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Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | experimentation. If parole determinations are encumbered by procedures that states regard as burdensome and unwarranted, they may abandon or curtail parole. Cf. Me. Rev. Stat. Ann., Tit. 34, 1671-1679 (1964), repealed, Me. Acts, ch. 499, 71 (repealing the State's parole system). It is important that we not overlook the ultimate purpose of parole which is a component of the long-range objective of rehabilitation. The fact that anticipations and hopes for rehabilitation programs have fallen far short of expectations of a generation ago need not lead states to abandon hopes for those objectives; states may adopt a balanced approach in making parole determinations, as in all problems of administering the correctional systems. The objective of rehabilitating convicted persons to be useful, law-abiding members of society can remain a goal no matter how disappointing the progress. But it will not contribute to these desirable *14 objectives to invite or encourage a continuing state of adversary relations between society and the inmate. Procedures designed to elicit specific facts, such as those required in Morrissey, Gagnon, and Wolff, are not necessarily appropriate to a Nebraska parole determination. See Board of Curators, Univ. of ; Cafeteria & Restaurant at Merely because a statutory expectation exists cannot mean that in addition to the full panoply of due process required to convict and confine there must also be repeated, adversary hearings in order to continue the confinement. However, since the Nebraska Parole Board provides at least one and often two hearings every year to each eligible inmate, we need only consider whether the additional procedures mandated by the Court of Appeals are required under the standards set out in at and Two procedures mandated by the Court of Appeals are particularly challenged by the Board:[6] the requirement that a formal hearing be held for every inmate, and the requirement that every adverse parole decision include a statement of the evidence relied upon by the Board. The requirement of a hearing as prescribed by the Court of Appeals in all cases would provide at best a negligible decrease in the risk of error. See D. Stanley, Prisoners Among Us 43 When the Board defers parole after the initial review *15 hearing, it does so because examination of the inmate's file and the personal interview satisfies it that the inmate is not yet ready for conditional release. The parole determination therefore must include consideration of what the entire record shows up to the time of the sentence, including the gravity of the offense in the particular case. The behavior record of an inmate during confinement is critical in the |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | record of an inmate during confinement is critical in the sense that it reflects the degree to which the inmate is prepared to adjust to parole release. At the Board's initial interview hearing, the inmate is permitted to appear before the Board and present letters and statements on his own behalf. He is thereby provided with an effective opportunity first, to insure that the records before the Board are in fact the records relating to his case; and second, to present any special considerations demonstrating why he is an appropriate candidate for parole. Since the decision is one that must be made largely on the basis of the inmate's files, this procedure adequately safeguards against serious risks of error and thus satisfies due process.[7] Cf. Next, we find nothing in the due process concepts as they have thus far evolved that requires the Parole Board to specify the particular "evidence" in the inmate's file or at his interview on which it rests the discretionary determination that an inmate is not ready for conditional release. The Board communicates the reason for its denial as a guide to the inmate for his future behavior. See 569 F. 2d, at (en banc). To require the parole authority to provide a summary of the evidence would tend to convert the process into an adversary proceeding and to equate the Board's *16 parole-release determination with a guilt determination. The Nebraska statute contemplates, and experience has shown, that the parole-release decision is, as we noted earlier, essentially an experienced prediction based on a host of variables. See Dawson, The Decision to Grant or Deny Parole: A Study of Parole Criteria in Law and Practice, 1966 Wash. U. L. Q. 243, 299-300. The Board's decision is much like a sentencing judge's choiceprovided by many statesto grant or deny probation following a judgment of guilt, a choice never thought to require more than what Nebraska now provides for the parole-release determination. Cf. The Nebraska procedure affords an opportunity to be heard, and when parole is denied it informs the inmate in what respects he falls short of qualifying for parole; this affords the process that is due under these circumstances. The Constitution does not require more. Accordingly, the judgment of the Court of Appeals is reversed and the case is remanded for further proceedings consistent with this opinion.[8] So ordered. APPENDIX TO OPINION OF THE COURT The statutory factors that the Board is required to take into account in deciding whether or not to grant parole are the following: (a) The offender's personality, including his maturity, stability, *17 |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | following: (a) The offender's personality, including his maturity, stability, *17 sense of responsibility and any apparent development in his personality which may promote or hinder his conformity to law; (b) The adequacy of the offender's parole plan; (c) The offender's ability and readiness to assume obligations and undertake responsibilities; (d) The offender's intelligence and training; (e) The offender's family status and whether he has relatives who display an interest in him or whether he has other close and constructive associations in the community; (f) The offender's employment history, his occupational skills, and the stability of his past employment; (g) The type of residence, neighborhood or community in which the offender plans to live; (h) The offender's past use of narcotics, or past habitual and excessive use of alcohol; (i) The offender's mental or physical makeup, including any disability or handicap which may affect his conformity to law; (j) The offender's prior criminal record, including the nature and circumstances, recency and frequency of previous offenses; (k) The offender's attitude toward law and authority; (l) The offender's conduct in the facility, including particularly whether he has taken advantage of the opportunities for self-improvement, whether he has been punished for misconduct within six months prior to his hearing or reconsideration for parole release, whether any reductions of term have been forfeited, and whether such reductions have been restored at the time of hearing or reconsideration; (m) The offender's behavior and attitude during any previous experience of probation or parole and the recency of such experience; and *18 (n) Any other factors the board determines to be relevant. Neb. Rev. Stat. 83-1,114 (2) MR. JUSTICE POWELL, concurring in part and dissenting in part. I agree with the Court that the respondents have a right under the Fourteenth Amendment to due process in the consideration of their release on parole. I do not believe, however, that the applicability of the Due Process Clause to parole-release determinations depends upon the particular wording of the statute governing the deliberations of the parole board, or that the limited notice of the final hearing currently given by the State is consistent with the requirements of due process. I A substantial liberty from legal restraint is at stake when the State makes decisions regarding parole or probation. Although still subject to limitations not imposed on citizens never convicted of a crime, the parolee enjoys a liberty incomparably greater than whatever minimal freedom of action he may have retained within prison walls, a fact that the Court recognized in "The liberty of a parolee enables him to do a wide range |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | of a parolee enables him to do a wide range of things open to persons who have never been convicted of any crime. Subject to the conditions of his parole, he can be gainfully employed and is free to be with family and friends and to form the other enduring attachments of normal life. Though the State properly subjects him to many restrictions not applicable to other citizens, his condition is very different from that of confinement in a prison." Liberty from bodily restraint always has been recognized as the core of the liberty protected by the Due Process Clause from arbitrary governmental action. ; Board of *, Because this fundamental liberty "is valuable" and "its termination inflicts a `grievous loss' on the parolee," the Court concluded in Morrissey that the decision to revoke parole must be made in conformity with due process Similarly in we held that a probationer must be accorded due process when a decision is to be made about the continuation of his probation. And the decision to rescind a prisoner's "good-time credits," which directly determine the time at which he will be eligible for parole, also must be reached in compliance with due process requirements. In principle, it seems to me that the Due Process Clause is no less applicable to the parole-release determination than to the decisions by state agencies at issue in the foregoing cases. Nothing in the Constitution requires a State to provide for probation or parole. But when a State adopts a parole system that applies general standards of eligibility, prisoners justifiably expect that parole will be granted fairly and according to law whenever those standards are met. This is so whether the governing statute states, as here, that parole "shall" be granted unless certain conditions exist, or provides some other standard for making the parole decision. Contrary to the Court's conclusion, ante, at 9-11, I am convinced that the presence of a parole system is sufficient to create a liberty interest, protected by the Constitution, in the parole-release decision. The Court today, however, concludes that parole release and parole revocation "are quite different," because "`there is a difference between losing what one has and not getting what one wants,'" ante, at 9, 10. I am unpersuaded that this difference, if indeed it exists at all, is as significant as the Court implies. Release on parole marks the first time when the severe restrictions imposed on a prisoner's liberty by the prison regimen may be lifted, and his behavior in prison *20 often is molded by his hope and expectation of |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | *20 often is molded by his hope and expectation of securing parole at the earliest time permitted by law. Thus, the parole-release determination may be as important to the prisoner as some later, and generally unanticipated, parole-revocation decision. Moreover, whatever difference there may be in the subjective reactions of prisoners and parolees to release and revocation determinations is not dispositive. From the day that he is sentenced in a State with a parole system, a prisoner justifiably expects release on parole when he meets the standards of eligibility applicable within that system. This is true even if denial of release will be a less severe disappointment than revocation of parole once granted. I am unconvinced also by the Court's suggestion that the prisoner has due process rights in the context of parole revocation but not parole release because of the different "nature of the decision that must be made in each case." Ante, at 9. It is true that the parole-revocation determination involves two inquiries: the parole board must ascertain the facts related to the prisoner's behavior on parole, and must then make a judgment whether or not he should be returned to prison. But unless the parole board makes parole-release determinations in some arbitrary or random fashion, these subjective evaluations about future success on parole also must be based on retrospective factual findings. See ante, at 14-15. In addition, it seems to me that even if there were any systematic difference between the factual inquiries relevant to release and revocation determinations, this difference, under currently existing parole systems, would be too slight to bear on the existence of a liberty interest protected by the Due Process Clause. It might be relevant, of course, in determining the process to be accorded in each setting. II The Court correctly concludes, in my view, that the Court of Appeals erred in ordering that a formal hearing be held for every inmate and that every adverse parole decision include *21 a statement of the evidence relied upon by the Board. Ante, at 14-16. The type of hearing afforded by Nebraska comports generously with the requirements of due process, and the report of the Board's decision also seems adequate. Accordingly, I agree that the judgment of the Court of Appeals must be reversed and the case remanded. I do not agree, however, with the Court's decision that the present notice afforded to prisoners scheduled for final hearings (as opposed to initial review hearings) is constitutionally adequate. Ante, at 14 n. 6. Under present procedures, a prisoner is told in advance the month during which |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | a prisoner is told in advance the month during which his final hearing will be held, but is not notified of the exact date of the hearing until the morning of the day that it will occur. Thus, although a prisoner is allowed to "present evidence, call witnesses and be represented by private counsel," ante, at 5, at the final hearing, his ability to do so necessarily is reduced or nullified completely by the State's refusal to give notice of the hearing more than a few hours in advance. The Court's opinion asserts that "[t]here is no claim that the timing of the notice seriously prejudices the inmate's ability to prepare adequately for the hearing." Ante, at 14 n. 6. But the original complaint in this case cited as an alleged denial of due process the State's failure to "inform the [respondents] in advance of the date and time of their hearings before the Board of Parole." The District Court ordered the petitioners to give prisoners notice of hearings at least 72 hours in advance of the hearings, and the Court of Appeals affirmed that order. The respondents have supported that judgment in this Court by arguing that the courts below correctly determined that the current notice procedure undermines the prisoner's ability to present his case adequately at the final review hearing. Brief for Respondents 65. This conclusion accords with common sense, despite the petitioners' comment that prisoners "are seldom gone on vacation or have conflicting appointments on the day their parole hearing *22 is set." Brief for Petitioners 30. It also imposes only a minimal burden on the State. I therefore agree with the decision of the courts below to require the State to give at least three days' notice of final hearings, and I would not require the Court of Appeals to modify this portion of its judgment or remand. MR. JUSTICE MARSHALL, with whom MR. JUSTICE BRENNAN and MR. JUSTICE STEVENS join, dissenting in part. My disagreement with the Court's opinion extends to both its analysis of respondents' liberty interest and its delineation of the procedures constitutionally required in parole release proceedings. Although it ultimately holds that the Nebraska statutes create a constitutionally protected "expectation of parole," the Court nonetheless rejects the argument that criminal offenders have such an interest whenever a State establishes the possibility of parole. This gratuitous commentary reflects a misapplication of our prior decisions and an unduly narrow view of the liberty protected by the Fourteenth Amendment. Since the Court chooses to address the issue, I must register my opinion that all prisoners |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | the issue, I must register my opinion that all prisoners potentially eligible for parole have a liberty interest of which they may not be deprived without due process, regardless of the particular statutory language that implements the parole system. The Court further determines that the Nebraska Board of Parole already provides all the process that is constitutionally due. In my view, the Court departs from the analysis adopted in and and disregards considerations that militate for greater procedural protection. To supplement existing procedures, I would require that the Parole Board give each inmate reasonable notice of hearing dates and the factors to be considered, as well as a written statement of reasons and the essential facts underlying adverse decisions. *23 I A It is self-evident that all individuals possess a liberty interest in being free from physical restraint. Upon conviction for a crime, of course, an individual may be deprived of this liberty to the extent authorized by penal statutes.[1] But when a State enacts a parole system, and creates the possibility of release from incarceration upon satisfaction of certain conditions, it necessarily qualifies that initial deprivation. In my judgment, it is the existence of this system which allows prison inmates to retain their protected interest in securing freedoms available outside prison.[2] Because parole release proceedings clearly implicate this retained liberty interest, the Fourteenth Amendment requires that due process be observed, irrespective of the specific provisions in the applicable parole statute. This Court's prior decisions fully support the conclusion that criminal offenders have a liberty interest in securing parole release. In the Court held that all persons released on parole possess such an interest in remaining free from incarceration. Writing for the Court, MR. CHIEF JUSTICE BURGER stated that the applicability *24 of due process protections turns "on the extent to which an individual will be `condemned to suffer grievous loss,'" citing Joint Anti-Fascist Refugee and on the "nature of the interest." U.S., In assessing the gravity and nature of the loss caused by parole revocation, Morrissey relied on the general proposition that parole release enables an individual "to do a wide range of things open to persons who have never been convicted of any crime."[3] Following Morrissey, held that individuals on probation also retain a liberty interest which cannot be terminated without due process of law. Nowhere in either opinion did the Court even intimate that the weight or nature of the criminal offender's interest in maintaining his parole release or probation depends upon the specific terms of any statute, for in both cases the Court disregarded the applicable |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | statute, for in both cases the Court disregarded the applicable statutory language.[4] Rather, this liberty interest derived solely from the *25 existence of a system that permitted criminal offenders to serve their sentences on probation or parole. adopted a similar approach. There, the Court concluded that abrogation of a prisoner's good-time credits implicates his interest in subsequently obtaining release from incarceration. Although the Court recognized that Nebraska was not constitutionally obligated to establish a credit system, by creating "a right to a shortened prison sentence through the accumulation of credits for good behavior," the State had allowed inmates to retain a liberty interest that could be terminated only for "serious misbehavior." This liberty interest derived from the existence of a credit system, not from the specific language of the implementing statute, see as decisions applying Wolff have consistently recognized.[5] B A criminal offender's interest in securing release on parole is therefore directly comparable to the liberty interests we *26 recognized in Morrissey, and Wolff. However, because the Court discerns two distinctions between "parole release and parole revocation," ante, at 9, it refuses to follow these cases here. In my view, the proffered distinctions do not support this departure from precedent. First, the Court finds a difference of constitutional dimension between a deprivation of liberty one has and a denial of liberty one desires. While there is obviously some difference, it is not one relevant to the established constitutional inquiry. Whether an individual currently enjoys a particular freedom has no bearing on whether he possesses a protected interest in securing and maintaining that liberty. The Court acknowledged as much in when it held that the loss of good-time credits implicates a liberty interest even though the forfeiture only deprived the prisoner of freedom he expected to obtain sometime hence. See And in other contexts as well, this Court has repeatedly concluded that the Due Process Clause protects liberty interests that individuals do not currently enjoy.[6] The Court's distinction is equally unrelated to the nature *27 or gravity of the interest affected in parole release proceedings. The nature of a criminal offender's interest depends on the range of freedoms available by virtue of the parole system's existence. On that basis, Morrissey afforded constitutional recognition to a parolee's interest because his freedom on parole includes "many of the core values of unqualified liberty." This proposition is true regardless of whether the inmate is presently on parole or seeking parole release. As the Court of Appeals for the Second Circuit has recognized, "[w]hether the immediate issue be release or revocation, the stakes are the |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | immediate issue be release or revocation, the stakes are the same: conditional freedom versus incarceration." United States ex rel. The Court's second justification for distinguishing between parole release and parole revocation is based on the "nature of the decision that must be made in each case." Ante, at 9. The majority apparently believes that the interest affected by parole release proceedings is somehow diminished if the administrative decision may turn on "subjective evaluations." Yet the Court nowhere explains why the nature of the decisional process has even the slightest bearing in assessing the nature of the interest that this process may terminate.[7] Indeed, the Court's reasoning here is flatly inconsistent with its subsequent holding that respondents do have a protected liberty interest under Nebraska's parole statutes, which require a decision that is "subjective in part and predictive in part." Ante, at For despite the Parole Board's argument that such an interest exists "only if the statutory conditions *28 for [denying parole are] essentially factual, as in Wolff and Morrissey, rather than predictive," ante, at 12, the Court nonetheless concludes that respondents' interest is sufficient to merit constitutional protection. But even assuming the subjective nature of the decisionmaking process were relevant to due process analysis in general, this consideration does not adequately distinguish the processes of granting and revoking parole. See U. S., at 477-480; -782. Contrary to the Court's assertion that the decision to revoke parole is predominantly a "`retrospective factual question,'" ante, at 9, Morrissey recognized that only the first step in the revocation decision can be so characterized. And once it is "determined that the parolee did violate the conditions [of parole, a] second question arise[s]: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation? The first step is relatively simple; the second is more complex. The second question involves the application of expertise by the parole authority in making a prediction as to the ability of the individual to live in society without committing antisocial acts. [T]his second step, deciding what to do about the violation once it is identified, is not purely factual but also predictive and discretionary." U.S., Morrissey thus makes clear that the parole revocation decision includes a decisive subjective component. Moreover, to the extent parole release proceedings hinge on predictive determinations, those assessments are necessarily predicated on findings of fact.[8] Accordingly, the presence of subjective *29 considerations is a completely untenable basis for distinguishing the interests at stake here from the liberty interest recognized in Morrissey. C The Court also concludes |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | liberty interest recognized in Morrissey. C The Court also concludes that the existence of a parole system by itself creates "no more than a mere hope that the benefit will be obtained," ante, at 11, and thus does not give rise to a liberty interest. This conclusion appears somewhat gratuitous, given the Court's ultimate holding that the Nebraska statutes do generate a "legitimate expectation of [parole] release" which is protected by the Due Process Clause. Ante, at 12. Moreover, it is unclear what purpose can be served by the Court's endeavor to depreciate the expectations arising solely from the existence of a parole system. The parole statutes in many jurisdictions embody the same standards used in the Model Penal Code, upon which both the Nebraska and federal provisions are patterned, and the Court's analysis of the Nebraska statutes would therefore suggest that the other statutes must also create protectible expectations of release.[9] *30 Furthermore, in light of the role that parole has assumed in the sentencing process, I believe the Court misapplies its own test, see ante, at 11-12, by refusing to acknowledge that inmates have a legitimate expectation of release whenever the government establishes a parole system. As the Court observed in Morrissey: "During the past 60 years, the practice of releasing prisoners on parole before the end of their sentences has become an integral part of the penological system. Rather than being an ad hoc exercise of clemency, parole is an established variation on imprisonment of convicted criminals." U.S., at 477. Indeed, the available evidence belies the majority's broad assumptions concerning inmate expectations, at least with respect to the federal system, and there is no suggestion that experience in other jurisdictions is significantly different.[10] Government statistics reveal that substantially less than one-third of all first-time federal offenders are held in prison until mandatory release.[11] In addition, 88% of the judges responding to a recent survey stated that they considered the availability of parole when imposing sentence, and 47% acknowledged their expectation that defendants would be released *31 on parole after serving one-third of their sentences.[12] In accord with these views, the Administrative Conference of the United States has advised Congress that courts set maximum sentences anticipating "that a prisoner who demonstrates his desire for rehabilitation will not serve the maximum term or anything approaching the maximum."[] And in discussing the sentencing provisions of the proposed revision of the Federal Criminal Code, S. 1437, the Senate Judiciary Committee observed: "A federal judge who today believes that an offender should serve four years in prison may impose a sentence in |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | serve four years in prison may impose a sentence in the vicinity of ten years, knowing that the offender is eligible for parole release after one third of the sentence." S. Rep. No. 95-605, p. 1169 Thus, experience in the federal system has led both judges and legislators to expect that inmates will be paroled substantially before their sentences expire. Insofar as it is critical under the Court's due process analysis, this understanding would certainly justify a similar expectation on the part of the federal inmates. Hence, I believe it is unrealistic for this Court to speculate that the existence of a parole system provides prisoners "no more than a mere hope" of release. Ante, at 11. II A I also cannot subscribe to the Court's assessment of the procedures necessary to safeguard respondents' liberty interest. Although the majority purports to rely on Morrissey v. *32 and the test enunciated in its application of these standards is fundamentally deficient in several respects. To begin with, the Court focuses almost exclusively on the likelihood that a particular procedure will significantly reduce the risk of error in parole release proceedings. Ante, at 14-16. Yet Mathews advances three factors to be considered in determining the specific dictates of due process: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." 424 U.S., at By ignoring the other two factors set forth in Mathews, the Court skews the inquiry in favor of the Board. For example, the Court does not identify any justification for the Parole Board's refusal to provide inmates with specific advance notice of the hearing date or with a list of factors that may be considered. Nor does the Board demonstrate that it would be unduly burdensome to provide a brief summary of the evidence justifying the denial of parole. To be sure, these measures may cause some inconvenience, but "the Constitution recognizes higher values than speed and efficiency." ; accord, 6 ; Similarly lacking in the Court's analysis is any recognition of the private interest affected by the Board's action. Certainly the interest in being released from incarceration is of sufficient magnitude to have some bearing on the process due.[14] *33 The second fundamental flaw in the Court's analysis is that it incorrectly evaluates the only factor actually |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | analysis is that it incorrectly evaluates the only factor actually discussed. The contribution that additional safeguards will make to reaching an accurate decision necessarily depends on the risk of error inherent in existing procedures. See at 334-, 343-347. Here, the Court finds supplemental procedures to be inappropriate because it assumes existing procedures adequately reduce the likelihood that an inmate's files will contain incorrect information which could lead to an erroneous decision. No support is cited for this assumption, and the record affords none. In fact, researchers and courts have discovered many substantial inaccuracies in inmate files, and evidence in the instant case revealed similar errors.[15] Both the District Court and the Court of Appeals *34 found additional procedures necessary to decrease the margin of error in Nebraska's parole release proceedings. Particularly since the Nebraska statutes tie the parole decision to a number of highly specific factual inquiries, see ante, at 16-18, I see no basis in the record for rejecting the lower courts' conclusion. Finally, apart from avoiding the risk of actual error, this Court has stressed the importance of adopting procedures that preserve the appearance of fairness and the confidence of inmates in the decisionmaking process. THE CHIEF JUSTICE recognized in Morrissey that "fair treatment in parole revocations will enhance the chance of rehabilitation by avoiding reactions to arbitrariness," U.S., at 484 a view shared by legislators, courts, the American Bar Association, and other commentators.[16] This consideration is equally significant whether liberty interests are extinguished in parole release or parole revocation proceedings. As Mr. Justice Frankfurter argued in Joint Anti-Fascist Refugee -172 : "The validity and moral authority of a conclusion largely depend on the mode by which it was reached. Secrecy is not congenial to truth-seeking and self-righteousness gives too slender an assurance of rightness. No better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the *35 case against him and opportunity to meet it. Nor has a better way been found for generating the feeling, so important to a popular government, that justice has been done." In my judgment, the need to assure the appearance, as well as the existence, of fairness supports a requirement that the Parole Board advise inmates of the specific dates for their hearings, the criteria to be applied, and the reasons and essential facts underlying adverse decisions. For "`[o]ne can imagine nothing more cruel, inhuman, and frustrating than serving a prison term without knowledge of what will be measured and the rules determining whether one is ready for release.'" K. |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | the rules determining whether one is ready for release.'" K. Davis, Discretionary Justice: A Preliminary Inquiry 2 (1969). B Applying the analysis of Morrissey and Mathews, I believe substantially more procedural protection is necessary in parole release proceedings than the Court requires. The types of safeguards that should be addressed here, however, are limited by the posture of this case.[17] Thus, only three specific issues need be considered. *36 While the question is close, I agree with the majority that a formal hearing is not always required when an inmate first becomes eligible for discretionary parole. Ante, at 14-15. The Parole Board conducts an initial parole review hearing once a year for every inmate, even before the inmate is eligible for release. Although the scope of this hearing is limited, inmates are allowed to appear and present letters or statements supporting their case. If the Board concludes that an eligible inmate is a good candidate for release, it schedules a final and substantially more formal hearing. The Court of Appeals directed the Parole Board to conduct such a formal hearing as soon as an inmate becomes eligible for parole, even where the likelihood of a favorable decision is negligible, but the court required no hearing thereafter. From a practical standpoint, this relief offers no appreciable advantage to the inmates. If the Board would not have conducted a final hearing under current procedures, inmates gain little from a requirement that such a hearing be held, since the evidence almost certainly would be insufficient to justify granting release. And because the Court of Appeals required the Board to conduct only one hearing, inmates risk losing the right to a formal proceeding at the very point additional safeguards may have a beneficial impact. The inmates' interest in this modification of the Board's procedures is thus relatively slight.[18] Yet the burden *37 imposed on the Parole Board by the additional formal hearings would be substantial. Accordingly, I believe the Board's current practice of combining both formal and informal hearings is constitutionally sufficient. However, a different conclusion is warranted with respect to the hearing notices given inmates. The Board currently informs inmates only that it will conduct an initial review or final parole hearing during a particular month within the next year. The notice does not specify the day or hour of the hearing. Instead, inmates must check a designated bulletin board each morning to see if their hearing is scheduled for that day. In addition, the Board refuses to advise inmates of the criteria relevant in parole release proceedings, despite a state statute expressly |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | relevant in parole release proceedings, despite a state statute expressly listing 14 factors the Board must consider and 4 permissible reasons for denying parole. See Neb. Rev. Stat. 83-1,114 quoted ante, at 11, 16-18. Finding these procedures insufficient, the District Court and the Court of Appeals ordered that each inmate receive written advance notice of the time set for his hearing, along with a list of factors the Board may 576 F.2d, at[19] Although the Board has proffered no justification for refusing to institute these procedures, the Court sets aside the relief ordered below on the ground that "[t]here is no claim that either the timing of the notice or its substance seriously prejudices the inmate's ability to prepare adequately for the hearing." Ante, at 14 n. 6. But respondents plainly have contended throughout this litigation that reasonable advance notice is necessary to enable them to organize their evidence, call the witnesses permitted by the Board, and notify private counsel allowed to participate in the *38 hearing, see Brief for Respondents 65-66; Answer Brief for Appellee Inmates in No. 77-1889 (CA8), pp. 6, 8-9, 25, 28; Trial Brief for Inmates in Civ. 72-L- (Neb.), pp. 17-18; and the courts below obviously agreed. See 576 F.2d, ; Mem. Op. in Civ. 72-L- App. to Pet. for Cert. 25, 39, 45-47. Given the significant private interests at stake, and the importance of reasonable notice in preserving the appearance of fairness, I see no reason to depart here from this Court's longstanding recognition that adequate notice is a fundamental requirement of due process, e. g., Memphis Light, Gas & Water ; a principle heretofore found equally applicable in the present context. -564; ; U. S., at 486-487, 489. Finally, I would require the Board to provide a statement of the crucial evidence on which it relies in denying parole.[20] At present, the Parole Board merely uses a form letter noting the general reasons for its decision. In ordering the Board to *39 furnish as well a summary of the essential facts underlying the denial, the Court of Appeals made clear that "`detailed findings of fact are not required.'" The majority here, however, believes even this relief to be unwarranted, because it might render parole proceedings more adversary and equate unfavorable decisions with a determination of guilt. Ante, at 15-16. The Court nowhere explains how these particular considerations are relevant to the inquiry required by Morrissey and Mathews. Moreover, it is difficult to believe that subsequently disclosing the factual justification for a decision will render the proceeding more adversary, especially when the Board already |
Justice Burger | 1,979 | 12 | majority | Greenholtz v. Inmates of Neb. Penal and Correctional Complex | https://www.courtlistener.com/opinion/110085/greenholtz-v-inmates-of-neb-penal-and-correctional-complex/ | render the proceeding more adversary, especially when the Board already provides a general statement of reasons.[21] And to the extent unfavorable parole decisions resemble a determination of guilt, the Board has no legitimate interest in concealing from an inmate the conduct or failings of which he purportedly is guilty. While requiring a summation of the essential evidence might entail some administrative inconvenience, in neither ; ; nor did the Court find that this factor justified denying a written statement of the essential evidence and the reasons underlying a decision. It simply is not unduly "burdensome to give reasons when reasons exist. Whenever an application is denied there should be some reason for the decision. It can scarcely be argued that government would be crippled by a requirement that the reason be communicated to the person most directly affected by the government's action." Board of *40 See 424 U. S., at -346; And an inability to provide any reasons suggests that the decision is, in fact, arbitrary.[22] Moreover, considerations identified in Morrissey and Mathews militate in favor of requiring a statement of the essential evidence. Such a requirement would direct the Board's focus to the relevant statutory criteria and promote more careful consideration of the evidence. It would also enable inmates to detect and correct inaccuracies that could have a decisive impact.[23] And the obligation to justify a decision publicly would provide the assurance, critical to the appearance of fairness, that the Board's decision is not capricious. Finally, imposition of this obligation would afford inmates instruction on the measures needed to improve their prison behavior and prospects for parole, a consequence surely consistent with rehabilitative goals.[24] Balancing these considerations *41 against the Board's minimal interest in avoiding this procedure, I am convinced that the Fourteenth Amendment requires the Parole Board to provide inmates a statement of the essential evidence as well as a meaningful explanation of the reasons for denying parole release.[25] Because the Court's opinion both depreciates inmates' fundamental liberty interest in securing parole release and sanctions denial of the most rudimentary due process protection, I respectfully dissent. |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | The Court today holds that a federal court is unable to exercise its supervisory powers to prevent the use of evidence in a criminal prosecution in that court, even though that evidence was obtained through intentional illegal and unconstitutional conduct by agents of the United because the defendant does not satisfy the standing requirement of the Fourth Amendment. That holding effectively turns the standing rules created by this Court for assertions of Fourth Amendment violations into a sword to be used by the Government to permit it deliberately to invade one person's Fourth Amendment rights in order to obtain evidence against another person. Unlike the Court, I do not believe that the federal courts are unable to protect the integrity of the judicial system from such gross Government misconduct. I The facts as found by the District Court need to be more fully stated in order to establish the level of purposeful misconduct to which agents of the United have sunk in this case. Operation Trade Winds was initiated by the Internal Revenue Service (IRS) in 1965 to gather information about the financial activities of American citizens in the Bahamas. The investigation was supervised by Special Agent Richard Jaffe in the Jacksonville, Fla., office. It was not until June 1972 that the investigation focused on the Castle Bank and Trust Company of the Bahamas. In late October 1972 Jaffe asked one of his informants, Norman Casper, to obtain the names and addresses of the individuals holding accounts with the Castle Bank. Casper set to work soon thereafter. He was already an acquaintance of Michael Wolstencroft, *739 vice president and trust officer of the Castle Bank. Casper knew that Wolstencroft frequently visited the United carrying a briefcase with documents from the Castle Bank. Casper therefore introduced Wolstencroft to Sybol Kennedy, a private detective who worked for Casper. In early January 1973, Casper learned that Wolstencroft planned a business trip to the United on January 15, 1973, and that he would have Castle Bank records with him on that trip. Plans for the "briefcase caper," as Casper called it, began in earnest. As found by the District Court, Casper discussed the details of the plan with Jaffe on several occasions during the week before Wolstencroft's trip.[1] Casper told Jaffe that he could get the needed documents from Wolstencroft, but that Jaffe would have to supply photographic services. On January 11, Casper specifically informed Jaffe that he planned to enter an apartment and take Wolstencroft's briefcase. Jaffe then stated that he would have to clear the operation with his superior, Troy Register, Jr., |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | to clear the operation with his superior, Troy Register, Jr., Chief of the IRS Intelligence Division in Jacksonville. Clearance was obtained, and Jaffe told Casper to proceed with the plan.[2] Casper called Jaffe the following day and asked if the IRS could refer him to a locksmith who could be "trusted." Jaffe gave him such a referral.[3] *740 The plans were finalized by the time of Wolstencroft's arrival on January 15. Wolstencroft went directly to Sybol Kennedy's apartment. The couple eventually went to a restaurant for dinner.[4] Using a key provided by Kennedy,[5] Casper entered the apartment and stole Wolstencroft's briefcase. Casper then rendezvoused with the IRS-recommended locksmith in a parking lot five blocks from the apartment; the locksmith made a key to fit the lock on the case. Casper took the briefcase and newly made key to the home of an IRS agent. Jaffe had selected that location for the photographing *741 because it was only eight blocks from the parking lot where Casper met the locksmith and Jaffe knew there was a need to act with haste.[6] The briefcase was opened in Jaffe's presence. Jaffe, Casper, and an IRS photography expert then photographed over 400 documents.[7] Casper had arranged for Kennedy and Wolstencroft to be watched on their date, and this lookout called Casper at the IRS agent's home when the couple finished their dinner. After all the documents had been copied, Casper relocked the briefcase and returned it to Kennedy's apartment. The entire "caper" lasted approximately one and one-half hours. The illegalities of agents of the United did not stop even at that point, however. During the following two weeks, Jaffe told Casper that the IRS needed additional information. Casper therefore sent Kennedy to visit Wolstencroft in the Bahamas. While there, acting pursuant to Casper's instructions, Kennedy stole a rolodex file from Wolstencroft's office. This file was turned over to Jaffe, who testified in the District Court that he had not cared how the rolodex file had been obtained.[8] The IRS paid Casper $8,000 in cash for the services he rendered in obtaining the information about Castle Bank. Casper in turn paid approximately $1,000 of this money to Kennedy for her role in the "briefcase caper" and the theft of the rolodex file. The "briefcase caper" revealed papers which showed a close relationship between the Castle Bank and a Florida bank. *742 Subpoenas issued to that Florida bank resulted in the uncovering of the loan guarantee agreement which was the principal piece of evidence against respondent at trial. It is that loan agreement and the evidence discovered |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | trial. It is that loan agreement and the evidence discovered as a result of it that the District Court reluctantly[9] suppressed under the Due Process Clause of the Fifth Amendment and under its supervisory powers. The District Court made several key findings concerning the level of misconduct of agents of the United in these activities. The District Court found that "the United through its agents, Richard Jaffe, and others, knowingly and willfully participated in the unlawful seizure of Michael Wolstencroft's briefcase, and encouraged its informant, Norman Casper, to arrange the theft of a rolodex from the offices of Castle Bank." The District Court concluded that "the United was an active participant in the admittedly criminal conduct in which Casper engaged." The District Court found that "the illegal conduct of the government officials involved in this case compels the conclusion that they knowingly and purposefully obtained the briefcase materials with bad faith hostility toward the strictures imposed on their activities by the Constitution." (emphasis in original). The District Court considered the actions of Jaffe and Casper "out-rageous," ib because they "plotted, schemed and ultimately acted in contravention of the United Constitution and laws of Florida, knowing that their conduct was illegal." The most disturbing finding by the District Court, however, related to the intentional manipulation of the standing requirements of the Fourth Amendment by agents of the United who are, of course, supposed to uphold and *743 enforce the Constitution and laws of this country. The District Court found: "It is evident that the Government and its agents, including Richard Jaffe, were, and are, well aware that under the standing requirement of the Fourth Amendment, evidence obtained from a party pursuant to an unconstitutional search is admissible against third parties who's [sic] own privacy expectations are not subject to the search, even though the cause for the unconstitutional search was to obtain evidence incriminating those third parties. This Court finds that, in its desire to apprehend tax evaders, a desire the Court fully shares, the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel. Such governmental conduct compels the conclusion that Jaffe and Casper transacted the 'briefcase caper' with a purposeful, bad faith hostility toward the Fourth Amendment rights of Wolstencroft in order to obtain evidence against persons like Payner." |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | Wolstencroft in order to obtain evidence against persons like Payner." The Court of Appeals did not disturb any of these findings. Nor does the Court today purport to set them aside. See ante, at 730-731, n. 3. But cf. ante, at 733-734, n. 5. It is in the context of these findingsintentional illegal actions by Government agents taken in bad-faith hostility toward the constitutional rights of Wolstencroft for the purpose of obtaining evidence against persons such as the respondent through manipulation of the standing requirements of the Fourth Amendmentthat the suppression issue must be considered. *744 II This Court has on several occasions exercised its supervisory powers over the federal judicial system in order to suppress evidence that the Government obtained through misconduct. See, e. g., ; ; ; ; Cf. The rationale for such suppression of evidence is twofold: to deter illegal conduct by Government officials, and to protect the integrity of the federal courts. ; ; Cf. ; ; The Court has particularly stressed the need to use supervisory powers to prevent the federal courts from becoming accomplices to such misconduct. See, e. g., ; (the Court should use its supervisory powers in federal criminal cases "to see that the waters of justice are not polluted"); *745 The need to use the Court's supervisory powers to suppress evidence obtained through governmental misconduct was perhaps best expressed by Mr. Justice Brandeis in his famous dissenting opinion in Olmstead v. United : "Decency, security and liberty alike demand that government officials shall be subjected to the same rules of conduct that are commands to the citizen. In a government of laws, existence of the government will be imperilled if it fails to observe the law scrupulously. Our Government is the potent, the omnipresent teacher. For good or for ill, it teaches the whole people by its example. Crime is contagious. If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. To declare that in the administration of the criminal law the end justifies the meansto declare that the Government may commit crimes in order to secure the conviction of a private criminalwould bring terrible retribution. Against that pernicious doctrine this Court should resolutely set its face." Mr. Justice Brandeis noted that "a court will not redress a wrong when he who invokes its aid has unclean hands," and that in keeping with that principle the court should not lend its aid in the enforcement of the criminal law when the government itself was guilty of misconduct. |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | criminal law when the government itself was guilty of misconduct. "Then aid is denied despite the defendant's wrong. It is denied in order to maintain respect for law; in order to promote confidence in the administration of justice; in order to preserve the judicial process from contamination." See also ; ; Lopez v. United[10] *746 The reason for this emphasis on the need to protect the integrity of the federal courts through the use of supervisory powers can be derived from the factual contexts in which supervisory powers have been exercised. In large part when supervisory powers have been invoked the Court has been faced with intentional illegal conduct. It has not been the case that "[t]he criminal is to go free because the constable has blundered," In these cases there has been no "blunder" by the Government agent at all; rather, the agent has intentionally violated the law for the explicit purpose of obtaining the evidence in question. Cf. Lopez v. United If the federal court permits such evidence, the intended product of deliberately illegal Government action, to be used to obtain a conviction, it places its imprimatur upon such lawlessness and thereby taints its own integrity. The present case falls within that category. The District Court found, and the record establishes, a deliberate decision by Government agents to violate the constitutional rights of Wolstencroft for the explicit purpose of obtaining evidence against persons such as Payner. The actions of the Government agentsstealing the briefcase, opening it, and photographing all the documents insidewere both patently in violation of the Fourth Amendment rights of Wolstencroft[11] and plainly in violation of the criminal law.[12] The Government *747 knew exactly what information it wanted, and it was that information which was stolen from Wolstencroft. Similarly, the Government knew that it wanted to prosecute persons such as Payner, and it made a conscious decision to forgo any opportunity to prosecute Wolstencroft in order to obtain illegally the evidence against Payner and others.[13] Since the supervisory powers are exercised to protect the integrity of the court, rather than to vindicate the constitutional rights of the defendant, it is hard to see why the Court today bases its analysis entirely on Fourth Amendment standing rules. The point is that the federal judiciary should not be made accomplices to the crimes of Casper, Jaffe, and others. The only way the IRS can benefit from the evidence it chose to obtain illegally is if the evidence is admitted at trial against persons such as Payner; that was the very point of the criminal exercise in the first |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | the very point of the criminal exercise in the first place. If the IRS is permitted to obtain a conviction in federal court based almost entirely on that illegally obtained evidence and its fruits, *748 then the judiciary has given full effect to the deliberate wrongdoings of the Government. The federal court does indeed become the accomplice of the Government lawbreaker, an accessory after the fact, for without judicial use of the evidence the "caper" would have been for nought. Such a pollution of the federal courts should not be permitted.[14] It is particularly disturbing that the Court today chooses to allow the IRS deliberately to manipulate the standing rules of the Fourth Amendment to achieve its ends. As previously noted, the District Court found that "the Government affirmatively counsels its agents that the Fourth Amendment standing limitation permits them to purposefully conduct an unconstitutional search and seizure of one individual in order to obtain evidence against third parties, who are the real targets of the governmental intrusion, and that the IRS agents in this case acted, and will act in the future, according to that counsel." -133 Whatever role those standing limitations may play, it is clear that they were never intended to be a sword to be used by the Government in its deliberate choice to sacrifice the constitutional rights of one person in order to prosecute another. The Court's decision to engraft the standing limitations of the Fourth Amendment onto the exercise of supervisory powers is puzzling not only because it runs contrary to the major purpose behind the exercise of the supervisory powers to protect the integrity of the courtbut also because it appears to render the supervisory powers superfluous. In order to establish that suppression of evidence under the supervisory powers would be proper, the Court would also require *749 Payner to establish a violation of his Fourth or Fifth Amendment rights,[15] in which case suppression would flow directly from the Constitution. This approach is totally unfaithful to our prior supervisory powers cases, which, contrary to the Court's suggestion, are not constitutional cases in disguise. I also do not understand the basis for the Court's assertion that this is not a case in which the District Court was supervising the administration of justice "among the parties before the bar," ante, at 735, n. 7, and therefore supervisory powers are inapplicable. Clearly the Government is before the bar. Equally clearly, the Government embarked on this deliberate pattern of lawless behavior for the express purpose of gaining evidence against persons such as Payner, so there can be |
Justice Marshall | 1,980 | 15 | dissenting | United States v. Payner | https://www.courtlistener.com/opinion/110317/united-states-v-payner/ | evidence against persons such as Payner, so there can be *750 no legitimate claim that the illegal actions are only tangentially related to the present prosecution. Instead, the Government misconduct is at the very heart of this case; without the evidence produced by the illegal conduct, there would have been no case at all, and Payner would never have been brought before the bar. This is simply not a case in which a federal court has attempted to exercise "general supervisory authority over operations of the Executive Branch," ante, at 737 (BURGER, C. J., concurring). Rather, this is a case where the District Court refused to be made an accomplice to illegal conduct by the IRS by permitting the agency to use the proceeds of its crimes for the very purpose for which they were committedto convict persons such as Payner. Contrary to the Court's characterization, this is also not a case in which there has been "indiscriminate" or "unbending" application of the exclusionary rule. The District Court noted that "exclusion on the basis of supervisory power is only done as a last resort," n. 74. That court concluded that suppression was proper only where there had been "purposefully illegal" conduct by the Government to obtain the evidence or where the Government's conduct was "motivated by an intentional bad faith hostility to a constitutional right." In this case, both those threshold requirements were met, and the District Court in addition concluded that absent suppression there was no deterrent to continued lawless conduct undertaken by the IRS to facilitate these types of prosecutions.[16] This is not "a `chancellor's foot' veto [by the District *751 Court] over law enforcement practices of which it did not approve," United v. Russell, ; Hampton v. United As my Brother POWELL noted on a prior occasion: "The fact that there is sometimes no sharply defined standard against which to make these judgments [of fundamental fairness] is not itself a sufficient reason to deny the federal judiciary's power to make them when warranted by the circumstances. Nor do I despair of our ability in an appropriate case to identify appropriate standards for police practices without relying on the `chancellor's' `fastidious squeamishness or private sentimentalism.'" Hampton v. United That appropriate case has arrived, and the Court should prevent the Government from profiting by use in the federal courts of evidence deliberately obtained by illegal actions taken in bad-faith hostility to constitutional rights. I would affirm the judgment of the Court of Appeals and suppress the fruits of the Government's illegal action under the Court's supervisory powers.[17] Accordingly, I |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | A public figure may not recover damages for a defamatory falsehood without clear and convincing proof that the false "statement was made with `actual malice' that is, with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times See Curtis Publishing In we held that judges in such cases have a constitutional duty to "exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." In this case the Court of Appeals affirmed a libel judgment against a newspaper without attempting to make an independent evaluation of the credibility of conflicting oral testimony concerning the subsidiary facts underlying the jury's finding of actual malice. We granted certiorari to consider whether the Court of Appeals' analysis was consistent with our holding in *660 I Respondent, Daniel Connaughton, was the unsuccessful candidate for the office of Municipal Judge of Hamilton, Ohio, in an election conducted on November 8, Petitioner is the publisher of the Journal News, a local newspaper that supported the reelection of the incumbent, James Dolan. A little over a month before the election, the incumbent's Director of Court Services resigned and was arrested on bribery charges. A grand jury investigation of those charges was in progress on November 1, On that date, the Journal News ran a front-page story quoting Alice Thompson, a grand jury witness, as stating that Connaughton had used "dirty tricks" and offered her and her sister jobs and a trip to Florida "in appreciation" for their help in the investigation. Invoking the federal court's diversity jurisdiction, Connaughton filed an action for damages, alleging that the article was false, that it had damaged his personal and professional reputation, and that it had been published with actual malice. After discovery, petitioner filed a motion for summary judgment relying in part on an argument that even if Thompson's statements were false, the First Amendment protects the accurate and disinterested reporting of serious charges against a public figure. The District Court denied the motion, noting that the evidence raised an issue of fact as to the newspaper's interest in objective reporting and that the "neutral reportage doctrine" did not apply to Thompson's statements.[1] The case accordingly proceeded to trial. *661 After listening to six days of testimony and three taped interviews one conducted by Connaughton and two by Journal News reporters and reviewing the contents of exhibits, the jury was given succinct instructions accurately defining the elements of public figure libel and directed to answer three special verdicts.[2] It unanimously found by a preponderance |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | answer three special verdicts.[2] It unanimously found by a preponderance of the evidence that the November 1 story was defamatory and that it was false. It also found by clear and convincing proof that the story was published with actual malice. After a separate hearing on damages, the jury awarded Connaughton $5,000 in compensatory damages and $195,000 in punitive damages. Thereafter, the District Court denied a motion for judgment notwithstanding the verdict, App. to Pet. for Cert. 83a, and petitioner appealed. *662 The Court of Appeals affirmed. In a lengthy opinion, the majority detailed why its "independent examination of the entire record" had demonstrated that "the judgment does not pose a forbidden intrusion into the First Amendment rights of free expression." The opinion identified the "core issue" as "simply one of credibility to be attached to the witnesses appearing on behalf of the respective parties and the reasonableness and probability assigned to their testimony." It separately considered the evidence supporting each of the jury's special verdicts, concluding that neither the finding that the article was defamatory[3] nor the finding that it was false[4] was clearly erroneous. The Court of Appeals' review of the actual malice determination involved four steps. It first noted the wide disparity between the respective parties' versions of the critical evidence, pointing out that if the jury had credited petitioner's evidence it "could have easily concluded that Thompson's *663 charges were true and/or that the Journal's conduct in determining Thompson's credibility was not a highly unreasonable departure from the standards of investigation and reporting ordinarily adhered to by reasonable publishers." Second, it inferred from the jury's answers to the three special interrogatories that "it obviously elected to assign greater credibility to the plaintiff's witnesses and proof [and that] the jury simply did not believe the defendants' witnesses, its evidentiary presentations or its arguments." Third, having considered what it regarded as the "subsidiary or operative facts" that constituted the plaintiff's theory of the case, it concluded that the jury's findings concerning those operative facts were not clearly erroneous. Fourth, "in the exercise of its independent judgment" based on its evaluation of the "cumulative impact of the subsidiary facts," the court concluded that "Connaughton proved, by clear and convincing evidence, that the Journal demonstrated its actual malice when it published the November 1, article despite the existence of serious doubt which attached to Thompson's veracity and the accuracy of her reports." Judge Guy dissented. In his opinion the admissions made by Connaughton in his interview with Journal News reporters the day before the story was published sufficiently corroborated Thompson's |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | the day before the story was published sufficiently corroborated Thompson's charges to preclude a finding of actual malice. He was satisfied, as a matter of law, that respondent had failed to prove actual malice by clear and convincing evidence, regardless of whether determinations of credibility made by the jury are subject to a de novo standard of review. II Petitioner contends that the Court of Appeals made two basic errors. First, while correctly stating the actual malice standard announced in New York Times the court actually applied a less severe *664 standard that merely required a showing of " `highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.' " (quoting Curtis Publishing ). Second, the court failed to make an independent de novo review of the entire record and therefore incorrectly relied on subsidiary facts implicitly established by the jury's verdict instead of drawing its own inferences from the evidence. There is language in the Court of Appeals' opinion that supports petitioner's first contention. For example, the Court of Appeals did expressly state that the Journal News' decision to publish Alice Thompson's allegations constituted an extreme departure from professional standards.[5] Moreover, the opinion attributes considerable weight to the evidence that the Journal News was motivated by its interest in the reelection of the candidate it supported and its economic interest in gaining a competitive advantage over the Cincinnati *665 Enquirer, its bitter rival in the local market.[6] Petitioner is plainly correct in recognizing that a public figure plaintiff must prove more than an extreme departure from professional standards and that a newspaper's motive in publishing a story whether to promote an opponent's candidacy or to increase its circulation cannot provide a sufficient basis for finding actual malice. The language in the Court of Appeals' opinion discussing professional standards is taken from Justice Harlan's plurality opinion in Curtis Publishing In that case, Justice Harlan had opined that the New York Times actual malice standard should be reserved for cases brought by public officials. The New York Times decision, in his view, was primarily driven by the repugnance of seditious libel and a concern that public official libel "lay close" to *666 this universally renounced, and long-defunct, doctrine. In place of the actual malice standard, Justice Harlan suggested that a public figure need only make "a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." This proposed standard, however, was emphatically rejected by a majority of |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | proposed standard, however, was emphatically rejected by a majority of the Court in favor of the stricter New York Times actual malice rule. See 388 U.S., at ; ; Moreover, just four years later, Justice Harlan acquiesced in application of the actual malice standard in public figure cases, see and by the time of the Court's decision in the Court was apparently unanimously of this view. Today, there is no question that public figure libel cases are controlled by the New York Times standard and not by the professional standards rule, which never commanded a majority of this Court. It also is worth emphasizing that the actual malice standard is not satisfied merely through a showing of ill will or "malice" in the ordinary sense of the term.[7] See Beckley *667 Newspapers ; Indeed, just last Term we unanimously held that a public figure "may not recover for the tort of intentional infliction of emotional distress without showing that the publication contains a false statement of fact which was made with knowledge that the statement was false or with reckless disregard as to whether or not it was true." Hustler Magazine, Nor can the fact that the defendant published the defamatory material in order to increase its profits suffice to prove actual malice. The allegedly defamatory statements at issue in the New York Times case were themselves published as part of a paid -266. If a profit motive could somehow strip communications of the otherwise available constitutional protection, our cases from New York Times to Hustler Magazine would be little more than empty vessels. Actual malice, instead, requires at a minimum that the statements were made with a reckless disregard for the truth. And although the concept of "reckless disregard" "cannot be fully encompassed in one infallible definition," St. we have made clear that the defendant must have made the false publication with a "high degree of awareness of probable falsity," or must have "entertained serious doubts as to the truth of his publication," St. Certain statements in the Court of Appeals' opinion, when read in isolation, appear to indicate that the court at times substituted the professional standards rule for the actual malice requirement and at other times inferred actual malice from the newspaper's motive in publishing Thompson's story. Nevertheless, when the opinion is read as a whole, it is clear that the conclusion concerning the newspaper's departure *668 from accepted standards and the evidence of motive were merely supportive of the court's ultimate conclusion that the record "demonstrated a reckless disregard as to the truth or falsity of |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | a reckless disregard as to the truth or falsity of Thompson's allegations and thus provided clear and convincing proof of `actual malice' as found by the jury." Although courts must be careful not to place too much reliance on such factors, a plaintiff is entitled to prove the defendant's state of mind through circumstantial evidence, see ; cert. denied, and it cannot be said that evidence concerning motive or care never bears any relation to the actual malice inquiry. Thus, we are satisfied that the Court of Appeals judged the case by the correct substantive standard. The question whether the Court of Appeals gave undue weight to the jury's findings whether it failed to conduct the kind of independent review mandated by our opinion in requires more careful consideration. A proper answer to that question must be prefaced by additional comment on some of the important conflicts in the evidence. III The most important witness to the bribery charges against the Director of Court Services was Patsy Stephens, Alice Thompson's older sister. In a tape-recorded interview conducted in Connaughton's home between 12:30 and 4:30 a.m. on September 17, Stephens explained how, on 40 or 50 occasions, she had visited with the Court Administrator, Billy Joe New, in his office and made cash payments to dispose of "DUI" and other minor criminal charges against her former husband and various other relatives and acquaintances.[8] On September 22, pursuant to an arrangement *669 made by Connaughton at the suggestion of the county prosecutor, Stephens took a lie detector test. After learning that she had passed the test, Connaughton filed a written complaint against New. In due course, New was arrested, indicted, and convicted. Alice Thompson was one of the eight persons present at the tape-recorded interview on September 17.[9] One of the cases Patsy Stephens described was a shoplifting charge against her sister. Thompson volunteered some comments about the incident, but otherwise had little to say during the long interview with Stephens. Thompson was also present on the 22d, when Stephens took the polygraph test, but Thompson declined to submit to such a test. App. 301. On that day, the two sisters spent several hours in the company of Connaughton, his wife, and two of his supporters. They discussed a number of subjects, including the fact that Billy Joe New had just resigned, the question whether there was reason to be concerned about the safety of the two sisters, the fact that Martha Connaughton might open an ice cream parlor sometime in the future, the possibility that the two sisters might |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | in the future, the possibility that the two sisters might be employed there as waitresses, and a vacation in Florida planned by the Connaughtons for after the election. *670 Late in October, New's lawyer, Henry Masana, met with Jim Blount, the editorial director of the Journal News, and Joe Cocozzo, the newspaper's publisher, to arrange a meeting with Alice Thompson. Masana explained that Thompson wanted to be interviewed about the "dirty tricks" Connaughton was using in his campaign. Thereafter, on October 27, Blount and Pam Long, a Journal News reporter, met with Thompson in the lawyer's office and tape-recorded the first of the two interviews that provided the basis for the story that Long wrote and the Journal News published on November 1. The tape of Alice Thompson's interview is 1 hour and 20 minutes long. Significant portions of it are inaudible or incoherent. It is clear, however, that Thompson made these specific charges: that Connaughton had stated that his purpose in taping the interview with Patsy Stephens was to get evidence with which he could confront New and Judge Dolan and "scare them into resigning" without making any public use of the tapes;[10] *671 that he would pay the expenses for a 3-week vacation in Florida for the two sisters;[11] that he would buy a restaurant for the two sisters' parents to operate;[12] *672 that he would provide jobs for both Patsy Stephens and Alice Thompson;[13] that he would take them out to a victory dinner at an expensive French restaurant after the election;[14] and that Connaughton would not allow knowledge of the sisters' involvement to become public.[15] *673 During the course of the interview, Thompson indicated that she had told her story to the Cincinnati Enquirer, which declined to print it, and that the local police, likewise, were not interested,[16] Thompson indicated that she was "against" Connaughton becoming a judge. She also asserted that since Connaughton had made public that she and her sister had provided evidence against New, friends had accused her "of being a snitch and a rat" epithets to which she took great offense and that one reason she came to the Journal News was "to get that cleared up."[17] In her description of the interview in Connaughton's home on September 17, Thompson stated that Connaughton had frequently turned off the tape recorder,[18] that his voice would not be heard *6 on the tape,[19] and, somewhat inconsistently (and in response to a leading question), that most of her comments had been made in response to leading questions |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | her comments had been made in response to leading questions by Connaughton.[20] Toward the end of the interview, Blount made two significant comments. He announced that "Pam will, of course, write the story," and he asked "[w]hat would happen if we called your sister," In response to the first comment, Thompson volunteered a somewhat improbable explanation for her motivation in seeking the interview,[21]*675 and in response to the second she gave an equivocal answer,[22] even though she had previously assured Blount that Stephens would confirm everything she had said.[23] On Sunday, October 30, an editorial appeared in the Journal News under the headline "Municipal Court Race will have More than One Loser."[24] App. to Pet. for Cert. 45a. In the column, Blount observed that the campaign "battle has been all it was expected to be and more," and predicted that "[a] lot could still happen in the next eight to nine days." He went on to discuss the charges pending against New, stating that the "array of charges and counter charges probably has taken some votes from Dolan." He cautioned, however, that the race was still wide open and quoted an unidentified voter as saying, "I resent voting for a person who I later find has been deceitful or dishonest *676 in campaigning." at 46a. Significantly, this unidentified person did not express indignation at dishonesty in the administration of the Municipal Court a concern one would think the arrest of New might have prompted but rather, a distaste for dishonesty in campaigning a concern that the then-uninvestigated and unwritten November 1 story would soon engender. After questioning the Cincinnati Enquirer's coverage of a story critical of Dolan and suggesting that "the Connaughton forces have a wealthy, influential link to Enquirer decisionmakers," the column indicated that the Journal News had not yet decided which candidate it favored, but implied that an endorsement was forthcoming. at 48a. On October 31, a reporter for the Journal News telephoned Connaughton and asked him to attend a meeting with Jim Blount, stating "that the endorsement may hang in the balance." Tr. 457 Connaughton met with the reporter, Blount, and Cocozzo that afternoon and discussed a variety of subjects. One of the subjects was the rumor that Connaughton had an influential link to the Cincinnati Enquirer. Connaughton asserted that he had "no extraordinary pull or any inside track to anybody down there," and that any rumor to the contrary was "a lie." Another subject was Connaughton's participation in the investigation of Billy Joe New. Connaughton provided a chronology of the events that led |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | New. Connaughton provided a chronology of the events that led to his filing of the complaint against New and explained that he believed that he had an obligation "as an attorney and officer of the court to report [New's] crimes." -459. No mention was made of Thompson's interview or her charges against Connaughton. After about an hour, Jim Blount received a telephone call and then told Connaughton that a reporter wanted to interview him. Connaughton then went to another office where Blount and Long advised him that they had interviewed Alice Thompson *677 and were "trying to find out how much of her statement was true." App. 2. The ensuing tape-recorded interview lasted 55 minutes. Connaughton acknowledged that the meetings that Thompson described had taken place and that there had been some speculative discussion about each of the subjects that Thompson mentioned. He stated, however, that Thompson's account of their meetings was "obviously shaded and bizarre," and that there was "absolutely" no "quid pro quo for information."[25] Thus, while categorically denying that he intended to confront New and Judge Dolan with the tape of the Stephens interview to scare them into resigning, Connaughton admitted that he might well have speculated about what they would say or do if they heard the tapes.[26] Similarly, while denying *678 that he had promised Stephens and Thompson anonymity, he agreed that he had told them that he had hoped that they could remain anonymous.[27] He also categorically denied that he had promised Thompson a job as a waitress, promised Stephens a job at the Municipal Court, or promised to set their parents up in a restaurant, although he did acknowledge a general conversation in which his wife had discussed the possibility that if her dream of opening "a gourmet ice cream shop" should materialize, the sisters might work there.[28] There were similar acknowledgments of references *679 to a possible Florida trip and postelection victory dinner, but denials of any promises.[29] At the end of the interview, Long went back stressing that Thompson's charge was a "hefty" *680 one and asked for a second time whether Connaughton had promised Stephens a job at the Municipal Court if he was elected. He once again unequivocally denied the allegation.[30] The following day the lead story in the Journal News under the headline "Bribery case witness claims jobs, trip offered" reported that "[a] woman called to testify before the. Grand Jury in the Billy Joe New bribery case claims Dan Connaughton, candidate for Hamilton Municipal Judge, offered her and her sister jobs and a |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | Municipal Judge, offered her and her sister jobs and a trip to Florida `in appreciation' for their help."[31] at 329. The article, which carried Pam Long's byline, stated that Thompson accused Connaughton of using " `dirty tricks' " to gain her cooperation in investigating New and that Connaughton, although admitting that he did meet with Thompson, "denied any wrongdoing." Each of Thompson's allegations was accurately reported, including her claims that Connaughton had promised to "protect her anonymity," that he had promised Stephens "a municipal court job" and Thompson some other sort of work, that he had invited both sisters on "a post-election trip to Florida," and that he had offered "to set up Thompson's parents in the restaurant business," The article conveyed Thompson's allegation that "the tapes were turned off and on during a session [that] lasted until 5:30 a.m.," and that these promises were *681 made "[w]hen the tape was turned off." In addition, Long wrote, "Thompson claimed Connaughton had told her the tapes he made of her statement were to be presented to Dolan" with the hope that Dolan might resign, thereby allowing Connaughton to assume the municipal judgeship. Connaughton's contrary version of the events was also accurately reported. As the Court of Appeals correctly noted, there was evidence in the record both in the Thompson tape and in the Connaughton tape that would have supported the conclusion that Thompson was telling the truth and that Connaughton was dissembling. See 842 F.2d, On the other hand, notwithstanding the partial confirmation of Thompson's charges in the Connaughton tape, there remained a sharp conflict between their respective versions of the critical events. There was unquestionably ample evidence in the record to support a finding that Thompson's principal charges were false, either because she misinterpreted remarks by Connaughton and his wife, or because Thompson was deliberately lying. The jury listened to the tape recordings of the two conflicting interviews and also observed the demeanor of the two witnesses as they testified in open court. They found that Connaughton was telling the truth and that Thompson's charges were false. The fact that an impartial jury unanimously reached that conclusion does not, however, demonstrate that the Journal News acted with actual malice. Unlike a newspaper, a jury is often required to decide which of two plausible stories is correct. Difference of opinion as to the truth of a matter even a difference of 11 to 1 does not alone constitute clear and convincing evidence that the defendant acted with a knowledge of falsity or with a "high degree of |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | a knowledge of falsity or with a "high degree of awareness of probable falsity," 379 U. S., at The jury's verdict in this case, however, derived additional support from several critical pieces of information that strongly support the inference that the Journal *682 News acted with actual malice in printing Thompson's false and defamatory statements. IV On October 27, after the interview with Alice Thompson, the managing editor of the Journal News assembled a group of reporters and instructed them to interview all of the witnesses to the conversation between Connaughton and Thompson with one exception Patsy Stephens. No one was asked to interview her and no one made any attempt to do so. See App. -57, 61, 83-85. This omission is hard to explain in light of Blount's and Long's repeated questions during the Connaughton and Thompson interviews concerning whether Stephens would confirm Thompson's allegations. See It is utterly bewildering in light of the fact that the Journal News committed substantial resources to investigating Thompson's claims, yet chose not to interview the one witness who was most likely to confirm Thompson's account of the events. However, if the Journal News had serious doubts concerning the truth of Thompson's remarks, but was committed to running the story, there was good reason not to interview Stephens while denials coming from Connaughton's supporters might be explained as motivated by a desire to assist Connaughton, a denial coming from Stephens would quickly put an end to the story. The remaining six witnesses, including Connaughton, were all interviewed separately on October 31. Each of them denied Alice Thompson's charges and corroborated Connaughton's version of the events. Thus, one Journal News reporter testified at trial that Jeanette and Ernest Barnes denied that any promises, offers, or inducements were made and that he had known the Barneses for several years and considered them both credible. Another reporter testified that she interviewed Dave Berry and that Berry stated that absolutely no promises or offers were made. By the time the November 1 story appeared, *683 six witnesses had consistently and categorically denied Thompson's allegations, yet the newspaper chose not to interview the one witness that both Thompson and Connaughton claimed would verify their conflicting accounts of the relevant events. The newspaper's decision not to listen to the tapes of the Stephens interview in Connaughton's home also supports the finding of actual malice. During the Connaughton interview, Long and Blount asked if they could hear the tapes. Connaughton agreed, ib and later made the tapes available, Much of what Thompson had said about the interview could |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | Much of what Thompson had said about the interview could easily have been verified or disproved by listening to the tapes. Listening to the tapes, for example, would have revealed whether Thompson accurately reported that the tape recorders were selectively turned on and off and that Connaughton was careful not to speak while the recorders were running. Similarly, the tapes presented a simple means of determining whether Stephens and Thompson had been asked leading questions, as Thompson claimed. Furthermore, if Blount was truly in equipoise about the question whether to endorse the incumbent judge for reelection as he indicated in the column that he published on Sunday, October 30 it is difficult to understand his lack of interest in a detailed description of the corrupt disposition of 40 to 50 cases in Judge Dolan's court. Even though he may have correctly assumed that the account did not reflect on the integrity of the judge himself, surely the question whether administrative shortcomings might be revealed by the tapes would be a matter in which an editor in the process of determining which candidate to endorse would normally have an interest.[32] Although simply one piece of *684 evidence in a much larger picture, one might reasonably infer in light of this broader context that the decision not to listen to the tapes was motivated by a concern that they would raise additional doubts concerning Thompson's veracity. Moreover, although also just a small part of the larger picture, Blount's October 30 editorial can be read to set the stage for the November 1 article. Significantly, this editorial appeared before Connaughton or any of the other witnesses were interviewed. Its prediction that further information concerning the integrity of the candidates might surface in the last few days of the campaign can be taken to indicate that Blount had already decided to publish Thompson's allegations, regardless of how the evidence developed and regardless of whether or not Thompson's story was credible upon ultimate reflection. Finally, discrepancies in the testimony of Journal News witnesses may have given the jury the impression that the *685 failure to conduct a complete investigation involved a deliberate effort to avoid the truth. Thus, for example, Blount's superiors testified that they understood that Blount had directed reporter Tom Grant to ask the police whether Thompson had repeated her charges against Connaughton to them and whether they considered her a credible witness. 95 (Cocozzo). Blount also so testified. Grant, however, denied that he had been given such an assignment. Similarly, at the early stages of the proceeding, there was testimony |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | at the early stages of the proceeding, there was testimony that on October 31 Pam Long had tried to arrange a meeting with Patsy Stephens over the telephone, that Blount was standing at her desk during the conversation and overheard Long talking to Stephens, and that Connaughton had volunteered that he would have Stephens get in touch with them, Connaughton categorically denied that the issue of getting in touch with Stephens was even discussed, and ultimately Blount and Long agreed that there was no contact and no attempt to make contact with Stephens on the 31st or at any other time before the story was published, -57 (Long). V The question whether the evidence in the record in a defamation case is sufficient to support a finding of actual malice is a question of law. -511. This rule is not simply premised on common-law tradition,[33] but on the *686 unique character of the interest protected by the actual malice standard. Our profound national commitment to the free exchange of ideas, as enshrined in the First Amendment, demands that the law of libel carve out an area of " `breathing space' " so that protected speech is not discouraged. ); New York Times The meaning of terms such as "actual malice" and, more particularly, "reckless disregard" however, is not readily captured in "one infallible definition." St. U. S., at 730. Rather, only through the course of case-by-case adjudication can we give content to these otherwise elusive constitutional standards. Moreover, such elucidation is particularly important in the area of free speech for precisely the same reason that the actual malice standard is itself necessary. Uncertainty as to the scope of the constitutional protection can only dissuade protected speech the more elusive the standard, the less protection it affords. Most fundamentally, the rule is premised on the recognition that "[j]udges, as expositors of the Constitution," have a duty to "independently decide whether the evidence in the record is sufficient to cross the constitutional threshold that bars the entry of any judgment that is not supported by clear and convincing proof of `actual malice.' " There is little doubt that "public discussion of the qualifications of a candidate for elective office presents what is probably the strongest possible case for application of the New York Times rule," Ocala Star-Banner v. Damron, and the strongest possible case for independent *687 review. As Madison observed in 1800, just nine years after ratification of the First Amendment: "Let it be recollected, lastly, that the right of electing the members of the government |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | that the right of electing the members of the government constitutes more particularly the essence of a free and responsible government. The value and efficacy of this right depends on the knowledge of the comparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently, of examining and discussing these merits and demerits of the candidates respectively." 4 J. Elliot, Debates on the Federal Constitution 575 (1861). This value must be protected with special vigilance. When a candidate enters the political arena, he or she "must expect that the debate will sometimes be rough and personal," (Bork, J., concurring), cert. denied, and cannot " `cry Foul!' when an opponent or an industrious reporter attempts to demonstrate" that he or she lacks the "sterling integrity" trumpeted in campaign literature and speeches, Monitor Patriot v. Roy, 2 Vigorous reportage of political campaigns is necessary for the optimal functioning of democratic institutions and central to our history of individual liberty.[34] *688 We have not gone so far, however, as to accord the press absolute immunity in its coverage of public figures or elections. If a false and defamatory statement is published with knowledge of falsity or a reckless disregard for the truth, the public figure may prevail. See Curtis Publishing 388 U. S., at A "reckless disregard" for the truth, however, requires more than a departure from reasonably prudent conduct. "There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication." St. 390 U. S., The standard is a subjective one there must be sufficient evidence to permit the conclusion that the defendant actually had a "high degree of awareness of probable falsity." 379 U. S., at As a result, failure to investigate before publishing, even when a reasonably prudent person would have done so, is not sufficient to establish reckless disregard. See St. 733. See also ; Schultz v. Newsweek, In a case such as this involving the reporting of a third party's allegations, "recklessness may be found where there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. In determining whether the constitutional standard has been satisfied, the reviewing court must consider the factual record in full. Although credibility determinations are reviewed under the clearly-erroneous standard because the trier of fact has had the "opportunity to observe the demeanor of the witnesses," -500, the reviewing court must " `examine for [itself] the statements in issue and the circumstances under which they were made to |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | issue and the circumstances under which they were made to see whether they are of a character which the principles of the First Amendment protect,' " New York Times (quoting Pennekamp v. Florida, 328 U. S. *689 331, 335 (1946)).[35] Based on our review of the entire record, we agree with the Court of Appeals that the evidence did in fact support a finding of actual malice. Our approach, however, differs somewhat from that taken by the Court of Appeals. In considering the actual malice issue, the Court of Appeals identified 11 subsidiary facts that the jury "could have" found.[36] 842 F. 2d, The court held that such *690 findings would not have been not clearly erroneous, and, based on its independent review, that when considered cumulatively they provide clear and convincing evidence of actual malice, We agree that the jury may have found each of those facts, but conclude that the case should be decided on a less speculative ground. Given the trial court's instructions, the jury's answers to the three special interrogatories, and an understanding of those facts not in dispute, it is evident that the jury must have rejected (1) the testimony of petitioner's witnesses that Stephens was not contacted simply because Connaughton failed to place her in touch with the newspaper; (2) the testimony of Blount that he did not listen to the tapes simply because he thought they would provide him with no new information; and (3) the testimony of those Journal News employees who asserted that they believed Thompson's allegations were substantially true. When these findings are considered alongside the undisputed *691 evidence, the conclusion that the newspaper acted with actual malice inexorably follows. There is no dispute that Thompson's charges had been denied not only by Connaughton, but also by five other witnesses before the story was published. Thompson's most serious charge that Connaughton intended to confront the incumbent judge with the tapes to scare him into resigning and otherwise not to disclose the existence of the tapes was not only highly improbable, but inconsistent with the fact that Connaughton had actually arranged a lie detector test for Stephens and then delivered the tapes to the police. These facts were well known to the Journal News before the story was published. Moreover, because the newspaper's interviews of Thompson and Connaughton were captured on tape, there can be no dispute as to what was communicated, nor how it was said. The hesitant, inaudible, and sometimes unresponsive and improbable tone of Thompson's answers to various leading questions raise obvious doubts about her veracity. |
Justice Stevens | 1,989 | 16 | majority | Harte-Hanks Communications, Inc. v. Connaughton | https://www.courtlistener.com/opinion/112312/harte-hanks-communications-inc-v-connaughton/ | to various leading questions raise obvious doubts about her veracity. Moreover, contrary to petitioner's contention that the prepublication interview with Connaughton confirmed the factual basis of Thompson's statements, Brief for Petitioner 47, review of the tapes makes clear that Connaughton unambiguously denied each allegation of wrongful conduct. Connaughton's acknowledgment, for instance, that his wife may have discussed with Stephens and Thompson the possibility of working at an ice cream store that she might someday open, hardly confirms the allegations that Connaughton had promised to buy a restaurant for the sister's parents to operate, that he would provide Stephens with a job at the Municipal Court, or even that he would provide Thompson with suitable work.[37] It is extraordinarily unlikely that the *692 reporters missed Connaughton's denials simply because he confirmed certain aspects of Thompson's story. It is also undisputed that Connaughton made the tapes of the Stephens interview available to the Journal News and that no one at the newspaper took the time to listen to them. Similarly, there is no question that the Journal News was aware that Patsy Stephens was a key witness and that they failed to make any effort to interview her. Accepting the jury's determination that petitioner's explanations for these omissions were not credible, it is likely that the newspaper's inaction was a product of a deliberate decision not to acquire knowledge of facts that might confirm the probable falsity of Thompson's charges. Although failure to investigate will not alone support a finding of actual malice, see St. 390 U. S., 733, the purposeful avoidance of the truth is in a different category. There is a remarkable similarity between this case and in particular, the newspaper's failure to interview Stephens and failure to listen to the tape recording of the September 17 interview at Connaughton's home and the facts that supported the Court's judgment in Curtis Publishing In the evidence showed that the Saturday Evening Post had published an accurate account of an unreliable informant's false description of the Georgia athletic director's purported agreement to "fix" a college football game. Although there was reason to question the informant's veracity, just as there was reason to doubt Thompson's story, the editors did not interview a witness who had the same access to the facts as the informant and did not look at films that revealed what actually happened *693 at the game in question.[38] This evidence of an intent to avoid the truth was not only sufficient to convince the plurality that there had been an extreme departure from professional publishing standards, but it |
Justice Rehnquist | 1,977 | 19 | concurring | Abood v. Detroit Bd. of Ed. | https://www.courtlistener.com/opinion/109661/abood-v-detroit-bd-of-ed/ | Had I joined the plurality opinion in I would find it virtually impossible to join the Court's opinion in this case. In Elrod, the plurality stated: "The illuminating source to which we turn in performing the task [of constitutional adjudication] is the system *243 of government the First Amendment was intended to protect, a democratic system whose proper functioning is indispensably dependent on the unfettered judgment of each citizen on matters of political concern. Our decision in obedience to the guidance of that source does not outlaw political parties or political campaigning and management. Parties are free to exist and their concomitant activities are free to continue. We require only that the rights of every citizen to believe as he will and to act and associate according to his beliefs be free to continue as well." I do not read the Court's opinion as leaving intact the "unfettered judgment of each citizen on matters of political concern" when it holds that Michigan may, consistently with the First and Fourteenth Amendments, require an objecting member of a public employees' union to contribute to the funds necessary for the union to carry out its bargaining activities. Nor does the Court's opinion leave such a member free "to believe as he will and to act and associate according to his beliefs." I agree with the Court, and with the views expressed in MR. JUSTICE POWELL'S opinion concurring in the judgment, that the positions taken by public employees' unions in connection with their collective-bargaining activities inevitably touch upon political concern if the word "political" be taken in its normal meaning. Success in pursuit of a particular collective-bargaining goal will cause a public program or a public agency to be administered in one way; failure will result in its being administered in another way. I continue to believe, however, that the dissenting opinion of MR. JUSTICE POWELL in which I joined, correctly stated the governing principles of First and Fourteenth Amendment law in the case of public employees such as this. I am unable to see a constitutional distinction between a governmentally imposed requirement that a public employee be a Democrat or Republican or else lose his job, *244 and a similar requirement that a public employee contribute to the collective-bargaining expenses of a labor union. I therefore join the opinion and judgment of the Court. MR. |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | A one-count indictment was returned in the United States District Court for the Eastern District of Louisiana *397 charging the appellees with a violation of the Hobbs Act, 18 U.S. C. 11. In pertinent part, that Act provides: "(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both." "Extortion" is defined in the Act, as "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear" 18 U.S. C. 11 (b) (2). At the time of the alleged conspiracy, the employees of the Gulf States Utilities Company were out on strike. The appellees are members and officials of labor unions that were seeking a new collective-bargaining agreement with that company. The indictment charged that the appellees and two named coconspirators conspired to obstruct commerce, and that as part of that conspiracy, they "would obtain the property of the Gulf States Utilities Company in the form of wages and other things of value with the consent of the Gulf States Utilities Company such consent to be induced by the wrongful use of actual force, violence and fear of economic injury by [the appellees] and coconspirators, in that [the appellees] and the coconspirators did commit acts of physical violence and destruction against property owned by the Gulf States Utilities Company in order to force said *398 Company to agree to a contract with Local 2286 of the International Brotherhood of Electrical Workers calling for higher wages and other monetary benefits." Five specific acts of violence were charged to have been committed in furtherance of the conspiracyfiring highpowered rifles at three Company transformers, draining the oil from a Company transformer, and blowing up a transformer substation owned by the Company. In short, the indictment charged that the appellees had conspired to use and did in fact use violence to obtain for the striking employees higher wages and other employment benefits from the Company. The District Court granted the appellees' motion to dismiss the indictment for failure to state an offense under the Hobbs Act. The court noted that the appellees were union members on strike against their employer, Gulf States, and that both the strike and its objective |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | Gulf States, and that both the strike and its objective of higher wages were legal. The court expressed the view that if "the wages sought by violent acts are wages to be paid for unneeded or unwanted services, or for no services at all," then that violence would constitute extortion within the meaning of the Hobbs Act. But in this case, by contrast, the court noted that the indictment alleged the use of force to obtain legitimate union objectives: "The union had a right to disrupt the business of the employer by lawfully striking for higher wages. Acts of violence occurring during a lawful strike and resulting in damage to persons or property are undoubtedly punishable under State law. To punish persons for such acts of violence was not the purpose of the Hobbs Act." The court found "no case where a court has gone so far as to hold the type of activity involved here to be a violation of the Hobbs Act." *399 We noted probable jurisdiction of the Government's appeal,[1] to determine whether the Hobbs Act proscribes violence committed during a lawful strike for the purpose of inducing an employer's agreement to legitimate collective-bargaining demands. I The Government contends that the statutory language unambiguously and without qualification proscribes interference with commerce by "extortion," and that in terms of the statute, "extortion" is "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear" Wages are the "property" of the employer, the argument continues, and strike violence to obtain such "property" thus falls within the literal proscription of the Act. But the language of the statute is hardly as clear as the Government would make it out to be. Its interpretation of the Act slights the wording of the statute that proscribes obtaining property only by the "wrongful" use of actual or threatened force, violence, or fear. The term "wrongful," which on the face of the statute modifies the use of each of the enumerated means of obtaining propertyactual or threatened force, violence, or fear[2]would be superfluous if it only served to describe the means used. For it would be redundant to speak of "wrongful violence" or "wrongful force" since, *400 as the Government acknowledges, any violence or force to obtain property is "wrongful."[3] Rather, "wrongful" has meaning in the Act only if it limits the statute's coverage to those instances where the obtaining of the property would itself be "wrongful" because the alleged extortionist has no lawful claim to that property. Construed in this fashion, the Hobbs |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | claim to that property. Construed in this fashion, the Hobbs Act has properly been held to reach instances where union officials threatened force or violence against an employer in order to obtain personal payoffs,[4] and where unions used the proscribed means to exact "wage" payments from employers in return for "imposed, unwanted, superfluous and fictitious services" of workers.[5] For in those situations, the employer's property has been misappropriated. But the literal language of the statute will not bear the Government's semantic argument that the Hobbs Act reaches the use of violence to achieve legitimate union objectives, such as higher wages in return for genuine services which the employer seeks. In that type of case, there has been no "wrongful" taking of the employer's property; he has paid for the services he bargained for, and the workers receive the wages to which they are entitled in compensation for their services. *401 II The legislative framework of the Hobbs Act dispels any ambiguity in the wording of the statute and makes it clear that the Act does not apply to the use of force to achieve legitimate labor ends. The predecessor of the Hobbs Act, 2 of the Anti-Racketeering Act of 1934,[6] proscribed, in connection with interstate commerce, the exaction of valuable consideration by force, violence, or coercion, "not including, however, the payment of wages by a bona-fide employer to a bona-fide employee"[7] In United the Court held that this exception covered *402 the members of a New York City truck drivers union who, by violence or threats, exacted payments for themselves from out-of-town truckers in return for the unwanted and superfluous service of driving out-of-town trucks to and from the city. The New York City teamsters would lie in wait for the out-of-town trucks, and then demand payment from the owners and drivers in return for allowing the trucks to proceed into the city. The teamsters sometimes drove the arriving trucks into the city, but in other instances, the out-of-town truckers paid the fees but rejected the teamsters' services and drove the trucks themselves. In several cases there was evidence that, having exacted their fees, the city drivers disappeared without offering to perform any services at all. See also The Court held that the activities of the city teamsters were included within the wage exception to the Anti-Racketeering Act although what work they performed was unneeded and unwanted, and although in some cases their work was rejected. Congressional disapproval of this decision was swift. Several bills[8] were introduced with the narrow purpose of correcting the result in the Local 807 case.[9] |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | purpose of correcting the result in the Local 807 case.[9] H. R. 32, which became the Hobbs Act, eliminated the wage exception that had been the basis for the Local 807 decision.[10] But, as frequently emphasized *403 on the floor of the House, the limited effect of the bill was to shut off the possibility opened up by the Local 807 case, that union members could use their protected status to exact payments from employers for imposed, unwanted, and superfluous services. As Congressman Hancock explained: "This bill is designed simply to prevent both union members and nonunion people from making use of robbery and extortion under the guise of obtaining wages in the obstruction of interstate commerce. That is all it does. "[T]his bill is made necessary by the amazing decision of the Supreme Court in the case of the United States against Teamsters' Union 807, 3 years ago. That decision practically nullified the antiracketeering bill of 1934 In effect the Supreme Court held that members of the Teamsters' Union were exempt from the provisions of that law when attempting by the use of force or the threat of violence to obtain wages for a job whether they rendered any service or not." 91 Cong. Rec. 11900. Congressman Hancock proceeded to read approvingly from an editorial which characterized the teamsters' action in the Local 807 case as "compelling the truckers to pay day's wages to local union drivers whose services were neither wanted nor needed." Congressman Fellows stressed the fact that the facts of the Local 807 *404 case showed that "these stick-up men disappeared as soon as the money was paid without rendering or offering to render any service." And Congressman Rivers characterized the facts of the Local 807 case as "nothing short of hijacking, intimidation, extortion, and out-and-out highway robbery."[11] But by eliminating the wage exception to the Anti-Racketeering Act, the Hobbs Act did not sweep within its reach violence during a strike to achieve legitimate collective-bargaining objectives. It was repeatedly emphasized in the debates that the bill did not "interfere in any way with any legitimate labor objective or activity";[12] "there is not a thing in it to interfere in the slightest degree with any legitimate activity on the part of labor people or labor unions"[13] And Congressman Jennings, in responding to a question concerning the Act's coverage, made it clear that the Act "does not have a thing in the world to do with strikes." Indeed, in introducing his original bill, Congressman Hobbs[14] explicitly refuted the suggestion that strike violence *405 to achieve a union's legitimate |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | suggestion that strike violence *405 to achieve a union's legitimate objectives was encompassed by the Act:[15] "Mr. MARCANTONIO. All right. In connection with a strike, if an incident occurs which involves "Mr. HOBBS. The gentleman need go no further. This bill does not cover strikes or any question relating to strikes. "Mr. MARCANTONIO. Will the gentleman put a provision in the bill stating so? "Mr. HOBBS. We do not have to, because a strike is perfectly lawful and has been so described by the Supreme Court and by the statutes we have passed. This bill takes off from the springboard that the act must be unlawful to come within the purview of this bill. "Mr. MARCANTONIO. That does not answer my point. My point is that an incident such as a simple assault which takes place in a strike could happen. Am I correct? "Mr. HOBBS. Certainly. "Mr. MARCANTONIO. That then could become an extortion under the gentleman's bill, and *406 that striker as well as his union officials could be charged with violation of sections in this bill. "Mr. HOBBS. I disagree with that and deny it in toto." 89 Cong. Rec. 3213.[16] *407 The Government would derive a different lesson from the legislative history. It points to statements made during the floor debates that the Act was meant to have "broad coverage" and, unlike its predecessor, to encompass the "employer-employee" relationship. But that proves no more than that the achievement of illegitimate objectives by employees or their representatives, such as the exaction of personal payoffs, or the pursuit of "wages" for unwanted or fictitious services, would not be exempted from the Act solely because the extortionist was an employee or union official and the victim an employer.[17] The Government would also find support for its expansive interpretation of the statute in the rejection of two amendments, one proposed by Congressman Celler, the other by Congressman LaFollette, which would have inserted in the Act an exception for cases where violence was used to obtain the payment of wages by a bona-fide employer to a bona-fide employee. See 91 Cong. Rec. 11913, 11917, and 11919, 11922. But both amendments were rejected *408 solely because they would have operated to continue the effect of the Local 807 case.[18] Their rejection thus proves nothing more than that Congress was intent on undoing the restrictive impact of that case. III In the nearly three decades that have passed since the enactment of the Hobbs Act, no reported case has upheld the theory that the Act proscribes the use of force to achieve legitimate |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | the Act proscribes the use of force to achieve legitimate collective-bargaining demands. The only previous case in this Court relevant to the issue, United held no more than that the Hobbs Act had accomplished its objective of overruling the Local 807 case. The alleged extortions in that case, as in Local 807, consisted of attempts to obtain so-called wages for "imposed, unwanted, superfluous and fictitious services of laborers" The indictment charged that the employer's consent was obtained "by the wrongful use, to wit, the use for the purposes aforesaid, of actual and threatened force, violence and fear" The Government thus did not rely, as it does in the present case, solely on the use of force in an employer-employee relationship; it alleged a wrongful purposeto obtain money from the employer that the union officials had no legitimate right to demand. We concluded that the Hobbs Act could reach extortion in an employer-employee relationship and that personal profit to the extortionist was not required, but our holding was carefully limited to the charges in that case: "We rule only on the allegations of the indictment and hold that the acts charged against appellees fall within the terms of the Act." *409 A prior decision in the Third Circuit, United on which the Government relied in Green, also concerned the exaction, by threats and violence, of wages for superfluous services. In affirming a conviction under the Hobbs Act of a union business agent for using actual and threatened violence against an out-of-town driver in an attempt to force him to hire a local union member, the Court of Appeals carefully limited its holding: "We need not consider the normal demand for wages as compensation for services desired by or valuable to the employer. It is enough for this case, and all we decide, that payment of money for imposed, unwanted and superfluous services is within the language and intendment of the statute." Most recently, in United the Court of Appeals for the Ninth Circuit was squarely presented with the question at issue in this case. Two union officials were convicted of Hobbs Act violations in that they damaged property of a company with which they were negotiating for a collective-bargaining agreement, in an attempt to pressure the company into agreeing to the union contract. Concluding that the Act was not intended to reach militant activity in the pursuit of legitimate unions ends, the court reversed the convictions and ordered the indictment dismissed. Indeed, not until the indictments were returned in 1970 in this and several other cases has the Government even sought |
Justice Stewart | 1,973 | 18 | majority | United States v. Enmons | https://www.courtlistener.com/opinion/108723/united-states-v-enmons/ | this and several other cases has the Government even sought to prosecute under the Hobbs Act actual or threatened violence employed to secure a union contract "calling for higher wages and other monetary benefits."[19]*410 Yet, throughout this period, the Nation has witnessed countless economic strikes, often unfortunately punctuated by violence. It is unlikely that if Congress had indeed wrought such a major expansion of federal criminal jurisdiction in enacting the Hobbs Act, its action would have so long passed unobserved. See United IV The Government's broad concept of extortionthe "wrongful" use of force to obtain even the legitimate union demands of higher wagesis not easily restricted. It would cover all overtly coercive conduct in the course of an economic strike, obstructing, delaying, or affecting commerce. The worker who threw a punch on a picket line, or the striker who deflated the tires on his employer's truck would be subject to a Hobbs Act prosecution and the possibility of 20 years' imprisonment and a $10,000 fine.[20] *411 Even if the language and history of the Act were less clear than we have found them to be, the Act could not properly be expanded as the Government suggests for two related reasons. First, this being a criminal statute, it must be strictly construed, and any ambiguity must be resolved in favor of lenity. United ; United ; ; ; Secondly, it would require statutory language much more explicit than that before us here to lead to the conclusion that Congress intended to put the Federal Government in the business of policing the orderly conduct of strikes. Neither the language of the Hobbs Act nor its legislative history can justify the conclusion that Congress intended to work such an extraordinary change in federal labor law or such an unprecedented incursion into the criminal jurisdiction of the States. See San Diego Bldg. Trades ; United Constr. ; 346 U.S. ; UAW Local As we said last Term: "[U]nless Congress conveys its purpose clearly, it will not be deemed to have significantly changed the federal-state balance. Congress has traditionally been reluctant to define as a federal crime conduct readily denounced as criminal by the States. [W]e will not be quick to assume that Congress has meant to effect a significant change in the sensitive *412 relation between federal and state criminal jurisdiction." United (footnotes omitted). The District Court was correct in dismissing the indictment. Its judgment is affirmed. It is so ordered. MR. |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | The California Code prohibits the official governing bodies of political parties from endorsing candidates in party primaries. It also dictates the organization and composition of those bodies, limits the term of office of a party chair, and requires that the chair rotate between residents of northern and southern California. The Court of Appeals for the Ninth Circuit held that these provisions violate the free speech and associational rights of political parties and their members guaranteed by the First and Fourteenth Amendments. We noted probable jurisdiction, and now affirm. I A The State of California heavily regulates its political parties. Although the laws vary in extent and detail from party to party, certain requirements apply to all "ballot-qualified" parties.[1] The California Code (Code) provides that the "official governing bodies" for such a party are its "state convention," "state central committee," and "county central committees," Cal. Elec. Code Ann. 11702 (West *217 1977), and that these bodies are responsible for conducting the party's campaigns.[2] At the same time, the Code provides that the official governing bodies "shall not endorse, support, or oppose, any candidate for nomination by that party for partisan office in the direct primary election." It is a misdemeanor for any primary candidate, or a person on her behalf, to claim that she is the officially endorsed candidate of the party. 29430. Although the official governing bodies of political parties are barred from issuing endorsements, other groups are not. Political clubs affiliated with a party, labor organizations, political action committees, other politically active associations, and newspapers frequently endorse primary candidates.[3] With the official party organizations silenced by the ban, it has been possible for a candidate with views antithetical to those of her party nevertheless to win its primary.[4] * In addition to restricting the primary activities of the official governing bodies of political parties, California also regulates their internal affairs. Separate statutory provisions dictate the size and composition of the state central committees;[5] set forth rules governing the selection and removal of committee members;[6] fix the maximum term of office for the chair of the state central committee;[7] require that the chair rotate between residents of northern and southern California;[] specify the time and place of committee meetings;[9] and *219 limit the dues parties may impose on members.[10] Violations of these provisions are criminal offenses punishable by fine and imprisonment. B Various county central committees of the Democratic and Republican Parties, the state central committee of the Libertarian Party, members of various state and county central committees, and other groups and individuals active in partisan politics in California brought |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | groups and individuals active in partisan politics in California brought this action in federal court against state officials responsible for enforcing the Code (State or California).[11] They contended that the ban on primary endorsements and the restrictions on internal party governance deprive political parties and their members of the rights of free speech and free association guaranteed by the First and Fourteenth Amendments of the United Constitution.[12] The first count of the complaint challenged the ban on endorsements in partisan primary elections; the second count challenged the ban on endorsements in nonpartisan school, county, and municipal elections; and the third count challenged the provisions that prescribe the composition of state central committees, the term of office and eligibility criteria for state central committee chairs, the time and place of state and county central committee meetings, and the dues county committee members must pay. *220 The plaintiffs moved for summary judgment, in support of which they filed 2 declarations from the chairs of each plaintiff central committee, prominent political scientists, and elected officials from California and other The State moved to dismiss and filed a cross-motion for summary judgment supported by one declaration from a former state senator. The District Court granted summary judgment for the plaintiffs on the first count, ruling that the ban on primary endorsements in 11702 and 29430 violated the First Amendment as applied to the through the Fourteenth Amendment. The court stayed all proceedings on the second count under the abstention doctrine of Railroad Comm'n of[13] On the third count, the court ruled that the laws prescribing the composition of state central committees, limiting the committee chairs' terms of office, and designating that the chair rotate between residents of northern and southern California violate the First Amendment.[] The court denied summary judgment with respect to the statutory provisions establishing *221 the time and place of committee meetings and the amount of dues. Civ. No. C-3-5599 MHP (ND Cal., May 3, 194). The Court of Appeals for the Ninth Circuit affirmed. This Court vacated that decision, and remanded for further consideration in light of After supplemental briefing, the Court of Appeals again affirmed. The court first rejected the State's arguments based on nonjusticiability, lack of standing, Eleventh Amendment immunity, and Pullman -25. Turning to the merits, the court characterized the prohibition on primary endorsements as an "outright ban" on political speech. "Prohibiting the governing body of a political party from supporting some candidates and opposing others patently infringes both the right of the party to express itself freely and the right of party members to an unrestricted |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | freely and the right of party members to an unrestricted flow of political information." The court rejected the State's argument that the ban served a compelling state interest in preventing internal party dissension and factionalism: "The government simply has no legitimate interest in protecting political parties from disruptions of their own making." The court noted, moreover, that the State had not shown that banning primary endorsements protects parties from factionalism. The court concluded that the ban was not necessary to protect voters from confusion, stating, "California's ban on preprimary endorsements is a form of paternalism that is inconsistent with the First Amendment." The Court of Appeals also found that California's regulation of internal party affairs "burdens the parties' right to govern themselves as they think best." This interference with the parties' and their members' First Amendment rights was not justified by a compelling state interest, for a State has a legitimate interest "in orderly elections, *222 not orderly parties." In any event, the court noted, the State had failed to submit " `a shred of evidence,' " that the regulations of party internal affairs helped minimize party factionalism. Accordingly, the court held that the challenged provisions were unconstitutional under the First and Fourteenth Amendments. II A State's broad power to regulate the time, place, and manner of elections "does not extinguish the State's responsibility to observe the limits established by the First Amendment rights of the State's citizens." To assess the constitutionality of a state election law, we first examine whether it burdens rights protected by the First and Fourteenth Amendments. ; If the challenged law burdens the rights of political parties and their members, it can survive constitutional scrutiny only if the State shows that it advances a compelling state interest, ; Illinois Bd. of ; American Party of ; and is narrowly tailored to serve that interest, Illinois Bd. of ; ; A We first consider California's prohibition on primary endorsements by the official governing bodies of political parties. California concedes that its ban implicates the First Amendment, Tr. of Oral Arg. 17, but contends that the burden is "miniscule." We disagree. The ban directly affects speech which "is at the core of our electoral *223 process and of the First Amendment freedoms." We have recognized repeatedly that "debate on the qualifications of candidates [is] integral to the operation of the system of government established by our Constitution." ; see also ; ; Indeed, the First Amendment "has its fullest and most urgent application" to speech uttered during a campaign for political office. Monitor Patriot ; see also |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | a campaign for political office. Monitor Patriot ; see also 34 U.S. 2, Free discussion about candidates for public office is no less critical before a primary than before a general election. Cf. ; ; United 3 U.S. 299, 4 In both instances, the "election campaign is a means of disseminating ideas as well as attaining political office." Illinois Bd. of California's ban on primary endorsements, however, prevents party governing bodies from stating whether a candidate adheres to the tenets of the party or whether party officials believe that the candidate is qualified for the position sought. This prohibition directly hampers the ability of a party to spread its message and hamstrings voters seeking to inform themselves about the candidates and the campaign issues. See ; Pacific Gas & Electric ; ; First National Bank of (197). A "highly paternalistic approach" limiting what people may hear is generally suspect, Virginia State Bd. of 224 U. S. 74, ; see also First National Bank of 90-792, but it is particularly egregious where the State censors the political speech a political party shares with its members. See 46 U.S. 9, (194) Barring political parties from endorsing and opposing candidates not only burdens their freedom of speech but also infringes upon their freedom of association. It is well settled that partisan political organizations enjoy freedom of association protected by the First and Fourteenth Amendments. ; see also Freedom of association means not only that an individual voter has the right to associate with the political party of her choice, ( ), but also that a political party has a right to " `identify the people who constitute the association,' " ( Democratic Party of United (191)); cf. U.S. 449, 4-462 (195), and to select a "standard bearer who best represents the party's ideologies and preferences." Ripon Society, Inc. v. National Republican Party, 173 U. S. App. D. C. 350, 34, 1 cert. denied, Depriving a political party of the power to endorse suffocates this right. The endorsement ban prevents parties from promoting candidates "at the crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Even though individual members of the state central committees and county central committees are free to issue endorsements, imposing limitations *225 "on individuals wishing to band together to advance their views on a ballot measure, while placing none on individuals acting alone, is clearly a restraint on the right of association." Citizens Against Rent Control/Coalition for Fair (191). Because the ban burdens appellees' rights to |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | for Fair (191). Because the ban burdens appellees' rights to free speech and free association, it can only survive constitutional scrutiny if it serves a compelling governmental interest.[15] The *226 State offers two: stable government and protecting voters from confusion and undue influence.[16] Maintaining a stable political system is, unquestionably, a compelling state interest. See 415 U. S., 36. California, however, never adequately explains how banning parties from endorsing or opposing primary candidates advances that interest. There is no showing, for example, that California's political system is any more stable now than it was in 1963, when the legislature enacted the ban. Nor does the State explain what makes the California system so peculiar that it is virtually the only State that has determined that such a ban is necessary.[17] *227 The only explanation the State offers is that its compelling interest in stable government embraces a similar interest in party stability. Brief for Appellants 47. The State relies heavily on where we stated that because "splintered parties and unrestrained factionalism may do significant damage to the fabric of government," 415 U.S., 36, may regulate elections to ensure that "some sort of order, rather than chaos accompan[ies] the democratic processes," 30. Our decision in Storer, however, does not stand for the proposition that a State may enact election laws to mitigate intraparty factionalism during a primary campaign. To the contrary, Storer recognized that "contending forces within the party employ the primary campaign and the primary election to finally settle their differences." 35. A primary is not hostile to intraparty feuds; rather it is an ideal forum in which to resolve them. ; American Party of 415 U. S., 1. recognizes precisely this distinction. In that case, we noted that a State may enact laws to "prevent the disruption of the political parties from without" but not, as in this case, laws "to prevent the parties from taking internal steps affecting their own process for the selection of candidates." It is no answer to argue, as does the State, that a party that issues primary endorsements risks intraparty friction which may endanger the party's general election prospects. Presumably a party will be motivated by self-interest and not engage in acts or speech that run counter to its political success. However, even if a ban on endorsements saves a political party from pursuing self-destructive acts, that would *22 not justify a State substituting its judgment for that of the party. See ibid.; Democratic Party of United Because preserving party unity during a primary is not a compelling state interest, we must look |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | primary is not a compelling state interest, we must look elsewhere to justify the challenged law. The State's second justification for the ban on party endorsements and statements of opposition is that it is necessary to protect primary voters from confusion and undue influence. Certainly the State has a legitimate interest in fostering an informed electorate. ; 4 U. S., 96; American Party of 2, n. ; 5 ; 403 U.S. 4, However, " `[a] State's claim that it is enhancing the ability of its citizenry to make wise decisions by restricting the flow of information to them must be viewed with some skepticism.' " ( 9).[1] While a State may regulate the *229 flow of information between political associations and their members when necessary to prevent fraud and corruption, see -27; at there is no evidence that California's ban on party primary endorsements serves that purpose.[19] Because the ban on primary endorsements by political parties burdens political speech while serving no compelling governmental interest, we hold that 11702 and 29430 violate the First and Fourteenth Amendments. B We turn next to California's restrictions on the organization and composition of official governing bodies, the limits on the term of office for state central committee chair, and the requirement that the chair rotate between residents of northern and southern California. These laws directly implicate the associational rights of political parties and their members. As we noted in a political party's "determination of the structure which best allows it to pursue its political goals, is protected by the Constitution." Freedom of association also encompasses a political party's decisions about the identity of, and the process for electing, its leaders. See Democratic Party of United ; *230 ; cf. ("The ability of the members of [a political p]arty to select their own candidate unquestionably implicates an associational freedom"). The laws at issue burden these rights. By requiring parties to establish official governing bodies at the county level, California prevents the political parties from governing themselves with the structure they think best.[20] And by specifying who shall be the members of the parties' official governing bodies, California interferes with the parties' choice of leaders. A party might decide, for example, that it will be more effective if a greater number of its official leaders are local activists rather than Washington-based elected officials. The Code prevents such a change. A party might also decide that the state central committee chair needs more than two years to successfully formulate and implement policy. The Code prevents such an extension of the chair's term of office. A party |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | an extension of the chair's term of office. A party might find that a resident of northern California would be particularly effective in promoting the party's message and in unifying the party. The Code prevents her from chairing the state central committee unless the preceding chair was from the southern part of the State. Each restriction thus limits a political party's discretion in how to organize itself, conduct its affairs, and select its leaders. Indeed, the associational rights at stake are much stronger than those we credited in There, we found that a party's right to free association embraces a right to allow registered voters who are not party members to vote in the party's primary. Here, party members do not seek to *2 associate with nonparty members, but only with one another in freely choosing their party leaders.[21] Because the challenged laws burden the associational rights of political parties and their members, the question is whether they serve a compelling state interest. A State indisputably has a compelling interest in preserving the integrity of its election process. Toward that end, a State may enact laws that interfere with a party's internal affairs when necessary to ensure that elections are fair and honest. 415 U. S., 30. For example, a State may impose certain eligibility requirements for voters in the general election even though they limit parties' ability to garner support and members. See, e. g., 405 U. S., at -344 ; 11 ; We have also recognized that a State may impose restrictions that promote the integrity of primary elections. See, e. g., American Party of 415 U. S., 79- ; 5-76 ; ; 405 U. S., at 5 None of these restrictions, however, involved direct regulation of *232 a party's leaders.[22] Rather, the infringement on the associational rights of the parties and their members was the indirect consequence of laws necessary to the successful completion of a party's external responsibilities in ensuring the order and fairness of elections. In the instant case, the State has not shown that its regulation of internal party governance is necessary to the integrity of the electoral process. Instead, it contends that the challenged laws serve a compelling "interest in the `democratic management of the political party's internal affairs.' " Brief for Appellants 43 ( 415 U.S., 1, n. 15). This, however, is not a case where intervention is necessary to prevent the derogation of the civil rights of party adherents. Cf. Moreover, as we have observed, the State has no interest in "protect[ing] the integrity of the Party against the Party itself." |
Justice Marshall | 1,989 | 15 | majority | Eu v. San Francisco County Democratic Central Comm. | https://www.courtlistener.com/opinion/112203/eu-v-san-francisco-county-democratic-central-comm/ | "protect[ing] the integrity of the Party against the Party itself." The State further claims that limiting the term of the state central committee chair and requiring that the chair rotate between residents of northern and southern California helps "prevent regional friction from reaching a `critical mass.' " Brief for Appellants 4. However, *233 a State cannot substitute its judgment for that of the party as to the desirability of a particular internal party structure, any more than it can tell a party that its proposed communication to party members is unwise. In sum, a State cannot justify regulating a party's internal affairs without showing that such regulation is necessary to ensure an election that is orderly and fair. Because California has made no such showing here, the challenged laws cannot be upheld.[23] III For the reasons stated above, we hold that the challenged California election laws burden the First Amendment rights of political parties and their members without serving a compelling state interest. Accordingly, the judgment of the Court of Appeals is Affirmed. CHIEF JUSTICE REHNQUIST took no part in the consideration or decision of this case. |
Justice Breyer | 2,001 | 2 | dissenting | Gitlitz v. Commissioner | https://www.courtlistener.com/opinion/118398/gitlitz-v-commissioner/ | I agree with the majority's reasoning with the exception of footnotes 6 and 10. The basic statutory provision before us is 26 U.S. C. 108the provision that excludes from the "gross income" of any "insolvent" taxpayer, income that cancellation of a debt (COD) would otherwise generate. As the majority acknowledges, however, ante, at 214-215, n. 6, 108 contains a subsection that sets forth a special exception. The exception, entitled "Special rules for S corporation," says: *221 "(A) Certain provisions to be applied at corporate level. "In the case of an S corporation, subsections (a), (b), (c), and (g) shall be applied at the corporate level." 26 U.S. C. 108(d)(7)(A). If one reads this language literally as exclusive, both the COD exclusion ( 108(a)) and the tax attribute reduction ( 108(b)) would apply only "at the corporate level." Hence the COD income would not flow through to S corporation shareholders. Consequently, the insolvent S corporation's COD income would not increase the shareholder's basis and would not help the shareholder take otherwise unavailable deductions for suspended losses. The Commissioner argues that we should read the language in this way as preventing the flow-through of the corporation's COD income. Brief for Respondent 27. He points to the language of a House Committee, which apparently thought, when Congress passed an amendment to 108, that the Commissioner's reading is correct. H. R. Rep. No. 103-111, pp. 624-625 (1993) ("[T]he exclusion and basis reduction are both made at the S corporation level (sec. 108(d)(7)). The shareholders' basis in their stock is not adjusted by the amount of debt discharge income that is excluded at the corporate level"). At least one commentator believes the same. See Loebl, Does the Excluded COD Income of an Insolvent S Corporation Increase the Basis of the Shareholders' Stock?, But see Lockhart & Duffy, Tax Court Rules in Nelson That S Corporation Excluded COD Income Does Not Increase Shareholder Stock Basis, The Commissioner finds support for his literal, exclusive reading of 108(d)(7)(A)'s language in the fact that his reading would close a significant tax loophole. That loophole preserved by the majoritywould grant a solvent shareholder of an insolvent S corporation a tax benefit in the form of permission to take an otherwise unavailable deduction, *222 thereby sheltering other, unrelated income from tax. See ("It is hard to understand the rationale for using a tax exemption to avoid taxation not only on the income covered by the exemption but also on unrelated income that is not tax exempt"). Moreover, the benefit often would increase in value as the amount of COD income increases, |
Justice Breyer | 2,001 | 2 | dissenting | Gitlitz v. Commissioner | https://www.courtlistener.com/opinion/118398/gitlitz-v-commissioner/ | increase in value as the amount of COD income increases, a result inconsistent with congressional intent to impose a "price" (attribute reduction), see Lipton, Different Courts Adopt Different Approaches to the Impact of COD Income on S Corporations, 92 J. Tax. 207 on excluded COD. Further, this deduction-related tax benefit would have very different tax consequences for identically situated taxpayers, depending only upon whether a single debt can be split into segments, each of which is canceled in a different year. For example, under the majority's interpretation, a $1 million debt canceled in one year would permit Taxpayer A to deduct $1 million of suspended losses in that year, thereby permitting A to shelter $1 million of unrelated income in that year. But because 108 reduces tax attributes after the first year, five annual cancellations of $200,000 will not create a $1 million shelter. Timing is all important. The majority acknowledges some of these policy concerns and confesses ignorance of any "other instance in which 108 directly benefits a solvent entity," but claims that its reading is mandated by the plain text of 108(d)(7)(A) and therefore that the Court may disregard the policy consequences. Ante, at 220, n. 10. It is difficult, however, to see why we should interpret that language as treating different solvent shareholders differently, given that the words "at the corporate level" were added "[i]n order to treat all shareholders in the same manner." H. R. Rep. No. 98-432, pt. 2, p. 1640 (1984). And it is more difficult to see why, given the fact that the "plain language" admits either interpretation, we should ignore the policy consequences. See (abandoning literal meaning of 26 U.S. C. 1221 (1958 ed.) for a reading more consistent with congressional intent). Accord, ; Corn Products Refining ; The arguments from plain text on both sides here produce ambiguity, not certainty. And other things being equal, we should read ambiguous statutes as closing, not maintaining, tax loopholes. Such is an appropriate understanding of Congress' likely intent. Here, other things are equal, for, as far as I am aware, the Commissioner's literal interpretation of 108(d)(7)(A) as exclusive would neither cause any taxrelated harm nor create any statutory anomaly. Petitioners argue that it would create a linguistic inconsistency, for they point to a Treasury Regulation that says that the Commissioner will apply hobby loss limitations under 183 "at the corporate level in determining" allowable deductions, while, presumably, nonetheless permitting the deduction so limited to flow through to the shareholder. Treas. Reg. 1.183-1(f), 26 CFR 1.183-1(f) But we are concerned here with the "application " |
Justice Breyer | 2,001 | 2 | dissenting | Gitlitz v. Commissioner | https://www.courtlistener.com/opinion/118398/gitlitz-v-commissioner/ | 1.183-1(f) But we are concerned here with the "application " of an exclusion, not with "determining " the amount of a deduction. Regardless, the regulation's use of the words "at the corporate level," like the three other appearances of the formulation "applied" or "determined" "at the corporate level" in the Code, occur in contexts that are so very different from this one that nothing we say here need affect their interpretation. See 26 U.S. C. 49(a)(1)(E)(ii)(I) (determining whether financing is recourse financing); 26 U.S. C. 264(f)(5)(B) (1994 ed., Supp. III) (determining how to allocate interest expense to portions of insurance policies); 26 U.S. C. 302(e)(1)(A) (determining whether a stock distribution shall be treated as a partial liquidation). If there are other arguments militating in favor of the majority's interpretation, I have not found them. *224 The majority, in footnote 6, says that the words "at the corporate level" in 108(d)(7)(A) apply to the exclusion of COD income from corporate income and to "tax attribute reduction," but do not "suspen[d] the operation of ordinary pass-through rules" because 108(d)(7)(A) "does not state or imply that the debt discharge provisions shall apply only `at the corporate level.' " It is the majority, however, that should explain why it reads the provision as nonexclusive ). See United 4 I do not contend that 108(d)(7)(A) must be read as having exclusive effect, only that, given the alternative, this interpretation provides the best reading of 108 as a whole. And I can find no "clear declaration of intent by Congress" to support the majority's contrary conclusion regarding 108(d)(7)(A)'s effect. It is that conclusion from which, for the reasons stated, I respectfully dissent. |
Justice Stevens | 1,984 | 16 | dissenting | Bacchus Imports, Ltd. v. Dias | https://www.courtlistener.com/opinion/111244/bacchus-imports-ltd-v-dias/ | Four wholesalers of alcoholic beverages filed separate complaints challenging the constitutionality of the Hawaii liquor tax because pursuant to an exception, since expired, the tax was not imposed on okolehao or pineapple wine in certain tax years.[1] Although only one of them actually sells okolehao and pineapple wine,[2] apparently all four of them are entitled to engage in the wholesale sale of these beverages as well as the various other alcoholic beverages that they do sell. The tax which they challenge is an excise tax amounting to 20 percent of the wholesale price; presumably the economic burden of the tax is passed on to the wholesalers' customers. Today the Court holds that these wholesalers are "entitled to litigate whether the discriminatory tax has had an adverse competitive impact on their business." Ante, at 267. I am skeptical about the ability of the wholesalers to prove that the exemption for okolehao and pineapple wine has harmed their businesses at all, partly because their customers have reimbursed them for the excise tax and partly because they are free to take advantage of the benefit of the exemption by selling the exempted products themselves. Even if some minimal harm can be proved, I am even more skeptical about the possibility that it will result in the multimillion-dollar refund that the wholesalers are claiming. My skepticism *279 concerning the economics of the wholesalers' position is not, however, the basis for my dissent. I would affirm the judgment of the Supreme Court of Hawaii because the wholesalers' Commerce Clause claim is squarely foreclosed by the Twenty-first Amendment to the United States Constitution.[3] I At the outset, it is of critical importance to a proper understanding of the significance of the Twenty-first Amendment in this litigation to note the issues this case does not raise. First, there is no claim that the Hawaii tax is inconsistent with any exercise of the power that Art. I, 8, cl. 3, of the Constitution confers upon the Congress "To regulate Commerce among the several States." The extent to which the Twenty-first Amendment may or may not have placed limits on the ability of Congress to regulate commerce in alcoholic beverages is simply not at issue in this case. Hence, there is no issue concerning the continuing applicability of previously enacted federal statutes affecting the liquor industry.[4] For purposes of analysis, we may assume, arguendo, that the Twenty-first Amendment left the power of Congress entirely unimpaired.[5] *280 Moreover, there is no claim that the Hawaii tax has impaired interstate commerce that merely passes through the State,[6] or that is destined |
Justice Stevens | 1,984 | 16 | dissenting | Bacchus Imports, Ltd. v. Dias | https://www.courtlistener.com/opinion/111244/bacchus-imports-ltd-v-dias/ | that merely passes through the State,[6] or that is destined to terminate at a federal enclave within the State.[7] Nor is there a claim of a due process violation,[8] nor a claim of discrimination among persons, as opposed to goods,[9] nor a claim of an effect on liquor prices outside the State.[10] The tax is applied to the sale of liquor in the local market that presumably will be consumed in Hawaii. It thus falls squarely within the protection given to Hawaii by the second section of the Twenty-first Amendment, which expressly mentions "delivery or use therein."[11] II Prior to the adoption of constitutional Amendments concerning intoxicating liquors, there was a long of special state and federal legislation respecting intoxicating liquors and resulting litigation challenging that legislation *281 under the Commerce Clause.[12] The Commerce Clause effectively prevented States from unilaterally banning the local sale of intoxicating liquors from out of state, but Congress, acting pursuant to its plenary power under the Commerce Clause, essentially conferred that authority on them, and this Court upheld that exercise of congressional power. Clark Distilling The Eighteenth Amendment, ratified in 1919, prohibited the manufacture, sale, and transportation of intoxicating liquors for beverage purposes, and expressly conferred concurrent power to enforce the prohibition on Congress and the several States.[13] Section 1 of the Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment. However, the constitutional authority of the States to regulate commerce in intoxicating liquors did not revert to its status prior to the adoption of these constitutional Amendments; 2 of the Twenty-first Amendment expressly provides: "The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited." This Court immediately recognized that this broad constitutional language confers power upon the States to regulate commerce in intoxicating liquors unconfined by ordinary limitations imposed on state regulation of interstate goods by the Commerce Clause and other constitutional provisions, Ziffrin, ; Finch & ; Indianapolis Brewing ; ; State Board of and we have consistently reaffirmed that understanding of the Amendment, repeatedly acknowledging the broad nature of state authority to regulate commerce in intoxicating liquors, see, e. g., Capital Cities Cable, ; ; Heublein, ; ; Seagram & ; ; 5 ; United III Today the Court, in essence, holds that the Hawaii tax is unconstitutional because it places a burden on intoxicating liquors that have been imported into Hawaii for use therein that is not imposed on liquors that are produced locally. As I read the text of |
Justice Stevens | 1,984 | 16 | dissenting | Bacchus Imports, Ltd. v. Dias | https://www.courtlistener.com/opinion/111244/bacchus-imports-ltd-v-dias/ | that are produced locally. As I read the text of the Amendment, it expressly authorizes this sort of burden. Moreover, as I read Justice Brandeis' opinion for the Court in the seminal case of State Board of the Court has squarely so decided. In Young's Market, the Court upheld a California statute that imposed a license fee on the privilege of importing beer to any place in California. After noting that the statute would have been obviously unconstitutional prior to the Twenty-first Amendment, the Court explained that the Amendment enables a State to establish a local monopoly and to prevent or discourage competition from imported liquors. Because the Court's reasoning clearly covers this case, it merits quotation at some length: "The Amendment which `prohibited' the `transportation or importation' of intoxicating liquors into any state *283 `in violation of the laws thereof,' abrogated the right to import free, so far as concerns intoxicating liquors. The words used are apt to confer upon the State the power to forbid all importations which do not comply with the conditions which it prescribes. The plaintiffs ask us to limit this broad command. They request us to construe the Amendment as saying, in effect: The State may prohibit the importation of intoxicating liquors provided it prohibits the manufacture and sale within its borders; but if it permits such manufacture and sale, it must let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it. "The plaintiffs argue that, despite the Amendment, a State may not regulate importations except for the purpose of protecting the public health, safety or morals; and that the importer's license fee was not imposed to that end. Surely the State may adopt a lesser degree of regulation than total prohibition. Can it be doubted that a State might establish a state monopoly of the manufacture and sale of beer, and either prohibit all competing importations, or discourage importation by laying a heavy impost, or channelize desired importations by confining them to a single consignee? Compare Slaughter-House Cases, ; Vance v. W. A. Vandercook (No. 1), There is no basis for holding that it may prohibit, or so limit, importation only if it establishes monopoly of the liquor trade. It might permit the manufacture and sale of beer, while prohibiting hard liquors absolutely. If it may permit the domestic manufacture of beer and exclude all made without the State, may it not, instead of absolute exclusion, subject the foreign article to a heavy importation fee?" U.S., at |
Justice Stevens | 1,984 | 16 | dissenting | Bacchus Imports, Ltd. v. Dias | https://www.courtlistener.com/opinion/111244/bacchus-imports-ltd-v-dias/ | the foreign article to a heavy importation fee?" U.S., at 62-63. Today the Court implies that Justice Brandeis' reasoning in the Young's Market case has been qualified by our more recent decision in Hostetter v. Idlewild Bon Voyage Liquor *284 However, in the passage quoted by the Court, ante, at 275, Justice Stewart merely rejected the broad proposition that the Twenty-first Amendment had entirely divested Congress of all regulatory power over interstate or foreign commerce in intoxicating liquors. As I have already noted, this case involves no question concerning the power of Congress, see and n. 4, and Justice Brandeis of course in no way implied that Congress had been totally divested of authority to regulate commerce in intoxicating liquors a proposition which Justice Stewart characterized as "patently bizarre." Moreover, the actual decision in Hostetter was predicated squarely on the principle reflected in the Court's earlier decision in Collins v. Yosemite Park & Curry Referring to Collins, the Court explained: "There it was held that the Twenty-first Amendment did not give California power to prevent the shipment into and through her territory of liquor destined for distribution and consumption in a national park. The Court said that this traffic did not involve `transportation into California "for delivery or use therein" ' within the meaning of the Amendment. `The delivery and use is in the Park, and under a distinct sovereignty.' This ruling was later characterized by the Court as holding `that shipment through a state is not transportation or importation into the state within the meaning of the Amendment.'"[14] *285 On the same day that it decided Hostetter, the Court also held that a Kentucky tax violated the Export-Import Clause of the Constitution. Department of Revenue v. James B. Beam Distilling The holding of that case is not relevant to the Commerce Clause issue decided today, but the final paragraph of the Court's opinion in the James B. Beam Distilling case surely confirms my understanding that the Court did not then think that it was repudiating the central rationale of Justice Brandeis' opinion in Young's Market. It wrote: "We have no doubt that under the Twenty-first Amendment Kentucky could not only regulate, but could completely prohibit the importation of some intoxicants, or of all intoxicants, destined for distribution, use, or consumption within its borders. There can surely be no doubt, either, of Kentucky's plenary power to regulate and control, by taxation or otherwise, the distribution, use, or consumption of intoxicants within her territory after they have been imported. All we decide today is that, because of the explicit and |
Justice Stevens | 1,984 | 16 | dissenting | Bacchus Imports, Ltd. v. Dias | https://www.courtlistener.com/opinion/111244/bacchus-imports-ltd-v-dias/ | we decide today is that, because of the explicit and precise words of the Export-Import Clause of the Constitution, Kentucky may not lay this impost on these imports from abroad." Indeed, only 11 days ago, we stated that a direct regulation on "the sale or use of liquor" within a State's borders is the "core 2 power" conferred upon a State, Capital Cities Cable, observing: " `This Court's decisions have confirmed that the Amendment primarily created an exception to the normal operation of the Commerce Clause.' [Section] 2 reserves *286 to the States power to impose burdens on interstate commerce in intoxicating liquor that, absent the Amendment, would clearly be invalid under the Commerce Clause." at As a matter of pure constitutional power, Hawaii may surely prohibit the importation of all intoxicating liquors. It seems clear to me that it may do so without prohibiting the local sale of liquors that are produced within the State. In other words, even though it seems unlikely that the okolehao lobby could persuade it to do so, the Hawaii Legislature surely has the power to create a local monopoly by prohibiting the sale of any other alcoholic beverage. If the State has the constitutional power to create a total local monopoly thereby imposing the most severe form of discrimination on competing products originating elsewhere I believe it may also engage in a less extreme form of discrimination that merely provides a special benefit, perhaps in the form of a subsidy or a tax exemption, for locally produced alcoholic beverages. The Court's contrary conclusion is based on the "obscurity of the legislative " of 2. Ante, at 274. What the Court ignores is that it was argued in Young's Market that a "limitation of the broad language" of 2 was "sanctioned by its" but the Court, observing that the language of the Amendment was "clear," determined that it was unnecessary to consider the U.S., at 63-64 the which the Court today considers unclear. But now, according to the Court, the force of the Twenty-first Amendment contention in this case is diminished because the "central purpose of the provision was not to empower States to favor local liquor industries by erecting barriers to competition." Ante, at 276. It follows, according to the Court, that "state laws that constitute mere economic protectionism are not entitled to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor." This is a totally novel approach to *287 the Twenty-first Amendment.[15] The question is not one of "deference," nor one |
Justice Douglas | 1,973 | 10 | dissenting | EPA v. Mink | https://www.courtlistener.com/opinion/108712/epa-v-mink/ | The starting point of a decision usually indicates the result. My starting point is what I believe to be the philosophy of Congress expressed in the Freedom of Information Act, 5 U.S. C. 552. Henry Steele Commager, our noted historian, recently wrote: "The generation that made the nation thought secrecy in government one of the instruments of Old World tyranny and committed itself to the principle that a democracy cannot function unless the people are permitted to know what their government is up to. Now almost everything that the Pentagon and the CIA do is shrouded in secrecy. Not only are the American people not permitted to know what they are up to but even the Congress and, one suspects, the President [witness the `unauthorized' bombing of the North last fall and winter] are kept in darkness." The New York Review of Books, Oct. 5, 1972, p. 7. *106 Two days after we granted certiorari in the case on March 6, 1972, the President revoked the old Executive Order 10501 and substituted a new one, Executive Order 11652, dated March 8, 1972, and effective June 1, 1972. The new Order states in its first paragraph that: "The interests of the United States and its citizens are best served by making information regarding the affairs of Government readily available to the public. This concept of an informed citizenry is reflected in the Freedom of Information Act and in the current public information policies of the Executive branch." While "classified information or material" as used in the Order is exempted from public disclosure, 4 of the Order states that each classified document shall "to the extent practicable, be so marked as to indicate which portions are classified, at what level, and which portions are not classified in order to facilitate excerpting and other use." 4 (A). And it goes on to say: "Material containing references to classified materials, which references do not reveal classified information, shall not be classified." The Freedom of Information Act does not clash with the Executive Order. Indeed, the new Executive Order precisely meshes with the Act and with the construction given it by the Court of Appeals. Section 552 (a) (3) of the Act gives the District Court "jurisdiction to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant." Section 552 (a) (3) goes on to prescribe the procedure to be employed by the District Court. It says "the court shall determine the matter de novo and the burden is on the agency to sustain |
Justice Douglas | 1,973 | 10 | dissenting | EPA v. Mink | https://www.courtlistener.com/opinion/108712/epa-v-mink/ | novo and the burden is on the agency to sustain its action." The Act and the Executive Order read together mean at the very minimum that the District Court has power *107 to direct the agency in question to go through the suppressed document and make the portion-by-portion classification to facilitate the excerpting as required by the Executive Order. Section 552 (a) (3) means also that the District Court may in its discretion collaborate with the agency to make certain that the congressional policy of disclosure is effectuated. The Court of Appeals, in an exceedingly responsible opinion, directed the District Court to proceed as follows: Where material is separately unclassified but nonetheless under the umbrella of a "secret" file, the District Court should make sure that it is disclosed under the Act. This seems clear from 552 (b) which states: "This section does not apply to matters that are(1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy." Unless the unclassified appendage to a "secret" file falls under some other exception in 552 (b) it seems clear that it must be disclosed. The only other exception under which refuge is now sought is subsection (b) (5) which reads that the section does not apply to "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." This exemption was described in the House Report as covering "any internal memorandums which would routinely be disclosed to a private party through the discovery process in litigation with the agency." H. R. Rep. No. 1497, 89th Cong., 2d Sess., 10. It is clear from the legislative history that while opinions and staff advice are exempt, factual matters are not. ; S. Rep. No. 813, 89th Cong., 1st Sess., 9. And the courts have uniformly agreed on that construction of the Act. See ; Grumman Aircraft Eng. ; Long Island R. ; Consumers Facts and opinions may, as the Court of Appeals noted, be "inextricably intertwined with policymaking processes" in some cases. In such an event, secrecy prevails. Yet, where facts and opinions can be separated, the Act allows the full light of publicity to be placed on the facts. Section 552 (c) seems to seal the case against the Government when it says: "This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section." Disclosure, rather than secrecy, is the rule, save for the specific exceptions |
Justice Douglas | 1,973 | 10 | dissenting | EPA v. Mink | https://www.courtlistener.com/opinion/108712/epa-v-mink/ | than secrecy, is the rule, save for the specific exceptions in subsection (b). The Government seeks to escape from the Act by making the Government stamp of "Top Secret" or "Secret" a barrier to the performance of the District Court's functions under 552 (a) (3) of the Act. The majority makes the stamp sacrosanct, thereby immunizing stamped documents from judicial scrutiny, whether or not factual information contained in the document is in fact colorably related to interests of the national defense or foreign policy. Yet, anyone who has ever been in the Executive Branch knows how convenient the "Top Secret" or "Secret" stamp is, how easy it is to use, and how it covers perhaps for decades the footprints of a nervous bureaucrat or a wary executive. I repeat what I said in (dissenting opinion): "[A]s has been revealed by such exposes as the Pentagon Papers, the My Lai massacres, the Gulf of Tonkin `incident,' and the Bay of Pigs invasion, the Government usually suppresses damaging news but highlights favorable news. In this filtering process the secrecy stamp is the officials' tool of suppression and it has been used to withhold information *109 which in `99 1/2%' of the cases would present no danger to national security. To refuse to publish `classified' reports would at times relegate a publisher to distributing only the press releases of Government or remaining silent; if it printed only the press releases or `leaks' it would become an arm of officialdom, not its critic. Rather, in my view, when a publisher obtains a classified document he should be free to print it without fear of retribution, unless it contains material directly bearing on future, sensitive planning of the Government." The Government is aghast at a federal judge's even looking at the secret files and views with disdain the prospect of responsible judicial action in the area. It suggests that judges have no business declassifying "secrets," that judges are not familiar with the stuff with which these "Top Secret" or "Secret" documents deal. That is to misconceive and distort the judicial function under 552 (a) (3) of the Act. The Court of Appeals never dreamed that the trial judge would declassify documents. His first task would be to determine whether nonsecret material was a mere appendage to a "Secret" or "Top Secret" file. His second task would be to determine whether under normal discovery procedures contained in Fed. Rule Civ. Proc. 26, factual material in these "Secret" or "Top Secret" materials is detached from the "Secret" and would, therefore, be available to litigants confronting the agency |
Justice Douglas | 1,973 | 10 | dissenting | EPA v. Mink | https://www.courtlistener.com/opinion/108712/epa-v-mink/ | and would, therefore, be available to litigants confronting the agency in ordinary lawsuits. Unless the District Court can do those things, the much-advertised Freedom of Information Act is on its way to becoming a shambles.[1] Unless federal courts can be *110 trusted, the Executive will hold complete sway and by ipse dixit make even the time of day "Top Secret." Certainly, the decision today will upset the "workable formula," at the heart of the legislative scheme, "which encompasses, balances, and protects all interests, yet places emphasis on the fullest responsible disclosure." S. Rep. No. 813, p. 3. The Executive Branch now has carte blanche to insulate information from public scrutiny whether or not that information bears any discernible relation to the interests sought to be protected by subsection (b) (1) of the Act. We should remember the words of Madison: "A popular Government, without popular information, or the means of acquiring it, is but a Prologue *111 to a Farce or a Tragedy; or, perhaps both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives."[2] I would affirm the judgment below. APPENDIX TO OPINION OF DOUGLAS, J., DISSENTING Section 552 (b) and (c) of the Freedom of Information Act read as follows: (b) This section does not apply to matters that are (1) specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy; (2) related solely to the internal personnel rules and practices of an agency; (3) specifically exempted from disclosure by statute; (4) trade secrets and commercial or financial information obtained from a person and privileged or confidential; (5) inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency; (6) personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy; (7) investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency; (8) contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or *112 (9) geological and geophysical information and data, including maps, concerning wells. (c) This section does not authorize withholding of information or limit the availability of records to the public, except as specifically stated in this section. This section is not authority to withhold information |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | The issue for decision is whether a federal court may enjoin a sympathy strike pending the arbitrator's decision as to whether the strike is forbidden by the express no-strike clause contained in the collective-bargaining contract to which the striking union is a party. I The Buffalo Forge Co. (employer) operates three separate plant and office facilities in the Buffalo, N. Y., area. For some years production and maintenance (P&M) employees at the three locations have been represented by the United Steelworkers of America, AFL-CIO, and its Local s No. 1874 and No. 3732 (hereafter sometimes collectively the ). The United Steelworkers is a party to the two separate collective-bargaining agreements between the locals and the employer. The contracts contain identical no-strike clauses,[1] as well as grievance and arbitration provisions *400 for settling disputes over the interpretation and application of each contract. The latter provide: "26. Should differences arise between the [employer] and any employee covered by this Agreement as to the meaning and application of the provisions of this Agreement, or should any trouble of any kind arise in the plant, there shall be no suspension of work on account of such differences, but an earnest effort shall be made to settle such differences immediately [under the six-step grievance and arbitration procedure provided in sections 27 through 32]."[2] Shortly before this dispute arose, the United Steelworkers and two other locals not parties to this litigation were certified to represent the employer's "office clerical-technical" (O&T) employees at the same three locations. On November 16, after several months of negotiations looking toward their first collective-bargaining agreement, the O&T employees struck and established picket lines at all three locations. On November 18, P&M employees at one plant refused to cross the O&T picket line for the day. Two days later, the employer learned that the P&M employees planned to stop work at all three plants the next morning. In telegrams to the the employer stated its position that a strike by the P&M employees would violate the no-strike clause and offered to arbitrate any dispute *401 which had led to the planned strike.[3] The next day, at the 's direction, the P&M employees honored the O&T picket line and stopped work at the three plants. They did not return to work until December 16, the first regular working day after the District Court denied the employer's prayer for a preliminary injunction. The employer's complaint under 301 (a) of the Labor Management Relations Act, 1947,[4] filed in District Court on November 26, claimed the work stoppage was in violation of the no-strike clause. Contending |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | work stoppage was in violation of the no-strike clause. Contending in the alternative that the work strike was caused by a specific incident involving P&M truck drivers' refusal to follow a supervisor's instructions to cross the O&T picket line. and that the question whether the P&M employees' work stoppage violated the no-strike clause was itself arbitrable, the employer requested damages, a temporary restraining order and a preliminary injunction against the strike, and an order compelling the parties to submit *402 any "underlying dispute" to the contractual grievance and arbitration procedures. The 's position was that the work stoppage did not violate the no-strike clause.[5] It offered to submit that question to arbitration "on one day's notice,"[6] but opposed the prayer for injunctive relief. After denying the temporary restraining order and finding that the P&M work stoppage was not the result of the specific refusal to cross the O&T picket line, the District Court concluded that the P&M employees were engaged in a sympathy action in support of the striking O&T employees. The District Court then held itself forbidden to issue an injunction by 4 of the Norris-LaGuardia Act[7] because the P&M employees' strike *403 was not over an "arbitrable grievance" and hence was not within the "narrow" exception to the Norris-LaGuardia Act established in Boys On the employer's appeal from the denial of a preliminary injunction, 28 U.S. C. 1292 (a) (1), the parties stipulated that the District Court's findings of fact were correct, that the had authorized and directed the P&M employees' work stoppage, that the O&T employees' strike and picket line were bona fide, primary, and legal, and that the P&M employees' work stoppage, though ended, might "be resumed at any time in the near future at the direction of the International or otherwise."[8] The Court of Appeals affirmed. It held that enjoining *404 this strike, which was not "over a grievance which the union has agreed to arbitrate," was not permitted by the Boys Markets exception to the Norris-LaGuardia Act. Because the Courts of Appeals are divided on the question whether such a strike may be enjoined,[9] we granted the employer's petition for a writ of certiorari, and now affirm the judgment of the Court of Appeals. II As a preliminary matter, certain elements in this case are not in dispute. The has gone on strike not by *405 reason of any dispute it or any of its members has with the employer, but in support of other local unions of the same international organization, that were negotiating a contract with the employer and were out on |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | negotiating a contract with the employer and were out on strike. The parties involved here are bound by collective-bargaining contracts each containing a no-strike clause which the claims does not forbid sympathy strikes. The employer has the other view, its complaint in the District Court asserting that the work stoppage violated the no-strike clause. Each of the contracts between the parties also has an arbitration clause broad enough to reach not only disputes between the and the employer about other provisions in the contracts but also as to the meaning and application of the no-strike clause itself. Whether the sympathy strike the called violated the no-strike clause, and the appropriate remedies if it did, are subject to the agreed-upon dispute-settlement procedures of the contracts and are ultimately issues for the arbitrator. ; ; The employer thus was entitled to invoke the arbitral process to determine the legality of the sympathy strike and to obtain a court order requiring the to arbitrate if the refused to do so. Gateway Coal Furthermore, were the issue arbitrated and the strike found illegal, the relevant federal statutes as construed in our cases would permit an injunction to enforce the arbitral decision. The issue in this case arises because the employer not only asked for an order directing the to arbitrate but prayed that the strike itself be enjoined pending *406 arbitration and the arbitrator's decision whether the strike was permissible under the no-strike clause. Contrary to the Court of Appeals, the employer claims that despite the Norris-LaGuardia Act's ban on federal-court injunctions in labor disputes the District Court was empowered to enjoin the strike by 301 of the Labor Management Relations Act as construed by Boys This would undoubtedly have been the case had the strike been precipitated by a dispute between union and management that was subject to binding arbitration under the provisions of the contracts. In Boys Markets, the union demanded that supervisory employees cease performing tasks claimed by the union to be union work. The union struck when the demand was rejected. The dispute was of the kind subject to the grievance and arbitration clauses contained in the collective-bargaining contract, and it was also clear that the strike violated the no-strike clause accompanying the arbitration provisions. The Court held that the union could be enjoined from striking over a dispute which it was bound to arbitrate at the employer's behest. The holding in Boys Markets was said to be a "narrow one," dealing only with the situation in which the collective-bargaining contract contained mandatory grievance and arbitration procedures. "[F]or the guidance |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | contract contained mandatory grievance and arbitration procedures. "[F]or the guidance of the district courts in determining whether to grant injunctive relief," the Court expressly adopted the principles enunciated in the dissent in Sinclair Refining including the proposition that " `[w]hen a strike is sought to be enjoined because it is over a grievance which both parties are contractually bound to arbitrate, the District Court may *407 issue no injunctive order until it first holds that the contract does have that effect; and the employer should be ordered to arbitrate, as a condition of his obtaining an injunction against the strike.' " The driving force behind Boys Markets was to implement the strong congressional preference for the private dispute settlement mechanisms agreed upon by the parties. Only to that extent was it held necessary to accommodate 4 of the Norris-LaGuardia Act to 301 of the Labor Management Relations Act and to lift the former's ban against the issuance of injunctions in labor disputes. Striking over an arbitrable dispute would interfere with and frustrate the arbitral processes by which the parties had chosen to settle a dispute. The quid pro quo for the employer's promise to arbitrate was the union's obligation not to strike over issues that were subject to the arbitration machinery. Even in the absence of an express no-strike clause, an undertaking not to strike would be implied where the strike was over an otherwise arbitrable dispute. Gateway Coal Otherwise, the employer would be deprived of his bargain and the policy of the labor statutes to implement private resolution of disputes in a manner agreed upon would seriously suffer. Boys Markets plainly does not control this case. The District Court found, and it is not now disputed, that the strike was not over any dispute between the and the employer that was even remotely subject to the arbitration provisions of the contract. The strike at issue was a sympathy strike in support of sister unions negotiating with the employer; neither its causes nor the issue underlying it was subject to the settlement procedures *408 provided by the contracts between the employer and respondents. The strike had neither the purpose nor the effect of denying or evading an obligation to arbitrate or of depriving the employer of its bargain. Thus, had the contract not contained a no-strike clause or had the clause expressly excluded sympathy strikes, there would have been no possible basis for implying from the existence of an arbitration clause a promise not to strike that could have been violated by the sympathy strike in this case. Gateway Coal[10] |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | violated by the sympathy strike in this case. Gateway Coal[10] *409 Nor was the injunction authorized solely because it was alleged that the sympathy strike called by the violated the express no-strike provision of the contracts. Section 301 of the Act assigns a major role to the courts in enforcing collective-bargaining agreements, but aside from the enforcement of the arbitration provisions of such contracts, within the limits permitted by Boys Markets, the Court has never indicated that the courts may enjoin actual or threatened contract violation despite the Norris-LaGuardia Act. In the course of enacting the Taft-Hartley Act, Congress rejected the proposal that the Norris-LaGuardia Act's prohibition against labor-dispute injunctions be lifted to the extent necessary to make injunctive remedies available in federal courts for the purpose of enforcing collective-bargaining agreements. See Sinclair Refining and 216-224 (dissenting opinion). The allegation of the complaint that the was breaching its obligation not to strike did not in itself warrant an injunction. As was stated in the Sinclair dissent embraced in Boys Markets: "[T]here is no general federal anti-strike policy; and although a suit may be brought under 301 against strikes which, while they are breaches of private contracts, do not threaten any additional public policy, in such cases the anti-injunction policy of Norris-LaGuardia should prevail." The contracts here at issue, however, also contained grievance and arbitration provisions for settling disputes over the interpretation and application of the provisions of the contracts, including the no-strike clause. That *410 clause, like others, was subject to enforcement in accordance with the procedures set out in the contracts. Here the struck, and the parties were in dispute whether the sympathy strike violated the 's no-strike undertaking. Concededly, that issue was arbitrable. It was for the arbitrator to determine whether there was a breach, as well as the remedy for any breach, and the employer was entitled to an order requiring the to arbitrate if it refused to do so. But the does not deny its duty to arbitrate; in fact, it denies that the employer ever demanded arbitration. However that may be, it does not follow that the District Court was empowered not only to order arbitration but to enjoin the strike pending the decision of the arbitrator, despite the express prohibition of 4 (a) of the Norris-LaGuardia Act against injunctions prohibiting any person from "[c]easing or refusing to perform any work or to remain in any relation of employment." If an injunction could issue against the strike in this case, so in proper circumstances could a court enjoin any other alleged breach of contract pending |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | a court enjoin any other alleged breach of contract pending the exhaustion of the applicable grievance and arbitration provisions even though the injunction would otherwise violate one of the express prohibitions of 4. The court in such cases would be permitted, if the dispute was arbitrable, to hold hearings, make findings of fact,[11] interpret the applicable provisions of the contract and issue injunctions so as to restore the status quo, or to otherwise regulate the relationship of the parties pending exhaustion of the arbitration process. This would cut deeply into the policy of the Norris-LaGuardia Act and make the courts potential participants in a wide range of arbitrable disputes under the many the many existing and future collective-bargaining *411 contracts,[12] not just for the purpose of enforcing promises to arbitrate, which was the limit of Boys Markets, but for the purpose of preliminarily dealing with the merits of the factual and legal issues that are subjects for the arbitrator and of issuing injunctions that would otherwise be forbidden by the Norris-LaGuardia Act. This is not what the parties have bargained for. Surely it cannot be concluded here, as it was in Boys Markets, that such injunctions pending arbitration are essential to carry out promises to arbitrate and to implement the private arrangements for the administration of the contract. As is typical, the agreements in this case outline the prearbitration settlement procedures and provide that if the grievance "has not been satisfactorily adjusted," arbitration may be had. Nowhere do they provide for coercive action of any kind, let alone judicial injunctions, short of the terminal decision of the arbitrator. The parties have agreed to submit to grievance procedures and arbitrate, not to litigate. They have not contracted for a judicial preview of the facts and the law.[13] Had they anticipated additional regulation of their relationships pending arbitration, it seems very doubtful that they would have resorted to litigation rather than to private arrangements. The unmistakable policy of Congress stated in 203 (d), 29 U.S. C. 173 (d), is: "Final adjustment by a method agreed *412 upon by the parties is declared to be the desirable method for settlement of grievance disputes arising over the application or interpretation of an existing collective-bargaining agreement." Gateway Coal But the parties' agreement to adjust or to arbitrate their differences themselves would be eviscerated if the courts for all practical purposes were to try and decide contractual disputes at the preliminary injunction stage. The dissent suggests that injunctions should be authorized in cases such as this at least where the violation, in the court's view, is |
Justice White | 1,976 | 6 | majority | Buffalo Forge Co. v. Steelworkers | https://www.courtlistener.com/opinion/109538/buffalo-forge-co-v-steelworkers/ | at least where the violation, in the court's view, is clear and the court is sufficiently sure that the parties seeking the injunction will win before the arbitrator. But this would still involve hearings, findings, and judicial interpretations of collective-bargaining contracts. It is incredible to believe that the courts would always view the facts and the contract as the arbitrator would; and it is difficult to believe that the arbitrator would not be heavily influenced or wholly pre-empted by judicial views of the facts and the meaning of contracts if this procedure is to be permitted. Injunctions against strikes, even temporary injunctions, very often permanently settle the issue; and in other contexts time and expense would be discouraging factors to the losing party in court in considering whether to relitigate the issue before the arbitrator. With these considerations in mind, we are far from concluding that the arbitration process will be frustrated unless the courts have the power to issue interlocutory injunctions pending arbitration in cases such as this or in others in which an arbitrable dispute awaits decision. We agree with the Court of Appeals that there is no necessity here, such as was found to be the case in Boys Markets, to accommodate the policies of the Norris-LaGuardia Act to the requirements of 301 by empowering *413 the District Court to issue the injunction sought by the employer. The judgment of the Court of Appeals is affirmed. So ordered. MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and MR. |
Justice Stewart | 1,980 | 18 | dissenting | Delaware State College v. Ricks | https://www.courtlistener.com/opinion/110367/delaware-state-college-v-ricks/ | I agree with the Court that the unlawful employment practice alleged in the respondent's complaint was a discriminatory *263 denial of tenure, not a discriminatory termination of employment. See ante, at 257-259, and nn. 8, 9. Nevertheless, I believe that a fair reading of the complaint reveals a plausible allegation that the College actually denied Ricks tenure on September 12, 1974, the date on which the Board finally confirmed its decision to accept the faculty's recommendation that he not be given tenure. Therefore, unlike the Court, I think Ricks should be allowed to prove to the District Court that the allegedly unlawful denial of tenure occurred on that date.[1] As noted by the Court, see ante, at 260, n. 13, if Ricks succeeds in this proof, his 1981 claim would certainly be timely, and the timeliness of his Title VII claim would then depend on whether his filing of a complaint with the Delaware Department of Labor entitled him to file his EEOC charge within 300 days of the discriminatory act, rather than within the 180 days' limitation that the Court of Appeals and the District Court assumed to be applicable.[2] A brief examination of the June 26, 1974, letter to Ricks *264 from the Board of Trustees, quoted by the Court, ante, at 253, n. 2, provides a reasonable basis for the allegation that the College did not effectively deny Ricks tenure until September 12. The letter informed Ricks of the Board's "intent not to renew" his contract at the end of the 1974-1975 academic year. And the letter suggested that the Board was so informing Ricks at that time only to ensure technical compliance with College and American Association of University Professors requirements in case it should later decide to abide by its earlier acceptance of the faculty's recommendation that Ricks be denied tenure. The Board expressly stated in the letter that it had "no way of knowing" what the outcome of the grievance process might be, but that a decision of the Board's Educational Policy Committee favorable to Ricks would "of course supersede any previous action taken by the Board." Thus, the Board itself may have regarded its earlier actions as tentative or preliminary, pending a thorough review triggered by the respondent's request to the Committee. The Court acknowledges that this letter expresses the Board's willingness to change its earlier view on Ricks' tenure, but considers the grievance procedure under which the decision might have been changed to be a remedy for an earlier tenure decision and not a part of the overall process of making the |
Justice Stewart | 1,980 | 18 | dissenting | Delaware State College v. Ricks | https://www.courtlistener.com/opinion/110367/delaware-state-college-v-ricks/ | not a part of the overall process of making the initial tenure decision. Ricks, however, may be able to prove to the District Court that at his College the original Board response to the faculty's recommendation was not a virtually final action subject to reopening only in the most extreme cases, but a preliminary decision to advance the tenure question to the Board's grievance committee as the next conventional stage in the process.[3] *265 Whether this is an accurate view of the tenure process at Delaware State College is, of course, a factual question we cannot resolve here. But Ricks lost his case in the trial court on a motion to dismiss. I think that motion was wrongly granted, and that Ricks was entitled to a hearing and a determination of this factual issue. See (CA9). I would, therefore, vacate the judgment of the Court of Appeals and remand the case to the District Court so that it can make this determination and then, if necessary, resolve whether Title VII allowed Ricks 300 days from the denial of tenure to file his charge with the Commission. |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | In 1965, Congress passed the Elementary and Secondary Education Act, (1965 Act). Under Title I, Congress provided monetary grants to States to address the needs of educationally deprived children of low-income families. Under Title II, Congress provided further monetary *837 grants to States for the acquisition of library resources, textbooks, and other instructional materials for use by children and teachers in public and private elementary and secondary schools. Since 1965, Congress has reauthorized the Title I and Title II programs several times. Three Terms ago, we held in that Title I, as applied in New York City, did not violate the Establishment I believe that likewise controls the constitutional inquiry respecting Title II presented here, and requires the reversal of the Court of Appeals' judgment that the program is unconstitutional as applied in Jefferson Parish, Louisiana. To the extent our decisions in and are inconsistent the Court's judgment today, I agree that those decisions should be overruled. I therefore concur in the judgment. I I write separately because, in my view, the plurality announces a rule of unprecedented breadth for the evaluation of Establishment Clause challenges to government school aid programs. Reduced to its essentials, the plurality's rule states that government aid to religious schools does not have the effect of advancing religion so long as the aid is offered on a neutral basis and the aid is secular in content. The plurality also rejects the distinction between direct and indirect aid, and holds that the actual diversion of secular aid by a religious school to the advancement of its religious mission is permissible. Although the expansive scope of the plurality's rule is troubling, two specific aspects of the opinion compel me to write separately. First, the plurality's treatment of neutrality comes close to assigning that factor singular importance in the future adjudication of Establishment Clause challenges to government school aid programs. Second, the plurality's approval of actual diversion of government aid to religious indoctrination is in tension our *838 precedents and, in any event, unnecessary to decide the instant case. The clearest example of the plurality's near-absolute position respect to neutrality is found in its following statement: "If the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government. For attribution of indoctrination is a relative question. If the government is offering assistance to recipients who provide, so to speak, a broad range of indoctrination, the government itself is not thought responsible for any particular indoctrination. To |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | itself is not thought responsible for any particular indoctrination. To put the point differently, if the government, seeking to further some legitimate secular purpose, offers aid on the same terms, out regard to religion, to all who adequately further that purpose, then it is fair to say that any aid going to a religious recipient only has the effect of furthering that secular purpose." Ante, at 809-8 I agree Justice Souter that the plurality, by taking such a stance, "appears to take evenhandedness neutrality and in practical terms promote it to a single and sufficient test for the establishment constitutionality of school aid." Post, at 900 (dissenting opinion). I do not quarrel the plurality's recognition that neutrality is an important reason for upholding government-aid programs against Establishment Clause challenges. Our cases have described neutrality in precisely this manner, and we have emphasized a program's neutrality repeatedly in our decisions approving various forms of school aid. See, e. ; ; ; ; Nevertheless, we have never held that a government-aid program passes constitutional muster solely because of the neutral criteria it employs as a basis for distributing aid. For example, in neutrality was only one of several factors we considered in determining that New York City's Title I program did not have the impermissible effect of advancing religion. See -228 Indeed, given that the aid in had secular content and was distributed on the basis of wholly neutral criteria, our consideration of additional factors demonstrates that the plurality's rule does not accurately describe our recent Establishment Clause jurisprudence. See also at 12-13 Justice Souter provides a comprehensive review of our Establishment Clause cases on government aid to religious institutions that is useful for its explanation of the various ways in which we have used the term "neutrality" in our decisions. See post, at 878-883. Even if we at one time used the term "neutrality" in a descriptive sense to refer to those aid programs characterized by the requisite equipoise between support of religion and antagonism to religion, Justice Souter's discussion convincingly demonstrates that the evolution in the meaning of the term in our jurisprudence is cause to hesitate before equating the neutrality of recent decisions the neutrality of old. As I have previously explained, neutrality is important, but it is by no means the only "axiom in the history and precedent of the Establishment " Thus, *840 I agree Justice Souter's conclusion that our "most recent use of `neutrality' to refer to generality or evenhandedness of distribution is relevant in judging whether a benefit scheme so characterized should be seen as |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | whether a benefit scheme so characterized should be seen as aiding a sectarian school's religious mission, but this neutrality is not alone sufficient to qualify the aid as constitutional." Post, at 883-884. I also disagree the plurality's conclusion that actual diversion of government aid to religious indoctrination is consistent the Establishment See ante, at 820 825. Although "[o]ur cases have permitted some government funding of secular functions performed by sectarian organizations," our decisions "provide no precedent for the use of public funds to finance religious activities." At least two of the decisions at the heart of today's case demonstrate that we have long been concerned that secular government aid not be diverted to the advancement of religion. In both our most recent school aid case, and Board of Ed. of Central School Dist. No. we rested our approval of the relevant programs in part on the fact that the aid had not been used to advance the religious missions of the recipient schools. See ; Of course, our focus on the lack of such evidence would have been entirely unnecessary if we had believed that the Establishment Clause permits the actual diversion of secular government aid to religious indoctrination. Our decision in also demonstrates that actual diversion is constitutionally impermissible. After concluding *841 that the government-aid program in question was constitutional on its face, we remanded the case so that the District Court could determine, after further factual development, whether aid recipients had used the government aid to support their religious objectives. See ; ("[T]he only purpose of further inquiring whether any particular grantee institution is pervasively sectarian is as a preliminary step to demonstrating that the funds are in fact being used to further religion"). The remand would have been unnecessary if, as the plurality contends, actual diversion were irrelevant under the Establishment The plurality bases its holding that actual diversion is permissible on and Ante, at 820-821. Those decisions, however, rested on a significant factual premise missing from this case, as well as from the majority of cases thus far considered by the Court involving Establishment Clause challenges to school aid programs. Specifically, we decided and on the understanding that the aid was provided directly to the individual student who, in turn, made the choice of where to put that aid to use. See ; 509 U. S., at 12. Accordingly, our approval of the aid in both cases relied to a significant extent on the fact that "[a]ny aid that ultimately flows to religious institutions does so only as a result of the genuinely independent and private |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | only as a result of the genuinely independent and private choices of aid recipients." ; see at This characteristic of both programs made them less like a direct subsidy, which would be impermissible under the Establishment Clause, and more akin to the government issuing a paycheck to an employee who, in turn, donates a portion of that check to a religious institution. See, e. ; see also (discussing ). *842 Recognizing this distinction, the plurality nevertheless finds and to the extent those decisions might permit the use of government aid for religious purposesrelevant in any case involving a neutral, per-capitaaid program. See ante, at 830-831. Like Justice Souter, I do not believe that we should treat a per-capita-aid program the same as the true private-choice programs considered in and See post, at 902. First, when the government provides aid directly to the student beneficiary, that student can attend a religious school and yet retain control over whether the secular government aid will be applied toward the religious education. The fact that aid flows to the religious school and is used for the advancement of religion is therefore wholly dependent on the student's private decision. See 515 U. S., (discussing importance of private choice in ); ; ("The aid to religion at issue here is the result of petitioner's private choice"). It is for this reason that in we relied on and to reject the rule "that all government aid that directly assists the educational function of religious schools is invalid," yet also rested our approval of New York City's Title I program in part on the lack of evidence of actual diversion, Second, I believe the distinction between a per capita school aid program and a true private-choice program is significant for purposes of endorsement. See, e. In terms of public perception, a government program of direct aid to religious schools based on the number of students attending each school differs meaningfully from the government distributing aid directly to individual students *843 who, in turn, decide to use the aid at the same religious schools. In the former example, if the religious school uses the aid to inculcate religion in its students, it is reasonable to say that the government has communicated a message of endorsement. Because the religious indoctrination is supported by government assistance, the reasonable observer would naturally perceive the aid program as government support for the advancement of religion. That the amount of aid received by the school is based on the school's enrollment does not separate the government from the endorsement of the religious message. The |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | the government from the endorsement of the religious message. The aid formula does not and could notindicate to a reasonable observer that the inculcation of religion is endorsed only by the individuals attending the religious school, who each affirmatively choose to direct the secular government aid to the school and its religious mission. No such choices have been made. In contrast, when government aid supports a school's religious mission only because of independent decisions made by numerous individuals to guide their secular aid to that school, "[n]o reasonable observer is likely to draw from the facts an inference that the State itself is endorsing a religious practice or belief." Rather, endorsement of the religious message is reasonably attributed to the individuals who select the path of the aid. Finally, the distinction between a per-capita-aid program and a true private-choice program is important when considering aid that consists of direct monetary subsidies. This Court has "recognized special Establishment Clause dangers where the government makes direct money payments to sectarian institutions." ; see also If, as the plurality contends, a per-capita-aid program is identical in relevant constitutional respects to a true private-choice program, then there is no reason that, under the plurality's reasoning, the government should be precluded from providing direct money payments *844 to religious organizations (including churches) based on the number of persons belonging to each organization. And, because actual diversion is permissible under the plurality's holding, the participating religious organizations (including churches) could use that aid to support religious indoctrination. To be sure, the plurality does not actually hold that its theory extends to direct money payments. See ante, at 818-820. That omission, however, is of little comfort. In its logicas well as its specific advisory language, see ante, at 819-820, n. 8the plurality opinion foreshadows the approval of direct monetary subsidies to religious organizations, even when they use the money to advance their religious objectives. Our school aid cases often pose difficult questions at the intersection of the neutrality and no-aid principles and therefore defy simple categorization under either rule. As I explained in "[r]esolution instead depends on the hard task of judgingsifting through the details and determining whether the challenged program offends the Establishment Such judgment requires courts to draw lines, sometimes quite fine, based on the particular facts of each case." 515 U.S., represents our most recent attempt to devise a general framework for approaching questions concerning neutral school aid programs. also concerned an Establishment Clause challenge to a school aid program closely related to the one at issue here. For these reasons, as well as |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | one at issue here. For these reasons, as well as my disagreement the plurality's approach, I would decide today's case by applying the criteria set forth in II In after reexamining our jurisprudence since School Dist. of Grand we explained that the general principles used to determine whether government aid violates the Establishment Clause have remained largely Thus, *845 we still ask "whether the government acted the purpose of advancing or inhibiting religion" and "whether the aid has the `effect' of advancing or inhibiting religion." at 222 223. We also concluded in however, that the specific criteria used to determine whether government aid has an impermissible effect had changed. Looking to our recently decided cases, we articulated three primary criteria to guide the determination whether a governmentaid program impermissibly advances religion: (1) whether the aid results in governmental indoctrination, (2) whether the aid program defines its recipients by reference to religion, and (3) whether the aid creates an excessive entanglement between government and religion. Finally, we noted that the same criteria could be reviewed to determine whether a government-aid program constitutes an endorsement of religion. Respondents neither question the secular purpose of the Chapter 2 (Title II) program nor contend that it creates an excessive entanglement. (Due to its denomination as Chapter 2 of the Education Consolidation and Improvement Act of 1981, the parties refer to the 1965 Act's Title II program, as modified by subsequent legislation, as "Chapter 2." For ease of reference, I will do the same.) Accordingly, for purposes of deciding whether Chapter 2, as applied in Jefferson Parish, Louisiana, violates the Establishment Clause, we need ask only whether the program results in governmental indoctrination or defines its recipients by reference to religion. Taking the second inquiry first, it is clear that Chapter 2 does not define aid recipients by reference to religion. In we explained that scrutiny of the manner in which a government-aid program identifies its recipients is important because "the criteria might themselves have the effect of advancing religion by creating a financial incentive to undertake religious indoctrination." We then clarified that this financial incentive is not present * "where the aid is allocated on the basis of neutral, secular criteria that neither favor nor disfavor religion, and is made available to both religious and secular beneficiaries on a nondiscriminatory basis." Under Chapter 2, the Secretary of Education allocates funds to the States based on each State's share of the Nation's school-age population. 20 U.S. C. 7311(b). The state educational agency (SEA) of each recipient State, in turn, must distribute the State's Chapter 2 |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | recipient State, in turn, must distribute the State's Chapter 2 funds to local educational agencies (LEA's) "according to the relative enrollments in public and private, nonprofit schools in the school districts of such agencies," adjusted to take into account those LEA's "which have the greatest numbers or percentages of children whose education imposes a higher than average cost per child." 7(a). The LEA must then expend those funds on "innovative assistance programs" designed to improve student achievement. 7351(b). The statute generally requires that an LEA ensure the "equitable participation" of children enrolled in private nonprofit elementary and secondary schools, 7372(a)(1), and specifically mandates that all LEA expenditures on behalf of children enrolled in private schools "be equal (consistent the number of children to be served) to expenditures for programs for children enrolled in the public schools of the [LEA]," 7372(b). As these statutory provisions make clear, Chapter 2 uses wholly neutral and secular criteria to allocate aid to students enrolled in religious and secular schools alike. As a result, it creates no financial incentive to undertake religious indoctrination. next requires us to ask whether Chapter 2 "result[s] in governmental indoctrination." 521 U.S., Because this is a more complex inquiry under our case law, it is useful first to review briefly the basis for our decision in that New York City's Title I program did not result in governmental indoctrination. Under that program, public-school teachers provided Title I instruction to eligible *847 students on private school premises during regular school hours. Twelve years earlier, in we had held the same New York City program unconstitutional. In a companion case to Aguilar, we also held that a similar program in Grand Rapids, Michigan, violated the Constitution. Our decisions in Aguilar and were both based on a presumption, drawn in large part from see -373, that public-school instructors who teach secular classes on the campuses of religious schools will inevitably inculcate religion in their students. In we recognized that "[o]ur more recent cases [had] undermined the assumptions upon which and Aguilar relied." First, we explained that the Court had since abandoned "the presumption erected in and that the placement of public employees on parochial school grounds inevitably results in the impermissible effect of state-sponsored indoctrination or constitutes a symbolic union between government and religion." Rather, relying on we explained that in the absence of evidence showing that teachers were actually using the Title I aid to inculcate religion, we would presume that the instructors would comply the program's secular restrictions. See 521 U. S., -224, 226 227. The Title I services were required |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | S., -224, 226 227. The Title I services were required by statute to be "`secular, neutral, and nonideological.' " at 2 (quoting 20 U.S. C. 6321(a)(2)). Second, we noted that the Court had "departed from the rule relied on in that all government aid that directly assists the educational function of religious schools is invalid." Relying on and we noted that our cases had taken a more forgiving view of neutral government programs that make aid available generally out regard to the religious or nonreligious character of the recipient school. See 521 U. S., -226. With respect to the specific Title I program *848 at issue, we noted several factors that precluded us from finding an impermissible financing of religious indoctrination: the aid was "provided to students at whatever school they choose to attend," the services were "by law supplemental to the regular curricula" of the benefited schools, "[n]o Title I funds ever reach the coffers of religious schools," and there was no evidence of Title I instructors having "attempted to inculcate religion in students." Relying on the same factors, we also concluded that the New York City program could not "reasonably be viewed as an endorsement of religion." Although we found it relevant that Title I services could not be provided on a schoolwide basis, we also explained that this fact was likely a sufficient rather than a necessary condition of the program's constitutionality. We were not "willing to conclude that the constitutionality of an aid program depends on the number of sectarian school students who happen to receive the otherwise neutral aid." The Chapter 2 program at issue here bears the same hallmarks of the New York City Title I program that we found important in First, as explained above, Chapter 2 aid is distributed on the basis of neutral, secular criteria. The aid is available to assist students regardless of whether they attend public or private nonprofit religious schools. Second, the statute requires participating SEA's and LEA's to use and allocate Chapter 2 funds only to supplement the funds otherwise available to a religious school. 20 U.S. C. 7371(b). Chapter 2 funds must in no case be used to supplant funds from non-Federal sources. Third, no Chapter 2 funds ever reach the coffers of a religious school. Like the Title I program considered in all Chapter 2 funds are controlled by public agenciesthe SEA's and LEA's. 7372(c)(1). The LEA's purchase instructional and educational materials and then lend those materials to public and private schools. See 7351(a), (b)(2). With respect to lending to private schools under Chapter 2, |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | With respect to lending to private schools under Chapter 2, the statute *849 specifically provides that the relevant public agency must retain title to the materials and equipment. 7372(c)(1). Together the supplantation restriction, this provision ensures that religious schools reap no financial benefit by virtue of receiving loans of materials and equipment. Finally, the statute provides that all Chapter 2 materials and equipment must be "secular, neutral, and nonideological." 7372(a)(1). That restriction is reinforced by a further statutory prohibition on "the making of any payment for religious worship or instruction." 8897. Although respondents claim that Chapter 2 aid has been diverted to religious instruction, that evidence is de minimis, as I explain at greater length below. See infra, at 864-867. III Respondents contend that is distinguishable, pointing to the distinct character of the aid program considered there. See Brief for Respondents 44-47. In federal funds paid for public-school teachers to provide secular instruction to eligible children on the premises of their religious schools. Here, in contrast, federal funds pay for instructional materials and equipment that LEA's lend to religious schools for use by those schools' own teachers in their classes. Because we held similar programs unconstitutional in and respondents contend that those decisions, and not are controllin See, e. Brief for Respondents 11, 22-25. Like respondents, Justice Souter also relies on and in finding the character of the Chapter 2 aid constitutionally problematic. See post, at 893, 903. At the time they were decided, and created an inexplicable rift in our Establishment Clause jurisprudence concerning government aid to schools. Seven years before our decision in we held in that a New York statute that authorized the lending of textbooks to students attending religious schools did not violate the *850 Establishment We explained that the statute "merely [made] available to all children the benefits of a general program to lend school books free of charge," that the State retained ownership of the textbooks, and that religious schools received no financial benefit from the program. We specifically rejected the contrary argument that the statute violated the Establishment Clause because textbooks are critical to the teaching process, which in a religious school is employed to inculcate religion. In and we adhered to holding that the textbook lending programs at issue in each case did not violate the Establishment See -362 ; 238 At the same time, however, we held in both cases that the lending of instructional materials and equipment to religious schools was unconstitutional. See ; -251. We reasoned that, because the religious schools receiving the materials and equipment were pervasively |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | the religious schools receiving the materials and equipment were pervasively sectarian, any assistance in support of the schools' educational missions would inevitably have the impermissible effect of advancing religion. For example, in we explained: "[I]t would simply ignore reality to attempt to separate secular educational functions from the predominantly religious role performed by many of Pennsylvania's church-related elementary and secondary schools and to then characterize [the statute] as channeling aid to the secular out providing direct aid to the sectarian. Even though earmarked for secular purposes, `when it flows to an institution in which religion is so pervasive that a substantial portion of its functions are subsumed in the religious mission,' state aid has the impermissible primary effect of advancing religion." -366 ). *851 Thus, we held that the aid program "necessarily results in aid to the sectarian school enterprise as a whole," and "inescapably results in the direct and substantial advancement of religious activity." Similarly, in we concluded that, "[i]n view of the impossibility of separating the secular education function from the sectarian, the state aid inevitably flows in part in support of the religious role of the schools." For whatever reason, the Court was not willing to extend this presumption of inevitable religious indoctrination to school aid when it instead consisted of textbooks lent free of charge. For example, in despite identifying the religious schools' secular educational functions and religious missions as inextricably 421 U.S., the Court upheld the textbook lending program because "the record in the case like the record in contains no suggestion that religious textbooks will be lent or that the books provided will be used for anything other than purely secular purposes," Accordingly, while the Court was willing to apply an irrebuttable presumption that secular instructional materials and equipment would be diverted to use for religious indoctrination, it required evidence that religious schools were diverting secular textbooks to religious instruction. The inconsistency between the two strands of the Court's jurisprudence did not go unnoticed, as Justices on both sides of the and decisions relied on the contradiction to support their respective arguments. See, e. ("[W]hat the Court says of the instructional materials and equipment may be said perhaps even more accurately of the textbooks" ); ("The failure of the majority to justify the differing approaches to textbooks and instructional materials and *852 equipment in the above respect is symptomatic of its failure even to attempt to distinguish the textbook loan program, which the plurality upholds, from the instructional materials and equipment loan program, which the majority finds unconstitutional"). The irrationality of this distinction is |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | the majority finds unconstitutional"). The irrationality of this distinction is patent. As one Member of our Court has noted, it has meant that "a State may lend to parochial school children geography textbooks that contain maps of the United States, but the State may not lend maps of the United States for use in geography class." 1 (footnotes omitted). Indeed, technology's advance since the and decisions has only made the distinction between textbooks and instructional materials and equipment more suspect. In this case, for example, we are asked to draw a constitutional line between lending textbooks and lending computers. Because computers constitute instructional equipment, adherence to and would require the exclusion of computers from any government school aid program that includes religious schools. Yet, computers are now as necessary as were schoolbooks 30 years ago, and they play a somewhat similar role in the educational process. That and would permit the constitutionality of a school aid program to turn on whether the aid took the form of a computer rather than a book further reveals the inconsistency inherent in their logic. Respondents insist that there is a reasoned basis under the Establishment Clause for the distinction between textbooks and instructional materials and equipment. They claim that the presumption that religious schools will use instructional materials and equipment to inculcate religion is sound because such materials and equipment, unlike textbooks, are reasonably divertible to religious uses. For example, no matter what secular criteria the government employs in selecting a film projector to lend to a religious school, school officials can always divert that projector to religious *853 instruction. Respondents therefore claim that the Establishment Clause prohibits the government from giving or lending aid to religious schools when that aid is reasonably divertible to religious uses. See, e. Brief for Respondents 11, 35. Justice Souter also states that the divertibility of secular government aid is an important consideration under the Establishment Clause, although he apparently would not ascribe it the constitutionally determinative status that respondents do. See post, at 885, 890-895. I would reject respondents' proposed divertibility rule. First, respondents cite no precedent of this Court that would require it. The only possible direct precedential support for such a rule is a single sentence contained in a footnote from our decision. There, the Court described as having been "premised on the view that the educational content of textbooks is something that can be ascertained in advance and cannot be diverted to sectarian uses." To the extent this simple description of is even correct, it certainly does not constitute an actual holding that |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | correct, it certainly does not constitute an actual holding that the Establishment Clause prohibits the government from lending any divertible aid to religious schools. Rather, as explained above, the Court based its holding invalidating the lending of instructional materials and equipment to religious schools on the rationale adopted in that the secular educational function of a religious school is inseparable from its religious mission. See Indeed, if anything, the footnote confirms the irrationality of the distinction between textbooks and instructional materials and equipment. After the Court acknowledged that its holding respect to instructional materials and equipment was in tension the Court explained the continuing validity of solely on the basis of stare decisis: "Board of Education v. has remained law, and we now follow as a matter of stare decisis the principle that restriction of textbooks to those provided the public schools is sufficient to ensure *854 that the books will not be used for religious purposes." Thus, the Court never justified the inconsistent treatment it accorded the lending of textbooks and the lending of instructional materials and equipment based on the items' reasonable divertibility. Justice Souter's attempt to defend the divertibility rationale as a viable distinction in our Establishment Clause jurisprudence fares no better. For Justice Souter, secular school aid presents constitutional problems not only when it is actually diverted to religious ends, but also when it simply has the capacity for, or presents the possibility of, such diversion. See, e. post, at 893 (discussing "susceptibility [of secular supplies] to the service of religious ends"). Thus, he explains the and decisions as follows: "While the textbooks had a known and fixed secular content not readily divertible to religious teaching purposes, the adaptable materials did not." Post, at 893-894. This view would have come as a surprise to the Court in which expressly conceded that "the material and equipment that are the subjects of the loan are `self-polic[ing], in that starting as secular, nonideological and neutral, they will not change in use.' " ). Indeed, given the nature of the instructional materials considered in and it is difficult to comprehend how a divertibility rationale could have explained the decisions. The statutes at issue in those cases authorized the lending of "periodicals, photographs, maps, charts, sound recordings, [and] films," and "maps and globes," There is no plausible basis for saying that these items are somehow more divertible than a textbook given that each of the above items, like a textbook, has a fixed and ascertainable content. In any event, even if and had articulated the divertibility rationale urged by respondents and |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | and had articulated the divertibility rationale urged by respondents and Justice *855 Souter, I would still reject it for a more fundamental reason. Stated simply, the theory does not provide a logical distinction between the lending of textbooks and the lending of instructional materials and equipment. An educator can use virtually any instructional tool, whether it has ascertainable content or not, to teach a religious message. In this respect, I agree the plurality that "it is hard to imagine any book that could not, in even moderately skilled hands, serve to illustrate a religious message." Ante, at 823. In today's case, for example, we are asked to draw a constitutional distinction between lending a textbook and lending a library book. Justice Souter's try at justifying that distinction only demonstrates the absurdity on which such a difference must rest. He states that "[a]lthough library books, like textbooks, have fixed content, religious teachers can assign secular library books for religious critique." Post, at 903. Regardless of whether that explanation is even correct (for a student surely could be given a religious assignment in connection a textbook too), it is hardly a distinction on which constitutional law should turn. Moreover, if the mere ability of a teacher to devise a religious lesson involving the secular aid in question suffices to hold the provision of that aid unconstitutional, it is difficult to discern any limiting principle to the divertibility rule. For example, even a publicly financed lunch would apparently be unconstitutional under a divertibility rationale because religious school officials conceivably could use the lunch to lead the students in a blessing over the bread. See Brief for Avi Chai Foundation as Amicus Curiae 18. To the extent Justice Souter believes several related Establishment Clause decisions require application of a divertibility rule in the context of this case, I respectfully disagree. Justice Souter is correct to note our continued recognition of the special dangers associated direct money grants to religious institutions. See post, at 890-893. It does not follow, however, that we should treat as constitutionally *856 suspect any form of secular aid that might conceivably be diverted to a religious use. As the cases Justice Souter cites demonstrate, our concern direct monetary aid is based on more than just diversion. In fact, the most important reason for according special treatment to direct money grants is that this form of aid falls precariously close to the original object of the Establishment Clause's prohibition. See, e. Statements concerning the constitutionally suspect status of direct cash aid, accordingly, provide no justification for applying an absolute rule against |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | accordingly, provide no justification for applying an absolute rule against divertibility when the aid consists instead of instructional materials and equipment. Justice Souter also relies on our decisions in (to the extent it concerned field-trip transportation for nonpublic schools), and Bowen. See post, at 893-895. None requires application of a divertibility rule in the context of this case. and were both based on the same presumption that government aid will be used in the inculcation of religion that we have chosen not to apply to textbook lending programs and that we have more generally rejected in recent decisions. Compare ; ; infra, at 859. In we considered a federal statute that authorized grants to universities for the construction of buildings and facilities to be used exclusively for secular educational purposes. See -675. We held the statute unconstitutional only to the extent that a university's "obligation not to use the facility for sectarian instruction or religious worship appear[ed] to expire at the end of 20 years." To hold a statute unconstitutional because it lacks a secular content restriction is quite different *857 from resting on a divertibility rationale. Indeed, the fact that we held the statute constitutional in all other respects is more probative on the divertibility question because it demonstrates our willingness to presume that the university would abide by the secular content restriction during the years the requirement was in effect. In any event, Chapter 2 contains both a secular content restriction, 20 U.S. C. 7372(a)(1), and a prohibition on the use of aid for religious worship or instruction, 8897, so provides no basis for upholding respondents' challenge. Finally, our decision in Bowen proves only that actual diversion, as opposed to mere divertibility, is constitutionally impermissible. See, e. Had we believed that the divertibility of secular aid was sufficient to call the aid program into question, there would have been no need for the remand we ordered and no basis for the reversal. IV Because divertibility fails to explain the distinction our cases have drawn between textbooks and instructional materials and equipment, there remains the question of which of the two irreconcilable strands of our Establishment Clause jurisprudence we should now follow. Between the two, I would adhere to the rule that we have applied in the context of textbook lending programs: To establish a First Amendment violation, plaintiffs must prove that the aid in question actually is, or has been, used for religious purposes. See 421 U. S., ; 392 U. S., Just as we held in that our more recent cases had undermined the assumptions underlying and |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | our more recent cases had undermined the assumptions underlying and Aguilar, I would now hold that and the cases on which it relied have undermined the assumptions underlying and To be sure, only addressed the specific presumption that public-school employees teaching on the premises of religious schools would inevitably inculcate religion. Nevertheless, I believe that our definitive rejection of that presumption also stood foror at least strongly *858 pointed tothe broader proposition that such presumptions of religious indoctrination are normally inappropriate when evaluating neutral school aid programs under the Establishment In we repeatedly emphasized that it would be inappropriate to presume inculcation of religion; rather, plaintiffs raising an Establishment Clause challenge must present evidence that the government aid in question has resulted in religious indoctrination. See 521 U.S., -224, 226-227. We specifically relied on our statement in that a presumption of indoctrination, because it constitutes an absolute bar to the aid in question regardless of the religious school's ability to separate that aid from its religious mission, constitutes a "flat rule, smacking of antiquated notions of `taint,' [that] would indeed exalt form over substance." That reasoning applies equal force to the presumption in and concerning instructional materials and equipment. As we explained in "we have departed from the rule relied on in that all government aid that directly assists the educational function of religious schools is invalid." Respondents contend that should be limited to its facts, and point specifically to the following statement from my separate opinion in as the basis for retaining a presumption of religious inculcation for instructional materials and equipment: "When full-time parochial school teachers receive public funds to teach secular courses to their parochial school students under parochial school supervision, I agree that the program has the perceived and actual effect of advancing the religious aims of the church-related schools. This is particularly the case where, as here, religion pervades the curriculum and the teachers are accustomed to bring religion to play in everything they teach." -400 *859 Respondents note that in we did not overrule that portion of holding the Community Education program unconstitutional. Under that program, the government paid religious school teachers to operate as part-time public teachers at their religious schools by teaching secular classes at the conclusion of the regular schoolday. -. Relying on both the majority opinion and my separate opinion in respondents therefore contend that we must presume that religious school teachers will inculcate religion in their students. If that is so, they argue, we must also presume that religious school teachers will be unable to follow secular restrictions on |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | school teachers will be unable to follow secular restrictions on the use of instructional materials and equipment lent to their schools by the government. See Brief for Respondents 26-29. I disagree, however, that the latter proposition follows from the former. First, as our holding in and its reaffirmance in and demonstrate, the Court's willingness to assume that religious school instructors will inculcate religion has not caused us to presume also that such instructors will be unable to follow secular restrictions on the use of textbooks. I would similarly reject any such presumption regarding the use of instructional materials and equipment. When a religious school receives textbooks or instructional materials and equipment lent secular restrictions, the school's teachers need not refrain from teaching religion altogether. Rather, the instructors need only ensure that any such religious teaching is done out the instructional aids provided by the government. We have always been willing to assume that religious school instructors can abide by such restrictions when the aid consists of textbooks, which Justice Brennan described as "surely the heart tools of education." The same assumption should extend to instructional materials and equipment. For the same reason, my position in is distinguishable. There, the government paid for religious school instructors *860 to teach classes supplemental to those offered during the normal schoolday. In that context, I was willing to presume that the religious school teacher who works throughout the day to advance the school's religious mission would also do so, at least to some extent, during the supplemental classes provided at the end of the day. Because the government financed the entirety of such classes, any religious indoctrination taking place therein would be directly attributable to the government. In the instant case, because the Chapter 2 aid concerns only teaching tools that must remain supplementary, the aid constitutes only a portion of the teacher's educational efforts during any single class. In this context, I find it easier to believe that a religious school teacher can abide by the secular restrictions placed on the government assistance. I therefore would not presume that the Chapter 2 aid will advance, or be perceived to advance, the school's religious mission. V Respondents do not rest, however, on their divertibility argument alone. Rather, they also contend that the evidence respecting the actual administration of Chapter 2 in Jefferson Parish demonstrates that the program violated the Establishment First, respondents claim that the program's safeguards are insufficient to uncover instances of actual diversion. Brief for Respondents 37, 42-43, 45 47. Second, they contend that the record shows that some religious schools in |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | contend that the record shows that some religious schools in Jefferson Parish may have used their Chapter 2 aid to support religious education (i. e., that they diverted the aid). Third, respondents highlight violations of Chapter 2's secular content restrictions. And, finally, they note isolated examples of potential violations of Chapter 2's supplantation restriction. Based on the evidence underlying the first and second claims, the plurality appears to contend that the Chapter 2 program can be upheld only if actual diversion of government aid to the advancement of religion *861 is permissible under the Establishment See ante, at 832-834. Relying on the evidence underlying all but the last of the above claims, Justice Souter concludes that the Chapter 2 program, as applied in Jefferson Parish, violated the Establishment See post, at 902-9. I disagree both the plurality and Justice Souter. The limited evidence amassed by respondents during 4 years of discovery (which began approximately 15 years ago) is at best de minimis and therefore insufficient to affect the constitutional inquiry. The plurality and Justice Souter direct the primary thrust of their arguments at the alleged inadequacy of the program's safeguards. Respondents, the plurality, and Justice Souter all appear to proceed from the premise that, so long as actual diversion presents a constitutional problem, the government must have a failsafe mechanism capable of detecting any instance of diversion. We rejected that very assumption, however, in There, we explained that because we had "abandoned the assumption that properly instructed public employees will fail to discharge their duties faithfully, we must also discard the assumption that pervasive monitoring of Title I teachers is required." 521 U.S., Because I believe that the Court should abandon the presumption adopted in and respecting the use of instructional materials and equipment by religious school teachers, I see no constitutional need for pervasive monitoring under the Chapter 2 program. The safeguards employed by the program are constitutionally sufficient. At the federal level, the statute limits aid to "secular, neutral, and nonideological services, materials, and equipment," 20 U.S. C. 7372(a)(1); requires that the aid only supplement and not supplant funds from non-Federal sources, 7371(b); and prohibits "any payment for religious worship or instruction," 8897. At the state level, the Louisiana Department of Education (the relevant SEA for *862 Louisiana) requires all nonpublic schools to submit signed assurances that they will use Chapter 2 aid only to supplement and not to supplant non-Federal funds, and that the instructional materials and equipment "will only be used for secular, neutral and nonideological purposes." App. 260a 261a; see also at 120a. Although there |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | purposes." App. 260a 261a; see also at 120a. Although there is some dispute concerning the mandatory nature of these assurances, Dan Lewis, the director of Louisiana's Chapter 2 program, testified that all of the State's nonpublic schools had thus far been willing to sign the assurances, and that the State retained the power to cut off aid to any school that breached an assurance. at 122a123a. The Louisiana SEA also conducts monitoring visits to each of the State's LEA'sand one or two of the nonpublic schools covered by the relevant LEA once every three years. at 95a96a. In addition to other tasks performed on such visits, SEA representatives conduct a random review of a school's library books for religious content. at 99a. At the local level, the Jefferson Parish Public School System (JPPSS) requires nonpublic schools seeking Chapter 2 aid to submit applications, complete specific project plans, for approval. at 127a; at 194a203a (sample application). The JPPSS then conducts annual monitoring visits to each of the nonpublic schools receiving Chapter 2 aid. at 141a142a. On each visit, a JPPSS representative meets a contact person from the nonpublic school and reviews that person the school's project plan and the manner in which the school has used the Chapter 2 materials and equipment to support its plan. at 142a, 149a. The JPPSS representative also reminds the contact person of the prohibition on the use of Chapter 2 aid for religious purposes, at 149a, and conducts a random sample of the school's Chapter 2 materials and equipment to ensure that they are appropriately labeled and that the school has maintained a record of their usage, at 142a144a. (Although the plurality and Justice Souter claim that compliance *863 the labeling requirement was haphazard, both cite only a statewide monitoring report that includes no specific findings respect to Jefferson Parish. Ante, at 832-833 (citing App. 113a); post, at 906 (same).) Finally, the JPPSS representative randomly selects library books the nonpublic school has acquired through Chapter 2 and reviews their content to ensure that they comply the program's secular content restriction. App. 2a. If the monitoring does not satisfy the JPPSS representative, another visit is scheduled. at 151a152a. Apart from conducting monitoring visits, the JPPSS reviews Chapter 2 requests filed by participating nonpublic schools. As part of this process, a JPPSS employee examines the titles of requested library books and rejects any book whose title reveals (or suggests) a religious subject matter. at 135a, 137a138a. As the above description of the JPPSS monitoring process should make clear, Justice Souter's citation of a statewide report finding a |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | clear, Justice Souter's citation of a statewide report finding a lack of monitoring in some Louisiana LEA's is irrelevant as far as Jefferson Parish is concerned. See post, at 906 (quoting App. 111a). Respondents, the plurality, and Justice Souter all fault the above-described safeguards primarily because they depend on the good faith of participating religious school officials. For example, both the plurality and Justice Souter repeatedly cite testimony by state and parish officials acknowledging that the safeguards depend to a certain extent on the religious schools' self-reporting and that, therefore, there is no way for the State or Jefferson Parish to say definitively that no Chapter 2 aid is diverted to religious purposes. See, e. ante, at 832-833, n. 15; post, at 906-907. These admissions, however, do not prove that the safeguards are inadequate. To find that actual diversion will flourish, one must presume bad faith on the part of the religious school officials who report to the JPPSS monitors regarding the use of Chapter 2 aid. I disagree the plurality and Justice Souter on this point and believe that it is entirely *864 proper to presume that these school officials will act in good faith. That presumption is especially appropriate in this case, since there is no proof that religious school officials have breached their schools' assurances or failed to tell government officials the truth. Cf. The evidence proffered by respondents, and relied on by the plurality and Justice Souter, concerning actual diversion of Chapter 2 aid in Jefferson Parish is de minimis. Respondents first cite the following statement from a Jefferson Parish religious school teacher: "Audio-visual materials are a very necessary and enjoyable tool used when teaching young children. As a second grade teacher I use them in all subjects and see a very positive result." App. 8a. Respondents' only other evidence consists of a chart concerning one Jefferson Parish religious school, which shows that the school's theology department was a significant user of audiovisual equipment. See at 206a208a. Although an accompanying letter indicates that much of the school's equipment was purchased federal funds, at 205a, the chart does not provide a breakdown identifying specific Chapter 2 usage. Indeed, unless we are to relieve respondents of their evidentiary burden and presume a violation of Chapter 2, we should assume that the school used its own equipment in the theology department and the Chapter 2 equipment elsewhere. The more basic point, however, is that neither piece of evidence demonstrates that Chapter 2 aid actually was diverted to religious education. At most, it proves the possibility that, out of the |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | At most, it proves the possibility that, out of the more than 40 nonpublic schools in Jefferson Parish participating in Chapter 2, aid may have been diverted in one school's second-grade class and another school's theology department. *865 The plurality's insistence that this evidence is somehow substantial flatly contradicts its willingness to disregard similarly insignificant evidence of violations of Chapter 2's supplantation and secular content restrictions. See ante, at 815, n. 7 (finding no "material statutory violation" of the supplantation restriction); ante, at 835 (characterizing violations of secular content restriction as "scattered" and "de minimis "). As I shall explain below, I believe the evidence on all three points is equally insignificant and, therefore, should be treated the same. Justice Souter also relies on testimony by one religious school principal indicating that a computer lent to her school under Chapter 2 was connected through a network to nonChapter 2 computers. See post, at 9 (citing App. 77a). The principal testified that the Chapter 2 computer would take over the network if another non-Chapter 2 computer were to break down. To the extent the principal's testimony even proves that Chapter 2 funds were diverted to the school's religious mission, the evidence is hardly compellin Justice Souter contends that any evidence of actual diversion requires the Court to declare the Chapter 2 program unconstitutional as applied in Jefferson Parish. Post, at 909, n. 27. For support, he quotes my concurring opinion in Bowen and the statement therein that "any use of public funds to promote religious doctrines violates the Establishment " That principle of course remains good law, but the next sentence in my opinion is more relevant to the case at hand: "[E]xtensive violationsif they can be proved in this case will be highly relevant in shaping an appropriate remedy that ends such abuses." I know of no case in which we have declared an entire aid program unconstitutional on Establishment Clause grounds solely because of violations on the minuscule scale of those at issue here. Yet that is precisely the remedy respondents *866 requested from the District Court and that they were granted by the Court of Appeals. See App. 51a; amended, While extensive violations might require a remedy along the lines asked for by respondents, no such evidence has been presented here. To the contrary, the presence of so few examples over a period of at least 4 years (15 years ago) tends to show not that the "no-diversion" rules have failed, but that they have worked. Accordingly, I see no reason to affirm the judgment below and thereby |
Justice O'Connor | 2,000 | 14 | concurring | Mitchell v. Helms | https://www.courtlistener.com/opinion/118386/mitchell-v-helms/ | see no reason to affirm the judgment below and thereby declare a properly functioning aid program unconstitutional. Respondents' next evidentiary argument concerns an admitted violation of Chapter 2's secular content restriction. Over three years, Jefferson Parish religious schools ordered approximately 191 religious library books through Chapter 2. App. 129a133a. Dan Lewis, the director of Louisiana's Chapter 2 program, testified that he discovered some of the religious books while performing a random check during a state monitoring visit to a Jefferson Parish religious school. at 99a0a. The discovery prompted the State to notify the JPPSS, which then reexamined book requests dating back to 1982, discovered the 191 books in question, and recalled them. at 130a133a. This series of events demonstrates not that the Chapter 2 safeguards are inadequate, but rather that the program's monitoring system succeeded. Even if I were instead willing to find this incident to be evidence of a likelihood of future violations, the evidence is insignificant. The 191 books constituted less than one percent of the total allocation of Chapter 2 aid in Jefferson Parish during the relevant years. at 132a. Justice Souter understandably concedes that the book incident constitutes "only limited evidence." Post, at 909. I agree the plurality that, like the above evidence of actual diversion, the borrowing of the religious library books constitutes only de minimis evidence. See ante, at 835. *867 Respondents' last evidentiary challenge concerns the effectiveness of Chapter 2's supplantation restriction in Jefferson Parish. Although Justice Souter does not rest his decision on this point, he does "not[e] the likelihood that unconstitutional supplantation occurred as well." Post, at 9, n. 28. I disagree. The evidence cited by respondents and Justice Souter is too ambiguous to rest any sound conclusions on and, at best, shows some scattered violations of the statutory supplantation restriction that are too insignificant in aggregate to affect the constitutional inquiry. Indeed, even Justice Souter concedes in this respect that "[t]he record is sparse." Post, at 911, n. 28. * * * Given the important similarities between the Chapter 2 program here and the Title I program at issue in respondents' Establishment Clause challenge must fail. As in the Chapter 2 aid is allocated on the basis of neutral, secular criteria; the aid must be supplementary and cannot supplant non-Federal funds; no Chapter 2 funds ever reach the coffers of religious schools; the aid must be secular; any evidence of actual diversion is de minimis; and the program includes adequate safeguards. Regardless of whether these factors are constitutional requirements, they are surely sufficient to find that the program at issue |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | Section 406(a) of the Employee Retirement Income Security Act of 1974 (), bars a fiduciary of an employee benefit plan from causing the plan to engage in certain transactions with a "party in interest." 29 U.S. C. 1106(a). Section 502(a)(3) authorizes a "participant, beneficiary, or fiduciary" of a plan to bring a civil action to obtain "appropriate equitable relief" to redress violations of Title I. 29 U.S. C. 1132(a)(3). The question is whether that authorization extends to a suit against a nonfiduciary "party in interest" to a transaction barred by 406(a). We hold that it does. I Responding to deficiencies in prior law regulating transactions by plan fiduciaries, Congress enacted 406(a)(1), which supplements the fiduciary's general duty of *242 loyalty to the plan's beneficiaries, 404(a), by categorically barring certain transactions deemed "likely to injure the pension plan," Section 406(a)(1) provides, among other things, that "[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction constitutes a direct or indirect sale or exchange of any property between the plan and a party in interest." 29 U.S. C. 1106(a)(1)(A). Congress defined "party in interest" to encompass those entities that a fiduciary might be inclined to favor at the expense of the plan's beneficiaries. See 3(14), 29 U.S. C. 1002(14). Section 406's prohibitions are subject to both statutory and regulatory exemptions. See 408(a), (b), 29 U.S. C. 1108(a), (b). This case comes to us on the assumption that an pension plan (the Ameritech Pension Trust (APT)) and a party in interest (respondent Salomon Smith Barney (Salomon)) entered into a transaction prohibited by 406(a) and not exempted by 408.[1] APT provides pension benefits to employees and retirees of Ameritech Corporation and its subsidiaries and affiliates. Salomon, during the late 1980's, provided broker-dealer services to APT, executing nondiscretionary equity trades at the direction of APT's fiduciaries, thus qualifying itself (we assume) as a "party in interest." See 3(14)(B), 29 U.S. C. 1002(14)(B) (defining "party in interest" as "a person providing services to [an employee benefit] plan"). During the same period, Salomon sold interests in several motel properties to APT for nearly $21 million. APT's purchase of the motel interests was directed by National Investment Services of America (NISA), an investment manager to which Ameritech had delegated investment *243 discretion over a portion of the plan's assets, and hence a fiduciary of APT, see 3(21)(A)(i), 29 U.S. C. 1002(21)(A)(i). This litigation arose when APT's fiduciariesits trustee, petitioner Harris Trust and Savings Bank, and its administrator, petitioner Ameritech Corporationdiscovered that the |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | Savings Bank, and its administrator, petitioner Ameritech Corporationdiscovered that the motel interests were nearly worthless. Petitioners maintain that the interests had been worthless all along; Salomon asserts, to the contrary, that the interests declined in value due to a downturn in the motel industry. Whatever the true cause, petitioners sued Salomon in 1992 under 502(a)(3), which authorizes a "participant, beneficiary, or fiduciary" to bring a civil action "to enjoin any act or practice which violates any provision of [ Title I] or to obtain other appropriate equitable relief to redress such violations." 29 U.S. C. 1132(a)(3). Petitioners claimed, among other things, that NISA, as plan fiduciary, had caused the plan to engage in a per se prohibited transaction under 406(a) in purchasing the motel interests from Salomon, and that Salomon was liable on account of its participation in the transaction as a nonfiduciary party in interest. Specifically, petitioners pointed to 406(a)(1)(A), 29 U.S. C. 1106(a)(1)(A), which prohibits a "sale or exchange of any property between the plan and a party in interest," and 406(a)(1)(D), 29 U.S. C. 1106(a)(1)(D), which prohibits a "transfer to a party in interest of any assets of the plan." Petitioners sought rescission of the transaction, restitution from Salomon of the purchase price with interest, and disgorgement of Salomon's profits made from use of the plan assets transferred to it. App. 41. Salomon moved for summary judgment, arguing that 502(a)(3), when used to remedy a transaction prohibited by 406(a), authorizes a suit only against the party expressly constrained by 406(a)the fiduciary who caused the plan to enter the transactionand not against the counterparty to the transaction. See 406(a)(1), 29 U.S. C. 1106(a)(1) ("A *244 fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction" ). The District Court denied the motion, holding that does provide a private cause of action against nonfiduciaries who participate in a prohibited transaction, but granted Salomon's subsequent motion for certification of the issue for interlocutory appeal under 28 U.S. C. 1292(b). The Court of Appeals for the Seventh Circuit reversed. It began with the observation that 406(a), by its terms and like several of its neighboring provisions, e. g., 404, governs only the conduct of fiduciaries, not of counterparties or other nonfiduciaries. See The court next posited that "where does not expressly impose a duty, there can be no cause of action," ib relying upon dictum in our decision in that 502(a)(3) does not provide a private cause of action against a nonfiduciary for knowing participation in |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | cause of action against a nonfiduciary for knowing participation in a fiduciary's breach of duty. The Seventh Circuit saw no distinction between the situation (involving 404) and the instant case (involving 406), explaining that neither section expressly imposes a duty on nonfiduciaries. Finally, in the Seventh Circuit's view, Congress' decision to authorize the Secretary of Labor to impose a civil penalty on a nonfiduciary "party in interest" to a 406 transaction, see 502(i), simply confirms that Congress deliberately selected one enforcement tool (a civil penalty imposed by the Secretary) instead of another (a civil action under 502(a)(3)). Accordingly, the Seventh Circuit held that a nonfiduciary cannot be liable under 502(a)(3) for participating in a 406 transaction and entered summary judgment in favor of Salomon. In doing so, the Seventh Circuit departed from the uniform position of the Courts of Appeals that 502(a)(3)and the similarly worded 502(a)(5), which authorizes civil actions by the Secretarydoes authorize a civil action against a nonfiduciary *245 who participates in a transaction prohibited by 406(a)(1). See ( 502(a)(3)); ; ( 502(a)(5)), cert. denied, ; (CA10) cert. denied, ; We granted certiorari, and now reverse. II We agree with the Seventh Circuit's and Salomon's interpretation of 406(a). They rightly note that 406(a) imposes a duty only on the fiduciary that causes the plan to engage in the transaction. See 406(a)(1), 29 U.S. C. 1106(a)(1) ("A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction" ). We reject, however, the Seventh Circuit's and Salomon's conclusion that, absent a substantive provision of expressly imposing a duty upon a nonfiduciary party in interest, the nonfiduciary party may not be held liable under 502(a)(3), one of 's remedial provisions. Petitioners contend, and we agree, that 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether 's substantive provisions impose a specific duty on the party being sued.[2] *246 Section 502 provides: "(a) "A civil action may be brought "(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan." 29 U.S. C. 1132(a)(3). This language, to be sure, "does not authorize `appropriate equitable relief' at large, but only `appropriate equitable relief' for the purpose of `redress[ing any] violations or enforc[ing] any provisions' of |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | purpose of `redress[ing any] violations or enforc[ing] any provisions' of or an plan." But 502(a)(3) admits of no limit (aside from the "appropriate equitable relief" caveat, which we address infra) on the universe of possible defendants. Indeed, 502(a)(3) makes no mention at all of which parties may be proper defendantsthe focus, instead, is on redressing the "act or practice which violates any provision of [ Title I]." 29 U.S. C. 1132(a)(3) Other provisions of by contrast, do expressly address who may be a defendant. See, e. g., 409(a), 29 U.S. C. 1109(a) (stating that "[a]ny person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally *247 liable" ); 502(l), 29 U.S. C. 1132(l) (authorizing imposition of civil penalties only against a "fiduciary" who violates part 4 of Title I or "any other person" who knowingly participates in such a violation). And 502(a) itself demonstrates Congress' care in delineating the universe of plaintiffs who may bring certain civil actions. See, e. g., 502(a)(3), 29 U.S. C. 1132(a)(3) ("A civil action may be brought by a participant, beneficiary, or fiduciary" ); 502(a)(5), 29 U.S. C. 1132(a)(5) ("A civil action may be brought by the Secretary" ). In light of Congress' precision in these respects, we would ordinarily assume that Congress' failure to specify proper defendants in 502(a)(3) was intentional. See But 's "`comprehensive and reticulated' " scheme warrants a cautious approach to inferring remedies not expressly authorized by the text, Massachusetts Mut. Life Ins. especially given the alternative and intuitively appealing interpretation, urged by Salomon, that 502(a)(3) authorizes suits only against defendants upon whom a duty is imposed by 's substantive provisions. In this case, however, 502(l) resolves the matterit compels the conclusion that defendant status under 502(a)(3) may arise from duties imposed by 502(a)(3) itself, and hence does not turn on whether the defendant is expressly subject to a duty under one of 's substantive provisions. Section 502(l) provides in relevant part: "(1) In the case of "(A) any breach of fiduciary responsibility under (or other violation of) part 4 of this subtitle by a fiduciary, or "(B) any knowing participation in such a breach or violation by any other person, *248 "the Secretary shall assess a civil penalty against such fiduciary or other person in an amount equal to 20 percent of the applicable recovery amount. "(2) For purposes of paragraph (1), the term `applicable recovery amount' means any amount which is recovered from a fiduciary or other person with respect to |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | recovered from a fiduciary or other person with respect to a breach or violation described in paragraph (1) "(A) pursuant to any settlement agreement with the Secretary, or "(B) ordered by a court to be paid by such fiduciary or other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5) of this section." 29 U.S. C. 1132(l)(1)(2). Section 502(l) contemplates civil penalty actions by the Secretary against two classes of defendants, fiduciaries and "other person[s]." The latter class concerns us here. Paraphrasing, the Secretary shall assess a civil penalty against an "other person" who "knowing[ly] participat[es] in" "any violation of part 4 by a fiduciary." And the amount of such penalty is defined by reference to the amount "ordered by a court to be paid by such other person to a plan or its participants and beneficiaries in a judicial proceeding instituted by the Secretary under subsection (a)(2) or (a)(5). " The plain implication is that the Secretary may bring a civil action under 502(a)(5) against an "other person" who "knowing[ly] participat[es]" in a fiduciary's violation; otherwise, there could be no "applicable recovery amount" from which to determine the amount of the civil penalty to be imposed on the "other person." This 502(a)(5) action is available notwithstanding the absence of any provision explicitly imposing a duty upon an "other person" not to engage in such "knowing participation." And if the Secretary may bring suit against an "other person" under subsection (a)(5), it follows that a participant, beneficiary, or fiduciary *249 may bring suit against an "other person" under the similarly worded subsection (a)(3). See Section 502(l), therefore, refutes the notion that 502(a)(3) (or (a)(5)) liability hinges on whether the particular defendant labors under a duty expressly imposed by the substantive provisions of Title I. Salomon invokes as articulating an alternative, more restrictive reading of 502(l) that does not support the inference we have drawn. In we suggested, in dictum, that the "other person[s]" in 502(l) might be limited to the "cofiduciaries" made expressly liable under 405(a) for knowingly participating in another fiduciary's breach of fiduciary responsibility. So read, 502(l) would be consistent with the view that liability under 502(a)(3) depends entirely on whether the particular defendant violated a duty expressly imposed by the substantive provisions of Title I. But the dictum not discuss understandably, since we were merely flagging the issue, see 260-261that defines the term "person" without regard to status as a cofiduciary (or, for that matter, as a fiduciary or party in interest), see 3(9), |
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