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Justice White | 1,978 | 6 | dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | funds for nonbusiness causes he finds unconscionable through the channels provided by "corporate democracy" and purports to be mystified as to "why the dissenting shareholder's wishes are entitled to such greater solicitude in this context than in many others where equally important and controversial corporate decisions are made by management or by a predetermined percentage of the shareholders." Ante, at 794, and n. 34. t should be obvious that the alternative means upon the adequacy of which the majority is willing to predicate a constitutional adjudication is no more able to satisfy the State's interest than a ruling in Street and Abood leaving aggrieved employees to the remedies provided by union democracy would have satisfied the demands of the First Amendment. The interest which the State wishes to protect here is identical to that which the Court has previously held to be protected by *816 the First Amendment: the right to adhere to one's own beliefs and to refuse to support the dissemination of the personal and political views of others, regardless of how large a majority they may compose. n most contexts, of course, the views of the dissenting shareholder have little, if any, First Amendment significance. By purchasing interests in corporations shareholders accept the fact that corporations are going to make decisions concerning matters such as advertising integrally related to their business operations according to the procedures set in their charters and bylaws. Otherwise, corporations could not function. First Amendment concerns of stockholders are directly implicated, however, when a corporation chooses to use its privileged status to finance ideological crusades which are unconnected with the corporate business or property and which some shareholders might not wish to support. Once again, we are provided no explanation whatsoever by the Court as to why the State's interest is of less constitutional weight than that of corporations to participate financially in the electoral process and as to why the balance between two First Amendment interests should be struck by this Court. Moreover, the Court offers no reason whatsoever for constitutionally imposing its choice of means to achieve a legitimate goal and invalidating those chosen by the State.[13] *817 Abood cannot be distinguished, as the present Court attempts to do, ante, at 794-795, n. 34, on the ground that the Court there did not constitutionally prohibit expenditures by unions for the election of political candidates or for ideological causes so long as they are financed from assessments paid by employees who are not coerced into doing so against their will. n the first place, the Court did not purport to hold that |
Justice White | 1,978 | 6 | dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | first place, the Court did not purport to hold that all political or ideological expenditures not constitutionally prohibited were constitutionally protected. A State might well conclude that the most and perhaps, in its view, the only effective way of preventing unions or corporations from using funds contributed by differing members or shareholders to support political causes having no connection with the business of the organization is to absolutely ban such expenditures. *818 Secondly, unlike the remedies available to the Court in Street and Abood which required unions to refund the exacted funds in the proportion that union political expenditures with which a member disagreed bore to total union expenditures, no such alternative is readily available which would enable a corporate shareholder to maintain his investment in a corporation without supporting its electoral or political ventures other than prohibiting corporations from participating in such activities. There is no apparent way of segregating one shareholder's ownership interest in a corporation from another's. t is no answer to respond, as the Court does, that the dissenting "shareholder is free to withdraw his investment at any time and for any reason." Ante, at 794 n. 34. The employees in Street and Abood were also free to seek other jobs where they would not be compelled to finance causes with which they disagreed, but we held in Abood that First Amendment rights could not be so burdened. Clearly the State has a strong interest in assuring that its citizens are not forced to choose between supporting the propagation of views with which they disagree and passing up investment opportunities. Finally, even if corporations developed an effective mechanism for rebating to shareholders that portion of their investment used to finance political activities with which they disagreed, a State may still choose to restrict corporate political activity irrelevant to business functions on the grounds that many investors would be deterred from investing in corporations because of a wish not to associate with corporations propagating certain views. The State has an interest not only in enabling individuals to exercise freedom of conscience without penalty but also in eliminating the danger that investment decisions will be significantly influenced by the ideological views of corporations. While the latter concern may not be of the same constitutional magnitude as the former, it is far from trivial. Corporations, as previously are created by the State as a means of furthering the public welfare. One of *819 their functions is to determine, by their success in obtaining funds, the uses to which society's resources are to be put. A State may legitimately conclude |
Justice White | 1,978 | 6 | dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | resources are to be put. A State may legitimately conclude that corporations would not serve as economically efficient vehicles for such decisions if the investment preferences of the public were significantly affected by their ideological or political activities. t has long been recognized that such pursuits are not the proper business of corporations. The common law was generally interpreted as prohibiting corporate political participation.[14] ndeed, the Securities and Exchange Commission's rules permit corporations to refuse to submit for shareholder vote any proposal which concerns a general economic, political, racial, religious, or social cause that is not significantly related to the business of the corporation or is not within its control.[15] The necessity of prohibiting corporate political expenditures in order to prevent the use of corporate funds for purposes with which shareholders may disagree is not a unique perception of Massachusetts. This Court has repeatedly recognized that one of the purposes of the Corrupt Practices Act was to prevent the use of corporate or union funds for political purposes without the consent of the shareholders or union members and to protect minority interests from domination by corporate or union leadership.[16] Although the Court has never, as adjudicated the constitutionality of the Act, it has consistently treated this objective with deference. ndeed, in United the Court construed a previous version of the Corrupt Practices Act so as to *820 conform its prohibitions to those activities to which the Court believed union members or shareholders might object. After noting that if the statute "were construed to prohibit the publication, by corporations and unions in the regular course of conducting their affairs, of periodicals advising their members, stockholders or customers of danger or advantage to their interests from the adoption of measures, or the election to office of men espousing such measures, the gravest doubt would arise in our minds as to its constitutionality," the Court held that the statute did not prohibit such in-house publications. t was persuaded that the purposes of the Act would not be impeded by such an interpretation, because it "is unduly stretching language to say that the members or stockholders are unwilling participants in such normal organizational activities, including the advocacy thereby of governmental policies affecting their interests, and the support thereby of candidates thought to be favorable to their interests." The Court today purports not to foreclose the possibility that the Corrupt Practices Act and state statutes which prohibit corporate expenditures only in the context of elections to public office may survive constitutional scrutiny because of the interest in preventing the corruption of elected representatives through the |
Justice White | 1,978 | 6 | dissenting | First Nat. Bank of Boston v. Bellotti | https://www.courtlistener.com/opinion/109836/first-nat-bank-of-boston-v-bellotti/ | interest in preventing the corruption of elected representatives through the creation of political debts. Ante, at 788 n. 26. t does not choose to explain or even suggest, however, why the state interests which it so cursorily dismisses are less worthy than the interest in preventing corruption or the appearance of it. More importantly, the analytical framework employed by the Court clearly raises great doubt about the Corrupt Practices Act. The question in the present case, as viewed by the Court, "is whether the corporate identity of the speaker deprives this proposed speech of what otherwise would be its clear entitlement to protection," ante, at 778, which it answers in the negative. But the Court has previously held in that the interest in preventing corruption is insufficient to justify restrictions upon individual expenditures *821 relative to candidates for political office. f the corporate identity of the speaker makes no difference, all the Court has done is to reserve the formal interment of the Corrupt Practices Act and similar state statutes for another day. As understand the view that has now become part of First Amendment jurisprudence, the use of corporate funds, even for causes irrelevant to the corporation's business, may be no more limited than that of individual funds. Hence, corporate contributions to and expenditures on behalf of political candidates may be no more limited than those of individuals. ndividual contributions under federal law are limited but not entirely forbidden, and under expenditures may not constitutionally be limited at all. Most state corrupt practices Acts, like the federal Act, forbid any contributions or expenditures by corporations to or for a political candidate. n my view, the interests in protecting a system of freedom of expression, set are sufficient to justify any incremental curtailment in the volume of expression which the Massachusetts statute might produce. would hold that apart from corporate activities, such as those in Part and exempted from regulation in which are integrally related to corporate business operations, a State may prohibit corporate expenditures for political or ideological purposes. There can be no doubt that corporate expenditures in connection with referenda immaterial to corporate business affairs fall clearly into the category of corporate activities which may be barred. The electoral process, of course, is the essence of our democracy. t is an arena in which the public interest in preventing corporate domination and the coerced support by shareholders of causes with which they disagree is at its strongest and any claim that corporate expenditures are integral to the economic functioning of the corporation is at its weakest.[17] *822 would |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | Diverse categories of employees staff automobile dealer ships. Of employees so engaged, Congress explicitly ex empted from the Fair Labor Standards Act hours re quirements only three occupations: salesmen, partsmen, and mechanics. The Court today approves the exemption of a fourth occupation: automobile service advisors. In accord with the judgment of the Court of Appeals for the Ninth Circuit, I would not enlarge the exemption to in clude service advisors or other occupations outside Con gress’ enumeration. Respondents are service advisors at a Mercedes-Benz automobile dealership in the Los Angeles area. They work regular hours, 7 a.m. to 6 p.m., at least five days per week, on the dealership premises. App. 54. Their weekly mini mum is 55 hours. Maximum hours, for workers covered by the Fair Labor Standards Act (FLSA or Act), are 40 per week. 29 U.S. C. In this action, respondents seek time-and-a-half compensation for hours worked beyond the 40 per week maximum prescribed by the FLSA. The question presented: Are service advisors exempt from receipt of overtime compensation under 29 U.S. C. That exemption covers “any salesman, 2 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting partsman, or mechanic primarily engaged in selling or servicing automobiles.” Service advisors, such as respond ents, neither sell automobiles nor service (i.e., repair or maintain) vehicles. Rather, they “meet and greet [car] owners”; “solicit and sugges[t]” repair services “to remedy the [owner’s] complaints”; “solicit and suggest supple mental [vehicle] service[s]”; and provide owners with cost estimates. App. 55. Because service advisors neither sell nor repair automobiles, they should remain outside the exemption and within the Act’s coverage. I In 1961, Congress exempted all automobile-dealership employees from the Act’s overtime-pay requirements. See Fair Labor Standards Amendments of 1961, 75 Stat. 73.1 Five years later, in 1966, Congress confined the dealership exemption to three categories of employees: automobile salesmen, mechanics, and partsmen. See Fair Labor Standards Amendments of 1966, At the time, it was well understood that mechanics per form “preventive maintenance” and “repairs,” Dept. of Labor, Occupational Outlook Handbook 477 (1966–1967 ed.) (Handbook), while partsmen requisition parts, “suppl[y] [them] to mechanics,” and, at times, have “mechanical responsibilities in repairing parts,” Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 30; see Handbook, –313 (partsmen may “measure parts for inter changeability,” test parts for “defect[s],” and “repair —————— 1 The exemption further extended to all employees of establishments selling “trucks” and “farm implements.” Fair Labor Standards Amendments of 1961, When Congress later narrowed the provision’s scope for automobile-dealership employees, it similarly diminished the exemption’s application to workers at |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | employees, it similarly diminished the exemption’s application to workers at truck and farm- implement dealerships. See, e.g., Fair Labor Standards Amendments of 1966, Cite as: 584 U. S. (2018) 3 GINSBURG, J., dissenting parts”). Congress did not exempt numerous other catego ries of dealership employees, among them, automobile painters, upholsterers, bookkeeping workers, cashiers, janitors, purchasing agents, shipping and receiving clerks, and, most relevant here, service advisors. These positions and their duties were well known at the time, as docu mented in U. S. Government catalogs of American jobs. See Handbook, at XIII, XV, XVI (table of contents); Brief for International Association of Machinists and Aerospace Workers, AFL–CIO, as Amicus Curiae 34 (noting “more than twenty distinct [job] classifications” in the service department alone). “Where Congress explicitly enumerates certain excep tions additional exceptions are not to be implied, in the absence of evidence of a contrary legislative intent.” TRW (internal quotation marks omitted). The Court thus has no warrant to add to the three explicitly exempt categories (salesmen, partsmen, and mechanics) a fourth (service advisors) for which the Legislature did not provide. The reach of to day’s ruling is uncertain, troublingly so: By expansively reading the exemption to encompass all salesmen, parts- men, and mechanics who are “integral to the servicing process,” ante, at 6, the Court risks restoring much of what Congress intended the 1966 amendment to termi nate, i.e., the blanket exemption of all dealership employ ees from overtime-pay requirements. II Had the exemption covered “any sales man or mechanic primarily engaged in selling or servicing automobiles,” there could be no argument that service advisors fit within it. Only “salesmen” primarily engaged in “selling” automobiles and “mechanics” primarily en gaged in “servicing” them would fall outside the Act’s coverage. Service advisors, defined as “salesmen primarily 4 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting engaged in the selling of services,” Encino Motorcars, LLC v. Navarro, 579 U. S. (2016) (THOMAS, J., dissent ing) (slip op., ) (emphasis added), plainly do not belong in either category. Moreover, even if the exemption were read to reach “salesmen” “primarily engaged in servicing automobiles,” not just selling them, service advisors would not be exempt. The ordinary meaning of “servicing” is “the action of maintaining or repairing a motor vehicle.” Ante, at 6 (quoting 15 Oxford English Dictionary 39 (2d ed. 1989)). As described above, see service advi sors neither maintain nor repair automobiles.2 Petitioner stakes its case on Congress’ addition of the “partsman” job to the exemption. See Reply Brief 6–10. That inclusion, petitioner urges, has a vacuum effect: It draws into the |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | petitioner urges, has a vacuum effect: It draws into the exemption job categories other than the three for which Congress provided, in particular, service advisors. Because partsmen, like service advisors, neither “sell” nor “service” automobiles in the conventional sense, petitioner reasons, Congress must have intended the word “service” to mean something broader than repair and maintenance. To begin with, petitioner’s premise is flawed. Unlike service advisors, partsmen “ ‘get their hands dirty’ by ‘working as a mechanic’s right-hand man or woman.’ ” Encino Motorcars, 579 U. S., at n. 1 (GINSBURG, J., concurring) (slip op., at 1, n. 1) (quoting Brief for Respond ents in No. 15–415, p. 11; alterations omitted); see —————— 2 Service advisors do not maintain or repair motor vehicles even if, as the Court concludes, they are “integral to the servicing process.” Ante, at 6. The Ninth Circuit provided an apt analogy: “[A] receptionist- scheduler at a dental office fields calls from patients, matching their needs (e.g., a broken tooth or jaw pain) with the appropriate provider, appointment time, and length of anticipated service. That work is integral to a patient’s obtaining dental services, but we would not say that the receptionist-scheduler is ‘primarily engaged in’ cleaning teeth or installing crowns.” Cite as: 584 U. S. (2018) 5 GINSBURG, J., dissenting –3 (describing duties of partsmen). As the Solicitor General put it last time this case was before the Court, a mechanic “might be able to obtain the parts to complete a repair without the real-time assistance of a partsman by his side.” Brief for United States as Amicus Curiae in No. 15–415, p. 23. But dividing the “key [repair] tasks between two individuals” only “reinforces” “that both the mechanic and the partsman are involved in repairing (‘servicing’) the vehicle.” Service advisors, in con trast, “sell services [to customers] for their vehicles,” Encino Motorcars, 579 U. S., at (slip op., ) (empha sis added)—services that are later performed by mechan ics and partsmen. Adding partsmen to the exemption, moreover, would be an exceptionally odd way for Congress to have indicated that “servicing” should be given a meaning deviating from its ordinary usage. There is a more straightforward ex planation for Congress’ inclusion of partsmen alongside salesmen and mechanics: Common features of the three enumerated jobs make them unsuitable for overtime pay. Both salesmen and mechanics work irregular hours, including nights and weekends, not uncommonly offsite, rendering time worked not easily tracked.3 As noted in the 1966 Senate floor debate, salesmen “go out at unusual hours, trying to earn commissions.” 112 Cong. Rec. 20504 —————— 3 In |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | to earn commissions.” 112 Cong. Rec. 20504 —————— 3 In addition to practical difficulties in calculating hours, a core pur pose of overtime may not be served when employees’ hours regularly fluctuate. Enacted in the midst of the Great Depression, the FLSA overtime rules encourage employers to hire more individuals who work 40-hour weeks, rather than maintaining a staff of fewer employees who consistently work longer hours. See Overnight Motor Transp. Co. v. Missel, (overtime rules apply “financial pressure” on employers to “spread employment”); 7 D. VanDeusen, Labor and Employment Law (2018). But if a position’s working hours routinely ebb and flow, while averaging 40 each week, then it does not make sense to encourage employers to hire more workers for that position. 6 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting (1966) See also (remarks of Sen. Yarborough) (“[T]he salesman [can] sell an Oldsmobile, a Pontiac, or a Buick all day long and all night. He is not under any overtime.”). Mechanics’ work may involve similar “difficult[ies] [in] keeping regular hours.” For example, mechanics may be required to “answe[r] calls in rural areas,” ib or to “go out on the field where there is a harvesting of sugarbeets,” at 20505 (remarks of Sen. Clark).4 And, like salesmen, me chanics may be “subject to substantial seasonal variations in business.” 0502 Congress added “partsman” to the exemption because it believed that job, too, entailed irregular hours. See This is “especially true,” several Senators emphasized, “in the farm equipment business where farmers, during plant ing, cultivating and harvesting seasons, may call on their dealers for parts at any time during the day or evening and on weekends.” See also 0503 In Senator Bayh’s experience, for instance, a mechanic who “could not find [a] necessary part” after hours might “call the parts- man, get him out of bed, and get him to come down to the store.” 0504. See also 0503 (remarks of Sen. Hruska) (“Are we going to say to the farmer who needs a part on Sunday: You cannot get a spark plug because the partsman is not exempt, but you can have machinery repaired by a mechanic who is exempt[?]”). Although some Senators opposed adding partsmen to the exemption because, as they understood the job’s demands, partsmen did not work irregular hours, e.g., 0505 (remarks of Sen. Clark), the crux of the debate under scores the exemption’s rationale. —————— 4 Recall that the exemption extends to salesmen, mechanics, and partsmen at dealerships selling farm implements and trucks, not just automobiles. See n. 1. Cite as: 584 U. S. (2018) 7 |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | See n. 1. Cite as: 584 U. S. (2018) 7 GINSBURG, J., dissenting That rationale has no application here. Unlike sales men, partsmen, and mechanics, service advisors “wor[k] ordinary, fixed schedules on-site.” Brief for Respondents 47 (citing Handbook, at 316). Respondents, for instance, work regular 11-hour shifts, at all times of the year, for a weekly minimum of 55 hours. See App. 54. Service advi sors thus do not implicate the concerns underlying the exemption. Indeed, they are precisely the type of workers Congress intended the FLSA to shield “from the evil of overwork,” 450 U.S. 7, (internal quotation marks omitted). I note, furthermore, that limiting the exemption to the three delineated jobs—salesman, partsman, and mechanic— does not leave the phrase “primarily engaged in selling or servicing,” without utility. Congress included that language to ensure that only employees who actually perform the tasks commonly associated with the enumerated positions would be covered. Otherwise, for example, a worker who acts as a “salesman” in name only could lose the FLSA’s protections merely because of the formal title listed on the employer’s payroll records. See WL 51279, (“[An employee’s] title alone is not dispositive of whether he meets the exemption.”). Thus, by partsmen “primarily engaged in servicing automobiles,” Congress meant nothing more than parts- men primarily engaged in the ordinary duties of a parts- man, i.e., requisitioning, supplying, and repairing parts. See –3, 4–5. The inclusion of “partsman” there fore should not result in the removal of service advisors from the Act’s protections. III Petitioner contends that “affirming the decision below would disrupt decades of settled expectations” while ex 8 ENCINO MOTORCARS, LLC v. NAVARRO GINSBURG, J., dissenting posing “employers to substantial retroactive liability.” Brief for Petitioner 51. “[M]any dealerships,” petitioner urges, “have offered compensation packages based primar ily on sales commissions,” in reliance on court decisions and agency guidance ranking service advisors as exempt. at 51–52. Respondents here, for instance, are com pensated on a “pure commission basis.” App. 55. Award ing retroactive overtime pay to employees who were “fo cused on earning commissions,” not “working a set number of hours,” petitioner argues, would yield an “unjustified windfal[l].” Brief for Petitioner 53. Petitioner’s concerns are doubly overstated. As the Court previously acknowledged, see Encino Motorcars, 579 U. S., at (slip op., at 11), the FLSA provides an affirm ative defense that explicitly protects regulated parties from retroactive liability for actions taken in good-faith reliance on superseded agency guidance. See 29 U.S. C. Given the Department of Labor’s longstanding view that service advisors fit within the exemption, see ante, the reliance defense |
Justice Ginsburg | 2,018 | 5 | dissenting | Encino Motorcars, LLC v. Navarro | https://www.courtlistener.com/opinion/4482893/encino-motorcars-llc-v-navarro/ | advisors fit within the exemption, see ante, the reliance defense would surely shield employers from retroactive liability were the Court to construe the exemption properly. Congress, moreover, has spoken directly to the treat ment of commission-based workers. The FLSA exempts from its overtime directives any employee of a “retail or service establishment” who receives more than half of his or her pay on commission, so long as the employee’s “regu lar rate of pay” is more than 1½ times the minimum wage. Thus, even without the exemption, many service advisors compensated on commission would remain ineligible for overtime remuneration.5 —————— 5 The current FLSA minimum wage, for example, is $7.25 per hour. See 29 U.S. C. The only commission-based service advisors at retail or service establishments who are not already exempt under who thus remain eligible for overtime—are those earning less than $10.88 per hour. Providing such workers time-and-a Cite as: 584 U. S. (2018) 9 GINSBURG, J., dissenting In crafting the commission-pay exemption, Congress struck a deliberate balance: It exempted higher paid com missioned employees, perhaps in recognition of their potentially irregular hours, see ; cf. at 5–7, but it maintained protection for lower paid employees, to vindicate the Act’s “principal purpose” of shielding “workers from substandard wages and oppres sive working hours,” 450 U.S., at6 By stretching the exemption to encompass even the lowest income service advisors compensated on commission, the Court upsets Congress’ careful balance, while stripping away protection for the most vulnerable workers in this occupation. * * * This Court once recognized that the “particularity” of FLSA exemptions “preclude[s] their enlargement by impli cation.” Addison v. Holly Hill Fruit Products, Inc., 322 U.S. 7, 617 (1944). Employees outside the Act’s “nar row and specific” exemptions, the Court affirmed, “remain within the Act.”7 The Court today, in adding an —————— half pay, as Congress directed, would confer, at most, $5.44 per over time hour. 6 Congress struck a similar balance in 29 U.S. C. which ex empts employees whose duties “necessitate irregular hours of work,” but only if they receive specified minimum rates of pay. 7 This Court has long held that FLSA “exemptions are to be narrowly construed against the employers seeking to assert them and their application limited to those [cases] plainly and unmistakably within their terms and spirit.” 392 (19). This principle is a well-grounded application of the general rule that an “exception to a general statement of policy is usually read narrowly in order to preserve the primary operation of the provi sion.” (internal quotation marks omitted). In a single paragraph, the |
Justice Brennan | 1,980 | 13 | dissenting | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | The Court upholds the admission at trial of illegally seized evidence to impeach a defendant's testimony deliberately elicited by the Government under the cover of impeaching an accused who takes the stand in his own behalf. I dissent. Criminal defendants now told that prosecutors are licensed to insinuate otherwise inadmissible evidence under the guise of cross-examination no longer have the unfettered right to elect whether or not to testify in their own behalf. Not only is today's decision an unwarranted departure from prior controlling cases, but, regrettably, it is yet another element in the trend to depreciate the constitutional protections guaranteed the criminally accused. I The question before us is not of first impression. The identical issue was confronted in which determinedcontrary to the instant decisionthat it was constitutionally impermissible to admit evidence obtained in violation of the Fourth Amendment to rebut a defendant's response to a matter first raised during the Government's cross-examination. Subsequently, affirmed the introduction of unlawfully acquired evidence to impeach an accused's false assertions about previous conduct that had been offered during direct testimony. But Walder took pains to draw the distinction between its own holding and Agnello, noting that "the defendant [Walder] went beyond a mere denial of complicity in the crimes of which he was charged and made the sweeping *630 [and untrue] claim that he had never dealt in or possessed any narcotics." In "shar[p] contras[t]," in Agnello, "the Government tried to smuggle [the tainted evidence] in on cross-examination," and "elicit[ed] the expected denial." The Court's recent decisions have left Agnello undisturbed. allowed the government to use inadmissible uncounseled statements to impeach direct examination. So, too, reaffirmed Harris in the context of impeachment of the defendant's direct testimony. Significantly, neither decision intimated that Agnello had lost vitality, or that the distinction emphasized by Walder had been effaced. The Court's opinion attempts to discredit Agnello by casting a strawman as its holding, and then demolishing the pitiful scarecrow of its own creation. Specifically, the Court cites Agnello's quotation of language from Silverthorne Lumber that "illegally seized evidence `shall not be used at all,'" ante, at 624, and then refers to the subsequent decisions that indeed permit limited use of that evidence for impeachment. But the actual principle of Agnello, as discerned by Walder, is that the Government may not employ its power of cross-examination to predicate the admission of illegal evidence. In other words, impeachment by cross-examination aboutor introduction of suppressible evidence must be warranted by defendant's statements upon direct questioning. That principle is not at all inconsistent with later cases holding that the |
Justice Brennan | 1,980 | 13 | dissenting | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | not at all inconsistent with later cases holding that the defendant may not take advantage of evidentiary suppression to advance specific perjurious claims as part of his direct case. Nor is it correct to read Agnello as turning upon the tenuity of the link between the cross-examination involved there and the subject matter of the direct examination. Ante, at 625. The cross-examination about Agnello's previous connection with cocaine was reasonably related to his direct testimony that he lacked knowledge that the commodity he was transporting *631 was cocaine. -30. For "[t]he possession by Frank Agnello of the can of cocaine which was seized tended to show guilty knowledge and criminal intent on his part." Thus, the constitutional flaw found in Agnello was that the introduction of the tainted evidence had been prompted by statements of the accused first elicited upon cross-examination. And the case was so read in That decision specifically stated that a defendant "must be free to deny all the elements of the case against him without thereby giving leave to the Government to introduce by way of rebuttal evidence illegally secured by it, and therefore not available for its case in chief." Since as a matter of the law of evidence it would be perfectly permissible to cross-examine a defendant as to his denial of complicity in the crime, the quoted passage in Walder must be understood to impose a further condition before the prosecutor may refer to tainted evidencethat is, some particular direct testimony by the accused that relies upon "the Government's disability to challenge his credibility." In fact, the Court's current interpretation of Agnello and Walder simply trivializes those decisions by transforming their Fourth Amendment holdings into nothing more than a constitutional reflection of the common-law evidentiary rule of relevance. Finally, the rationale of and does not impel the decision at hand. The exclusionary rule exception established by Harris and may be fairly easily cabined by defense counsel's willingness to forgo certain areas of questioning. But the rule prescribed by the Court in this case passes control of the exception to the Government, since the prosecutor can lay the predicate for admitting otherwise suppressible evidence with his own questioning. To be sure, the Court requires that cross-examination be "proper"; however, traditional evidentiary principles accord parties fairly considerable latitude in cross-examining *632 opposing witnesses. See C. McCormick, Law of Evidence 21-24 (2d ed. 1972).[1] In practical terms, therefore, today's holding allows even the moderately talented prosecutor to "work in evidence on cross-examination [as it would] in its case in chief." To avoid this consequence, a defendant |
Justice Brennan | 1,980 | 13 | dissenting | United States v. Havens | https://www.courtlistener.com/opinion/110267/united-states-v-havens/ | its case in chief." To avoid this consequence, a defendant will be compelled to forgo testifying on his own behalf. "[T]he Constitution guarantees a defendant the fullest opportunity to meet the accusation against him." ; see Regrettably, surrender of that guarantee is the price the Court imposes for the defendant to claim his right not to be convicted on the basis of evidence obtained in violation of the Constitution.[2] I cannot agree that one constitutional privilege must be purchased at the expense of another. II The foregoing demonstration of its break with precedent provides a sufficient ground to condemn the present ruling unleashing, as it does, a hitherto relatively confined exception to the exclusionary rule. But I have a more fundamental difference with the Court's holding here, which culminates *633 the approach taken in and For this sequence of decisions undercuts the constitutional canon that convictions cannot be procured by governmental lawbreaking. See -232 ; -725 "`[I]t is monstrous that courts should aid or abet the lawbreaking police officer.'" quoting And what is especially troubling about these cases is the mode of analysis employed by the Court. In each, the judgment that tainted evidence may be admitted has been bottomed upon a determination that the "incremental furthering" of constitutional ends would not be sufficient to warrant exclusion of otherwise probative evidence. Ante, at 627; see ; Of course, "[t]here is no gainsaying that arriving at the truth is a fundamental goal of our legal system." Ante, at 626. But it is also undeniable that promotion of that objective must be consonant with other ends, in particular those enshrined in our Constitution. I still hope that the Court would not be prepared to acquiesce in torture or other police conduct that "shocks the conscience" even if it demonstrably advanced the factfinding process. At any rate, what is important is that the Constitution does not countenance police misbehavior, even in the pursuit of truth. The processes of our judicial system may not be fueled by the illegalities of government authorities. See, e. g., Nevertheless, the Court has undertaken to strike a "balance" between the "policies" it finds in the Bill of Rights and the "competing interes[t]" in accurate trial determinations. Ante, at 627. This balancing effort is completely freewheeling. Far from applying criteria intrinsic to the Fourth and Fifth Amendments, the Court resolves succeeding cases simply by declaring that so much exclusion is enough to deter *634 Police misconduct. Ante, at 626, 627; see ; ; cf. ; United v. Calandra, That hardly conforms to the disciplined analytical method described as "legal |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | The question before us is whether an assignee of a legal claim for money owed has standing to pursue that claim in federal court, even when the assignee has promised to remit the proceeds of the litigation to the assignor. Because history and precedent make clear that such an assignee has long been permitted to bring suit, we conclude that the assignee does have standing. *2534 I When a payphone customer makes a long-distance call with an access code or 1-800 number issued by a long-distance communications carrier, the customer pays the carrier (which completes that call), but not the payphone operator (which connects that call to the carrier in the first place). In these circumstances, the long-distance carrier is required to compensate the payphone operator for the customer's call. See ; The payphone operator can sue the long-distance carrier in court for any compensation that the carrier fails to pay for these "dial-around" calls. And many have done so. See Global Telecommunications, Because litigation is expensive, because the evidentiary demands of a single suit are often great, and because the resulting monetary recovery is often small, many payphone operators assign their dial-around claims to billing and collection firms called "aggregators" so that, in effect, these aggregators can bring suit on their behalf. See Brief for Respondents 3. Typically, an individual aggregator collects claims from different payphone operators; the aggregator promises to remit to the relevant payphone operator (i.e., the assignor of the claim) any dial-around compensation that is recovered; the aggregator then pursues the claims in court or through settlement negotiations; and the aggregator is paid a fee for this service. The present litigation involves a group of aggregators who have taken claim assignments from approximately 1,400 payphone operators. Each payphone operator signed an Assignment and Power of Attorney Agreement (Agreement) in which the payphone operator "assigns, transfers and sets over to [the aggregator] for purposes of collection all rights, title and interest of the [payphone operator] in the [payphone operator's] claims, demands or causes of action for `Dial-Around Compensation' due the [payphone operator] for periods since October 1, 1997." App. to Pet. for Cert. 4a. The Agreement also "appoints" the aggregator as the payphone operator's "true and lawful attorney-in-fact." The Agreement provides that the aggregator will litigate "in the [payphone operator's] interest." at a. And the Agreement further stipulates that the assignment of the claims "may not be revoked without the written consent of the [aggregator]." The aggregator and payphone operator then separately agreed that the aggregator would remit all proceeds to the payphone operator and that the |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | remit all proceeds to the payphone operator and that the payphone operator would pay the aggregator for its services (typically via a quarterly charge). After signing the agreements, the aggregators (respondents here) filed lawsuits in federal court seeking dial-around compensation from Sprint, AT & T, and other long-distance carriers (petitioners here). AT & T moved to dismiss the claims, arguing that the aggregators lack standing to sue under Article III of the Constitutio The District Court initially agreed to dismiss, APCC but changed its mind in light of a "long line of cases and legal treatises that recognize a well-established principle that assignees for collection purposes are entitled to bring suit where [as here] the assignments transfer absolute title to the claims." APCC After consolidating similar cases, a divided panel of the Court of Appeals for the District of Columbia Circuit agreed that *2535 the aggregators have standing to sue, but held that the relevant statutes do not create a private right of actio APCC This Court granted the aggregators' petition for certiorari on the latter statutory question, vacated the judgment, and remanded the case for reconsideration in light of Global APCC Services, 550 U.S. On remand, the Court of Appeals affirmed the orders of the District Court allowing the litigation to go forward. The long-distance carriers then asked us to consider the standing questio We granted certiorari, and we now affirm. II We begin with the most basic doctrinal principles: Article III, 2, of the Constitution restricts the federal "judicial Power" to the resolution of "s" and "Controversies." That case-or-controversy requirement is satisfied only where a plaintiff has standing. See, e.g., Daimler-Chrysler And in order to have Article III standing, a plaintiff must adequately establish: (1) an injury in fact (i.e., a "concrete and particularized" invasion of a "legally protected interest"); (2) causation (i.e., a "`fairly trace[able]'" connection between the alleged injury in fact and the alleged conduct of the defendant); and (3) redressability (i.e., it is "`likely'" and not "merely `speculative'" that the plaintiff's injury will be remedied by the relief plaintiff seeks in bringing suit). In some sense, the aggregators clearly meet these requirements. They base their suit upon a concrete and particularized "injury in fact," namely, the carriers' failure to pay dial-around compensatio The carriers "caused" that injury. And the litigation will "redress" that injury if the suits are successful, the long-distance carriers will pay what they owe. The long-distance carriers argue, however, that the aggregators lack standing because it was the payphone operators (who are not plaintiffs), not the aggregators (who are plaintiffs), who |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | are not plaintiffs), not the aggregators (who are plaintiffs), who were "injured in fact" and that it is the payphone operators, not the aggregators, whose injuries a legal victory will truly "redress": The aggregators, after all, will remit all litigation proceeds to the payphone operators. Brief for Petitioners 18. Thus, the question before us is whether, under these circumstances, an assignee has standing to pursue the assignor's claims for money owed. We have often said that history and tradition offer a meaningful guide to the types of cases that Article III empowers federal courts to consider. See, e.g., Steel ; GTE Sylvania, 4 U.S. 375, ; cf. (in crafting Article III, *2536 "the framers gave merely the outlines of what were to them the familiar operations of the English judicial system and its manifestations on this side of the ocean before the Union"). Consequently, we here have carefully examined how courts have historically treated suits by assignors and assignees. And we have discovered that history and precedent are clear on the question before us: Assignees of a claim, including assignees for collection, have long been permitted to bring suit. A clear historical answer at least demands reasons for change. We can find no such reasons here, and accordingly we conclude that the aggregators have standing. A We must begin with a minor concessio Prior to the 17th century, English law would not have authorized a suit like this one. But that is because, with only limited exceptions, English courts refused to recognize assignments at all. See, e.g., Lampet's 10 Rep. 46b, 48a, 77 Eng. Rep. 994, 997 (K.B.12) (stating that "no possibility, right, title, nor thing in action, shall be granted or assigned to strangers" (footnote omitted)); Penson & Highbed's 4 Leo. 99, 74 Eng. Rep. 756 (K.B. 1590) (refusing to recognize the right of an assignee of a right in contract); see also 9 J. Murray, on Contracts 47.3, p. 134 (noting that the King was excepted from the basic rule and could, as a result, always receive assignments). Courts then strictly adhered to the rule that a "chose in action" an interest in property not immediately reducible to possession (which, over time, came to include a financial interest such as a debt, a legal claim for money, or a contractual right) simply "could not be transferred to another person by the strict rules of the ancient common law." See 2 W. Commentaries *442. To permit transfer, the courts feared, would lead to the "multiplying of contentions and suits," Lampet's at 48a, 77 Eng. Rep., at 997, |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | and suits," Lampet's at 48a, 77 Eng. Rep., at 997, and would also promote "maintenance," i.e., officious intermeddling with litigation, see History of the Treatment of Choses in Action by the Common Law, 33 Harv. L.Rev. 997, 1006-1009 As the 17th century began, however, strict anti-assignment rules seemed inconsistent with growing commercial needs. And as English commerce and trade expanded, courts began to liberalize the rules that prevented assignments of choses in actio See 9 47.3, (suggesting that the "pragmatic necessities of trade" induced "evolution of the common law"); at 1-2 ; J. Ames, Lectures on Legal History 214 (1913) (noting that the "objection of maintenance" yielded to "the modern commercial spirit"). By the beginning of the 18th century, courts routinely recognized assignments of equitable (but not legal) interests in a chose in action: Courts of equity permitted suits by an assignee who had equitable (but not legal) title. And courts of law effectively allowed suits either by the assignee (who had equitable, but not legal title) or the assignor (who had legal, but not equitable title). To be more specific, courts of equity would simply permit an assignee with a beneficial interest in a chose in action to sue in his own name. They might, however, require the assignee to bring in the assignor as a party to the action so as to bind him to whatever judgment was reached. See, e.g., Warmstrey v. Tanfield, 1 Ch. Rep. 29, 21 Eng. Rep. 498 (1628-1629); Fashion v. Atwood, 2 Ch. Cas. 36, 22 Eng. Rep. 835 (1688); Peters v. Soame, *2537 2 Ver 428, 428-429, 23 Eng. Rep. 874 (Ch. 1701); Squib v. Wyn, 1 P. Wms. 378, 381, 24 Eng. Rep. 432, 433 (Ch. 1717); Lord Carteret v. Paschal, 3 P. Wms. 197, 199, 24 Eng. Rep. 8, 9 (Ch. 13); Row v. Dawson, 1 Ves. se 331, 332-333, 27 Eng. Rep. 4, 4-5 (Ch. 1749). See also M. Smith, Law of Assignment: The Creation and Transfer of Choses in Action 131 (by the beginning of the 18th century, "it became settled that equity would recognize the validity of the assignment of both debts and of other things regarded by the common law as choses in action"). Courts of law, meanwhile, would permit the assignee with an equitable interest to bring suit, but nonetheless required the assignee to obtain a "power of attorney" from the holder of the legal title, namely, the assignor, and further required the assignee to bring suit in the name of that assignor. See, e.g., Cook, Alienability of Choses in Action, 29 Harv. L.Rev. 816, |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | Cook, Alienability of Choses in Action, 29 Harv. L.Rev. 816, 822 (1) ("[C]ommon law lawyers were able, through the device of the `power of attorney'. to enable the assignee to obtain relief in common law proceedings by suing in the name of the assignor"); 29 R. Lord, Williston on Contracts 74.2, pp. 214-215 Compare, e.g., Barrow v. Gray, Cro. Eliz. 551, 78 Eng. Rep. 797 (Q.B.1653), and South & Marsh's 3 Leo. 234, 74 Eng. Rep. 654 (Exch.1686) (limiting the use of a power of attorney to cases in which the assignor owed the assignee a debt), with at 1 At the same time, courts of law would permit an assignor to sue even when he had transferred away his beneficial interest. And they permitted the assignor to sue in such circumstances precisely because the assignor retained legal title. See, e.g., Winch v. Keeley, 1 T.R. 9, 99 Eng. Rep. 1284 (K.B.1787) (allowing the bankrupt assignor of a chose in action to sue a debtor for the benefit of the assignee because the assignor possessed legal, though not equitable, title). The upshot is that by the time published volume II of his Commentaries in 1766, he could dismiss the "ancient common law" prohibition on assigning choses in action as a "nicety now disregarded." 2 B Legal practice in the United States largely mirrored that in England. In the latter half of the 18th century and throughout the 19th century, American courts regularly "exercised their powers in favor of the assignee," both at law and in equity. 9 on Contracts 47.3, at 137. See, e.g., (Pa.1785) (protecting assignee of a debt against a collusive settlement by the assignor); (ConSuper.1789) (assignee of a nonnegotiable note can bring suit "in the name of the original promisee or his administrator"); ; Riddle & Indeed, of the Judiciary Act of 1789 specifically authorized federal courts to take "cognizance of any suit to recover the contents of any promissory note or other chose in action in favour of an assignee" so long as federal jurisdiction would lie if the assignor himself had brought suit. *2538 Thus, in 1816, Justice Story, writing for a unanimous Court, summarized the practice in American courts as follows: "Courts of law, following in this respect the rules of equity, now take notice of assignments of choses in action, and exert themselves to afford them every support and protectio" He added that courts of equity have "disregarded the rigid strictness of the common law, and protected the rights of the assignee of choses in action," and noted that courts of common law |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | choses in action," and noted that courts of common law "now consider an assignment of a chose in action as substantially valid, only preserving, in certain cases, the form of an action commenced in the name of the assignor." It bears noting, however, that at the time of the founding (and in some States well before then) the law did permit the assignment of legal title to at least some choses in actio In such cases, the assignee could bring suit on the assigned claim in his own name, in a court of law. See, e.g., 3 Va. Stat. at Large 378, Ch. XXXIV (W. Hening ed. 1823) (reprinted 1969) (Act of Oct. 1705) (permitting any person to "assign or transfer any bond or bill for debt over to any other person" and providing that "the asignee or assignees, his and their executors and administrators by virtue of such assignment shall and may have lawful power to commence and prosecute any suit at law in his or their own name or names"); Act of May 28, 1715, Ch. XXVIII, Ge Laws of Pen 60 (J. Dunlop 2d ed. 1849) (permitting the assignment of "bonds, specialties, and notes" and authorizing "the person or persons, to whom the said bonds, specialties or notes, are assigned" to "commence and prosecute his, her, or their actions at law"); Patent Act of 1793, ch. 4, C By the 19th century, courts began to consider the specific question presented here: whether an assignee of a legal claim for money could sue when that assignee had promised to give all litigation proceeds back to the assignor. During that century American law at the state level became less formalistic through the merger of law and equity, through statutes more generously permitting an assignor to pass legal title to an assignee, and through the adoption of rules that permitted any "real party in interest" to bring suit. See 6A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1541, pp. -321 (2d ed.1990) (hereinafter Wright & Miller); see also 9 47.3, at 137. The courts recognized that pre-existing law permitted an assignor to bring suit on a claim even though the assignor retained nothing more than naked legal title. Since the law increasingly permitted the transfer of legal title to an assignee, courts agreed that assignor and assignee should be treated alike in this respect. And rather than abolish the assignor's well-established right to sue on the basis of naked legal title alone, many courts instead extended the same right to an assignee. See, e.g., Clark & |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | the same right to an assignee. See, e.g., Clark & The Real Party in Interest, Thus, during the 19th century, most state courts entertained suits virtually identical to the litigation before us: suits by individuals who were assignees for collection *2539 only, i.e., assignees who brought suit to collect money owed to their assignors but who promised to turn over to those assignors the proceeds secured through litigatio See, e.g., Webb & ; ; ; (holding that the assignee of a bond could bring suit, even though he lacked a beneficial interest in the bond, and adopting the rule that an assignee with legal title to an assigned claim can bring suit even where the assignee must "account to the assignor" for "a part of the proceeds" or "is to account for the whole proceeds" ); ; 1044, 10 ; (permitting suit by a party who was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"). See also Appendix, infra (collecting cases from numerous other States approving of suits by assignees for collection). Of course, the dissent rightly notes, some States during this period of time refused to recognize assignee-for-collection suits, or otherwise equivocated on the matter. See post, at 2555-2556. But so many States allowed these suits that by 1876, the distinguished procedure and equity scholar John Norton Pomeroy declared it "settled by a great preponderance of authority, although there is some conflict" that an assignee is "entitled to sue in his own name" whenever the assignment vests "legal title" in the assignee, and notwithstanding "any contemporaneous, collateral agreement by virtue of which he is to receive a part only of the proceeds or even is to thus account [to the assignor] for the whole proceeds." Remedies and Remedial Rights 132, p. 159 (internal quotation marks omitted and emphasis added). Other contemporary scholars reached the same basic conclusio See, e.g., P. Bliss, A Treatise upon the Law of Pleading 51, p. 69 (2d ed. 1887) (stating that "[m]ost of the courts have held that where negotiable paper has been indorsed, *2540 or other choses in action have been assigned, it does not concern the defendant for what purpose the transfer has been made" and giving examples of States permitting assignees to bring suit even where they |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | of States permitting assignees to bring suit even where they lacked a beneficial interest in the assigned claims (emphasis added)). See also Clark & Even Michael Ferguson's California Law Review Comment which the dissent cites as support for its argument about "the divergent practice" among the courts, post, at 2556 recognizes that "[a] majority of courts has held that an assignee for collection only is a real party in interest" entitled to bring suit. See Comment, The Real Party in Interest Rule Revitalized: Recognizing Defendant's Interest in the Determination of Proper Parties Plaintiff, 55 Cal. L.Rev. 12, 1475 (emphasis added); see also at 1476, 8 During this period, a number of federal courts similarly indicated approval of suits by assignees for collection only. See, e.g., (No. 1,769) (CC Ill. 1840) (stating that the plaintiff, the receiver of a bank, could bring suit in federal court to collect on a note owed to that bank if he sued as the bank's assignee, not its receiver, but ultimately holding that the plaintiff could not sue as an assignee because there was no diversity jurisdiction); (No. 10,589) (CC Mich. 1847) (affirming judgment for the plaintiff, the endorsee of a bill of exchange, on the ground that, as endorsee, he had the "legal right" to bring suit notwithstanding the fact that the proceeds of the litigation would be turned over to the endorser); (No. 9,940) (permitting the assignee of a claim for injury to a "float or barge" to bring suit when, "under the assignment," the assignor's creditors would benefit from the litigation); The Rupert City, (W.D.Wash.1914) (assignees of claims for collection only could bring suit in maritime law because "an assignment for collection vest[s] such an interest in [an] assignee as to entitle him to sue"). Even this Court long ago indicated that assignees for collection only can properly bring suit. For example, in the plaintiff sued to collect on a number of municipal bonds and coupons whose "legal title" had been vested in him but which were transferred to him "for collection only." The Court, in a unanimous decision, ultimately held that the federal courts could not hear his suit because the amount-in-controversy requirement of diversity jurisdiction would not have been satisfied if the bondholders and coupon holders had sued individually. See However, before reaching this holding, the Court expressly stated that the suit could properly be brought in federal court "if the only objection to the jurisdiction of the Circuit Court is that the plaintiff was invested with the legal title to the bonds and coupons simply for purposes |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | legal title to the bonds and coupons simply for purposes of collectio" Next, in a large number of cattle shippers assigned to Spiller (the secretary of a Cattle Raiser's Association) their individual reparation claims against railroads they said had charged them excessive rates. *2541 The Federal Court of Appeals held that Spiller could not bring suit because, in effect, he was an assignee for collection only and would be passing back to the cattle shippers any money he recovered from the litigatio In a unanimous decision, this Court reversed. The Court wrote that the cattle shippers' "assignments were absolute in form" and "plainly" "vest[ed] the legal title in Spiller." The Court conceded that the assignments did not pass "beneficial or equitable title" to Spiller. But the Court then said that "this was not necessary to support the right of the assignee to claim an award of reparation and enable him to recover it by action at law brought in his own name but for the benefit of the equitable owners of the claims." The Court thereby held that Spiller's legal title alone was sufficient to allow him to bring suit in federal court on the aggregated claims of his assignors. Similarly, in this Court unanimously held that (under New York law) a plaintiff, an assignee for collection, had "dominion over the claim for purposes of suit" because the assignment purported to "`sell, assign, transfer and set over' the chose in action" to the assignee. More importantly for present purposes, the Court said that the assignment's "legal effect was not curtailed by the recital that the assignment was for purposes of suit and that its proceeds were to be turned over or accounted for to another." To be clear, we do not suggest that the Court's decisions in Waite, Spiller, and Titus conclusively resolve the standing question before us. We cite them because they offer additional and powerful support for the proposition that suits by assignees for collection have long been seen as "amenable" to resolution by the judicial process. Steel 523 U.S., at Finally, we note that there is also considerable, more recent authority showing that an assignee for collection may properly sue on the assigned claim in federal court. See, e.g., 6A Wright & Miller 15, at 346-348 (noting that an assignee with legal title is considered to be a real party in interest and that as a result "federal courts have held that an assignee for purposes of collection who holds legal title to the debt according to the governing substantive law is the real party in interest |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | the governing substantive law is the real party in interest even though the assignee must account to the assignor for whatever is recovered in the action"); 6 Am.Jur.2d, Assignments 184, pp. 262- (1999) ("An assignee for collection or security only is within the meaning of the real party in interest statutes and entitled to sue in his or her own name on an assigned account or chose in action, although he or she must account to the assignor for the proceeds of the action, even when the assignment is without consideration" (footnote omitted)). See also ; Staggers v. Otto Gerdau ; Dixie Portland Flour Mills, Inc. v. Dixie Feed & Seed F.2d 830, ; Klamath-Lake Pharmaceutical Ass v. Klamath Medical Serv. Bur., D The history and precedents that we have summarized make clear that courts have long found ways to allow assignees to bring suit; that where assignment is at issue, courts both before and after the founding have always permitted the party with legal title alone to bring suit; and that there is a strong tradition specifically of suits by assignees for collectio We find this history and precedent "well nigh *2542 conclusive" in respect to the issue before us: Lawsuits by assignees, including assignees for collection only, are "cases and controversies of the sort traditionally amenable to, and resolved by, the judicial process." Vermont of Natural III Petitioners have not offered any convincing reason why we should depart from the historical tradition of suits by assignees, including assignees for collectio In any event, we find that the assignees before us satisfy the Article III standing requirements articulated in more modern decisions of this Court. Petitioners argue, for example, that the aggregators have not themselves suffered any injury in fact and that the assignments for collection "do not suffice to transfer the payphone operators' injuries." Brief for Petitioners 18. It is, of course, true that the aggregators did not originally suffer any injury caused by the long-distance carriers; the payphone operators did. But the payphone operators assigned their claims to the aggregators lock, stock, and barrel. See APCC ; see also App. to Pet. for Cert. 4a (Agreement provides that each payphone operator "assigns, transfers and sets over" to the aggregator "all rights, title and interest" in dial-around compensation claims). And within the past decade we have expressly held that an assignee can sue based on his assignor's injuries. In Vermont we considered whether a qui tam relator possesses Article III standing to bring suit under the False Claims Act, which authorizes a private party to bring |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | False Claims Act, which authorizes a private party to bring suit to remedy an injury (fraud) that the United States, not the private party, suffered. We held that such a relator does possess standing. And we said that is because the Act "effect[s] a partial assignment of the Government's damages claim" and that assignment of the "United States' injury in fact suffices to confer standing on [the relator]." Indeed, in Vermont we stated quite unequivocally that "the assignee of a claim has standing to assert the injury in fact suffered by the assignor." Petitioners next argue that the aggregators cannot satisfy the redressability requirement of standing because, if successful in this litigation, the aggregators will simply remit the litigation proceeds to the payphone operators. But petitioners misconstrue the nature of our redressability inquiry. That inquiry focuses, as it should, on whether the injury that a plaintiff alleges is likely to be redressed through the litigation not on what the plaintiff ultimately intends to do with the money he recovers. See, e.g., (to demonstrate redressability, the plaintiff must show a "substantial likelihood that the requested relief will remedy the alleged injury in fact" (internal quotation marks omitted and emphasis added)); ("[I]t must be likely that the injury will be redressed by a favorable decision" (internal quotation marks omitted and emphasis added)). Here, a legal victory would unquestionably redress the injuries for which the aggregators bring suit. The aggregators' injuries relate to the failure to receive the required dial-around compensatio And if the aggregators prevail in this litigation, the long-distance carriers would write a check to the aggregators for the amount of dial-around compensation *2543 owed. What does it matter what the aggregators do with the money afterward? The injuries would be redressed whether the aggregators remit the litigation proceeds to the payphone operators, donate them to charity, or use them to build new corporate headquarters. Moreover, the statements our prior cases made about the need to show redress of the injury are consistent with what numerous authorities have long held in the assignment context, namely, that an assignee for collection may properly bring suit to redress the injury originally suffered by his assignor. Petitioners might disagree with those authorities. But petitioners have not provided us with a good reason to reconsider them. The dissent argues that our redressability analysis "could not be more wrong," because "[w]e have never approved federal-court jurisdiction over a claim where the entire relief requested will run to a party not before the court. Never." Post, at 2551 (opinion of ROBERTS, C. J.). But federal courts |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | at 2551 (opinion of ROBERTS, C. J.). But federal courts routinely entertain suits which will result in relief for parties that are not themselves directly bringing suit. Trustees bring suits to benefit their trusts; guardians ad litem bring suits to benefit their wards; receivers bring suit to benefit their receiverships; assignees in bankruptcy bring suit to benefit bankrupt estates; executors bring suit to benefit testator estates; and so forth. The dissent's view of redressability, if taken seriously, would work a sea change in the law. Moreover, to the extent that trustees, guardians ad litem, and the like have some sort of "obligation" to the parties whose interests they vindicate through litigation, see post, at 2552-2553, 2, the same is true in respect to the aggregators here. The aggregators have a contractual obligation to litigate "in the [payphone operator's] interest." App. to Pet. for Cert. a. (And if the aggregators somehow violate that contractual obligation, say, by agreeing to settle the claims against the long-distance providers in exchange for a kickback from those providers, each payphone operator would be able to bring suit for breach of contract.) Petitioners also make a further conceptual argument. They point to cases in which this Court has said that a party must possess a "personal stake" in a case in order to have standing under Article III. See And petitioners add that, because the aggregators will not actually benefit from a victory in this case, they lack a "personal stake" in the litigation's outcome. The problem with this argument is that the general "personal stake" requirement and the more specific standing requirements (injury in fact, redressability, and causation) are flip sides of the same coi They are simply different descriptions of the same judicial effort to assure, in every case or controversy, "that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illuminatio" See also 13, ("At bottom, the gist of the question of standing is whether petitioners have such a personal stake in the outcome of the controversy as to assure that concrete adverseness" ). Courts, during the past two centuries, appear to have found that "concrete adverseness" where an assignee for collection brings a lawsuit. And petitioners have provided us with no grounds for reaching a contrary conclusio Petitioners make a purely functional argument, as well. Read as a whole, they say, the assignments in this litigation constitute nothing more than a contract for legal services. We think this argument is overstated. There is an important distinction *2544 between simply hiring a lawyer and assigning a |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | distinction *2544 between simply hiring a lawyer and assigning a claim to a lawyer (on the lawyer's promise to remit litigation proceeds). The latter confers a property right (which creditors might attach); the former does not. Finally, we note, as a practical matter, that it would be particularly unwise for us to abandon history and precedent in resolving the question before us. Were we to agree with petitioners that the aggregators lack standing, our holding could easily be overcome. For example, the Agreement could be rewritten to give the aggregator a tiny portion of the assigned claim itself, perhaps only a dollar or two. Or the payphone operators might assign all of their claims to a "Dial-Around Compensation Trust" and then pay a trustee (perhaps the aggregator) to bring suit on behalf of the trust. Accordingly, the far more sensible course is to abide by the history and tradition of assignee suits and find that the aggregators possess Article III standing. IV Petitioners argue that, even if the aggregators have standing under Article III, we should nonetheless deny them standing for a number of prudential reasons. See Elk Grove Unified School (prudential standing doctrine "embodies judicially self-imposed limits on the exercise of federal jurisdiction" ). First, petitioners invoke certain prudential limitations that we have imposed in prior cases where a plaintiff has sought to assert the legal claims of third parties. See, e.g., L. Ed. 2d 343 ; Arlington 50 L. Ed. 2d 0 ; Secretary of State of Md. v. Joseph H. Munson These third-party cases, however, are not on point. They concern plaintiffs who seek to assert not their own legal rights, but the legal rights of others. See, e.g., (plaintiff "generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties" (emphasis added)); see also ; 1 S. Ct. 1364, 3 L. Ed. 2d 4 ; 97 S. Ct. 1, Here, the aggregators are suing based on injuries originally suffered by third parties. But the payphone operators assigned to the aggregators all "rights, title and interest" in claims based on those injuries. Thus, in the litigation before us, the aggregators assert what are, due to that transfer, legal rights of their ow The aggregators, in other words, are asserting first-party, not third-party, legal rights. Moreover, we add that none of the third-party cases cited by petitioners *25 involve assignments or purport to overturn the longstanding doctrine permitting an assignee to bring suit on an assigned claim. Second, petitioners suggest that the litigation here |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | an assigned claim. Second, petitioners suggest that the litigation here simply represents an effort by the aggregators and the payphone operators to circumvent Federal Rule of Civil Procedure 23's class-action requirements. But we do not understand how "circumvention" of Rule 23 could constitute a basis for denying standing here. For one thing, class actions are permissive, not mandatory. More importantly, class actions constitute but one of several methods for bringing about aggregation of claims, i.e., they are but one of several methods by which multiple similarly situated parties get similar claims resolved at one time and in one federal forum. See Rule 20(a) (permitting joinder of multiple plaintiffs); Rule 42 (permitting consolidation of related cases filed in the same district court); 28 U.S.C. 1 ; 1404 (making it possible for related cases pending in different federal courts to be transferred and consolidated in one district court); D. Herr, Annotated Manual for Complex Litigation 20.12, p. 279 (noting that "[r]elated cases pending in different federal courts may be consolidated in a single district" by transfer under 28 U.S.C. 1404(a)); J. Tidmarsh & R. Trangsrud, Complex Litigation and the Adversary System 4-524 (section on "Transfer Devices that Aggregate s in a Single Venue"). Because the federal system permits aggregation by other means, we do not think that the payphone operators should be denied standing simply because they chose one aggregation method over another. Petitioners also point to various practical problems that could arise because the aggregators, rather than the payphone operators, are suing. In particular, they say that the payphone operators may not comply with discovery requests served on them, that the payphone operators may not honor judgments reached in this case, and that petitioners may not be able to bring, in this litigation, counterclaims against the payphone operators. See Brief for Petitioners 46-48. Even assuming all that is so, courts have long permitted assignee lawsuits notwithstanding the fact that such problems could arise. Regardless, courts are not helpless in the face of such problems. For example, a district court can, if appropriate, compel a party to collect and to produce whatever discovery-related information is necessary. See Fed. Rules Civ. Proc. 26(b)(1), 30-31, 33-36. That court might grant a motion to join the payphone operators to the case as "required" parties. See Rule 19. Or the court might allow the carriers to file a third-party complaint against the payphone operators. See Rule 14(a). And the carriers could always ask the Federal Communications Commission to find administrative solutions to any remaining practical problems. Cf. 47 U.S.C. 276(b)(1)(A) We do not say that the |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | Cf. 47 U.S.C. 276(b)(1)(A) We do not say that the litigation before us calls for the use of any such procedural device. We mention them only to explain the lack of any obvious need for the remedy that the carriers here propose, namely, denial of standing. Finally, we note that in this litigation, there has been no allegation that the assignments were made in bad faith. We note, as well, that the assignments were made for ordinary business purposes. Were this not so, additional prudential questions might perhaps arise. But these *2546 questions are not before us, and we need not consider them here. V The judgment of the Court of Appeals is affirmed. It is so ordered. APPENDIX Examples of cases in which state courts entertained or otherwise indicated approval of suits by assignees for collection only. References to "Pomeroy's rule" are references to the statement of law set forth in J. Pomeroy, Remedies and Remedial Rights 132, p. 159 (1876). 1. Webb & ; 2. Castner v. Austin Sumner & 2 Min 44, (holding that the assignees of promissory notes were proper plaintiffs, regardless of the arrangement they and their assignor had made in respect to the proceeds of the litigation, because the defendants "can only raise the objection of a defect of parties to the suit, when it appears that some other person or party than the Plaintiffs have such a legal interest in the note that a recovery by the Plaintiffs would not preclude it from being enforced, and they be thereby subjected to the risk of another suit for the same subject-matter" (emphasis added)); 3. (holding that the assignee could sue, notwithstanding the possibility that the assignor was the party "beneficially interested in the action," because "[t]he course of decision in this State establishes this rule, viz.: that the party holding the legal title of a note or instrument may sue on it though he be an agent or trustee, and liable to account to another for the proceeds of the recovery"); 4. (holding that the assignee with legal title to a cause of action was "legally the real party in interest" "[e]ven if he be liable to another as a debtor upon his contract for the collection he may thus make"); 5. ; 6. (holding that so long as an assignee has legal title to the assigned commercial paper, the assignee may bring suit even if the assignment was "merely for the purpose of collection" and he acts merely as "equitable trustee" for the assignor, i.e., the assignor maintains the beneficial interest in the |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | assignor, i.e., the assignor maintains the beneficial interest in the paper); 7. ; 8. Haysler v. Dawson, 28 Mo.App. 531, 536 (holding, in light of the "recognized practice in this state," that the assignee could bring suit to recover on certain accounts even where the assignment of the accounts had been made "with the agreement that they were to [be][he]ld solely for the purpose of [the litigation]," *2547 i.e., the assignor maintained the beneficial interest in the accounts (emphasis added)); 9. 264, ; 10. 99 Mo. (holding that an assignee could sue to collect on an account for merchandise sold, even though the money would be remitted to the assignor, because "[a]n assignee of a chose in action arising out of contract, may sue upon it in his own name, though the title was passed to him only for the purpose of collection"); ; 12. Saulsbury v. Corwin, 40 Mo.App. 3, 376 (permitting suit by an assignee of a note who "had no interest in the note" on the theory that "[o]ne who holds negotiable paper for collection merely may sue on it in his own name"); 13. 46 Min 185, (where plaintiff had been assigned a claim on the "understanding" that he would remit the proceeds to the assignor less the "amount due him for services already rendered, and to be thereafter rendered" to the assignor, the plaintiff could bring suit, even though he had "already collected on the demand enough to pay his own claim for services up to that time," because "[i]t is no concern of the defendant whether the assignee of a claim receives the money on it in his own right or as trustee of the assignor"); 14. ; 15. Minnesota Thresher Mfg. v. Heipler, 49 Min 395, ; 16. 1044, 10 (adopting Pomeroy's rule and holding that an assignee could bring suit based on causes of action assigned to him "simply to enable him to sue" and who "would turn over to the assignors all that was recovered in the action, after deducting their proportion of the expenses of the suit"); 17. (holding that the plaintiff-assignee could sue on claims assigned by multiple parties "for collection," stating that "[i]t is [a] matter of common knowledge that for the purpose of saving expense commercial associations and others resort to this method" and repeating the rule that "[i]n such cases the assignee becomes the legal holder of a chose in action, which is sufficient to entitle him to recover"); 18. (permitting suit by a party who was assigned legal title to contractual rights, where the assignor |
Justice Breyer | 2,008 | 2 | majority | Sprint Communications Co. v. APCC SERVICES | https://www.courtlistener.com/opinion/145783/sprint-communications-co-v-apcc-services/ | was assigned legal title to contractual rights, where the assignor retained the beneficial interest, noting *2548 that the doctrine that "prevails in Colorado" is that the assignee may bring suit in his own name "although there may be annexed to the transfer the condition that when the sum is collected the whole or some part of it must be paid over to the assignor"); 19. Cox's Executors v. Crockett & (finding that suit by assignor following an adverse judgment against assignee was barred by res judicata but endorsing Pomeroy's rule that an assignee could bring suit as the "real party in interest" even where the assignee must "account to the assignor, or other person, for the residue, or even is to thus account for the whole proceeds" of the litigation); 20. Sroufe v. Soto Bros. & 12, ; 21. Ingham v. Weed, 5 Cal. Unreported s, 6, 649, (holding that the assignees of promissory notes could bring suit where the assignors retained part of the beneficial interest in the outcome, and expressly noting that the assignees could bring suit even if the entire interest in the notes had been assigned to them as "agents for collection" because, citing Pomeroy and prior California cases "to the same effect," an assignee can bring suit where he has "legal title" to a claim, notwithstanding "any contemporaneous collateral agreement" by which he is to account to the assignor for part or even "the whole proceeds"); 22. Citizens' 9 S.D. 4, 5, 6, 0, (holding that where the assignee "took a formal written assignment absolute in terms, but with the understanding that he would take the claim, collect what he could, and turn over to the company the proceeds thereof less the expenses of collection," the assignee could sue because the "rule is that a written or verbal assignment, absolute in terms, and vesting in the assignee the apparent legal title to a chose in action, is unaffected by a collateral contemporaneous agreement respecting the proceeds"); 23. 1 Wis. 70, (adopting New York's rule that an assignee is the real party in interest so long as he "holds the legal title" to an assigned claim, regardless of the existence of "any private or implied understanding" between the assignor and assignee concerning the beneficial interest ); 24. Roth v. Continental Wire 94 Mo.App. 262-264, ; 25. 68 Ka 400, ; 26. Eagle Mining & Improvement v. Lund, ; 27. 514-515 *2 28. James v. Lederer-Strauss & |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | One century ago, the first Justice Harlan admonished this Court that the Constitution "neither knows nor tolerates classes among citizens." Unheeded then, those words now are understood to state a commitment to the law's neutrality where the rights of persons are at stake. The Equal Protection Clause enforces this principle and today requires us to hold invalid a provision of Colorado's Constitution. I The enactment challenged in this case is an amendment to the Constitution of the State of Colorado, adopted in a 1992 statewide referendum. The parties and the state courts refer to it as "Amendment 2," its designation when submitted to the voters. The impetus for the amendment and the contentious campaign that preceded its adoption came in large part from ordinances that had been passed in various Colorado municipalities. For example, the cities of Aspen and Boulder and the city and County of Denver each had *624 enacted ordinances which banned discrimination in many transactions and activities, including housing, employment, education, public accommodations, and health and welfare services. Denver Rev. Municipal Code, Art. IV, 28-91 to 28-116 (1991); Aspen Municipal Code 13-98 (1977); Boulder Rev. Code 12-11 to 12-111 (1987). What gave rise to the statewide controversy was the protection the ordinances afforded to persons discriminated against by reason of their sexual orientation. See Boulder Rev. Code 12-11 (defining "sexual orientation" as "the choice of sexual partners, i. e., bisexual, homosexual or heterosexual"); Denver Rev. Municipal Code, Art. IV, 28-92 (defining "sexual orientation" as "[t]he status of an individual as to his or her heterosexuality, homosexuality or bisexuality"). Amendment 2 repeals these ordinances to the extent they prohibit discrimination on the basis of "homosexual, lesbian or bisexual orientation, conduct, practices or relationships." Colo. Const., Art. II, 30b. Yet Amendment 2, in explicit terms, does more than repeal or rescind these provisions. It prohibits all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians. The amendment reads: "No Protected Status Based on Homosexual, Lesbian or Bisexual Orientation. Neither the State of Colorado, through any of its branches or departments, nor any of its agencies, political subdivisions, municipalities or school districts, shall enact, adopt or enforce any statute, regulation, ordinance or policy whereby homosexual, lesbian or bisexual orientation, conduct, practices or relationships shall constitute or otherwise be the basis of or entitle any person or class of persons to have or claim any minority status, quota preferences, protected status or claim of discrimination. This Section of |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | preferences, protected status or claim of discrimination. This Section of the Constitution shall be in all respects self-executing." *6 Soon after Amendment 2 was adopted, this litigation to declare its invalidity and enjoin its enforcement was commenced in the District Court for the City and County of Denver. Among the plaintiffs (respondents here) were homosexual persons, some of them government employees. They alleged that enforcement of Amendment 2 would subject them to immediate and substantial risk of discrimination on the basis of their sexual orientation. Other plaintiffs (also respondents here) included the three municipalities whose ordinances we have cited and certain other governmental entities which had acted earlier to protect homosexuals from discrimination but would be prevented by Amendment 2 from continuing to do so. Although Governor Romer had been on record opposing the adoption of Amendment 2, he was named in his official capacity as a defendant, together with the Colorado Attorney General and the State of Colorado. The trial court granted a preliminary injunction to stay enforcement of Amendment 2, and an appeal was taken to the Supreme Court of Colorado. Sustaining the interim injunction and remanding the case for further proceedings, the State Supreme Court held that Amendment 2 was subject to strict scrutiny under the Fourteenth Amendment because it infringed the fundamental right of gays and lesbians to participate in the political process. To reach this conclusion, the state court relied on our voting rights cases, e. g., ; ; ; and on our precedents involving discriminatory restructuring of governmental decisionmaking, see, e. g., ; ; ; On remand, the State advanced various arguments in an effort to show that *626 Amendment 2 was narrowly tailored to serve compelling interests, but the trial court found none sufficient. It enjoined enforcement of Amendment 2, and the Supreme Court of Colorado, in a second opinion, affirmed the ruling. We granted certiorari, and now affirm the judgment, but on a rationale different from that adopted by the State Supreme Court. II The State's principal argument in defense of Amendment 2 is that it puts gays and lesbians in the same position as all other persons. So, the State says, the measure does no more than deny homosexuals special rights. This reading of the amendment's language is implausible. We rely not upon our own interpretation of the amendment but upon the authoritative construction of Colorado's Supreme Court. The state court, deeming it unnecessary to determine the full extent of the amendment's reach, found it invalid even on a modest reading of its implications. The critical discussion of the amendment, set |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | of its implications. The critical discussion of the amendment, set out in Evans I, is as follows: "The immediate objective of Amendment 2 is, at a minimum, to repeal existing statutes, regulations, ordinances, and policies of state and local entities that barred discrimination based on sexual orientation. See Aspen, Colo., Mun. Code 13-98 (1977) (prohibiting discrimination in employment, housing and public accommodations on the basis of sexual orientation); Boulder, Colo., Rev. Code 12-12 to 4 (1987) (same); Denver, Colo., Rev. Mun. Code art. IV, 28-91 to 116 (1991) (same); Executive Order No. D0035 (December 10, 1990) (prohibiting employment discrimination for `all state employees, classified and exempt' on the basis of sexual orientation); Colorado Insurance Code, 10-31104, 4A C. R. S. (1992 Supp.) (forbidding health insurance providers from determining insurability and premiums based on an applicant's, a beneficiary's, or an insured's *627 sexual orientation); and various provisions prohibiting discrimination based on sexual orientation at state colleges.[26] "26 Metropolitan State College of Denver prohibits college sponsored social clubs from discriminating in membership on the basis of sexual orientation and Colorado State University has an antidiscrimination policy which encompasses sexual orientation. "The `ultimate effect' of Amendment 2 is to prohibit any governmental entity from adopting similar, or more protective statutes, regulations, ordinances, or policies in the future unless the state constitution is first amended to permit such measures." 1285, and n. 26. Sweeping and comprehensive is the change in legal status effected by this law. So much is evident from the ordinances the Colorado Supreme Court declared would be void by operation of Amendment 2. Homosexuals, by state decree, are put in a solitary class with respect to transactions and relations in both the private and governmental spheres. The amendment withdraws from homosexuals, but no others, specific legal protection from the injuries caused by discrimination, and it forbids reinstatement of these laws and policies. The change Amendment 2 works in the legal status of gays and lesbians in the private sphere is far reaching, both on its own terms and when considered in light of the structure and operation of modern antidiscrimination laws. That structure is well illustrated by contemporary statutes and ordinances prohibiting discrimination by providers of public accommodations. "At common law, innkeepers, smiths, and others who `made profession of a public employment,' were prohibited from refusing, without good reason, to serve a customer." The duty was a general one and did not specify protection for particular groups. The common-law rules, however, proved *628 insufficient in many instances, and it was settled early that the Fourteenth Amendment did not give Congress |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | settled early that the Fourteenth Amendment did not give Congress a general power to prohibit discrimination in public accommodations, Civil Rights In consequence, most States have chosen to counter discrimination by enacting detailed statutory schemes. See, e. g., S. D. Codified Laws 20-13-10, 20-13-, 20-13-23 ; Iowa Code 216.6-216.8 ; Okla. Stat., Tit. 1302, 1402 (1987); 43 Pa. Cons. Stat. 953, 955 ; N. J. Stat. Ann. 10:5-3, 10:5-4 ; N. H. Rev. Stat. Ann. 354A:7, 354A:10, 354A:17 ; Minn. Stat. 363.03 Colorado's state and municipal laws typify this emerging tradition of statutory protection and follow a consistent pattern. The laws first enumerate the persons or entities subject to a duty not to discriminate. The list goes well beyond the entities covered by the common law. The Boulder ordinance, for example, has a comprehensive definition of entities deemed places of "public accommodation." They include "any place of business engaged in any sales to the general public and any place that offers services, facilities, privileges, or advantages to the general public or that receives financial support through solicitation of the general public or through governmental subsidy of any kind." Boulder Rev. Code 12-11(j) (1987). The Denver ordinance is of similar breadth, applying, for example, to hotels, restaurants, hospitals, dental clinics, theaters, banks, common carriers, travel and insurance agencies, and "shops and stores dealing with goods or services of any kind," Denver Rev. Municipal Code, Art. IV, 28-92 (1991). These statutes and ordinances also depart from the common law by enumerating the groups or persons within their ambit of protection. Enumeration is the essential device used to make the duty not to discriminate concrete and to provide guidance for those who must comply. In following this approach, Colorado's state and local governments have *629 not limited antidiscrimination laws to groups that have so far been given the protection of heightened equal protection scrutiny under our cases. See, e. g., J. E. ; 439 U.S. 9, ; ; Rather, they set forth an extensive catalog of traits which cannot be the basis for discrimination, including age, military status, marital status, pregnancy, parenthood, custody of a minor child, political affiliation, physical or mental disability of an individual or of his or her associates-and, in recent times, sexual orientation. Aspen Municipal Code 13-98(a)(1) (1977); Boulder Rev. Code 12-11 to 12-14 (1987); Denver Rev. Municipal Code, Art. IV, 28-92 to 28-119 (1991); Colo. Rev. Stat. 24-34-401 to XX-XX-XXX Amendment 2 bars homosexuals from securing protection against the injuries that these public-accommodations laws address. That in itself is a severe consequence, but there is more. Amendment 2, |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | is a severe consequence, but there is more. Amendment 2, in addition, nullifies specific legal protections for this targeted class in all transactions in housing, sale of real estate, insurance, health and welfare services, private education, and employment. See, e. g., Aspen Municipal Code 13-98(b), (c) (1977); Boulder Rev. Code 12-12, 12-13 (1987); Denver Rev. Municipal Code, Art. IV, 28-93 to 28-95, 28-97 (1991). Not confined to the private sphere, Amendment 2 also operates to repeal and forbid all laws or policies providing specific protection for gays or lesbians from discrimination by every level of Colorado government. The State Supreme Court cited two examples of protections in the governmental sphere that are now rescinded and may not be reintroduced. The first is Colorado Executive Order D0035 (1990), which forbids employment discrimination against "`all state employees, classified and exempt' on the basis of sexual orientation." Also repealed, and now forbidden, *630 are "various provisions prohibiting discrimination based on sexual orientation at state colleges." The repeal of these measures and the prohibition against their future reenactment demonstrate that Amendment 2 has the same force and effect in Colorado's governmental sector as it does elsewhere and that it applies to policies as well as ordinary legislation. Amendment 2's reach may not be limited to specific laws passed for the benefit of gays and lesbians. It is a fair, if not necessary, inference from the broad language of the amendment that it deprives gays and lesbians even of the protection of general laws and policies that prohibit arbitrary discrimination in governmental and private settings. See, e. g., Colo. Rev. Stat. 24-4106(7) (agency action subject to judicial review under arbitrary and capricious standard); 18-8405 (making it a criminal offense for a public servant knowingly, arbitrarily, or capriciously to refrain from performing a duty imposed on him by law); 10-31104(1)(f) (prohibiting "unfair discrimination" in insurance); 4 Colo. Code of Regulations 801-1, Policy 11-1 (1983) (prohibiting discrimination in state employment on grounds of specified traits or "other non-merit factor"). At some point in the systematic administration of these laws, an official must determine whether homosexuality is an arbitrary and, thus, forbidden basis for decision. Yet a decision to that effect would itself amount to a policy prohibiting discrimination on the basis of homosexuality, and so would appear to be no more valid under Amendment 2 than the specific prohibitions against discrimination the state court held invalid. If this consequence follows from Amendment 2, as its broad language suggests, it would compound the constitutional difficulties the law creates. The state court did not decide whether the amendment has |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | The state court did not decide whether the amendment has this effect, however, and neither need we. In the course of rejecting the argument that Amendment 2 is intended to conserve resources to fight discrimination against suspect classes, the Colorado Supreme *631 Court made the limited observation that the amendment is not intended to affect many antidiscrimination laws protecting nonsuspect classes, Romer II, 882 P. 2d, at 1346, n. 9. In our view that does not resolve the issue. In any event, even if, as we doubt, homosexuals could find some safe harbor in laws of general application, we cannot accept the view that Amendment 2's prohibition on specific legal protections does no more than deprive homosexuals of special rights. To the contrary, the amendment imposes a special disability upon those persons alone. Homosexuals are forbidden the safeguards that others enjoy or may seek without constraint. They can obtain specific protection against discrimination only by enlisting the citizenry of Colorado to amend the State Constitution or perhaps, on the State's view, by trying to pass helpful laws of general applicability. This is so no matter how local or discrete the harm, no matter how public and widespread the injury. We find nothing special in the protections Amendment 2 withholds. These are protections taken for granted by most people either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society. III The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons. Personnel Administrator of 442 U.S. 6, ; F. S. Royster Guano 3 U.S. 412, We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e. g., *632 Amendment 2 fails, indeed defies, even this conventional inquiry. First, the amendment has the peculiar property of imposing a broad and undifferentiated disability on a single named group, an exceptional and, as we shall explain, invalid form of legislation. Second, its sheer breadth is so discontinuous with the reasons offered for it that the amendment seems inexplicable by anything but animus toward the class it affects; it lacks a rational relationship to legitimate state interests. Taking |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | it lacks a rational relationship to legitimate state interests. Taking the first point, even in the ordinary equal protection case calling for the most deferential of standards, we insist on knowing the relation between the classification adopted and the object to be attained. The search for the link between classification and objective gives substance to the Equal Protection Clause; it provides guidance and discipline for the legislature, which is entitled to know what sorts of laws it can pass; and it marks the limits of our own authority. In the ordinary case, a law will be sustained if it can be said to advance a legitimate government interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the rationale for it seems tenuous. See New ; ; Railway Express Agency, ; The laws challenged in the cases just cited were narrow enough in scope and grounded in a sufficient factual context for us to *633 ascertain some relation between the classification and the purpose it served. By requiring that the classification bear a rational relationship to an independent and legitimate legislative end, we ensure that classifications are not drawn for the purpose of disadvantaging the group burdened by the law. See Railroad Retirement ("If the adverse impact on the disfavored class is an apparent aim of the legislature, its impartiality would be suspect"). Amendment 2 confounds this normal process of judicial review. It is at once too narrow and too broad. It identifies persons by a single trait and then denies them protection across the board. The resulting disqualification of a class of persons from the right to seek specific protection from the law is unprecedented in our jurisprudence. The absence of precedent for Amendment 2 is itself instructive; "[d]iscriminations of an unusual character especially suggest careful consideration to determine whether they are obnoxious to the constitutional provision." Louisville Gas & Elec. It is not within our constitutional tradition to enact laws of this sort. Central both to the idea of the rule of law and to our own Constitution's guarantee of equal protection is the principle that government and each of its parts remain open on impartial terms to all who seek its assistance. "`Equal protection of the laws is not achieved through indiscriminate imposition of inequalities.' " ). Respect for this principle explains why laws singling out a certain class of citizens for disfavored legal status or general hardships are rare. A law declaring that in general it shall be more difficult for one group of citizens than for all |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense. "The guaranty of `equal protection of the laws *634 is a pledge of the protection of equal laws.' " not cited by the parties but relied upon by the dissent, is not evidence that Amendment 2 is within our constitutional tradition, and any reliance upon it as authority for sustaining the amendment is misplaced. In Davis, the Court approved an Idaho territorial statute denying Mormons, polygamists, and advocates of polygamy the right to vote and to hold office because, as the Court construed the statute, it "simply excludes from the privilege of voting, or of holding any office of honor, trust or profit, those who have been convicted of certain offences, and those who advocate a practical resistance to the laws of the Territory and justify and approve the commission of crimes forbidden by it." To the extent Davis held that persons advocating a certain practice may be denied the right to vote, it is no longer good law. To the extent it held that the groups designated in the statute may be deprived of the right to vote because of their status, its ruling could not stand without surviving strict scrutiny, a most doubtful outcome. ; cf. United ; United 389 U.S. 8 To the extent Davis held that a convicted felon may be denied the right to vote, its holding is not implicated by our decision and is unexceptionable. See A second and related point is that laws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity toward the class of persons affected. "[I]f the constitutional conception of `equal protection of the laws' means anything, it must at the very least mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate governmental interest." Department of 534 * Even laws enacted for broad and ambitious purposes often can be explained by reference to legitimate public policies which justify the incidental disadvantages they impose on certain persons. Amendment 2, however, in making a general announcement that gays and lesbians shall not have any particular protections from the law, inflicts on them immediate, continuing, and real injuries that outrun and belie any legitimate justifications that may be claimed for it. We conclude that, in addition to the far-reaching deficiencies of Amendment 2 that we have noted, the principles it offends, in another sense, are conventional |
Justice Kennedy | 1,996 | 4 | majority | Romer v. Evans | https://www.courtlistener.com/opinion/118027/romer-v-evans/ | noted, the principles it offends, in another sense, are conventional and venerable; a law must bear a rational relationship to a legitimate governmental purpose, and Amendment 2 does not. The primary rationale the State offers for Amendment 2 is respect for other citizens' freedom of association, and in particular the liberties of landlords or employers who have personal or religious objections to homosexuality. Colorado also cites its interest in conserving resources to fight discrimination against other groups. The breadth of the amendment is so far removed from these particular justifications that we find it impossible to credit them. We cannot say that Amendment 2 is directed to any identifiable legitimate purpose or discrete objective. It is a status-based enactment divorced from any factual context from which we could discern a relationship to legitimate state interests; it is a classification of persons undertaken for its own sake, something the Equal Protection Clause does not permit. "[C]lass legislation [is] obnoxious to the prohibitions of the Fourteenth Amendment" Civil Rights We must conclude that Amendment 2 classifies homosexuals not to further a proper legislative end but to make them unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws. Amendment 2 violates the Equal Protection Clause, *636 and the judgment of the Supreme Court of Colorado is affirmed. It is so ordered. |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | In my view, and for the reasons well stated by JUSTICE ALITO in dissent, the residual clause of the Armed Career Criminal Act is not unconstitutionally vague under the categorical approach or a record-based approach. On the assumption that the categorical approach ought to still control, and for the reasons given by JUSTICE THOMAS in Part I of his opinion concurring in the judgment, Johnson’s conviction for possession of a short-barreled shotgun does not qualify as a violent felony. For these reasons, I concur in the judgment. Cite as: 6 U. S. (2015) 1 THOMAS, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 1–7120 SAMUEL JAMES JOHNSON, PETITIONER v. UNITED STATES ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT [June 26, 2015] JUSTICE THOMAS, concurring in the judgment. I agree with the Court that Johnson’s sentence cannot stand. But rather than use the Fifth Amendment’s Due Process Clause to nullify an Act of Congress, I would resolve this case on more ordinary grounds. Under con- ventional principles of interpretation and our precedents, the offense of unlawfully possessing a short-barreled shotgun does not constitute a “violent felony” under the residual clause of the Armed Career Criminal Act (ACCA). The majority wants more. Not content to engage in the usual business of interpreting statutes, it holds this clause to be unconstitutionally vague, notwithstanding the fact that on four previous occasions we found it determinate enough for judicial application. As JUSTICE ALITO ex- plains, that decision cannot be reconciled with our prece- dents concerning the vagueness doctrine. See post, at 1– 17 (dissenting opinion). But even if it were a closer case under those decisions, I would be wary of holding the residual clause to be unconstitutionally vague. Although I have joined the Court in applying our modern vagueness doctrine in the past, see FCC v. Fox Television Stations, Inc., 567 U. S. – (2012) (slip op., at 16–17), I have become increasingly concerned about its origins and application. Simply put, our vagueness doctrine shares an uncomfortably similar history with substantive due pro- 2 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment cess, a judicially created doctrine lacking any basis in the Constitution. I We could have easily disposed of this case without nulli- fying ACCA’s residual clause. Under ordinary principles of statutory interpretation, the crime of unlawfully pos- sessing a short-barreled shotgun does not constitute a “violent felony” under ACCA. In relevant part, that Act defines a “violent felony” as a “crime punishable by im- prisonment for a term exceeding one |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | “crime punishable by im- prisonment for a term exceeding one year” that either “(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or “(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that pre- sents a serious potential risk of physical injury to an- other.” 18 U.S. C. The offense of unlawfully possessing a short-barreled shotgun neither satisfies the first clause of this definition nor falls within the enumerated offenses in the second. It therefore can constitute a violent felony only if it falls within ACCA’s so-called “residual clause”—i.e., if it “in- volves conduct that presents a serious potential risk of physical injury to another.” To determine whether an offense falls within the resid- ual clause, we consider “whether the conduct encompassed by the elements of the offense, in the ordinary case, pre- sents a serious potential risk of injury to another.” James v. United States, The specific crimes listed in extortion, bur- glary, and an offense involving the use of explosives—offer a “baseline against which to measure the degree of risk” a crime must present to fall within that clause. at Those offenses do not provide a high threshold, see at Cite as: 6 U. S. (2015) THOMAS, J., concurring in judgment 20, 207–, but the crime in question must still present a “ ‘serious’ ”—a “ ‘significant’ or ‘important’ ”—risk of physical injury to be deemed a violent felony, Begay v. United States, (ALITO, J., dis- senting); accord, 128 (2009). To qualify as serious, the risk of injury generally must be closely related to the offense itself. Our precedents provide useful examples of the close relationship that must exist between the conduct of the offense and the risk presented. In for instance, we held that the offense of intentional vehicu- lar flight constitutes a violent felony because that conduct always triggers a dangerous confrontation, at (slip op., at 8). As we explained, vehicular flights “by defini- tional necessity occur when police are present” and are done “in defiance of their instructions with a vehicle that can be used in a way to cause serious potential risk of physical injury to another.” In James, we likewise held that attempted burglary offenses “requir[ing] an overt act directed toward the entry of a structure” are violent felonies because the underlying conduct often results in a dangerous 206. But we distinguished those crimes from “the more attenuated conduct encompassed by” attempt offenses “that c[an] be satisfied by preparatory conduct that does not pose the same risk |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | by preparatory conduct that does not pose the same risk of violent confrontation,” such as “ ‘possessing burglary tools.’ ” and n. 4. At some point, in other words, the risk of injury from the crime may be too attenuated for the conviction to fall within the residual clause, such as when an additional, voluntary act (e.g., the use of burglary tools to enter a structure) is necessary to bring about the risk of physical injury to another. In light of the elements of and reported convictions for the unlawful possession of a short-barreled shotgun, this 4 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment crime does not “involv[e] conduct that presents a serious potential risk of physical injury to another,” (2)(B)(ii). The acts that form the basis of this offense are simply too remote from a risk of physical injury to fall within the residual clause. Standing alone, the elements of this offense—(1) unlaw- fully (2) possessing () a short-barreled shotgun—do not describe inherently dangerous conduct. As a conceptual matter, “simple possession [of a firearm], even by a felon, takes place in a variety of ways (e.g., in a closet, in a store- room, in a car, in a pocket) many, perhaps most, of which do not involve likely accompanying violence.” United These weap- ons also can be stored in a manner posing a danger to no one, such as unloaded, disassembled, or locked away. By themselves, the elements of this offense indicate that the ordinary commission of this crime is far less risky than ACCA’s enumerated offenses. Reported convictions support the conclusion that mere possession of a short-barreled shotgun does not, in the ordinary case, pose a serious risk of injury to others. A few examples suffice. In one case, officers found the sawed-off shotgun locked inside a gun cabinet in an empty home. 858 N.W.2d 1–158 (Minn. 2015). In another, the firearm was retrieved from the trunk of the defendant’s car. State v. Ellenberger, 54 N. W. 2d 67, 674 In still another, the weapon was found missing a firing pin. In these instances and others, the offense threatened no one. The Government’s theory for why this crime should nonetheless qualify as a “violent felony” is unpersuasive. Although it does not dispute that the unlawful possession of a short-barreled shotgun can occur in a nondangerous manner, the Government contends that this offense poses Cite as: 6 U. S. (2015) 5 THOMAS, J., concurring in judgment a serious risk of physical injury due to the connection between short-barreled shotguns and other serious crimes. As the Government explains, |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | short-barreled shotguns and other serious crimes. As the Government explains, these firearms are “weapons not typically possessed by law-abiding citizens for lawful purposes,” District of 625 but are instead primarily intended for use in criminal activity. In light of that intended use, the Gov- ernment reasons that the ordinary case of this possession offense will involve the use of a short-barreled shotgun in a serious crime, a scenario obviously posing a serious risk of physical injury. But even assuming that those who unlawfully possess these weapons typically intend to use them in a serious crime, the risk that the Government identifies arises not from the act of possessing the weapon, but from the act of using it. Unlike attempted burglary (at least of the type at issue in James) or intentional vehicular flight—conduct that by itself often or always invites a dangerous confron- tation—possession of a short-barreled shotgun poses a threat only when an offender decides to engage in addi- tional, voluntary conduct that is not included in the ele- ments of the crime. Until this weapon is assembled, load- ed, or used, for example, it poses no risk of injury to others in and of itself. The risk of injury to others from mere possession of this firearm is too attenuated to treat this offense as a violent felony. I would reverse the Court of Appeals on that basis. II As the foregoing analysis demonstrates, ACCA’s resid- ual clause can be applied in a principled manner. One would have thought this proposition well established given that we have already decided four cases addressing this clause. The majority nonetheless concludes that the oper- ation of this provision violates the Fifth Amendment’s Due Process Clause. 6 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment JUSTICE ALITO shows why that analysis is wrong under our precedents. See post, at 1–17 (dissenting opinion). But I have some concerns about our modern vagueness doctrine itself. Whether that doctrine is defensible under the original meaning of “due process of law” is a difficult question I leave for the another day, but the doctrine’s history should prompt us at least to examine its constitu- tional underpinnings more closely before we use it to nullify yet another duly enacted law. A We have become accustomed to using the Due Process Clauses to invalidate laws on the ground of “vagueness.” The doctrine we have developed is quite sweeping: “A statute can be impermissibly vague if it fails to provide people of ordinary intelligence a reasonable opportunity to understand what conduct it prohibits” or “if it authorizes or |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | understand what conduct it prohibits” or “if it authorizes or even encourages arbitrary and discriminatory enforce- ment.” Using this framework, we have nullified a wide range of enact- ments. We have struck down laws ranging from city ordinances, 405 U.S. 165–171 (1972), to Acts of Congress, United We have struck down laws whether they are penal, or not, v. Board of Regents of Univ. of State of N. Y., 597–604 (1967).1 We have struck down laws addressing —————— 1 By “penal,” I mean laws “authoriz[ing] criminal punishment” as well as those “authorizing fines or forfeitures [that] are enforced through civil rather than criminal process.” Cf. C. Nelson, Statutory Interpreta- tion 108 (discussing definition of “penal” for purposes of rule of lenity). A law requiring termination of employment from public insti- tutions, for instance, is not penal. See – 604. Nor is a law creating an “obligation to pay taxes.” Milwaukee Conversely, a law imposing a monetary exaction as a punishment for noncompliance with Cite as: 6 U. S. (2015) 7 THOMAS, J., concurring in judgment subjects ranging from abortion, v. Franklin, 49 U.S. 79, 90 (1979), and obscenity, to the minimum wage, 90–95 (1926), and antitrust, v. Frink Dairy 274 U.S. 445, 45–465 We have even struck down a law using a term that has been used to describe criminal conduct in this country since before the Constitution was ratified. (in- validating a “loitering” law); see and n. 10 (discussing a 1764 Georgia law requiring the apprehension of “all able bodied persons who shall be found loitering”). That we have repeatedly used a doctrine to invalidate laws does not make it legitimate. Cf., e.g., Dred Scott v. Sandford, (stating that an Act of Congress prohibiting slavery in certain Federal Territories violated the substantive due process rights of slaveowners and was therefore void). This Court has a history of wielding doctrines purportedly rooted in “due process of law” to achieve its own policy goals, substantive due process being the poster child. See McDonald v. Chicago, (THOMAS, J., concurring in part and concurring in judgment) (“The one theme that links the Court’s substantive due process precedents together is their lack of a guiding principle to distinguish ‘fundamental’ rights that warrant protection from nonfun- damental rights that do not”). Although our vagueness doctrine is distinct from substantive due process, their histories have disquieting parallels. 1 The problem of vague penal statutes is nothing new. —————— a regulatory mandate is penal. See National Federation of Independent Business v. Sebelius, 567 U. S. – (2012) (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | (SCALIA, KENNEDY, THOMAS, and ALITO, JJ., dissenting) (slip op., at 16–26). 8 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment The notion that such laws may be void under the Consti- tution’s Due Process Clauses, however, is a more recent development. Before the end of the 19th century, courts addressed vagueness through a rule of strict construction of penal statutes, not a rule of constitutional law. This rule of construction—better known today as the rule of lenity— first emerged in 16th-century England in reaction to Parliament’s practice of making large swaths of crimes capital offenses, though it did not gain broad acceptance until the following century. See Hall, Strict or Liberal Construction of Penal Statutes, 749– 7 ; see also 1 L. Radzinowicz, A History of English Criminal Law and Its Administration From 1750, pp. 10– 11 (noting that some of the following crimes trig- gered the death penalty: “marking the edges of any current coin of the kingdom,” “maliciously cutting any hop- binds growing on poles in any plantation of hops,” and “being in the company of gypsies”). Courts relied on this rule of construction in refusing to apply vague capital- offense statutes to prosecutions before them. As an exam- ple of this rule, William Blackstone described a notable instance in which an English statute imposing the death penalty on anyone convicted of “stealing sheep, or other cattle” was “held to extend to nothing but mere sheep” as “th[e] general words, ‘or other cattle,’ [were] looked upon as much too loose to create a capital offence.” 1 Commen- taries on the Laws of England 88 (1765).2 —————— 2 At the time, the ordinary meaning of the word “cattle” was not lim- ited to cows, but instead encompassed all “[b]easts of pasture; not wild nor domestick.” 1 S. Johnson, A Dictionary of the English Language (4th ed. 177). Parliament responded to the judicial refusal to apply the provision to “cattle” by passing “another statute, 15 Geo. II. c. 4, extending the [law] to bulls, cows, oxen, steers, bullocks, heifers, calves, and lambs, by name.” 1 Blackstone, Commentaries on the Laws of England, at 88. Cite as: 6 U. S. (2015) 9 THOMAS, J., concurring in judgment Vague statutes surfaced on this side of the Atlantic as well. Shortly after the First Congress proposed the Bill of Rights, for instance, it passed a law providing “[t]hat every person who shall attempt to trade with the Indian tribes, or be found in the Indian country with such merchandise in his possession as are usually vended to the Indians, without a license,” |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | as are usually vended to the Indians, without a license,” must forfeit the offending goods. Act of July 22, 1790, ch. –18. At first glance, punishing the unlicensed possession of “merchandise usually vended to the Indians,” ib would seem far more likely to “invit[e] arbitrary enforcement,” ante, at 5, than does the residual clause. But rather than strike down arguably vague laws under the Fifth Amendment Due Process Clause, antebellum American courts—like their English predecessors—simply refused to apply them in individual cases under the rule that penal statutes should be construed strictly. See, e.g., United (No. 16,264) (CC Pa. 1815) (Washington, J.). In Sharp, for instance, several defendants charged with violating an Act rendering it a capital offense for “any seaman” to “make a revolt in [a] ship,” Act of Apr. 0, 1790, objected that “the offence of making a revolt, [wa]s not sufficiently defined by this law, or by any other standard, to which reference could be safely made; to warrant the court in passing a sentence upon [them].” Justice Washington, riding circuit, apparently agreed, observing that the common definitions for the phrase “make a revolt” were “so multifarious, and so different” that he could not “avoid feeling a natural repugnance, to selecting from this mass of definitions, one, which may fix a crime upon these men, and that too of a capital nature.” Remarking that “[l]aws which create crimes, ought to be so explicit in themselves, or by reference to some other standard, that all men, subject to their penalties, may know what acts it is their duty to avoid,” he refused 10 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment to “recommend to the jury, to find the prisoners guilty of making, or endeavouring to make a revolt, however strong the evidence may be.” Such analysis does not mean that federal courts be- lieved they had the power to invalidate vague penal laws as unconstitutional. Indeed, there is good evidence that courts at the time understood judicial review to consist “of a refusal to give a statute effect as operative law in resolv- ing a case,” a notion quite distinct from our modern prac- tice of “ ‘strik[ing] down’ legislation.” Walsh, Partial Un- constitutionality, 85 N. Y. U. L. Rev. 78, 756 The process of refusing to apply such laws appeared to occur on a case-by-case basis. For instance, notwithstanding his doubts expressed in Sharp, Justice Washington, writing for this Court, later rejected the argument that lower courts could arrest a judgment under the same ship-revolt statute because it “does not define the offence of endeav- |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | statute because it “does not define the offence of endeav- ouring to make a revolt.” United States v. Kelly, 11 Wheat. 417, 418 (1826). The Court explained that “it is competent to the Court to give a judicial definition” of “the offence of endeavouring to make a revolt,” and that such definition “consists in the endeavour of the crew of a vessel, or any one or more of them, to overthrow the legit- imate authority of her commander, with intent to remove him from his command, or against his will to take posses- sion of the vessel by assuming the government and navi- gation of her, or by transferring their obedience from the lawful commander to some other person.” at 418–419. In dealing with statutory indeterminacy, federal courts saw themselves engaged in construction, not judicial review as it is now understood. —————— Early American state courts also sometimes refused to apply a law they found completely unintelligible, even outside of the penal context. In one antebellum decision, the Pennsylvania Supreme Court did not even attempt to apply a statute that gave the Pennsylvania state treasurer “ ‘as many votes’ ” in state bank elections as “ ‘were held by Cite as: 6 U. S. (2015) 11 THOMAS, J., concurring in judgment 2 Although vagueness concerns played a role in the strict construction of penal statutes from early on, there is little indication that anyone before the late 19th century be- lieved that courts had the power under the Due Process Clauses to nullify statutes on that ground. Instead, our modern vagueness doctrine materialized after the rise of substantive due process. Following the ratification of the Fourteenth Amendment, corporations began to use that Amendment’s Due Process Clause to challenge state laws that attached penalties to unauthorized commercial con- duct. In addition to claiming that these laws violated their substantive due process rights, these litigants be- gan—with some success—to contend that such laws were unconstitutionally indefinite. In one case, a railroad company challenged a Tennessee law authorizing penal- ties against any railroad that demanded “more than a just and reasonable compensation” or engaged in “unjust and unreasonable discrimination” in setting its rates. Louis- ville & Nashville R. v. Railroad Comm’n of Tenn., 19 F. 679, 690 (CC MD Tenn. 1884) (internal quotation marks deleted). Without specifying the constitutional authority for its holding, the Circuit Court concluded that “[n]o citizen can be constitutionally subjected to penal- ties and despoiled of his property, in a criminal or quasi criminal proceeding, under and by force of such indefinite —————— individuals’ ” without providing guidance as |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | of such indefinite —————— individuals’ ” without providing guidance as to which individuals it was referring. Commonwealth v. Bank of Pennsylvania, Watts & Serg. 17, 177 (1842). Concluding that it had “seldom, if ever, found the language of legislation so devoid of certainty,” the court withdrew the case. ; see also (“Whether a statute be a public or a private one, if the terms in which it is couched be so vague as to convey no definite meaning to those whose duty it is to execute it, either ministerially or judicially, it is necessarily inopera- tive”). This practice is distinct from our modern vagueness doctrine, which applies to laws that are intelligible but vague. 12 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment legislation.” Justice Brewer—widely recognized as “a leading spokesman for ‘substantized’ due process,” Gamer, Justice Brewer and Substantive Due Process: A Conservative Court Revisited, — employed similar reasoning while riding circuit, though he did not identify the constitutional source of judicial au- thority to nullify vague laws. In reviewing an Iowa law authorizing fines against railroads for charging more than a “reasonable and just” rate, Justice Brewer mentioned in dictum that “no penal law can be sustained unless its mandates are so clearly expressed that any ordinary person can determine in advance what he may and what he may not do under it.” Chicago & N. W. R. Constitutional vagueness challenges in this Court ini- tially met with some resistance. Although the Court appeared to acknowledge the possibility of unconstitution- ally indefinite enactments, it repeatedly rejected vague- ness challenges to penal laws addressing railroad rates, Railroad Comm’n Cases, liquor sales, Ohio ex rel. 450–4 (1904), and anticompetitive conduct, Nash v. United States, ; Waters- Pierce Oil 108– (1909). In 1914, however, the Court nullified a law on vague- ness grounds under the Due Process Clause for the first time. In International Harvester of a tobacco company brought a Fourteenth Amendment challenge against several Ken- tucky antitrust laws that had been construed to render unlawful “any combination [made] for the purpose or with the effect of fixing a price that was greater or less than the real value of the article,” The com- pany argued that by referring to “real value,” the laws pro- Cite as: 6 U. S. (2015) 1 THOMAS, J., concurring in judgment vided “no standard of conduct that it is possible to know.” The Court agreed. at 22–224. Although it did not specify in that case which portion of the Fourteenth Amendment served as the basis for its holding, ib it explained in a |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | the basis for its holding, ib it explained in a related case that the lack of a knowable standard of conduct in the Kentucky statutes “violated the fundamental principles of justice embraced in the concep- tion of due process of law.” Collins v. Kentucky, 24 U.S. 64, 68 Since that time, the Court’s application of its vagueness doctrine has largely mirrored its application of substantive due process. During the Lochner era, a period marked by the use of substantive due process to strike down economic regulations, e.g., (1905), the Court frequently used the vagueness doctrine to invalidate economic regulations penalizing commercial activity.4 Among the penal laws it found to be impermis- sibly vague were a state law regulating the production of crude oil, Champlin Refining v. Corporation Comm’n —————— 4 During this time, the Court would apply its new vagueness doctrine outside of the penal context as well. In A. B. Small a sugar dealer raised a defense to a breach-of-contract suit that the contracts themselves were unlawful under several provisions of the Lever Act, including one making it “ ‘unlawful for any person to make any unjust or unrea- sonable charge in dealing in or with any necessaries,’ or to agree with another ‘to exact excessive prices for any necessaries,’ ” Applying United which had held that provision to be unconstitutionally vague, the Court rejected the dealer’s 267 U.S., –29. The Court explained that “[i]t was not the criminal penalty that was held invalid, but the exaction of obedience to a rule or standard which was so vague and indefinite as really to be no rule or standard at all.” That doctrine thus applied to penalties as well as “[a]ny other means of exaction, such as declaring the transaction unlawful or stripping a participant of his rights under it.” 14 a state antitrust law, –465, a state minimum-wage law, –95, and a federal price- control statute, L. Cohen Grocery 255 U.S., at5 Around the time the Court began shifting the focus of its substantive due process (and equal protection) jurispru- dence from economic interests to “discrete and insular minorities,” see United States v. Carolene Products the target of its vagueness doctrine changed as well. The Court began to use the vagueness doctrine to invalidate noneconomic regulations, such as state statutes penalizing obscenity, U.S., at and membership in a gang, Lanzetta, Successful vagueness challenges to regulations penaliz- ing commercial conduct, by contrast, largely fell by the wayside. The Court, for instance, upheld a federal regula- tion punishing the knowing violation of an order instruct- ing drivers transporting dangerous chemicals to |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | of an order instruct- ing drivers transporting dangerous chemicals to “ ‘avoid, so far as practicable driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,’ ” Boyce Motor Lines, —————— 5 Vagueness challenges to laws regulating speech during this period were less successful. Among the laws the Court found to be sufficiently definite included a state law making it a misdemeanor to publish, among other things, materials “ ‘which shall tend to encourage or advocate disrespect for law or for any court or courts of justice,’ ” Fox v. Washington, a federal statute criminal- izing candidate solicitation of contributions for “ ‘any political purpose whatever,’ ” United and a state prohibition on becoming a member of any organization that advocates using unlawful violence to effect “ ‘any political change,’ ” 274 U.S. But see (holding state statute punishing the use of any symbol “ ‘of opposition to organized government’ ” to be impermissibly vague). Cite as: 6 U. S. (2015) 15 THOMAS, J., concurring in judgment 8–9, 4 (1952). And notwithstanding its earlier conclusion that an Oklahoma law requiring state employ- ees and contractors to be paid “ ‘not less than the current rate of per diem wages in the locality where the work is performed’ ” was unconstitutionally vague, the Court found sufficiently definite a fed- eral law forbidding radio broadcasting companies from attempting to compel by threat or duress a licensee to hire “ ‘persons in excess of the number of employees needed by such licensee to perform actual services,’ ” United States v. Petrillo, In more recent times, the Court’s substantive due pro- cess jurisprudence has focused on abortions, and our vagueness doctrine has played a correspondingly signifi- cant role. In fact, our vagueness doctrine served as the basis for the first draft of the majority opinion in Roe v. Wade, 410 U.S. 11 (197), on the theory that laws pro- hibiting all abortions save for those done “for the purpose of saving the life of the mother” forced abortionists to guess when this exception would apply on penalty of con- viction. See B. Schwartz, The Unpublished Opinions of the Burger Court 116–118 (1988) (reprinting first draft of Roe). Roe, of course, turned out as a substantive due process opinion. See But since then, the Court has repeatedly deployed the vagueness doctrine to nullify even mild regulations of the abortion industry. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 4–452 (198) (nullifying law requiring “ ‘that the remains of the unborn child [be] |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | requiring “ ‘that the remains of the unborn child [be] disposed of in a hu- mane and sanitary manner’ ”); 49 U.S., at 81 (nullifying law mandating abortionists adhere to a pre- scribed standard of care if “ there is ‘sufficient reason to believe that the fetus may be viable’ ”).6 —————— 6 All the while, however, the Court has rejected vagueness challenges to laws punishing those on the other side of the abortion debate. When 16 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment In one of our most recent decisions nullifying a law on vagueness grounds, substantive due process was again lurking in the background. In a plurality of this Court insisted that “the freedom to loiter for innocent purposes is part of the ‘liberty’ protected by the Due Pro- cess Clause of the Fourteenth Amendment,” 527 U.S., at 5, a conclusion that colored its analysis that an ordinance prohibiting loitering was unconstitutionally indetermi- nate, see (“When vagueness permeates the text of ” a penal law “infring[ing] on constitutionally protected rights,” “it is subject to facial attack”). I find this history unsettling. It has long been under- stood that one of the problems with holding a statute “void for ‘indefiniteness’ ” is that “ ‘indefiniteness’ is itself an indefinite concept,” (Frankfurter, J., dissenting), and we as a Court have a bad habit of using indefinite concepts—especially ones rooted in “due pro- cess”—to invalidate democratically enacted laws. B It is also not clear that our vagueness doctrine can be reconciled with the original understanding of the term “due process of law.” Our traditional justification for this doctrine has been the need for notice: “A conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited.” United 55 U.S. 285, 04 ; accord, ante, at Pre- sumably, that justification rests on the view expressed in —————— it comes to restricting the speech of abortion opponents, the Court has dismissed concerns about vagueness with the observation that “ ‘we can never expect mathematical certainty from our language,’ ” Hill v. Colorado, 7 even though such restrictions are arguably “at least as imprecise as criminal prohibitions on speech the Court has declared void for vagueness in past decades,” (KENNEDY, J., dissenting). Cite as: 6 U. S. (2015) 17 THOMAS, J., concurring in judgment Murray’s Lessee v. Hoboken Land & Improvement 18 How. 272 (1856), that “due process of law” constrains the legislative branch by guaranteeing “usages and modes of proceeding existing in the |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | by guaranteeing “usages and modes of proceeding existing in the common and statute law of England, before the emigration of our ancestors, and which are shown not to have been unsuited to their civil and political condition by having been acted on by them after the settlement of this country,” That justification assumes further that providing “a person of ordinary intelligence [with] fair notice of what is prohib- ited,” at 04, is one such usage or mode.7 To accept the vagueness doctrine as founded in our Constitution, then, one must reject the possibility “that the Due Process Clause requires only that our Govern- ment must proceed according to the ‘law of the land’—that is, according to written constitutional and statutory provi- sions,” which may be all that the original meaning of this provision demands. 589 (2004) (some internal quota- tion marks omitted); accord, Turner v. Rogers, 564 U. S. —————— 7 As a general matter, we should be cautious about relying on general theories of “fair notice” in our due process jurisprudence, as they have been exploited to achieve particular ends. In BMW of North America, 7 U.S. 559 for instance, the Court held that the Due Process Clause imposed limits on punitive damages because the Clause guaranteed “that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose,” at 4. That was true even though “when the Fourteenth Amendment was adopted, punitive damages were undoubtedly an established part of the American com- mon law of torts,” and “no particular procedures were deemed neces- sary to circumscribe a jury’s discretion regarding the award of such damages, or their amount.” Pacific Mut. Life Ins. v. Haslip, 499 U.S. 1, 26–27 (1991) (SCALIA, J., concurring in judgment). Even under the view of the Due Process Clause articulated in Murray’s Lessee, then, we should not allow nebulous principles to supplant more specific, historically grounded rules. See 499 U.S., at 7–8 (opinion of SCALIA, J.). 18 JOHNSON v. UNITED STATES THOMAS, J., concurring in judgment (slip op., at 2). Although Murray’s Lessee stated the contrary, 18 How., at 276, a number of scholars and jurists have concluded that “considerable historical evidence supports the position that ‘due process of law’ was a separation-of-powers con- cept designed as a safeguard against unlicensed executive action, forbidding only deprivations not authorized by legislation or common law.” D. Currie, The Constitution in the Supreme Court: The First Hundred Years 9– p. 272 (1985); see also, e.g., In re Winship, 97 |
Justice Kennedy | 2,015 | 4 | concurring | Johnson v. United States | https://www.courtlistener.com/opinion/2812210/johnson-v-united-states/ | p. 272 (1985); see also, e.g., In re Winship, 97 U.S. 58, 78–82 (1970) (Black, J., dissenting). Others have disagreed. See, e.g., Chapman & McConnell, Due Process as Separation of Powers, 121 Yale L. J. 1672, 1679 (2012) (arguing that, as originally understood, “the principle of due process” required, among other things, that “statutes that purported to empower the other branches to deprive persons of rights without adequate procedural guarantees [be] subject to judicial review”). I need not choose between these two understandings of “due process of law” in this case. JUSTICE ALITO explains why the majority’s decision is wrong even under our prec- edents. See post, at 1–17 (dissenting opinion). And more generally, I adhere to the view that “ ‘[i]f any fool would know that a particular category of conduct would be with- in the reach of the statute, if there is an unmistakable core that a reasonable person would know is forbidden by the law, the enactment is not unconstitutional on its face,’ ” and there is no question that ACCA’s residual clause meets that description, see ante, at 10 (agreeing with the Government that “there will be straightforward cases under the resid- ual clause”). * * * I have no love for our residual clause jurisprudence: As I observed when we first got into this business, the Sixth Cite as: 6 U. S. (2015) 19 THOMAS, J., concurring in judgment Amendment problem with allowing district courts to conduct factfinding to determine whether an offense is a “violent felony” made our attempt to construe the residual clause “ ‘an unnecessary exercise.’ ” James, 550 U.S., at 21 But the Court rejected my argument, choosing instead to begin that unnecessary exercise. I see no principled way that, four cases later, the Court can now declare that the residual clause has become too indeterminate to apply. Having damaged the residual clause through our misguided jurisprudence, we have no right to send this provision back to Congress and ask for a new one. I cannot join the Court in using the Due Process Clause to nullify an Act of Congress that contains an unmistakable core of forbidden conduct, and I concur only in its judgment. Cite as: 6 U. S. (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES No. 1–7120 SAMUEL JAMES JOHNSON, PETITIONER v. |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | I agree with the Court’s conclusion that the Due Process Clause prohibits the exercise of personal jurisdiction over Daimler in light of the unique circumstances of this case. I concur only in the judgment, however, because I cannot agree with the path the Court takes to arrive at that result. The Court acknowledges that Mercedes-Benz USA, LLC (MBUSA), Daimler’s wholly owned subsidiary, has consid erable contacts with California. It has multiple facilities in the State, including a regional headquarters. Each year, it distributes in California tens of thousands of cars, the sale of which generated billions of dollars in the year this suit was brought. And it provides service and sales support to customers throughout the State. Daimler has conceded that California courts may exercise general jurisdiction over MBUSA on the basis of these contacts, and the Court assumes that MBUSA’s contacts may be attributed to Daimler for the purpose of deciding whether Daimler is also subject to general jurisdiction. Are these contacts sufficient to permit the exercise of general jurisdiction over Daimler? The Court holds that they are not, for a reason wholly foreign to our due process jurisprudence. The problem, the Court says, is not that Daimler’s contacts with California are too few, but that its 2 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment contacts with other forums are too many. In other words, the Court does not dispute that the presence of multiple offices, the direct distribution of thousands of products accounting for billions of dollars in sales, and continuous interaction with customers throughout a State would be enough to support the exercise of general jurisdiction over some businesses. Daimler is just not one of those busi nesses, the Court concludes, because its California con tacts must be viewed in the context of its extensive “na tionwide and worldwide” operations. Ante, at 21, n. 20. In recent years, Americans have grown accustomed to the concept of multinational corporations that are supposedly “too big to fail”; today the Court deems Daimler “too big for general jurisdiction.” The Court’s conclusion is wrong as a matter of both process and substance. As to process, the Court decides this case on a ground that was neither argued nor passed on below, and that Daimler raised for the first time in a footnote to its brief. Brief for Petitioner 31–32, n. 5. As to substance, the Court’s focus on Daimler’s operations out side of California ignores the lodestar of our personal jurisdiction jurisprudence: A State may subject a defend ant to the burden of suit if the defendant has sufficiently |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | to the burden of suit if the defendant has sufficiently taken advantage of the State’s laws and protections through its contacts in the State; whether the defendant has contacts elsewhere is immaterial. Regrettably, these errors are unforced. The Court can and should decide this case on the far simpler ground that, no matter how extensive Daimler’s contacts with Califor nia, that State’s exercise of jurisdiction would be unrea sonable given that the case involves foreign plaintiffs suing a foreign defendant based on foreign conduct, and given that a more appropriate forum is available. Because I would reverse the judgment below on this ground, I concur in the judgment only. Cite as: 571 U. S. (2014) 3 SOTOMAYOR, J., concurring in judgment I I begin with the point on which the majority and I agree: The Ninth Circuit’s decision should be reversed. Our personal jurisdiction precedents call for a two-part analysis. The contacts prong asks whether the defendant has sufficient contacts with the forum State to support personal jurisdiction; the reasonableness prong asks whether the exercise of jurisdiction would be unreasonable under the circumstances. Burger King As the majority points out, all of the cases in which we have applied the reasonableness prong have involved specific as opposed to general jurisdiction. Ante, at 21, n. 20. Whether the reasonableness prong should apply in the general jurisdic tion context is therefore a question we have never decided,1 and it is one on which I can appreciate the arguments on both sides. But it would be imprudent to decide that question in this case given that respondents have failed to argue against the application of the reasonableness prong during the entire -year history of this litigation. See Brief for Respondents 11, 12, 13, 16 (“[E]very circuit that has considered the question has held, implicitly or explicitly, that the reasonableness inquiry is applicable to all questions of personal jurisdiction, general or specific”); see also, e.g., ; Base Metal Trading, ; ; Amoco Egypt Oil Co. v. Leonis Navigation Co., ; Donatelli v. National Hockey League, ; Bearry v. Beech Aircraft Without the benefit of a single page of briefing on the issue, the majority casually adds each of these cases to the mounting list of decisions jettisoned as a consequence of today’s ruling. See ante, at 21, n. 20. 4 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment of the reasonableness inquiry); Plaintiffs’ Opposition to Defendant’s Motion to Quash Service of Process and to Dismiss for Lack of Personal Jurisdiction in No. 04– 00194–RMW pp. 14–23 (same). As a result, I would decide |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | 00194–RMW pp. 14–23 (same). As a result, I would decide this case under the reasonable ness prong without foreclosing future consideration of whether that prong should be limited to the specific juris diction context.2 We identified the factors that bear on reasonableness in Asahi Metal Industry : “the burden on the defendant, the interests of the forum State,” “the plaintiff ’s interest in obtaining relief ” in the forum State, and the interests of other sovereigns in resolving the dispute. at 113–114. We held in Asahi that it would be “unreasonable and unfair” for a California court to exercise jurisdiction over a claim between a Taiwanese plaintiff and a Japanese de fendant that arose out of a transaction in Taiwan, particu larly where the Taiwanese plaintiff had not shown that it would be more convenient to litigate in California than in Taiwan or Japan. The same considerations resolve this case. It involves Argentine plaintiffs suing a German defendant for conduct that took place in Argentina. Like the plaintiffs in Asahi, respondents have failed to show that it would be more convenient to litigate in California than in Germany, a —————— 2 While our decisions rejecting the exercise of personal jurisdiction have typically done so under the minimum-contacts prong, we have never required that prong to be decided first. See Asahi Metal Industry (Stevens, J., concurring in part and concurring in judgment) (rejecting personal jurisdiction under the reasonableness prong and declining to consider the minimum-contacts prong because doing so would not be “necessary”). And although the majority frets that deciding this case on the reasonableness ground would be “a resolution fit for this day and case only,” ante, at 21, n. 20, I do not understand our constitutional duty to require otherwise. Cite as: 571 U. S. (2014) 5 SOTOMAYOR, J., concurring in judgment sovereign with a far greater interest in resolving the dispute. Asahi thus makes clear that it would be unrea sonable for a court in California to subject Daimler to its jurisdiction. II The majority evidently agrees that, if the reasonable ness prong were to apply, it would be unreasonable for California courts to exercise jurisdiction over Daimler in this case. See ante, at 20–21 (noting that it would be “exor bitant” for California courts to exercise general jurisdiction over Daimler, a German defendant, in this “Argentina rooted case” brought by “foreign plaintiffs”). But instead of resolving the case on this uncontroversial basis, the majority reaches out to decide it on a ground neither argued nor decided below.3 We generally do not pass on arguments that lower courts |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | We generally do not pass on arguments that lower courts have not addressed. See, e.g., After all, “we are a court of review, not of first view.” This principle carries even greater force where the argument at issue was never pressed below. See 205 (2001). Yet the majority disregards this principle, basing its decision on an argument raised for the first time —————— 3 The majority appears to suggest that Daimler may have presented the argument in its petition for rehearing en banc before the Ninth Circuit. See ante, at 5 (stating that Daimler “urg[ed] that the exercise of personal jurisdiction could not be reconciled with this Court’s decision in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. (2011)”). But Daimler’s petition for rehearing did not argue what the Court holds today. The Court holds that Daimler’s Califor- nia contacts would be insufficient for general jurisdiction even assum ing that MBUSA’s contacts may be attributed to Daimler. Daimler’s rehearing petition made a distinct argument—that attribution of MBUSA’s contacts should not be permitted under an “ ‘agency’ theory” because doing so would “rais[e] significant constitutional concerns” under Goodyear. Petition for Rehearing or Rehearing En Banc in No. 07–1536 (CA9), p. 9. 6 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment in a footnote of Daimler’s merits brief before this Court. Brief for Petitioner 32, n. 5 (“Even if MBUSA were a divi sion of Daimler AG rather than a separate corporation, Daimler AG would still not be ‘at home’ in California”). The majority’s decision is troubling all the more because the parties were not asked to brief this issue. We granted certiorari on the question “whether it violates due process for a court to exercise general personal jurisdiction over a foreign corporation based solely on the fact that an indi rect corporate subsidiary performs services on behalf of the defendant in the forum State.” Pet. for Cert. i. At no point in Daimler’s petition for certiorari did the company contend that, even if this attribution question were de cided against it, its contacts in California would still be in- sufficient to support general jurisdiction. The parties’ merits briefs accordingly focused on the attribution-of-contacts question, addressing the reasonableness inquiry (which had been litigated and decided below) in most of the space that remained. See Brief for Petitioner 17–37, 37–43; Brief for Respondents 1–47, 47–59. In bypassing the question on which we granted certio rari to decide an issue not litigated below, the Court leaves respondents “without an unclouded opportunity to air the issue the Court today decides against |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | opportunity to air the issue the Court today decides against them,” Comcast v. Behrend, 569 U. S. (2013) (GINSBURG and BREYER, JJ., dissenting) (slip op., at 3). Doing so “does ‘not reflect well on the processes of the Court.’ ” (Harlan, J., dissenting)). “And by resolving a complex and fact-intensive question without the benefit of full briefing, the Court invites the error into which it has fallen.” 569 U. S., at (slip op., at 3). The relevant facts are undeveloped because Daimler conceded at the start of this litigation that MBUSA is subject to general jurisdiction based on its California contacts. We therefore do not know the full extent of those Cite as: 571 U. S. (2014) 7 SOTOMAYOR, J., concurring in judgment contacts, though what little we do know suggests that Daimler was wise to concede what it did. MBUSA imports more than 200,000 vehicles into the United States and distributes many of them to independent dealerships in California, where they are sold. Declaration of Dr. Peter Waskönig in Bauman v. DaimlerChrysler No. 04– 00194–RMW (ND Cal.), ¶ 10, p. 2. MBUSA’s California sales account for 2.4% of Daimler’s worldwide sales, which were $192 billion in 2004.4 And 2.4% of $192 billion is $4.6 billion, a considerable sum by any measure. MBUSA also has multiple offices and facilities in California, in cluding a regional headquarters. But the record does not answer a number of other important questions. Are any of Daimler’s key files main tained in MBUSA’s California offices? How many employ ees work in those offices? Do those employees make important strategic decisions or oversee in any manner Daimler’s activities? These questions could well affect whether Daimler is subject to general jurisdiction. After all, this Court upheld the exercise of general jurisdiction in 447–44 —which the majority refers to as a “text book case” of general jurisdiction, ante, at 10—on the basis that the foreign defendant maintained an office in Ohio, kept corporate files there, and oversaw the company’s activities from the State. California-based MBUSA em ployees may well have done similar things on Daimler’s behalf.5 But because the Court decides the issue without a —————— 4 See DaimlerChrysler, Innovations for our Customers: Annual Report 2004, p. 22, http://www.daimler.com/Projects/c2c/channel/documents/ 1364_2004_DaimlerChrysler_Annual_Report.pdf (as visited on Jan. 2014, and available in Clerk of Court’s case file). 5 To be sure, many of Daimler’s key management decisions are un doubtedly made by employees outside California. But the same was true in See v. Benguet Consol. Min. Co., Ohio App. 11, ; see also Helicop- teros Nacionales de Colombia, S. 466 U.S. 40, |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | also Helicop- teros Nacionales de Colombia, S. 466 U.S. 40, 416 (194) (asking whether defendant had “continuous and systematic general business contacts”).6 In every case where we have applied this test, we have focused solely on the magnitude of the defendant’s in-state contacts, not the relative magnitude of those contacts in comparison to the defendant’s contacts with other States. In for example, we found an Ohio court’s exer —————— decisions made by the company’s chief of staff in Manila and a purchas ing agent in California); see also n. infra. 6 While Helicopteros formulated the general jurisdiction inquiry as asking whether a foreign defendant possesses “continuous and system atic general business contacts,” the majority correctly notes, ante, at 19, that International used the phrase “continuous and systematic” in the context of discussing specific jurisdiction, 326 U.S., at 317. But the majority recognizes that International separately described the type of contacts needed for general jurisdiction as “continuous corporate operations” that are “so substantial” as to justify suit on unrelated causes of action. at 31. It is unclear why our precedents departed from International ’s “continuous and substantial” formulation in favor of the “continuous and systematic” formulation, but the majority does not contend—nor do I perceive—that there is a material difference between the two. Cite as: 571 U. S. (2014) 9 SOTOMAYOR, J., concurring in judgment cise of general jurisdiction permissible where the presi dent of the foreign defendant “maintained an office,” “drew and distributed salary checks,” used “two active bank accounts,” “supervised the rehabilitation of the corpo ration’s properties in the Philippines,” and held “directors’ meetings,” in –44. At no point did we attempt to catalog the company’s contacts in forums other than Ohio or to compare them with its Ohio con tacts. If anything, we intimated that the defendant’s Ohio contacts were not substantial in comparison to its contacts elsewhere. See at 43 (noting that the defendant’s Ohio contacts, while “continuous and systematic,” were but a “limited part of its general business”).7 We engaged in the same inquiry in Helicopteros. There, we held that a Colombian corporation was not subject to general jurisdiction in Texas simply because it occasion ally sent its employees into the State, accepted checks drawn on a Texas bank, and purchased equipment and services from a Texas company. In no sense did our anal ysis turn on the extent of the company’s operations beyond —————— 7 The majority suggests that I misinterpret language in that I do not even cite. Ante, at 11, n. The majority is quite correct that it has found a sentence in |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | is quite correct that it has found a sentence in that does not address whether most of the Philippine corporation’s activities took place outside of See ante, at 11, n. (noting that described the company’s “wartime activities” as “necessarily limited,” 342 U.S., at 44). That is why I did not mention it. I instead rely on a sentence in ’ opening para graph: “The [Philippine] corporation has been carrying on in Ohio a continuous and systematic, but limited, part of its general business.” at 43. That sentence obviously does convey that most of the corporation’s activities occurred in “places other than Ohio,” ante, at 11, n. This is not surprising given that the company’s Ohio contacts involved a single officer working from a home office, while its non-Ohio contacts included significant mining properties and machinery operated throughout the Philippines, Philippine employees (including a chief of staff), a purchasing agent based in California, and board of directors meetings held in Washington, New York, and San Ohio App., at 123–, 95 N.E.2d, at ; see also n. infra. 10 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Texas. Most recently, in Goodyear Dunlop Tires Operations, S. A. v. Brown, 564 U. S. (2011), our analysis again focused on the defendant’s in-state contacts. Goodyear involved a suit against foreign tire manufacturers by North Carolina residents whose children had died in a bus accident in France. We held that North Carolina courts could not exercise general jurisdiction over the foreign defendants. Just as in and Helicopteros, our opinion in Goodyear did not identify the defendants’ con tacts outside of the forum State, but focused instead on the defendants’ lack of offices, employees, direct sales, and business operations within the State. This approach follows from the touchstone principle of due process in this field, the concept of reciprocal fairness. When a corporation chooses to invoke the benefits and protections of a State in which it operates, the State ac quires the authority to subject the company to suit in its courts. See International (“[T]o the extent that a corporation exercises the privilege of con ducting activities within a state, it enjoys the benefits and protection of the laws of that state” such that an “obliga tio[n] arise[s]” to respond there to suit); J. McIntyre Ma- chinery, Ltd. v. Nicastro, 564 U. S. (2011) (plurality opinion) (slip op., at 5) (same principle for general jurisdiction). The majority’s focus on the extent of a corpo rate defendant’s out-of-forum contacts is untethered from this rationale. After all, the degree to which a company intentionally benefits from a |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | the degree to which a company intentionally benefits from a forum State depends on its interactions with that State, not its interactions else where. An article on which the majority relies (and on which Goodyear relied as well, 564 U. S., at (slip op., at 7)) expresses the point well: “We should not treat de fendants as less amenable to suit merely because they carry on more substantial business in other states [T]he amount of activity elsewhere seems virtually irrele Cite as: 571 U. S. (2014) 11 SOTOMAYOR, J., concurring in judgment vant to the imposition of general jurisdiction over a defendant.” Brilmayer et al., A General Look at General Jurisdiction, 66 Texas L. Rev. 721, 742 (19). Had the majority applied our settled approach, it would have had little trouble concluding that Daimler’s Califor nia contacts rise to the requisite level, given the majority’s assumption that MBUSA’s contacts may be attributed to Daimler and given Daimler’s concession that those con tacts render MBUSA “at home” in California. Our cases have long stated the rule that a defendant’s contacts with a forum State must be continuous, substantial, and sys tematic in order for the defendant to be subject to that State’s general jurisdiction. See We offered additional guidance in Goodyear, adding the phrase “essentially at home” to our prior formulation of the rule. 564 U. S., at (slip op., at 2) (a State may exercise general jurisdiction where a defendant’s “affilia tions with the State are so ‘continuous and systematic’ as to render [the defendant] essentially at home in the forum State”). We used the phrase “at home” to signify that in order for an out-of-state defendant to be subject to general jurisdiction, its continuous and substantial contacts with a forum State must be akin to those of a local enterprise that actually is “at home” in the State. See Brilmayer, —————— The majority views the phrase “at home” as serving a different purpose—that of requiring a comparison between a defendant’s in-state and out-of-state contacts. Ante, at 21, n. 20. That cannot be the correct understanding though, because among other things it would cast grave doubt on —a case that Goodyear pointed to as an exemplar of general jurisdiction, 564 U. S., at (slip op., at 11). For if had applied the majority’s newly minted proportionality test, it would have come out the other way. The majority apparently thinks that the Philippine corporate defend ant in did not have meaningful operations in places other than See ante, at 10–11, and n. But one cannot get past the second sentence of |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | n. But one cannot get past the second sentence of before realizing that is wrong. That sentence reads: 12 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment Under this standard, Daimler’s concession that MBUSA is subject to general jurisdiction in California (a concession the Court accepts, ante, at 15, 17) should be dispositive. For if MBUSA’s California contacts are so substantial and the resulting benefits to MBUSA so significant as to make MBUSA “at home” in California, the same must be true of Daimler when MBUSA’s contacts and benefits are viewed as its own. Indeed, until a footnote in its brief before this Court, even Daimler did not dispute this conclusion for eight years of the litigation. B The majority today concludes otherwise. Referring to —————— “The corporation has been carrying on in Ohio a continuous and sys tematic, but limited, part of its general business.” 342 U.S., at 43. Indeed, the facts of the case set forth by the Ohio Court of Appeals show just how “limited” the company’s Ohio contacts—which included a single officer keeping files and managing affairs from his Ohio home office—were in comparison with its “general business” operations elsewhere. By the time the suit was commenced, the company had resumed its considerable mining operations in the Philippines, “ ‘re building its properties’ ” there and purchasing “ ‘machinery, supplies and equipment.’ ” Ohio App., at 123–, 95 N.E.2d, at More over, the company employed key managers in other forums, including a purchasing agent in San Francisco and a chief of staff in the Philip pines. at 95 N. E. 2d, at The San Francisco purchasing agent negotiated the purchase of the company’s machinery and supplies “ ‘on the direction of the Company’s Chief of Staff in Manila,’ ” ib a fact that squarely refutes the majority’s assertion that “[a]ll of Ben guet’s activities were directed by the company’s president from within Ohio,” ante, at 11, n. And the vast majority of the company’s board of directors meetings took place outside Ohio, in locations such as Wash ington, New York, and San Ohio App., at 125, 94 N.E. 2d, at In light of these facts, it is all but impossible to reconcile the result in with the proportionality test the majority announces today. Goodyear’s use of the phrase “at home” is thus better understood to require the same general jurisdiction inquiry that required: An out-of-state business must have the kind of continuous and substantial in-state presence that a parallel local company would have. Cite as: 571 U. S. (2014) 13 SOTOMAYOR, J., concurring in judgment |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | 571 U. S. (2014) 13 SOTOMAYOR, J., concurring in judgment the “continuous and systematic” contacts inquiry that has been taught to generations of first-year law students as “unacceptably grasping,” ante, at 19, the majority an nounces the new rule that in order for a foreign defendant to be subject to general jurisdiction, it must not only pos sess continuous and systematic contacts with a forum State, but those contacts must also surpass some unspeci fied level when viewed in comparison to the company’s “nationwide and worldwide” activities. Ante, at 21, n. 20.9 Neither of the majority’s two rationales for this propor tionality requirement is persuasive. First, the majority suggests that its approach is necessary for the sake of predictability. Permitting general jurisdiction in every State where a corporation has continuous and substantial contacts, the majority asserts, would “scarcely permit out of-state defendants ‘to structure their primary conduct with some minimum assurance as to where that conduct will and will not render them liable to suit.’ ” Ante, at 21 (quoting Burger King ). But there is nothing unpredictable about a rule that instructs multi national corporations that if they engage in continuous and substantial contacts with more than one State, they will be subject to general jurisdiction in each one. The majority may not favor that rule as a matter of policy, but such disagreement does not render an otherwise routine —————— 9 I accept at face value the majority’s declaration that general juris diction is not limited to a corporation’s place of incorporation and principal place of business because “a corporation’s operations in a forum other than its formal place of incorporation or principal place of business may be so substantial and of such a nature as to render the corporation at home in the State.” Ante, at 20, n. 19; see also ante, at 19. Were that not so, our analysis of the defendants’ in-state contacts in Helicop- teros Nacionales de Colombia, S. 466 U.S. 40 (194), and Goodyear would have been irrelevant, as none of the defendants in those cases was sued in its place of incorporation or principal place of business. 14 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment test unpredictable. Nor is the majority’s proportionality inquiry any more predictable than the approach it rejects. If anything, the majority’s approach injects an additional layer of uncer tainty because a corporate defendant must now try to foretell a court’s analysis as to both the sufficiency of its contacts with the forum State itself, as well as the relative sufficiency of those contacts in light of |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | as the relative sufficiency of those contacts in light of the company’s operations elsewhere. Moreover, the majority does not even try to explain just how extensive the company’s in-state contacts must be in the context of its global oper- ations in order for general jurisdiction to be proper. The majority’s approach will also lead to greater unpre dictability by radically expanding the scope of jurisdic tional discovery. Rather than ascertaining the extent of a corporate defendant’s forum-state contacts alone, courts will now have to identify the extent of a company’s con tacts in every other forum where it does business in order to compare them against the company’s in-state contacts. That considerable burden runs headlong into the major- ity’s recitation of the familiar principle that “ ‘[s]imple jurisdictional rules promote greater predictability.’ ” Ante, at 1–19 (quoting Hertz v. Friend, 559 U.S. 77, 94 (2010)). Absent the predictability rationale, the majority’s sole remaining justification for its proportionality approach is its unadorned concern for the consequences. “If Daimler’s California activities sufficed to allow adjudication of this Argentina-rooted case in California,” the majority la ments, “the same global reach would presumably be avail able in every other State in which MBUSA’s sales are sizable.” Ante, at 20. The majority characterizes this result as “exorbitant,” ib but in reality it is an inevitable consequence of the rule of due process we set forth nearly 70 years ago, that there are “instances in which [a company’s] continuous Cite as: 571 U. S. (2014) 15 SOTOMAYOR, J., concurring in judgment corporate operations within a state” are “so substantial and of such a nature as to justify suit against it on causes of action arising from dealings entirely distinct from those activities,” International 326 U.S., at 31. In the era of International it was rare for a corporation to have such substantial nationwide contacts that it would be subject to general jurisdiction in a large number of States. Today, that circumstance is less rare. But that is as it should be. What has changed since International is not the due process principle of fundamental fairness but rather the nature of the global economy. Just as it was fair to say in the 1940’s that an out-of-state company could enjoy the benefits of a forum State enough to make it “essentially at home” in the State, it is fair to say today that a multinational conglomerate can enjoy such extensive benefits in multiple forum States that it is “essentially at home” in each one. In any event, to the extent the majority is concerned with the modern-day |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | to the extent the majority is concerned with the modern-day consequences of International ’s conception of personal jurisdiction, there remain other judicial doctrines available to mitigate any resulting un fairness to large corporate defendants. Here, for instance, the reasonableness prong may afford petitioner relief. See at 3–4. In other cases, a defendant can assert the doctrine of forum non conveniens if a given State is a highly inconvenient place to litigate a dispute. See Gulf Oil v. Gilbert, 50–509 In still other cases, the federal change of venue statute can pro vide protection. See 2 U.S. C. (permitting transfers to other districts “[f]or the convenience of parties and witnesses” and “in the interests of justice”). And to the degree that the majority worries these doctrines are not enough to protect the economic interests of multina tional businesses (or that our longstanding approach to general jurisdiction poses “risks to international comity,” ante, at 22), the task of weighing those policy concerns 16 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment belongs ultimately to legislators, who may amend state and federal long-arm statutes in accordance with the democratic process. Unfortunately, the majority short circuits that process by enshrining today’s narrow rule of general jurisdiction as a matter of constitutional law. C The majority’s concern for the consequences of its deci sion should have led it the other way, because the rule that it adopts will produce deep injustice in at least four respects. First, the majority’s approach unduly curtails the States’ sovereign authority to adjudicate disputes against corporate defendants who have engaged in continuous and substantial business operations within their boundaries.10 The majority does not dispute that a State can exercise general jurisdiction where a corporate defendant has its corporate headquarters, and hence its principal place of business within the State. Cf. Hertz 559 U.S., at 93. Yet it never explains why the State should lose that power when, as is increasingly common, a corporation “divide[s] [its] command and coordinating functions among officers who work at several different locations.” at 95–96. Suppose a company divides its management func tions equally among three offices in different States, with one office nominally deemed the company’s corporate headquarters. If the State where the headquarters is located can exercise general jurisdiction, why should the —————— 10 States will of course continue to exercise specific jurisdiction in many cases, but we have never held that to be the outer limit of the States’ authority under the Due Process Clause. That is because the two forms of jurisdiction address different concerns. Whereas specific jurisdiction focuses on the |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | jurisdiction address different concerns. Whereas specific jurisdiction focuses on the relationship between a defendant’s chal lenged conduct and the forum State, general jurisdiction focuses on the defendant’s substantial presence in the State irrespective of the loca tion of the challenged conduct. Cite as: 571 U. S. (2014) 17 SOTOMAYOR, J., concurring in judgment other two States be constitutionally forbidden to do the same? Indeed, under the majority’s approach, the result would be unchanged even if the company has substantial operations within the latter two States (and even if the company has no sales or other business operations in the first State). Put simply, the majority’s rule defines the Due Process Clause so narrowly and arbitrarily as to contravene the States’ sovereign prerogative to subject to judgment defendants who have manifested an unqualified “intention to benefit from and thus an intention to submit to the[ir] laws,” J. McIntyre, 564 U. S., at (plurality opinion) (slip op., at 5). Second, the proportionality approach will treat small businesses unfairly in comparison to national and multi national conglomerates. Whereas a larger company will often be immunized from general jurisdiction in a State on account of its extensive contacts outside the forum, a small business will not be. For instance, the majority holds today that Daimler is not subject to general jurisdiction in California despite its multiple offices, continuous opera tions, and billions of dollars’ worth of sales there. But imagine a small business that manufactures luxury vehi cles principally targeting the California market and that has substantially all of its sales and operations in the State—even though those sales and operations may amount to one-thousandth of Daimler’s. Under the major ity’s rule, that small business will be subject to suit in California on any cause of action involving any of its activ ities anywhere in the world, while its far more pervasive competitor, Daimler, will not be. That will be so even if the small business incorporates and sets up its headquar ters elsewhere (as Daimler does), since the small business’ California sales and operations would still predominate when “apprais[ed]” in proportion to its minimal “nation wide and worldwide” operations, ante, at 21, n. 20. Third, the majority’s approach creates the incongruous 1 DAIMLER AG v. BAUMAN SOTOMAYOR, J., concurring in judgment result that an individual defendant whose only contact with a forum State is a one-time visit will be subject to general jurisdiction if served with process during that visit, but a large corporation that owns property, employs workers, and does billions of dollars’ worth of business in the State will not be, |
Justice Sotomayor | 2,014 | 24 | concurring | Daimler AG v. Bauman | https://www.courtlistener.com/opinion/2649076/daimler-ag-v-bauman/ | dollars’ worth of business in the State will not be, simply because the corporation has similar contacts elsewhere (though the visiting individual surely does as well). Finally, it should be obvious that the ultimate effect of the majority’s approach will be to shift the risk of loss from multinational corporations to the individuals harmed by their actions. Under the majority’s rule, for example, a parent whose child is maimed due to the negligence of a foreign hotel owned by a multinational conglomerate will be unable to hold the hotel to account in a single U. S. court, even if the hotel company has a massive presence in multiple States. See, e.g., 2 F.3d 126411 Similarly, a U. S. business that enters into a contract in a foreign country to sell its products to a multinational company there may be unable to seek relief in any U. S. court if the multinational com pany breaches the contract, even if that company has considerable operations in numerous U. S. forums. See, e.g., Walpex Trading 712 F. Supp. 33 (SDNY 199).12 —————— 11 See also, e.g., Woods v. Nova Companies Belize Ltd., 739 So. 2d 617, 620–621 (Fla. App. 1999) (estate of decedent killed in an overseas plane crash permitted to sue responsible Belizean corporate defendant in Florida courts, rather than Belizean courts, based on defendant’s continuous and systematic business contacts in Florida). 12 The present case and the examples posited involve foreign corpo rate defendants, but the principle announced by the majority would apply equally to preclude general jurisdiction over a U. S. company that is incorporated and has its principal place of business in another U. S. State. Under the majority’s rule, for example, a General Motors auto worker who retires to Florida would be unable to sue GM in that State Cite as: 571 U. S. (2014) 19 SOTOMAYOR, J., concurring in judgment Indeed, the majority’s approach would preclude the plain tiffs in these examples from seeking recourse anywhere in the United States even if no other judicial system was available to provide relief. I cannot agree with the major- ity’s conclusion that the Due Process Clause requires these results. * * * The Court rules against respondents today on a ground that no court has considered in the history of this case, that this Court did not grant certiorari to decide, and that Daimler raised only in a footnote of its brief. In doing so, the Court adopts a new rule of constitutional law that is unmoored from decades of precedent. Because I would reverse the Ninth Circuit’s decision |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | This is yet another dispute arising out of legislative redistricting and reapportionment See, e g, Growe v Emison, ante, p 25 Today we consider whether Ohio's creation of several legislative districts dominated by minority voters violated 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973 I Under the Ohio Constitution, the state apportionment board must reapportion electoral districts for the state legislature every 10 years Ohio Const, Art XI, 1 In 1991, the board selected James Tilling to draft a proposed apportionment plan After conducting public hearings and meeting with members of historically underrepresented groups, Tilling drafted a plan that included eight so-called majorityminority districtsdistricts in which a majority of the population is a member of a specific minority group The board adopted the plan with minor amendments by a 3-to-2 vote along party lines The board's three Republican members voted for the plan; the two Democrats voted against it ; App to Juris Statement 160a167a, 183a Appellees Barney Quilter and Thomas Ferguson, the two Democratic members of the board who voted against the plan, and various Democratic electors and legislators filed this lawsuit in the United States District Court for the Northern District of Ohio seeking the plan's invalidation They alleged that the plan violated 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, and the Fourteenth and Fifteenth Amendments to the United States -696 According to appellees, the plan "packed" black voters by creating districts in which they would constitute a disproportionately large majority This, appellees contended, minimized the total number of districts in which black voters could select their candidate of *150 choice In appellees' view, the plan should have created a larger number of "influence" districtsdistricts in which black voters would not constitute a majority but in which they could, with the help of a predictable number of crossover votes from white voters, elect their candidates of choice See App to Juris Statement 141a142a Appellants, by contrast, argued that the plan actually enhanced the strength of black voters by providing "safe" minoritydominated districts The plan, they pointed out, compared favorably with the 1981 apportionment and had the backing of the National Association for the Advancement of Colored People, Ohio Conference of Branches (Ohio NAACP) A three-judge District Court heard the case and held for appellees Relying on various statements Tilling had made in the course of the reapportionment hearings, the court found that the board had created minority-dominated districts "whenever possible" Id, The District Court rejected appellants' contention that 2 of the Voting Rights Act of |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | appellants' contention that 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, requires that such districts be created wherever possible 794 F Supp, at 699 It further held that 2 actually prohibits the "wholesale creation of majority-minority districts" unless necessary to "`remedy' " a 2 violation Id, The District Court therefore ordered the board to draft a new plan or demonstrate that it was remedying a 2 violation Id, Judge Dowd dissented, arguing that the majority's analysis "place[d] the cart before the horse" Id, In his view, 2 does not require the State to show a violation before creating a majority-minority district Rather, the State may create any district it might desire, so long as minority voting strength is not diluted as a result Because appellees failed to demonstrate that the 1991 plan diluted the balloting strength of black voters, Judge Dowd thought their challenge should fail Id, *151 The apportionment board responded by creating a record that, in its view, justified the creation of majority-minority districts The board also adjusted the plan to correct "technical" errors that the Ohio Supreme Court had identified in its independent review of the plan This revised plan created only five majority-black districts App to Juris Statement 258a263a The District Court, however, was not satisfied with the board's proof In an order issued on March 10, itheld that "the [b]oard fail[ed] once again to justify its wholesale creation of majority-minority districts, thus rendering the plan, as submitted, violative of the Voting Rights Act of 1965" 794 F Supp 756, (ND Ohio) The court then appointed a special master to prepare a redistricting plan Ibid Once again, Judge Dowd dissented Id, Nine days later, on March 19, the District Court issued an order reaffirming its view that the creation of majority-minority districts is impermissible under 2 unless necessary to remedy a statutory violation App to Juris Statement 128a141a The order also restated the court's conclusion that the board had failed to prove a violation Specifically, it noted "the absence of racial bloc voting, the [ability of black voters] to elect both black and white candidates of their choice, and the fact that such candidates ha[d] been elected over a sustained period of time" Id, at 130a In addition, the order rejected as "clever sophistry" appellants' argument that the District Court should not have invalidated the 1991 plan without finding that, under the totality of the circumstances, it diluted minority voting strength: "Having implemented the Voting Rights Act remedy in the absence of a violation, [appellants] suggest that we are now |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | absence of a violation, [appellants] suggest that we are now required to establish a violation as a prerequisite to removing the remedy Actually, however, this task is not as difficult as it seems The totality of circumstances reveals coalitional voting between whites and blacks As a result, black candidates have been repeatedly *152 elected from districts with only a 35% black population Against this background, the per se requirement of the creation of majority-minority districts has a dilutive effect on black votes " Id, at 141a, 142a (footnotes omitted) The District Court further concluded that, because the board had applied the "`remedy' intentionally" and for the purpose of political advantage, it had violated not only 2 but the Fifteenth Amendment as well Id, at 142a143a Finally, the court held that the plan violated the Fourteenth Amendment because it departed from the requirement that all districts be of nearly equal population Id, at 146a148a On March 31, the District Court ordered that the primary elections for Ohio's General Assembly be rescheduled 794 F Supp 760 (ND Ohio) On April 20, this Court granted appellants' application for a stay of the District Court's orders, 503 US 979; and on June 1, we noted probable jurisdiction, 504 US 954 We now reverse the judgment of the District Court and remand only for further proceedings on whether the plan's deviation from equal population among districts violates the Fourteenth Amendment II Congress enacted 2 of the Voting Rights Act of 1965, 42 US C 1973, to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall "be denied or abridged on account of race, color, or previous condition of servitude," U S Const, Amdt 15 See NAACP v New York, 413 US 345, Section 2(a) of the Act prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen to vote on account of race or color" Section 2(b), in relevant part, specifies that 2(a) is violated if: "[B]ased on the totality of circumstances, it is shown that the political processes leading to nomination or election *153 in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice" 42 US C 1973(b) Section 2 thus prohibits any practice or procedure that, "interact[ing] with social and historical conditions," impairs the ability |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | that, "interact[ing] with social and historical conditions," impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters Thornburg v 8 US 30, A In the context of single-member districts, the usual device for diluting minority voting power is the manipulation of district lines A politically cohesive minority group that is large enough to constitute the majority in a single-member district has a good chance of electing its candidate of choice, if the group is placed in a district where it constitutes a majority Dividing the minority group among various districts so that it is a majority in none may prevent the group from electing its candidate of choice: Ifthe majority in each district votes as a bloc against the minority candidate, the fragmented minority group will be unable to muster sufficient votes in any district to carry its candidate to victory This case focuses not on the fragmentation of a minority group among various districts but on the concentration of minority voters within a district How such concentration or "packing" may dilute minority voting strength is not difficult to conceptualize A minority group, for example, might have sufficient numbers to constitute a majority in three districts So apportioned, the group inevitably will elect three candidates of its choice, assuming the group is sufficiently cohesive But if the group is packed into two districts in which it constitutes a super-majority, it will be *154 assured only two candidates As a result, we have recognized that "[d]ilution of racial minority group voting strength may be caused" either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority" Id, at 46, n 11 Appellees in this case, however, do not allege that Ohio's creation of majority-black districts prevented black voters from constituting a majority in additional districts Instead, they claim that Ohio's plan deprived them of "influence districts" in which they would have constituted an influential minority Black voters in such influence districts, of course, could not dictate electoral outcomes independently But they could elect their candidate of choice nonetheless if they are numerous enough and their candidate attracts sufficient cross-over votes from white voters We have not yet decided whether influence-dilution claims such as appellees' are viable under 2, Growe, ante, at 41, n 5; see at 46-, nn 11-12 ; nor do we decide that question today Instead, we assume for the purpose of resolving this case that appellees in fact |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | the purpose of resolving this case that appellees in fact have stated a cognizable 2 claim B The practice challenged here, the creation of majorityminority districts, does not invariably minimize or maximize minority voting strength Instead, it can have either effect or neither On the one hand, creating majority-black districts necessarily leaves fewer black voters and therefore diminishes black-voter influence in predominantly white districts On the other hand, the creation of majority-black districts can enhance the influence of black voters Placing black voters in a district in which they constitute a sizeable and therefore "safe" majority ensures that they are able to elect their candidate of choice Which effect the practice *155 has, if any at all, depends entirely on the facts and circumstances of each case The District Court, however, initially thought it unnecessary to determine the effect of creating majority-black districts under the totality of the circumstances In fact, the court did not believe it necessary to find vote dilution at all It instead held that 2 prohibits the creation of majorityminority districts unless such districts are necessary to remedy a statutory violation 794 F Supp, We disagree Section 2 contains no per se prohibitions against particular types of districts: It says nothing about majorityminority districts, districts dominated by certain political parties, or even districts based entirely on partisan political concerns Instead, 2 focuses exclusively on the consequences of apportionment Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate 2; where such an effect has not been demonstrated, 2 simply does not speak to the matter See 42 US C 1973(b) Indeed, in we expressly so held: "[E]lectoral devices may not be considered per se violative of 2 Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the electoral process" 8 US, at 46 As a result, the District Court was required to determine the consequences of Ohio's apportionment plan before ruling on its validity; the failure to do so was error The District Court's decision was flawed for another reason as well By requiring appellants to justify the creation of majority-minority districts, the District Court placed the burden of justifying apportionment on the State Section 2, however, places at least the initial burden of proving an apportionment's invalidity squarely on the plaintiff's shoulders Section 2(b) specifies that 2(a) is violated if "it is shown " that a state practice has the effect of denying a protected group equal access to the electoral process |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | denying a protected group equal access to the electoral process *156 42 US C 1973(b) (emphasis added) The burden of "show[ing]" the prohibited effect, of course, is on the plaintiff; surely Congress could not have intended the State to prove the invalidity of its own apportionment scheme See 8 U S, at 46 ; id, at 49, n 15 The District Court relieved appellees of that burden in this case solely because the State had created majority-minority districts Because that departure from the statutorily required allocation of burdens finds no support in the statute, it was error for the District Court to impose it Of course, the federal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law See Growe, ante, at 40-41 But that does not mean that the State's powers are similarly limited Quite the opposite is true: Federal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the States, and not the federal courts, to conduct apportionment in the first place Time and again we have emphasized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court' " Growe, ante, at 34 ) Accord, Connor v Finch, 431 US 407, )) Because the "States do not derive their reapportionment authority from the Voting Rights Act, but rather from independent provisions of state and federal law," Brief for United States as Amicus Curiae 12, the federal courts are bound to respect the States' apportionment choices unless those choices contravene federal requirements Cf Katzenbach v Morgan, *157 384 US 641, 6-648 Appellees' complaint does not allege that the State's conscious use of race in redistricting violates the Equal Protection Clause; the District Court below did not address the issue; and neither party raises it here Accordingly, we express no view on how such a claim might be evaluated We hold only that, under 2 of the Voting Rights Act of 1965, as amended, 42 US C 1973, plaintiffs can prevail on a dilution claim only if they show that, under the totality of the circumstances, the State's apportionment scheme has the effect of diminishing or abridging the voting strength of the protected class C In its order of March 19, the District Court found that the plan's creation of majority-minority districts "ha[d] a dilutive effect on black votes" App to Juris Statement 141a Again we disagree In Thornburg v this Court held that |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | Again we disagree In Thornburg v this Court held that plaintiffs claiming vote dilution through the use of multimember districts must prove three threshold conditions First, they must show that the minority group "`is sufficiently large and geographically compact to constitute a majority in a singlemember district' " Second, they must prove that the minority group "`is politically cohesive' " Third, the plaintiffs must establish "`that the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate' " Growe, ante, at 40 ( ) The District Court apparently thought the three factors inapplicable because Ohio has single-member rather than multimember districts 794 F Supp, at 699 (" ` preconditions are not applicable to the apportionment of single-member districts") In Growe, *158 however, we held that the preconditions apply in challenges to single-member as well as multimember districts Ante, at 40-41 Had the District Court employed the test in this case, it would have rejected appellees' 2 claim Of course, the factors cannot be applied mechanically and without regard to the nature of the claim For example, the first precondition, the requirement that the group be sufficiently large to constitute a majority in a single district, would have to be modified or eliminated when analyzing the influence-dilution claim we assume, arguendo, to be actionable today The complaint in such a case is not that black voters have been deprived of the ability to constitute a majority, but of the possibility of being a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority See ibid We need not decide how ` first factor might apply here, however, because appellees have failed to demonstrate ` third preconditionsufficient white majority bloc voting to frustrate the election of the minority group's candidate of choice The District Court specifically found that Ohio does not suffer from "racially polarized voting" 794 F Supp, at 700-701 Accord, App to Juris Statement 132a134a, and n 2, 139a140a Even appellees agree See Tr of Oral Arg 25 Here, as in "in the absence of significant white bloc voting it cannot be said that the ability of minority voters to elect their chosen representatives is inferior to that of white voters" 8 U S, at 49, n 15 The District Court's finding of a 2 violation, therefore, must be reversed III The District Court also held that the redistricting plan violated the Fifteenth Amendment because the apportionment board intentionally diluted minority voting strength for political reasons App to Juris Statement 142a143a *159 This Court |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | political reasons App to Juris Statement 142a143a *159 This Court has not decided whether the Fifteenth Amendment applies to vote-dilution claims; in fact, we never have held any legislative apportionment inconsistent with the Fifteenth Amendment Beer v United States, 425 US 130, 142-143, n 14 Nonetheless, we need not decide the precise scope of the Fifteenth Amendment's prohibition in this case Even if we assume that the Fifteenth Amendment speaks to claims like appellees', the District Court's decision still must be reversed: Its finding of intentional discrimination was clearly erroneous See Mobile v Bolden, 446 US 55, ; id, (White, J, dissenting); id, (Stevens, J, concurring in judgment); id, (Blackmun, J, concurring in result) The District Court cited only two pieces of evidence to support its finding First, the District Court thought it significant that the plan's drafter, Tilling, disregarded the requirements of the Ohio Constitution where he believed that the Voting Rights Act of 1965 required a contrary result App to Juris Statement 142a143a, n 8 But Tilling's preference for federal over state law when he believed the two in conflict does not raise an inference of intentional discrimination; it demonstrates obedience to the Supremacy Clause of the United States Second, the District Court cited Tilling's possession of certain documents that, according to the court, were tantamount to "a road-map detailing how [one could] create a racial gerrymander" Id at 143a, n 9 Apparently, the District Court believed that Tilling, a Republican, sought to minimize the Democratic Party's power by diluting minority voting strength See ibid The District Court, however, failed to explain the nature of the documents Contrary to the implication of the District Court opinion, the documents were not a set of Republican plans for diluting minority voting strength In fact, they were not even created by Tilling or the Republicans They were created by a Democrat who, concerned about possible Republican manipulation of apportionment, *160 set out the various types of political gerrymandering in which he thought the Republicans might engage App 99 100 That Tilling possessed documents in which the opposing party speculated that he might have a discriminatory strategy does not indicate that Tilling actually had such a strategy And nothing in the record indicates that Tilling relied on the documents in preparing the plan Indeed, the record demonstrates that Tilling and the board relied on sources that were wholly unlikely to engage in or tolerate intentional discrimination against black voters, including the Ohio NAACP, the Black Elected Democrats of Ohio, and the Black Elected Democrats of Cleveland, Ohio Tilling's plan actually incorporated much |
Justice O'Connor | 1,993 | 14 | majority | Voinovich v. Quilter | https://www.courtlistener.com/opinion/112824/voinovich-v-quilter/ | Elected Democrats of Cleveland, Ohio Tilling's plan actually incorporated much of the Ohio NAACP's proposed plan; the Ohio NAACP, for its part, fully supported the 1991 apportionment plan 794 F Supp, at 726-729; App to Juris Statement 164a167a, 269a0a Because the evidence not only fails to support but also directly contradicts the District Court's finding of discriminatory intent, we reverse that finding as clearly erroneous In so doing, we express no view on the relationship between the Fifteenth Amendment and race-conscious redistricting Cf United Jewish Organizations of Williamsburgh, Inc v Carey, 430 US 144, Neither party asserts that the State's conscious use of race by itself violates the Fifteenth Amendment Instead, they dispute whether the District Court properly found that the State intentionally discriminated against black voters On that question, we hold only that the District Court's finding of discriminatory intent was clear error IV Finally, the District Court held that the plan violated the Fourteenth Amendment because it created legislative districts of unequal size App to Juris Statement 146a 148a The Equal Protection Clause does require that electoral districts be "of nearly equal population, so that each *161 person's vote may be given equal weight in the election of representatives" Connor, 431 U S, at 416 But the requirement is not an inflexible one "[M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State" v 4 US 835, Here, the District Court found that the maximum total deviation from ideal district size exceeded 10% App to Juris Statement 148a As a result, appellees established a prima facie case of discrimination, and appellants were required to justify the deviation Appellants attempted to do just that, arguing that the deviation resulted from the State's constitutional policy in favor of preserving county boundaries See Ohio Const, Arts VIIXI The District Court therefore was required to decide whether the "plan `may reasonably be said to advance [the] rational state policy' " of preserving county boundaries "and, if so, `whether the population disparities among the districts that have resulted from the pursuit of th[e] plan exceed constitutional limits' " ) Rather than undertaking that inquiry, the District Court simply held that total |
Justice Marshall | 1,987 | 15 | majority | Perry v. Thomas | https://www.courtlistener.com/opinion/111920/perry-v-thomas/ | In this appeal we decide whether 2 of the Federal Arbitration Act, 9 U.S. C. 1 et seq., which mandates enforcement of arbitration agreements, pre-empts 229 of the California Labor Code, which provides that actions for the collection of wages may be maintained "without regard to the existence of any private agreement to arbitrate." Cal. Lab. Code Ann. 229 (West 1971). I Appellee, Kenneth Morgan Thomas, brought this action in California Superior Court against his former employer, Kidder, Peabody & Co. (Kidder, Peabody), and two of its employees, appellants Barclay Perry and James Johnston. His complaint arose from a dispute over commissions on the sale of securities. Thomas alleged breach of contract, conversion, civil conspiracy to commit conversion, and breach of *485 fiduciary duty, for which he sought compensatory and punitive damages. After Thomas refused to submit the dispute to arbitration, the defendants sought to stay further proceedings in the Superior Court. Perry and Johnston filed a petition in the Superior Court to compel arbitration; Kidder, Peabody invoked diversity jurisdiction and filed a similar petition in Federal District Court. Both petitions sought arbitration under the authority of 2 and 4 of the Federal Arbitration Act.[1] The demands for arbitration were based on a provision found in a Uniform Application for Securities Industry Registration form, which Thomas completed and executed in connection with his application for employment with Kidder, Peabody. That provision states: "I agree to arbitrate any dispute, claim or controversy that may arise between me and my firm, or a customer, or any other person, that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which I register" App. 33a. Rule 347 of the New York Stock Exchange, Inc. (1975), with which Thomas registered, provides that "[a]ny controversy between a registered representative and any member or member organization arising out of the employment or termination of employment of such registered representative by and with such member or member organization shall be settled by arbitration, at the instance of any such party" App. 34a. *486 Kidder, Peabody sought arbitration as a member organization of the New York Stock Exchange (NYSE). Perry and Johnston relied on Thomas' allegation that they had acted in the course and scope of their employment and argued that, as agents and employees of Kidder, Peabody, they were beneficiaries of the arbitration agreement. Thomas opposed both petitions on the ground that 229 of the California Labor Code authorized him to maintain an action for wages, defined to include commissions,[2] despite the existence of an agreement to arbitrate. He relied principally on |
Justice Marshall | 1,987 | 15 | majority | Perry v. Thomas | https://www.courtlistener.com/opinion/111920/perry-v-thomas/ | existence of an agreement to arbitrate. He relied principally on this Court's in Merrill Lynch, Pierce, Fenner & Smith, which had also considered the validity of 229 in the face of a pre-emption challenge under the Supremacy Clause, U. S. Const., Art. VI, cl. 2. Thomas maintained that the in Ware stood for the proposition that the State's interest in protecting wage earners outweighs the federal interest in uniform dispute resolution. The Superior Court denied appellants' petition to compel arbitration.[3]Thomas v. Kidder Peabody & Co., Civ. Action No. C529105 (reprinted at App. 128a-129a). The court characterized Ware as "controlling authority" which held that, "in accordance with California Labor Code Section 229, actions to collect wages may be pursued without regard to private arbitration agreements." at 129a. It further concluded that since Thomas' claims for conversion, civil conspiracy, and breach of fiduciary duty were ancillary to his claim for breach of *487 contract and differed only in terms of the remedies sought, they should also be tried and not severed for arbitration. at 128a-129a. The Superior Court did not address Thomas' contention that Perry and Johnston were "not parties" to the arbitration agreement, at 78a, and therefore lacked a contractual basis for asserting the right to arbitrate, an argument Thomas characterizes as one of "standing."[4] Before the California Court of Appeal, appellants argued that Ware resolved only the narrow issue whether 229 was pre-empted by Rule 347's provision for arbitration, given the promulgation of that Rule by the NYSE pursuant to 6 of the Securities Exchange Act of 1934 (1934 Act), as amended, 15 U.S. C. 78f, and the authority of the Securities and Exchange Commission (SEC) to review and modify the NYSE Rules pursuant to 19 of the 1934 Act, 15 U.S. C. 78s.[5] See It was appellants' contention that, despite an indirect reference to the Federal Arbitration *488 Act in footnote 15 of the Ware opinion, the pre-emptive effect of 2 of the Act was not at issue in that case. In an unpublished opinion, the Court of Appeal affirmed. Thomas v. Perry, 2d Civ. No. B014485 (reprinted at App. 139a-142a). It read Ware's single reference to the Federal Arbitration Act to imply that the Court had refused to hold 229 pre-empted by that Act and the litigants' agreement to arbitrate disputes pursuant to Rule 347. Thus, the Court of Appeal held that a claim for unpaid wages brought under 229 was not subject to compulsory arbitration, notwithstanding the existence of an arbitration agreement. App. 140a-141a. Like the Superior Court, the Court of Appeal also rejected appellants' argument, based |
Justice Marshall | 1,987 | 15 | majority | Perry v. Thomas | https://www.courtlistener.com/opinion/111920/perry-v-thomas/ | Court, the Court of Appeal also rejected appellants' argument, based on this Court's in Dean Witter Reynolds that the ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty were severable from the breach-of-contract claim and should be arbitrated. App. 142a. Finally, the Court of Appeal refused to consider Thomas' argument that Perry and Johnston lacked "standing" to enforce the arbitration agreement. The court concluded that Thomas had raised this argument for the first time on appeal.[6] at 140a, n. 1. *489 The California Supreme Court denied appellants' petition for review. at 144a. We noted probable jurisdiction,[7] and now reverse. II "Section 2 is a congressional declaration of a liberal federal policy favoring arbitration agreements, notwithstanding any state substantive or procedural policies to the contrary. The effect of the section is to create a body of federal substantive law of arbitrability, applicable to any arbitration agreement within the coverage of the Act." Moses H. Cone Memorial Enacted pursuant to the Commerce Clause, U. S. Const., Art. I, 8, cl. 3, this body of substantive law is enforceable in both state and federal courts. Southland ( 2 held to pre-empt a provision of the California Franchise Investment Law that California courts had interpreted to require judicial consideration of claims arising under that law). As we stated in "[i]n enacting 2 of the federal Act, Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." "Congress intended to foreclose state legislative attempts to undercut the enforceability of arbitration agreements." Section 2, therefore, embodies a clear federal policy of requiring arbitration unless the agreement to arbitrate is not part of a contract evidencing interstate commerce or is revocable "upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S. C. 2. "We see nothing in the Act indicating that the broad principle of enforceability *490 is subject to any additional limitations under state law." In Ware, which also involved a dispute between a securities broker and his former employer, we rejected a Supremacy Clause challenge to 229 premised in part on the contention that, because the 1934 Act had empowered the NYSE to promulgate rules and had given the SEC authority to review and modify these rules, a private agreement to be bound by the arbitration provisions of NYSE Rule 347 was enforceable as a matter of federal substantive law, and pre-empted state laws requiring resolution of the dispute in court. But |
Justice Marshall | 1,987 | 15 | majority | Perry v. Thomas | https://www.courtlistener.com/opinion/111920/perry-v-thomas/ | state laws requiring resolution of the dispute in court. But the federal substantive law invoked in Ware emanated from a specific federal regulatory statute governing the securities industry the 1934 Act. We examined the language and policies of the 1934 Act and found "no Commission rule or regulation that specifie[d] arbitration as the favored means of resolving employer-employee disputes," or that revealed a necessity for "nationwide uniformity of an exchange's housekeeping affairs." The fact that NYSE Rule 347 was outside the scope of the SEC's authority of review militated against finding a clear federal intent to require arbitration. Absent such a finding, we could not conclude that enforcement of California's 229 would interfere with the federal regulatory scheme. By contrast, the present appeal addresses the pre-emptive effect of the Federal Arbitration Act, a statute that embodies Congress' intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause. Its general applicability reflects that "[t]he preeminent concern of Congress in passing the Act was to enforce private agreements into which parties had entered" We have accordingly held that these agreements must be "rigorously enforce[d]." ; see Shearson/American Express Inc. v. McMahon, ante, at 226; Mitsubishi Motors This clear federal policy places 2 of the Act in unmistakable conflict with California's 229 requirement that litigants be provided a judicial forum for resolving wage disputes. Therefore, under the Supremacy Clause, the state statute must give way. The oblique reference to the Federal Arbitration Act in footnote 15 of the Ware cannot fairly be read as a definitive holding to the contrary. There, the Court noted a number of s as having "endorsed the suitability of arbitration to resolve federally created rights." Footnote 15 did not address the issue of federal pre-emption of state-created rights. Rather, the import of the footnote was that the reasoning and perhaps result in Ware might have been different if the 1934 Act "itself ha[d] provided for arbitration." [8] *492 Our holding that 2 of the Federal Arbitration Act pre-empts 229 of the California Labor Code obviates any need to consider whether our in would have required severance of Thomas' ancillary claims for conversion, civil conspiracy, and breach of fiduciary duty from his breach-of-contract claim. We likewise decline to reach Thomas' contention that Perry and Johnston lack "standing" to enforce the agreement to arbitrate any of these claims, since the courts below did not address this alternative argument for refusing to compel arbitration. However, we do reject Thomas' contention that resolving these questions in appellants' favor is a prerequisite to |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | James and Marilyn Nollan appeal from a decision of the California Court of Appeal ruling that the California Coastal Commission could condition its grant of permission to rebuild their house on their transfer to the public of an easement across their beachfront property. The California court rejected their claim that imposition of that condition violates the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. We noted probable jurisdiction. I The Nollans own a beachfront lot in Ventura County, California. A quarter-mile north of their property is Faria County Park, an oceanside public park with a public beach and recreation area. Another public beach area, known locally as "the Cove," lies 1,800 feet south of their lot. A concrete seawall approximately eight feet high separates the beach portion of the Nollans' property from the rest of the lot. The historic mean high tide line determines the lot's oceanside boundary. The Nollans originally leased their property with an option to buy. The building on the lot was a small bungalow, totaling 504 square feet, which for a time they rented to summer vacationers. After years of rental use, however, the building had fallen into disrepair, and could no longer be rented out. *828 The Nollans' option to purchase was conditioned on their promise to demolish the bungalow and replace it. In order to do so, under Cal. Pub. Res. Code Ann. 30106, 30212, and 30600 they were required to obtain a coastal development permit from the California Coastal Commission. On February 25, they submitted a permit application to the Commission in which they proposed to demolish the existing structure and replace it with a three-bedroom house in keeping with the rest of the neighborhood. The Nollans were informed that their application had been placed on the administrative calendar, and that the Commission staff had recommended that the permit be granted subject to the condition that they allow the public an easement to pass across a portion of their property bounded by the mean high tide line on one side, and their seawall on the other side. This would make it easier for the public to get to Faria County Park and the Cove. The Nollans protested imposition of the condition, but the Commission overruled their objections and granted the permit subject to their recordation of a deed restriction granting the easement. App. 31, 34. On June 3, the Nollans filed a petition for writ of administrative mandamus asking the Ventura County Superior Court to invalidate the access condition. They argued that the condition could not |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | the access condition. They argued that the condition could not be imposed absent evidence that their proposed development would have a direct adverse impact on public access to the beach. The court agreed, and remanded the case to the Commission for a full evidentiary hearing on that issue. On remand, the Commission held a public hearing, after which it made further factual findings and reaffirmed its imposition of the condition. It found that the new house would increase blockage of the view of the ocean, thus contributing to the development of "a `wall' of residential structures" that would prevent the public "psychologically from realizing a stretch of coastline exists nearby that they have every right *829 to visit." The new house would also increase private use of the shorefront. These effects of construction of the house, along with other area development, would cumulatively "burden the public's ability to traverse to and along the shorefront." Therefore the Commission could properly require the Nollans to offset that burden by providing additional lateral access to the public beaches in the form of an easement across their property. The Commission also noted that it had similarly conditioned 43 out of 60 coastal development permits along the same tract of land, and that of the 17 not so conditioned, 14 had been approved when the Commission did not have administrative regulations in place allowing imposition of the condition, and the remaining 3 had not involved shorefront property. The Nollans filed a supplemental petition for a writ of administrative mandamus with the Superior Court, in which they argued that imposition of the access condition violated the Takings Clause of the Fifth Amendment, as incorporated against the States by the Fourteenth Amendment. The Superior Court ruled in their favor on statutory grounds, finding, in part to avoid "issues of constitutionality," that the California Coastal Act of Cal. Pub. Res. Code Ann. 30000 et seq. authorized the Commission to impose public access conditions on coastal development permits for the replacement of an existing single-family home with a new one only where the proposed development would have an adverse impact on public access to the sea. App. 419. In the court's view, the administrative record did not provide an adequate factual basis for concluding that replacement of the bungalow with the house would create a direct or cumulative burden on public access to the sea. Accordingly, the Superior Court granted the writ of mandamus and directed that the permit condition be struck. The Commission appealed to the California Court of Appeal. While that appeal was pending, the Nollans satisfied |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | of Appeal. While that appeal was pending, the Nollans satisfied *830 the condition on their option to purchase by tearing down the bungalow and building the new house, and bought the property. They did not notify the Commission that they were taking that action. The Court of Appeal reversed the Superior Court. It disagreed with the Superior Court's interpretation of the Coastal Act, finding that it required that a coastal permit for the construction of a new house whose floor area, height or bulk was more than 10% larger than that of the house it was replacing be conditioned on a grant of access. ; see Cal. Pub. Res. Code Ann. 30212. It also ruled that that requirement did not violate the Constitution under the reasoning of an earlier case of the Court of Appeal, In that case, the court had found that so long as a project contributed to the need for public access, even if the project standing alone had not created the need for access, and even if there was only an indirect relationship between the access exacted and the need to which the project contributed, imposition of an access condition on a development permit was sufficiently related to burdens created by the project to be constitutional. -31; see 212 Cal. Rptr., 7-590; see also 209 Cal. Rptr. The Court of Appeal ruled that the record established that that was the situation with respect to the Nollans' -31. It ruled that the Nollans' taking claim also failed because, although the condition diminished the value of the Nollans' lot, it did not deprive them of all reasonable use of their property. ; see 212 Cal. Rptr., 5-596. Since, in the Court of Appeal's view, there was no statutory or constitutional obstacle to imposition *831 of the access condition, the Superior Court erred in granting the writ of mandamus. The Nollans appealed to this Court, raising only the constitutional question. II Had California simply required the Nollans to make an easement across their beachfront available to the public on a permanent basis in order to increase public access to the beach, rather than conditioning their permit to rebuild their house on their agreeing to do so, we have no doubt there would have been a taking. To say that the appropriation of a public easement across a landowner's premises does not constitute the taking of a property interest but rather (as JUSTICE BRENNAN contends) "a mere restriction on its use," post, at 848-849, n. 3, is to use words in a manner that deprives them of all their ordinary |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | in a manner that deprives them of all their ordinary meaning. Indeed, one of the principal uses of the eminent domain power is to assure that the government be able to require conveyance of just such interests, so long as it pays for them. J. Sackman, 1 Nichols on Eminent Domain 2.1[1] 2 5.01[5]; see 1 1.42[9], 2 6.14. Perhaps because the point is so obvious, we have never been confronted with a controversy that required us to rule upon it, but our cases' analysis of the effect of other governmental action leads to the same conclusion. We have repeatedly held that, as to property reserved by its owner for private use, "the right to exclude [others is] `one of the most essential sticks in the bundle of rights that are commonly characterized as property.' " quoting Kaiser In Loretto we observed that where governmental action results in "[a] permanent physical occupation" of the property, by the government itself or by others, see -, n. 9, "our cases uniformly have found a taking to the extent of the occupation, without regard to whether the action achieves an important public *832 benefit or has only minimal economic impact on the owner," We think a "permanent physical occupation" has occurred, for purposes of that rule, where individuals are given a permanent and continuous right to pass to and fro, so that the real property may continuously be traversed, even though no particular individual is permitted to station himself permanently upon the premises.[1] JUSTICE BRENNAN argues that while this might ordinarily be the case, the California Constitution's prohibition on any individual's "exclu[ding] the right of way to [any navigable] water whenever it is required for any public purpose," Art. X, 4, produces a different result here. Post, at 847-848, see also post, at 855, 857. There are a number of difficulties with that argument. Most obviously, the right of way sought here is not naturally described as one to navigable water (from the street to the sea) but along it; it is at least highly questionable whether the text of the California Constitution has any prima facie application to the situation before us. Even if it does, however, several California cases suggest that JUSTICE BRENNAN's interpretation of the effect of the clause is erroneous, and that to obtain easements of access across private property the State must proceed through its eminent domain power. See Bolsa Land ; ; ; Aptos Seascape (None of these cases specifically addressed *833 the argument that Art. X, 4, allowed the public to cross private property to get |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | 4, allowed the public to cross private property to get to navigable water, but if that provision meant what JUSTICE BRENNAN believes, it is hard to see why it was not invoked.) See also 41 Op. Cal. Atty. Gen. 39, 41 (1963) ("In spite of the sweeping provisions of [Art. X, 4], and the injunction therein to the Legislature to give its provisions the most liberal interpretation, the few reported cases in California have adopted the general rule that one may not trespass on private land to get to navigable tidewaters for the purpose of commerce, navigation or fishing"). In light of these uncertainties, and given the fact that, as JUSTICE BLACKMUN notes, the Court of Appeal did not rest its decision on Art. X, 4, post, at 865, we should assuredly not take it upon ourselves to resolve this question of California constitutional law in the first instance. See, e. g., That would be doubly inappropriate since the Commission did not advance this argument in the Court of Appeal, and the Nollans argued in the Superior Court that any claim that there was a pre-existing public right of access had to be asserted through a quiet title action, see Points and Authorities in Support of Motion for Writ of Administrative Mandamus, No. SP50805 (Super. Ct. Cal.), p. 20, which the Commission, possessing no claim to the easement itself, probably would not have had standing under California law to bring. See Cal. Code Civ. Proc. Ann. 738[2] *834 Given, then, that requiring uncompensated conveyance of the easement outright would violate the Fourteenth Amendment, the question becomes whether requiring it to be conveyed as a condition for issuing a land-use permit alters the outcome. We have long recognized that land-use regulation does not effect a taking if it "substantially advance[s] legitimate state interests" and does not "den[y] an owner economically viable use of his land," See also Penn Central Transportation Our cases have not elaborated on the standards for determining what constitutes a "legitimate state interest" or what type of connection between the regulation and the state interest satisfies the requirement that the former "substantially advance" the latter.[3] They have made clear, however, that a *835 broad range of governmental purposes and regulations satisfies these requirements. See at -262 ; Penn Central Transportation ; ; Laitos & Westfall, Government Interference with Private Interests in Public Resources, The Commission argues that among these permissible purposes are protecting the public's ability to see the beach, assisting the public in overcoming the "psychological barrier" to using the beach created by a developed shorefront, and |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | to using the beach created by a developed shorefront, and preventing congestion on the public beaches. We assume, without deciding, that this is so in which case the Commission unquestionably would be able to deny the Nollans their permit outright if their new house (alone, or by reason of the cumulative impact produced in conjunction with other construction)[4] would substantially impede these purposes, *836 unless the denial would interfere so drastically with the Nollans' use of their property as to constitute a taking. See Penn Central Transportation The Commission argues that a permit condition that serves the same legitimate police-power purpose as a refusal to issue the permit should not be found to be a taking if the refusal to issue the permit would not constitute a taking. We agree. Thus, if the Commission attached to the permit some condition that would have protected the public's ability to see the beach notwithstanding construction of the new house for example, a height limitation, a width restriction, or a ban on fences so long as the Commission could have exercised its police power (as we have assumed it could) to forbid construction of the house altogether, imposition of the condition would also be constitutional. Moreover (and here we come closer to the facts of the present case), the condition would be constitutional even if it consisted of the requirement that the Nollans provide a viewing sport on their property for passersby with whose sighting of the ocean their new house would interfere. Although such a requirement, constituting a permanent grant of continuous access to the property, would have to be considered a taking if it were not attached to a development permit, the Commission's assumed power to forbid construction of the house in order to protect the public's view of the beach must surely include the power to condition construction upon some concession by the owner, even a concession of property rights, that serves the same end. If a prohibition designed to accomplish that purpose would be a legitimate exercise of the police power rather than a taking, it would be strange to conclude that providing the *837 owner an alternative to that prohibition which accomplishes the same purpose is not. The evident constitutional propriety disappears, however, if the condition substituted for the prohibition utterly fails to further the end advanced as the justification for the prohibition. When that essential nexus is eliminated, the situation becomes the same as if California law forbade shouting fire in a crowded theater, but granted dispensations to those willing to contribute $100 to |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | but granted dispensations to those willing to contribute $100 to the state treasury. While a ban on shouting fire can be a core exercise of the State's police power to protect the public safety, and can thus meet even our stringent standards for regulation of speech, adding the unrelated condition alters the purpose to one which, while it may be legitimate, is inadequate to sustain the ban. Therefore, even though, in a sense, requiring a $100 tax contribution in order to shout fire is a lesser restriction on speech than an outright ban, it would not pass constitutional muster. Similarly here, the lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer limits of "legitimate state interests" in the takings and land-use context, this is not one of them. In short, unless the permit condition serves the same governmental purpose as the development ban, the building restriction is not a valid regulation of land use but "an out-and-out plan of extortion." J. E. D. Associates, ; see Brief for United States as Amicus Curiae 22, and n. 20. See also n. 17.[5] *838 III The Commission claims that it concedes as much, and that we may sustain the condition at issue here by finding that it is reasonably related to the public need or burden that the Nollans' new house creates or to which it contributes. We can accept, for purposes of discussion, the Commission's proposed test as to how close a "fit" between the condition and the burden is required, because we find that this case does not meet even the most untailored standards. The Commission's principal contention to the contrary essentially turns on a play on the word "access." The Nollans' new house, the Commission found, will interfere with "visual access" to the beach. That in turn (along with other shorefront development) will interfere with the desire of people who drive past the Nollans' house to use the beach, thus creating a "psychological barrier" to "access." The Nollans' new house will also, by a process not altogether clear from the Commission's opinion but presumably potent enough to more than offset the effects of the psychological barrier, increase the use of the public beaches, thus creating the need for more "access." These burdens on "access" would be alleviated by a requirement that the Nollans provide "lateral access" to |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | by a requirement that the Nollans provide "lateral access" to the beach. Rewriting the argument to eliminate the play on words makes clear that there is nothing to it. It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them *839 caused by construction of the Nollans' new We therefore find that the Commission's imposition of the permit condition cannot be treated as an exercise of its land-use power for any of these purposes.[6] Our conclusion on this point is consistent with the approach taken by every other court that has considered the question, with the exception of the California state courts. See ; Bethlehem Evangelical Lutheran 626 P.2d 8, ; Aunt Hack Ridge Estates, ; Longboat So. 2d 574 ; Pioneer Trust & Savings N.E.2d 799, ; ; (La. App.), application denied, 252 So. 2d 7 ; Howard ; ; State ex rel. ; *840 Billings Properties, ; ; Briar West, ; J. E. D. ; Longridge Builders, ; Jenad, (19); appeal denied, ; Frank Ansuini, ; College Station v. Turtle Rock 680 S.W.2d ; ; Board of Supervisors of James ; appeal dism'd, (19). See also ; Brief for National Association of Home Builders et al. as Amici Curiae 9-16. JUSTICE BRENNAN argues that imposition of the access requirement is not irrational. In his version of the Commission's argument, the reason for the requirement is that in its absence, a person looking toward the beach from the road will see a street of residential structures including the Nollans' new home and conclude that there is no public beach nearby. If, however, that person sees people passing and repassing along the dry sand behind the Nollans' home, he will realize that there is a public beach somewhere in the vicinity. Post, at 849-850. The Commission's action, however, was based on the opposite factual finding that the wall of houses completely blocked the view of the beach and that a person looking from the road would not be able to see it at all. App. 57-59. Even if the Commission had made the finding that JUSTICE BRENNAN proposes, however, it is not certain that it would *841 suffice. We do not share JUSTICE BRENNAN's confidence that the Commission "should have little difficulty in the future in utilizing its |
Justice Scalia | 1,987 | 9 | majority | Nollan v. California Coastal Comm'n | https://www.courtlistener.com/opinion/111958/nollan-v-california-coastal-commn/ | "should have little difficulty in the future in utilizing its expertise to demonstrate a specific connection between provisions for access and burdens on access," post, at 862, that will avoid the effect of today's decision. We view the Fifth Amendment's Property Clause to be more than a pleading requirement, and compliance with it to be more than an exercise in cleverness and imagination. As indicated earlier, our cases describe the condition for abridgment of property rights through the police power as a "substantial advanc[ing]" of a legitimate state interest. We are inclined to be particularly careful about the adjective where the actual conveyance of property is made a condition to the lifting of a land-use restriction, since in that context there is heightened risk that the purpose is avoidance of the compensation requirement, rather than the stated police-power objective. We are left, then, with the Commission's justification for the access requirement unrelated to land-use regulation: "Finally, the Commission notes that there are several existing provisions of pass and repass lateral access benefits already given by past Faria Beach Tract applicants as a result of prior coastal permit decisions. The access required as a condition of this permit is part of a comprehensive program to provide continuous public access along Faria Beach as the lots undergo development or redevelopment." App. 68. That is simply an expression of the Commission's belief that the public interest will be served by a continuous strip of publicly accessible beach along the coast. The Commission may well be right that it is a good idea, but that does not establish that the Nollans (and other coastal residents) alone can be compelled to contribute to its realization. Rather, California is free to advance its "comprehensive program," if it wishes, by using its power of eminent domain for this "public purpose," *842A see U. S. Const., Amdt. 5; but if it wants an easement across the Nollans' property, it must pay for it. Reversed. |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | "Medical technology has effectively created a twilight zone of suspended animation where death commences while life, in some form, continues. Some patients, however, want no part of a life sustained only by medical technology. Instead, they prefer a plan of medical treatment that allows nature to take its course and permits them to die with dignity."[1] Nancy Cruzan has dwelt in that twilight zone for six years. She is oblivious to her surroundings and will remain so. Her body twitches only reflexively, without consciousness. The areas of her brain that once thought, felt, and experienced sensations have degenerated badly and are continuing to do so. The cavities remaining are filling with cerebrospinal fluid. The "`cerebral cortical atrophy is irreversible, permanent, progressive and ongoing.'" "Nancy will never interact meaningfully with her environment again. She will remain in a persistent vegetative state until her death."[2] Because she cannot swallow, her nutrition and hydration are delivered through a tube surgically implanted in her stomach. A grown woman at the time of the accident, Nancy had previously expressed her wish to forgo continuing medical care under circumstances such as these. Her family and her *302 friends are convinced that this is what she would want. See 0, infra. A guardian ad litem appointed by the trial court is also convinced that this is what Nancy would want. See Yet the Missouri Supreme Court, alone among state courts deciding such a question, has determined that an irreversibly vegetative patient will remain a passive prisoner of medical technology for Nancy, perhaps for the next 30 years. See Today the Court, while tentatively accepting that there is some degree of constitutionally protected liberty interest in avoiding unwanted medical treatment, including life-sustaining medical treatment such as artificial nutrition and hydration, affirms the decision of the Missouri Supreme Court. The majority opinion, as I read it, would affirm that decision on the ground that a State may require "clear and convincing" evidence of Nancy Cruzan's prior decision to forgo life-sustaining treatment under circumstances such as hers in order to ensure that her actual wishes are honored. See ante, at 282-283, 286-287. Because I believe that Nancy Cruzan has a fundamental right to be free of unwanted artificial nutrition and hydration, which right is not outweighed by any interests of the State, and because I find that the improperly biased procedural obstacles imposed by the Missouri Supreme Court impermissibly burden that right, I respectfully dissent. Nancy Cruzan is entitled to choose to die with dignity. I A "[T]he timing of deathonce a matter of fate is now a |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | of deathonce a matter of fate is now a matter of human choice." Office of Technology Assessment Task Force, Life Sustaining Technologies and the Elderly 41 Of the approximately 2 million people who die each year, 80% die in hospitals and long-term care institutions,[3]*303 and perhaps 70% of those after a decision to forgo life-sustaining treatment has been made.[4] Nearly every death involves a decision whether to undertake some medical procedure that could prolong the process of dying. Such decisions are difficult and personal. They must be made on the basis of individual values, informed by medical realities, yet within a framework governed by law. The role of the courts is confined to defining that framework, delineating the ways in which government may and may not participate in such decisions. The question before this Court is a relatively narrow one: whether the Due Process Clause allows Missouri to require a now-incompetent patient in an irreversible persistent vegetative state to remain on life support absent rigorously clear and convincing evidence that avoiding the treatment represents the patient's prior, express choice. See ante, at 277-278. If a fundamental right is at issue, Missouri's rule of decision must be scrutinized under the standards this Court has always applied in such circumstances. As we said in if a requirement imposed by a State "significantly interferes with the exercise of a fundamental right, it cannot be upheld unless it is supported by sufficiently important state interests and is closely tailored to effectuate only those interests." The Constitution imposes on this Court the obligation to "examine carefully. the extent to which [the legitimate government interests advanced] are served by the challenged regulation." See also An evidentiary rule, just as a substantive prohibition, must meet these standards if it significantly burdens a fundamental liberty interest. Fundamental *304 rights "are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." B The starting point for our legal analysis must be whether a competent person has a constitutional right to avoid unwanted medical care. Earlier this Term, this Court held that the Due Process Clause of the Fourteenth Amendment confers a significant liberty interest in avoiding unwanted medical treatment. Today, the Court concedes that our prior decisions "support the recognition of a general liberty interest in refusing medical treatment." See ante, at 278. The Court, however, avoids discussing either the measure of that liberty interest or its application by assuming, for purposes of this case only, that a competent person has a constitutionally protected liberty interest in being free of unwanted |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | a constitutionally protected liberty interest in being free of unwanted artificial nutrition and hydration. See ante, at 279. JUSTICE O'CONNOR'S opinion is less parsimonious. She openly affirms that "the Court has often deemed state incursions into the body repugnant to the interests protected by the Due Process Clause," that there is a liberty interest in avoiding unwanted medical treatment, and that it encompasses the right to be free of "artificially delivered food and water." See ante, at 287. But if a competent person has a liberty interest to be free of unwanted medical treatment, as both the majority and JUSTICE O'CONNOR concede, it must be fundamental. "We are dealing here with [a decision] which involves one of the basic civil rights of man." Whatever other liberties protected by the Due Process Clause are fundamental, "those liberties that are `deeply rooted in this Nation's history and tradition'" are among them. The right to be free from medical attention without consent, to determine what shall be done with one's own body, is deeply rooted in this Nation's traditions, as the majority acknowledges. See ante, at 270. This right has long been "firmly entrenched in American tort law" and is securely grounded in the earliest common law. Ante, at 269. See also "Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery, or other medical treatment." "The inviolability of the person" has been held as "sacred" and "carefully guarded" as any common-law right. Union Pacific R. Thus, freedom from unwanted medical attention is unquestionably among those principles "so rooted in the traditions and conscience of our people as to be ranked as fundamental."[5] *306 That there may be serious consequences involved in refusal of the medical treatment at issue here does not vitiate the right under our common-law tradition of medical self-determination. It is "a well-established rule of general law. that it is the patient, not the physician, who ultimately decides if treatment any treatment is to be given at all. The rule has never been qualified in its application by either the nature or purpose of the treatment, or the gravity of the consequences of acceding to or foregoing it." See also[6] *307 No material distinction can be drawn between the treatment to which Nancy Cruzan continues to be subject artificial nutrition and hydrationand any other medical treatment. See ante, at 288-289 (O'CONNOR, J., concurring). The artificial delivery of nutrition |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | at 288-289 (O'CONNOR, J., concurring). The artificial delivery of nutrition and hydration is undoubtedly medical treatment. The technique to which Nancy Cruzan is subjectartificial feeding through a gastrostomy tubeinvolves a tube implanted surgically into her stomach through incisions in her abdominal wall. It may obstruct the intestinal tract, erode and pierce the stomach wall, or cause leakage of the stomach's contents into the abdominal cavity. See Page, Andrassy, & Sandler, Techniques in Delivery of Liquid Diets, in Nutrition in Clinical Surgery 66-67 The tube can cause pneumonia from reflux of the stomach's contents into the lung. See Bernard & Forlaw, Complications and Their Prevention, in Enteral and Tube Feeding 553 Typically, and in this case (see Tr. 377), commercially prepared formulas are used, rather than fresh food. See Matarese, Enteral Alimentation, in Surgical Nutrition 726 The type of formula and method of administration must be experimented with to avoid gastrointestinal problems. The patient must be monitored daily by medical personnel as to weight, fluid intake, and fluid output; blood tests must be done weekly. Artificial delivery of food and water is regarded as medical treatment by the medical profession and the Federal Government.[7] According to the American Academy of Neurology: *308 "The artificial provision of nutrition and hydration is a form of medical treatment analogous to other forms of life-sustaining treatment, such as the use of the respirator. When a patient is unconscious, both a respirator and an artificial feeding device serve to support or replace normal bodily functions that are compromised as a result of the patient's illness." Position of the American Academy of Neurology on Certain Aspects of the Care and Management of the Persistent Vegetative State Patient, 39 Neurology 125 (Jan. 1989). See also Council on Ethical and Judicial Affairs of the American Medical Association, Current Opinions, Opinion 2.20 (1989) ("Life-prolonging medical treatment includes medication and artifically or technologically supplied respiration, nutrition or hydration"); President's Commission 88 (life-sustaining treatment includes respirators, kidney dialysis machines, and special feeding procedures). The Federal Government permits the cost of the medical devices and formulas used in enteral feeding to be reimbursed under Medicare. See note following 42 U.S. C. 1395u, p. 592 (1982 ed., Supp. V). The formulas are regulated by the federal Food and Drug Administration as "medical foods," see 21 U.S. C. 360ee, and the feeding tubes are regulated as medical devices, 21 CFR 876.5980 (1989). Nor does the fact that Nancy Cruzan is now incompetent deprive her of her fundamental rights. See ; ; As the majority recognizes, ante, at 280, the question is not whether an incompetent |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | ante, at 280, the question is not whether an incompetent has constitutional rights, but how such rights may be exercised. As we explained in : "The law must often adjust the manner in which it affords rights to those whose status renders them unable to exercise choice freely and rationally. Children, the insane, and those who are irreversibly ill with loss of brain function, for instance, all retain `rights,' to be sure, but often such rights are only meaningful as they are exercised by agents acting with the best interests of their principals in mind." "To deny [its] exercise because the patient is unconscious or incompetent would be to deny the right." II A The right to be free from unwanted medical attention is a right to evaluate the potential benefit of treatment and its possible consequences according to one's own values and to make a personal decision whether to subject oneself to the intrusion. For a patient like Nancy Cruzan, the sole benefit of medical treatment is being kept metabolically alive. Neither artificial nutrition nor any other form of medical treatment available today can cure or in any way ameliorate her condition.[8] Irreversibly vegetative patients are devoid of thought, *310 emotion, and sensation; they are permanently and completely unconscious. See [9] As the President's Commission concluded in approving the withdrawal of life support equipment from irreversibly vegetative patients: "[T]reatment ordinarily aims to benefit a patient through preserving life, relieving pain and suffering, protecting against disability, and returning maximally effective functioning. If a prognosis of permanent unconsciousness is correct, however, continued treatment cannot confer such benefits. Pain and suffering are absent, as are joy, satisfaction, and pleasure. Disability is total and no return to an even minimal level of social or human functioning is possible." President's Commission 181-182. There are also affirmative reasons why someone like Nancy might choose to forgo artificial nutrition and hydration under these circumstances. Dying is personal. And it is profound. For many, the thought of an ignoble end, steeped in decay, is abhorrent. A quiet, proud death, bodily integrity *311 intact, is a matter of extreme consequence. "In certain, thankfully rare, circumstances the burden of maintaining the corporeal existence degrades the very humanity it was meant to serve." (finding the subject of the proceeding "in a condition which [he] has indicated he would consider to be degrading and without human dignity" and holding that "[t]he duty of the State to preserve life must encompass a recognition of an individual's right to avoid circumstances in which the individual himself would feel that efforts to sustain life |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | the individual himself would feel that efforts to sustain life demean or degrade his humanity"). Another court, hearing a similar case, noted: "It is apparent from the testimony that what was on [the patient's] mind was not only the invasiveness of life-sustaining systems, such as the [nasogastric] tube, upon the integrity of his body. It was also the utter helplessness of the permanently comatose person, the wasting of a once strong body, and the submission of the most private bodily functions to the attention of others." In re Gardner, Such conditions are, for many, humiliating to contemplate,[10] as is visiting a prolonged and anguished vigil on one's parents, spouse, and children. A long, drawn-out death can have a debilitating effect on family members. See Carnwath & Johnson, Psychiatric Morbidity Among Spouses of Patients With Stroke, 294 Brit. Med. J. 409 ; Livingston, Families Who Care, 2 Brit. Med. J. 9 For some, the idea of being remembered in their persistent vegetative *312 states rather than as they were before their illness or accident may be very disturbing.[11] B Although the right to be free of unwanted medical intervention, like other constitutionally protected interests, may not be absolute,[12] no state interest could outweigh the rights of an individual in Nancy Cruzan's position. Whatever a State's possible interests in mandating life-support treatment under other circumstances, there is no good to be obtained here by Missouri's insistence that Nancy Cruzan remain on life-support systems if it is indeed her wish not to do so. Missouri does not claim, nor could it, that society as a whole will be benefited by Nancy's receiving medical treatment. *313 No third party's situation will be improved and no harm to others will be averted. Cf. nn. 6 and 8, [13] The only state interest asserted here is a general interest in the preservation of life.[14] But the State has no legitimate general interest in someone's life, completely abstracted from the interest of the person living that life, that could outweigh the person's choice to avoid medical treatment. "[T]he regulation of constitutionally protected decisions must be predicated on legitimate state concerns other than disagreement with the choice the individual has made. Otherwise, the interest in liberty protected by the Due Process Clause would be a nullity." Hodgson v. Minnesota, post, at *314 435 (opinion of STEVENS, J.) Thus, the State's general interest in life must accede to Nancy Cruzan's particularized and intense interest in self-determination in her choice of medical treatment. There is simply nothing legitimately within the State's purview to be gained by superseding her decision. Moreover, |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | State's purview to be gained by superseding her decision. Moreover, there may be considerable danger that Missouri's rule of decision would impair rather than serve any interest the State does have in sustaining life. Current medical practice recommends use of heroic measures if there is a scintilla of a chance that the patient will recover, on the assumption that the measures will be discontinued should the patient improve. When the President's Commission in 1982 approved the withdrawal of life-support equipment from irreversibly vegetative patients, it explained that "[a]n even more troubling wrong occurs when a treatment that might save life or improve health is not started because the health care personnel are afraid that they will find it very difficult to stop the treatment if, as is fairly likely, it proves to be of little benefit and greatly burdens the patient." President's Commission 75. A New Jersey court recognized that families as well as doctors might be discouraged by an inability to stop life-support measures from "even attempting certain types of care [which] could thereby force them into hasty and premature decisions to allow a patient to die." In re Conroy, 98 N. J. 321, 370, See also Brief for American Academy of Neurology as Amicus Curiae 9 (expressing same concern).[] *3 III This is not to say that the State has no legitimate interests to assert here. As the majority recognizes, ante, at 281-282, Missouri has a parens patriae interest in providing Nancy Cruzan, now incompetent, with as accurate as possible a determination of how she would exercise her rights under these circumstances. Second, if and when it is determined that Nancy Cruzan would want to continue treatment, the State may legitimately assert an interest in providing that treatment. But until Nancy's wishes have been determined, *316 the only state interest that may be asserted is an interest in safeguarding the accuracy of that determination. Accuracy, therefore, must be our touchstone. Missouri may constitutionally impose only those procedural requirements that serve to enhance the accuracy of a determination of Nancy Cruzan's wishes or are at least consistent with an accurate determination. The Missouri "safeguard" that the Court upholds today does not meet that standard. The determination needed in this context is whether the incompetent person would choose to live in a persistent vegetative state on life support or to avoid this medical treatment. Missouri's rule of decision imposes a markedly asymmetrical evidentiary burden. Only evidence of specific statements of treatment choice made by the patient when competent is admissible to support a finding that the patient, now in a |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | to support a finding that the patient, now in a persistent vegetative state, would wish to avoid further medical treatment. Moreover, this evidence must be clear and convincing. No proof is required to support a finding that the incompetent person would wish to continue treatment. A The majority offers several justifications for Missouri's heightened evidentiary standard. First, the majority explains that the State may constitutionally adopt this rule to govern determinations of an incompetent's wishes in order to advance the State's substantive interests, including its unqualified interest in the preservation of human life. See ante, at 282-283, and n. 10. Missouri's evidentiary standard, however, cannot rest on the State's own interest in a particular substantive result. To be sure, courts have long erected clear and convincing evidence standards to place the greater risk of erroneous decisions on those bringing disfavored claims.[16] In such cases, however, the choice to discourage *317 certain claims was a legitimate, constitutional policy choice. In contrast, Missouri has no such power to disfavor a choice by Nancy Cruzan to avoid medical treatment, because Missouri has no legitimate interest in providing Nancy with treatment until it is established that this represents her choice. See Just as a State may not override Nancy's choice directly, it may not do so indirectly through the imposition of a procedural rule. Second, the majority offers two explanations for why Missouri's clear and convincing evidence standard is a means of enhancing accuracy, but neither is persuasive. The majority initially argues that a clear and convincing evidence standard is necessary to compensate for the possibility that such proceedings will lack the "guarantee of accurate factfinding that the adversary process brings with it," citing Ohio v. Center for Reproductive Health, post, at 5-516 (upholding a clear and convincing evidence standard for an ex parte proceeding). Ante, at 281-282. Without supporting the Court's decision in that case, I note that the proceeding to determine an incompetent's wishes is quite different from a proceeding to determine whether a minor may bypass notifying her parents before undergoing an abortion on the ground that she is mature enough to make the decision or that the abortion is in her best interests. *318 An adversarial proceeding is of particular importance when one side has a strong personal interest which needs to be counterbalanced to assure the court that the questions will be fully explored. A minor who has a strong interest in obtaining permission for an abortion without notifying her parents may come forward whether or not society would be satisfied that she has made the decision with the |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | be satisfied that she has made the decision with the seasoned judgment of an adult. The proceeding here is of a different nature. Barring venal motives, which a trial court has the means of ferreting out, the decision to come forward to request a judicial order to stop treatment represents a slowly and carefully considered resolution by at least one adult and more frequently several adults that discontinuation of treatment is the patient's wish. In addition, the bypass procedure at issue in is ex parte and secret. The court may not notify the minor's parents, siblings, or friends. No one may be present to submit evidence unless brought forward by the minor herself. In contrast, the proceeding to determine Nancy Cruzan's wishes was neither ex parte nor secret. In a hearing to determine the treatment preferences of an incompetent person, a court is not limited to adjusting burdens of proof as its only means of protecting against a possible imbalance. Indeed, any concern that those who come forward will present a one-sided view would be better addressed by appointing a guardian ad litem, who could use the State's powers of discovery to gather and present evidence regarding the patient's wishes. A guardian ad litem's task is to uncover any conflicts of interest and ensure that each party likely to have relevant evidence is consulted and brought forward for example, other members of the family, friends, clergy, and doctors. See, e. g., In re Colyer, Missouri's heightened evidentiary standard attempts to achieve balance by discounting evidence; the guardian ad litem technique achieves balance by probing for additional evidence. Where, as here, the family members, *319 friends, doctors, and guardian ad litem agree, it is not because the process has failed, as the majority suggests. See ante, at 281, n. 9. It is because there is no genuine dispute as to Nancy's preference. The majority next argues that where, as here, important individual rights are at stake, a clear and convincing evidence standard has long been held to be an appropriate means of enhancing accuracy, citing decisions concerning what process an individual is due before he can be deprived of a liberty interest. See ante, at 283. In those cases, however, this Court imposed a clear and convincing standard as a constitutional minimum on the basis of its evaluation that one side's interests clearly outweighed the second side's interests and therefore the second side should bear the risk of error. See (requiring a clear and convincing evidence standard for termination of parental rights because the parent's interest is fundamental but the |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | parental rights because the parent's interest is fundamental but the State has no legitimate interest in termination unless the parent is unfit, and finding that the State's interest in finding the best home for the child does not arise until the parent has been found unfit); Moreover, we have always recoguized that shifting the risk of error reduces the likelihood of errors in one direction at the cost of increasing the likelihood of errors in the other. See In the cases cited by the majority, the imbalance imposed by a heightened evidentiary standard was not only acceptable but required because the standard was deployed to protect an individual's *320 exercise of a fundamental right, as the majority admits, ante, at 282-283, n. 10. In contrast, the Missouri court imposed a clear and convincing evidence standard as an obstacle to the exercise of a fundamental right. The majority claims that the allocation of the risk of error is justified because it is more important not to terminate life support for someone who would wish it continued than to honor the wishes of someone who would not. An erroneous decision to terminate life support is irrevocable, says the majority, while an erroneous decision not to terminate "results in a maintenance of the status quo." See ante, at 283.[17] But, from the point of view of the patient, an erroneous decision in either direction is irrevocable. An erroneous decision to terminate artificial nutrition and hydration, to be sure, will lead to failure of that last remnant of physiological life, the brain stem, and result in complete brain death. An erroneous decision not to terminate life support, however, robs a patient of the very qualities protected by the right to avoid unwanted medical treatment. His own degraded existence is perpetuated; his family's suffering is protracted; the memory he leaves behind becomes more and more distorted. Even a later decision to grant him his wish cannot undo the intervening harm. But a later decision is unlikely in any event. "[T]he discovery of new evidence," to which the majority *321 refers, ib is more hypothetical than plausible. The majority also misconceives the relevance of the possibility of "advancements in medical science," ib by treating it as a reason to force someone to continue medical treatment against his will. The possibility of a medical miracle is indeed part of the calculus, but it is a part of the patient's calculus. If current research suggests that some hope for cure or even moderate improvement is possible within the lifespan projected, this is a factor that should be and |
Justice Brennan | 1,990 | 13 | dissenting | Cruzan v. Director, Mo. Dept. of Health | https://www.courtlistener.com/opinion/112478/cruzan-v-director-mo-dept-of-health/ | lifespan projected, this is a factor that should be and would be accorded significant weight in assessing what the patient himself would choose.[18] B Even more than its heightened evidentiary standard, the Missouri court's categorical exclusion of relevant evidence dispenses with any semblance of accurate factfinding. The court adverted to no evidence supporting its decision, but held that no clear and convincing, inherently reliable evidence had been presented to show that Nancy would want to avoid further treatment. In doing so, the court failed to consider statements Nancy had made to family members and a close friend.[19] The court also failed to consider testimony *322 from Nancy's mother and sister that they were certain that Nancy would want to discontinue artificial nutrition and hydration,[20] even after the court found that Nancy's family was loving and without malignant motive. See The court also failed to consider the conclusions of the guardian ad litem, appointed by the trial court, that there was clear and convincing evidence that Nancy would want to *323 discontinue medical treatment and that this was in her best interests. ; Brief for Respondent Guardian Ad Litem 2-3. The court did not specifically define what kind of evidence it would consider clear and convincing, but its general discussion suggests that only a living will or equivalently formal directive from the patient when competent would meet this standard. See -425. Too few people execute living wills or equivalently formal directives for such an evidentiary rule to ensure adequately that the wishes of incompetent persons will be honored.[21] While it might be a wise social policy to encourage people to furnish such instructions, no general conclusion about a patient's choice can be drawn from the absence of formalities. The probability of becoming irreversibly vegetative is so low that many people may not feel an urgency to marshal formal evidence of their preferences. Some may not wish to dwell on their own physical deterioration and mortality. Even someone with a resolute determination to avoid life support under circumstances such as Nancy's would still need to know that such things as living wills exist and how to execute one. Often legal help would be necessary, especially given the majority's apparent willingness to permit States to insist that a person's wishes are not truly known unless the particular medical treatment is specified. See ante, at 285. *324 As a California appellate court observed: "The lack of generalized public awareness of the statutory scheme and the typically human characteristics of procrastination and reluctance to contemplate the need for such arrangements however makes this a tool |
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