banks throughout the United States and the world." Stipulation of Facts, App. 91a. Minnesota residents can thus use their Omaha Bank BankAmericards to purchase services in the State of New York or mail-order goods from the State of Michigan. If the location of the bank were to depend on the whereabouts of each credit-card transaction, the meaning of the term "located" would be so stretched as to throw into confusion the complex system of modern interstate banking. A national bank could never be certain whether its contacts with residents of foreign States were sufficient to alter its location for purposes of 85. We do not choose to invite these difficulties by rendering so elastic the term "located." The mere fact that Omaha Bank has enrolled Minnesota residents, merchants, and banks in its *313 BankAmericard program thus does not suffice to "locate" that bank in Minnesota for purposes of 12 U.S. C. 85.[25] See Second Nat. Bank of Leavenworth v. Smoot, 9 Dall. C. 371, 373 (1876). III Since Omaha Bank and its BankAmericard program are "located" in Nebraska, the plain language of 85 provides that the bank may charge "on any loan" the rate "allowed" by the State of Nebraska. Petitioners contend, however, that this reading of the statute violates the basic legislative intent of the National Bank Act. See At the time Congress enacted 30 of the National Bank Act of 1864, so petitioners' argument runs, it intended "to insure competitive equality between state and national banks in the charging of interest." Brief for Petitioner in No. 77-1265, p. 24. This policy could best be effectuated by limiting national banks to the rate of interest allowed by the States in which the banks were located. Since Congress in 1864 was addressing a financial system in which incorporated banks were "local institutions," it did not "contemplate a national bank soliciting customers and entering loan agreements outside of the state in which it was established." Brief for Petitioner in No. 77-1258, p. 17. Therefore to interpret 85 to apply to interstate loans such as those involved in this case would not only enlarge impermissibly the original intent of Congress, but would also undercut the basic policy *314 foundations of the statute by upsetting the competitive equality now existing between state and national banks. We cannot accept petitioners' |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | existing between state and national banks. We cannot accept petitioners' argument. Whatever policy of "competitive equality" has been discerned in other sections of the National Bank Act, see e. g., First Nat. ; First Nat. Bank of 30 and its descendants have been interpreted for over a century to give "advantages to National banks over their State competitors." "National banks," it was said in Tiffany, "have been National favorites."[26] The policy of competitive equality between state and national banks, however, is not truly at the core of this case. Instead we are confronted by the inequalities that occur when a national bank applies the interest rates of its home State in its dealing with residents of a foreign State. These inequalities affect both national and state banks in the foreign State. Indeed, in the instant case Marquette is a national bank claiming to be injured by the unequal interest rates charged by another national bank.[27] Whether the inequalities which thus occur when the interest rates of one State are "exported" into another violate the intent of Congress in enacting 30 in part depends on whether Congress in 1864 was aware of the existence of a system of interstate banking in which such inequalities would seem a necessary part. Close examination of the National Bank Act of 1864, its legislative history, and its historical context makes clear that, contrary to the suggestion of petitioners, Congress intended *315 to facilitate what Representative Hooper[28] termed a "national banking system." Cong. Globe, 38th Cong., 1st Sess., 1451 (1864). See also Report of the Comptroller of the Currency 4 (1864). Section 31 of the Act, for example fully recognized the interstate nature of American banking by providing that three-fifths of the 15% of the aggregate amount of their notes in circulation that national banks were required to "have on hand, in lawful money" could "consist of balances due to an association available for the redemption of its circulating notes from associations approved by the comptroller of the currency, organized under this act, in the cities of Saint Louis, Louisville, Chicago, Detroit, Milwaukie [sic], New Orleans, Cincinnati, Cleveland, Pittsburg, Baltimore, Philadelphia, Boston, New York, Albany, Leavenworth, San Francisco, and Washington City." 109.[29] *316 The debates surrounding the enactment of this section portray a banking system of great regional interdependence. Senator Chandler of Michigan, for example, noted: "[T]he banking business of the Northwest is done upon bills of exchange. The wool clip of Michigan, the wheat crop of Michigan, the hog crop of Iowa, are all purchased with drafts drawn chiefly upon [New York, Philadelphia, and Boston]. |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | with drafts drawn chiefly upon [New York, Philadelphia, and Boston]. The wool clip is chiefly bought by drafts upon Boston. I put in the three cities because it is convenient to the customer, to the broker, to the merchant, to be enabled to purchase a draft upon either one of these three places." Cong. Globe, 38th Cong., 1st Sess., 2144 (1864).[30] See also at 13, 1376, 2143-2145, 2152, 2181-2182. Similarly, the debates surrounding the enactment of 41 of the Act, which provided that the shares of a national bank could be taxed as personal property "in the assessment of taxes imposed by or under state authority at the place where such bank is located, and not elsewhere," demonstrated *317 a sensitive awareness of the possibilities of interstate ownership and control of national banks. See, e. g., Cong. Globe, 38th Cong., 1st Sess., 1271, 1898-1899 (1864). Although in the debates surrounding the enactment of 30 there is no specific discussion of the impact of interstate loans, these debates occurred in the context of a developed interstate loan market. As early as 1839 this Court had occasion to note: "Money is frequently borrowed in one state, by a corporation created in another. The numerous banks established by different states are in the constant habit of contracting and dealing with one another. These usages of commerce and trade have been so general and public, and have been practiced for so long a period of time, and so generally acquiesced in by the states, that the Court cannot overlook them" Bank of Examples of this interstate loan market have been noted by historians of American banking. See, e. g., 1 F. Redlich, The Molding of American Banking 49 (1968); 1 F. James, The Growth of Chicago Banks 546 (1938); Breckenridge, Discount Rates in the United States, 13 Pol. Sci. Q. 119, 136-138 (1898). Evidence of this market is to be found in the numerous judicial decisions in cases arising out of interstate loan transactions. See, e. g., ; ; Planters ; ; ; Curtis v. Leavitt, 15 N. Y.9 (1857). After passage of the National Bank Act of 1864, cases involving interstate loans begin to appear with some frequency in federal courts. See, e. g., In re Wild, (No. 17,645) (SDNY 1873); (No. 2,279) (SDNY 1873); Farmers' Nat. ; Second Nat. Bank of Leavenworth v. Smoot, 9 Dall. C. 371 (1876). *318 We cannot assume that Congress was oblivious to the existence of such common commercial transactions. We find it implausible to conclude, therefore, that Congress meant through its silence to exempt interstate loans |
Justice Brennan | 1,978 | 13 | majority | Marquette Nat. Bank v. First of Omaha Corp. | https://www.courtlistener.com/opinion/109962/marquette-nat-bank-v-first-of-omaha-corp/ | that Congress meant through its silence to exempt interstate loans from the reach of 30. We would certainly be exceedingly reluctant to read such a hiatus into the regulatory scheme of 30 in the absence of evidence of specific congressional intent. Petitioners have adduced no such evidence. Petitioners' final argument is that the "exportation" of interest rates, such as occurred in this case, will significantly impair the ability of States to enact effective usury laws. This impairment, however, has always been implicit in the structure of the National Bank Act, since citizens of one State were free to visit a neighboring State to receive credit at foreign interest rates.[31] Cf. 38 Cong. Globe, 38th Cong., 1st Sess., 2123 (1864). This impairment may in fact be accentuated by the ease with which interstate credit is available by *319 mail through the use of modern credit cards. But the protection of state usury laws is an issue of legislative policy, and any plea to alter 85 to further that end is better addressed to the wisdom of Congress than to the judgment of this Court. Affirmed. |
Justice Marshall | 1,983 | 15 | concurring | Bush v. Lucas | https://www.courtlistener.com/opinion/110965/bush-v-lucas/ | I join the Court's opinion because I agree that there are "special factors counselling hesitation in the absence of affirmative action by Congress." I write separately only to emphasize that in my view a different case would be presented if Congress had not created a comprehensive scheme that was specifically designed to provide full compensation to civil service employees who are discharged or disciplined in violation of their First Amendment rights, cf. ; and that affords a remedy that is substantially as effective as a damages action. Although petitioner may be correct that the administrative procedure created by Congress, unlike a Bivens action,[*] does *391 not permit recovery for loss due to emotional distress and mental anguish, Congress plainly intended to provide what it regarded as full compensatory relief when it enacted the Back Pay Act of 1966, 5 U.S. C. 5596 (1982 ed.). The Act was designed to "pu[t] the employee in the same position he would have been in had the unjustified or erroneous personnel action not taken place." See S. Rep. No. 1062, 89th Cong., 2d Sess., 1 (1966). See H. R. Rep. No. 32, 89th Cong., 1st Sess., 5 ; cf. Moreover, there is nothing in today's decision to foreclose a federal employee from pursuing a Bivens remedy where his injury is not attributable to personnel actions which may be remedied under the federal statutory scheme. I cannot agree with petitioner's assertion that civil service remedies are substantially less effective than an individual damages remedy. See ante, at 372. To begin with, the procedure provided by the civil service scheme is in many respects preferable to the judicial procedure under a Bivens action. See Brief for Respondent 18-21. For example, the burden of proof in an action before the Civil Service Commission (now the Merit Systems Protection Board) must be borne by the agency, rather than by the discharged employee. See Civil Service Commission, Conducting Hearings on Employee Appeals 11 (1968); cf. (CA2), cert. denied, ; Moreover, the employee is not required to overcome the qualified immunity of executive officials as he might be required to in a suit for money damages. See Finally, an administrative action is likely to prove speedier and less costly than a lawsuit. These advantages are not clearly outweighed by the obvious and significant disadvantages of the civil service procedure that it denies the claimant the option of a jury trial, see at 22-, and that it affords *392 only limited judicial review rather than a full trial in federal court, see As the Court emphasizes, "[t]he question is not |
Justice Rehnquist | 1,979 | 19 | dissenting | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | [*] The Court's affirmance of a District Court's injunction against a prison practice which has not been shown to violate the Constitution can only be considered an aberration in light of decisions as recently as last Term carefully defining the remedial discretion of the federal courts. Board of ; Nor are any of the several theories which the Court advances in support of its affirmance of the assessment of attorney's fees against the taxpayers of Arkansas sufficiently convincing to overcome the prohibition of the Eleventh Amendment. Accordingly, I dissent. *711 I No person of ordinary feeling could fail to be moved by the Court's recitation of the conditions formerly prevailing in the Arkansas prison system. Yet I fear that the Court has allowed itself to be moved beyond the well-established bounds limiting the exercise of remedial authority by the federal district courts. The purpose and extent of that discretion in another context were carefully defined by the Court's opinion last Term in Milliken at 0-1: "In the first place, like other equitable remedies, the nature of the desegregation remedy is to be determined by the nature and scope of the constitutional violation. 402 U. S. [1,] 16 []. The remedy must therefore be related to `the condition alleged to offend the Constitution.' Milliken [v. Bradley], 418 U. S. [717,] 738 []. Second, the decree must indeed be remedial in nature, that is, it must be designed as nearly as possible `to restore the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct.' Third, the federal courts in devising a remedy must take into account the interests of state and local authorities in managing their own affairs, consistent with the Constitution." (Footnotes omitted.)[1] *712 The District Court's order limiting the maximum period of punitive isolation to 30 days in no way relates to any condition found offensive to the Constitution. It is, when stripped of descriptive verbiage, a prophylactic rule, doubtless well designed to assure a more humane prison system in Arkansas, but not complying with the limitations set forth in Milliken Petitioners do not dispute the District Court's conclusion that the overcrowded conditions and the inadequate diet provided for those prisoners in punitive isolation offended the Constitution, but the District Court has ordered a cessation of those practices. The District Court found that the confinement of two prisoners in a single cell on a restricted diet for 30 days did not violate the Eighth Amendment. While the Court today remarks that "the length of confinement cannot be ignored," ante, at 686, it |
Justice Rehnquist | 1,979 | 19 | dissenting | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | length of confinement cannot be ignored," ante, at 686, it does not find that confinement under the conditions described by the District Court becomes unconstitutional on the 31st day. It must seek other justifications for its affirmance of that portion of the District Court's order. Certainly the provision is not remedial in the sense that it "restore[s] the victims of discriminatory conduct to the position they would have occupied in the absence of such conduct." The sole effect of the provision is to grant future offenders against prison discipline greater benefits than the Constitution requires; it does nothing to remedy the plight of past victims of conditions which may well have been unconstitutional. A prison is unlike a school system, in which students in the later grades may receive special instruction to compensate for discrimination to which they were subjected in the *713 earlier grades. Milliken Nor has it been shown that petitioners' conduct had any collateral effect upon private actions for which the District Court may seek to compensate so as to eliminate the continuing effect of past unconstitutional conduct. See Even where such remedial relief is justified, a district court may go no further than is necessary to eliminate the consequences of official unconstitutional conduct. ; Pasadena Board of ; The Court's only asserted justification for its affirmance of the decree, despite its dissimilarity to remedial decrees in other contexts, is that it is "a mechanicaland therefore an easily enforcedmethod of minimizing overcrowding." Ante, at 688 n. 11. This conclusion fails adequately to take into account the third consideration cited in Milliken : "the interests of state and local authorities in managing their own affairs, consistent with the Constitution." 433 U.S., at 1. The prohibition against extended punitive isolation, a practice which has not been shown to be inconsistent with the Constitution, can only be defended because of the difficulty of policing the District Court's explicit injunction against the overcrowding and inadequate diet which have been found to be violative of the Constitution. But even if such an expansion of remedial authority could be justified in a case where the defendants had been repeatedly contumacious, this is not such a case. The District Court's dissatisfaction with petitioners' performance under its earlier direction to "make a substantial start," on alleviating unconstitutional conditions cannot support an inference that petitioners are prepared to defy the specific orders now laid down by the District Court and not challenged by the petitioners. A proper respect for "the interests of state and local authorities in managing their own *714 affairs," Milliken 433 U. S., |
Justice Rehnquist | 1,979 | 19 | dissenting | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | in managing their own *714 affairs," Milliken 433 U. S., at 1, requires the opposite conclusion.[2] The District Court's order enjoins a practice which has not been found inconsistent with the Constitution. The only ground for the injunction, therefore, is the prophylactic one of assuring that no unconstitutional conduct will occur in the future. In a unitary system of prison management there would be much to be said for such a rule, but neither this Court nor any other federal court is entrusted with such a management role under the Constitution. The Court advances separate theories to support the separate awards of attorney's fees in this case. First, the Court holds that the taxpayers of Arkansas may be held responsible for the bad faith of their officials in the litigation before the District Court. Second, it concludes that the award of fees in the Court of Appeals, where there was no bad faith, is authorized by the Civil Rights Attorney's Fees Awards Act of Stat. 2641, 42 U.S. C. 1988 ( ed.). The first holding results in a totally unnecessary intrusion upon the State's conduct of its own affairs, and the second is not supportable under this Court's earlier decisions outlining congressional authority to abrogate the protections of the Eleventh Amendment. A Petitioners do not contest the District Court's finding that they acted in bad faith. For this reason, the Court has no *715 occasion to address the nature of the showing necessary to support an award of attorney's fees for bad faith under Alyeska Pipeline Service The only issue before us is whether a proper finding of bad faith on the part of state officials will support an award of attorney's fees directly against the state treasury under the ancillary-effect doctrine of The ancillary-effect doctrine recognized in Edelman is a necessary concomitant of a federal court's authority to require state officials to conform their conduct to the dictates of the Constitution. "State officials, in order to shape their official conduct to the mandate of the Court's decrees, would more likely have to spend money from the state treasury than if they had been left free to pursue their previous course of conduct." at The Court today suggests that a federal court may impose a retroactive financial penalty upon a State when it fails to comply with prospective relief previously and validly ordered. "If a state agency refuses to adhere to a court order, a financial penalty may be the most effective means of insuring compliance." Ante, at 691. This application of the ancillary-effect doctrine has never before been recognized |
Justice Rehnquist | 1,979 | 19 | dissenting | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | application of the ancillary-effect doctrine has never before been recognized by this Court, and there is no need to do so in this case, since it has not been shown that these petitioners have "refuse[d] to adhere to a court order." A State's jealous defense of its authority to operate its own correctional system cannot casually be equated with contempt of court.[3] *716 Even were I to agree with the Court that petitioners had willfully defied federal decrees, I could not conclude that the award of fees against the taxpayers of Arkansas would be justified, since there is a less intrusive means of insuring respondents' right to relief. It is sufficient to order an award of fees against those defendants, acting in their official capacity, who are personally responsible for the recalcitrance which the District Court wishes to penalize. There is no reason for the federal courts to engage in speculation as to whether the imposition of a fine against the State is "less intrusive" than "sending high state officials to jail." So long as the rights of the plaintiffs and the authority of the District Court are amply vindicated by an award of fees, it should be a matter of no concern to the court whether those fees are paid by state officials personally or by the State itself. The Arkansas Legislature has already made statutory provision for deciding when its officials shall be reimbursed by the State for judgments ordered by the federal courts. 1977 Ark. Gen. Act No. 543. The Court presents no persuasive reason for its conclusion that the decision of who must pay such fees may not safely be left to the State involved. It insists, ante, at 699 n. 32, that it is "manifestly unfair" to leave the individual state officers to pay the award of counsel fees rather than permitting their collection directly from the state treasury. But petitioners do not contest the District Court's finding that they acted in bad faith, and thus the Court's insistence that it is "unfair" to impose attorney's fees on them individually rings somewhat hollow.[4] Even in a case where the equities were more strongly in favor of the individual state officials (as opposed to the State as an entity) than they are in this case, *717 the possibility of individual liability in damages of a state official where the State itself could not be held liable is as old as Ex parte Young, and has been repeatedly reaffirmed by decisions of this Court. Great Northern Life Insurance : Ford Motor ; Since the Court evidences no |
Justice Rehnquist | 1,979 | 19 | dissenting | Hutto v. Finney | https://www.courtlistener.com/opinion/109919/hutto-v-finney/ | Insurance : Ford Motor ; Since the Court evidences no disagreement with this line of cases, its assertion of "unfairness" is not only doubtful in fact but also irrelevant as a matter of law. Likewise, the Court's fear that imposition of liability would inhibit state officials in the fearless exercise of their duties may be remedied, if deemed desirable, by legislation in each of the various States similar to that which Arkansas has already enacted. B For the reasons stated in the dissenting portion of my Brother POWELL'S opinion, which I join, I do not agree that the Civil Rights Attorney's Fees Awards Act of can be considered a valid congressional abrogation of the State's Eleventh Amendment immunity. I have in addition serious reservations about the lack of any analysis accompanying the Court's transposition of the holding of to this case. In we held that under 5 of the Fourteenth Amendment Congress could explicitly allow for recovery against state agencies without violating the Eleventh Amendment. But in there was conceded to be a violation of the Equal Protection Clause which is contained in haec verba in the language of the Fourteenth Amendment itself. In this case the claimed constitutional violation is the infliction of cruel and unusual punishment, which is expressly prohibited by the Eighth but not by the Fourteenth Amendment. While the Court has held that the Fourteenth Amendment "incorporates" the prohibition against cruel and unusual punishment, it is not at all clear to me that if follows that Congress has the same enforcement power *718 under 5 with respect to a constitutional provision which has merely been judicially "incorporated" into the Fourteenth Amendment that it has with respect to a provision which was placed in that Amendment by the drafters. I would therefore reverse the judgment of the Court of Appeals in its entirety. |
Justice Stewart | 1,976 | 18 | majority | Naacp v. Fpc | https://www.courtlistener.com/opinion/109446/naacp-v-fpc/ | The issue in this case is to what extent, if any, the Federal Power Commission, in the performance of its functions under the Federal Power Act, as amended, 16 U.S. C. 791a et seq. (Power Act), and the Natural Gas Act, as amended, 15 U.S. C. 717 et seq. (Gas Act), has authority to prohibit discriminatory employment practices on the part of its regulatees. *664 I In 1972 the National Association for the Advancement of Colored People (NAACP) and several other organizations petitioned the Commission to issue a rule "requiring equal employment opportunity and nondiscrimination in the employment practices of its regulatees." The proposed rule would have required the regulated companies to adopt affirmative action programs to combat discrimination in employment and would have given any person who believed himself to have been subjected to employment discrimination by any such company the right to file a complaint with the Commission.[1] The Commission refused to adopt the proposed rule, holding that it had no jurisdiction to do so because "the purposes of the Natural Gas and Federal Power Acts are economic regulation of entrepreneurs engaged in resource developments. So considered, we do not find the necessary nexus between those aspects of our economic regulatory activities and the employment procedures of the utility systems which we regulate, as would justify [adopting petitioners' proposed rule]." 48 F. P. C. 40, 44. On petition for review, the Court of Appeals for the District of Columbia Circuit agreed that the Commission was without "power to prescribe personnel practices in detail and to receive complaints, adjudicate them, and punish directly infractions of those practices." 172 U. S. App. D. C. 32, 35, The court held, however, that the Commission does have "power to take *665 into account, in the performance of its regulatory functions, including licensing and rate review, evidence that the regulatee is a demonstrated discriminator in its employment relations." Because of doubt as to the Commission's recognition of any power on its part to take into account the employment practices of its regulatees even in the narrower sense described above, the Court of Appeals vacated the Commission's order and remanded the case. The Commission and the NAACP each petitioned for certiorari, and we granted both petitions in order to consider the scope of the Commission's authority to deal with discriminatory employment practices on the part of the companies that it regulates. II The question presented is not whether the elimination of discrimination from our society is an important national goal. It clearly is. The question is not whether Congress could authorize the Federal Power |
Justice Stewart | 1,976 | 18 | majority | Naacp v. Fpc | https://www.courtlistener.com/opinion/109446/naacp-v-fpc/ | question is not whether Congress could authorize the Federal Power Commission to combat such discrimination. It clearly could. The question is simply whether or to what extent Congress did grant the Commission such authority. Two possible statutory bases have been advanced to justify the conclusion that the Commission can or must concern itself with discriminatory employment practices on the part of the companies it regulates.[2] *666 The first of these statutory bases is the legislative command to the Commission under the Power and Gas Acts to establish "just and reasonable" rates for the transmission and sale of electric energy, 16 U.S. C. 824d (a), and for the transportation and sale of natural gas, 15 U.S. C. 717c (a), and, consequently, to allow only such rates as will prevent consumers from being charged any unnecessary or illegal costs.[3] The second and broader statutory basis advanced for Commission regulation of employment discrimination is the Commission's asserted duty to advance the public interest. The NAACP notes that Congress found that "the business of transmitting and selling electric energy for ultimate distribution to the public is affected with a public interest," 16 U.S. C. 824 (a), and that "the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest," 15 U.S. C. 717 (a). From these and other references to the "public interest" in the Gas and Power Acts,[4] it is argued that the Commission is charged with advancing the public interest in general, and that the Commission is thus authorized if not required to promulgate rules prohibiting its regulatees from engaging in discriminatory employment practices, since ending discrimination in employment is in the public interest. A The Court of Appeals basically accepted the first of these statutory arguments: "The Commission's task in protecting the consumer *667 against exploitation can be alternatively described as the task of seeing that no unnecessary or illegitimate costs are passed along to that consumer. Costs incurred by reason of a regulatee's choosing to practice racial discrimination are within the reach of that responsibility. Without attempting an exhaustive enumeration of such costs, we identify at least the following as indicative of those arguably within the Commission's range of concern: (1) duplicative labor costs incurred in the form of back pay recoveries by employees who have proven that they were discriminatorily denied employment or advancement, (2) the costs of losing valuable government contracts terminated because of employment discrimination, (3) the costs of legal proceedings in either of these two categories, (4) the costs of strikes, demonstrations, and boycotts aimed against regulatees |
Justice Stewart | 1,976 | 18 | majority | Naacp v. Fpc | https://www.courtlistener.com/opinion/109446/naacp-v-fpc/ | the costs of strikes, demonstrations, and boycotts aimed against regulatees because of employment discrimination, (5) excessive labor costs incurred because of the elimination from the prospective labor force of those who are discriminated against, and (6) the costs of inefficiency among minority employees demoralized by discriminatory barriers to their fair treatment or promotion. "Obviously such costs of employment discrimination range from the very definite and easily ascertainable to the very questionable and virtually unquantifiable. The problem of how to see that they are not borne by the consumer could arise in any number of different regulatory contexts, including both rate and certificate proceedings. We therefore do not attempt to detail all the various ways the Commission may thus `regulate' employment discrimination, leaving this in the first instance to the Commission itself." 172 U. S. App. D. C., at 44, *668 Without necessarily endorsing the specific identification of the costs "arguably within" the Commission's "range of concern," we agree with the basic conclusion of the Court of Appeals on this branch of the case. The Commission clearly has the duty to prevent its regulatees from charging rates based upon illegal, duplicative, or unnecessary labor costs. To the extent that such costs are demonstrably the product of a regulatee's discriminatory employment practices, the Commission should disallow them. For example, when a company complies with a backpay award resulting from a finding of employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S. C. 2000e et seq., it pays twice for work that was performed only once. The amount of the backpay award, therefore, can and should be disallowed as an unnecessary cost in a ratemaking proceeding. To the extent that these and other similar costs, such as attorneys' fees, can be or have been demonstrably quantified by judicial decree or the final action of an administrative agency charged with consideration of such matters, the Commission clearly should treat these costs as it treats any other illegal, unnecessary, or duplicative costs. We were told by counsel during oral argument that the Commission would routinely disallow the costs of a backpay award resulting from an order of the National Labor Relations Board or the decree of a court based upon a finding of an unfair labor practice. The governing principle is no different in the area of discriminatory employment practices. As a general proposition it is clear that the Commission has the discretion to decide whether to approach these problems through the process of rulemaking, individual adjudication, or a combination of the two procedures. The present Commission practice, |
Justice Stewart | 1,976 | 18 | majority | Naacp v. Fpc | https://www.courtlistener.com/opinion/109446/naacp-v-fpc/ | a combination of the two procedures. The present Commission practice, we are told, is to consider *669 such questions only in individual ratemaking proceedings, under its detailed accounting procedures. Assuming that the Commission continues that practice, it has ample authority to consider whatever evidence and make whatever inquiries are necessary to determine whether a regulatee has incurred unnecessary or illegitimate costs because of racially discriminatory employment practices. 15 U.S. C. 717c (e), 717m; 16 U.S. C. 824d (e), 824f. B The Court of Appeals rejected the broader argument based upon the statutory criterion of "public interest," and we hold that it was correct in doing so. This Court's cases have consistently held that the use of the words "public interest" in a regulatory statute is not a broad license to promote the general public welfare. Rather, the words take meaning from the purposes of the regulatory legislation. For example, in the case of the Interstate Commerce Commission, which is responsible for enforcing an Act "designed to assure adequacy in transportation service," "the term `public interest' is not a concept without ascertainable criteria, but has direct relation to adequacy of transportation service, to its essential conditions of economy and efficiency, and to appropriate provision and best use of transportation facilities" New York Central Securities See also New Haven Inclusion Cases, ; National Broadcasting ; Federal Radio Thus, in order to give content and meaning to the words "public interest" as used in the Power and Gas Acts, it is necessary to look to the purposes for which the Acts were adopted. In the case of the Power and Gas Acts it is clear that the principal purpose of those *670 Acts was to encourage the orderly development of plentiful supplies of electricity and natural gas at reasonable prices.[5] While there are undoubtedly other subsidiary purposes contained in these Acts,[6] the parties point to nothing in the Acts or their legislative histories to indicate that the elimination of employment discrimination was one of the purposes that Congress had in mind when it enacted this legislation. The use of the words "public interest" in the Gas and Power Acts is not a directive to the Commission to seek to eradicate discrimination, but, rather, is a charge to promote the orderly production of plentiful supplies of electric energy and natural gas at just and reasonable rates.[7] *671 It is useful again to draw on the analogy of federal labor law. No less than in the federal legislation defining the national interest in ending employment discrimination, Congress in its earlier labor legislation unmistakably defined the |
Justice O'Connor | 1,986 | 14 | concurring | Diamond v. Charles | https://www.courtlistener.com/opinion/111661/diamond-v-charles/ | I join the Court's judgment and Part I of its opinion, and I agree with much of the Court's discussion of why Dr. Diamond's asserted interests in defending the Illinois Abortion Law do not satisfy the Art. III standing requirement. I write separately, however, because I do not agree with the Court's reasons for rejecting Dr. Diamond's contention that Illinois' presence as an appellee ensures that a justiciable controversy is before us. In my view, Dr. Diamond was not a proper intervenor in the Court of Appeals, and therefore Illinois is not before this Court in any capacity, because Diamond was not authorized to bring this appeal under 28 U.S. C. 1254(2). The Court assumes that Diamond could properly bring an appeal under 1254(2) and therefore that Illinois is present in this Court as an appellee under this Court's Rule 10.4. The Court then asserts that Illinois is not "the functional equivalent of an appellant" by virtue of its status as a party under Rule 10.4. Ante, at 62-63. On this basis, the Court concludes that Illinois' "failure to invoke our jurisdiction leaves the Court without a `case' or `controversy' between *72 appellees and the State of Illinois," ante, at 63-64, even if Illinois' interests are actually adverse to appellees' interests. I believe this analysis is needlessly inconsistent with this Court's opinion in Director, which holds that once a case is properly brought here the case-or-controversy requirement can be satisfied even if the parties who are asserting their adverse interests before this Court are not formally aligned as adversaries. In Perini, an employee injured while performing his job filed a claim for compensation under the Longshoremen's and Harbor Workers' Compensation Act. The employer denied that the employee was covered by the Act, and an Administrative Law Judge found for the employer. At that point, the Director, Office of Workers' Compensation Programs, joined the employee in an appeal to the Benefits Review Board. -301. The Board affirmed the denial of coverage, and the employee sought review of its decision in the Court of Appeals, where the Director participated as a respondent. The Court of Appeals denied the employee's petition, and the Director but not the employee filed a petition for certiorari in this Court. 303. The employee did, however, file a brief in support of the Director's petition for certiorari and a brief on the merits after certiorari was granted. In this Court, the employer challenged the Director's standing to seek review of the Court of Appeals' decision. Without deciding whether the Director had standing, we held that "the |
Justice O'Connor | 1,986 | 14 | concurring | Diamond v. Charles | https://www.courtlistener.com/opinion/111661/diamond-v-charles/ | deciding whether the Director had standing, we held that "the presence of [the employee] as a party respondent arguing for his coverage under the Act assures that an admittedly justiciable controversy is now before the Court." The basis for our holding was the employer's concession that the Director was a proper party respondent before the Court of Appeals. As a proper party in the Court of Appeals, the Director had "statutory authority to seek review in this Court" under 28 *73 U. S. C. 1254(1), which authorizes a grant of certiorari "upon the petition of any party" below. See and n. 13. Therefore, whether or not the Director had standing in this Court, the Director's petition brought the employee before the Court as a party respondent pursuant to this Court's Rule 19.6. -304, and n. 12. Because the employee clearly had standing, and actively asserted his adverse interests in this Court, a live case or controversy was presented. In two important respects this case is directly analogous to Perini. First, 1254(2) provides that "a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution. of the United States" may bring an appeal to this Court (emphasis added). Consequently, if Dr. Diamond was a proper party in the Court of Appeals, his statutorily authorized appeal brought this case here, just as the Director's petition for certiorari brought Perini to this Court. Second, since Rule 10.4 parallels, as to appeals in this Court, the provisions of Rule 19.6 for cases which come here by way of certiorari, Illinois' presence as an appellee, like the presence of the employee in Perini as a respondent, can satisfy the requirements of a live case or controversy even if the party who brought the case here lacks standing. I therefore disagree with the Court's apparent conclusion that the mere fact that Illinois is not an appellant ends the inquiry into whether its presence here assures a live case or controversy. Perini is fairly distinguishable from this case, however, because in my view Dr. Diamond was not a proper intervenor, at least not in the Court of Appeals, and consequently was not a "party" authorized to bring an appeal here. Appellees contend that "[i]ntervenor claimed no justiciable interest in any of the four provisions before this Court when he sought to intervene below." Brief for Appellees 14. The Courts of Appeals have expressed differing views as to the relationship between the interest required to confer standing and the *74 interest required to intervene under Rule 24 of |
Justice O'Connor | 1,986 | 14 | concurring | Diamond v. Charles | https://www.courtlistener.com/opinion/111661/diamond-v-charles/ | the *74 interest required to intervene under Rule 24 of the Federal Rules of Civil Procedure. See ante, at 68, and n. 21. Like the Court, I find it unnecessary to decide that question, because the challenge to Diamond's standing subsumes a challenge to the sufficiency of his interest as an intervenor for purposes of Rule 24. Appellees challenged the propriety of Diamond's intervention in the District Court, and although they did not raise this issue in the Court of Appeals I believe it may properly be considered since, under Perini, it bears on whether a justiciable controversy is presented in this Court. If Diamond was not a proper party in the Court of Appeals, his appeal is clearly improper under 1254(2). Rule 24(a)(2) provides that a person "shall be permitted to intervene in an action when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties" (emphasis added). Rule 24(b)(2) provides that a person "may be permitted to intervene in an action when an applicant's claim or defense and the main action have a question of law or fact in common. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties" (emphasis added). The District Court did not explain whether it granted intervention as of right under Rule 24(a)(2) or permissive intervention under Rule 24(b)(2), and hence it is necessary to consider whether the interests Diamond advanced could have made him a proper intervenor on either theory in the Court of Appeals. This Court's decision in establishes that Diamond's asserted interests in the provisions at issue in the Court of Appeals fall well outside the ambit of Rule 24(a)(2), and it is likewise apparent that he was not entitled to permissive intervention under Rule 24(b)(2). Donaldson held that a taxpayer was not entitled to intervene as of right in a proceeding to enforce an internal revenue summons directed to his former employer, and ordering the employer to produce its records concerning the taxpayer for use in a civil investigation of the taxpayer. The Court recognized that the taxpayer had an interest in the records because they presumably contained details of payments from his employer to him "possessing significance for federal income tax purposes." Nonetheless, since this interest was "nothing more than |
Justice O'Connor | 1,986 | 14 | concurring | Diamond v. Charles | https://www.courtlistener.com/opinion/111661/diamond-v-charles/ | tax purposes." Nonetheless, since this interest was "nothing more than a desire" by the taxpayer to overcome his employer's "willingness, under summons, to comply and to produce records," the Court held: "This interest cannot be the kind contemplated by Rule 24(a)(2) when it speaks in general terms of `an interest relating to the property or transaction which is the subject of the action.' What is obviously meant there is a significantly protectable interest." Clearly, Donaldson's requirement of a "significantly protectable interest" calls for a direct and concrete interest that is accorded some degree of legal protection. See Tiffany Fine Arts, ; New Orleans Public Service, ; Southern Christian Leadership See also Advisory Committee's Notes on Fed. Rule Civ. Proc. 24, 28 U.S. C. App., p. 567. The abstract interests advanced by Diamond are if anything less "significantly protectable" than the interest of the *76 taxpayer in Donaldson, who alleged that the summons was unlawful because it was part of an investigation for purposes of criminal prosecution. See Diamond's speculative claim that his practice may benefit from the Illinois Abortion Law bespeaks a highly contingent financial interest far less tangible than that of the taxpayer in Donaldson, who faced a palpable threat of tax liability; Diamond's "desire that the Illinois Abortion Law as written be obeyed," ante, at 66, should fare no better than the taxpayer's desire to prevent his employer from putting him at risk by complying with the summons; and Diamond's asserted interests as a father and a parent are indistinguishable from the interests of any beneficiary of the provisions of a criminal law. I discern nothing in any of the provisions of the Illinois Abortion Law that were challenged in the Court of Appeals to suggest that Illinois meant to vest physicians, parents, or daughters with "significantly protectable interest[s]." Illinois enacted a criminal law which it would itself enforce, thereby making violators liable to the public as a whole, not to those members of the public who might in some degree benefit from the law's enactment or enforcement. Under these circumstances, it seems clear as a matter of interpreting Rule 24(a)(2) that only the State has a "significantly protectable interest" in undertaking to defend the standards contained in its criminal law, since there is no indication that Illinois intended to confer legally protectible interest on particular beneficiaries of that law. Diamond's cause is not helped by Rule 24(b)(2), for he fails to satisfy the Rule's requirement, which has remained intact since it was first adopted in 1938, that "an applicant's claim or defense and the main action have |
Justice O'Connor | 1,986 | 14 | concurring | Diamond v. Charles | https://www.courtlistener.com/opinion/111661/diamond-v-charles/ | "an applicant's claim or defense and the main action have a question of law or fact in common." The words "claim or defense" manifestly refer to the kinds of claims or defenses that can be raised in courts of law as part of an actual or impending law suit, as is confirmed by Rule 24(c)'s requirement that a person desiring to intervene *77 serve a motion stating "the grounds therefor" and "accompanied by a pleading setting forth the claim or defense for which intervention is sought." Thus, although permissive intervention "plainly dispenses with any requirement that the intervenor shall have a direct personal or pecuniary interest in the subject of the litigation," it plainly does require an interest sufficient to support a legal claim or defense which is "founded upon [that] interest" and which satisfies the Rule's commonality requirement. Dr. Diamond simply has no claim or defense in this sense; he asserts no actual, present interest that would permit him to sue or be sued by appellees, or the State of Illinois, or anyone else, in an action sharing common questions of law or fact with those at issue in this litigation. This analysis is not affected by any potential liability for attorney's fees to which Diamond may be subject in connection with his intervention in this litigation. I agree with the Court that any such liability is "a byproduct of the suit itself," ante, at 70-71, and as such it cannot have served as a basis for intervention in the Court of Appeals. At oral argument the question was raised whether Diamond, if not a proper intervenor, could nonetheless be considered a party against whom attorney's fees may be awarded to "the prevailing party" under 42 U.S. C. 1988. That issue, however, is not before this Court, since an award of attorney's fees is "uniquely separable from the cause of action" on the merits, ; and the proceedings in the District Court concerning attorney's fees are neither contained in the record before us nor the subject of the questions presented in Diamond's jurisdictional statement. Accordingly, I express no view as to whether an award of attorney's fees against Dr. Diamond would be *78 proper with respect to any proceedings in which he was not a proper intervenor. Dr. Diamond, then, was not a proper intervenor in the Court of Appeals, although of course it would have been open to that court to allow him to file a brief as an amicus curiae. Accordingly, Dr. Diamond was not authorized to bring an appeal in this Court, and the appeal must |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | The Armed Career Criminal Act imposes a special mandatory 15-year prison term upon felons who unlawfully possess a firearm and who have three or more previous convictions for committing certain drug crimes or "violent felon[ies]." (e)(1) (2000 ed., Supp. V). The question in this case is whether driving under the influence of alcohol is a "violent felony" as the Act defines it. We conclude that it is not. I A Federal law prohibits a previously convicted felon from possessing a firearm. 922(g)(1) (2000 ed.). A related provision provides for a prison term of up to 10 years for an ordinary offender. 924(a)(2). The Armed Career Criminal Act imposes a more stringent 15-year mandatory minimum sentence on an offender who has three prior convictions "for a violent felony or a serious drug offense." 924(e)(1) (2000 ed., Supp. V). The Act defines a "violent felony" as "any crime punishable by imprisonment for a term exceeding one year" that "(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or "(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another." 924(e)(2)(B) (2000 ed.). We here consider whether driving under the influence of alcohol (DUI), as set forth in New Mexico's criminal statutes, falls within the scope of the second clause. B The relevant background circumstances include the following: In September New Mexico police officers received a report that Larry Begay, the petitioner here, had threatened his sister and aunt with a rifle. The police arrested him. Begay subsequently conceded he was a felon and *1584 pleaded guilty to a federal charge of unlawful possession of a firearm in violation of 922(g)(1). Begay's presentence report said that he had been convicted a dozen times for DUI, which under New Mexico's law, becomes a felony (punishable by a prison term of more than one year) the fourth (or subsequent) time an individual commits it. See N.M. Stat. Ann. 66-8-102(G) to (J) The sentencing judge consequently found that Begay had at least three prior convictions for a crime "punishable by imprisonment for a term exceeding one year." The judge concluded that Begay's "three felony DUI convictions involve conduct that presents a serious potential risk of physical injury to another." The judge consequently concluded that Begay had three or more prior convictions for a "violent felony" and should receive a sentence that reflected a mandatory minimum prison term of 15 years. Begay, claiming that DUI is not a "violent felony" within the |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | claiming that DUI is not a "violent felony" within the terms of the statute, appealed. The Court of Appeals panel by a vote of 2 to 1 rejected that claim. Begay sought certiorari, and we agreed to decide the question. II A New Mexico's DUI statute makes it a crime (and a felony after three earlier convictions) to "drive a vehicle within [the] state" if the driver "is under the influence of intoxicating liquor" (or has an alcohol concentration of08 or more in his blood or breath within three hours of having driven the vehicle resulting from "alcohol consumed before or while driving the vehicle"). 66-8-102(A), (C). In determining whether this crime is a violent felony, we consider the offense generically, that is to say, we examine it in terms of how the law defines the offense and not in terms of how an individual offender might have committed it on a particular occasion. See ; see We take as a given that DUI does not fall within the scope of the Act's clause (i) "violent felony" definition. DUI, as New Mexico defines it, nowhere "has as an element the use, attempted use, or threatened use of physical force against the person of another." (e)(2)(B)(i). Finally, we assume that the lower courts were right in concluding that DUI involves conduct that "presents a serious potential risk of physical injury to another." 924(e)(2)(B)(ii). Drunk driving is an extremely dangerous crime. In the United States in alcohol-related motor vehicle crashes claimed the lives of more than 17,000 individuals and harmed untold amounts of property. National Highway Traffic Safety Admin., Traffic Safety Facts, Traffic Safety Annual AssessmentAlcohol-Related Fatalities 1 http://www-nrd.nhtsa. dot.gov/Pubs/810821.PDF (as visited Apr. 11, 2008, and available in Clerk of Court's case file). Even so, we find that DUI falls outside the scope of clause (ii). It is simply too unlike the provision's listed examples for us to believe that Congress intended the provision to cover it. B 1 In our view, the provision's listed examplesburglary, arson, extortion, or *1585 crimes involving the use of explosives illustrate the kinds of crimes that fall within the statute's scope. Their presence indicates that the statute covers only similar crimes, rather than every crime that "presents a serious potential risk of physical injury to another." 924(e)(2)(B)(ii). If Congress meant the latter, i.e., if it meant the statute to be all-encompassing, it is hard to see why it would have needed to include the examples at all. Without them, clause (ii) would cover all crimes that present a "serious potential risk of physical injury." Additionally, if |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | present a "serious potential risk of physical injury." Additionally, if Congress meant clause (ii) to include all risky crimes, why would it have included clause (i)? A crime which has as an element the "use, attempted use, or threatened use of physical force" against the person (as clause (i) specifies) is likely to create "a serious potential risk of physical injury" and would seem to fall within the scope of clause (ii). Of course, Congress might have included the examples solely for quantitative purposes. Congress might have intended them to demonstrate no more than the degree of risk sufficient to bring a crime within the statute's scope. But were that the case, Congress would have likely chosen examples that better illustrated the "degree of risk" it had in mind. Our recent case, James v. United Stateswhere we considered only matters of degree, i.e., whether the amount of risk posed by attempted burglary was comparable to the amount of risk posed by the example crime of burglaryillustrates the difficulty of interpreting the examples in this respect. Compare 550 U.S., at _ -, with at _ 1603-1604, 1609 Indeed, the examples are so far from clear in respect to the degree of risk each poses that it is difficult to accept clarification in respect to degree of risk as Congress' only reason for including them. See These considerations taken together convince us that, "`to give effect to every clause and word'" of this statute, we should read the examples as limiting the crimes that clause (ii) covers to crimes that are roughly similar, in kind as well as in degree of risk posed, to the examples themselves. ; see 5 S. Ct. 377, The concurrence complains that our interpretive approach is insufficiently specific. See post, at 1589-1590 (SCALIA, J., concurring in judgment). But the concurrence's own approach demands a crime-by-crime analysis, uses a standard of measurement (comparative degree of risk) that even the concurrence admits is often "unclear," post, at 1590, requires the concurrence to turn here to the still less clear "rule of lenity," post, at 1591, and, as we explain, is less likely to reflect Congress' intent. See, e.g., post, at 1590-1591 (recognizing inability to measure quantitative seriousness of risks associated with DUI). The statute's history offers further support for our conclusion that the examples in clause (ii) limit the scope of the clause to crimes that are similar to the examples themselves. Prior to the enactment of the current language, the Act applied its enhanced sentence to offenders with "three *1586 previous convictions for robbery or burglary." (internal quotation |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | "three *1586 previous convictions for robbery or burglary." (internal quotation marks omitted). Congress sought to expand that definition to include both crimes against the person (clause (i)) and certain physically risky crimes against property (clause (ii)). See H.R.Rep. No. 99-849, p. 3 (1986) (hereinafter H.R.Rep.). When doing so, Congress rejected a broad proposal that would have covered every offense that involved a substantial risk of the use of "`physical force against the person or property of another.'" (quoting S. 23, 99th Cong., 2d Sess. (1986); H.R. 4639, 99th Cong., 2d Sess. (1986)). Instead, it added the present examples. And in the relevant House Report, it described clause (ii) as including "State and Federal felonies against property such as burglary, arson, extortion, use of explosives and similar crimes as predicate offenses where the conduct involved presents a serious risk of injury to a person." H.R. Rep., at 5 (emphasis added). Of course, the statute places the word "otherwise," just after the examples, so that the provision covers a felony that is one of the example crimes "or otherwise involves conduct that presents a serious potential risk of physical injury." 924(e)(2)(B)(ii) (emphasis added). But we cannot agree with the Government that the word "otherwise" is sufficient to demonstrate that the examples do not limit the scope of the clause. That is because the word "otherwise" can (we do not say must, cf. post, at 1589-1590 (SCALIA, J., concurring in judgment)) refer to a crime that is similar to the listed examples in some respects but different in otherssimilar say in respect to the degree of risk it produces, but different in respect to the "way or manner" in which it produces that risk. Webster's Third New International Dictionary 1598 (1961) (defining "otherwise" to mean "in a different way or manner"). 2 In our view, DUI differs from the example crimesburglary, arson, extortion, and crimes involving the use of explosivesin at least one pertinent, and important, respect. The listed crimes all typically involve purposeful, "violent," and "aggressive" ; see, e.g., ("burglary" is an unlawful or unprivileged entry into a building or other structure with "intent to commit a crime"); ALI Model Penal Code 220.1(1) (1985) ("arson" is causing a fire or explosion with the purpose of," e.g., "destroying a building. of another" or "damaging any property to collect insurance"); 223.4 (extortion is "purposely" obtaining property of another through threat of, e.g., inflicting "bodily injury"); 5 S. Ct. 377 (the word "`use' most naturally suggests a higher degree of intent than negligent or merely accidental conduct" which fact helps bring it outside the scope |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | accidental conduct" which fact helps bring it outside the scope of the statutory term "crime of violence"). That conduct is such that it makes more likely that an offender, later possessing a gun, will use that gun deliberately to harm a victim. Crimes committed in such a purposeful, violent, and aggressive manner are "potentially more dangerous when firearms are involved." And such crimes are "characteristic of the armed career criminal, the eponym of the statute." By way of contrast, statutes that forbid driving under the influence, such as the statute before us, typically do not insist on purposeful, violent, and aggressive conduct; rather, they are, or are most nearly comparable to, crimes that impose strict liability, criminalizing conduct in respect to which the offender need not have had any *1587 criminal intent at all. The Government argues that "the knowing nature of the conduct that produces intoxication combined with the inherent recklessness of the ensuing conduct more than suffices" to create an element of intent. Brief for United States 35. And we agree with the Government that a drunk driver may very well drink on purpose. But this Court has said that, unlike the example crimes, the conduct for which the drunk driver is convicted (driving under the influence) need not be purposeful or deliberate. See 5 S. Ct. 377 (a DUI offense involves "accidental or negligent conduct"); see ("[D]runk driving is a crime of negligence or recklessness, rather than violence or aggression"). When viewed in terms of the Act's basic purposes, this distinction matters considerably. As suggested by its title, the Armed Career Criminal Act focuses upon the special danger created when a particular type of offendera violent criminal or drug traffickerpossesses a gun. See ; 470 F.3d, 81, n. 3 ("[T]he title [of the Act] was not merely decorative"). In order to determine which offenders fall into this category, the Act looks to past crimes. This is because an offender's criminal history is relevant to the question whether he is a career criminal, or, more precisely, to the kind or degree of danger the offender would pose were he to possess a gun. In this respectnamely, a prior crime's relevance to the possibility of future danger with a guncrimes involving intentional or purposeful conduct (as in burglary and arson) are different than DUI, a strict liability crime. In both instances, the offender's prior crimes reveal a degree of callousness toward risk, but in the former instance they show an increased likelihood that the offender is the kind of person who might deliberately point the gun and pull the |
Justice Breyer | 2,008 | 2 | majority | Begay v. United States | https://www.courtlistener.com/opinion/145815/begay-v-united-states/ | person who might deliberately point the gun and pull the trigger. We have no reason to believe that Congress intended a 15-year mandatory prison term where that increased likelihood does not exist. Were we to read the statute without this distinction, its 15-year mandatory minimum sentence would apply to a host of crimes which, though dangerous, are not typically committed by those whom one normally labels "armed career criminals." See, e.g., Ark.Code Ann. 8-4-103(a)(2)(A)(ii) (reckless polluters); 33 U.S.C. 1319(c)(1) ; 18 U.S.C. 1365(a) ; 1115 (seamen whose inattention to duty causes serious accidents). We have no reason to believe that Congress intended to bring within the statute's scope these kinds of crimes, far removed as they are from the deliberate kind of behavior associated with violent criminal use of firearms. The statute's use of examples (and the other considerations we have mentioned) indicate the contrary. The dissent's approach, on the other hand, would likely include these crimes within the statutory definition of "violent felony," along with any other crime that can be said to present "a serious potential risk of physical injury." Post, at 1592 (opinion of ALITO, J.). And it would do so because it believes such a result is compelled by the statute's text. See But the dissent's explanation does not account for a key feature of that text namely, the four example crimes intended to illustrate what kind of "violent felony" the statute covers. The dissent at most believes that these examples are relevant only to define the "requisite" serious risk associated with a "crime of violence." *1588 Post, at 1595. But the dissent does not explain what it means by "requisite," nor does it describe how these various examples might help define that term in the context of this statute. If they were in fact helpful on that score, we might expect more predictable results from a purely risk-based approach. Compare post, at 1588, 1591-1592 (SCALIA, J., concurring in judgment), with post, at 1592-1594 (dissenting opinion). Thus, the dissent's reliance on these examples for a function they appear incapable of performing reads them out of the statute and, in so doing, fails to effectuate Congress' purpose to punish only a particular subset of offender, namely career criminals. The distinction we make does not minimize the seriousness of the risks attached to driving under the influence. Nor does our argument deny that an individual with a criminal history of DUI might later pull the trigger of a gun. (Indeed, we may have such an instance before 470 F.3d, 65.) Rather, we hold only that, for purposes of |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | I agree with the Court, of course, that background checks of employees of government contractors do not offend the Constitution. But rather than reach this con clusion on the basis of the never-explained assumption that the Constitution requires courts to “balance” the Government’s interests in data collection against its con tractor employees’ interest in privacy, I reach it on simpler grounds. Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information. But it is up to the Peo ple to enact those laws, to shape them, and, when they think it appropriate, to repeal them. A federal constitu tional right to “informational privacy” does not exist. Before addressing the constitutional issues, however, I must observe a remarkable and telling fact about this case, unique in my tenure on this Court: Respondents’ brief, in arguing that the Federal Government violated the Constitution, does not once identify which provision of the Constitution that might be. The Table of Authorities contains citations of cases from federal and state courts, 2 NASA v. NELSON SCALIA, J., concurring in judgment federal and state statutes, Rules of Evidence from four states, two Executive Orders, a House Report, and even more exotic sources of law, such as two reports of the Government Accountability Office and an EEOC document concerning “Enforcement Guidance.” And yet it contains not a single citation of the sole document we are called upon to construe: the Constitution of the United States. The body of the brief includes a single, fleeting reference to the Due Process Clause, buried in a citation of the assuredly inapposite (03), Brief for Respondents 42; but no further attempt is made to argue that NASA’s actions deprived respondents of liberty without due process of law. And this legal strat egy was not limited to respondents’ filing in this Court; in the Ninth Circuit respondents asserted in a footnote that “courts have grounded the right to informational privacy in various provisions of the Constitution,” Brief for Appel lants in No. 07–56424, p. 25, n. 18, but declined to identify which ones applied here. To tell the truth, I found this approach refreshingly honest. One who asks us to invent a constitutional right out of whole cloth should spare himself and us the pre tense of tying it to some words of the Constitution. Re grettably, this Lincolnesque honesty evaporated at oral argument, when counsel asserted, apparently for the first time in this |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | when counsel asserted, apparently for the first time in this litigation, that the right to informational privacy emerged from the Due Process Clause of the Fifth Amendment. Tr. of Oral Arg. 28–29. That counsel in voked the infinitely plastic concept of “substantive” due process does not make this constitutional theory any less invented. This case is easily resolved on the simple ground that the Due Process Clause does not “guarante[e] certain (unspecified) liberties”; rather, it “merely guarantees certain procedures as a prerequisite to deprivation of liberty.” Cite as: 562 U. S. (11) 3 SCALIA, J., concurring in judgment (SCALIA, J., concurring). Respondents make no claim that the State has deprived them of liberty without the requi site procedures, and their due process claim therefore must fail. Even under the formula we have adopted for identifying liberties entitled to protection under the faux “substantive” component of the Due Process Clause—that “the Due Process Clause specially protects those funda mental rights and liberties which are, objectively, deeply rooted in this Nation’s history and tradition,” Washington v. Glucksberg, (internal quotation marks omitted)—respondents’ claim would fail. Respondents do not even attempt to argue that the claim at issue in this case passes that test, perhaps recognizing the farcical nature of a contention that a right deeply rooted in our history and tradition bars the Government from ensuring that the Hubble Telescope is not used by recovering drug addicts. The absurdity of respondents’ position in this case should not, however, obscure the broader point: Our due process precedents, even our “substantive due process” precedents, do not support any right to informational First, we have held that the government’s act of defamation does not deprive a person “of any ‘liberty’ protected by the procedural guarantees of the Fourteenth Amendment.” We reasoned that stigma, standing alone, does not “sig nificantly alte[r]” a person’s legal status so as to “justif[y] the invocation of procedural safeguards.” at 708–. If outright defamation does not qualify, it is unimaginable that the mere disclosure of private information does. Second, respondents challenge the Government’s collec tion of their private information. But the Government’s collection of private information is regulated by the Fourth Amendment, and “[w]here a particular Amendment pro vides an explicit textual source of constitutional protection against a particular sort of government behavior, that 4 NASA v. NELSON SCALIA, J., concurring in judgment Amendment, not the more generalized notion of substan tive due process, must be the guide for analyzing these claims.” County of 842 (1998) (internal quotation marks omitted; alteration in original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | original). Here, the Ninth Circuit rejected respondents’ Fourth Amendment argument, correctly holding that the Form 42 inquiries to third parties were not Fourth Amendment “searches” under United States v. Miller, 425 U.S. 435 and that the Fourth Amendment does not prohibit the Government from asking questions about private information. That should have been the end of the matter. Courts should not use the Due Process Clause as putty to fill up gaps they deem unsightly in the protections provided by other con stitutional provisions. In sum, I would simply hold that there is no constitu tional right to “informational ” Besides being consistent with constitutional text and tradition, this view has the attractive benefit of resolving this case without resort to the Court’s exegesis on the Government’s legiti mate interest in identifying contractor drug abusers and the comfortingly narrow scope of NASA’s “routine use” regulations. I shall not fill the U. S. Reports with further explanation of the incoherence of the Court’s “substantive due process” doctrine in its many manifestations, since the Court does not play the substantive-due-process card. Instead, it states that it will “assume, without deciding” that there exists a right to informational privacy, ante, at 1. The Court’s sole justification for its decision to “assume, without deciding” is that the Court made the same mis take before—in two 33-year-old cases, v. Roe, 429 U.S. 589 and* Ante, at 11. But stare —————— * Contrary to the Court’s protestation, ante, at 11, n. 10, the Court’s Cite as: 562 U. S. (11) 5 SCALIA, J., concurring in judgment decisis is simply irrelevant when the pertinent precedent assumed, without deciding, the existence of a constitu tional right. “Stare decisis reflects a policy judgment that in most matters it is more important that the applicable rule of law be settled than that it be settled right.” State Oil (internal quotation marks omitted). “It is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles.” (internal quotation marks omitted). Here, however, there is no applicable rule of law that is settled. To the contrary, and created an uncertainty that the text of the Constitution did not contain and that today’s opinion perpetuates. A further reason and are not entitled to stare decisis effect is that neither opinion supplied any coherent reason why a constitutional right to informa tional privacy might exist. As supporting authority, cited a —————— failure to address whether there is a right to informational privacy cannot be blamed upon the Government’s concession that such a right exists, and indeed the Government’s startling assertion |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | such a right exists, and indeed the Government’s startling assertion that and (which decided nothing on the constitutional point, and have not been so much as cited in our later opinions) were “seminal”— seminal!—decisions. Reply Brief for Petitioner 22. We are not bound by a litigant’s concession on an issue of law. See, e.g., Grove City And it should not be thought that the concession by the United States is an entirely self denying act. To be sure, it subjects the Executive Branch to constitu tional limitations on the collection and use of information; but the Privacy Act, 5 U.S. C. (06 ed. and Supp. III), already contains extensive limitations not likely to be surpassed by constitutional improvisation. And because Congress’s power under of the Four teenth Amendment extends to the full scope of the Due Process Clause, see City of the United States has an incentive to give that Clause a broad reading, thus expanding the scope of federal legislation that it justifies. Federal laws prevent ing state disregard of “informational privacy” may be a twinkle in the Solicitor General’s eye. 6 NASA v. NELSON SCALIA, J., concurring in judgment First Amendment case protecting private possession of obscenity; the deservedly infamous dictum in Griswold v. Connecticut, concerning the “penum bra” of the First Amendment; and three concurring or dissenting opinions, none of which remotely intimated that there might be such a thing as a substantive due process right to informational n. 25. provided even less support. After citing the observation in that “[o]ne element of privacy has been characterized as the individual interest in avoiding disclosure of personal matters,” (quoting ; internal quotation marks omitted), it proceeded to conduct a straightforward Fourth Amendment analysis. It “assume[d]” that there was a “legitimate expectation of privacy” in the materials, and rejected the appellant’s argument that the statute at issue was “precisely the kind of abuse that the Fourth Amend ment was intended to prevent.” –458, 460. It is unfathomable why these cases’ passing, barely explained reference to a right separate from the Fourth Amendment—an unenumerated right that they held to be not applicable—should be afforded stare decisis weight. At this point the reader may be wondering: “What, after all, is the harm in being ‘minimalist’ and simply refusing to say that violation of a constitutional right of informa tional privacy can never exist? The outcome in this case is the same, so long as the Court holds that any such hypo thetical right was not violated.” Well, there is harm. The Court’s never-say-never disposition does damage for sev eral reasons. 1. |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | Court’s never-say-never disposition does damage for sev eral reasons. 1. It is in an important sense not actually minimalist. By substituting for one real constitutional question (whether there exists a constitutional right to informa tional privacy) a different constitutional question (whether NASA’s background checks would contravene a right to informational privacy if such a right existed), the Court Cite as: 562 U. S. (11) 7 SCALIA, J., concurring in judgment gets to pontificate upon a matter that is none of its business: the appropriate balance between security and If I am correct that there exists no right to in formational privacy, all that discussion is an exercise in judicial maximalism. Better simply to state and apply the law forthrightly than to hold our view of the law in pectore, so that we can inquire into matters beyond our charter, and probably beyond our ken. If, on the other hand, the Court believes that there is a constitutional right to informational privacy, then I fail to see the minimalist virtues in delivering a lengthy opinion analyzing that right while coyly noting that the right is “assumed” rather than “decided.” Thirty-three years have passed since the Court first suggested that the right may, or may not, exist. It is past time for the Court to abandon this Alfred Hitchcock line of our jurisprudence. 2. It harms our image, if not our self-respect, because it makes no sense. The Court decides that the Government did not violate the right to informational privacy without deciding whether there is a right to informational privacy, and without even describing what hypothetical standard should be used to assess whether the hypothetical right has been violated. As I explained last Term in objecting to another of the Court’s never-say-never dispositions: “[The Court] cannot decide that [respondents’] claim fails without first deciding what a valid claim would consist of. [A]greeing to or crafting a hypothetical standard for a hypothetical constitutional right is suf ficiently unappealing that [the Court] might as well acknowledge the right as well. Or [it] could avoid the need to agree with or craft a hypothetical stan dard by denying the right. But embracing a standard while being coy about the right is, well, odd; and de ciding this case while addressing neither the standard nor the right is quite impossible.” Stop the Beach Re 8 NASA v. NELSON SCALIA, J., concurring in judgment nourishment, Inc. v. Florida Dept. of Environmental Protection, 560 U. S. (10) (plurality opinion) (joined by ALITO, J.) (slip op., at 12–13). Whatever the virtues of judicial minimalism, it cannot justify judicial |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | Whatever the virtues of judicial minimalism, it cannot justify judicial incoherence. The Court defends its approach by observing that “we have only the ‘scarce and open-ended’ ” guideposts of substantive due process to show us the way.” Ante, at 11, n. 10. I would have thought that this doctrinal obscurity should lead us to provide more clarity for lower courts; surely one vague opinion should not provide an excuse for another. The Court observes that I have joined other opinions that have assumed the existence of constitutional rights. It is of course acceptable to reserve difficult constitu tional questions, so long as answering those questions is unnecessary to coherent resolution of the issue presented in the case. So in we declined to decide whether a competent person had a constitutional right to refuse lifesaving hydration, because—under a constitu tional standard we laid out in detail—such a right did not exist for an incompetent person. In Herrera v. Collins, 506 U.S. 390, 417–418 (1993), we declined to decide whether it would be unconstitutional to execute an innocent per son, because Herrera had not shown that he was innocent. In New York State Club Assn., we declined to decide whether there was a constitutional right of private association for certain clubs, because the plaintiff had brought a facial challenge, which would fail if the statute was valid in many of its applications, making it unnecessary to decide whether an as-applied challenge as to some clubs could succeed. Here, however, the Court actually applies a constitutional informational privacy standard without Cite as: 562 U. S. (11) 9 SCALIA, J., concurring in judgment giving a clue as to the rule of law it is applying. 3. It provides no guidance whatsoever for lower courts. Consider the sheer multiplicity of unweighted, relevant factors alluded to in today’s opinion: • It is relevant that the Government is acting “in its capacity ‘as proprietor’ and manager of its ‘internal op eration.’ ” Ante, at 12. Of course, given that we are told neither what the appropriate standard should be when the Government is acting as regulator nor what the appropriate standard should be when it is acting as proprietor, it is not clear what effect this fact has on the analysis; but at least we know that it is something. • History and tradition have some role to play, ante, at 13–14, but how much is uncertain. The Court points out that the Federal Government has been conducting investigations of candidates for employment since the earliest days; but on the other hand it acknowledges that extension of |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | but on the other hand it acknowledges that extension of those investigations to employees of contractors is of very recent vintage. • The contract employees are doing important work. They are not mere janitors and maintenance men; they are working on a $568 million observatory. Ante, at 15. Can it possibly be that the outcome of today’s case would be different for background checks of lower-level employees? In the spirit of minimalism we are never told. • Questions about drug treatment are (hypothetically) constitutional because they are “reasonable,” “useful,” and “humane.” Ante, at 16–17 (internal quotation marks omitted). And questions to third parties are constitutional because they are “appropriate” and “per vasiv[e].” Ante, at 18–19. Any or all of these adjectives may be the hypothetical standard by which violation of the hypothetical constitutional right to “informational privacy” is evaluated. 10 NASA v. NELSON SCALIA, J., concurring in judgment • The Court notes that a “ ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays these privacy concerns,” ante, at (emphasis added), but it gives no indication of what the exceptions to this general rule might be. It then discusses the provisions of the Privacy Act in detail, placing considerable em phasis on the limitations imposed by NASA’s routine use regulations. Ante, at 21–23. From the length of the discussion, I would bet that the Privacy Act is nec essary to today’s holding, but how much of it is neces sary is a mystery. 4. It will dramatically increase the number of lawsuits claiming violations of the right to informational Rare will be the claim that is supported by none of the factors deemed relevant in today’s opinion. Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd. Respondents claim that even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Gov ernment is seeking only information about drug treatment and information from third parties that is standard in background checks, and even though the Government is liable for damages if that information is ever revealed, and even though NASA’s Privacy Act regulations are very protective of private information, NASA’s background checks are unconstitutional. Ridiculous. In carefully citing all of these factors as the basis for its decision, the Court makes the distinguishing of this case simple as pie. In future cases filed under 42 U.S. C. in those circuits that recognize (rather than merely hypothesize) a constitutional right to |
Justice Scalia | 2,011 | 9 | concurring | NASA v. Nelson | https://www.courtlistener.com/opinion/182990/nasa-v-nelson/ | that recognize (rather than merely hypothesize) a constitutional right to “informational privacy,” lawyers will always (and I mean always) find some way around today’s opinion: perhaps the plaintiff will be a receptionist Cite as: 562 U. S. (11) 11 SCALIA, J., concurring in judgment or a janitor, or the protections against disclosure will be less robust. And oh yes, the fact that a losing defendant will be liable not only for damages but also for attorney’s fees under will greatly encourage lawyers to sue, and defendants—for whom no safe harbor can be found in the many words of today’s opinion—to settle. This plain tiff’s claim has failed today, but the Court makes a gener ous gift to the plaintiff’s bar. * * * Because I deem it the “duty of the judicial department to say what the law is,” 177 (1803), I concur only in the judgment. Cite as: 562 U. S. (11) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 09–530 NATIONAL AERONAUTICS AND SPACE ADMIN- ISTRATION, ET AL., PETITIONERS v. ROBERT M. NELSON ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [January 19, 11] JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA that the Constitution does not protect a right to informational Ante, at 1 (opinion concurring in judgment). No provision in the Constitution mentions such a right. Cf. Lawrence v. Texas, (03) (THOMAS, J., dissent ing) (“I can find neither in the Bill of Rights nor any other part of the Constitution a general right of privacy ” (internal quotation marks and brackets omitted)). And the notion that the Due Process Clause of the Fifth Amendment is a wellspring of unenumerated rights against the Federal Government “strains credulity for even the most casual user of words.” McDonald v. Chi cago, 561 U. S. (10) (THOMAS, J., concurring in part and concurring in judgment) (slip op., at 7) |
Subsets and Splits
No community queries yet
The top public SQL queries from the community will appear here once available.