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Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | matter, as a fiduciary or party in interest), see 3(9), 29 U.S. C. 1002(9). Moreover, 405(a) indicates that a cofiduciary is itself a fiduciary, see 405(a), 29 U.S. C. 1105(a) ("[A] fiduciary shall be liable for a breach of fiduciary responsibility of another fiduciary"), and 502(l) clearly distinguishes between a "fiduciary," 502(l)(1)(A), 29 U.S. C. 1132(l)(1)(A), and an "other person," 502(l)(1)(B), 29 U.S. C. 1132(l)(1)(B). III Notwithstanding the text of 502(a)(3) (as informed by 502(l)), Salomon protests that it would contravene common sense for Congress to have imposed civil liability on a party, such as a nonfiduciary party in interest to a 406(a) transaction, that is not a "wrongdoer" in the sense of violating a duty expressly imposed by the substantive provisions of Title I. Salomon raises the specter of 502(a)(3) *250 suits being brought against innocent partieseven those having no connection to the allegedly unlawful "act or practice"rather than against the true wrongdoer, i. e., the fiduciary that caused the plan to engage in the transaction. But this reductio ad absurdum ignores the limiting principle explicit in 502(a)(3): that the retrospective relief sought be "appropriate equitable relief." The common law of trusts, which offers a "starting point for analysis [of ] [unless] it is inconsistent with the language of the statute, its structure, or its purposes," Hughes plainly countenances the sort of relief sought by petitioners against Salomon here. As petitioners and amicus curiae the United States observe, it has long been settled that when a trustee in breach of his fiduciary duty to the beneficiaries transfers trust property to a third person, the third person takes the property subject to the trust, unless he has purchased the property for value and without notice of the fiduciary's breach of duty. The trustee or beneficiaries may then maintain an action for restitution of the property (if not already disposed of) or disgorgement of proceeds (if already disposed of), and disgorgement of the third person's profits derived therefrom. See, e. g., Restatement (Second) of 284, 291, 294, 295, 297 (1957); 4 A. Scott & W. Fratcher, Law of 284, 291.1, pp. 77-78, 294.2, p. 101, 297 (4th ed. 1989) (hereinafter Law of ); 5 470, at 363; 1 D. Law of Remedies 4.7(1), pp. 660-661 ; G. Bogert, Law of and Trustees 866, pp. 95-96 As we long ago explained in the analogous situation of property obtained by fraud: "Whenever the legal title to property is obtained through means or under circumstances `which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of *251 the one who is truly and equitably entitled to the same, although he may never, perhaps, have had any legal estate therein; and a court of equity has jurisdiction to reach the property either in the hands of the original wrongdoer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the property relieved from the trust.' " (quoting 2 J. Pomeroy, Equity Jurisprudence 1053, pp. 628-629 (1886)). Importantly, that a transferee was not "the original wrongdoer" does not insulate him from liability for restitution. See also, e. g., Restatement of Restitution ch. 7, Introductory Note, p. 522 (1937); 1 4.3(2), at 597 ("The constructive trust is based on property, not wrongs"). It also bears emphasis that the common law of trusts sets limits on restitution actions against defendants other than the principal "wrongdoer." Only a transferee of ill-gotten trust assets may be held liable, and then only when the transferee (assuming he has purchased for value) knew or should have known of the existence of the trust and the circumstances that rendered the transfer in breach of the trust. Translated to the instant context, the transferee must be demonstrated to have had actual or constructive knowledge of the circumstances that rendered the transaction unlawful. Those circumstances, in turn, involve a showing that the plan fiduciary, with actual or constructive knowledge of the facts satisfying the elements of a 406(a) transaction, caused the plan to engage in the transaction. Lockheed[3] *252 The common law additionally leads us to reject Salomon's complaint that our view of 502(a)(3) would incongruously allow not only the harmed beneficiaries, but also the culpable fiduciary, to seek restitution from the arguably less culpable counterparty-transferee. The common law sees no incongruity in such a rule, see Restatement (Second) of 294, at 69 ("[A]n action can be maintained against the transferee either by the beneficiary or the trustee"); 4 Law of 294.2, at 101, and for good reason: "Although the trustee bases his cause of action upon his own voluntary act, and even though the act was knowingly done in breach of his duty to the beneficiary, he is permitted to maintain the action, since the purpose of the action is to recover money or other property for the trust estate, and whatever he recovers he will hold subject to the trust." Restatement (Second) of 294, Comment c. But Salomon |
Justice Thomas | 2,000 | 1 | majority | Harris Trust and Sav. Bank v. Salomon Smith Barney Inc. | https://www.courtlistener.com/opinion/118375/harris-trust-and-sav-bank-v-salomon-smith-barney-inc/ | the trust." Restatement (Second) of 294, Comment c. But Salomon advances a more fundamental critique of the common-law analogy, reasoning that the antecedent violation herea violation of 406(a)'s per se prohibitions on transacting with a party in interestwas unknown at common law, and that common-law liability should not attach to an act that does not violate a common-law duty. While Salomon accurately characterizes 406(a) as expanding upon the common law's arm's-length standard of conduct, see Keystone Consol. 508 U. S., at we reject Salomon's unsupported suggestion that remedial principles of the common law are tethered to the precise contours of commonlaw duty. We note, however, that our interpretation of 502(a)(3) to incorporate common-law remedial principles does not necessarily foreclose accommodation of Salomon's underlying concern that should not be construed to require counterparties to transactions with a plan to monitor the plan for compliance with each of 's intricate details. See, e. g., Prohibited Transaction Exemption 75-1, II(e), (1975) While we have no occasion to decide the matter here, it may be that such concerns should inform courts' determinations of what a transferee should (or should not) be expected to know when engaging in a transaction with a fiduciary. See Restatement (Second) of 297(a), at 74 (defining "notice" to mean what a transferee "knows or should know" ). Cf. Prohibited Transaction Exemption 75-1, II(e)(1), (1975) (providing that a broker-dealer shall not be subject to civil penalties under 502(i) as a 406(a) "party in interest" or taxes under 26 U.S. C. 4975 as a similarly defined "disqualified person" if such records are not maintained by the plan). For these reasons, an action for restitution against a transferee of tainted plan assets satisfies the "appropriate[ness]" criterion in 502(a)(3). Such relief is also "equitable" in nature. See ("[T]he `equitable relief' awardable under 502(a)(5) includes restitution of ill-gotten plan assets or profits"); (explaining that, in light of the similarity of language in 502(a)(3) and (5), that language should be deemed to have the same meaning in both subsections). IV We turn, finally, to two nontextual clues cited by Salomon and amici. First, Salomon urges us to consider, as the Seventh Circuit -653, the Conference Committee's rejection of language from the Senate bill that would have expressly imposed a duty on nonfiduciary parties to 406(a) transactions. See Brief for Respondents 28-29 (quoting H. R. Rep. No. 93-2, p. 533 (1974) (with amendments as passed by the Senate), reprinted in 3 Legislative History of (Committee Print compiled for the Senate Subcommittee on Labor of the Committee on Labor and Public Welfare by the Library of Congress), Ser. |
Justice O'Connor | 1,992 | 14 | second_dissenting | Burlington v. Dague | https://www.courtlistener.com/opinion/112778/burlington-v-dague/ | I continue to be of the view that in certain circumstances a "reasonable" attorney's fee should not be computed by the purely retrospective lodestar figure, but also must incorporate a reasonable incentive to an attorney contemplating whether or not to take a case in the first place. See As Justice Blackmun cogently explains, when an attorney must choose between two casesone with a client who will pay the attorney's fees win or lose and the other who can only promise the statutory compensation if the case is successfulthe attorney will choose the fee-paying client, unless the contingency client can promise an enhancement of sufficient magnitude to justify the extra risk of nonpayment. Ante, at 568-569. Thus, a reasonable fee should be one that would "attract competent counsel," Delaware Valley and in some markets this must include the assurance of a contingency enhancement if the plaintiff should prevail. I therefore dissent from the Court's holding that a "reasonable" attorney's fee can never include an enhancement for cases taken on contingency. *576 In my view the promised enhancement should be "based on the difference in market treatment of contingent fee cases as a class, rather than on an assessment of the `riskiness' of any particular case." As Justice Blackmun has shown, the Court's reasons for rejecting a market-based approach do not stand up to scrutiny. Ante, at 574. Admittedly, the courts called upon to determine the enhancements appropriate for various markets would be required to make economic calculations based on less-than-perfect data. Yet that is also the case, for example, in inverse condemnation and antitrust cases, and the Court has never suggested that the difficulty of the task or possible in exactitude of the result justifies forgoing those calculations altogether. As Justice Blackmun notes, these initial hurdles would be overcome as the enhancements appropriate to various markets became settled in the district courts and courts of appeals. Ante, at 573. In this case, the District Court determined that a 25% contingency enhancement was appropriate by reliance on the likelihood of success in the individual case. App. to Pet. for Cert. 132-133. The Court of Appeals affirmed on the basis of its holding in Friends of the which asks simply whether, without the possibility of a fee enhancement, the prevailing party would not have been able to obtain competent counsel. Although I believe that inquiry is part of the contingency enhancement determination, see Delaware Valley I also believe that it was error to base the degree of enhancement on case-specific factors. Because I can find no market-specific support for the 25% enhancement figure |
Justice Scalia | 2,007 | 9 | concurring | Kimbrough v. United States | https://www.courtlistener.com/opinion/145841/kimbrough-v-united-states/ | The Court says that "closer review may be in order when the sentencing judge varies from the Guidelines based solely on the judge's view that the Guidelines range 'fails properly to reflect 3553(a) considerations' even in a mine-run case," but that this case "present[s] no occasion for elaborative discussion of this matter." Ante, at ). I join the opinion only because I do not take this to be an unannounced abandonment of the following clear statements in our recent opinions: "[Our remedial opinion] requires a sentencing court to consider Guidelines ranges, but it permits the court to tailor the sentence in light of other statutory concerns as well, see 3553(a). "[W]ithout this provision namely the provision that makes `the relevant sentencing rules mandatory and impose[s] binding requirements on all sentencing judges' the statute falls outside the scope of requirement. "The district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." United "Under the system described in Justice BREYER's opinion for the Court in Booker, judges would no longer be tied to the sentencing range indicated in the Guidelines. But they would be obliged to `take account of' that range along with the sentencing goals Congress enumerated in the SRA at 18 U.S.C. 3553(a)." *577 "[The sentencing judge] may hear arguments by prosecution or defense that the Guidelines sentence should not apply, perhaps because (as the Guidelines themselves foresee) the case at hand falls outside the `heartland' to which the Commission intends individual Guidelines to apply, USSG 5K2.0, perhaps because the Guidelines sentence itself fails properly to reflect 3553(a) considerations, or perhaps because the case warrants a different sentence regardless. See Rule 32(f). "A nonbinding appellate presumption that a Guidelines sentence is reasonable does not require the sentencing judge to impose that sentence. Still less does it forbid the sentencing judge from imposing a sentence higher than the Guidelines provide for the jury-determined facts standing alone. As far as the law is concerned, the judge could disregard the Guidelines and apply the same sentence (higher than the statutory minimum or the bottom of the unenhanced Guidelines range) in the absence of the special facts (say, gun brandishing) which, in the view of the Sentencing Commission, would warrant a higher sentence within the statutorily permissible range." Rita, at 127 S.Ct., at These statements mean that the district court is free to make its own reasonable application of the 3553(a) factors, and to reject (after due consideration) the advice of the Guidelines. If there is any thumb on the scales; if |
Justice Stewart | 1,977 | 18 | second_dissenting | Castaneda v. Partida | https://www.courtlistener.com/opinion/109627/castaneda-v-partida/ | In my view, the findings of the District Court in this case cannot be said to be "clearly erroneous." Fed. Rule Civ. Proc. 52 (a); United[*] Given those findings, there was no constitutional violation in the selection of the grand jury that indicted the respondent. Upon that basis I would reverse the judgment of the Court of Appeals. I add only that I am in substantial agreement with the dissenting opinions of THE CHIEF JUSTICE and MR. JUSTICE POWELL. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. JUSTICE REHNQUIST join, dissenting. The evidence relevant to the issue of discrimination in this case falls into three categories: First, the statistical evidence introduced by respondent in both the state and federal proceedings which shows that the 80% Mexican-American majority in Hidalgo County was not proportionately represented on the grand jury lists; second, the testimony of the state trial judge outlining the Texas grand jury selection system as it operated in this case; and third, the facts judicially noticed by the District Court with respect to the political *508 dominance and control by the Mexican-American majority in Hidalgo County. The Court today considers it dispositive that the lack of proportional representation of Mexican-Americans on the grand jury lists in this county would not have occurred if jurors were selected from the population wholly at random. But one may agree that the disproportion did not occur by chance without agreeing that it resulted from purposeful invidious discrimination. In my view, the circumstances of this unique case fully support the District Court's finding that the statistical disparitythe basis of today's decision is more likely to have stemmed from neutral causes than from any intent to discriminate against [1] A The Court holds that a criminal defendant may demonstrate a violation of the Equal Protection Clause merely by showing that the procedure for selecting grand jurors "resulted in substantial underrepresentation of his race or of *509 the identifiable group to which he belongs." Ante, at 494. By so holding, the Court blurs the traditional constitutional distinctions between grand and petit juries, and misapplies the equal protection analysis mandated by our most recent decisions. The Fifth Amendment right to a grand jury does not apply to a state prosecution. A state defendant cannot complain if the State for-goes the institution of the grand jury and proceeds against him instead through prosecutorial information, as many States prefer to do. See Nevertheless, if a State chooses to proceed by grand jury it must proceed within the constraints imposed by the Equal Protection Clause of the Fourteenth Amendment. |
Justice Stewart | 1,977 | 18 | second_dissenting | Castaneda v. Partida | https://www.courtlistener.com/opinion/109627/castaneda-v-partida/ | imposed by the Equal Protection Clause of the Fourteenth Amendment. Thus in a line of cases beginning with this Court has held that a criminal defendant is denied equal protection of the law if, as a result of purposeful discrimination, members of his own race are excluded from jury service. See, e. g., ; ; ; As the Court points out, this right is applicable where purposeful discrimination results only in substantial rather than total exclusion of members of the defendant's class, see, e. g., But a state defendant has no right to a grand jury that reflects a fair cross-section of the community.[2] The right *510 to a "representative" grand jury is a federal right that derives not from the requirement of equal protection but from the Fifth Amendment's explicit requirement of a grand jury. That right is similar to the rightapplicable to state proceedings to a representative petit jury under the Sixth Amendment. See To the extent that the Fifth and Sixth Amendments are applicable, a defendant need only show that the jury selection procedure "systematically exclude[s] distinctive groups in the community and thereby fail[s] to be reasonably representative thereof." But in a state case in which the challenge is to the grand jury, only the Fourteenth Amendment applies, and the defendant has the burden of proving a violation of the Equal Protection Clause. Proof of discriminatory intent in such a case was explicitly mandated in our recent decisions in and Arlington In Arlington we said: "Our decision last Term in made it clear that official action will not be held unconstitutional solely because it results in a racially disproportionate impact. `Disproportionate impact is not irrelevant, but it is not the sole touchstone of an invidious racial discrimination.' Proof of a racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause." We also identified the following standards for resolving issues of discriminatory intent or purpose: "Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry *511 into such circumstantial and direct evidence of intent as may be available. The impact of the official action whether it `bears more heavily on one race than other,' may provide an important starting point. Sometimes a clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. Yick ; ; ; The evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is |
Justice Stewart | 1,977 | 18 | second_dissenting | Castaneda v. Partida | https://www.courtlistener.com/opinion/109627/castaneda-v-partida/ | as that in Gomillion or Yick Wo, impact alone is not determinative, and the Court must look to other evidence." The analysis is essentially the same where the alleged discrimination is in the selection of a state grand jury.[3] This is *512 illustrated by the recent decision in where we stated: "This Court has never announced mathematical standards for the demonstration of `systematic' exclusion of blacks but has, rather, emphasized that a factual inquiry is necessary in each case that takes into account all possible explanatory factors. The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion that petitioner has demonstrated a prima facie case of invidious racial discrimination on statistical improbability alone, for the selection procedures themselves were not racially neutral." In Alexander, the evidence showed that 21% of the relevant community was Negro; the jury commission consisted of five members "all of whom were white," appointed by a white judge; the grand jury venire included 20 persons, only one of whom was a Negro (5%); and none of the 12 persons on the grand jury that indicted the defendant was Negro. This statistical array wasas the Court noted "striking." Yet the statistics were not found, in isolation, to constitute a prima facie case. Only after determining that the selection system "provided a clear and easy opportunity *513 for racial discrimination" was the Court satisfied that the burden should shift to the State.[4] Considered together, Arlington and Alexander make clear that statistical evidence showing underrepresentation *514 of a population group on the grand jury lists should be considered in light of "such [other] circumstantial and direct evidence of intent as may be available." Arlington 429 U. S., B In this case, the following critical facts are beyond dispute: the judge who appointed the jury commissioners and later presided over respondent's trial was Mexican-American; three of the five jury commissioners were Mexican-American; 10 of the 20 members of the grand jury array were Mexican-American; 5 of the 12 grand jurors who returned the indictment, including the foreman, were Mexican-American,[5] and 7 of the 12 petit jurors who returned the verdict of guilt were Mexican-American. In the year in which respondent was indicted, 52.5% of the persons on the grand jury list were Mexican-American. In addition, a majority of the elected officials in Hidalgo County were Mexican-American, as were a majority of the judges. That these positions of power and influence were so held is not surprising in a community where 80% of the population is Mexican-American. As was emphasized by District |
Justice Stewart | 1,977 | 18 | second_dissenting | Castaneda v. Partida | https://www.courtlistener.com/opinion/109627/castaneda-v-partida/ | of the population is Mexican-American. As was emphasized by District Judge Garza, the able Mexican-American jurist who presided over the habeas proceedings in the District Court, this case is unique. Every other jury discrimination case reaching this Court has involved a situation where the governing majority, and the resulting power over the jury selection process, was held by a white electorate and white officials.[6] *515 The most significant fact in this case, all but ignored in the Court's opinion, is that a majority of the jury commissioners were Mexican-American. The jury commission is the body vested by Texas law with the authority to select grand jurors. Under the Texas selection system, as noted by the Court, ante, at 484-485, 497, the jury commission has the opportunity to identify in advance those potential jurors who have Spanish surnames. In these circumstances, where Mexican-Americans control both the selection of jurors and the political process, rational inferences from the most basic facts in a democratic society render improbable respondent's claim of an intent to discriminate against him and other As Judge Garza observed: "If people in charge can choose whom they want, it is unlikely they will discriminate against themselves." That individuals are more likely to discriminate in favor of, than against, those who share their own identifiable attributes is the premise that underlies the cases recognizing that the criminal defendant has a personal right under the Fourteenth Amendment not to have members of his own class excluded from jury service. Discriminatory exclusion of members of the defendant's class has been viewed as unfairly excluding persons who may be inclined to favor the defendant. See *516 Strauder v. West Were it not for the perceived likelihood that jurors will favor defendants of their own class, there would be no reason to suppose that a jury selection process that systematically excluded persons of a certain race would be the basis of any legitimate complaint by criminal defendants of that race. Only the individuals excluded from jury service would have a personal right to complain. In where apparently no Negro was on the jury commission and only 1 of 16 was on the jury panel, the Court emphasized the high threshold of proof required to brand officers of the court with discriminatory intent: "An allegation of discriminatory practices in selecting a grand jury panel challenges an essential element of proper judicial procedurethe requirement of fairness on the part of the judicial arm of government in dealing with persons charged with criminal offenses. It cannot lightly be concluded that officers of the courts disregard this accepted |
Justice Stewart | 1,977 | 18 | second_dissenting | Castaneda v. Partida | https://www.courtlistener.com/opinion/109627/castaneda-v-partida/ | be concluded that officers of the courts disregard this accepted standard of justice." -401. With all respect, I am compelled to say that the Court today has "lightly" concluded that the grand jury commissioners of this county have disregarded not only their sworn duty but also their likely inclination to assure fairness to [7] *517 C It matters little in this case whether such judicially noticeable facts as the composition of the grand jury commission are viewed as defeating respondent's prima facie case at the outset or as rebutting it after it was established by statistical evidence. The significance of the prima facie case is limited to its effect in shifting the burden of going forward to the State. Once the State has produced evidenceeither by presenting proof or by calling attention to facts subject to judicial noticethe only question is whether the evidence in the record is sufficient to demonstrate deliberate and systematic discrimination in the jury selection process. Here, respondent produced statistics showing that Mexican-Americans while substantially represented on the grand jury listswere not represented in numbers proportionate to their share of the total population. The State responded by presenting the testimony of the judge who appointed the grand jury commissioners. Other facts, such as the presence of Mexican-Americans in a majority of the elective positions of the county, entered the record through judicial notice. The testimony, together with the facts noted by the District Court, sufficed to satisfy the State's burden of productioneven assuming that respondent's evidence was sufficient to give rise to such a burden. Accordingly, at the close of the evidence, the question for the District Court was whether respondent had demonstrated by a preponderance of the evidence that the State had "deliberately and systematically den[ied] to members of [respondent's class] the right to participate as jurors in the administration of justice." Alexander, 405 U. S., at The District Court found that the judge and jury commissioners had not intentionally discriminated against 384 F. Supp., at At the very least, that finding was not clearly erroneous.[8] *518 The Court labels it "inexplicable" that the State introduced only the testimony of the state trial judge. Ante, at 498. Perhaps the State fairly may be faulted for not presenting more evidence than it did. But until today's decision one may doubt whether many lawyers, familiar with our cases, would have thought that respondent's statistics, under the circumstances of this case and prevailing in Hidalgo County, were even arguably sufficient to establish deliberate and systematic discrimination. There is for me a sense of unreality when Justices here in |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | Petitioner James Hamilton, an attorney, made notes of an initial interview with a client shortly before the client's death. The Government, represented by the Office of Independent Counsel, now seeks his notes for use in a criminal investigation. We hold that the notes are protected by the attorney-client This dispute arises out of an investigation conducted by the Office of the Independent Counsel into whether various individuals made false statements, obstructed justice, or committed other crimes during investigations of the 1993 dismissal of employees from the White House Travel Office. Vincent W. Foster, Jr., was Deputy White House Counsel when the firings occurred. In July 1993, Foster met with petitioner Hamilton, an attorney at petitioner Swidler & Berlin, to seek legal representation concerning possible congressional or other investigations of the firings. During a 2-hour meeting, Hamilton took three pages of *402 handwritten notes. One ofthe first entries in the notes is the word "Privileged." Nine days later, Foster committed suicide. In December 1995, a federal grand jury, at the request of the Independent Counsel, issued subpoenas to petitioners Hamilton and Swidler & Berlin for, inter alia, Hamilton's handwritten notes of his meeting with Foster. Petitioners filed a motion to quash, arguing that the notes were protected by the attorney-client privilege and by the work-product The District Court, after examining the notes in camera, concluded they were protected from disclosure by both doctrines and denied enforcement of the subpoenas. The Court of Appeals for the District of Columbia Circuit reversed. In re Sealed Case, While recognizing that most courts assume the privilege survives death, the Court of Appeals noted that holdings actually manifesting the posthumous force of the privilege are rare. Instead, most judicial references to the privilege's posthumous application occur in the context of a well-recognized exception allowing disclosure for disputes among the client's heirs. It further noted that most commentators support some measure of posthumous curtailment of the The Court of Appeals thought that the risk of posthumous revelation, when confined to the criminal context, would have little to no chilling effect on client communication, but that the costs of protecting communications after death were high. It therefore concluded that the privilege was not absolute in such circumstances, and that instead, a balancing test should apply. at 233 234. It thus held that there is a posthumous exception to the privilege for communications whose relative importance to particular criminal litigation is substantial. While acknowledging that uncertain privileges are disfavored, the Court of Appeals determined that the uncertainty introduced by its balancing test was insignificant in light of existing exceptions |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | its balancing test was insignificant in light of existing exceptions * to the 124 F.3d, The Court of Appeals also held that the notes were not protected by the work-product The dissenting judge would have affirmed the District Court's judgment that the attorney-client privilege protected the notes. He concluded that the common-law rule was that the privilege survived death. He found no persuasive reason to depart from this accepted rule, particularly given the importance of the privilege to full and frank client communication. Petitioners sought review in this Court on both the attorney-client privilege and the work-product [1] We granted certiorari, and we now reverse. The attorney-client privilege is one of the oldest recognized privileges for confidential communications. ; The privilege is intended to encourage "full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and the administration of justice." at The issue presented here is the scope of that privilege; more particularly, the extent to which the privilege survives the death of the client. Our interpretation of the privilege's scope is guided by "the principles of the common law as interpreted by the courts. in the light of reason and experience." Fed. Rule Evid. 501; The Independent Counsel argues that the attorney-client privilege should not prevent disclosure of confidential communications where the client has died and the information is relevant to a criminal proceeding. There is some authority for this position. One state appellate court, *404 and the Court of Appeals below have held the privilege may be subject to posthumous exceptions in certain circumstances. In Cohen, a civil case, the court recognized that the privilege generally survives death, but concluded that it could make an exception where the interest of justice was compelling and the interest of the client in preserving the confidence was insignificant. -693. But other than these two decisions, cases addressing the existence of the privilege after deathmost involving the testamentary exceptionuniformly presume the privilege survives, even if they do not so hold. See, e. g., ; ; Several State Supreme Court decisions expressly hold that the attorneyclient privilege extends beyond the death of the client, even in the criminal context. See In re John Doe Grand Jury Investigation, ; ; In John Doe Grand Jury Investigation, for example, the Massachusetts Supreme Judicial Court concluded that survival of the privilege was "the clear implication" of its early pronouncements that communications subject to the privilege could not be disclosed at any 562 N. E. 2d, at The court further noted that survival of the privilege was |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | The court further noted that survival of the privilege was "necessarily implied" by cases allowing waiver of the privilege in testamentary disputes. Such testamentary exception cases consistently presume the privilege survives. See, e. g., United ; ; ; Russell v. 9 Hare 387, 68 Eng. Rep. 558 (V. C. 1851). They view testamentary *405 disclosure of communications as an exception to the privilege: "[T]he general rule with respect to confidential communications is that such communications are privileged during the testator's lifetime and, also, after the testator's death unless sought to be disclosed in litigation between the testator's heirs." Osborn, 561 F. 2d, at The rationale for such disclosure is that it furthers the client's intent. at n. 11.[2] Indeed, in this Court, in recognizing the testamentary exception, expressly assumed that the privilege continues after the individual's death. The Court explained that testamentary disclosure was permissible because the privilege, which normally protects the client's interests, could be impliedly waived in order to fulfill the client's testamentary intent. and Russell v. ). The great body of this case law supports, either by holding or considered dicta, the position that the privilege does survive in a case such as the present one. Given the language of Rule 501, at the very least the burden is on the Independent *406 Counsel to show that "reason and experience" require a departure from this rule. The Independent Counsel contends that the testamentary exception supports the posthumous termination of the privilege because in practice most cases have refused to apply the privilege posthumously. He further argues that the exception reflects a policy judgment that the interest in settling estates outweighs any posthumous interest in confidentiality. He then reasons by analogy that in criminal proceedings, the interest in determining whether a crime has been committed should trump client confidentiality, particularly since the financial interests of the estate are not at stake. But the Independent Counsel's interpretation simply does not square with the case law's implicit acceptance of the privilege's survival and with the treatment of testamentary disclosure as an "exception" or an implied "waiver." And the premise of his analogy is incorrect, since cases consistently recognize that the rationale for the testamentary exception is that it furthers the client's intent, see, e. g., There is no reason to suppose as a general matter that grand jury testimony about confidential communications furthers the client's intent. Commentators on the law also recognize that the general rule is that the attorney-client privilege continues after death. See, e. g., 8 Wigmore, Evidence 2323 (McNaughton rev. 1961); Frankel, The Attorney-Client Privilege After the |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | 2323 (McNaughton rev. 1961); Frankel, The Attorney-Client Privilege After the Death of the Client, ; 1 J. Strong, McCormick on Evidence 94, p. 348 Undoubtedly, as the Independent Counsel emphasizes, various commentators have criticized this rule, urging that the privilege should be abrogated after the client's death where extreme injustice would result, as long as disclosure would not seriously undermine the privilege by deterring client communication. See, e. g., C. Mueller & L. 2 Federal Evidence 199, pp. 380- ; Restatement (Third) of the Law Governing 127, Comment *407 d But even these critics clearly recognize that established law supports the continuation of the privilege and that a contrary rule would be a modification of the common law. See, e. g., Mueller & ; Restatement of the Law Governing 127, Comment c; 24 C. Wright & K. Graham, Federal Practice and Procedure 5498, p. 483 (1986). Despite the scholarly criticism, we think there are weighty reasons that counsel in favor of posthumous application. Knowing that communications will remain confidential even after death encourages the client to communicate fully and frankly with counsel. While the fear of disclosure, and the consequent withholding of information from counsel, may be reduced if disclosure is limited to posthumous disclosure in a criminal context, it seems unreasonable to assume that it vanishes altogether. Clients may be concerned about reputation, civil liability, or possible harm to friends or family. Posthumous disclosure of such communications may be as feared as disclosure during the client's life The Independent Counsel suggests, however, that his proposed exception would have little to no effect on the client's willingness to confide in his attorney. He reasons that only clients intending to perjure themselves will be chilled by a rule of disclosure after death, as opposed to truthful clients or those asserting their Fifth Amendment This is because for the latter group, communications disclosed by the attorney after the client's death purportedly will reveal only information that the client himself would have revealed if alive. The Independent Counsel assumes, incorrectly we believe, that the privilege is analogous to the Fifth Amendment's protection against self-incrimination. But as suggested above, the privilege serves much broader purposes. Clients consult attorneys for a wide variety of reasons, only one of which involves possible criminal liability. Many attorneys *408 act as counselors on personal and family matters, where, in the course of obtaining the desired advice, confidences about family members or financial problems must be revealed in order to assure sound legal advice. The same is true of owners of small businesses who may regularly consult their attorneys |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | owners of small businesses who may regularly consult their attorneys about a variety of problems arising in the course of the business. These confidences may not come close to any sort of admission of criminal wrongdoing, but nonetheless be matters which the client would not wish divulged. The contention that the attorney is being required to disclose only what the client could have been required todisclose is at odds with the basis for the privilege even during the client's life In related cases, we have said that the loss of evidence admittedly caused by the privilege is justified in part by the fact that without the privilege, the client may not have made such communications in the first place. See ; This is true of disclosure before and after the client's death. Without assurance of the privilege's posthumous application, the client may very well not have made disclosures to his attorney at all, so the loss of evidence is more apparent than real. In the case at hand, it seems quite plausible that Foster, perhaps already contemplating suicide, may not have sought legal advice from Hamilton if he had not been assured the conversation was privileged. The Independent Counsel additionally suggests that his proposed exception would have minimal impact if confined to criminal cases, or, as the Court of Appeals suggests, if it is limited to information of substantial importance to a particular criminal case.[3] However, there is no case authority for the proposition that the privilege applies differently in criminal *409 and civil cases, and only one commentator ventures such a suggestion, see Mueller & In any event, a client may not know at the time he discloses information to his attorney whether it will later be relevant to a civil or a criminal matter, let alone whether it will be of substantial importance. Balancing ex post the importance of the information against client interests, even limited to criminal cases, introduces substantial uncertainty into the privilege's application. For just that reason, we have rejected use of a balancing test in defining the contours of the See ; at In a similar vein, the Independent Counsel argues that existing exceptions to the privilege, such as the crime-fraud exception and the testamentary exception, make the impact of one more exception marginal. However, these exceptions do not demonstrate that the impact of a posthumous exception would be insignificant, and there is little empirical evidence on this point.[4] The established exceptions are consistent *410 with the purposes of the privilege, see 165 U. S., ; United while a posthumous exception in criminal cases |
Justice Rehnquist | 1,998 | 19 | majority | Swidler & Berlin v. United States | https://www.courtlistener.com/opinion/118237/swidler-berlin-v-united-states/ | S., ; United while a posthumous exception in criminal cases appears at odds with the goals of encouraging full and frank communication and of protecting the client's interests. A "no harm in one more exception" rationale could contribute to the general erosion of the privilege, without reference to common-law principles or "reason and experience." Finally, the Independent Counsel, relying on cases such as United and urges that privileges be strictly construed because they are inconsistent with the paramount judicial goal of truth seeking. But both Nixon and Branzburg dealt with the creation of privileges not recognized by the common law, whereas here we deal with one of the oldest recognized privileges in the law. And we are asked, not simply to "construe" the privilege, but to narrow it, contrary to the weight of the existing body of case law. It has been generally, if not universally, accepted, for well over a century, that the attorney-client privilege survives the death of the client in a case such as this. While the arguments against the survival of the privilege are by no means frivolous, they are based in large part on speculationthoughtful speculation, but speculation nonetheless as to whether posthumous termination of the privilege would diminish a client's willingness to confide in an attorney. In an area where empirical information would be useful, it is scant and inconclusive. Rule 501's direction to look to "the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience" does not mandate that a rule, once established, should endure for all But *411 here the Independent Counsel has simply not made a sufficient showing to overturn the common-law rule embodied in the prevailing case law. Interpreted in the light of reason and experience, that body of law requires that the attorneyclient privilege prevent disclosure of the notes at issue in this case. The judgment of the Court of Appeals is Reversed. |
per_curiam | 1,991 | 200 | per_curiam | United States v. Ibarra | https://www.courtlistener.com/opinion/112654/united-states-v-ibarra/ | The United States District Court for the District of Wyoming ordered that certain evidence which the Government proposed to use in respondent's pending criminal trial be suppressed. The Government appealed the order to the Court of Appeals for the Tenth Circuit, but that court dismissed the Government's appeal. It held that the 30-day period in which to file an appeal began to run on the date of the District Court's original suppression order, rather than on the date the District Court denied the Government's motion for reconsideration. We grant the Government's petition for certiorari and vacate the judgment of the Court of Appeals. I Respondent was indicted for possession of cocaine with intent to distribute. The circumstances leading to the indictment are largely uncontested. Law enforcement officers stopped respondent's car for a suspected operating violation. The officers questioned respondent and asked for permission to search the car. Respondent granted the request and a brief search was conducted but no cocaine was identified or seized. However, noting that neither respondent nor his passenger had a valid operator's license, the officers impounded the car and transported respondent and his passenger to a Western Union office. The officers then went to the towing service lot and searched the car a second time. They found cocaine in the trunk. Respondent filed a pretrial motion to suppress the evidence found in the second search. *3 Among the theories on which the Government originally contested the motion was that the second search had been conducted pursuant to respondent's continuing consent. However, before the District Court ruled on the suppression motion, the Government abandoned the continuing consent theory in papers filed with the court, citing a lack of legal support for its position. On November 15, 1989, after an evidentiary hearing, the District Court granted the motion to suppress and noted in its order the Government's abandonment of the continuing consent theory. On December 13, 1989, the Government filed with the District Court a "Motion for Reconsideration of Suppression Order." The sole basis for the Government's motion was its reassertion of the continuing consent theory. On January 3, the District Court denied the motion. The Government noticed its appeal on January 30, less than 30 days after the denial of the motion for reconsideration but 76 days after the initial suppression order. A divided panel of the Tenth Circuit dismissed the appeal as untimely, holding that the Government's motion to reconsider did not "toll" the 30-day period[1] to appeal which began *4 to run on the date of the initial order.[2] In the course of its opinion, |
per_curiam | 1,991 | 200 | per_curiam | United States v. Ibarra | https://www.courtlistener.com/opinion/112654/united-states-v-ibarra/ | of the initial order.[2] In the course of its opinion, the Court of Appeals rejected the Government's argument that this Court's decisions in United and United controlled the decision. In United we said: "The question, therefore, is simply whether in a criminal case a timely petition for rehearing by the Government filed within the permissible time for appeal renders the judgment not final for purposes of appeal until the Court disposes of the petitionin other words whether in such circumstances the 30-day period begins to run from the date of entry of judgment or the denial of the petition for rehearing." -78. The Court answered this question by saying that under the "well-established rule in civil cases," the 30-day period begins with the denial of the petition for rehearing and by further observing that this Court's consistent practice had been to treat petitions for rehearing as having the *5 same effect in criminal cases. -79. More than 12 years later, we decided United There, too, the Court of Appeals for the Tenth Circuit dismissed as untimely the Government's appeal from a District Court's order dismissing an indictment. Although the Government's notice of appeal had been filed within 30 days of a District Court order denying its "Motion to Set Aside Order of Dismissal," it was not filed within 30 days after the order of dismissal itself. The Court of Appeals held that our decision in governed only in cases of claimed errors of law, whereas the basis of the Government's motion for reconsideration in was mistake or inadvertence. We vacated and remanded the decision of the Court of Appeals, saying that it "misconceived the basis of our decision in We noted there that the consistent practice in civil and criminal cases alike has been to treat timely petitions for rehearing as rendering the original judgment nonfinal for purposes of appeal for as long as the petition is pending." We pointed out the presumed benefits of this ruledistrict courts are given the opportunity to correct their own alleged errors, and allowing them to do so prevents unnecessary burdens being placed on the courts of appeals. We concluded that "the Court of Appeals' law/ fact distinctionassuming such a distinction can be clearly drawn for these purposesfinds no support in " The Court of Appeals in the present case nonetheless determined that the 30-day period was not affected by the Government's motion to reconsider. It instead created a special rule for motions that seek reconsideration of previously disavowed theories because it concluded that suspending the time to appeal upon such motions does not |
per_curiam | 1,991 | 200 | per_curiam | United States v. Ibarra | https://www.courtlistener.com/opinion/112654/united-states-v-ibarra/ | suspending the time to appeal upon such motions does not further the goals described in Because such motions do not serve to *6 permit the district court to reconsider matters initially overlooked, the Court of Appeals thought that delaying the appellate process pending resolution of such motions is unlikely to contribute to judicial It also noted that Government motions to reconsider a position conceded during appellate litigation are viewed with disfavor when filed before an appellate tribunal. ). II We think the Court of Appeals has misread our decisions in and The first of these decisions established that a motion for rehearing in a criminal case, like a motion for rehearing in a civil case, renders an otherwise final decision of a district court not final until it decides the petition for rehearing. In we rejected an effort to carve out exceptions to this general rule in the case of petitions for rehearing which do not assert an alleged error of law. We think that the Court of Appeals' present effort to carve out a different exception to the general rule laid down in must likewise be rejected. It may be that motions to reconsider based on previously abandoned grounds are not apt to fare well either in the district court or on appeal to the court of appeals. But if such a judgment as to the merits were allowed to play a part in deciding the time in which a denial of the motion may be appealed, it is difficult to see why a similar merits analysis should not be undertaken for all motions for reconsideration. The result would be, as the dissenting judge below pointed out, to "graf[t] a merits inquiry onto what should be a brightline jurisdictional inquiry." Undoubtedly some motions for reconsideration are so totally lacking in merit that the virtues of the rule established in are not realized by delaying the 30-day period. If it were possible to pick them out in advance, it would be *7 better if litigants pursuing such motions were made to go sooner, rather than later, on their fruitless way to the appellate court. But there is no certain way of deciding in advance which motions for reconsideration have the requisite degree of merit, and which do not. Given this, it is far better that all such motions be subsumed under one general rulethe rule laid down in Without a clear general rule litigants would be required to guess at their peril the date on which the time to appeal commences to run. Prudent attorneys would be encouraged to file |
per_curiam | 1,991 | 200 | per_curiam | United States v. Ibarra | https://www.courtlistener.com/opinion/112654/united-states-v-ibarra/ | commences to run. Prudent attorneys would be encouraged to file notices of appeal from orders of the district court, even though the latter court is in the course of considering a motion for rehearing of the order. Cf. United Less prudent attorneys would find themselves litigating in the courts of appeals whether a motion for reconsideration filed in the district court had sufficient potential merit to justify the litigant's delay in pursuing appellate review. Neither development would be desirable. The Court of Appeals' opinion can be read to hold that because the Government did not initially urge the argument which it made in its motion for reconsideration, that motion was not a "true" motion for reconsideration which would extend the time for appeal. But this method of analysis, too, would break down into sub categories the more general category of "motions for reconsideration" described in our previous opinions. Here, the Government's motion before the District Court sought to "`reconsider [a] question decided in the case' in order to effect an `alteration of the rights adjudicated.' " -9 ). That is sufficient under and[3] *8 The petition for certiorari is granted, respondent's motion to proceed in forma pauperis is granted, the judgment of the Court of Appeals is vacated, and the case is remanded to that court for further proceedings. It is so ordered. |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | [*] In December 1966, petitioners Dominick Codispoti and Herbert Langnes were codefendants with Richard Mayberry in a criminal trial ending in a verdict of guilty. Each acted as his own counsel, although legal advice was available from appointed counsel. At the conclusion of the trial, the judge pronounced Mayberry guilty of 11 contempts committed during trial and sentenced him to one to two years for each contempt. Codispoti was given like sentences for each of seven separate contempts. Langnes was sentenced to one to two years on each of six separate citations. Mayberry's total sentence was thus 11 to 22 years, Codispoti's seven to 14 years, and Langnes' six to 12 years. The contempt convictions were affirmed by the Supreme Court. This Court granted Mayberry's petition for certiorari, and vacated the judgment of the court, directing that "on remand another judge, not bearing the sting of these slanderous remarks and having the impersonal authority of the law, [sit] in judgment on the conduct of petitioner as shown by the record." The contempt charges against Mayberry and petitioners were then retried in separate proceedings before another trial judge.[1] Codispoti's demand for a jury was *508 denied. He also moved to subpoena witnesses "to prove that my actions did not disrupt the proceedings, and I intend to prove that my actions [sic] was not contemptuous, that it was merely an answer to the provocation made by the presiding Judge." App. 47. This motion was also denied, the court remarking that "this is an issue between the Court and you, and the record will speak for the Court, and you and counsel can speak for yourself." *509 The trial then proceeded, the State offering into evidence the relevant portions of the transcript of the 1966 criminal proceedings in the course of which the alleged contempts occurred. The State then rested. Codispoti neither testified nor called witnesses. The court found that he had committed the seven contemptuous acts as charged and sentenced him to six months in prison for each of six contempts and a term of three months for another, all of these sentences to run consecutively. Petitioner Langnes' trial followed a very similar course.[2] He was found guilty of six separate contempts *510 and sentenced to five terms of six months each and one term of two months, all to be served consecutively. The trial court filed an opinion stating that "the only points at issue are the validity of the sentences. The question of guilt of contemptuous conduct has been confirmed by both the Supreme Court of and by the U. |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | by both the Supreme Court of and by the U. S. Supreme Court therefore testimony at this hearing was limited to the record." App. 35. The court also held that petitioners were not entitled to a jury trial "because the questions of guilt to which the juries' decisions would be limited had already been adjudicated adversely to the Defendants by two appellate courts. Furthermore, in the instant cases no term of imprisonment in excess of six months was imposed for any one offense. The offenses for which sentences were imposed occurred at different times and on different dates." *511 The Supreme Court affirmed without opinion, one justice dissenting on the ground that petitioners were entitled to a jury trial.[3] I In the Court held that the Fourteenth Amendment guaranteed to defendants in state criminal trials the right to jury trial provided in the Sixth Amendment. In a companion case, the Court held that while petty contempts, like other petty crimes, could be tried without a jury, serious criminal contempts had to be tried with a jury if the defendant insisted on this mode of trial. Although the judgment about the seriousness of the crime is normally heavily influenced by the penalty authorized by the legislature, the Court held that where no legislative penalty is specified and sentence is left to the discretion of the judge, as is often true in the case of criminal contempt, the pettiness or seriousness of the contempt will be judged by the penalty actually imposed. Finally, the Court recognized that sentences up to six months could be imposed for criminal *512 contempt without guilt or innocence being determined by a jury, but a conviction for criminal contempt in a nonjury trial could not be sustained where the penalty imposed was 24 months in prison. Since that time, our decisions have established a fixed dividing line between petty and serious offenses: those crimes carrying a sentence of more than six months are serious crimes and those carrying a sentence of six months or less are petty crimes. ;[4] Under these cases, we plainly cannot accept petitioners' argument that a contemnor is entitled to a jury trial simply because a strong possibility exists that he will face a substantial term of imprisonment upon conviction, regardless of the punishment actually imposed. See Taylor v. Hayes, ante, p. 488. Our cases, however, do not expressly address petitioners' remaining argument that they were entitled to jury trials because the prison sentences imposed after posttrial convictions for contemptuous acts during trial were to be served consecutively *513 and, although each was |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | were to be served consecutively *513 and, although each was no more than six months, aggregated more than six months in jail.[5] II There are recurring situations where the trial judge, to maintain order in the courtroom and the integrity of the trial process in the face of an "actual obstruction of justice," In re McConnell, ; see also In re Little, convicts and sentences the accused or the attorneys for either side for various acts of contempt as they occur. *514 Undoubtedly, where the necessity of circumstances warrants, a contemnor may be summarily tried for an act of contempt during trial and punished by a term of no more than six months. Nor does the judge exhaust his power to convict and punish summarily whenever the punishment imposed for separate contemptuous acts during trial exceeds six months. Cf. United recognized, as cases in this Court have consistently done, "the need to maintain order and a deliberative atmosphere in the courtroom. The power of a judge to quell disturbance cannot attend upon the impaneling of a jury." "[A] criminal trial, in the constitutional sense, cannot take place where the courtroom is a bedlam A courtroom is a hallowed place where trials must proceed with dignity" v. See also N. Dorsen & L. Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 10-23 ; Burger, The Necessity for Civility, 52 F. R. D. 211, 214-215 "To allow the disruptive activities of a defendant. to prevent his trial is to allow him to profit from his own wrong. The Constitution would protect none of us if it prevented the courts from acting to preserve the very processes that the Constitution itself prescribes." v. More recently, in we again noted that a judge, when faced with the kind of conduct there at issue, "could, with propriety, have *515 instantly acted, holding petitioner in contempt" That the total punishment meted out during trial exceeds six months in jail or prison would not invalidate any of the convictions or sentences, for each contempt has been dealt with as a discrete and separate matter at a different point during the trial. III When the trial judge, however, postpones until after trial the final conviction and punishment of the accused or his lawyer for several or many acts of contempt committed during the trial, there is no overriding necessity for instant action to preserve order and no justification for dispensing with the ordinary rudiments of due process. ; ; Taylor v. Hayes, ante, at |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | of due process. ; ; Taylor v. Hayes, ante, at 497. Moreover, it is normally the trial judge who, in retrospect, determines which and how many acts of contempt the citation will cover. It is also he or, as is the case here, another judge who will determine guilt or innocence absent a jury, who will impose the sentences and who will determine whether they will run consecutively or concurrently. In the context of the post-verdict adjudication of various acts of contempt, it appears to us that there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate. Cf. The jury-trial guarantee reflects "a profound judgment about the way in which law should be enforced and justice administered. A right to jury trial is granted to criminal defendants in order to prevent oppression by the Government." The Sixth Amendment represents a "deep commitment of the Nation to the right of *516 jury trial in serious criminal cases as a defense against arbitrary law enforcement" Moreover, "criminal contempt is a crime in every fundamental respect [I]n terms of those considerations which make the right to jury trial fundamental in criminal cases, there is no substantial difference between serious contempts and other serious crimes. Indeed, in contempt cases an even more compelling argument can be made for providing a right to jury trial as a protection against the arbitrary exercise of official power. Contemptuous conduct, though a public wrong, often strikes at the most vulnerable and human qualities of a judge's temperament. Even when the contempt is not a direct insult to the court or the judge, it frequently represents a rejection of judicial authority, or an interference with the judicial process or with the duties of officers of the court." -202. In the case before us, the original trial judge filed the contempt charges against these petitioners, while another judge tried them and imposed the sentences. Because the latter had the power to impose consecutive sentences, as he did here, guilt or innocence on the individual charges bore heavily on the ultimate sentence and was of critical importance. Here the contempts against each petitioner were tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts, Langnes to two years and eight *517 months for his six contempts. In terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense and was entitled to a jury trial. We find unavailing respondent's contrary argument that petitioners' contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent's characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired. Neither are we impressed with the contention that today's decision will provoke trial judges to punish summarily during trial rather than awaiting a calmer, more studied proceeding after trial and deliberating "in the cool reflection of subsequent events." U.S. 66, Summary convictions during trial that are unwarranted by the facts will not be invulnerable to appellate review. Cf.[6] Nor can we accept the trial court's view that the question of petitioners' guilt on the contempt charges had already been conclusively adjudicated in this Court. Our decision in although expressing strong condemnation of Mayberry's conduct, *518 which we reaffirm, did not purport to affirm Mayberry's contempt conviction. On the contrary, the judgment affirming the conviction was vacated and a new trial required before a different judge who was to sit "in judgment on the conduct of petitioner as shown by the record." 400 U.S., at The judgment of the Supreme Court is reversed and the case remanded for further proceedings not inconsistent with this opinion. So ordered MR. JUSTICE MARSHALL, concurring in part. I concur in the judgment of the Court, and in Parts I and III of the Court's opinion. However, I cannot join Part II of the opinion, which suggests that the trial judge in a situation such as we have here could impose an unlimited number of separate, consecutive six-month sentences upon a defendant "for separate contemptuous acts during trial," so long as the judge convicts and punishes summarily upon the occurrence of each contemptuous act. In my view, the Sixth Amendment right to jury trial would be equally applicable to this situation. I The Court's opinion observes that "[t]he Sixth Amendment |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | situation. I The Court's opinion observes that "[t]he Sixth Amendment represents a `deep commitment of the Nation to the right of jury trial in serious criminal cases as a defense against arbitrary law enforcement.' " Ante, at 515-516, quoting The opinion further recognizes that it is the trial judge who in a single proceeding acts as prosecutor, "determin[ing] which and how many acts of contempt the citation will cover"; as trier of fact, "determin[ing] guilt or innocence absent a jury"; and as judge, "impos[ing] the sentences and determin[ing] whether they will run consecutively *519 or concurrently." Ante, at 515. Thus, the Court concludes, "there is posed the very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate." I agree. But I completely fail to see how there is any less likelihood of such arbitrary action by a judge when he acts summarily to punish each allegedly contemptuous act by a defendant as it occurs, rather than awaiting the end of trial to try the contempts. Indeed, the suggestion provides an incentive for a trial judge to act in the heat of the moment, and thus encourages the very arbitrary action which it is the purpose of the Sixth Amendment to eliminate. We have held that a six-month sentence is the constitutional dividing line between serious offenses for which trial by jury must be afforded and petty offenses, and that in contempt cases it is the sentence actually imposed rather than the penalty authorized by law which is determinative. Accordingly, the Court today holds that Codispoti and Langnes are constitutionally entitled to a jury trial because "[i]n terms of the sentence imposed, which was obviously several times more than six months, each contemnor was tried for what was equivalent to a serious offense." Ante, at 517. The Court rejects the State's argument that the individual contempts were separate offenses for Sixth Amendment purposes by pointing out that the contempts arose from a single trial, that they were charged by a single judge, and that the individual sentences were then aggregated. With all due respect, the same would be true if the judge had imposed summary punishment as the contemptuous acts occurred. Where the contemptuous acts arose out of a single course of conduct by the defendant, I think that they should be treated as a single serious offense for which the Sixth Amendment requires a jury trial, whether the judge seeks *520 to use his summary contempt power in individual instances during trial or tries the contempts together at the end of trial. See |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | tries the contempts together at the end of trial. See N. Dorsen & L. Disorder in the Court: Report of the Association of the Bar of the City of New York, Special Committee on Courtroom Conduct 222-224 The only justification advanced by the Court to support the contrary position is the "overriding necessity for instant action to preserve order." Ante, at 515. But we rejected this very argument in There, too, it was suggested that an exception to the constitutional rule requiring jury trial in serious contempt cases should be made for contempts committed in the presence of the judge because of "the need to maintain order and a deliberative atmosphere in the courtroom." Although we acknowledged that there was a "strong temptation" to do so, we held that the need to maintain order was not sufficient to justify an exception to the constitutional requirement. II Equally important, I am convinced that there is no "overriding necessity" for repeated use of the summary contempt power against a criminal defendant to maintain order in the courtroom. No clearer statement of the problem of courtroom disorder and its solution can be found than Mr. Justice Black's statement in v. : "It is essential to the proper administration of criminal justice that dignity, order, and decorum be the hallmarks of all court proceedings in our country. The flagrant disregard in the courtroom of elementary standards of proper conduct should not and cannot be tolerated. We believe trial judges confronted with disruptive, contumacious, stubbornly *521 defiant defendants must be given sufficient discretion to meet the circumstances of each case. No one formula for maintaining the appropriate courtroom atmosphere will be best in all situations. We think there are at least three constitutionally permissible ways for a trial judge to handle an obstreperous defendant like : (1) bind and gag him, thereby keeping him present; (2) cite him for contempt; (3) take him out of the courtroom until he promises to conduct himself properly." The Court in set out three alternative ways of dealing with courtroom disorder. Today my Brothers single out one of these three alternatives and sanction the use of seriatim judge-imposed six-month sentences to maintain order and a deliberative atmosphere in the courtroom because of the necessity for this remedy. There is nothing in however, that approves a succession of judge-imposed six-month contempt citations in one trial, and I have been unable to find any of our cases giving such specific authorization. This is too big a step to take where such a positive declaration of law is not necessary for the |
Justice White | 1,974 | 6 | majority | Codispoti v. Pennsylvania | https://www.courtlistener.com/opinion/109096/codispoti-v-pennsylvania/ | a positive declaration of law is not necessary for the decision of the case at hand. The availability of the other remedies set forth in is persuasive proof that courtroom disorder can be effectively dealt with without the use of repeated summary contempts resulting in lengthy jail terms. See N. Dorsen & L. Indeed, repeated contempt citations are probably the least effective way to deal with the problem. The very fact that a series of contempt citations has failed to check the defendant's contemptuous acts and restore a deliberative atmosphere in the courtroom itself demonstrates that another citation is unlikely to do so. Either of the other two alternatives set forth in would correct rather than prolong the disruptions of an orderly trial. Rather than permit the *522 use of repeated contempt citations resulting in a sentence of over six months, suggests that after an initial warning, see 397 U.S., the next disruption could be punished with a contempt citation and a six-month sentence, plus a firm warning that any further disruption will be followed by binding or gagging the defendant or removing him from the courtroom until he promises to conduct himself properly. This approach would be more effective in maintaining that "dignity, order, and decorum" of which Mr. Justice Black spoke in than successive contempt citations after future disruptions, without running afoul of the Sixth Amendment's right to jury trial. MR. JUSTICE BLACKMUN, with whom THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | This case presents the issue of the constitutionality of a federal-court-ordered reapportionment of the North Dakota Legislature, called in that State the Legislative That State, like many others, has struggled to satisfy constitutional requirements for legislative apportionment delineated in ; ; WMCA, ; Maryland ; ; ; and other cases. This litigation is the culmination of that struggle, totally ineffectual on the legislative side, during the past decade. I The State's Constitution and Its Statutes North Dakota's original Constitution, adopted at the State's admission into the Union in 1889, is still in effect. It has been amended, of course, from time to time. Since 1918, 25 thereof has read: "The legislative power of this state shall be vested in a legislature consisting of a senate and a house of representatives." N. D. Const. Art. II, 25. That legislative power for 70 years has been subject to the initiative and the referendum. The Constitution has further provided that the State's senate "shall be composed of forty-nine members," 26, elected for a four-year term, 27, with one-half thereof elected every two years, 30, and that no one shall be a senator unless he is a qualified elector of the senatorial district, has attained the age of 25 years, and has been a *4 resident of the State for the two years next preceding the election, 28. Since 1960, 29 has read: "Each existing senatorial district as provided by law at the effective date of this amendment shall permanently constitute a senatorial district. Each senatorial district shall be represented by one senator and no more."[1] Laws c. 8; Laws c. 405. The document also states that the house of representatives "shall be composed of not less than sixty, nor more than one hundred forty members," 32, elected for a two-year term, 33, and that no one shall be a representative unless he is a qualified elector of the district, has attained the age of 21 years, and has been a resident of the State for the two years next preceding the election, 34. Section 35 provides for at least one representative for each senatorial district and for as many representatives as there are counties in the district; states that the Legislative after each federal decennial census, shall apportion "the balance of the members of the House of Representatives," and, if the Legislative fails in its apportionment duty, places the task of apportioning the house in a designated group of officials of the State.[2] *5 There have been complementary statutory provisions. An apportionment effected by Laws 1931, c. 7, N. D. Cent. Code 54-03-01 |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | by Laws 1931, c. 7, N. D. Cent. Code 54-03-01 (1960), was in effect for over 30 years despite the mandate of 35 of the Constitution that apportionment be effected after each federal census. II Prior Litigation A. Things began to stir in North Dakota even prior to this Court's decision in in The State's Legislative of had failed to apportion the house following the 1960 census. After Baker *6 had been decided at the District Court level, and between the argument and reargument of the case here, the Supreme Court of North Dakota dismissed an original action for a prerogative writ to enjoin its Chief Justice from issuing the apportionment proclamation which would have announced the conclusions of the statutorily designated "apportionment group" that were then anticipated. The petition asserted that the group's plan would apportion the house in an unconstitutional manner and not according to population. The Supreme Court ruled that the function of the group was legislative; that it had not yet completed its work; that it was performing a function the Legislative should have performed; and that, until the proclamation was issued, the group's action was not subject to challenge in the courts. State ex rel. B. Citizens of North Dakota then sought declaratory and injunctive relief in federal court under the Civil Rights Acts, 42 U.S. C. 1983 and 1988. By this time the State's Chief Justice had issued the proclamation. A three-judge District Court held that the presence of the proclamation eliminated the aspect of prematurity that had characterized the earlier challenge in the state court. But the "basic issues," the court concluded with one dissent, had not been presented to the Supreme Court of North Dakota. "We believe that court should have the opportunity of passing on all questions herein." The court, accordingly, abstained from passing upon those issues; it stayed further proceedings before it, but did not dismiss the action. C. The plaintiffs in the federal case promptly took to the Supreme Court of North Dakota their attack upon the plan adopted by the apportionment group. That *7 court assumed jurisdiction. State ex rel. It noted that no question arising under the United States Constitution was presented, at -682, and that it was not concerned with the validity of the allotment of one representative to each senatorial district, as prescribed by the first sentence of 35 of the Constitution, The court recognized that there was inherent in a constitutional direction to apportion according to population "a limited discretion to make the apportionment that will approach, as nearly as is reasonably possible, a |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | that will approach, as nearly as is reasonably possible, a mathematical equality." It then went on to hold that the apportionment made by the group "violates the constitutional mandate of apportionment according to the population of the several districts and is void," and that the apportionment effected by the 1931 statute continued to be the law until superseded by an apportionment valid under 35 or under a further amendment of the Constitution. -688. D. The same plaintiffs then turned again to the federal court. The three-judge court, with one judge dissenting, denied the request for injunctive relief on the ground that the only challenge before it was to the apportionment group's plan, and that the 1931 apportionment was not challenged. It noted that the Legislative would meet the following January, that it had "the mandatory duty" to apportion the house, and that the court would not presume that it would not perform that duty. Jurisdiction was retained, with the observation that if the Legislative failed to act, the plaintiffs, upon appropriate amendment of their complaint, might further petition the court for relief. E. The 1963 Legislative did reapportion. Laws 1963, c. 345. *8 F. and its companion cases were decided in June A new suit then was instituted in federal court to invalidate North Dakota's entire apportionment system on federal constitutional grounds. Sections 26, 29, and 35 of the Constitution and the 1963 statute were challenged. The three-judge court held that these constitutional and statutory provisions were violative of the Equal Protection Clause. It went on to hold that the 1931 apportionment, being "the last valid apportionment," as described by the North Dakota Supreme Court, and by which the 1963 legislators had been elected, was also invalid. Thus, "there is no constitutionally valid legislative apportionment law in existence in the State of North Dakota at this time." The court encountered difficulty as to an appropriate remedy. It concluded, one judge dissenting, that adequate time was not available within which to formulate a proper plan for the then forthcoming elections, ; that the Legislative would have a de facto status; and that that should promptly devise a constitutional system. Injunctive relief was denied. G. The Legislative produced a reapportionment act although it was not approved or disapproved by the Governor. Laws c. 338. H. The North Dakota Secretary of State, defendant in the federal court, then moved to dismiss the federal action on the ground that the act met constitutional requirements. The three-judge court, however, ruled otherwise. It turned to the question of remedy and concluded that the Legislative had had |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | question of remedy and concluded that the Legislative had had its opportunity and that the court now had the duty itself to take affirmative action. at -44. It considered *9 several plans that had been introduced in the and centered its attention on the Smith plan. Although the court found the plan "not perfect" (five multimember senatorial districts,[3] and county lines violated in 12 instances), it concluded that the plan, if "slightly" modified, would meet constitutional standards ("impressive mathematical exactness," namely, 25 of 39 districts within 5% of the average population, four slightly over 5%, and only two exceeding 9%). The "slight" modification was made and reapportionment, really the first to be finally effected since 1931, was therefore accomplished in North Dakota by federal-court intervention. I. Still another original proceeding in the State's Supreme Court was instituted. This one challenged the right of senators from the multimember districts to hold office. It was claimed that this multiple membership violated 29 of the North Dakota Constitution which provided that each senatorial district "shall be represented by one senator and no more." The state court held that the judgment of the federal court was not res judicata as to the then plaintiffs; that the initial or "freezing" portion of 29 was clearly invalid; that the concluding portion, restricting representation of a district to one senator, would not have been desired by the people without the "balance" of the freezing portion; and that 29 as a unit must fall as violative of equal protection. State ex rel. The result was that multimember senatorial districts were not held illegal by the state court. *10 III The Present Litigation The 1970 federal census was taken in due course. The Legislative failed to reapportion. The present federal action was instituted the following November. The plaintiffs alleged that substantial shifts in population had taken place, and that the court-ordered plan of no longer complied with the requirements of the Equal Protection Clause. The relief requested was that the court order apportionment upon the 1970 census figures and also provide for single-member districts; that the plan be declared invalid; and that the Secretary of State be restrained from administering the election laws under that plan. On May 22, 1972, the three-judge court entered an order to the effect that the existing North Dakota apportionment failed to meet federal constitutional standards and that the court would attempt to reapportion. Jurisdictional Statement A-54. It appointed a commission to formulate and present a plan within 30 days, and it submitted guidelines to the commission. With respect to multimember districts, the order |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | to the commission. With respect to multimember districts, the order provided: "We have considered the matter of `multi-member' districts and conclude there is insufficient time prior to the 1972 elections to fully explore and resolve the issues involved. The matter of `multi-member' districts will be studied in depth by the Commission, and the results of that study be made available to us." at A-55. An opinion was filed on June 30. (ND). This recited that the commission had presented eight separate plans to the court; that shifts in population since 1960 had resulted in constitutionally impermissible population variations among existing districts; *11 that a plan submitted by Commissioner Dobson substantially reduced the disproportionate representation, although it decreased the number of districts by one and increased the number of senators by two and the number of representatives by four.[4] "[C]ertain weaknesses" in the plan were recognized, including "some variance in population which, in a few instances, seems substantial," and a continuation of multimember These districts included the State's five largest cities. The court noted that the districts had been created, not by enactment of the Legislative but by the federal court in the Paulson decision, and observed, ibid.: "In light of subsequent [United States] Supreme Court pronouncements, we believe it would be improper for this Court to permit their continuation in a court-fashioned plan." and were cited. The court, however, felt "constrained to permit multi-member districts to continue during the 1972 elections to avoid extreme disruptions in the elective processes. We feel that the electorate will be better served by minimizing the confusion surrounding the impending elections, than it would be by the abolition of multi-member districts at this eleventh hour." 372 F. Supp., The Dobson plan was therefore approved "for the 1972 election only." An alternative, the Ostenson plan, was commended to the commission for "further study," with a direction to modify it "so as to eliminate the existing multi-member senate " -368. Chief District Judge Benson dissented as to the limitation of the Dobson plan to the 1972 election; for *12 him, the Connor litigation was distinguishable on racial grounds and the desirability of multimember districts was a question for the Legislative and not for the court. Jurisdiction was retained. On November 8, 1972, immediately after the election that year, the three-judge court suspended its June 30 order until further notice and directed the State's Attorney General promptly to report any action taken by the 1973 Legislative That not only passed an apportionment Act but overrode its veto by the Governor.[5] Laws 1973, c. 411, and Note, at 1178. |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | the Governor.[5] Laws 1973, c. 411, and Note, at 1178. The Act provided for 37 legislative districts, each having one senator and two representatives, except for five multimember senatorial Section 3 thereof specifically recited the population of each district and the population variance (plus 3.3% to minus 3.5%, a total of 6.8%; or plus 408 persons to minus 2 persons, a total of 840 persons) from the average of 12,355 per senator. The effectiveness of the legislative plan, however, promptly was suspended by a referendum petition. See Laws 1973, p. 1549. By a companion initiative petition, an amendment to the State's Constitution was proposed; this would have created a commission to reapportion the State and, in addition, would have mandated single-member senatorial A special election on these took place December 4, 1973. Both were defeated. The Legislative 's work to reapportion was thus nullified by the people. It could be suggested, and apparently was, that the people also reacted against the elimination of the five multimember In any *13 event, the defendant thereupon moved the federal court to readopt the plan temporarily approved by its order of June 1972. The plaintiffs resisted. The three-judge District Court, with Circuit Judge Bright dissenting, then made "permanent" the 1972 Dobson plan, with its five multimember districts providing 18 senators out of a statewide total of 51. We noted probable jurisdiction. IV Jurisdiction We are met at the threshold with a mild question of jurisdiction not pressed by the parties. We have jurisdiction under 28 U.S. C. 1253[6] only if a three-judge court was required by 28 U.S. C. 2281.[7] It might be suggested that the three-judge court here did not restrain the enforcement of a statute but, instead, the enforcement of the court-ordered plan of which had become unconstitutional in the circumstances of 1972, and, hence, that the provisions of 2281 were not satisfied. The argument is less than persuasive and we *14 conclude that it is without merit. Although the reapportionment now under attack was indeed court ordered, its enforcement is doubly based on the State's Constitution and statutes. Its effectuation directly depends on the state election law machinery and, in addition, the plan itself is a court-imposed replacement of the North Dakota constitutional provisions and the 1931, 1963, and reapportionment statutes. It is these that are, and have been, the primary objects of attack. It would be highly anomalous if jurisdiction were not here, for then it would follow that a single judge could invalidate a reapportionment plan that had been evolved or approved, and was required so to be, by |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | evolved or approved, and was required so to be, by a three-judge court some time before. Subject matter of this kind is regular grist for the three-judge court, and that route typically has been employed under conditions similar to those present here. See, e. g., We think this is correct procedure and we conclude that we have jurisdiction. V The Multimember Districts From the above review of the North Dakota constitutional and statutory provisions and of the litigation of the past 12 years, two significant facts emerge: The first is that some multimembership on the house side of the Legislative traditionally has existed. This plainly qualifies as established state policy.[8] The second is that, in contrast, multimembership on the senate side, even as to the five districts, has never existed except as imposed (a) by the three-judge federal court by its Paulson decision; (b) by a majority of the three-judge *15 court as a temporary expedient for the 1972 election only; (c) by the provisions of the 1973 act immediately nullified by referendum; and (d) by a different majority of the three-judge court as a "permanent" solution in the judgment under review. Thus only once has the Legislative provided for multimember senate representation and that effort was promptly aborted. Every other such provision in North Dakota's history has been court imposed. Multimember senate representation, therefore, obviously does not qualify as established state policy. This Court has refrained from holding that multimember districts in apportionment plans adopted by States for their legislatures are per se unconstitutional. and cases cited therein. On the contrary, the Court has upheld numerous state-initiated apportionment schemes utilizing multimember See, e. g., ; ; U.S. 3 And, beginning with the Court has indicated that a State might devise an apportionment plan for a bicameral legislature with one body composed of at least some multimember districts, as long as substantial equality of population per representative is maintained. Notwithstanding this past acceptance of multimember districting plans, we recognize that there are practical weaknesses inherent in such schemes. First, as the number of legislative seats within the district increases, the difficulty for the voter in making intelligent choices among candidates also increases. See Ballots tend to become unwieldy, confusing, and too lengthy to allow thoughtful consideration. Second, when candidates are *16 elected at large, residents of particular areas within the district may feel that they have no representative specially responsible to them. [9] Third, it is possible that bloc voting by delegates from a multimember district may result in undue representation of residents of these districts relative to voters in |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | representation of residents of these districts relative to voters in single-member This possibility, however, was rejected, absent concrete proof, in Criticism of multimember districts has been frequent and widespread.[10] and articles cited therein. See generally Carpeneti, Legislative Apportionment: Multimember Districts and Fair Representation, ; Banzhaf, Multi-Member Electoral DistrictsDo They Violate the "One Man, One Vote" Principle, 75 Yale L. J. 1309 *17 In we held that the mere assertion of such possible weaknesses in a legislature's multimember districting plan was insufficient to establish a denial of equal protection. Rather, it must be shown that "designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population." U.S., at 9. Further, there must be more evidence than a simple disproportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups. 412 U. S., at -766. Such evidence may be more easily developed where the multi-member districts compose a large part of the legislature, where both bodies in a bicameral legislature utilize multi-member districts, or where the members' residences are concentrated in one part of the district.[11] Whether such factors are present or not, proof of lessening or cancellation of voting strength must be offered. This requirement that one challenging a multimember districting plan must prove that the plan minimizes or cancels out the voting power of a racial or political group has been applied in cases involving apportionment schemes adopted by state legislatures. In however, which came to *18 us on an application for a stay, we were presented with a court-ordered reapportionment scheme having some multimember districts in both bodies of the state legislature. We stated explicitly that "when district courts are forced to fashion apportionment plans, single-member districts are preferable to large multi-member districts as a general matter." Exercising our supervisory power, we directed the District Court to devise a single-member districting plan, "absent insurmountable difficulties." This preference for and emphasis upon single-member districts in court-ordered plans was reaffirmed in 404 U. S., at and again in In the latter case a District Court was held to have acted within its discretion in forming a multimember district as an interim remedy in order to alleviate substantial underrepresentation of military personnel in an impending election.[12] The standards for evaluating the use of multimember districts thus clearly differ depending on whether a |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | of multimember districts thus clearly differ depending on whether a federal court or a state legislature has initiated the use. The *19 practical simultaneity of decision in and in so demonstrates. When the plan is court ordered, there often is no state policy of multimember districting which might deserve respect or deference. Indeed, if the court is imposing multimember districts upon a State which always has employed single-member districts, there is special reason to follow the Connor rule favoring the latter type of districting. Appellants do not contend that any racial or political group[13] has been discriminated against by the multimember districting ordered by the District Court. They only suggest that the District Court has not followed our mandate in and that the court has failed to articulate any reasons for this departure. We agree. Absent particularly pressing features calling for multimember districts, a United States district court should refrain from imposing them upon a State. The District Court cannot avoid the multimember issue by labeling it, see a political issue to be resolved by the State. The District Court itself created multimember districting in North Dakota, and it might be said to be disingenuous to suggest that the judicial creation became a political question simply by the passage of nine years. The District Court's treatment of this issue directly conflicts with its prior opinion in this case, where it allowed continuation of the multimember districts first established in the Paulson decision in only as an interim remedy. 372 F. Supp., The court there noted that in the largest multimember district, a voter would be asked to evaluate the qualifications of at least 30 candidates for the state *20 legislature, a "most formidable" task. Taking note of the court held in 1972 that it would be improper to permit multimember districts to remain permanently, and allowed continued use only for the impending election because of the great confusion that otherwise would result. The court appears now to have abandoned that position, with no suggestion of reasons for the abrupt change. It is especially anomalous that the court would continue with the multimember districting plan, when the Special Master who initially proposed it has disavowed use of permanent multimember Dobson, Reapportionment Problems, 48 N. D. L. Rev. 281, 289 In contrast, the dissent in the District Court suggests a wide range of attributes of single-member One advantage is obvious: confusion engendered by multiple offices will be removed. Other advantages perhaps are more speculative: single-member districts may prevent domination of an entire slate by a narrow majority, may ease direct communication with |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | slate by a narrow majority, may ease direct communication with one's senator, may reduce campaign costs, and may avoid bloc voting. Of course, these are general virtues of single-member districts, and there is no guarantee that any particular feature will be found in a specific plan. Neither the District Court majority nor appellee, however, has provided us with any suggestion of a legitimate state interest supporting the abandonment of the general preference for single-member districts in court-ordered plans which we recognized in[14] The fact that no allegation of minority group discrimination is raised by appellants here does not make Connor inapplicable. *21 It is true that in 1973 the voters of North Dakota voted down a proposed constitutional amendment which would have re-established the State's tradition of single-member senatorial At the same time the voters also rejected by referendum the Legislative 's 1973 Act which would have continued the multimember format for five We are unable to infer from these simultaneous actions of the electorate any particular attitude toward multimember It simply appears that North Dakota's voters have not been satisfied with any reapportionment proposal, and that they are frustrated by the years of confusion since the obviously impermissible apportionment provisions of the State's Constitution were invalidated. We are confident that the District Court, with perhaps the aid of its Special Masters, will be able to reinstitute the use of single-member districts while also attaining the necessary goal of substantial population equality. Special Master Ostenson had indicated that it " `would not be terribly difficult to adopt single-member ' " See[15] Unless the District Court can articulate such a "singular combination of unique factors" as was found to exist in 410 U. S., at or unless the 1975 Legislative appropriately acts, the court should proceed expeditiously to reinstate single-member senatorial districts in North Dakota. VI The Population Variance The second aspect of the court-ordered reapportionment plan that is challenged by the appellants is the population divergence in the various senatorial Since the population of the State under the 1970 census *22 was 617,761, and the number of senators provided for by the court's plan was 51, each senatorial district would contain 12,112 persons if population equality were achieved. In fact, however, one district under the plan has 13,176 persons, and thus is underrepresented by 8.71%, while another district has 10,728 persons, and is overrepresented by 11.%. The total variance between the largest and smallest districts consequently is 20.14%, and the ratio of the population of the largest to the smallest is 1.23 to 1. established that both houses of a |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | is 1.23 to 1. established that both houses of a state legislature must be apportioned so that districts are "as nearly of equal population as is practicable." While "[m]athematical exactness or precision" is not required, there must be substantial compliance with the goal of population equality. of course, involved gross population disparity among Since Reynolds, we have had the opportunity to observe attempts in many state legislative reapportionment plans to achieve the goal of population equality. Although each case must be evaluated on its own facts, and a particular population deviation from the ideal may be permissible in some cases but not in others, certain guidelines have been developed for determining compliance with the basic goal of one person, one vote. In Swann we held that a variance of 25.65% in one house and 33.55% in the other was impermissible absent "a satisfactory explanation grounded on acceptable state policy." See also -124. In Swann, no justification of the divergences had been attempted. Possible justifications, each requiring adequate proof, were suggested by the Court. Among these were "such state policy considerations as the integrity *23 of political subdivisions, the maintenance of compactness and contiguity in legislative districts or the recognition of natural or historical boundary lines." 385 U.S., See also -581. On the other hand, we have acknowledged that some leeway in the equal-population requirement should be afforded States in devising their legislative reapportionment plans. As contrasted with congressional districting, where population equality appears now to be the pre-eminent, if not the sole, criterion on which to adjudge constitutionality, ; ; 394 U.S. ; when state legislative districts are at issue we have held that minor population deviations do not establish a prima facie constitutional violation. For example, in we permitted a deviation of 7.83% with no showing of invidious discrimination. In a variation of 9.9% was likewise permitted. The treatment of the reapportionment plan in is illustrative of our approach in this area. There the Virginia Legislature had fashioned a plan providing a total population variance of 16.4% among house This disparity was of sufficient magnitude to require an analysis of the state policies asserted in justification. We found that the deviations from the average were caused by the attempt of the legislature to fulfill the rational state policy of refraining from splitting political subdivisions between house districts, and we accepted the policy as legitimate notwithstanding the fact that subdivision splits were permitted in senatorial Since the population divergences *24 in the Virginia plan were "based on legitimate considerations incident to the effectuation of a rational state policy," we held |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | to the effectuation of a rational state policy," we held that the plan met constitutional standards. It is to be observed that this measure of acceptable deviation from population equality has been developed in cases that concerned apportionment plans enacted by state legislatures. In the present North Dakota case, however, the 20% variance is in the plan formulated by the federal court. We believe that a population deviation of that magnitude in a court-ordered plan is constitutionally impermissible in the absence of significant state policies or other acceptable considerations that require adoption of a plan with so great a variance. The burden is on the District Court to elucidate the reasons necessitating any departure from the goal of population equality, and to articulate clearly the relationship between the variance and the state policy furthered. The basis for the District Court's allowance of the 20% variance is claimed to lie in the absence of "electorally victimized minorities," in the fact that North Dakota is sparsely populated, in the division of the State caused by the Missouri River, and in the goal of observing geographical boundaries and existing political subdivisions. We find none of these factors persuasive here, and none of them has been explicitly shown to necessitate the substantial population deviation embraced by the plan. First, a variance of this degree cannot be justified simply because there is no particular racial or political group whose voting power is minimized or canceled. All citizens are affected when an apportionment plan provides disproportionate voting strength, and citizens in districts that are underrepresented lose something even if they do not belong to a specific minority group. Second, sparse population is not a legitimate basis for a departure from the goal of equality. A State with a *25 sparse population may face problems different from those faced by one with a concentrated population, but that, without more, does not permit a substantial deviation from the average. Indeed, in a State with a small population, each individual vote may be more important to the result of an election than in a highly populated State. Thus, particular emphasis should be placed on establishing districts with as exact population equality as possible. The District Court's bare statement that North Dakota's sparse population permitted or perhaps caused the 20% deviation is inadequate justification.[16] Third, the suggestion that the division of the State caused by the Missouri River and the asserted state policy of observing existing geographical and political subdivision boundaries warrant departure from population equality is also not persuasive. It is far from apparent that North Dakota policy currently |
Justice Blackmun | 1,975 | 11 | majority | Chapman v. Meier | https://www.courtlistener.com/opinion/109179/chapman-v-meier/ | It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines. As the dissenting judge in this case noted, appellee's counsel acknowledged that reapportionment proposed by the Legislative broke county lines, n. 22, and the District Court indicated as long as a decade ago that the legislature had abandoned the strict policy. -. Furthermore, a plan devised by Special Master Ostenson demonstrates that neither the Missouri River nor the policy of maintaining township lines prevents attaining a significantly lower population variance.[17] We do not imply that the *26 Ostenson plan should be adopted by the District Court, or that its 5.95% population variance necessarily would be permissible in a court-ordered plan. What we intend by our reference to the Ostenson plan is to show that the factors cited by the District Court cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible.[18] The District Court has provided no rationale for its rejection of the Ostenson plan. Examination of the asserted justifications of the court-ordered plan thus plainly demonstrates that it fails to meet the standards established for evaluating variances in plans formulated by state legislatures or other state bodies. The plan, hence, would fail even under the criteria enunciated in and A court-ordered plan, however, must be held to higher standards than a State's own plan. With a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features. We have felt it necessary in this case to clarify the greater responsibility of the District Court, when devising its own reapportionment plan, because of the severe problems occasioned for the citizens of North Dakota during the several years of redistricting confusion. VII We hold today that unless there are persuasive justifications, a court-ordered reapportionment plan of a state *27 legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation.[19] Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court's responsibility to articulate precisely why a plan of single-member districts with minimal population variance cannot be adopted. We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court. ; Maryland It is to be hoped that the 1975 North Dakota Legislative will perform that duty and enact a constitutionally acceptable plan. If it |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | The question is whether a person who trades his drugs for a gun “uses” a firearm “during and in relation to [a] drug trafficking crime” within the meaning of 18 U.S. C. We hold that he does not. I A Section 924(c)(1)(A) sets a mandatory minimum sen tence, depending on the facts, for a defendant who, “during and in relation to any crime of violence or drug trafficking crime[,] uses or carries a firearm.”2 The statute leaves the term “uses” undefined, though we have spoken to it twice before. raised the converse of today’s question, and held that “a criminal who —————— 1 Formerly 18 U.S. C. ( ed.). 2 Any violation of (A), for example, demands a mandatory minimum sentence of 5 years. See 18 U.S. C. (A)(i). If the firearm is brandished, the minimum goes up to 7 years, see (A)(ii); if the firearm is discharged, the minimum jumps to 10 years, see (A)(iii). 2 WATSON v. UNITED STATES Opinion of the Court trades his firearm for drugs ‘uses’ it during and in relation to a drug trafficking offense within the meaning of” We rested primarily on the “ordi nary or natural meaning” of the verb in context, at 228, and understood its common range as going beyond employment as a weapon: “it is both reasonable and nor mal to say that petitioner ‘used’ his MAC–10 in his drug trafficking offense by trading it for cocaine,” Two years later, the issue in v. United States, 516 U.S. 17 was whether possessing a firearm kept near the scene of drug trafficking is “use” under We looked again to “ordinary or natural” meaning, at 145, and decided that mere possession does not amount to “use”: “ requires evidence sufficient to show an active employment of the firearm by the defendant, a use that makes the firearm an operative factor in relation to the predicate offense,” B This third case on the reach of (A) began to take shape when petitioner, Michael A. Watson, told a Government informant that he wanted to acquire a gun. On the matter of price, the informant quoted no dollar figure but suggested that Watson could pay in narcotics. Next, Watson met with the informant and an undercover law enforcement agent posing as a firearms dealer, to whom he gave 24 doses of oxycodone hydrocholoride (commonly, OxyContin) for a50 caliber semiautomatic pistol. When law enforcement officers arrested Watson, they found the pistol in his car, and a later search of his house turned up a cache of prescription medicines, guns, —————— In 1998, Congress responded to |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | of prescription medicines, guns, —————— In 1998, Congress responded to by amending The amendment broadened the provision to cover a defendant who “in furtherance of any [crime of violence or drug trafficking] crime, pos sesses a firearm.” 18 U.S. C. (A). The amendment did not touch the “use” prong of Cite as: 552 U. S. (2007) Opinion of the Court and ammunition. Watson said he got the pistol “to protect his other firearms and drugs.” App. to Pet. for Cert. 11a. A federal grand jury indicted him for distributing a Schedule II controlled substance and for “using” the pistol during and in relation to that crime, in violation of (A).4 Watson pleaded guilty across the board, reserving the right to challenge the factual basis for a (A) conviction and the added consecutive sen tence of 60 months for using the gun. The Court of Ap peals affirmed, (per cu riam), on Circuit precedent foreclosing any argument that Watson had not “used” a firearm, see at 27 and United ). We granted certiorari to resolve a conflict among the Circuits on whether a person “uses” a firearm within the meaning of 18 U.S. C. (A) when he trades nar cotics to obtain a gun.5 549 U.S. (2007). We now —————— 4 The grand jury also indicted Watson as a felon in possession of a firearm, in violation of This count referred to the five firearms found in Watson’s house, but not the pistol he got for the narcotics. 5 Compare United (trading drugs for a firearm constitutes “use” of the firearm under (A)); United ; United ; United ; United States v. Cannon, with United States v. Montano, (defendant did not “use” a firearm within the meaning of (A) when he traded drugs for a firearm); United ; United ; United The Fourth Circuit has held that a defendant “used” a firearm where he gave cocaine base to a compatriot in exchange for assistance in obtaining a gun. See United Subsequent unpublished opinions in that Circuit have relied on Harris for the proposition that the receipt of a firearm in exchange for drugs constitutes use of the firearm. See, e.g., United States v. Belcher, No. 4 WATSON v. UNITED STATES Opinion of the Court reverse. II A The Government’s position that Watson “used” the pistol under (A) by receiving it for narcotics lacks authority in either precedent or regular English. To begin with, neither nor implicitly decides this case. While held that firearms may be “used” in a barter transaction, even with no violent employment, see 508 U. S., the case |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | with no violent employment, see 508 U. S., the case addressed only the trader who swaps his gun for drugs, not the trading partner who ends up with the gun. too, is unhelpful, with its rule that a gun must be made use of actively to satisfy (A), as “an operative factor in relation to the predicate offense.” 516 U. S., The question here is whether it makes sense to say that Watson employed the gun at all; does not answer it. With no statutory definition or definitive clue, the meaning of the verb “uses” has to turn on the language as we normally speak it, see, e.g., v. Gonzales, 549 U.S. (slip op., at 5); Asgrow Seed Co. v. Winterboer, ; FDIC v. Meyer, 510 U.S. 471, 476 ; there is no other source of a reason able inference about what Congress understood when writing or what its words will bring to the mind of a care ful reader. So, in we looked for “everyday mean ing,” revealed in phraseology that strikes the ear as “both reasonable and normal,” at 20. See also This appeal to the ordinary leaves the Government without much of a case. The Government may say that a person “uses” a firearm simply by receiving it in a barter transaction, but no one else would. A boy who trades an apple to get a granola bar —————— 98–4845, WL 108010 Cite as: 552 U. S. (2007) 5 Opinion of the Court is sensibly said to use the apple, but one would never guess which way this commerce actually flowed from hearing that the boy used the granola. Cf. United States v. Stewart, (“[W]hen a person pays a cashier a dollar for a cup of coffee in the courthouse cafeteria, the customer has not used the coffee. He has only used the dollar bill”). So, when Watson handed over the drugs for the pistol, the informant or the agent6 “used” the pistol to get the drugs, just as held, but regular speech would not say that Watson him self used the pistol in the trade. “A seller does not ‘use’ a buyer’s consideration,” United 122 F.d 41, 46 and the Government’s contrary position recalls another case; at (slip op., at 7), rejected the Government’s interpretation of 18 U.S. C. because “we do not normally speak or write the Government’s way.”7 B The Government would trump ordinary English with two arguments. First, it relies on for the pertinence of a neighboring provision, 18 U.S. C. which authorizes seizure and forfeiture of firearms “intended to be used in” |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | seizure and forfeiture of firearms “intended to be used in” certain criminal offenses listed in Some of those offenses involve receipt of a firearm,8 from —————— 6 The record does not say which. 7 Dictionaries confirm the conclusion. “Use” is concededly “elastic,” (SCALIA, J., dissent ing), but none of its standard definitions stretch far enough to reach Watson’s conduct, see, e.g., Webster’s New International Dictionary of the English Language 2806 (2d ed. 199) (“to employ”); The Random House Dictionary of the English Language 2097 (2d ed. 1987) (to “apply to one’s own purposes”; “put into service; make use of”); Black’s Law Dictionary 1541 (6th ed. 1990) (“[t]o avail oneself of; to utilize”); see also at 228–229 (listing various dictionary definitions). 8 See, e.g., 18 U.S. C. (prohibiting, inter alia, the receipt of a stolen firearm in interstate commerce); (prohibiting, inter alia, 6 WATSON v. UNITED STATES Opinion of the Court which the Government infers that “use” under necessarily includes receipt of a gun even in a barter transaction. is cited for the proposition that the term must be given the same meaning in both subsections, and the Government urges us to import “use” as “receipt in barter” into (A). We agree with the Government that calls for attention; the reference to intended use in a receipt crime carries some suggestion that receipt can be “use” (more of a hint, say, than speaking of intended “use” in a crime defined as exchange). But the suggestion is a tepid one and falls short of supporting what is really an attempt to draw a conclusion too specific from a premise too general. The majority rested principally on ordinary speech in reasoning that extends beyond use as a weapon and includes use as an item of barter, see 508 U. S., at 228–20, and the opinion looks to only for its light on that conclusion. It notes that the “intended to be used” clause of (1) refers to offenses where “the firearm is not used as a weapon but instead as an item of barter or commerce,” with the impli cation that Congress intended “use” to reach commercial transactions, not just gun violence, in generally, see –25. It was this breadth of treatment that led the majority to say that, “[u]nless we are to hold that using a firearm has a different meaning in than it does in —and clearly we should not—we must reject petitioner’s narrow interpretation.” (citation omitted); see also (“[U]sing a firearm should not have a different meaning in than it does in ” (internal quotation marks omit ted)). The Government |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | does in ” (internal quotation marks omit ted)). The Government overreads While the neighbor —————— the receipt of a firearm in interstate commerce with the intent to commit a felony). Cite as: 552 U. S. (2007) 7 Opinion of the Court ing provision indicates that a firearm is “used” nonoffen sively, and supports the conclusion that a gun can be “used” in barter, beyond that point its illumination fails. This is so because the utility of (1) is limited by its generality and its passive voice; it tells us a gun can be “used” in a receipt crime, but not whether both parties to a transfer use the gun, or only one, or which one. The nearby subsection (c)(1)(A), however, requires just such a specific identification. It provides that a person who uses a gun in the circumstances described commits a crime, whose perpetrator must be clearly identifiable in advance. The agnosticism on the part of (1) about who does the using is entirely consistent with common speech’s understanding that the first possessor is the one who “uses” the gun in the trade, and there is thus no cause to admonish us to adhere to the paradigm of a statute “as a symmetrical and coherent regulatory scheme, in which the operative words have a consistent meaning through out,” or to invoke the “standard principle of statutory construction that identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. (2007) (slip op., at 7). Subsections (d)(1) and (c)(1)(A) as we read them are not at odds over the verb “use”; the point is merely that in the two subsections the common verb speaks to different issues in different voices and at different levels of specificity. The provisions do distinct jobs, but we do not make them guilty of employing the common verb inconsistently.9 —————— 9 For that matter, the Government’s argument that “use” must al ways have an identical meaning in §(A) and 924(d)(1) would upend v. United States, One of the rele vant predicate offenses referred to by (1) is possession of “any stolen firearm [in] interstate or foreign commerce.” 18 U.S. C. If we were to hold that all criminal conduct covered by the 8 WATSON v. UNITED STATES Opinion of the Court C The second effort to trump regular English is the claim that failing to treat receipt in trade as “use” would create unacceptable asymmetry with At bottom, this atextual policy critique says it would be strange to penal ize one side of |
Justice Souter | 2,007 | 20 | majority | Watson v. United States | https://www.courtlistener.com/opinion/145842/watson-v-united-states/ | it would be strange to penal ize one side of a gun-for-drugs exchange but not the other: “[t]he danger to society is created not only by the person who brings the firearm to the drug transaction, but also by the drug dealer who takes the weapon in exchange for his drugs during the transaction,” Brief for United States 2. The position assumes that must be respected, and we join the Government at least on this starting point. A difference of opinion within the Court (as in ) does not keep the door open for another try at statutory con struction, where stare decisis has “special force [since] the legislative power is implicated, and Congress remains free to alter what we have done.” What is more, in 14 years Congress has taken no step to modify ’s hold ing, and this long congressional acquiescence “has en hanced even the usual precedential force” we accord to our interpretations of statutes, Shepard v. United States, 544 U.S. 1, 2 The problem, then, is not with the sturdiness of but with the limited malleability of the language construed, and policy-driven symmetry cannot turn “re ceipt-in-trade” into “use.” Whatever the tension between the prior result and the outcome here, law depends on respect for language and would be served better by statu tory amendment (if Congress sees asymmetry) than by —————— “intended to be used” clause in (1) is “use” for purposes of (A), it would follow that mere possession is use. But that would squarely conflict with our considered and unanimous decision in that “ ‘use’ must connote more than mere possession of a fire arm.” 516 U. S., Cite as: 552 U. S. (2007) 9 Opinion of the Court racking statutory language to cover a policy it fails to reach. The argument is a peculiar one, in fact, given the Gov ernment’s take on the current state of (A). It was amended after and now prohibits not only using a firearm during and in relation to a drug trafficking crime, but also possessing one “in furtherance of” such a crime. 18 U.S. C. (A); see n. The Government is confident that “a drug dealer who takes a firearm in exchange for his drugs generally will be subject to prosecution” under this new possession prong. Brief for United States 27; see Tr. of Oral Arg. 41 (Watson’s case “could have been charged as possession”); cf. United States v. Cox, 24 F.d 77, 8, n. 2 (CA2 200) (“For defendants charged under after [the post-] amendment, trading drugs for a gun will probably result in |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | The Court concludes that congressional legislation dealing with aircraft noise has so "pervaded" that field that Congress has impliedly pre-empted it, and therefore the ordinance of the city of Burbank here challenged is *641 invalid under the Supremacy Clause of the Constitution. The Court says that the 1972 "Act reaffirms and reinforces the conclusion that FAA, now in conjunction with EPA, has full control over aircraft noise, pre-empting state and local control." Ante, at 633. Yet the House and Senate committee reports explicitly state that the 1972 Act to which the Court refers was not intended to alter the balance between state and federal regulation which had been struck by earlier congressional legislation in this area. The House Report, H. R. Rep. No. 92-842, in discussing the general pre-emptive effect of the entire bill, stated: "The authority of State and local government to regulate use, operation, or movement of products is not affected at all by the bill. (The preemption provision discussed in this paragraph does not apply to aircraft. See discussion of aircraft noise below.)" The report went on to state specifically: "No provision of the bill is intended to alter in any way the relationship between the authority of the Federal Government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill." The report of the Senate Public Works Committee, S. Rep. No. 92-1160, expressed the identical intent with respect to pre-emption: "States and local governments are preempted from establishing or enforcing noise emission standards for aircraft [see American ], unless such standards are identical to standards prescribed under this bill. This does not address responsibilities or powers *642 of airport operators, and no provision of the bill is intended to alter in any way the relationship between the authority of the Federal government and that of State and local governments that existed with respect to matters covered by section 611 of the Federal Aviation Act of 1958 prior to the enactment of the bill." -11. In the light of these specific congressional disclaimers of pre-emption in the 1972 Act, reference must necessarily be had to earlier congressional legislation on the subject.[1] It was on the basis of these earlier enactments that the Court of Appeals concluded that Congress had pre-empted the field from state or local regulation of the type that the city of Burbank enacted. The Burbank ordinance prohibited jet takeoffs from the Hollywood-Burbank Airport during the late evening and early morning hours. Its purpose |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | during the late evening and early morning hours. Its purpose was to afford local residents at least partial relief, during normal sleeping hours, from the noise associated with jet airplanes. The ordinance in no way dealt with flights over the city, cf. American aff'd, cert. denied, nor did it categorically prohibit all jet takeoffs during those hours. Appellees do not contend that the noise produced by jet engines could not reasonably be deemed to affect *643 adversely the health and welfare of persons constantly exposed to it; control of noise, sufficiently loud to be classified as a public nuisance at common law, would be a type of regulation well within the traditional scope of the police power possessed by States and local governing bodies. Because noise regulation has traditionally been an area of local, not national, concern, in determining whether congressional legislation has, by implication, foreclosed remedial local enactments "we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." This assumption derives from our basic constitutional division of legislative competence between the States and Congress; from "due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy." San Diego Building Trades Unless the requisite pre-emptive intent is abundantly clear, we should hesitate to invalidate state and local legislation for the added reason that "the state is powerless to remove the ill effects of our decision, while the national government, which has the ultimate power, remains free to remove the burden." Penn Dairies, Since Congress' intent in enacting the 1972 Act was clearly to retain the status quo between the federal regulation and local regulation, a holding of implied pre-emption of the field depends upon whether two earlier congressional enactments, the Federal Aviation Act of 1958, 49 U.S. C. 1301 et seq., and the noise abatement amendment to that Act, 49 *644 U. S. C. 1431, manifested the clear intent to preclude local regulations, that our prior decisions require. The 1958 Act was intended to consolidate in one agency in the Executive Branch the control over aviation that had previously been diffused within that branch. The paramount substantive concerns of Congress were to regulate federally all aspects of air safety, see, e. g., 49 U.S. C. 1422 and, once aircraft were in "flight," airspace management, see, e. g., 49 U.S. C. 1348 (a). See S. Rep. No. 1811, 85th Cong., |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | C. 1348 (a). See S. Rep. No. 1811, 85th Cong., 2d Sess., 5-6, 13-15. While the Act might be broad enough to permit the Administrator to promulgate takeoff and landing rules to avoid excessive noise at certain hours of the day, see 49 U.S. C. 1348 (c), Congress was not concerned with the problem of noise created by aircraft and did not intend to pre-empt its regulation. Furthermore, while Congress clearly intended to pre-empt the States from regulating aircraft in flight, the author of the bill, Senator Monroney, specifically stated that FAA would not have control "over the ground space" of airports.[2] The development and increasing use of civilian jet aircraft resulted in congressional concern over the noise associated with those aircraft. Hearings were held over a period of several years, resulting in a report but no legislation. The report of the House Committee on Interstate and Foreign Commerce, H. R. Rep. No. 36, 88th Cong., 1st Sess., shows clearly that the 1958 Act was thought by at least some in Congress neither to pre-empt local legislative action to alleviate the growing noise problem, nor to prohibit local curfews: "Until Federal action is taken, the local governmental authorities must be deemed to possess the *645 police power necessary to protect their citizens and property from the unreasonable invasion of aircraft noise. The wisdom of exercising such power or the manner of the exercise is a problem to be resolved on the local governmental level. "Airports in the United States, as a general rule, are operated by a local governmental authority, either a municipality, a country, or some independent unit. These airport operators are closer, both geographically and politically, to the problem of the conflict of interests between those citizens who have been adversely affected by the aircraft noise and the needs of the community for air commerce. Some airport operators have exercised the proprietary right to restrict in a reasonable manner, the use of any runway by limiting either the hours during which it may be used or the types of civil transport aircraft that may use it." H. R. Rep. No. 36, 88th Cong., 1st Sess., 27. Several years after the conclusion of these hearings, Congress enacted the noise abatement amendment, which added 611 to the 1958 Act, 49 U.S. C. 1431, and which was the first congressional legislation dealing with the problem of aircraft noise. On its face,[3] 611 as added by the amendment neither pre-empted the general field of regulation of *646 aircraft noise nor dealt specifically with the more limited question of curfews. The House Committee |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | with the more limited question of curfews. The House Committee on Interstate and Foreign Commerce, after reciting the serious proportions of the problem, outlined the type of federal regulation that the Act sought to impose: "The noise problem is basically a conflict between two groups or interests. On the one hand, there is *647 a group who provide various air transportation services. On the other hand there is a group who live, work, and go to schools and churches in communities near airports. The latter group is frequently burdened to the point where they can neither enjoy nor reasonably use their land because of noise resulting from aircraft operations. Many of them derive no direct benefit from the aircraft operations which create the unwanted noise. Therefore, it is easy to understand why they complain, and complain most vehemently. The possible solutions to this demanding and vexing problem which appear to offer the most promise are (1) new or modified engine and airframe designs, (2) special flight operating techniques and procedures, and (3) planning for land use in areas adjacent to airports so that such land use will be most compatible with aircraft operations. This legislation is directed toward the primary problem; namely, reduction of noise at its source." (Emphasis added.) H. R. Rep. No. 1463, 90th Cong., 2d Sess., 4. Far from indicating any total pre-emptive intent, the House Committee observed: "Rather, the committee expects manufacturers, air carriers, all other segments of the aviation community, and State and local civic and governmental entities to continue and increase their contributions toward the common goal of quiet." The Senate Commerce Committee's view of the House bill followed a similar vein: "This investment by the industry is representative of one of the avenues of approach to aircraft noise reduction, that is, the development of aircraft which generate less noise. Another approach to noise reduction is through the establishment of special flight *648 operating techniques and procedures. The third principal control technique which merits serious consideration is the planning for land use in areas near airports so as to make such use compatible with aircraft operations. This is a matter largely within the province of State and local governments. While all of these techniques must be thoroughly studied and employed, the first order of business is to stop the escalation of aircraft noise by imposing standards which require the full application of noise reduction technology. "A completely quiet airplane will not be developed within the foreseeable future. However, with the technological and regulatory means now at hand, it is possible to reduce both the |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | now at hand, it is possible to reduce both the level and the impact of aircraft noise. Within the limits of technology and economic feasibility, it is the view of the committee that the Federal Government must assure that the potential reductions are in fact realized." S. Rep. No. 1353, 90th Cong., 2d Sess., 2-3. With specific emphasis on pre-emption, the Senate Committee observed: "Relation to Local Government Initiatives "The bill is an amendment to a statute describing the powers and duties of the Federal Government with respect to air commerce. As indicated earlier in this report, certain actions by State and local public agencies, such as zoning to assure compatible land use, are a necessary part of the total attack on aircraft noise. In this connection, the question is raised whether this bill adds or subtracts anything from the powers of State or local governments. It is not the intent of the committee in recommending this legislation to effect any change in the existing apportionment of powers between the Federal and State and local governments. *649 "In this regard, we concur in the following views set forth by the Secretary in his letter to the Committee of June 22, : " `The courts have held that the Federal Government presently preempts the field of noise regulation insofar as it involves controlling the flight of aircraft. Local noise control legislation limiting the permissible noise level of all overflying aircraft has recently been struck down because it conflicted with Federal regulation of air traffic. American The court said, at 231, "The legislation operates in an area committed to Federal care, and noise limiting rules operating as do those of the ordinance must come from a Federal source." H. R. 3400 would merely expand the Federal Government's role in a field already preempted. It would not change this preemption. State and local governments will remain unable to use their police powers to control aircraft noise by regulating the flight of aircraft. " `However, the proposed legislation will not affect the rights of a State or local public agency, as the proprietor of an airport, from issuing regulations or establishing requirements as to the permissible level of noise which can be created by aircraft using the airport. Airport owners acting as proprietors can presently deny the use of their airports to aircraft on the basis of noise considerations so long as such exclusion is nondiscriminatory. " `Just as an airport owner is responsible for deciding how long the runways will be, so is the owner responsible for obtaining noise easements necessary to permit |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | the owner responsible for obtaining noise easements necessary to permit the landing and takeoff of the aircraft. The Federal Government is in no position to require an airport to accept service by larger aircraft *650 and, for that purpose, to obtain longer runways. Likewise, the Federal Government is in no position to require an airport to accept service by noisier aircraft, and for that purpose to obtain additional noise easements. The issue is the service desired by the airport owner and the steps it is willing to take to obtain the service. In dealing with this issue, the Federal Government should not substitute its judgment for that of the States or elements of local government who, for the most part, own and operate our Nation's airports. The proposed legislation is not designed to do this and will not prevent airport proprietors from excluding any aircraft on the basis of noise considerations.' "Of course, the authority of units of local government to control the effects of aircraft noise through the exercise of land use planning and zoning powers is not diminished by the bill. "Finally, since the flight of aircraft has been preempted by the Federal Government, State and local governments can presently exercise no control over sonic boom. The bill makes no change in this regard." In terms of pre-emption analysis, the most reasonable reading of 611 appears to be that it was enacted to enable the Federal Government to deal with the noise problem created by jet aircraft through study and regulation of the "source" of the problemthe mechanical and structural aspects of jet and turbine aircraft design. The authority to "prescribe and amend such rules and regulations as he may find necessary to provide for the control and abatement of aircraft noise and sonic boom," 49 U.S. C. 1431 (a), while a broad grant of authority to the Administrator, cannot fairly be read as prohibiting the States from enacting every type of measure, which *651 might have the effect of reducing aircraft noise, in the absence of a regulation to that effect under this section. The statute established exclusive federal control of the technological methods for reducing the output of noise by jet aircraft, but that is a far cry from saying that it prohibited any local regulation of the times at which the local airport might be available for the use of jet aircraft. The Court of Appeals found critical to its decision the distinction between the local government as an airport proprietor and the local government as a regulatory agency, which was reflected in the views |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | as a regulatory agency, which was reflected in the views of the Secretary of Transportation outlined in the Senate Report on the Amendment. Under its reasoning, a local government unit that owned and operated an airport would not be pre-empted by 611 from totally, or, as here, partially, excluding noisy aircraft from using its facilities, but a municipality having territorial jurisdiction over the airport would be pre-empted from enacting an ordinance having a similar effect. If the statute actually enacted drew this distinction, I would of course respect it. But since we are dealing with "legislative history," rather than the words actually written by Congress into law, I do not believe it is of the controlling significance attributed to it by the court below. The pre-emption question to which the Secretary's letter was addressed related to "the field of noise regulation insofar as it involves controlling the flight of aircraft" and thus included types of regulation quite different from that enacted by the city of Burbank that would be clearly precluded. See American But more important is the highly practical consideration that the Hollywood-Burbank Airport is probably the only nonfederal airport in the country used by federally certified air carriers that is not owned and operated by a state or local *652 government.[4] There is no indication that this fact was brought to the attention of the Senate Committee, or that the Secretary of Transportation was aware of it in framing his letter. It simply strains credulity to believe that the Secretary, the Senate Committee, or Congress intended that all airports except the Hollywood-Burbank Airport could enact curfews. Considering the language Congress enacted into law, the available legislative history, and the light shed by these on the congressional purpose, Congress did not intend either by the 1958 Act or the Amendment to oust local governments from the enactment of regulations such as that of the city of Burbank. The 1972 Act quite clearly intended to maintain the status quo between federal and local authorities. The legislative history of the 1972 Act, quite apart from its concern with avoiding additional pre-emption, discloses a primary focus on the alteration of procedures within the Federal Government for dealing with problems of aircraft noise already entrusted by Congress to federal competence. The 1972 Act set up procedures by which the Administrator of EPA would have a role to play in the formulation and review of standards promulgated by FAA dealing with noise emissions of jet aircraft. But because these agencies have exclusive authority to reduce noise by promulgating regulations and implementing standards directed at |
Justice Rehnquist | 1,973 | 19 | dissenting | Burbank v. Lockheed Air Terminal, Inc. | https://www.courtlistener.com/opinion/108779/burbank-v-lockheed-air-terminal-inc/ | reduce noise by promulgating regulations and implementing standards directed at one or several of the causes of the level of noise, local governmental bodies are not thereby foreclosed from dealing with the noise problem by every other conceivable method. *653 A local governing body that owns and operates an airport is certainly not, by the Court's opinion, prohibited from permanently closing down its facilities. A local governing body could likewise use its traditional police power to prevent the establishment of a new airport or the expansion of an existing one within its territorial jurisdiction by declining to grant the necessary zoning for such a facility. Even though the local government's decision in each case were motivated entirely because of the noise associated with airports, I do not read the Court's opinion as indicating that such action would be prohibited by the Supremacy Clause merely because the Federal Government has undertaken the responsibility for some aspects of aircraft noise control. Yet if this may be done, the Court's opinion surely does not satisfactorily explain why a local governing body may not enact a far less "intrusive" ordinance such as that of the city of Burbank. The history of congressional action in this field demonstrates, I believe, an affirmative congressional intent to allow local regulation. But even if it did not go that far, that history surely does not reflect "the clear and manifest purpose of Congress" to prohibit the exercise of "the historic police powers of the States" which our decisions require before a conclusion of implied pre-emption is reached. Clearly Congress could pre-empt the field to local regulation if it chose, and very likely the authority conferred on the Administrator of FAA by 49 U.S. C. 1431 is sufficient to authorize him to promulgate regulations effectively pre-empting local action. But neither Congress nor the Administrator has chosen to go that route. Until one of them does, the ordinance of the city of Burbank is a valid exercise of its police power. The District Court found that the Burbank ordinance would impose an undue burden on interstate commerce, *654 and held it invalid under the Commerce Clause for that reason. Neither the Court of Appeals nor this Court's opinion, in view of their determination as to pre-emption, reached that question. The District Court's conclusion appears to be based, at least in part, on a consideration of the effect on interstate commerce that would result if all municipal airports in the country enacted ordinances such as that of Burbank. Since the proper determination of the question turns on an evaluation of the |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | The State of New York requires retailers to charge at least 11 percent of the "posted" wholesale price for liquor, but permits wholesalers to sell to retailers at less than the "posted" price. The question presented is whether this pricing system is valid under either the state-action exemption from the antitrust laws or the Twenty-first Amendment. I A Wholesalers of liquor in the State of New York must file, or "post," monthly price schedules with the State Liquor (SLA). N. Y. Alco. Bev. Cont. Law (ABC Law) *3 101-b[1] The schedules must report, "with respect to each item," "the bottle and case price to " 101-b(3)(b). The ABC Law itself does not require that the posted case price of an item bear any relation to its posted bottle price. The SLA, however, has promulgated a rule stating that for cases containing 48 or fewer bottles, the posted bottle price multiplied by the number of bottles in a case must exceed the posted case price by a "breakage" surcharge of $1.9. SLA Rule 16.4(e), 9 NYCRR 65.4(e)[] Retailers of liquor may not sell below "cost." ABC Law, 101-bb().[3] The statute defines "cost" as "the price of such *339 item of liquor to the retailer plus twelve percentum of such price." 101-bb()(b). "Price," in turn, is defined as the posted bottle price in effect at the time the retailer sells or offers to sell the item. Although the statute defines retail cost in terms of the wholesaler's posted bottle price, retailers generally purchase liquor by the case. The SLA expressly has authorized wholesalers to reduce, or "post off," the case price of an item without reducing the posted bottle price of the item. SLA Bulletin 471 (June 9, 1973).[4] By reducing the case price without reducing the bottle price, *340 wholesalers can compel retailers to charge more than 11 percent of the actual wholesale cost. Similarly, because 101-bb()(b) defines "cost" in terms of the posted bottle price in effect when the retailer sells or offers to sell the item, wholesalers can sell retailers large quantities in a month when prices are low and then require the retailers to sell at an abnormally high markup by raising the bottle price in succeeding months. The New York retail pricing system thus permits wholesalers to set retail prices, and retail markups, without regard to actual retail costs. New York wholesalers advertise in trade publications that their "post offs" will guarantee retailers large markups, sometimes in excess of 30 percent. App. 3-35. Wholesalers also advertise that buying large quantities while wholesale prices are low will result |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | buying large quantities while wholesale prices are low will result in extra retail profits after wholesale prices are raised. App. to Juris. Statement 101A. The effect of this complex of statutory provisions and regulations is to permit wholesalers to maintain retail prices at artificially high levels. B Appellant 34 Liquor Corporation sold two bottles of liquor to SLA investigators in June 1981 for less than 11 percent of the posted bottle price. Because the wholesalers had "posted off" their June 1981 case prices without reducing the posted bottle prices, appellant's retail prices represented an 18 percent markup over its actual wholesale cost. As a result of this violation, appellant's license was suspended for 10 days and it forfeited a $1,000 bond. Appellant sought relief from the penalties on the ground that 101-bb violates 1 of the Sherman Act, 15 U.S. C. 1. A New York Supreme Court denied the petition. 34 Liquor The Appellate Division reversed. 34 Liquor 10 *341 App. Div. d 607, 478 N. Y. S. d 615 The New York Court of Appeals upheld the validity of 101-bb and reinstated the penalties. J. A. J. Liquor Store, The Court of Appeals held that 101-bb is not immune under the state-action doctrine of because the State does not actively supervise the resale price maintenance system. The court nevertheless concluded that the statute is a proper exercise of powers reserved to the State by the Twenty-first Amendment, because "the State interest in protecting retailers which underlies [the statute] is of sufficient magnitude to override the Federal policy expressed in the antitrust laws." J. A. J. Liquor Store, We noted probable jurisdiction, and we now reverse. II In California Retail Liquor Dealers we invalidated a California statute requiring all producers, wholesalers, and rectifiers of wine to file fair trade contracts or price schedules with the State. establishes the framework for our analysis of New York's liquor pricing system. A The "threshold question," in this case as in is whether the State's pricing system is inconsistent with the antitrust laws. Section 101-bb imposes a regime of resale price maintenance on all New York liquor Resale price maintenance has been a per se violation of 1 of the Sherman Act "since the early years of national antitrust enforcement." Monsanto See Dr. Miles Medical Our recent decisions recognize the possibility that a vertical restraint imposed by a single manufacturer or wholesaler *34 may stimulate interbrand competition even as it reduces intrabrand competition. Continental T. V., Accordingly, we have held that concerted nonprice restrictions imposed by a single manufacturer are to be judged under |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | imposed by a single manufacturer are to be judged under the rule of reason. We also have held that a single manufacturer may announce resale prices in advance and refuse to deal with those who fail to comply. Monsanto at ; United Neither of these qualifications to the per se rule applies in this case. Section 101-bb directly restricts retail prices, and retailers are subject to penalties for failure to adhere to the resale price schedules. The New York statute, moreover, applies to all wholesalers and retailers of liquor. We have noted that industrywide resale price maintenance also may facilitate cartelization. Continental T. V., Mandatory industrywide resale price fixing is virtually certain to reduce interbrand competition as well as intrabrand competition, because it prevents manufacturers and wholesalers from allowing or requiring retail price competition. The New York statute specifically forbids retailers from reducing the minimum prices set by wholesalers. The antitrust violation in this case is essentially similar to the violation in It is true that the wholesalers in were required to adhere to a single fair trade contract or price schedule for each geographical -. therefore involved horizontal as well as vertical price fixing. Although the horizontal restraint in may have provided an additional reason for invalidating the statute, our decision in rested on the "vertical control" of wine producers, who held "the power to prevent price competition by dictating the prices charged by wholesalers." As we explained in the California statute *343 was invalidated because "it mandated resale price maintenance, an activity that has long been regarded as a per se violation of the Sherman Act." We hold that ABC Law 101-bb is inconsistent with 1 of the Sherman Act.[5] In the Court held that the Sherman Act does not apply "to the anticompetitive conduct of a State acting through its legislature." rests on principles of federalism and state sovereignty. Under those principles, "an unexpressed purpose to nullify a state's control over its officers and agents is not lightly to be attributed to Congress." At the same time, "a state does not give immunity to those who violate the Sherman Act by authorizing them to violate it, or by declaring that their action is lawful." Our decisions have established a two-part test for determining immunity under "First, the challenged restraint must be `one clearly articulated and affirmatively expressed as state policy'; second, the policy must be `actively supervised' by the State itself." California Retail Liquor Dealers ). New York's liquor-pricing system meets the first requirement. The state legislature clearly has adopted a policy of resale price maintenance. Just |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | clearly has adopted a policy of resale price maintenance. Just as clearly, however, New York's liquorpricing system is not actively supervised by the State. As in the State "simply authorizes price setting and enforces the prices established by private parties."[6] *345 U. S., New York "neither establishes prices nor reviews the reasonableness of the price schedules." New York "does not monitor market conditions or engage in any `pointed reexamination' of the program." ).[7] Each wholesaler sets its own "posted" prices; the State does not control month-to-month variations in posted prices. Nor does the State supervise the wholesaler's decision to "post off," the amount of the "post off," the corresponding decrease, if any, in the bottle price, or the frequency with which a wholesaler posts off. The State has displaced competition among liquor retailers without substituting an adequate system of regulation. "The national policy in favor of competition cannot be thwarted by casting such a gauzy cloak of state involvement over what is essentially a private price-fixing arrangement." U.S.,[8] *346 III Section of the Twenty-first Amendment reserves to the States the power to regulate, or prohibit entirely, the transportation or importation of intoxicating liquor within their borders.[9] Section "grants the States virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system." U. S., The States' Twenty-first Amendment powers, though broad, are circumscribed by other provisions of the Constitution. See Larkin v. Grendel's Den, ; ; ; Department of Although directly qualifies the federal commerce power, the Court has rejected the view "that the Twenty-first Amendment has somehow operated to `repeal' the Commerce Clause wherever regulation of intoxicating liquors is concerned." Hostetter v. Idlewild Liquor[10] Instead, the Court has engaged *347 in a "pragmatic effort to harmonize state and federal powers." The question in each case is "whether the interests implicated by a state regulation are so closely related to the powers reserved by the Twenty-first Amendment that the regulation may prevail, notwithstanding that its requirements directly conflict with express federal policies." Capital Cities Cable, v. Crisp, *348 A The New York Court of Appeals concluded that 101-bb "was expressly designed to preserve competition in New York's retail liquor industry by stabilizing the retail market and protecting the economic position of small liquor " J. A. J. Liquor Store, The Court of Appeals traced the recent history of the State's regulation of retail liquor prices. In early 1964, the Moreland Commission completed an extensive study of the state laws governing the sale and distribution of alcoholic beverages. New York State Moreland Comm'n |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | and distribution of alcoholic beverages. New York State Moreland Comm'n on the Alcoholic Beverage Control Law, and Recommendations Nos. 1-3 "The Commission's major findings were that New York consumers suffered from serious price discrimination when compared to liquor consumers in other States and that a severe lack of competition existed in the New York retail market." J. A. J. Liquor Store, The New York Legislature responded in 1964 by enacting sweeping changes in the ABC Law primarily intended to promote price competition among liquor The 1964 version of 101-bb prohibited retail sales below cost and defined cost as the bottle price in effect when the retailer sells or offers to sell the item. ABC Law 101-bb (McKinney 1970). During the years between 1964 and 1971, the number of liquor stores in New York declined. The State Senate Excise Committee investigated the decline and concluded that "the mass of small retailers are unable to compete with the large volume outlets that have emerged." New York State Legislature, Senate Excise Committee, Final 9-30 In 1971 the legislature enacted the current version of ABC Law 101-bb to "protec[t] the economic position of small liquor " J. A. J. Liquor Store, *349 We agree with the New York Court of Appeals that the purpose of the 1-percent minimum markup is to protect small We have noted that the 1-percent markup is imposed on the "posted bottle price," a price that may differ from the actual wholesale price paid by the retailer. See There is no indication in the statute or its legislative history, however, that the purpose of defining cost as "posted bottle price" was to protect small The New York Legislature first defined cost in terms of posted bottle price in the 1964 amendments to the ABC Law. The purpose of those amendments, as the New York Court of Appeals found, was to increase price competition among liquor The 1971 amendments simply retained bottle price as the basis of the statutory definition of cost and added 1 percent to reflect the retailer's overhead and operating expenses. Indeed, the legislative Committee that considered the 1971 amendments concluded that the bottle price definition of cost put small retailers at a slight disadvantage. The Committee noted that "[t]he present definition of `cost' [as] scheduled bottle cost to the retailer does afford some margin of profit to large retailers in particular, and, to a lesser extent, to all retailers who can afford to buy by the case." New York State Senate Excise Committee, Final The Committee suggested that "consideration be accorded to [r]evision or elimination of `post |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | that "consideration be accorded to [r]evision or elimination of `post offs' practices that appear to afford discriminatory advantages to possession of great purchasing power." The Committee did not recommend an amendment to this effect because it considered the matter "outside the scope of the directive given to this Committee." [11] *350 In we found nothing in the record to suggest that California's wine-pricing system actually helped sustain small U.S., at 113. Similarly, in this case the New York Court of Appeals cited no legislative or other findings that either the minimum markup requirement or the "bottle price" definition of cost has been effective in preserving small retail establishments, and made no findings of its own. Our opinion cites evidence that States with "fair trade laws" not unlike ABC Law 101-bb actually had higher rates of firm failure, and slower rates of growth of small retail stores, than free trade States in the years between 1956 and U.S., at 113 (citing S. Rep. No. 94-466, p. 3 (1975)). The only relevant evidence in the record indicates that the number of retail liquor outlets in New York continued to decline between 1970 and 1979. App. to Juris Statement 99A. We are unwilling to assume on the basis of this record that 101-bb has the effect of protecting small In this case, as in the State's unsubstantiated interest in protecting small retailers "simply [is] not of the same stature as the goals of the Sherman Act." U.S., at 114. New York's resale price maintenance system directly conflicts with the "familiar and substantial" federal interest in enforcement of the antitrust laws. "Antitrust laws in general, and the Sherman Act in particular. are as important to the preservation of economic freedom and our free-enterprise system as the Bill of Rights is to the protection of our fundamental personal freedoms." United States v. Topco Associates, We therefore conclude that the State's asserted interest in *351 protecting small retailers does not suffice to afford immunity from the Sherman Act.[1] B Appellees finally argue that 101-bb furthers the State's interest in promoting temperance. Brief for Appellees 39-44. One would hardly suggest that the New York Legislature set out to promote temperance by increasing the number of retail outlets for liquor. Rather, appellees argue that New York's pricing system has the effect of raising retail prices, and that higher prices decrease consumption of liquor. The New York Court of Appeals did not find that the statute was intended to promote temperance, or that it does so. On the contrary, that court cited the conclusion of the Moreland Commission that |
Justice Powell | 1,987 | 17 | majority | 324 Liquor Corp. v. Duffy | https://www.courtlistener.com/opinion/111786/324-liquor-corp-v-duffy/ | that court cited the conclusion of the Moreland Commission that higher prices do not decrease consumption of liquor. J. A. J. Liquor Store, n. n. (citing Moreland Comm'n No. 1, at 3, 17). Of course, we are not bound by findings of the Court of Appeals that undercut powers reserved by the Twenty-first Amendment. ; Hooven & Allison 34 U.S. 65, We nevertheless accord "great weight to the views of the State's highest court" on state-law matters, Indiana ex rel. (19), and customarily accept the factual findings of state courts in the absence of exceptional circumstances. -11. Our review of the record discloses no such exceptional circumstances in this case.[13] We therefore do not reach the question whether New *35 York's liquor-pricing system could be upheld as an exercise of the State's power to promote temperance. IV We conclude that the Twenty-first Amendment provides no immunity for New York's authorization of private, unsupervised price fixing by liquor wholesalers. We therefore reverse the judgment of the New York Court of Appeals and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. |
Justice Stevens | 1,993 | 16 | dissenting | Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. | https://www.courtlistener.com/opinion/112800/puerto-rico-aqueduct-and-sewer-authority-v-metcalf-eddy-inc/ | This case arises out of a commercial dispute between respondent, a private engineering firm, and the Puerto Rico Aqueduct and Sewer Authority (PRASA or Authority). The parties entered into a multimillion dollar contract providing for the construction of extensive improvements to Puerto Rico's wastewater treatment facilities. Respondent brought suit in the Federal District Court for the District of *149 Puerto Rico alleging breach of contract. The Authority filed a motion to dismiss, claiming that the action was barred by the Eleventh Amendment. The District Court concluded that the claim had no merit and denied the motion to dismiss. The Court of Appeals dismissed PRASA's appeal from that order because it was not final within the meaning of 28 U.S. C. 1291. If the Authority were a private litigant engaged in a commercial dispute, it would be perfectly clear that the dismissal of its appeal was required by our precedents. For the denial of a motion to dismiss on jurisdictional groundsa motion that asserts that the defendant cannot be sued in a particular forumis not a final order within the meaning of 1291. Van ; In this case, PRASA makes the same assertionnamely, that it may not be sued in a federal forum, but rather must be sued in another court. Brief for Petitioner 4-5. Nonetheless, despite our decisions in Biard and the Court holds that when a State or state entity claiming to be an "arm of the State" asserts that it cannot be sued in a federal forum because of the Eleventh Amendment, the "final decision" rule must give way and the claim must be subject to immediate appellate review. The Court reasons that such a claim is analogous to a government official's claim of absolute or qualified immunity, which we have held is subject to interlocutory appeal. ; I cannot agree. The defense of absolute or qualified immunity is designed to shield government officials from liability for their official conduct. In the absence of such a defense, we have held, "officials would hesitate to exercise their discretion in a way injuriously affecting the claims of particular individuals even when the public interest required bold and unhesitating action." -745 Because the specter of a long and contentious legal proceeding in and of itself would inhibit government officials from exercising their authority with the freedom and independence necessary to serve the public interest, we have held that claims of absolute or qualified immunity are subject to immediate appeal. at 742-743; 472 U. S., at While the Eleventh Amendment defense available to States and state entities is often labeled an "immunity," |
Justice Stevens | 1,993 | 16 | dissenting | Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. | https://www.courtlistener.com/opinion/112800/puerto-rico-aqueduct-and-sewer-authority-v-metcalf-eddy-inc/ | to States and state entities is often labeled an "immunity," that label is virtually all that it has in common with the defense of absolute or qualified immunity. In contrast to the latter, a defense based on the Eleventh Amendment, even when the Amendment is read at its broadest, does not contend that the State or state entity is shielded from liability for its conduct, but only that the federal courts are without jurisdiction over claims against the State or state entity. See ante, at 144. Nothing in the Eleventh Amendment bars respondent from seeking recovery in a different forum. Indeed, as noted above, petitioner acknowledges that it is not seeking immunity for its conduct, but merely that the suit be brought in the courts of the Commonwealth of Puerto Rico. Brief for Petitioner 4-5. Plainly, then, the interests underlying our decisions allowing immediate appeal of claims of absolute or qualified immunity do not apply when the so-called "immunity" is one based on the Eleventh Amendment. Whether petitioner must bear the burden, expense, and distraction of litigation stemming from its contractual dispute with respondent has nothing whatsoever to do with the Eleventh Amendment; the Eleventh Amendment only determines where, or more precisely, where not, that suit may be brought.[*] Because the Amendment goes to the jurisdiction of the federal court, as opposed to the underlying liability of the State or state entity, *151 Biard and not Nixon and Mitchell, are the relevant precedent for determining whether PRASA's claim is subject to interlocutory appeal. If indeed the interests underlying our decisions permitting immediate appeal of claims of absolute or qualified immunity do not apply to a State or state entity's objection to federal jurisdiction on Eleventh Amendment grounds, what then is driving the Court to hold that PRASA's claim under the Eleventh Amendment is subject to immediate appeal? The Court tells us, ante, at 146: "[The] ultimate justification is the importance of ensuring that the States' dignitary interests can be fully vindicated." Whereas a private litigant must suffer through litigation in a federal tribunal despite his claim that the court lacks jurisdiction, e. g., Biard and a State or state entity must be protected from the "indignity " of having to present its caseas to both the court's jurisdiction and the underlying meritsin the neutral forum of a federal district court. I find that rationale to be embarrassingly insufficient. The mandate of 1291 that appellate jurisdiction be limited to "final decisions of the district courts" is not predicated upon "mer[e] technical conceptions of `finality,' " but serves important interests concerning the |
Justice Stevens | 1,993 | 16 | dissenting | Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc. | https://www.courtlistener.com/opinion/112800/puerto-rico-aqueduct-and-sewer-authority-v-metcalf-eddy-inc/ | conceptions of `finality,' " but serves important interests concerning the fair and efficient administration of justice. The "final decision" rule preserves the independence of the trial judge and conserves the judicial resources that are necessarily expended by piecemeal appeals. Moreover, and of particular relevance to this case, it serves an important "fairness" purpose by preventing "the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise" Firestone Tire & Rubber Sacrificing those interests in the name of preserving the freedom and independence that government officials need to carry out their official duties *152 is one thing; doing so out of concern for the "dignitary" interest of a State or, in this case, a state aqueduct and sewer authority, is quite another. For me, the balance of interests is easy. The cost to the courts and the parties of permitting piecemeal litigation of this sort clearly outweighs whatever benefit to their "dignity" States or state entities might derive by having their Eleventh Amendment claims subject to immediate appellate review. I would therefore hold, as did the court below, that the denial of a motion to dismiss on Eleventh Amendment grounds is not subject to immediate appellate review. Accordingly, I respectfully dissent. |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | Before a company may sell securities in interstate com- merce, it must file a registration statement with the Secu- rities and Exchange Commission (SEC). If that document either “contain[s] an untrue statement of a material fact” or “omit[s] to state a material fact necessary to make the statements therein not misleading,” a purchaser of the stock may sue for damages. 15 U.S. C. This case requires us to decide how each of those phrases applies to statements of opinion. I The Securities Act of 1933, 15 U.S. C. et seq., protects investors by ensuring that companies issuing securities (known as “issuers”) make a “full and fair disclosure of information” relevant to a public offering. The linchpin of the Act is its registration requirement. With limited exceptions not relevant here, an issuer may offer securi- ties to the public only after filing a registration statement. See 77e. That statement must contain specified 2 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court information about both the company itself and the security for sale. See 77aa. Beyond those required disclo- sures, the issuer may include additional representations of either fact or opinion. Section 11 of the Act promotes compliance with these disclosure provisions by giving purchasers a right of action against an issuer or designated individuals (directors, partners, underwriters, and so forth) for material mis- statements or omissions in registration statements. As relevant here, that section provides: “In case any part of the registration statement, when such part became effective, contained an untrue statement of a material fact or omitted to state a ma- terial fact required to be stated therein or necessary to make the statements therein not misleading, any per- son acquiring such security [may] sue.” Section 11 thus creates two ways to hold issuers liable for the contents of a registration statement—one focusing on what the statement says and the other on what it leaves out. Either way, the buyer need not prove (as he must to establish certain other securities offenses) that the de- fendant acted with any intent to deceive or defraud. Herman & – 382 This case arises out of a registration statement that petitioner Omnicare filed in connection with a public offering of common stock. Omnicare is the nation’s largest provider of pharmacy services for residents of nursing homes. Its registration statement contained (along with all mandated disclosures) analysis of the effects of various federal and state laws on its business model, including its acceptance of rebates from pharmaceutical manufacturers. See, e.g., App. 88–107, 132–140, 154–166. Of significance here, two |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | See, e.g., App. 88–107, 132–140, 154–166. Of significance here, two sentences in the registration statement ex- pressed Omnicare’s view of its compliance with legal Cite as: 575 U. S. (2015) 3 Opinion of the Court requirements: “We believe our contract arrangements with other healthcare providers, our pharmaceutical suppli- ers and our pharmacy practices are in compliance with applicable federal and state laws.” “We believe that our contracts with pharmaceutical manufacturers are legally and economically valid arrangements that bring value to the healthcare system and the patients that we serve.” Accompanying those legal opinions were some caveats. On the same page as the first statement above, Omnicare mentioned several state-initiated “enforcement actions against pharmaceutical manufacturers” for offering pay- ments to pharmacies that dispensed their products; it then cautioned that the laws relating to that practice might “be interpreted in the future in a manner inconsistent with our interpretation and application.” And adja- cent to the second statement, Omnicare noted that the Federal Government had expressed “significant concerns” about some manufacturers’ rebates to pharmacies and warned that business might suffer “if these price conces- sions were no longer provided.” at 136–137. Respondents here, pension funds that purchased Om- nicare stock in the public offering (hereinafter Funds), brought suit alleging that the company’s two opinion statements about legal compliance give rise to liability under Citing lawsuits that the Federal Government later pressed against Omnicare, the Funds’ complaint maintained that the company’s receipt of payments from drug manufacturers violated anti-kickback laws. See at 181–186, 203–226. Accordingly, the complaint asserted, Omnicare made “materially false” representations about legal compliance. And so too, the complaint continued, the company “omitted to state [material] facts necessary” to make its representations not misleading. 4 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court The Funds claimed that none of Omnicare’s officers and directors “possessed reasonable grounds” for thinking that the opinions offered were truthful and com- plete. Indeed, the complaint noted that one of Omnicare’s attorneys had warned that a particular con- tract “carrie[d] a heightened risk” of liability under anti- kickback laws. At the same time, the Funds made clear that in light of strict liability standard, they chose to “exclude and dis- claim any allegation that could be construed as alleging fraud or intentional or reckless misconduct.” The District Court granted Omnicare’s motion to dis- miss. See Civ. No. 2006–26 (ED Ky., Feb. 13, 2012), App. to Pet. for Cert. 28a, 38a–40a, *4–*5. In the court’s view, “statements regarding a company’s belief as to its legal compliance are considered ‘soft’ information” |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | belief as to its legal compliance are considered ‘soft’ information” and are actionable only if those who made them “knew [they] were untrue at the time.” App. to Pet. for Cert. 38a. The court concluded that the Funds’ complaint failed to meet that standard because it nowhere claimed that “the company’s officers knew they were violating the law.” 9a. The Court of Appeals for the Sixth Circuit re- versed. See It acknowledged that the two statements highlighted in the Funds’ complaint expressed Omnicare’s “opinion” of legal compliance, rather than “hard facts.” ). But even so, the court held, the Funds had to allege only that the stated belief was “objectively false”; they did not need to contend that anyone at Omnicare “disbelieved [the opinion] at the time it was expressed.” (quoting 110 (CA2 2011)). We granted certiorari, 571 U. S. (2014), to consider how pertains to statements of opinion. We do so in two steps, corresponding to the two parts of and the Cite as: 575 U. S. (2015) 5 Opinion of the Court two theories in the Funds’ complaint. We initially address the Funds’ claim that Omnicare made “untrue state- ment[s] of material fact” in offering its views on legal compliance. see App. 273–274. We then take up the Funds’ argument that Omnicare “omitted to state a material fact necessary to make the statements [in its registration filing] not misleading.” see App. 273–274. Unlike both courts below, we see those allega- tions as presenting different issues.1 In resolving the first, we discuss when an opinion itself constitutes a factual misstatement. In analyzing the second, we address when an opinion may be rendered misleading by the omission of discrete factual representations. Because we find that the Court of Appeals applied the wrong standard, we vacate its decision. —————— 1 In his concurrence, JUSTICE THOMAS contends that the lower courts’ erroneous conflation of these two questions should limit the scope of our review: We should say nothing about omissions, he maintains, because that issue was not pressed or passed on below. We disagree. Although the Funds could have written a clearer complaint, they raised a discrete omissions claim. See, e.g., App. 191 (“[T]he Company’s 2005 Registra- tion Statement omitted material information that was necessary to make the Registration Statement not misleading”); (“The Registration Statement omitted to state facts necessary to make the statements made not misleading, and failed to adequately disclose material facts as described above”). The lower courts chose not to address that claim separately, but understood that the complaint alleged not only misstatements but also omissions. See App. to |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | alleged not only misstatements but also omissions. See App. to Pet. for Cert. 38a (describing the Funds’ claims as relating to “misstate- ments/omissions” and dismissing the lot as “not actionable”); 719 F.3d, at 501 (giving a single rationale for reversing the District Court’s dismissal of the Funds’ claims “for material misstatements and omis- sions”). And the omissions issue was the crux of the parties’ dispute before this Court. The question was fully briefed by both parties (plus the Solicitor General), and omissions played a starring role at oral argument. Neither in its briefs nor at argument did Omnicare ever object that the Funds’ omissions theory had been forfeited or was not properly before this Court. We therefore see no reason to ignore the issue. 6 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court II The Sixth Circuit held, and the Funds now urge, that a statement of opinion that is ultimately found incorrect— even if believed at the time made—may count as an “un- true statement of a material fact.” 15 U.S. C see ; Brief for Respondents 20–26. As the Funds put the point, a statement of belief may make an implicit assertion about the belief ’s “subject matter”: To say “we believe X is true” is often to indicate that “X is in fact true.” ; see Tr. of Oral Arg. 36. In just that way, the Funds conclude, an issuer’s statement that “we believe we are following the law” conveys that “we in fact are following the law”—which is “materially false,” no matter what the issuer thinks, if instead it is violating an anti-kickback statute. Brief for Respondents 1. But that argument wrongly conflates facts and opinions. A fact is “a thing done or existing” or “[a]n actual happen- ing.” Webster’s New International Dictionary 782 (1927). An opinion is “a belief[,] a view,” or a “sentiment which the mind forms of persons or things.” Most important, a statement of fact (“the coffee is hot”) expresses certainty about a thing, whereas a statement of opinion (“I think the coffee is hot”) does not. See (“An opin- ion, in ordinary usage does not imply definiteness or certainty”); 7 Oxford English Dictionary 151 (1933) (an opinion “rests[s] on grounds insufficient for complete demonstration”). Indeed, that difference between the two is so ingrained in our everyday ways of speaking and thinking as to make resort to old dictionaries seem a mite silly. And Congress effectively incorporated just that distinction in first part by exposing issuers to liabil- ity not for “untrue statement[s]” full stop (which |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | to liabil- ity not for “untrue statement[s]” full stop (which would have included ones of opinion), but only for “untrue state- ment[s] of fact.” (emphasis added). Consider that statutory phrase’s application to two hypothetical statements, couched in ways the Funds claim Cite as: 575 U. S. (2015) 7 Opinion of the Court are equivalent. A company’s CEO states: “The TVs we manufacture have the highest resolution available on the market.” Or, alternatively, the CEO transforms that factual statement into one of opinion: “I believe” (or “I think”) “the TVs we manufacture have the highest resolu- tion available on the market.” The first version would be an untrue statement of fact if a competitor had introduced a higher resolution TV a month before—even assuming the CEO had not yet learned of the new product. The CEO’s assertion, after all, is not mere puffery, but a de- terminate, verifiable statement about her company’s TVs; and the CEO, however innocently, got the facts wrong. But in the same set of circumstances, the second version would remain true. Just as she said, the CEO really did believe, when she made the statement, that her company’s TVs had the sharpest picture around. And although a plaintiff could later prove that opinion erroneous, the words “I believe” themselves admitted that possibility, thus precluding liability for an untrue statement of fact. That remains the case if the CEO’s opinion, as here, con- cerned legal compliance. If, for example, she said, “I believe our marketing practices are lawful,” and actually did think that, she could not be liable for a false statement of fact—even if she afterward discovered a longtime viola- tion of law. Once again, the statement would have been true, because all she expressed was a view, not a certainty, about legal compliance. That still leaves some room for false-statement provision to apply to expressions of opinion. As even Omnicare acknowledges, every such statement explicitly affirms one fact: that the speaker actually holds the stated belief. See Brief for Petitioners 15–16; W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts p. 755 (5th ed. 1984) (Prosser and Keeton) (“[A]n expression of opinion is itself always a statement of the fact of the belief, the existing state of 8 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court mind, of the one who asserts it”). For that reason, the CEO’s statement about product quality (“I believe our TVs have the highest resolution available on the market”) would be an untrue statement of fact—namely, the |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | the market”) would be an untrue statement of fact—namely, the fact of her own belief—if she knew that her company’s TVs only placed second. And so too the statement about legal com- pliance (“I believe our marketing practices are lawful”) would falsely describe her own state of mind if she thought her company was breaking the law. In such cases, first part would subject the issuer to liability (assuming the misrepresentation were material).2 In addition, some sentences that begin with opinion words like “I believe” contain embedded statements of fact—as, once again, Omnicare recognizes. See Reply Brief 6. Suppose the CEO in our running hypothetical said: “I believe our TVs have the highest resolution avail- able because we use a patented technology to which our competitors do not have access.” That statement may be read to affirm not only the speaker’s state of mind, as —————— 2 Our decision in Virginia 501 U.S. 1083 qualifies this statement in one respect. There, the Court considered when corporate directors’ statements of opinion in a proxy solicitation give rise to liability under of the Securities Exchange Act, 15 U.S. C. which bars conduct similar to that described in In discussing that issue, the Court raised the hypothetical possi- bility that a director could think he was lying while actually (i.e., accidentally) telling the truth about the matter addressed in his opin- ion. See Virginia –1096. That rare set of facts, the Court decided, would not lead to liability under See The Court reasoned that such an inadvertently correct assess- ment is unlikely to cause anyone harm and that imposing liability merely for the “impurities” of a director’s “unclean heart” might pro- voke vexatious litigation. (quoting Stedman v. Storer, 308 F. Supp. 881, 887 (SDNY 1969)). We think the same is true (to the extent this scenario ever occurs in real life) under So if our CEO did not believe that her company’s TVs had the highest resolution on the market, but (surprise!) they really did, would not impose liability for her statement. Cite as: 575 U. S. (2015) 9 Opinion of the Court described above, but also an underlying fact: that the company uses a patented technology. See Virginia Bank- shares, (SCALIA, J., concurring in part and concurring in judg- ment) (showing that a statement can sometimes be “most fairly read as affirming separately both the fact of the [speaker’s] opinion and the accuracy of the facts” given to support or explain it ). Accordingly, liability under false-statement provision would follow (once again, assuming materiality) not only if the speaker did not hold |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | assuming materiality) not only if the speaker did not hold the belief she professed but also if the supporting fact she supplied were untrue. But the Funds cannot avail themselves of either of those ways of demonstrating liability. The two sentences to which the Funds object are pure statements of opinion: To simplify their content only a bit, Omnicare said in each that “we believe we are obeying the law.” And the Funds do not contest that Omnicare’s opinion was honestly held. Recall that their complaint explicitly “exclude[s] and disclaim[s]” any allegation sounding in fraud or deception. App. 273. What the Funds instead claim is that Omni- care’s belief turned out to be wrong—that whatever the company thought, it was in fact violating anti-kickback laws. But that allegation alone will not give rise to liabil- ity under first clause because, as we have shown, a sincere statement of pure opinion is not an “untrue state- ment of material fact,” regardless whether an investor can ultimately prove the belief wrong. That clause, limited as it is to factual statements, does not allow investors to second-guess inherently subjective and uncertain assess- ments. In other words, the provision is not, as the Court of Appeals and the Funds would have it, an invitation to Monday morning quarterback an issuer’s opinions. 10 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court III A That conclusion, however, does not end this case be- cause the Funds also rely on omissions provision, alleging that Omnicare “omitted to state facts necessary” to make its opinion on legal compliance “not misleading.” App. 273; see 3 As all parties accept, whether a statement is “misleading” depends on the perspective of a reasonable investor: The inquiry (like the one into materi- ality) is objective. Cf. TSC (noting that the securities laws care only about the “significance of an omitted or misrepresented fact to a reasonable investor”). We there- fore must consider when, if ever, the omission of a fact can make a statement of opinion like Omnicare’s, even if literally accurate, misleading to an ordinary investor. Omnicare claims that is just not possible. On its view, no reasonable person, in any context, can understand a pure statement of opinion to convey anything more than the speaker’s own mindset. See Reply Brief 5–6. As long as an opinion is sincerely held, Omnicare argues, it cannot mislead as to any matter, regardless what related facts the speaker has omitted. Such statements of belief (con- cludes Omnicare) are thus immune from liability under second part, just as they |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | thus immune from liability under second part, just as they are under its first.4 —————— 3 Section 11’s omissions clause also applies when an issuer fails to make mandated disclosures—those “required to be stated”—in a registration statement. But the Funds do not object to Om- nicare’s filing on that score. 4 In a different argument that arrives at the same conclusion, Om- nicare maintains that by its terms, bars only those omissions that make statements of fact—not opinion—misleading. See Reply Brief 3– 5. The language of the omissions clause, however, is not so limited. It asks whether an omitted fact is necessary to make “statements” in “any part of the registration statement” not misleading; unlike in first clause, here the word “statements” is unmodified, thus including both fact and opinion. In any event, Omnicare’s alternative interpretation Cite as: 575 U. S. (2015) 11 Opinion of the Court That claim has more than a kernel of truth. A reason- able person understands, and takes into account, the differ- ence we have discussed above between a statement of fact and one of opinion. See at 6–7. She recognizes the import of words like “I think” or “I believe,” and grasps that they convey some lack of certainty as to the state- ment’s content. See, e.g., Restatement (Second) of Con- tracts Comment a, p. 456 (1979) (noting that a statement of opinion “implies that [the speaker] is not certain enough of what he says” to do without the qualify- ing language). And that may be especially so when the phrases appear in a registration statement, which the reasonable investor expects has been carefully word- smithed to comply with the law. When reading such a document, the investor thus distinguishes between the sentences “we believe X is true” and “X is true.” And because she does so, the omission of a fact that merely rebuts the latter statement fails to render the former misleading. In other words, a statement of opinion is not misleading just because external facts show the opinion to be incorrect. Reasonable investors do not understand such statements as guarantees, and omissions clause therefore does not treat them that way. But Omnicare takes its point too far, because a reason- able investor may, depending on the circumstances, under- stand an opinion statement to convey facts about how the speaker has formed the opinion—or, otherwise put, about the speaker’s basis for holding that view. And if the real facts are otherwise, but not provided, the opinion state- ment will mislead its audience. Consider an unadorned —————— succeeds merely in rephrasing the critical |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | Consider an unadorned —————— succeeds merely in rephrasing the critical issue. Omnicare recognizes that every opinion statement is also a factual statement about the speaker’s own belief. See at 7–8. On Omnicare’s view, the question thus becomes when, if ever, an omission can make a statement of that fact misleading to an ordinary investor. The following analysis applies just as well to that reformulation. 12 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court statement of opinion about legal compliance: “We believe our conduct is lawful.” If the issuer makes that statement without having consulted a lawyer, it could be misleadingly incomplete. In the context of the securities market, an investor, though recognizing that legal opinions can prove wrong in the end, still likely expects such an assertion to rest on some meaningful legal inquiry—rather than, say, on mere intuition, however sincere.5 Similarly, if the issuer made the statement in the face of its lawyers’ con- trary advice, or with knowledge that the Federal Govern- ment was taking the opposite view, the investor again has cause to complain: He expects not just that the issuer believes the opinion (however irrationally), but that it fairly aligns with the information in the issuer’s posses- sion at the time.6 Thus, if a registration statement omits material facts about the issuer’s inquiry into or knowledge concerning a statement of opinion, and if those facts conflict with what a reasonable investor would take from the statement itself, then omissions clause creates liability.7 —————— 5 In some circumstances, however, reliance on advice from regulators or consistent industry practice might accord with a reasonable inves- tor’s expectations. 6 The hypothetical used earlier could demonstrate the same points. Suppose the CEO, in claiming that her company’s TV had the highest resolution available on the market, had failed to review any of her competitors’ product specifications. Or suppose she had recently received information from industry analysts indicating that a new product had surpassed her company’s on this metric. The CEO may still honestly believe in her TV’s superiority. But under omissions provision, that subjective belief, in the absence of the expected inquiry or in the face of known contradictory evidence, would not insulate her from liability. 7 Omnicare contends at length that Virginia forecloses this result, see Brief for Petitioners 16–21, relying on the following sentence: “A statement of belief may be open to objection solely as a misstatement of the psychological fact of the speaker’s belief in what he says,” But Omnicare’s argument plucks that state- Cite as: 575 U. S. (2015) 13 |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | plucks that state- Cite as: 575 U. S. (2015) 13 Opinion of the Court An opinion statement, however, is not necessarily mis- leading when an issuer knows, but fails to disclose, some fact cutting the other way. Reasonable investors under- stand that opinions sometimes rest on a weighing of com- peting facts; indeed, the presence of such facts is one reason why an issuer may frame a statement as an opin- ion, thus conveying uncertainty. See at 6–7, 11. Suppose, for example, that in stating an opinion about legal compliance, the issuer did not disclose that a single junior attorney expressed doubts about a practice’s legal- ity, when six of his more senior colleagues gave a stamp of approval. That omission would not make the statement of opinion misleading, even if the minority position ulti- mately proved correct: A reasonable investor does not expect that every fact known to an issuer supports its opinion statement.8 —————— ment from its context and thereby transforms its meaning. Virginia concerned an expression of opinion that the speaker did not honestly hold—i.e., one making an “untrue statement of fact” about the speaker’s own state of mind, See (“[W]e interpret the jury verdict as finding that the directors did not hold the beliefs or opinions expressed, and we confine our discussion to statements so made”). The Court held that such a statement gives rise to liability under when it is also “false or misleading about its subject matter.” Having done so, the Court went on to consider the rare hypothetical case, described in this opinion’s second footnote, in which a speaker expresses an opinion that she does not actually hold, but that turns out to be right. See The sentence Omnicare cites did no more than introduce that hypothetical; it was a way of saying “someone might object to a statement—even when the opinion it expressed proved correct—solely on the ground that it was disbelieved.” And the Court then held, as noted above, that such an objection would fail. See The language thus provides no support for Omnicare’s argument here. 8 We note, too, that a reasonable investor generally considers the specificity of an opinion statement in making inferences about its basis. Compare two new statements from our ever-voluble CEO. In the first, she says: “I believe we have 1.3 million TVs in our warehouse.” In the second, she says: “I believe we have enough supply on hand to meet 14 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court Moreover, whether an omission makes an expression of opinion misleading |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | Moreover, whether an omission makes an expression of opinion misleading always depends on context. Registra- tion statements as a class are formal documents, filed with the SEC as a legal prerequisite for selling securities to the public. Investors do not, and are right not to, expect opin- ions contained in those statements to reflect baseless, off- the-cuff judgments, of the kind that an individual might communicate in daily life. At the same time, an investor reads each statement within such a document, whether of fact or of opinion, in light of all its surrounding text, in- cluding hedges, disclaimers, and apparently conflicting information. And the investor takes into account the customs and practices of the relevant industry. So an omission that renders misleading a statement of opinion when viewed in a vacuum may not do so once that state- ment is considered, as is appropriate, in a broader frame. The reasonable investor understands a statement of opin- ion in its full context, and creates liability only for the omission of material facts that cannot be squared with such a fair reading. These principles are not unique to : They inhere, too, in much common law respecting the tort of misrepresenta- tion.9 The Restatement of Torts, for example, recognizes that “[a] statement of opinion as to facts not disclosed and not otherwise known to the recipient may” in some cir- cumstances reasonably “be interpreted by him as an im- plied statement” that the speaker “knows facts sufficient to justify him in forming” the opinion, or that he at least —————— demand.” All else equal, a reasonable person would think that a more detailed investigation lay behind the former statement. 9 Section 11 is, of course, “not coextensive with common-law doctrines of fraud”; in particular, it establishes “a stringent standard of liability,” not dependent on proof of intent to defraud. Herman & MacLean v. Huddleston, ; see ; infra, at 15, n. 11. But we may still look to the common law for its insights into how a reasonable person understands statements of opinion. Cite as: 575 U. S. (2015) 15 Opinion of the Court knows no facts “incompatible with [the] opinion.” Re- statement (Second) of Torts p. 8510 When that is so, the Restatement explains, liability may result from omission of facts—for example, the fact that the speaker failed to conduct any investigation—that rebut the recipient’s predictable inference. See Comment a, at 86; Comment b, at 87. Similarly, the leading trea- tise in the area explains that “it has been recognized very often that the expression of an opinion may carry |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | very often that the expression of an opinion may carry with it an implied assertion, not only that the speaker knows no facts which would preclude such an opinion, but that he does know facts which justify it.” Prosser and Keeton at 760. That is especially (and traditionally) the case, the treatise continues, where—as in a registration statement—a speaker “holds himself out or is understood as having special knowledge of the matter which is not available to the plaintiff.” at 760–761 (footnote omit- ted); see Restatement (Second) of Torts Comment b, at 86 (noting that omissions relating to an opinion’s basis are “particularly” likely to give rise to liability when the speaker has “special knowledge of facts unknown to the recipient”); Smith v. Land and House Property Corp., [1884] 28 Ch. D. 7, 15 (App. Cas.) (appeal taken from Eng.) (opinion of Bowen, L. J.) (When “the facts are not equally known to both sides, then a statement of opinion by the one who knows the facts best impliedly states that [the speaker] knows facts which justify his opinion”).11 —————— 10 The Restatement of Contracts, discussing misrepresentations that can void an agreement, says much the same: “[T]he recipient of an assertion of a person’s opinion as to facts not disclosed” may sometimes “properly interpret it as an assertion (a) that the facts known to that person are not incompatible with his opinion, or (b) that he knows facts sufficient to justify him in forming it.” Restatement (Second) of Con- tracts p. 455 (1979). 11 In invoking these principles, we disagree with JUSTICE SCALIA’s common-law-based opinion in two crucial ways. First, we view the common law’s emphasis on special knowledge and expertise as support- 16 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court And the purpose of supports this understanding of how the omissions clause maps onto opinion statements. Congress adopted to ensure that issuers “tell[ ] the whole truth” to investors. H. R. Rep. No. 85, 73d Cong., 1st Sess., 2 (1933) (quoting President Roosevelt’s message to Congress). For that reason, literal accuracy is not enough: An issuer must as well desist from misleading investors by saying one thing and holding back another. Omnicare would nullify that statutory requirement for all sentences starting with the phrases “we believe” or “we think.” But those magic words can preface nearly any conclusion, and the resulting statements, as we have shown, remain perfectly capable of misleading investors. See at 11–12. Thus, Omnicare’s view would punch a hole in the statute for half-truths in the form of opinion |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | in the statute for half-truths in the form of opinion statements. And the difficulty of showing that such statements are literally false—which requires proving an issuer did not believe them, see at 7–8—would make that opening yet more consequential: Were Omni- care right, companies would have virtual carte blanche to assert opinions in registration statements free from worry —————— ing, rather than contradicting, our view of what issuers’ opinion state- ments fairly imply. That is because an issuer has special knowledge of its business—including the legal issues the company faces—not avail- able to an ordinary investor. Second, we think JUSTICE SCALIA’s reliance on the common law’s requirement of an intent to deceive is inconsistent with standard of liability. As we understand him, JUSTICE SCALIA would limit liability for omissions under to cases in which a speaker “subjectively intend[s] the deception” arising from the omission, on the ground that the common law did the same. Post, at 6 (opinion concurring in part and concurring in judgment) But discards the common law’s intent requirement, making omis- sions unlawful—regardless of the issuer’s state of mind—so long as they render statements misleading. See Herman & MacLean, 459 U.S., 82 (emphasizing that imposes liability “even for innocent” misstatements or omissions). The common law can help illuminate when an omission has that effect, but cannot change insistence on strict liability. See Cite as: 575 U. S. (2015) 17 Opinion of the Court about That outcome would ill-fit Congress’s decision to establish a strict liability offense promoting “full and fair disclosure” of material information. Pinter, 486 U.S., at ; see at 1–2. Omnicare argues, in response, that applying omis- sions clause in the way we have described would have “adverse policy consequences.” Reply Brief 17 (capitaliza- tion omitted). According to Omnicare, any inquiry into the issuer’s basis for holding an opinion is “hopelessly amor- phous,” threatening “unpredictable” and possibly “mas- sive” liability. ; Brief for Petitioners 34, 36. And because that is so, Omnicare claims, many issuers will choose not to disclose opinions at all, thus “depriving [investors] of potentially helpful information.” Reply Brief 19; see Tr. of Oral Arg. 59–61. But first, that claim is, just as Omnicare labels it, one of “policy”; and Congress gets to make policy, not the courts. The decision Congress made, for the reasons we have indicated, was to extend liability to all statements rendered misleading by omission. In doing so, Congress no doubt made less cut-and-dry than a law prohibiting only false factual statements. Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | to statements of both opinion and fact, necessarily brings the reasonable person into the analysis, and asks what she would naturally understand a state- ment to convey beyond its literal meaning. And for ex- pressions of opinion, that means considering the founda- tion she would expect an issuer to have before making the statement. See at 11–12. All that, however, is a feature, not a bug, of the omissions provision. Moreover, Omnicare way overstates both the looseness of the inquiry Congress has mandated and the breadth of liability that approach threatens. As we have explained, an investor cannot state a claim by alleging only that an opinion was wrong; the complaint must as well call into question the issuer’s basis for offering the opinion. See 18 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court at 11–12. And to do so, the investor cannot just say that the issuer failed to reveal its basis. Section 11’s omissions clause, after all, is not a general disclosure requirement; it affords a cause of action only when an issuer’s failure to include a material fact has rendered a published statement misleading. To press such a claim, an investor must allege that kind of omission—and not merely by means of conclusory assertions. See Ashcroft v. Iqbal, (“Threadbare recitals of the elements of a cause of action, supported by mere con- clusory statements, do not suffice”). To be specific: The investor must identify particular (and material) facts going to the basis for the issuer’s opinion—facts about the inquiry the issuer did or did not conduct or the knowledge it did or did not have—whose omission makes the opinion statement at issue misleading to a reasonable person reading the statement fairly and in context. See at 11–14. That is no small task for an investor. Nor does the inquiry such a complaint triggers ask anything unusual of courts. Numerous legal rules hinge on what a reasonable person would think or expect. In requiring courts to view statements of opinion from an ordinary investor’s perspective, omissions clause demands nothing more complicated or unmanageable. Indeed, courts have for decades engaged in just that in- quiry, with no apparent trouble, in applying the common law of misrepresentation. See –15. Finally, we see no reason to think that liability for misleading opinions will chill disclosures useful to inves- tors. Nothing indicates that application to mislead- ing factual assertions in registration statements has caused such a problem. And likewise, common-law doc- trines of opinion liability have not, so far as anyone knows, deterred merchants in ordinary |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | not, so far as anyone knows, deterred merchants in ordinary commercial transactions from asserting helpful opinions about their products. That absence of fallout is unsurprising. Sellers (whether of Cite as: 575 U. S. (2015) 19 Opinion of the Court stock or other items) have strong economic incentives to well, sell (i.e., hawk or peddle). Those market-based forces push back against any inclination to underdisclose. And to avoid exposure for omissions under an issuer need only divulge an opinion’s basis, or else make clear the real tentativeness of its belief. Such ways of conveying opinions so that they do not mislead will keep valuable information flowing. And that is the only kind of infor- mation investors need. To the extent our decision today chills misleading opinions, that is all to the good: In enact- ing Congress worked to ensure better, not just more, information. B Our analysis on this score counsels in favor of sending the case back to the lower courts for decision. Neither court below considered the Funds’ omissions theory with the right standard in mind—or indeed, even recognized the distinct statutory questions that theory raises. See –5. We therefore follow our ordinary practice of remanding for a determination of whether the Funds have stated a viable omissions claim (or, if not, whether they should have a chance to replead). In doing so, however, we reemphasize a few crucial points pertinent to the inquiry on remand. Initially, as we have said, the Funds cannot proceed without identifying one or more facts left out of Omnicare’s registration statement. See at 17–18. The Funds’ recitation of the statutory language—that Omnicare “omitted to state facts necessary to make the statements made not mislead- ing”—is not sufficient; neither is the Funds’ conclusory allegation that Omnicare lacked “reasonable grounds for the belief ” it stated respecting legal compliance. App. 273–274. At oral argument, however, the Funds high- lighted another, more specific allegation in their com- plaint: that an attorney had warned Omnicare that a 20 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of the Court particular contract “carrie[d] a heightened risk” of legal exposure under anti-kickback laws. (emphasis omitted); see Tr. of Oral Arg. 42, 49; On re- mand, the court must review the Funds’ complaint to determine whether it adequately alleged that Omnicare had omitted that (purported) fact, or any other like it, from the registration statement. And if so, the court must determine whether the omitted fact would have been material to a reasonable investor—i.e., whether “there is a substantial likelihood that a reasonable [investor] would consider it |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | a substantial likelihood that a reasonable [investor] would consider it important.” TSC 426 U.S., 49. Assuming the Funds clear those hurdles, the court must ask whether the alleged omission rendered Omnicare’s legal compliance opinions misleading in the way described earlier—i.e., because the excluded fact shows that Om- nicare lacked the basis for making those statements that a reasonable investor would expect. See at 11–12. Insofar as the omitted fact at issue is the attorney’s warn- ing, that inquiry entails consideration of such matters as the attorney’s status and expertise and other legal infor- mation available to Omnicare at the time. See at 13. Further, the analysis of whether Omnicare’s opinion is misleading must address the statement’s context. See That means the court must take account of whatever facts Omnicare did provide about legal compli- ance, as well as any other hedges, disclaimers, or qualifi- cations it included in its registration statement. The court should consider, for example, the information Omnicare offered that States had initiated enforcement actions against drug manufacturers for giving rebates to pharma- cies, that the Federal Government had expressed concerns about the practice, and that the relevant laws “could “be interpreted in the future in a manner” that would harm Omnicare’s business. See App. 95–96, 136–137; Cite as: 575 U. S. (2015) 21 Opinion of the Court * * * With these instructions and for the reasons stated, we vacate the judgment below and remand the case for fur- ther proceedings. It is so ordered. Cite as: 575 U. S. (2015) 1 Opinion of SCALIA, J. SUPREME COURT OF THE UNITED STATES No. 13–435 OMNICARE, INC., ET AL., PETITIONERS v. LABORERS DISTRICT COUNCIL CONSTRUCTION INDUSTRY PENSION FUND ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT [March 24, 2015] JUSTICE SCALIA, concurring in part and concurring in the judgment. Section 11 of the Securities Act of 1933 imposes liability where a registration statement “contain[s] an untrue statement of a material fact” or “omit[s] to state a material fact necessary to make the statements therein not mis- leading.” 15 U.S. C. I agree with the Court’s discussion of what it means for an expression of opinion to state an untrue material fact. But an expression of opin- ion implies facts (beyond the fact that the speaker believes his opinion) only where a reasonable listener would un- derstand it to do so. And it is only when expressions of opinion do imply these other facts that they can be “mis- leading” without the addition of other “material facts.” The Court’s view |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | without the addition of other “material facts.” The Court’s view would count far more expressions of opinion to convey collateral facts than I—or the common law—would, and I therefore concur only in part. The common law recognized that most listeners hear “I believe,” “in my estimation,” and other related phrases as disclaiming the assertion of a fact. Hence the (somewhat overbroad) common-law rule that a plaintiff cannot estab- lish a misrepresentation claim “for misstatements of opinion, as distinguished from those of fact.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on 2 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of SCALIA, J. Torts p. 755 (5th ed. 1984) (Prosser & Keeton). A fraudulent misrepresentation claim based on an expres- sion of opinion could lie for the one fact the opinion reli- ably conveyed: that the speaker in fact held the stated opinion. Restatement of Torts Comment c, p. 60 (1938). And, in some circumstances, the common law acknowledged that an expression of opinion reasonably implied “that the maker knows of no fact incompatible with his opinion.” at 91. The no-facts- incompatible-with-the-opinion standard was a demanding one; it meant that a speaker’s judgment had to “var[y] so far from the truth that no reasonable man in his position could have such an opinion.” Restatement of Contracts p. 902, and Comment b (1932). But without more, a listener could only reasonably interpret expressions of opinion as conveying this limited assurance of a speaker’s understanding of facts. In a few areas, the common law recognized the possibil- ity that a listener could reasonably infer from an expres- sion of opinion not only (1) that the speaker sincerely held it, and (2) that the speaker knew of no facts incompatible with the opinion, but also (3) that the speaker had a rea- sonable basis for holding the opinion. This exceptional recognition occurred only where it was “very reasonable or probable” that a listener should place special confidence in a speaker’s opinion. Prosser & Keeton at 760–761. This included two main categories, both of which were carve-outs from the general rule that “the ordinary man has a reasonable competence to form his own opinion,” and “is not justified in relying [on] the opinion” of another. Restatement of Torts Comment a, First, expressions of opinion made in the context of a relation- ship of trust, such as between doctors and patients. Sec- ond, expressions of opinion made by an expert in his ca- pacity as an expert (for example, a jeweler’s statement of opinion about the value of |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | example, a jeweler’s statement of opinion about the value of a diamond). These exceptions Cite as: 575 U. S. (2015) 3 Opinion of SCALIA, J. allowed a listener to deal with those special expressions of opinion as though they were facts. As the leading treatise put it, “the ordinary man is free to deal in reliance upon the opinion of an expert jeweler as to the value of a dia- mond [or] of an attorney upon a point of law.” Prosser & Keeton at 761. But what reasonable person would assume that a lawyer’s assessment of a diamond or a jeweler’s opinion on a point of law implied an educated investigation? The Court’s expansive application of omissions clause to expressions of opinion produces a far broader field of misrepresentation; in fact, it produces almost the opposite of the common-law rule. The Court holds that a reasonable investor is right to expect a reasonable basis for all opinions in registration statements—for example, the conduct of a “meaningful inquiry,”—unless that is sufficiently disclaimed. Ante, at 12, 14–15, 18–20. Take the Court’s hypothetical opinion regarding legal compli- ance. When a disclosure statement says “we believe our conduct is lawful,” ante, at 12, the Court thinks this should be understood to suggest that a lawyer was con- sulted, since a reasonable investigation on this point would require consulting a lawyer. But this approach is incompatible with the common law, which had no “legal opinions are different” exception. See Restatement of Torts at 102. It is also incompatible with common sense. It seems to me strange to suggest that a statement of opinion as generic as “we believe our conduct is lawful” conveys the implied assertion of fact “we have conducted a meaningful legal investigation before espousing this opinion.” It is strange to ignore the reality that a director might rely on industry practice, prior experience, or advice from regula- tors—rather than a meaningful legal investigation—in concluding the firm’s conduct is lawful. The effect of the Court’s rule is to adopt a presumption of expertise on all 4 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of SCALIA, J. topics volunteered within a registration statement. It is reasonable enough to adopt such a presumption for those matters that are required to be set forth in a regis- tration statement. Those are matters on which the man- agement of a corporation are experts. If, for example, the registration statement said “we believe that the corpora- tion has $5,000,000 cash on hand,” or “we believe the corporation has 7,500 shares of common stock outstand- |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | believe the corporation has 7,500 shares of common stock outstand- ing,” the public is entitled to assume that the management has done the necessary research, so that the asserted “belief ” is undoubtedly correct. But of course a registra- tion statement would never preface such items, within the expertise of the management, with a “we believe that.” Full compliance with the law, however, is another matter. It is not specifically required to be set forth in the state- ment, and when management prefaces that volunteered information with a “we believe that,” it flags the fact that this is not within our area of expertise, but we think we are in compliance. Moreover, even if one assumes that a corporation issu- ing a registration statement is (by operation of law) an “expert” with regard to all matters stated or opined about, I would still not agree with the Court’s disposition. The Court says the following: “Section 11’s omissions clause, as applied to statements of both opinion and fact, necessarily brings the reason- able person into the analysis, and asks what she would naturally understand a statement to convey beyond its literal meaning. And for expressions of opinion, that means considering the foundation she would expect an issuer to have before making the statement.” Ante, at 17 (emphasis added). The first sentence is true enough—but “what she [the reasonable (female) person, and even he, the reasonable (male) person] would naturally understand a statement [of opinion] to convey” is not that the statement has the foun- Cite as: 575 U. S. (2015) 5 Opinion of SCALIA, J. dation she (the reasonable female person) considers ade- quate. She is not an expert, and is relying on the advice of an expert—who ought to know how much “foundation” is needed. She would naturally understand that the expert has conducted an investigation that he (or she or it) con- sidered adequate. That is what relying upon the opinion of an expert means. The common law understood this distinction. An action for fraudulent misrepresentation based on an opinion of an expert* was only allowed when the expression of the opinion conveyed a fact—the “fact” that summarized the expert’s knowledge. Prosser and Keeton at 761. And a fact was actionable only if the speaker knew it was false, if he knew he did not know it, or if he knew the listener would understand the statement to have a basis that the speaker knew was not true. Restatement of Torts at 63–64. Ah!, the majority might say, so a speaker is liable for knowing he lacks the listener’s |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | a speaker is liable for knowing he lacks the listener’s reasonable basis! If the speaker knows—is actually aware—that the listener will understand an expression of opinion to have a specific basis that it does not have, then of course he satis- fies this element of the tort. But more often, when any basis is implied at all, both sides will understand that the speaker implied a “reason- able basis,” but honestly disagree on what that means. And the common law supplied a solution for this: A speaker was liable for ambiguous statements—misunderstandings—as —————— * At the time of the Act’s passage, the common law did not permit suit for negligent misrepresentation under the circumstances here. An action for negligent misrepresentation resting upon a statement of opinion would lie only if the opinion—a professional opinion—was “given upon facts equally well known to both the supplier and the recipient.” Restatement of Torts Comment b, at 123 (1938). That is of course not the situation here. The typical opinion “given upon facts equally known to both the supplier and the recipient” is a lawyer’s legal advice on facts described by his client. 6 OMNICARE, INC. v. LABORERS DIST. COUNCIL CONSTR. INDUSTRY PENSION FUND Opinion of SCALIA, J. fraudulent misrepresentations only where he both knew of the ambiguity and intended that the listener fall prey to it. at 66. In other words, even assuming both parties knew (a prerequisite to liability) that the expression of opinion implied a “reasonable investigation,” if the speaker and listener honestly disagreed on the nature of that inves- tigation, the speaker was not liable for a fraudulent misrep- resentation unless he subjectively intended the deception. And so in no circumstance would the listener’s belief of a “reasonable basis” control: If the speaker subjectively be- lieves he lacks a reasonable basis, then his statement is simply a knowing misrepresentation. at 63. If he does not know of the ambiguity, or knows of it, but does not intend to deceive, he is not liable. at 66. That his basis for belief was “objectively unreasonable” does not impart liability, so long as the belief was genuine. This aligns with common sense. When a client receives advice from his lawyer, it is surely implicit in that advice that the lawyer has conducted a reasonable investiga- tion—reasonable, that is, in the lawyer’s estimation. The client is relying on the expert lawyer’s judgment for the amount of investigation necessary, no less than for the legal conclusion. To be sure, if the lawyer conducts an investigation that he does not believe is adequate, he would be |
Justice Kagan | 2,015 | 3 | majority | Omnicare, Inc. v. Laborers Dist. Council Constr. Industry Pension Fund | https://www.courtlistener.com/opinion/2788684/omnicare-inc-v-laborers-dist-council-constr-industry-pension-fund/ | that he does not believe is adequate, he would be liable for misrepresentation. And if he conducts an investigation that he believes is adequate but is objec- tively unreasonable (and reaches an incorrect result), he may be liable for malpractice. But on the latter premise he is not liable for misrepresentation; all that was implicit in his advice was that he had conducted an investigation he deemed adequate. To rely on an expert’s opinion is to rely on the expert’s evaluation of how much time to spend on the question at hand. The objective test proposed by the Court—inconsistent with the common law and common intuitions about state- ments of opinion—invites roundabout attacks upon ex- Cite as: 575 U. S. (2015) 7 Opinion of SCALIA, J. pressions of opinion. Litigants seeking recompense for a corporation’s expression of belief that turned out, after the fact, to be incorrect can always charge that even though the belief rested upon an investigation the corporation thought to be adequate, the investigation was not “objec- tively adequate.” Nor is this objective test justified by absence of a mens rea requirement, as the Court suggests. Ante, at 15 n.10. Some of my citation of the common law is meant to illustrate when a statement of opinion contains an implied warranty of reasonable basis. But when it does so, the question then becomes whose reasonable basis. My illus- tration of the common-law requirements for misrepresen- tation is meant to show that a typical listener assumes that the speaker’s reasonable basis controls. That show- ing is not contradicted by absence of a mens rea requirement. Not to worry, says the Court. Sellers of securities need “only divulge an opinion’s basis, or else make clear the real tentativeness of [their] belief[s].” Ante, at 18. One wonders what the function of “in my estimation” is, then, except as divulging such hesitation. Or what would be sufficient for the Court. “In my highly tentative estima- tion?” “In my estimation that, consistent with Omnicare, should be understood as an opinion only?” Reasonable speakers do not speak this way, and reasonable listeners do not receive opinions this way. When an expert expresses an opinion instead of stating a fact, it implies (1) that he genuinely believes the opinion, (2) that he believes his basis for the opinion is sufficient, and (most important) (3) that he is not certain of his result. Nothing more. This approach would have given lower courts and investors far more guidance and would largely have avoided the Funds’ attack upon Omnicare’s opinions as though Omnicare held those opinions out |
Justice Brennan | 1,973 | 13 | second_dissenting | United States v. Orito | https://www.courtlistener.com/opinion/108842/united-states-v-orito/ | We noted probable jurisdiction to consider the constitutionality of 18 U.S. C. 1462, which makes it a federal offense to "[bring] into the United States, or any place subject to the jurisdiction thereof, or knowingly [use] any express company or other common carrier, for carriage in interstate or foreign commerce(a) any obscene, lewd, lascivious, or filthy book, pamphlet, picture, motion-picture film, paper, letter, writing, print, or other matter of indecent character." Appellee was charged in a one-count indictment with having knowingly transported in interstate commerce over 80 reels of allegedly obscene motion picture film. Relying primarily on our decision in the United States District Court for the Eastern District of Wisconsin dismissed the indictment, holding the statute unconstitutional on its face: "To prevent the pandering of obscene materials or its exposure to children or to unwilling adults, the government has a substantial and valid interest to bar the non-private transportation of such materials. However, the statute which is now before the court does not so delimit the government's prerogatives; on its face, it forbids the transportation of obscene materials. Thus, it applies to non-public transportation in the absence of a special governmental interest. The statute is thus overbroad, in violation of the first and ninth amendments, and is therefore unconstitutional." Under the view expressed in my dissent today in Paris Adult Theatre I v. Slaton, ante, p. 73, it is clear that the statute before us cannot stand. Whatever the extent of *148 the Federal Government's power to bar the distribution of allegedly obscene material to juveniles or the offensive exposure of such material to unconsenting adults, the statute before us is clearly overbroad and unconstitutional on its face. See my dissent in Miller v. California, ante, p. 47. I would therefore affirm the judgment of the District Court. |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | The Vermont statute before us adversely affects expres sion in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, (Supp. 2010). 2 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting It also says that “[3] [p]harmaceutical manufacturers and pharmaceu tical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 this Court considered the First Amend ment’s application to federal agricultural commodity mar-keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver tising. The Court reviewed the lawfulness of the regula tion’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regula tion.” In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in The far stricter, specially “heightened” First Amendment standards that the major ity would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15. A Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifica tions differ depending upon context, this Court has distin guished for First Amendment purposes among different Cite as: 564 U. S. |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | First Amendment purposes among different Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting contexts in which speech takes place. See, Snyder v. Phelps, 562 U. S. – (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, “core” political speech, while imposing looser constraints when the gov ernment seeks to restrict, commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro gram. Compare (political speech), with Central Gas & Elec. v. Public Serv. Comm’n of N. Y., (commercial speech), (government employees), and (economic regulation). These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting ; see (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will. At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida (“We have always been careful to distinguish com mercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted. Thus this Court has recognized that commercial speech including advertising has an “informational function” and 4 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting is not “valueless in the marketplace of ideas.” Central ; 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Moreover, the Court has found that “sales practices” that are “misleading, decep tive, or aggressive” lack the protection of even this “inter mediate” standard. 44 Liquormart, ; see also Central ; Virginia Bd. of v. Virginia Citizens Consumer Council, Inc., 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” (quoting Virginia Bd. of ; emphasis added). The Court has also normally applied a yet more lenient approach to |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting the remedy provided.” New State Ice Co. v. Liebmann, 285 U.S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla tive measure was a rational way to correct it”); United States v. Carolene Products Co., (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”). To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat ening to distort or undermine legitimate legislative ob jectives. See (“Doubts con cerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they dis agree with does not “justify reliance on the First Amend ment as a basis for reviewing economic regulations”). Cf. 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Inc., (applying greater scrutiny where compelled speech was not “ancil lary to a more comprehensive program restricting market ing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what 6 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting then-Justice Rehnquist, dissenting in Central described as a “retur[n] to the bygone era of in which it was common practice for this Court to strike down economic regulations adopted by a State based on |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple ment its considered policies.” B There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” 521 U.S., For one thing, Ver mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. –470. (And I here assume that Central might otherwise apply. See Part III, infra.) For another thing, the same First Amendment stan dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Gov ernment’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.) Further, the statute’s requirements form part of a tra ditional, comprehensive regulatory regime. Cf. United at The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting are both “safe” and “effective.” 21 U.S. C. 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. 21 CFR pts. 201–203 (2010). Finally, Vermont’s statute is directed toward informa tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U.S. C. Vermont regulates the qualifications, the fitness, and the practices of pharma cists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, 2022(14) (Supp. 2010); Vt. Bd. of Admin. Rules ( Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin). Regulators will often find it necessary to create tailored restrictions on the |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new cus tomers. See 15 U.S. C. (2006 ed. and Supp. III); cf. Trans Union reh’g denied, Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See (a)(3) (2010). Or, speaking hypo thetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid 8 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting sales of the data to appliance manufacturers seeking to sell gas stoves. Such regulatory actions are subject to judicial review, for compliance with applicable statutes. And they would normally be subject to review under the Adminis trative Procedure Act to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional consti tutional concerns under the First Amendment. But cf. Trans Union (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “inter mediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message). Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gath ered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Re porting Publishing (no height ened scrutiny); compare (“[C]ommercial speech can be subject to greater governmental regulation than non Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting commercial speech” because of the government’s “interest in preventing |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | dissenting commercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C The Court (suggesting a standard yet stricter than Central ) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24. But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable. Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of 425 U.S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, it must be dis tinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institu tions. See 12 CFR pts. 226, 230 (2011). And the FDA 10 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regula tory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. 492 U.S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue). Nor, in the context of a regulatory program, is it un usual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of indus trial equipment. See, 16 CFR pt. 305 (2011) (prescrib ing labeling requirements for certain home appliances); 704.808 (2010) (requiring utilities to provide consumers with information on conser vation). Or a |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | to provide consumers with information on conser vation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Or ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential pur chasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to Cite as: 564 U. S. (2011) 11 BREYER, J., dissenting tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman (discussing effect of similar regulations in respect to medical devices); see also Pro posed Rule, Revised Effectiveness Determination; Sun screen Drug Products for Over-the-Counter Human Use, (2011) (proposing to prohibit market ing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”). If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer ence with widely accepted regulatory activity. Cf., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect cer tain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines. The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manu facturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease the |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, Exec. Order No. 12866, (specifying how to identify regulatory priorities and requiring agen cies to prepare agendas). The related statutes, regula tions, programs, and initiatives almost always reflect a 12 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting point of view, for example, of the Congress and the ad ministration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Gov ernment and the firms may disagree. Section 2 of the Sherman Act, 15 U.S. C. for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists. In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk. Moreover, given the sheer quantity of regulatory initia tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu tionalization of economic theories preferred by individual jurists. See 75–76 (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Cen tral ; cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., Cite as: 564 U. S. (2011) 13 BREYER, J., dissenting (“A controversy like this always calls for fresh reminder that courts must not sub stitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”). Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or to |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point. This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III Turning to the constitutional merits, I believe Vermont’s statute survives application of Central ’s “interme diate” commercial speech standard as well as any more limited “economic regulation” test. 14 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting A The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjus tified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record con tains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. v. Freeman, (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”). The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthor ized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) ; see also Reply Brief for Petition ers 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it creates |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, (pharmacy reimbursement, patient care management, health care research); (drug dispensing); (communications between pre scriber and pharmacy); (information to pa Cite as: 564 U. S. (2011) 15 BREYER, J., dissenting tients); (as otherwise provided by state or federal law). Cf. Trans Union ). Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speak ers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creat ing individualized messages that would help them sell their drugs more effectively, but (2) permits “counterde tailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this con sequence would significantly increase the statute’s nega tive impact upon commercial speech. But cf. 21 CFR 202.1(e)(5)(ii) (FDA’s “fair balance” require ment); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont. The majority points out, ante, at 4, that Act 80, of which was a part, also created an “evidence-based pre scription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescrip tion drugs” to health professionals responsible for pre scribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, See generally But that program does not make use of prescriber-identifying data. 16 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Reply Brief for Petitioners 11. The majority cites testimony by two witnesses in sup port of its statement that “States themselves may supply the prescriber-identifying information used in [counterde tailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care professionals |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort. The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The with holding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. Cite as: 564 U. S. (2011) 17 BREYER, J., dissenting B The legitimate state interests that the statute serves are “substantial.” Central 447 U.S., Ver mont enacted its statute “to advance the state’s interest in protecting the pub lic health of Vermonters, protecting the privacy of prescribers and prescribing information, and to en sure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” (a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24. The protection of public health falls within the tradi tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U.S., at ; Central at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762–771 (1989); see also Solove, A Taxonomy of Pri 18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 520–522 |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. – (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure). At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have every thing to do with general information that drug manufac turers likely possess. They have little, if anything, to do with the name or prior prescription practices of the par ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests. Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to high light information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, at A–4235 (one for mer detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health care-eli-lilly-pfizer-ama); Testimony of Paul Harrington Cite as: 564 U. S. (2011) 19 BREYER, J., dissenting (May 3, 2007), at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual physicians |
Justice Breyer | 2,011 | 2 | dissenting | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence). These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Ver mont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR 202.1(e)(5)(ii). No one has yet sug gested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently? The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, Rule 8.7(c) (“Prescription and other patient health care infor mation shall be secure from access by the public, and the information shall be kept confidential”); Rule 20 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting 20.1(i) (forbidding disclosure of patient or prescriber in formation to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, ; Vt. Stat. Ann., Tit. 18, (e); App. 248, 255 (indicating that prescriber identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §(c)–(d). For purposes of Central this would seem sufficiently to show that the statute serves a mean ingful interest in increasing the protection given to pre scriber privacy. See (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); 504 U.S., at C The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central 447 U.S., It says that doctors “can, and often do, simply decline to |
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