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Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | one offense may have committed many other crimes prior to arrest and conviction, and some number can be ex pected to commit further crimes upon release. Yet the PLRA contemplates that courts will retain authority to issue orders necessary to remedy constitutional violations, including authority to issue population limits when neces sary. See at 28–29. A court is required to consider the public safety consequences of its order and to struc ture, and monitor, its ruling in a way that mitigates those consequences while still achieving an effective remedy of the constitutional viola This inquiry necessarily involves difficult predictive judgments regarding the likely effects of court orders. Although these judgments are normally made by state officials, they necessarily must be made by courts when 38 BROWN v. PLATA Opinion of the Court those courts fashion injunctive relief to remedy serious constitutional violations in the prisons. These questions are difficult and sensitive, but they are factual questions and should be treated as such. Courts can, and should, rely on relevant and informed expert testimony when making factual findings. It was proper for the three-judge court to rely on the testimony of prison officials from California and other States. Those experts testified on the basis of empirical evidence and extensive experience in the field of prison administra The three-judge court credited substantial evidence that prison populations can be reduced in a manner that does not increase crime to a significant degree. Some evidence indicated that reducing overcrowding in California’s pris ons could even improve public safety. Then-Governor Schwarzenegger, in his emergency proclamation on over crowding, acknowledged that “ ‘overcrowding causes harm to people and property, leads to inmate unrest and mis conduct, and increases recidivism as shown within this state and in others.’ ” Juris. App. 191a–192a. The former warden of San Quentin and acting secretary of the Cali fornia prison system testified that she “ ‘absolutely be lieve[s] that we make people worse, and that we are not meeting public safety by the way we treat people.’ ”10 9a. And the head of Pennsylvania’s correctional system testified that measures to reduce prison population —————— 10 The former head of correctional systems in Washington, Maine, and Pennsylvania, likewise referred to California’s prisons as “ ‘crimino genic.’ ” Juris. App. 191a. The Yolo County chief probation officer testified that “ ‘it seems like [the prisons] produce additional criminal behavior.’ ” at 190a. A former professor of sociology at George Washington University, reported that California’s present recidivism rate is among the highest in the Na App. 1246. And the three judge court noted the |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | Na App. 1246. And the three judge court noted the report of California’s Little Hoover Commission, which stated that “ ‘[e]ach year, California communities are burdened with absorbing 123,000 offenders returning from prison, often more dangerous than when they left.’ ” Juris. App. 191a. Cite as: 563 U. S. (2011) 39 Opinion of the Court may “actually improve on public safety because they ad dress the problems that brought people to jail.” Tr. 52– 53. Expert witnesses produced statistical evidence that prison populations had been lowered without adversely affecting public safety in a number of jurisdictions, includ ing certain counties in California, as well as Wisconsin, Illinois, Texas, Colorado, Montana, Michigan, Florida, and Canada. Juris. App. 245a.11 Washington’s former secretary of corrections testified that his State had implemented population reduction methods, including parole reform and expansion of good time credits, without any “deleteri ous effect on crime.” Tr. 2008–2009. In light of this evi dence, the three-judge court concluded that any negative impact on public safety would be “substantially offset, and perhaps entirely eliminated, by the public safety benefits” —————— 11 Philadelphia’s experience in the early 1990’s with a federal court order mandating reductions in the prison population was less positive, and that history illustrates the undoubted need for caution in this area. One congressional witness testified that released prisoners committed 79 murders and multiple other offenses. See Hearing on S. 3 et al. before the Senate Committee on the Judiciary, 104th Cong., 1st Sess., 45 (1995) (statement of Lynne Abraham, District Attorney of Philadel phia). Lead counsel for the plaintiff class in that case responded that “[t]his inflammatory assertion has never been documented.” at 212 (statement of David Richman). The Philadelphia decree was different from the order entered in this case. Among other things, it “prohibited the City from admitting to its prisons any additional inmates, except for persons charged with, or convicted of, murder, forcible rape, or a crime involving the use of a gun or knife in the commission of an aggravated assault or robbery.” Harris v. Reeves, 761 F. Supp. 382, 384–385 ; see Crime and Justice Research Institute, J. Goldkamp & M. White, Restoring Accountability in Pretrial Release: The Philadelphia Pretrial Release Supervision Experiments 6–8 (1998). The difficulty of determining the precise relevance of Philadelphia’s experience illustrates why appellate courts defer to the trier of fact. The three-judge court had the opportunity to hear testimony on population reduction measures in other jurisdictions and to ask relevant questions of informed expert witnesses. 40 BROWN v. PLATA Opinion of the Court of a reduction in overcrowding. Juris. |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | Opinion of the Court of a reduction in overcrowding. Juris. App. 248a. The court found that various available methods of re ducing overcrowding would have little or no impact on public safety. Expansion of good-time credits would allow the State to give early release to only those prisoners who pose the least risk of reoffending. Diverting low-risk offenders to community programs such as drug treatment, day reporting centers, and electronic monitoring would likewise lower the prison population without releasing violent convicts.12 The State now sends large numbers of persons to prison for violating a technical term or condi tion of their parole, and it could reduce the prison popula tion by punishing technical parole violations through community-based programs. This last measure would be particularly beneficial as it would reduce crowding in the reception centers, which are especially hard hit by over crowding. See at 23–24. The court’s order took account of public safety concerns by giving the State sub stantial flexibility to select among these and other means of reducing overcrowding. The State submitted a plan to reduce its prison popula tion in accordance with the three-judge court’s order, and it complains that the three-judge court approved that plan without considering whether the specific measures contained within it would substantially threaten public safety. The three-judge court, however, left the choice of how best to comply with its population limit to state —————— 12 Expanding such community-based measures may require an ex penditure of resources by the State to fund new programs or expand existing ones. The State complains that the order therefore requires it to “divert” savings that will be achieved by reducing the prison popula tion and that setting budgetary priorities in this manner is a “severe, unlawful intrusion on the State authority.” Brief for Appellants 55. This argument is not convincing. The order does not require the State to use any particular approach to reduce its prison population or allocate its resources. Cite as: 563 U. S. (2011) 41 Opinion of the Court prison officials. The court was not required to second guess the exercise of that discre Courts should pre sume that state officials are in a better position to gauge how best to preserve public safety and balance competing correctional and law enforcement concerns. The decision to leave details of implementation to the State’s discretion protected public safety by leaving sensitive policy deci sions to responsible and competent state officials. During the pendency of this appeal, the State in fact began to implement measures to reduce the prison popula See Supp. Brief for Appellants 1. These |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | the prison popula See Supp. Brief for Appellants 1. These measures will shift “thousands” of prisoners from the state prisons to the county jails by “mak[ing] certain felonies punishable by imprisonment in county jail” and “requir[ing] that individuals returned to custody for violating their condi tions of parole ‘serve any custody term in county jail.’ ” These developments support the three-judge court’s conclusion that the prison population can be reduced in a manner calculated to avoid an undue negative effect on public safety. III Establishing the population at which the State could begin to provide constitutionally adequate medical and mental health care, and the appropriate time frame within which to achieve the necessary reduction, requires a de gree of judgment. The inquiry involves uncertain predic tions regarding the effects of population reductions, as well as difficult determinations regarding the capacity of prison officials to provide adequate care at various popu lation levels. Courts have substantial flexibility when making these judgments. “ ‘Once invoked, “the scope of a district court’s equitable powers is broad, for breadth and flexibility are inherent in equitable remedies.” ’ ” n. 9 in turn quoting Swann v. 42 ). Nevertheless, the PLRA requires a court to adopt a remedy that is “narrowly tailored” to the constitutional violation and that gives “substantial weight” to public safety. U.S. C. When a court is imposing a population limit, this means the court must set the limit at the highest population consistent with an efficacious remedy. The court must order the population reduc tion achieved in the shortest period of time reasonably consistent with public safety. A The three-judge court concluded that the population of California’s prisons should be capped at 137.5% of design capacity. This conclusion is supported by the record. Indeed, some evidence supported a limit as low as % of design capacity. The chief deputy secretary of Correc tional Healthcare Services for the California prisons tes tified that California’s prisons “ ‘were not designed and made no provision for any expansion of medical care space beyond the initial % of capacity.’ ” Juris. App. 176a. Other evidence supported a limit as low as 130%. The head of the State’s Facilities Strike Team recommended reducing the population to 130% of design capacity as a long-term goal. at 179a–0a. A former head of cor rectional systems in Washington State, Maine, and Penn sylvania testified that a 130% limit would “ ‘give prison officials and staff the ability to provide the necessary programs and services for California’s prisoners.’ ” at 0a. A former executive director of the Texas prisons testified |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | 0a. A former executive director of the Texas prisons testified that a limit of 130% was “ ‘realistic and appro priate’ ” and would “ ‘ensure that [California’s] prisons are safe and provide legally required services.’ ” And a former acting secretary of the California prisons agreed with a 130% limit with the caveat that a 130% limit might prove inadequate in some older facilities. Cite as: 563 U. S. (2011) 43 Opinion of the Court According to the State, this testimony expressed the witnesses’ policy preferences, rather than their views as to what would cure the constitutional viola Of course, courts must not confuse professional standards with con stitutional requirements. Rhodes v. 452 U.S. 337, 8, n. 13 (1981). But expert opinion may be relevant when determining what is obtainable and what is accept able in corrections philosophy. See at 37–38. Nothing in the record indicates that the experts in this case imposed their own policy views or lost sight of the underlying violations. To the contrary, the witnesses testified that a 130% population limit would allow the State to remedy the constitutionally inadequate provision of medical and mental health care. When expert opinion is addressed to the question of how to remedy the relevant constitutional violations, as it was here, federal judges can give it considerable weight. The Federal Bureau of Prisons (BOP) has set 130% as a long-term goal for population levels in the federal prison system. Brief for Appellants 43–44. The State suggests the expert witnesses impermissibly adopted this profes sional standard in their testimony. But courts are not required to disregard expert opinion solely because it adopts or accords with professional standards. Profes sional standards may be “helpful and relevant with re spect to some questions.” at 8, n. 13. The witnesses testified that a limit of 130% was necessary to remedy the constitutional violations, not that it should be adopted because it is a BOP standard. If anything, the fact that the BOP views 130% as a manageable population density bolsters the three-judge court’s conclusion that a population limit of 130% would alleviate the pressures associated with overcrowding and allow the State to begin to provide constitutionally adequate care. Although the three-judge court concluded that the “evi dence in support of a 130% limit is strong,” it found that 44 BROWN v. PLATA Opinion of the Court some upward adjustment was warranted in light of “the caution and restraint required by the PLRA.” Juris. App. 3a, 4a. The three-judge court noted evidence support ing a higher limit. In particular, the State’s Corrections Independent Review |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | a higher limit. In particular, the State’s Corrections Independent Review Panel had found that 145% was the maximum “operable capacity” of California’s prisons, at 1a–2a, although the relevance of that determina tion was undermined by the fact that the panel had not considered the need to provide constitutionally adequate medical and mental health care, as the State itself con cedes. Brief for Coleman Appellees 45. After considering, but discounting, this evidence, the three-judge court con cluded that the evidence supported a limit lower than 145%, but higher than 130%. It therefore imposed a limit of 137.5%. This weighing of the evidence was not clearly erroneous. The adversary system afforded the court an opportunity to weigh and evaluate evidence presented by the parties. The plaintiffs’ evidentiary showing was intended to justify a limit of 130%, and the State made no attempt to show that any other number would allow for a remedy. There are no scientific tools available to determine the precise population reduction necessary to remedy a consti tutional violation of this sort. The three-judge court made the most precise determination it could in light of the record before it. The PLRA’s narrow tailoring require ment is satisfied so long as these equitable, remedial judgments are made with the objective of releasing the fewest possible prisoners consistent with an efficacious remedy. In light of substantial evidence supporting an even more drastic remedy, the three-judge court complied with the requirement of the PLRA in this case. B The three-judge court ordered the State to achieve this reduction within two years. At trial and closing argument Cite as: 563 U. S. (2011) 45 Opinion of the Court before the three-judge court, the State did not argue that reductions should occur over a longer period of time. The State later submitted a plan for court approval that would achieve the required reduction within five years, and that would reduce the prison population to 1% of design capacity in two years. The State represented that this plan would “safely reach a population level of 137.5% over time.” App. to Juris. Statement 32a. The three-judge court rejected this plan because it did not comply with the deadline set by its order. The State first had notice that it would be required to reduce its prison population in February 2009, when the three-judge court gave notice of its tentative ruling after trial. The 2-year deadline, however, will not begin to run until this Court issues its judgment. When that happens, the State will have already had over two years to begin complying with the order of |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | over two years to begin complying with the order of the three-judge court. The State has used the time productively. At oral argument, the State indicated it had reduced its prison population by approximately 9,000 persons since the decision of the three-judge court. After oral argument, the State filed a supplemental brief indicating that it had begun to imple ment measures to shift “thousands” of additional prisoners to county facilities. Supp. Brief for Appellants at 1. Particularly in light of the State’s failure to contest the issue at trial, the three-judge court did not err when it established a 2-year deadline for relief. Plaintiffs pro posed a 2-year deadline, and the evidence at trial was intended to demonstrate the feasibility of a 2-year dead line. See Tr. 2979. Notably, the State has not asked this Court to extend the 2-year deadline at this time. The three-judge court, however, retains the authority, and the responsibility, to make further amendments to the existing order or any modified decree it may enter as warranted by the exercise of its sound discre “The power of a court of equity to modify a decree of injunctive 46 BROWN v. PLATA Opinion of the Court relief is long-established, broad, and flexible.” New York State Assn. for Retarded Children, Inc. v. Carey, 706 F.2d 956, 967 (CA2 1983) (Friendly, J.). A court that invokes equity’s power to remedy a constitutional violation by an injunction mandating systemic changes to an institution has the continuing duty and responsibility to assess the efficacy and consequences of its order. at 969–971. Experience may teach the necessity for modification or amendment of an earlier decree. To that end, the three judge court must remain open to a showing or demonstra tion by either party that the injunction should be altered to ensure that the rights and interests of the parties are given all due and necessary protec Proper respect for the State and for its governmental processes require that the three-judge court exercise its jurisdiction to accord the State considerable latitude to find mechanisms and make plans to correct the violations in a prompt and effective way consistent with public safety. In order to “give substantial weight to any adverse impact on public safety,” U.S. C. the three-judge court must give due deference to informed opinions as to what public safety requires, including the considered determinations of state officials regarding the time in which a reduction in the prison population can be achieved consistent with public safety. An extension of time may allow the State to consider changing political, economic, and other |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | allow the State to consider changing political, economic, and other circumstances and to take advantage of opportunities for more effective remedies that arise as the Special Master, the Receiver, the prison system, and the three-judge court itself evaluate the progress being made to correct unconstitutional conditions. At the same time, both the three-judge court and state officials must bear in mind the need for a timely and efficacious remedy for the ongoing violation of prisoners’ constitutional rights. The State may wish to move for modification of the three-judge court’s order to extend the deadline for the Cite as: 563 U. S. (2011) 47 Opinion of the Court required reduction to five years from the entry of the judgment of this Court, the deadline proposed in the State’s first population reduction plan. The three-judge court may grant such a request provided that the State satisfies necessary and appropriate preconditions designed to ensure that measures are taken to implement the plan without undue delay. Appropriate preconditions may include a requirement that the State demonstrate that it has the authority and the resources necessary to achieve the required reduction within a 5-year period and to meet reasonable interim directives for population reduc The three-judge court may condition an extension of time on the State’s ability to meet interim benchmarks for improvement in provision of medical and mental health care. The three-judge court, in its discretion, may con sider whether it is appropriate to order the State to begin without delay to develop a system to identify prisoners who are unlikely to reoffend or who might otherwise be candidates for early release. Even with an extension of time to construct new facilities and implement other reforms, it may become necessary to release prisoners to comply with the court’s order. To do so safely, the State should devise systems to select those prisoners least likely to jeopardize public safety. An extension of time may provide the State a greater opportunity to refine and elab orate those systems. The State has already made significant progress toward reducing its prison population, including reforms that will result in shifting “thousands” of prisoners to county jails. See Supp. Brief for Appellants at 1. As the State makes further progress, the three-judge court should evaluate whether its order remains appropriate. If significant progress is made toward remedying the underlying consti tutional violations, that progress may demonstrate that further population reductions are not necessary or are less 48 BROWN v. PLATA Opinion of the Court urgent than previously believed. Were the State to make this showing, the three-judge court in the |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | State to make this showing, the three-judge court in the exercise of its discretion could consider whether it is appropriate to ex tend or modify this timeline. Experience with the three-judge court’s order may lead the State to suggest other modifications. The three judge court should give any such requests serious consid era The three-judge court should formulate its orders to allow the State and its officials the authority necessary to address contingencies that may arise during the remedial process. These observations reflect the fact that the three-judge court’s order, like all continuing equitable decrees, must remain open to appropriate modifica They are not intended to cast doubt on the validity of the basic premise of the existing order. The medical and mental health care provided by California’s prisons falls below the standard of decency that inheres in the Eighth Amendment. This extensive and ongoing constitutional violation requires a remedy, and a remedy will not be achieved without a reduction in overcrowding. The relief ordered by the three-judge court is required by the Constitution and was authorized by Congress in the PLRA. The State shall implement the order without further delay. The judgment of the three-judge court is affirmed. It is so ordered. Cite as: 563 U. S. (2011) 49 Opinion of the Court APPENDIXES A U.S. C. “(a) REQUIREMENTS FOR RELIEF. “(1) PROSPECTIVE RELIEF.—(A) Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. “(3) PRISONER RELEASE ORDER.—(A) In any civil action with respect to prison conditions, no court shall enter a prisoner release order unless— “(i) a court has previously entered an order for less intrusive relief that has failed to remedy the deprivation of the Federal right sought to be remedied through the prisoner release order; and “(ii) the defendant has had a reasonable amount of time to comply with the previous court orders. “(B) In any civil action in Federal court with respect to prison conditions, a prisoner release order shall be entered only by a three-judge court in accordance with section |
Justice Kennedy | 2,011 | 4 | majority | Brown v. Plata | https://www.courtlistener.com/opinion/217161/brown-v-plata/ | entered only by a three-judge court in accordance with section 2284 of title 28, if the requirements of subparagraph (E) have been met. “(C) A party seeking a prisoner release order in Federal court shall file with any request for such relief, a request 50 BROWN v. PLATA Opinion of the Court for a three-judge court and materials sufficient to demon strate that the requirements of subparagraph (A) have been met. “(D) If the requirements under subparagraph (A) have been met, a Federal judge before whom a civil action with respect to prison conditions is pending who believes that a prison release order should be considered may sua sponte request the convening of a three-judge court to determine whether a prisoner release order should be entered. “(E) The three-judge court shall enter a prisoner release order only if the court finds by clear and convincing evi dence that— “(i) crowding is the primary cause of the violation of a Federal right; and “(ii) no other relief will remedy the violation of the Fed eral right. “(F) Any State or local official including a legislator or unit of government whose jurisdiction or function includes the appropriation of funds for the construction, operation, or maintenance of prison facilities, or the prosecution or custody of persons who may be released from, or not ad mitted to, a prison as a result of a prisoner release order shall have standing to oppose the imposition or continua tion in effect of such relief and to seek termination of such relief, and shall have the right to intervene in any pro ceeding relating to such relief. (g) DEFINITIONS.—As used in this section “(4) the term “prisoner release order” includes any order, including a temporary restraining order or preliminary injunctive relief, that has the purpose or effect of reducing or limiting the prison population, or that directs the re lease from or nonadmission of prisoners to a prison” Cite as: 563 U. S. (2011) 51 Opinion of the Court B Mule Creek State Prison Aug. 1, 2008 California Institution for Men Aug. 7, 2006 52 BROWN v. PLATA Opinion of the Court C Salinas Valley State Prison July 29, 2008 Correctional Treatment Center (dry cages/holding cells for people wait ing for mental health crisis bed) Cite as: 563 U. S. (2011) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES No. 09–1 EDMUND G. BROWN, JR., GOVERNOR OF CAL- IFORNIA, ET AL., APPELLANTS v. MARCIANO PLATA ET AL. |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | The Court today holds that a plaintiff whose suit prompts the precise relief she seeks does not "prevail," and hence cannot obtain an award of attorney's fees, unless she also secures a court entry memorializing her victory. The entry need not be a judgment on the merits. Nor need there be any finding of wrongdoing. A court-approved settlement will do. The Court's insistence that there be a document filed in courta litigated judgment or court-endorsed settlement upsets long-prevailing Circuit precedent applicable to scores of federal fee-shifting statutes. The decision allows a defendant to escape a statutory obligation to pay a plaintiff's counsel fees, even though the suit's merit led the defendant to abandon the fray, to switch rather than fight on, to accord plaintiff sooner rather than later the principal redress sought in the complaint. Concomitantly, the Court's constricted *623 definition of "prevailing party," and consequent rejection of the "catalyst theory," impede access to court for the less well heeled, and shrink the incentive Congress created for the enforcement of federal law by private attorneys general. In my view, the "catalyst rule," as applied by the clear majority of Federal Circuits, is a key component of the feeshifting statutes Congress adopted to advance enforcement of civil rights. Nothing in history, precedent, or plain English warrants the anemic construction of the term "prevailing party" the Court today imposes. I Petitioner Buckhannon Board and Care Home, Inc. (Buckhannon), operates residential care homes for elderly persons who need assisted living, but not nursing services. Among Buckhannon's residents in October 1996 was 102-year-old Dorsey Pierce. Pierce had resided at Buckhannon for some four years. Her daughter lived nearby, and the care provided at Buckhannon met Pierce's needs. Until 1998, West Virginia had a "self-preservation" rule prohibiting homes like Buckhannon from accommodating persons unable to exit the premises without assistance in the event of a fire. Pierce and two other Buckhannon residents could not get to a fire exit without aid. Informed of these residents' limitations, West Virginia officials proceeded against Buckhannon for noncompliance with the self-preservation rule. On October 18, 1996, three orders issued, each commanding Buckhannon to "cease operating and to effect relocation of [its] existing population within thirty (30) days." App. 46-53. Ten days later, Buckhannon and Pierce, together with an organization of residential homes and another Buckhannon resident (hereinafter plaintiffs), commenced litigation in Federal District Court to overturn the cease-and-desist orders and the self-preservation rule on which they rested. They sued the State, state agencies, and 18 officials (hereinafter defendants) alleging that the rule discriminated *624 against persons with disabilities in |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | that the rule discriminated *624 against persons with disabilities in violation of the Fair Housing Amendments Act of 1988 (FHAA), U.S. C. 3601 et seq., and the Americans with Disabilities Act of (ADA), U.S. C. 12101 et seq. Plaintiffs sought an immediate order stopping defendants from closing Buckhannon's facilities, injunctive relief permanently barring enforcement of the self-preservation requirement, damages, and attorney's fees. On November 1, 1996, at a hearing on plaintiffs' request for a temporary restraining order, defendants agreed to the entry of an interim order allowing Buckhannon to remain open without changing the individual plaintiffs' housing and care. Discovery followed. On January 2, 1998, facing the state defendants' sovereign immunity pleas, plaintiffs stipulated to dismissal of their demands for damages. In February 1998, in response to defendants' motion to dispose of the remainder of the case summarily, the District Court determined that plaintiffs had presented triable claims under the FHAA and ADA. Less than a month after the District Court found that plaintiffs were entitled to a trial, the West Virginia Legislature repealed the self-preservation rule. Plaintiffs still allege, and seek to prove, that their suit triggered the statutory repeal. After the rule's demise, defendants moved to dismiss the case as moot, and plaintiffs sought attorney's fees as "prevailing parties" under the FHAA, U.S. C. 3613(c)(2), and the ADA, U.S. C. 12205.[1] *625 Finding no likelihood that West Virginia would reenact the self-preservation rule, the District Court agreed that the State's action had rendered the case moot. Turning to plaintiffs' application for attorney's fees, the District Court followed Fourth Circuit precedent requiring the denial of fees unless termination of the action was accompanied by a judgment, consent decree, or settlement.[2] Plaintiffs did not appeal the mootness determination, and the Fourth Circuit affirmed the denial of attorney's fees. In sum, plaintiffs were denied fees not because they failed to achieve the relief they sought. On the contrary, they gained the very change they sought through their lawsuit when West Virginia repealed the self-preservation rule that would have stopped Buckhannon from caring for people like Dorsey Pierce.[3] Prior to every Federal Court of Appeals (except the Federal Circuit, which had not addressed the issue) concluded that plaintiffs in situations like Buckhannon's and *626 Pierce's could obtain a fee award if their suit acted as a "catalyst" for the change they sought, even if they did not obtain a judgment or consent decree.[4] The Courts of Appeals found it "clear that a party may be considered to have prevailed even when the legal action stops short of final judgment due to intervening |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | legal action stops short of final judgment due to intervening mootness." Interpreting the term "prevailing party" in "a practical sense," federal courts across the country held that a party "prevails" for fee-shifting purposes when "its ends are accomplished as a result of the litigation," Associated Builders & In the Fourth Circuit en banc, dividing 6-to-5, broke ranks with its sister courts. The court declared that, in light of a plaintiff could *627 not become a "prevailing party" without "an enforceable judgment, consent decree, or settlement." S-1 and As the Court today acknowledges, see ante, at 603, n. 5, and as we have previously observed, the language on which the Fourth Circuit relied was dictum: Farrar "involved no catalytic effect"; the issue plainly "was not presented for this Court's decision in Farrar. " Friends of Earth, After the Fourth Circuit's en banc ruling, nine Courts of Appeals reaffirmed their own consistently held interpretation of the term "prevail."[5] On this predominant view, "[s]ecuring an enforceable decree or agreement may evidence prevailing party status, but the judgment or agreement simply embodies and enforces what is sought in bringing the lawsuit Victory can be achieved well short of a final judgment (or its equivalent) " The array of federal-court decisions applying the catalyst rule suggested three conditions necessary to a party's qualification as "prevailing" short of a favorable final judgment or consent decree. A plaintiff first had to show that the defendant provided "some of the benefit sought" by the lawsuit. Under most Circuits' precedents, a plaintiff had to demonstrate as well that the suit stated a genuine claim, i. e., one that was at least "colorable," not "frivolous, unreasonable, or groundless." Grano, 783 F. 2d, 110 (internal *628 quotation marks and citation omitted). Plaintiff finally had to establish that her suit was a "substantial" or "significant" cause of defendant's action providing relief. 5 In some Circuits, to make this causation showing, plaintiff had to satisfy the trial court that the suit achieved results "by threat of victory," not "by dint of nuisance and threat of expense." 57 F. 3d, at -235; see also One who crossed these three thresholds would be recognized as a "prevailing party" to whom the district court, "in its discretion," at 624 625, n. 1, could award attorney's fees. Developed over decades and in legions of federal-court decisions, the catalyst rule and these implementing standards deserve this Court's respect and approbation. II A The Court today detects a "clear meaning" of the term prevailing party, ante, at 610, that has heretofore eluded the large majority of courts construing those |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | has heretofore eluded the large majority of courts construing those words. "Prevailing party," today's opinion announces, means "one who has been awarded some relief by the court," ante, at 603. The Court derives this "clear meaning" principally from Black's Law Dictionary, which defines a "prevailing party," in critical part, as one "in whose favor a judgment is rendered," One can entirely agree with Black's Law Dictionary that a party "in whose favor a judgment is rendered" prevails, and at the same time resist, as most Courts of Appeals have, any implication that only such a party may prevail. In prior cases, we have not treated Black's Law Dictionary as preclusively *629 definitive; instead, we have accorded statutory terms, including legal "term[s] of art," ante, at 603 (opinion of the Court); ante, at 616 (Scalia, J., concurring), a contextual reading. See, e. g., Investment Services ; United (adopting "natural, nontechnical" definition of word "jurisdiction," as that term is used in 18 U.S. C. 1001, and declining to confine definition to "narrower, more technical meanings," citing Black's). Notably, this Court did not refer to Black's Law Dictionary in which held that a consent decree could qualify a plaintiff as "prevailing." The Court explained: "The fact that [plaintiff] prevailed through a settlement rather than through litigation does not weaken her claim to fees. Nothing in the language of [ U.S. C.] 1988 conditions the District Court's power to award fees on full litigation of the issues or on a judicial determination that the plaintiff's rights have been violated." The spare "prevailing party" language of the fee-shifting provision applicable in Maher, and the similar wording of the fee-shifting provisions now before the Court, contrast with prescriptions that so tightly bind fees to judgments as to exclude the application of a catalyst concept. The Prison Litigation Reform Act of for example, directs that fee awards to prisoners under 1988 be "proportionately related to the court ordered relief for the violation." -72, as amended, U.S. C. 1997e(d)(1)(B)(i) ( ed., Supp. V) (emphasis added). That statute, by its express terms, forecloses an award to a prisoner on a catalyst theory. But the FHAA and ADA fee-shifting prescriptions, modeled *630 on U.S. C. 1988 unmodified, see do not similarly staple fee awards to "court ordered relief." Their very terms do not foreclose a catalyst theory. B It is altogether true, as the concurring opinion points out, ante, at 610-611, that litigation costs other than attorney's fees traditionally have been allowed to the "prevailing party," and that a judgment winner ordinarily fits that description. It is not true, however, |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | winner ordinarily fits that description. It is not true, however, that precedent on costs calls for the judgment requirement the Court ironly adopts today for attorney's fees. Indeed, the first decision cited in the concurring opinion, C. & L. M. R. see ante, at 611, tugs against the restrictive rule today's decision installs. In plaintiffs commenced a contract action in state court. Over plaintiffs' objections, defendants successfully removed the suit to federal court. Plaintiffs prevailed on the merits there, and defendants obtained review here. See -381. This Court determined, on its own motion, that federal subject-matter jurisdiction was absent from the start. Based on that determination, the Court reversed the lower court's judgment for plaintiffs. Worse than entering and leaving this Courthouse equally "emptyhanded," ante, at 614 (concurring opinion), the plaintiffs in were stripped of the judgment they had won, including the "judicial finding of the merits" in their favor, ante, at 613 (concurring opinion). The plaintiffs did, however, achieve this small consolation: The Court awarded them costs here as well as below. Recognizing that defendants had "prevail[ed]" in a "formal and nominal sense," the Court nonetheless concluded that "[i]n a true and proper sense" defendants were "the losing and not the prevailing party." While casts doubt on the present majority's "formal and nominal" approach, that decision does not consider *631 whether costs would be in order for the plaintiff who obtains substantial relief, but no final judgment. Nor does "a single case " on which the concurring opinion today relies, ante, at 613 (emphasis in original).[6] There are, however, enlightening analogies. In multiple instances, state high courts have regarded plaintiffs as prevailing, for costs taxation purposes, when defendants' voluntary conduct, mooting the suit, provided the relief that plaintiffs sought.[7] The concurring *632 opinion labors unconvincingly to distinguish these state-law cases.[8] A similar federal practice has been observed in cases governed by Federal Rule of Civil Procedure 54(d), the default rule allowing costs "to the prevailing party unless the court otherwise directs." See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 2667, pp. -188 (2d ed. 1983) (When "the defendant alters its conduct so that plaintiff's claim [for injunctive relief] becomes moot before judgment is reached, costs may be allowed [under Rule 54(d)] if the court finds that the changes *633 were the result, at least in part, of plaintiff's litigation.") ). In short, there is substantial support, both old and new, federal and state, for a costs award, "in [the court's] discretion," to the plaintiff whose suit prompts the defendant to provide the relief plaintiff |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | whose suit prompts the defendant to provide the relief plaintiff seeks. C Recognizing that no practice set in stone, statute, rule, or precedent, see infra, at 643, dictates the proper construction of modern civil rights fee-shifting prescriptions, I would "assume that Congress intends the words in its enactments to carry `their ordinary, contemporary, common meaning.' " ); see also, e. g., ; 7 U.S. 292, In everyday use, "prevail" means "gain victory by virtue of strength or superiority: win mastery: triumph." Webster's Third New International Dictionary 1797 (1976). There are undoubtedly situations in which an individual's goal is to obtain approval of a judge, and in those situations, one cannot "prevail" short of a judge's formal declaration. In a piano competition or a figure skating contest, for example, the person who prevails is the person declared winner by the judges. However, where the ultimate goal is not an arbiter's approval, but a favorable alteration of actual circumstances, a formal declaration is not essential. Western democracies, for instance, "prevailed" in the Cold War even though the Soviet Union never formally surrendered. Among television viewers, John F. Kennedy "prevailed" in the first debate with Richard M. Nixon during the 1960 Presidential contest, even though moderator Howard K. Smith *634 never declared a winner. See T. White, The Making of the President 1960, pp. -294 (1961). A lawsuit's ultimate purpose is to achieve actual relief from an opponent. Favorable judgment may be instrumental in gaining that relief. Generally, however, "the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant" On this common understanding, if a party reaches the "sought-after destination," then the party "prevails" regardless of the "route taken." Under a fair reading of the FHAA and ADA provisions in point, I would hold that a party "prevails" in "a true and proper sense," when she achieves, by instituting litigation, the practical relief sought in her complaint. The Court misreads Congress, as I see it, by insisting that, invariably, relief must be displayed in a judgment, and correspondingly that a defendant's voluntary action never suffices. In this case, Buckhannon's purpose in suing West Virginia officials was not narrowly to obtain a judge's approbation. The plaintiffs' objective was to stop enforcement of a rule requiring Buckhannon to evict residents like centenarian Dorsey Pierce as the price of remaining in business. If Buckhannon achieved that objective on account of the strength of its case, see if it succeeded in keeping its doors open while housing |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | if it succeeded in keeping its doors open while housing and caring for Ms. Pierce and others similarly situatedthen Buckhannon is properly judged a party who prevailed. III As the Courts of Appeals have long recognized, the catalyst rule suitably advances Congress' endeavor to place private actions, in civil rights and other legislatively defined areas, securely within the federal law enforcement arsenal. *635 The catalyst rule stemmed from modern legislation extending civil rights protections and enforcement measures. The Civil Rights Act of 1964 included provisions for fee awards to "prevailing parties" in Title II (public accommodations), U.S. C. 2000a3(b), and Title VII (employment), 2000e5(k), but not in Title VI (federal programs). The provisions' central purpose was"to promote vigorous enforcement" of the laws by private plaintiffs; although using the two-way term "prevailing party," Congress did not make fees available to plaintiffs and defendants on equal terms. Christiansburg Garment 417, 1 Once the 1964 Act came into force, courts commenced to award fees regularly under the statutory authorizations, and sometimes without such authorization. See Alyeska Pipeline Service 1 U.S. In Alyeska, this Court reaffirmed the "American Rule" that a court generally may not award attorney's fees without a legislative instruction to do so. See To provide the authorization Alyeska required for fee awards under Title VI of the 1964 Civil Rights Act, as well as under Reconstruction Era civil rights legislation, U.S. C. -1983, ( ed. and Supp. V), and certain other enactments, Congress passed the Civil Rights Attorney's Fees Awards Act of 1976, U.S. C. 1988 ( ed. and Supp. V). As explained in the Reports supporting 1988, civil rights statutes vindicate public policies "of the highest priority," S. Rep. No. 94-1011, p. 3 (1976) ), yet "depend heavily upon private enforcement," S. Rep. No. 94-1011, Persons who bring meritorious civil rights claims, in this light, serve as "private attorneys *636 general." ; H. R. Rep. No. 94-1558, p. 2 (1976). Such suitors, Congress recognized, often "cannot afford legal counsel." They therefore experience "severe hardshi[p]" under the "American Rule." Congress enacted 1988 to ensure that nonaffluent plaintiffs would have "effective access" to the Nation's courts to enforce civil rights laws.[9] That objective accounts for the fee-shifting provisions before the Court in this case, prescriptions of the FHAA and the ADA modeled on 1988. See Under the catalyst rule that held sway until today, plaintiffs who obtained the relief they sought through suit on genuine claims ordinarily qualified as "prevailing parties," so that courts had discretion to award them their costs and fees. Persons with limited resources were not impelled to "wage |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | fees. Persons with limited resources were not impelled to "wage total law" in order to assure that their counsel fees would be paid. They could accept relief, in money or of another kind, voluntarily proffered by a defendant who sought to avoid a recorded decree. And they could rely on a judge then to determine, in her equitable discretion, whether counsel fees were warranted and, if so, in what amount.[10] *637 Congress appears to have envisioned that very prospect. The Senate Report on the 1976 Civil Rights Attorney's Fees Awards Act states: "[F]or purposes of the award of counsel fees, parties may be considered to have prevailed when they vindicate rights through a consent judgment or without formally obtaining relief. " S. Rep. No. 94-1011, (emphasis added). In support, the Report cites cases in which parties recovered fees in the absence of any court-conferred relief.[11]*638 The House Report corroborates: "[A]fter a complaint is filed, a defendant might voluntarily cease the unlawful practice. A court should still award fees even though it might conclude, as a matter of equity, that no formal relief, such as an injunction, is needed." H. R. Rep. No. 94-1558, at 7 (emphases added). These Reports, Courts of Appeals have observed, are hardly ambiguous. Compare ante, at 607-608 ("legislative history is at best ambiguous"), with, e. g., ; ; American Constitutional Congress, I am convinced, understood that "`[v]ictory' in a civil rights suit is typically a practical, rather than a strictly legal matter." Exeter-West Greenwich Regional School IV The Court identifies several "policy arguments" that might warrant rejection of the catalyst rule. See ante, at 608-610. A defendant might refrain from altering its conduct, fearing liability for fees as the price of voluntary action. See ante, at 608. Moreover, rejection of the catalyst rule has limited impact: Desisting from the challenged conduct will not render a case moot where damages are sought, and even when the plaintiff seeks only equitable relief, a defendant's voluntary cessation of a challenged practice does not render the case moot "unless it is `absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.' " Ante, at 609 (quoting Friends of Earth, Inc., 528 *639 U. S., 89). Because a mootness dismissal is not easily achieved, the defendant may be impelled to settle, negotiating fees less generous than a court might award. See ante, at 609. Finally, a catalyst rule would "require analysis of the defendant's subjective motivations," and thus protract the litigation. The Court declines to look beneath the surface of these arguments, placing its reliance, instead, on |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | the surface of these arguments, placing its reliance, instead, on a meaning of "prevailing party" that other jurists would scarcely recognize as plain. See ante, at 603. Had the Court inspected the "policy arguments" listed in its opinion, I doubt it would have found them impressive. In opposition to the argument that defendants will resist change in order to stave off an award of fees, one could urge that the catalyst rule may lead defendants promptly to comply with the law's requirements: the longer the litigation, the larger the fees. Indeed, one who knows noncompliance will be expensive might be encouraged to conform his conduct to the legal requirements before litigation is threatened. Cf. Hylton, Fee Shifting and Incentives to Comply with the Law, No doubt, a mootness dismissal is unlikely when recurrence of the controversy is under the defendant's control. But, as earlier observed, see why should this Court's feeshifting rulings drive a plaintiff prepared to accept adequate relief, though out-of-court and unrecorded, to litigate on and on? And if the catalyst rule leads defendants to negotiate not only settlement terms but also allied counsel fees, is that not a consummation to applaud, not deplore? As to the burden on the court, is it not the norm for the judge to whom the case has been assigned to resolve fee disputes (deciding whether an award is in order, and if it is, the amount due), thereby clearing the case from the calendar? If factfinding becomes necessary under the catalyst *640 rule, is it not the sort that "the district courts, in their factfinding expertise, deal with on a regular basis"? Might not one conclude overall, as Courts of Appeals have suggested, that the catalyst rule "saves judicial resources," by encouraging "plaintiffs to discontinue litigation after receiving through the defendant's acquiescence the remedy initially sought"? F.3d 1203, The concurring opinion adds another argument against the catalyst rule: That opinion sees the rule as accommodating the "extortionist" who obtains relief because of "greater strength in financial resources, or superiority in media manipulation, rather than superiority in legal merit. " Ante, at 617, 618 (emphasis in original). This concern overlooks both the character of the rule and the judicial superintendence Congress ordered for all fee allowances. The catalyst rule was auxiliary to fee-shifting statutes whose primary purpose is "to promote the vigorous enforcement" of the civil rights laws. Christiansburg Garment Co., 434 U. S., To that end, courts deemed the conduct-altering catalyst that counted to be the substance of the case, not merely the plaintiff's atypically superior financial resources, media ties, or |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | merely the plaintiff's atypically superior financial resources, media ties, or political clout. See And Congress assigned responsibility for awarding fees not to automatons unable to recognize extortionists, but to judges expected and instructed to exercise "discretion." See So viewed, the catalyst rule provided no berth for nuisance suits, see 37 F. 3d, 92, or "thinly disguised forms of extortion,"[12] *641 V As to our attorney's fee precedents, the Court correctly observes, "[w]e have never had occasion to decide whether the term `prevailing party' allows an award of fees under the `catalyst theory,' " and "there is language in our cases supporting both petitioners and respondents." Ante, at 603, n. 5. It bears emphasis, however, that in determining whether fee shifting is in order, the Court in the past has placed greatest weight not on any "judicial imprimatur, " ante, at 605, but on the practical impact of the lawsuit.[13] In in which the Court held fees could be awarded on the basis of a consent decree, the opinion nowhere relied on the presence of a formal judgment. See ; infra, at 6-643, n. 14. Some years *6 later, in the Court suggested that fees might be awarded the plaintiff who "obtain[ed] relief without [the] benefit of a formal judgment." The Court explained: "If the defendant, under the pressure of the lawsuit, pays over a money claim before the judicial judgment is pronounced," or "if the defendant, under pressure of [a suit for declaratory judgment], alters his conduct (or threatened conduct) towards the plaintiff," i. e., conduct "that was the basis for the suit, the plaintiff will have prevailed." at I agree, and would apply that analysis to this case. The Court posits a "`merit' requirement of our prior cases." Ante, at 606. Maher, however, affirmed an award of attorney's fees based on a consent decree that "did not purport to adjudicate [plaintiff's] statutory or constitutional claims." 448 U.S., 26, n. 8. The decree in Maher "explicitly stated that `nothing [therein was] intended to constitute an admission of fault by either party.' " The catalyst rule, in short, conflicts with none of "our prior holdings, " ante, at 605.[14] *643 * * * The Court states that the term "prevailing party" in feeshifting statutes has an "accepted meaning." Ante, at 608. If that is so, the "accepted meaning" is not the one the Court today announces. It is, instead, the meaning accepted by every Court of Appeals to address the catalyst issue before our 1987 decision in Hewitt, see and disavowed since then only by the Fourth Circuit, see A plaintiff |
Justice Ginsburg | 2,001 | 5 | dissenting | Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources | https://www.courtlistener.com/opinion/118430/buckhannon-board-care-home-inc-v-west-virginia-dept-of-health-and/ | since then only by the Fourth Circuit, see A plaintiff prevails, federal judges have overwhelmingly agreed, when a litigated judgment, consent decree, out-of-court settlement, or the defendant's voluntary, postcomplaint payment or change in conduct in fact affords redress for the plaintiff's substantial grievances. When this Court rejects the considered judgment prevailing in the Circuits, respect for our colleagues demands a cogent *644 explanation. Today's decision does not provide one. The Court's narrow construction of the words "prevailing party" is unsupported by precedent and unaided by history or logic. Congress prescribed fee-shifting provisions like those included in the FHAA and ADA to encourage private enforcement of laws designed to advance civil rights. Fidelity to that purpose calls for court-awarded fees when a private party's lawsuit, whether or not its settlement is registered in court, vindicates rights Congress sought to secure. I would so hold and therefore dissent from the judgment and opinion of the Court. |
Justice Stewart | 1,978 | 18 | dissenting | Stump v. Sparkman | https://www.courtlistener.com/opinion/109820/stump-v-sparkman/ | It is established federal law that judges of general jurisdiction are absolutely immune from monetary liability "for their *365 judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly." It is also established that this immunity is in no way diminished in a proceeding under 42 U.S. C. 1983. But the scope of judicial immunity is limited to liability for "judicial acts," and I think that what Judge Stump did on July 9, 1971, was beyond the pale of anything that could sensibly be called a judicial act. Neither in nor in was there any claim that the conduct in question was not a judicial act, and the Court thus had no occasion in either case to discuss the meaning of that term.[1] Yet the proposition that judicial immunity extends only to liability for "judicial acts" was emphasized no less than seven times in Mr. Justice Field's opinion for the Court in the Bradley case.[2] Cf. And if the limitations inherent in that concept have any realistic meaning at all, then I cannot believe that the action of Judge Stump in approving Mrs. McFarlin's petition is protected by judicial immunity. The Court finds two reasons for holding that Judge Stump's approval of the sterilization petition was a judicial act. First, the Court says, it was "a function normally performed by a judge." Second, the Court says, the act was performed in Judge Stump's "judicial capacity." With all respect, I think that the first of these grounds is factually untrue and that the second is legally unsound. When the Court says that what Judge Stump did was an act "normally performed by a judge," it is not clear to me whether the Court means that a judge "normally" is asked to approve a mother's decision to have her child given surgical *366 treatment generally, or that a judge "normally" is asked to approve a mother's wish to have her daughter sterilized. But whichever way the Court's statement is to be taken, it is factually inaccurate. In Indiana, as elsewhere in our country, a parent is authorized to arrange for and consent to medical and surgical treatment of his minor child. Ind. Code 16-8-4-2 (1973). And when a parent decides to call a physician to care for his sick child or arranges to have a surgeon remove his child's tonsils, he does not, "normally" or otherwise, need to seek the approval of a judge.[3] On the other hand, Indiana did in 1971 have statutory procedures for the sterilization of certain |
Justice Stewart | 1,978 | 18 | dissenting | Stump v. Sparkman | https://www.courtlistener.com/opinion/109820/stump-v-sparkman/ | in 1971 have statutory procedures for the sterilization of certain people who were institutionalized. But these statutes provided for administrative proceedings before a board established by the superintendent of each public hospital. Only if, after notice and an evidentiary hearing, an order of sterilization was entered in these proceedings could there be review in a circuit court. See Ind. Code 16-13-13-1 through XX-XX-XX-X (1974).[4] *367 In sum, what Judge Stump did on July 9, 1971, was in no way an act "normally performed by a judge." Indeed, there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since. When the Court says that Judge Stump was acting in "his judicial capacity" in approving Mrs. McFarlin's petition, it is not clear to me whether the Court means that Mrs. McFarlin submitted the petition to him only because he was a judge, or that, in approving it, he said that he was acting as a judge. But however the Court's test is to be understood, it is, I think, demonstrably unsound. It can safely be assumed that the Court is correct in concluding that Mrs. McFarlin came to Judge Stump with her petition because he was a County Circuit Court Judge. But false illusions as to a judge's power can hardly convert a judge's response to those illusions into a judicial act. In short, a judge's approval of a mother's petition to lock her daughter in the attic would hardly be a judicial act simply because the mother had submitted her petition to the judge in his official capacity. If, on the other hand, the Court's test depends upon the fact that Judge Stump said he was acting in his judicial capacity, it is equally invalid. It is true that Judge Stump affixed his signature to the approval of the petition as "Judge, De Kalb Circuit Court." But the conduct of a judge surely does not become a judicial act merely on his own say-so. A judge is not free, like a loose cannon, to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity.[5] *368 If the standard adopted by the Court is invalid, then what is the proper measure of a judicial act? Contrary to implications in the Court's opinion, my conclusion that what Judge Stump did was not a judicial act is not based upon the fact that he acted with informality, or that he may not have been "in his judge's robes," or "in the courtroom itself." Ante, at 361. And I |
Justice Stewart | 1,978 | 18 | dissenting | Stump v. Sparkman | https://www.courtlistener.com/opinion/109820/stump-v-sparkman/ | or "in the courtroom itself." Ante, at 361. And I do not reach this conclusion simply "because the petition was not given a docket number, was not placed on file with the clerk's office, and was approved in an ex parte proceeding without notice to the minor, without a hearing, and without the appointment of a guardian ad litem." Ante, at 360. It seems to me, rather, that the concept of what is a judicial act must take its content from a consideration of the factors that support immunity from liability for the performance of such an act. Those factors were accurately summarized by the Court in : "[I]t `is for the benefit of the public, whose interest it is that the judges should be at liberty to exercise their functions with independence and without fear of consequences.'. It is a judge's duty to decide all cases within his jurisdiction that are brought before him, including controversial cases that arouse the most intense feelings in the litigants. His errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden on judges would contribute not to principled and fearless decision-making but to intimidation." Not one of the considerations thus summarized in the Pierson opinion was present here. There was no "case," controversial *369 or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decisionmaking. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act. The petitioners' brief speaks of "an aura of deism which surrounds the bench essential to the maintenance of respect for the judicial institution." Though the rhetoric may be overblown, I do not quarrel with it. But if aura there be, it is hardly protected by exonerating from liability such lawless conduct as took place here. And if intimidation would serve to deter its recurrence, that would surely be in the public interest.[6] MR. |
Justice Thomas | 1,993 | 1 | majority | Nobelman v. American Savings Bank | https://www.courtlistener.com/opinion/112871/nobelman-v-american-savings-bank/ | This case focuses on the interplay between two provisions of the Bankruptcy Code. The question is whether 1322(b)(2) prohibits a Chapter 13 debtor from relying on 506(a) to reduce an under secured homestead mortgage to *326 the fair market value of the mortgaged residence. We conclude that it does and therefore affirm the judgment of the Court of Appeals. I In 1984, respondent American Savings Bank loaned petitioners Leonard and Harriet Nobelman $68,250 for the purchase of their principal residence, a condominium in Dallas, Texas. In exchange, petitioners executed an adjustable rate note payable to the bank and secured by a deed of trust on the residence. In 1990, after falling behind in their mortgage payments, petitioners sought relief under Chapter 13 of the Bankruptcy Code. The bank filed a proof of claim with the Bankruptcy Court for $71,335 in principal, interest, and fees owed on the note. Petitioners' modified Chapter 13 plan valued the residence at a mere $23,500 an uncontroverted valuation and proposed to make payments pursuant to the mortgage contract only up to that amount (plus prepetition arrearages). Relying on 506(a) of the Bankruptcy Code,[1] petitioners proposed to treat the remainder of the bank's claim as unsecured. Under the plan, unsecured creditors would receive nothing. The bank and the Chapter 13 trustee, also a respondent here, objected to petitioners' plan. They argued that the proposed bifurcation of the bank's claim into a secured claim for $23,500 and an effectively worthless unsecured claim modified the bank's rights as a homestead mortgagee, in violation *327 of 11 U.S. C. 1322(b)(2). The Bankruptcy Court agreed with respondents and denied confirmation of the plan. The District Court affirmed, In re Nobelman, as did the Court of Appeals, We granted certiorari to resolve a conflict among the Courts of Appeals.[2] II Under Chapter 13 of the Bankruptcy Code, individual debtors may obtain adjustment of their indebtedness through a flexible repayment plan approved by a bankruptcy court. Section 1322 sets forth the elements of a confirmable Chapter 13 plan. The plan must provide, inter alia, for the submission of a portion of the debtor's future earnings and income to the control of a trustee and for supervised payments to creditors over a period not exceeding five years. See 11 U.S. C. 1322(a)(1) and 1322(c). Section 1322(b)(2), the provision at issue here, allows modification of the rights of both secured and unsecured creditors, subject to special protection for creditors whose claims are secured only by a lien on the debtor's home. It provides that the plan may "modify the rights of holders |
Justice Thomas | 1,993 | 1 | majority | Nobelman v. American Savings Bank | https://www.courtlistener.com/opinion/112871/nobelman-v-american-savings-bank/ | provides that the plan may "modify the rights of holders of secured claims, other than a claim secured only by a security interest in real property that is the debtor's principal residence, or of holders of unsecured claims, or leave unaffected the rights of holders of any class of claims." 11 U.S. C. 1322(b)(2) (emphasis added). The parties agree that the "other than" exception in 1322(b)(2) proscribes modification of the rights of a homestead mortgagee. Petitioners maintain, however, that their *328 Chapter 13 plan proposes no such modification. They argue that the protection of 1322(b)(2) applies only to the extent the mortgagee holds a "secured claim" in the debtor's residence and that we must look first to 506(a) to determine the value of the mortgagee's "secured claim." Section 506(a) provides that an allowed claim secured by a lien on the debtor's property "is a secured claim to the extent of the value of [the] property"; to the extent the claim exceeds the value of the property, it "is an unsecured claim."[3] Petitioners contend that the valuation provided for in 506(a) operates automatically to adjust downward the amount of a lender's under secured home mortgage before any disposition proposed in the debtor's Chapter 13 plan. Under this view, the bank is the holder of a "secured claim" only in the amount of $23,500 the value of the collateral property. Because the plan proposes to make $23,500 worth of payments pursuant to the monthly payment terms of the mortgage contract, petitioners argue, the plan effects no alteration of the bank's rights as the holder of that claim. Section 1322(b)(2), they assert, allows unconditional modification of the bank's leftover "unsecured claim." This interpretation fails to take adequate account of 1322(b)(2)'s focus on "rights." That provision does not state that a plan may modify "claims" or that the plan may not modify "a claim secured only by" a home mortgage. Rather, it focuses on the modification of the "rights of holders " of such claims. By virtue of its mortgage contract with petitioners, the bank is indisputably the holder of a claim secured by a lien on petitioners' home. Petitioners were correct in looking to 506(a) for a judicial valuation of the collateral to determine the status of the bank's secured claim. It was permissible for petitioners to seek a valuation in proposing their Chapter 13 plan, since 506(a) states that "[s]uch *329 value shall be determined in conjunction with any hearing on a plan affecting such creditor's interest." But even if we accept petitioners' valuation, the bank is still the "holder" of |
Justice Thomas | 1,993 | 1 | majority | Nobelman v. American Savings Bank | https://www.courtlistener.com/opinion/112871/nobelman-v-american-savings-bank/ | accept petitioners' valuation, the bank is still the "holder" of a "secured claim," because petitioners' home retains $23,500 of value as collateral. The portion of the bank's claim that exceeds $23,500 is an "unsecured claim componen[t]" under 506(a), United ; however, that determination does not necessarily mean that the "rights" the bank enjoys as a mortgagee, which are protected by 1322(b)(2), are limited by the valuation of its secured claim. The term "rights" is nowhere defined in the Bankruptcy Code. In the absence of a controlling federal rule, we generally assume that Congress has "left the determination of property rights in the assets of a bankrupt's estate to state law," since such "[p]roperty interests are created and defined by state law." See also Barnhill v.Johnson, Moreover, we have specifically recognized that "[t]he justifications for application of state law are not limited to ownership interests," but "apply with equal force to security interests, including the interest of a mortgagee." The bank's "rights," therefore, are reflected in the relevant mortgage instruments, which are enforceable under Texas law. They include the right to repayment of the principal in monthly installments over a fixed term at specified adjustable rates of interest, the right to retain the lien until the debt is paid off, the right to accelerate the loan upon default and to proceed against petitioners' residence by foreclosure and public sale, and the right to bring an action to recover any deficiency remaining after foreclosure. See Record 135-140 (deed of trust); at 147 151 (promissory note); Tex. Prop. Code Ann. 51.002-51.005 (Supp. 1993). These are the rights that were "bargained for by the mortgagor and the mortgagee," and are rights protected from modification by 1322(b)(2). This is not to say, of course, that the contractual rights of a home mortgage lender are unaffected by the mortgagor's Chapter 13 bankruptcy. The lender's power to enforce its rights and, in particular, its right to foreclose on the property in the event of default is checked by the Bankruptcy Code's automatic stay provision. 11 U.S. C. 362. See United Savings Assn. of In addition, 1322(b)(5) permits the debtor to cure prepetition defaults on a home mortgage by paying off arrearages over the life of the plan "notwithstanding" the exception in 1322(b)(2).[4] These statutory limitations on the lender's rights, however, are independent of the debtor's plan or otherwise outside 1322(b)(2)'s prohibition. Petitioners urge us to apply the so-called "rule of the last antecedent," which has been relied upon by some Courts of Appeals to interpret 1322(b)(2) the way petitioners favor. E. g., In re |
Justice Thomas | 1,993 | 1 | majority | Nobelman v. American Savings Bank | https://www.courtlistener.com/opinion/112871/nobelman-v-american-savings-bank/ | interpret 1322(b)(2) the way petitioners favor. E. g., In re Bellamy, ; In re Hougland, According to this argument, the operative clause "other than a claim secured only by a security interest in the debtor's principal residence" must be read to refer to and modify its immediate antecedent, "secured claims." Thus, 1322(b)(2)'s protection would then apply only to that subset of allowed "secured claims," determined by application of 506(a), that are secured by a lien on the debtor's home including, with respect to the mortgage involved here, the bank's secured claim for $23,500. We acknowledge that this reading of the clause is quite sensible as a matter of grammar. But it is not compelled. *331 Congress chose to use the phrase "claim secured by" in 1322(b)(2)'s exception, rather than repeating the term of art "secured claim." The unqualified word "claim" is broadly defined under the Code to encompass any "right to payment, whether secure[d] or unsecured" or any "right to an equitable remedy for breach of performance if such breach gives rise to a right to payment, whether secure[d] or unsecured." 11 U.S. C. 101(5) (1988 ed., Supp. III). It is also plausible, therefore, to read "a claim secured only by a [homestead lien]" as referring to the lienholder's entire claim, including both the secured and the unsecured components of the claim. Indeed, 506(a) itself uses the phrase "claim secured by a lien" to encompass both portions of an under secured claim. This latter interpretation is the more reasonable one, since we cannot discern how 1322(b)(2) could be administered under petitioners' interpretation. Petitioners propose to reduce the outstanding mortgage principal to the fair market value of the collateral, and, at the same time, they insist that they can do so without modifying the bank's rights "as to interest rates, payment amounts, and [other] contract terms." Brief for Petitioners 7. That appears to be impossible. The bank's contractual rights are contained in a unitary note that applies at once to the bank's overall claim, including both the secured and unsecured components. Petitioners cannot modify the payment and interest terms for the unsecured component, as they propose to do, without also modifying the terms of the secured component. Thus, to preserve the interest rate and the amount of each monthly payment specified in the note after having reduced the principal to $23,500, the plan would also have to reduce the term of the note dramatically. That would be a significant modification of a contractual right. Furthermore, the bank holds an adjustable rate mortgage, and the principal and interest payments on the |
Justice Powell | 1,982 | 17 | dissenting | Foremost Ins. Co. v. Richardson | https://www.courtlistener.com/opinion/110759/foremost-ins-co-v-richardson/ | No trend of decisions by this Court has been stronger for two decades or more than that toward expanding federal jurisdiction at the expense of state interests and state-court jurisdiction. Of course, Congress also has moved steadily and expansively to exercise its Commerce Clause and preemptive power to displace state and local authority. Often decisions of this Court and congressional enactments have been necessary in the national interest. The effect, nevertheless, *678 has been the erosion of federalism a basic principle of the Constitution and our federal Union. Today's Court decision, an example of this trend, is not necessary to further any federal interest. On its face, it is inexplicable. The issue is whether the federal law of admiralty, rather than traditional state tort law, should apply to an accident on the Amite River in Louisiana between two small boats. "One was an eighteen foot pleasure boat powered by a 185 h.p. Johnson outboard motor that was being used for water skiing purposes at the time of the accident. The other was a sixteen foot `bass boat' powered by an outboard motor that was used exclusively for pleasure fishing." It also is undisputed that both boats were used "exclusively for pleasure"; that neither had ever been used in any "commercial maritime activity"; that none of the persons aboard the boats had ever been engaged in any such activity; and that neither of the boats was used for hire. The Court of Appeals conceded that "the place where the accident occurred is seldom, if ever, used for commercial activity." The absence of "commercial activity" on this waterway was held by the Court of Appeals to be immaterial. While recognizing that there was substantial authority to the contrary, the court held that federal admiralty law applied to this accident. This Court now affirms in a decision holding that "all operators of vessels on navigable waters are subject to uniform [federal] rules of conduct," conferring federal admiralty jurisdiction over all accidents. Ante, at 675 (emphasis deleted). In my view there is no substantial federal interest that justifies a rule extending admiralty jurisdiction to the edge of absurdity. I dissent. I Executive Jet Aviation, established that admiralty jurisdiction does *679 not extend to every accident on navigable waters. The Court today misconstrues Executive Jet. We emphasized in that case that it is "consistent with the history and purpose of admiralty to require that the wrong bear a significant relationship to traditional maritime activity." We acknowledge that "in a literal sense there may be some similarities between the problems posed for a |
Justice Powell | 1,982 | 17 | dissenting | Foremost Ins. Co. v. Richardson | https://www.courtlistener.com/opinion/110759/foremost-ins-co-v-richardson/ | may be some similarities between the problems posed for a plane downed on water and those faced by a sinking ship." But, recalling that "[t]he law of admiralty has evolved over many centuries," ib we noted that admiralty was "concerned with [matters such as] maritime liens, the general average,[1] captures and prizes, limitation of liability, cargo damage, and claims for salvage." "It is clear, therefore, that neither the fact that a plane goes down on navigable waters nor the fact that the negligence `occurs' while a plane is flying over such waters is enough to create such a relationship to traditional maritime activity as to justify the invocation of admiralty jurisdiction." -271 Executive Jet's recognition that "[t]he law of admiralty has evolved over many centuries," provides the appropriate understanding of that case's "traditional maritime activity" test. Admiralty is a specialized area of law that, since its ancient inception, has been concerned with the problems of seafaring commercial activity.[2] As Professor Stolz *680 has demonstrated, "[t]here can be no doubt that historically the civil jurisdiction of admiralty was exclusively concerned with matters arising from maritime commerce." Stolz, Pleasure Boating and Admiralty: Erie at Sea, "The only valid criterion of the admiralty jurisdiction is the relation of the matter whether it be tortious or contractual in nature to maritime commerce." 7A J. Moore & A. Pelaez, Federal Practice, Admiralty ¶325[5], p. 3606 (2d ed. 1982) (emphasis in original).[3] This case involves only pleasure craft. Neither of these boats had ever been used in any commercial activity. There is, therefore, no connection with any historic federal admiralty interest. In centuries past long before modern means of transportion by land and air existed rivers and oceans were the basic means of commerce, and the vessels that used the waterways were limited primarily to commercial and naval purposes.[4] "Pleasure boating is basically a *681 new phenomenon, the product of a technology that can produce small boats at modest cost and of an economy that puts such craft within the means of almost everyone."[5] Stolz, Thus, the "traditional" connection emphasized in Executive Jet is absent where pleasure boats are concerned. Moreover, even the Court today is hard put to identify an arguably substantial federal admiralty interest of any kind. I now comment briefly on the Court's reasoning. *682 II The Court's justification for extending federal admiralty jurisdiction to the use of millions[6] of small pleasure boats on the countless rivers, streams, and inlets of our country is the need for "uniform rules of conduct." Ante, at 675. I agree, of course, that |
Justice Powell | 1,982 | 17 | dissenting | Foremost Ins. Co. v. Richardson | https://www.courtlistener.com/opinion/110759/foremost-ins-co-v-richardson/ | of conduct." Ante, at 675. I agree, of course, that standard codes should govern traffic on waterways, just as it is crucial that certain uniform rules of traffic prevail on neighborhood streets as well as interstate highways. But this is no reason for admiralty jurisdiction to be extended to all boating activity. Congress has provided some rules governing water traffic, just as it has done for some land traffic. See 23 U.S. C. 154 (55 m. p. h. speed limit). Yet no one suggests that federal jurisdiction is needed to prevent chaos in automobile traffic, or that only federal courts are qualified to try accident cases. State courts are duty bound to apply federal as well as local "uniform rules of conduct." See The Court does not suggest that state courts lack competency to apply federal as well as state law to this type of water traffic. And this Court stands ready, if necessary, to review state decisions to ensure that important issues of federal law are resolved correctly. As Judge Thornberry said in dissent in this case, "the desire for certainty cannot alone justify the assumption of federal control over matters of purely local concern" Consequently the Court's premise that there is a need for uniform traffic rules fails to support its conclusion that federal jurisdiction must be extended to cover the type of activity that typically involves small pleasure craft. In an effort to rescue its logic, the Court refers to the "potential disruptive impact of a collision between boats on navigable waters" Ante, at 675. Yet this reasoning is *683 countered by Executive Jet a decision that the Court acknowledges to be a key authority for this case. For if "potential disruptive impact" on traffic in navigable waters provides a sufficient connection with "traditional maritime activity," then the crash of an airplane "in the navigable waters of Lake Erie," necessarily would support admiralty jurisdiction. The holding of Executive Jet is precisely to the contrary. The Court's reasoning in essence resurrects the locality rule that Executive Jet rejected, for any accident "located" on navigable waters has a "potential disruptive impact" on traffic there.[7] *684 Oral argument in this case revealed the degree to which the Court's decision displaces state authority. The Court posed a hypothetical in which children, for their own amusement, used rowboats to net crawfish from a stream. Two of the boats collide and sink near the water's edge, forcing the children to wade ashore. Counsel for respondents replied that this accident would fall within the admiralty jurisdiction of the federal courts, provided that the |
Justice Powell | 1,982 | 17 | dissenting | Foremost Ins. Co. v. Richardson | https://www.courtlistener.com/opinion/110759/foremost-ins-co-v-richardson/ | the admiralty jurisdiction of the federal courts, provided that the waterway was navigable. Tr. of Oral Arg. 24. Today the Court agrees. For me, however, this example illustrates the substantial and purposeless expansion of federal authority and federal-court jurisdiction accomplished by the Court's holding. In this respect I agree with Chief Judge Haynsworth: "The admiralty jurisdiction in England and in this country was born of a felt need to protect the domestic shipping industry in its competition with foreign shipping, and to provide a uniform body of law for the governance of domestic and foreign shipping, engaged in the movement of commercial vessels from state to state and to and from foreign states. The operation of small pleasure craft on inland waters which happen to be navigable has no more apparent relationship to that kind of concern than the operation of the same kind of craft on artificial inland lakes which are not navigable waters." *685 In the rowboat example, as in the case at bar, the Federal Government has little or no genuine interest in the resolution of a garden variety tort case. "Only the burdening of the federal courts and the frustration of the purposes of state tort law would be thereby served."[8] The Court's opinion largely ignores the fact that expansions of federal admiralty jurisdiction are accompanied by application of substantive and pre-empting federal admiralty law. Southern Pacific ; see[9] "The chief objection to application of admiralty law to pleasure boating is that it implicitly prohibits the exercise of state legislative power in an area in which local legislatures have generally been thought competent and in which Congress cannot be expected either to be interested or to be responsive to local needs." Stolz, For me, this federalism concern is the dominating issue in the case. I agree that "the law of pleasure boating will develop faster and more rationally if the creative capacities of the state courts and legislatures are freed of an imaginery [sic] federal concern with anything that floats on navigable waters." Federal courts should not displace state responsibility and choke the federal judicial docket on the basis of federal concerns *686 that in truth are only "imaginary." In accord with the teaching of Executive Jet, I would not extend federal admiralty jurisdiction beyond its traditional roots and reason for existence. I dissent from the Court's decision to sever a historic doctrine from its historic justification. |
per_curiam | 1,976 | 200 | per_curiam | Massachusetts Bd. of Retirement v. Murgia | https://www.courtlistener.com/opinion/109515/massachusetts-bd-of-retirement-v-murgia/ | This case presents the question whether the provision of Mass. Gen. Laws Ann. c. 32, 26 (3) (a) (1966), that a uniformed state police officer "shall be retired upon his attaining age fifty," denies appellee police officer equal protection of the laws in violation of the Fourteenth Amendment.[1] *309 Appellee Robert Murgia was an officer in the Uniformed Branch of the Massachusetts State Police. The Massachusetts Board of Retirement retired him upon his 50th birthday. Appellee brought this civil action in the United States District Court for the District of Massachusetts, alleging that the operation of 26 (3) (a) denied him equal protection of the laws and requesting the convening of a three-judge court under *310 28 U.S. C. 2281, 2284.[2] The District Judge dismissed appellee's complaint on the ground that the complaint did not allege a substantial constitutional question. On appeal, the United States Court of Appeals for the First Circuit, in an unreported memorandum, set aside the District Court judgment and remanded the case with direction to convene a three-judge court. Upon a record consisting of depositions, affidavits, and other documentary material submitted by the parties, the three-judge court filed an opinion that declared 26 (3) (a) unconstitutional on the ground that "a classification based on age 50 alone lacks a rational basis in furthering any substantial state interest," and enjoined enforcement of the statute. We noted probable jurisdiction, and now reverse. The primary function of the Uniformed Branch of the Massachusetts State Police is to protect persons and property and maintain law and order. Specifically, uniformed officers participate in controlling prison and civil disorders, respond to emergencies and natural disasters, patrol highways in marked cruisers, investigate crime, apprehend criminal suspects, and provide backup support for local law enforcement personnel. As the District Court observed, "service in this branch is, or can be, arduous." 376 F. Supp., at "[H]igh versatility is required, with few, if any, backwaters available for the partially superannuated." Thus, "even [appellee's] experts concede that there is a general relationship between *311 advancing age and decreasing physical ability to respond to the demands of the job." These considerations prompt the requirement that uniformed state officers pass a comprehensive physical examination biennially until age 40. After that, until mandatory retirement at age 50, uniformed officers must pass annually a more rigorous examination, including an electrocardiogram and tests for gastro-intestinal bleeding. Appellee Murgia had passed such an examination four months before he was retired, and there is no dispute that, when he retired, his excellent physical and mental health still rendered him capable of performing the duties |
per_curiam | 1,976 | 200 | per_curiam | Massachusetts Bd. of Retirement v. Murgia | https://www.courtlistener.com/opinion/109515/massachusetts-bd-of-retirement-v-murgia/ | mental health still rendered him capable of performing the duties of a uniformed officer. The record includes the testimony of three physicians: that of the State Police Surgeon, who testified to the physiological and psychological demands involved in the performance of uniformed police functions; that of an associate professor of medicine, who testified generally to the relationship between aging and the ability to perform under stress; and that of a surgeon, who also testified to aging and the ability safely to perform police functions. The testimony clearly established that the risk of physical failure, particularly in the cardiovascular system, increases with age, and that the number of individuals in a given age group incapable of performing stress functions increases with the age of the group. App. 77-78, 174-176. The testimony also recognized that particular individuals over 50 could be capable of safely performing the functions of uniformed officers. The associate professor of medicine, who was a witness for the appellee, further testified that evaluating the risk of cardiovascular failure in a given individual would require a number of detailed studies. In assessing appellee's equal protection claim, the District Court found it unnecessary to apply a strict-scrutiny test, see for *312 it determined that the age classification established by the Massachusetts statutory scheme could not in any event withstand a test of rationality, see Since there had been no showing that reaching age 50 forecasts even "imminent change" in an officer's physical condition, the District Court held that compulsory retirement at age 50 was irrational under a scheme that assessed the capabilities of officers individually by means of comprehensive annual physical examinations. We agree that rationality is the proper standard by which to test whether compulsory retirement at age 50 violates equal protection. We disagree, however, with the District Court's determination that the age 50 classification is not rationally related to furthering a legitimate state interest. I We need state only briefly our reasons for agreeing that strict scrutiny is not the proper test for determining whether the mandatory retirement provision denies appellee equal protection. San Antonio School reaffirmed that equal protection analysis requires strict scrutiny of a legislative classification only when the classification impermissibly interferes with the exercise of a fundamental right[3] or operates to the peculiar disadvantage of a suspect class.[4] Mandatory retirement at age 50 *313 under the Massachusetts statute involves neither situation. This Court's decisions give no support to the proposition that a right of governmental employment per se is fundamental. See San Antonio School ; Accordingly, we have expressly stated that a standard less than strict |
per_curiam | 1,976 | 200 | per_curiam | Massachusetts Bd. of Retirement v. Murgia | https://www.courtlistener.com/opinion/109515/massachusetts-bd-of-retirement-v-murgia/ | we have expressly stated that a standard less than strict scrutiny "has consistently been applied to state legislation restricting the availability of employment opportunities." Nor does the class of uniformed state police officers over 50 constitute a suspect class for purposes of equal protection analysis. observed that a suspect class is one "saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process." While the treatment of the aged in this Nation has not been wholly free of discrimination, such persons, unlike, say, those who have been discriminated against on the basis of race or national origin, have not experienced a "history of purposeful unequal treatment" or been subjected to unique disabilities on the basis of stereotyped characteristics not truly indicative of their abilities. The class subject to the compulsory retirement feature of the Massachusetts statute consists of uniformed state police officers over the age of 50. It cannot be said to discriminate only against the elderly. Rather, it draws the line at a certain age in middle life. But even old age does not define a "discrete and insular" group, United in need of "extraordinary protection from the majoritarian political process." Instead, it marks a stage that each of us will reach if we live out *314 our normal span. Even if the statute could be said to impose a penalty upon a class defined as the aged, it would not impose a distinction sufficiently akin to those classifications that we have found suspect to call for strict judicial scrutiny. Under the circumstances, it is unnecessary to subject the State's resolution of competing interests in this case to the degree of critical examination that our cases under the Equal Protection Clause recently have characterized as "strict judicial scrutiny." II We turn then to examine this state classification under the rational-basis standard. This inquiry employs a relatively relaxed standard reflecting the Court's awareness that the drawing of lines that create distinctions is peculiarly a legislative task and an unavoidable one. Perfection in making the necessary classifications is neither possible nor necessary. Such action by a legislature is presumed to be valid.[5] In this case, the Massachusetts statute clearly meets the requirements of the Equal Protection Clause, for the State's classification rationally furthers the purpose identified by the State:[6] Through mandatory retirement at age 50, the legislature seeks to protect the public by assuring physical preparedness of its uniformed police.[7]*315 Since physical ability generally declines with age, mandatory retirement |
per_curiam | 1,976 | 200 | per_curiam | Massachusetts Bd. of Retirement v. Murgia | https://www.courtlistener.com/opinion/109515/massachusetts-bd-of-retirement-v-murgia/ | police.[7]*315 Since physical ability generally declines with age, mandatory retirement at 50 serves to remove from police service those whose fitness for uniformed work presumptively has diminished with age. This clearly is rationally related to the State's objective.[8] There is no indication *3 that 26 (3) (a) has the effect of excluding from service so few officers who are in fact unqualified as to render age 50 a criterion wholly unrelated to the objective of the statute.[9] That the State chooses not to determine fitness more precisely through individualized testing after age 50 is not to say that the objective of assuring physical fitness is not rationally furthered by a maximum-age limitation. It is only to say that with regard to the interest of all concerned, the State perhaps has not chosen the best means to accomplish this purpose.[10] But where rationality is the test, a State "does not violate the Equal Protection Clause merely because the classifications made by its laws are imperfect." 397 U. S., We do not make light of the substantial economic and psychological effects premature and compulsory retirement can have on an individual; nor do we denigrate the ability of elderly citizens to continue to contribute to society. The problems of retirement have been well documented *317 and are beyond serious dispute.[11] But "[w]e do not decide today that the [Massachusetts statute] is wise, that it best fulfills the relevant social and economic objectives that [Massachusetts] might ideally espouse, or that a more just and humane system could not be devised." We decide only that the system enacted by the Massachusetts Legislature does not deny appellee equal protection of the laws. The judgment is reversed. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR. |
Justice Kavanaugh | 2,020 | 23 | concurring | Shular v. United States | https://www.courtlistener.com/opinion/4731815/shular-v-united-states/ | I join the Court’s opinion in full. In Part III–E of the opin- ion, the Court rejects Shular’s argument for applying the rule of lenity. I write separately to elaborate on why the rule of lenity does not apply here. This Court’s longstanding precedents establish that the rule of lenity applies when two conditions are met. First, as the Court today says and as the Court has re- peatedly held, a court may invoke the rule of lenity only “ ‘after consulting traditional canons of statutory construc- tion.’ ” Ante, at 10 (quoting United States v. Shabani, 513 U.S. 10, 17 (1994)).1 In other words, a court must first em- ploy all of the traditional tools of statutory interpretation, —————— 1 See also, e.g., Ocasio v. United States, 578 U. S. n. 8 (20) (slip op., at 13, n. 8); ; (2011); ; United States v. ; Burgess v. United States, 553 U.S. 124, 135 (2008); ; 3 ; United ; ; Smith v. United States, ; ; 108 (1990); Cf. Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843, n. 9 (1984) (instructing courts to employ “traditional tools of statutory construction” before concluding that a statute is ambiguous 2 SHULAR v. UNITED STATES KAVANAUGH, J., concurring and a court may resort to the rule of lenity only “ ‘after seiz- ing everything from which aid can be derived.’ ” Ocasio v. United States, 578 U. S. n. 8 (20) (slip op., at 13, n. 8) ). In summarizing the case law, Justice Scalia underscored that the rule of lenity “ ‘comes into oper- ation at the end of the process of construing what Congress has expressed, not at the beginning.’ ” A. Scalia & B. Gar- ner, Reading Law: The Interpretation of Legal Texts 298 (2012) ). Of course, when “a reviewing court employs all of the traditional tools of construction, the court will almost always reach a conclusion about the best interpretation,” thereby resolving any perceived ambiguity. Kisor v. Wilkie, 588 U. S. (2019) (slip op., at 1) (KAVANAUGH, J., concurring in judgment). That explains why the rule of len- ity rarely comes into play. Second, this Court has repeatedly explained that the rule of lenity applies only in cases of “ ‘grievous’ ” ambiguity— where the court, even after applying all of the traditional tools of statutory interpretation, “ ‘can make no more than a guess as to what Congress intended.’ ” Ocasio, 578 U. S., at n. 8 (slip op., at 13, n. 8) (quoting Muscarello, 524 U.S., at –139). |
Justice Kavanaugh | 2,020 | 23 | concurring | Shular v. United States | https://www.courtlistener.com/opinion/4731815/shular-v-united-states/ | at 13, n. 8) (quoting Muscarello, 524 U.S., at –139). The Court has stated that the “simple existence of some statutory ambiguity” is “not sufficient to warrant application of that rule, for most statutes are am- biguous to some degree.” at To be sure, as Justice Scalia rightly noted, the term “ ‘grievous ambiguity’ ” pro- vides “ ‘little more than atmospherics, since it leaves open the crucial question—almost invariably present—of how much ambiguousness constitutes an ambiguity.’ ” Reading Law, at 299 (quoting United States v. Hansen, 772 F.2d 940, 948 (CADC 1985) (Scalia, J., for the court)); see also Kavanaugh, Fixing Statutory Interpretation, 129 Harv. —————— and deferring to an agency’s reasonable interpretation). Cite as: 589 U. S. (2020) 3 KAVANAUGH, J., concurring L. Rev. 2118 (20). That said, atmospherics can matter. Although the Court has not always been perfectly con- sistent in its formulations, the Court has repeatedly em- phasized that a court must find not just ambiguity but “grievous ambiguity” before resorting to the rule of lenity.2 To sum up: Under this Court’s longstanding precedents, the rule of lenity applies when a court employs all of the traditional tools of statutory interpretation and, after doing so, concludes that the statute still remains grievously am- biguous, meaning that the court can make no more than a guess as to what the statute means. Because the Court correctly concludes that the rule of len- ity does not apply in this case, I join the Court’s opinion in full. —————— 2 See, e.g., Shaw v. United States, 580 U. S. (20) (slip op., at 8); Salman v. United States, 580 U. S. (20) (slip op., at 11); 573 U.S. 9, ; Robers, 572 U.S., at ; United ; ; Dolan v. United States, 560 U.S. 605, 621 ; ; 555 U.S., at ; n. 17 (1994); ; Hud- |
Justice Marshall | 1,975 | 15 | second_dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | The Court today departs sharply from the course we have followed in analyzing durational residency requirements since Because I think the principles set out in that case and its progeny compel reversal here, I respectfully dissent. As we have made clear in and subsequent cases, any classification that penalizes exercise of the constitutional right to travel is invalid unless it is justified by a compelling governmental interest. As recently as last Term we held that the right to travel requires that States provide the same vital governmental benefits and privileges to recent immigrants that they do to longtime residents. Memorial Although we recognized that not all durational residency requirements are penalties *419 upon the exercise of the right to travel interstate,[1] we held that free medical aid, like voting, see and welfare assistance, see was of such fundamental importance that the State could not constitutionally condition its receipt upon long-term residence. After examining Arizona's justifications for restricting the availability of free medical services, we concluded that the State had failed to show that in pursuing legitimate objectives it had chosen means that did not impinge unnecessarily upon constitutionally protected interests. The Court's failure to address the instant case in these terms suggests a new distaste for the mode of analysis we have applied to this corner of equal protection law. In its stead, the Court has employed what appears to be an ad hoc balancing test, under which the State's putative interest in ensuring that its divorce petitioners establish some roots in Iowa is said to justify the one-year residency requirement. I am concerned not only about the disposition of this case, but also about the implications of the majority's analysis for other divorce statutes and for durational residency requirement cases in general. I The Court omits altogether what should be the first inquiry: whether the right to obtain a divorce is of sufficient importance that its denial to recent immigrants constitutes a penalty on interstate travel. In my view, it clearly meets that standard. The previous decisions of this Court make it plain that the right of marital association is one of the most basic rights conferred on the individual by the State. The interests associated *420 with marriage and divorce have repeatedly been accorded particular deference, and the right to marry has been termed "one of the vital personal rights essential to the orderly pursuit of happiness by free men." In we recognized that the right to seek dissolution of the marital relationship was closely related to the right to marry, as both involve the voluntary adjustment of |
Justice Marshall | 1,975 | 15 | second_dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | right to marry, as both involve the voluntary adjustment of the same fundamental human relationship. Without further laboring the point, I think it is clear beyond cavil that the right to seek dissolution of the marital relationship is of such fundamental importance that denial of this right to the class of recent interstate travelers penalizes interstate travel within the meaning of Dunn, and Maricopa II Having determined that the interest in obtaining a divorce is of substantial social importance, I would scrutinize Iowa's durational residency requirement to determine whether it constitutes a reasonable means of furthering important interests asserted by the State. The Court, however, has not only declined to apply the "compelling interest" test to this case, it has conjured up possible justifications for the State's restriction in a manner much more akin to the lenient standard we have in the past applied in analyzing equal protection challenges to business regulations. See ; ; but see I continue to be of the view that the "rational basis" test has no place in equal protection analysis when important individual interests with constitutional implications are at stake, see San Antonio School ; But whatever the ultimate resting point of the current readjustments in equal protection analysis, the Court has clearly directed that the proper standard to apply to cases in which state statutes have penalized the exercise of the right to interstate travel is the "compelling interest" test. U. S., at 634, 638; 400 U.S. 1, ; -343; Memorial -263. The Court proposes three defenses for the Iowa statute: first, the residency requirement merely delays receipt of the benefit in questionit does not deprive the applicant of the benefit altogether; second, since significant social consequences may follow from the conferral of a divorce, the State may legitimately regulate the divorce process; and third, the State has interests both in protecting itself from use as a "divorce mill" and in protecting its judgments from possible collateral attack in other States. In my view, the first two defenses provide no significant support for the statute in question here. Only the third has any real force. A With the first justification, the Court seeks to distinguish the Dunn, and Maricopa cases. Yet the distinction the Court draws seems to me specious. Iowa's residency requirement, the Court says, merely forestalls access to the courts; applicants seeking welfare payments, medical aid, and the right to vote, on the other hand, suffer unrecoverable losses throughout the waiting period. This analysis, however, ignores the severity of the deprivation suffered by the divorce petitioner who is forced to wait |
Justice Marshall | 1,975 | 15 | second_dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | suffered by the divorce petitioner who is forced to wait a year for relief. See The injury accompanying that delay is not directly measurable in money terms like the loss of welfare benefits, but it cannot reasonably be argued that when the year has elapsed, the petitioner is made whole. The year's wait prevents remarriage and locks both partners into what may be an intolerable, destructive relationship. Even applying the Court's argument on its own terms, I fail to see how the Maricopa case can be distinguished. A potential patient may well need treatment for a single ailment. Under Arizona statutes he would have had to wait a year before he could be treated. Yet the majority's analysis would suggest that Mr. Evaro's claim for nonemergency medical aid is not cognizable because he would "eventually qualify for the same sort of [service]," ante, at 406. The Court cannot mean that Mrs. Sosna has not suffered any injury by being foreclosed from seeking a divorce in Iowa for a year. It must instead mean that it does not regard that deprivation as being very severe.[2] B I find the majority's second argument no more persuasive. The Court forgoes reliance on the usual justifications for durational residency requirementsbudgetary considerations and administrative convenience, see -638; Maricopa -269. Indeed, it would be hard to make a persuasive argument that either of these interests is significantly *423 implicated in this case. In their place, the majority invokes a more amorphous justificationthe magnitude of the interests affected and resolved by a divorce proceeding. Certainly the stakes in a divorce are weighty both for the individuals directly involved in the adjudication and for others immediately affected by it. The critical importance of the divorce process, however, weakens the argument for a long residency requirement rather than strengthens it. The impact of the divorce decree only underscores the necessity that the State's regulation be evenhanded.[3] It is not enough to recite the State's traditionally exclusive responsibility for regulating family law matters; some tangible interference with the State's regulatory scheme must be shown. Yet in this case, I fail to see how any legitimate objective of Iowa's divorce regulations would be frustrated by granting equal access to new state residents.[4] To draw on an analogy, the States have great interests in the local voting process and wide latitude in regulating that process. Yet one regulation that the States may not impose in an unduly long residency requirement. To remark, as the Court does, that because of the consequences riding on a divorce decree "Iowa may insist that one seeking |
Justice Marshall | 1,975 | 15 | second_dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | on a divorce decree "Iowa may insist that one seeking to initiate such a proceeding have the modicum of attachment to the State required here" *424 is not to make an argument, but merely to state the result. C The Court's third justification seems to me the only one that warrants close consideration. Iowa has a legitimate interest in protecting itself against invasion by those seeking quick divorces in a forum with relatively lax divorce laws, and it may have some interest in avoiding collateral attacks on its decree in other States.[5] These interests, however, would adequately be protected by a simple requirement of domicilephysical presence plus intent to remainwhich would remove the rigid one-year barrier while permitting the State to restrict the availability of its divorce process to citizens who are genuinely its own.[6] *425 The majority notes that in the Court held that for ex parte divorces one State's finding of domicile could, under limited circumstances, be challenged in the courts of another. From this, the majority concludes that since Iowa's findings of domicile might be subject to collateral attack elsewhere, it should be permitted to cushion its findings with a one-year residency requirement. For several reasons, the year's waiting period seems to me neither necessary nor much of a cushion. First, the Williams opinion was not aimed at States seeking to avoid becoming divorce mills. Quite the opposite, it was rather plainly directed at States that had cultivated a "quickie divorce" reputation by playing fast and loose with findings of domicile. See ; If Iowa wishes to avoid becoming a haven for divorce seekers, it is inconceivable that its good-faith determinations of domicile would not meet the rather lenient full faith and credit standards set out in Williams. A second problem with the majority's argument on this score is that Williams applies only to ex parte divorces. This Court has held that if both spouses were before the divorcing court, a foreign State cannot recognize a collateral challenge that would not be permissible in the divorcing State. ; ; ; 342 U.S. 6 Therefore, the Iowa statute sweeps too broadly even as a defense to possible collateral attacks, since it imposes a one-year requirement whenever the respondent does not reside in the State, regardless of whether the proceeding is ex parte.[7] *426 Third, even a one-year period does not provide complete protection against collateral attack. It merely makes it somewhat less likely that a second State will be able to find "cogent evidence" that Iowa's determination of domicile was incorrect. But if the Iowa court has erroneously |
Justice Marshall | 1,975 | 15 | second_dissenting | Sosna v. Iowa | https://www.courtlistener.com/opinion/109128/sosna-v-iowa/ | domicile was incorrect. But if the Iowa court has erroneously determined the question of domicile, the year's residence will do nothing to preclude collateral attack under Williams. Finally, in one sense the year's residency requirement may technically increase rather than reduce the exposure of Iowa's decrees to collateral attack. Iowa appears to be among the States that have interpreted their divorce residency requirements as being of jurisdictional import.[8] Since a State's divorce decree is subject to collateral challenge in a foreign forum for any jurisdictional flaw that would void it in the State's own courts, New York ex rel. the residency requirement exposes Iowa divorce proceedings to attack both for failure to prove domicile and for failure to prove one year's residence. If nothing else, this casts doubt on the majority's speculation that Iowa's residency requirement may have been intended as a statutory shield for its divorce decrees. In sum, concerns about the need *427 for a long residency requirement to defray collateral attacks on state judgments seem more fanciful than real. If, as the majority assumes, Iowa is interested in assuring itself that its divorce petitioners are legitimately Iowa citizens, requiring petitioners to provide convincing evidence of bona fide domicile should be more than adequate to the task.[9] III I conclude that the course Iowa has chosen in restricting access to its divorce courts unduly interferes with the right to "migrate, resettle, find a new job, and start a new life." U. S., at 629. I would reverse the judgment of the District Court and remand for entry of an order granting relief if the court finds that there is a continuing controversy in this case. See 415 ; |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | Petitioner Jalil Abdul-Kabir, formerly known as Ted Calvin Cole,[1 contends that there is a reasonable likelihood that the trial judge's instructions to the Texas jury that sentenced him to death prevented jurors from giving meaningful consideration to constitutionally relevant mitigating evidence. He further contends that the judgment of the Texas Court of Criminal Appeals (CCA) denying his application for postconviction relief on November 24, 1999, misapplied the law as clearly established by earlier decisions of this Court, thereby warranting relief under the Anti-terrorism and Effective Death Penalty Act of 1996 (AEDPA), We agree with both contentions. Although the relevant state-court judgment for purposes of our review under AEDPA is that adjudicating the merits of Cole's state habeas application, in which these claims were properly raised, we are persuaded that the same result would be dictated by those cases decided before the state trial court entered its judgment affirming Cole's death sentence on September 26, Accordingly, we reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. I In December Cole, his stepbrother Michael Hickey, and Michael's wife, Kelly, decided to rob and kill Kelly's grandfather, Raymond Richardson, to obtain some cash. Two days later they did so. Cole strangled Richardson with a dog leash; the group then searched the house and found $20 that they used to purchase beer and food. The next day, Michael and Kelly surrendered to the police and confessed. *1660 The police then arrested Cole who also confessed. Cole was tried by a jury and convicted of capital murder. After a sentencing hearing, the jury was asked to answer two special issues: "Was the conduct of the defendant, TED CALVIN COLE, that caused the death of the deceased, RAYMOND C. RICHARDSON, committed deliberately and with the reasonable expectation that the death of the deceased or another would result? "Is there a probability that the defendant, TED CALVIN COLE, would commit criminal acts of violence that would constitute a continuing threat to society?" App. 127-128.[2 The trial judge instructed the jury to take into consideration evidence presented at the guilt phase as well as the sentencing phase of the trial but made no reference to mitigating evidence. Under the provisions of the Texas criminal code, the jury's affirmative answers to these two special issues required the judge to impose a death sentence. See Tex.Code Crim. Proc. Ann., Art. 37.071 At the sentencing hearing, the State introduced evidence that Cole pleaded guilty to an earlier murder when he was only 16. Shortly after being released on parole, Cole pleaded guilty to |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | Shortly after being released on parole, Cole pleaded guilty to charges of aggravated sexual assault on two boys and was sentenced to more years in prison. As evidence of Cole's propensity for future dangerousness, the State introduced Cole's diary which, according to the State's expert psychiatrist, Dr. Richard Coons, revealed a compulsive attraction to young boys and an obsession with criminal activity. Dr. Coons described Cole as a sociopath who lacked remorse and would not profit or learn from his experiences. In response, Cole presented two categories of mitigating evidence. The first consisted of testimony from his mother and his aunt, who described his unhappy childhood. Cole's parents lived together "off and on" for years, over the course of which they had two children, Cole, and his younger sister, Carla. App. 35. Shortly after Cole was born, his father was arrested for robbing a liquor store. Cole's father deserted the family several times, abandoning the family completely before Cole was five years old. On the last occasion that Cole saw his father, he dropped Cole off a block from where he thought Cole's mother lived, told Cole to "go find her," and drove off. Cole had no contact with his father during the next years. After Cole's father left, his mother found herself unable to care for Cole and his sister and took the children to live with her parents in Oklahoma. Cole's grandparents were both alcoholicsCole's mother was herself a self-described "drunk"and lived miles away from other children. Eventually, because Cole's grandparents did not want their daughter or her children living with them, Cole's mother placed him in a church-run children's home, although she kept her daughter with her. Over the next five years *1661 Cole's mother visited him only twice. Cole's aunt, who visited him on holidays, testified that Cole seemed incapable of expressing any emotion and that his father never visited him at all. The second category of mitigating evidence came from two expert witnessesa psychologist and the former chief mental health officer for the Texas Department of Correctionswho discussed the consequences of Cole's childhood neglect and abandonment. Dr. Jarvis Wright, the psychologist, spent 8 to hours interviewing Cole and administering an "extensive battery of psychological tests." He testified that Cole had "real problems with impulse control" apparently resulting from "central nervous damage" combined with "all the other factors of [his background." He also testified that Cole had likely been depressed for much of his life, that he had a "painful" background, and that he had "never felt loved and worthwhile in his life." Providing an analogy |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | felt loved and worthwhile in his life." Providing an analogy for Cole's early development, Dr. Wright stated that "the manufacturing process [had botched the raw material horribly." When specifically asked about future dangerousness, Dr. Wright acknowledged that "if Ted were released today on the street, there's a much greater probability of dangerous behavior than with the rest of us." Although he acknowledged the possibility of change or "burn out," he admitted that Cole would likely pose a threat of future dangerousness until "years from now." Except for his prediction that Cole would change as he grew older, Dr. Wright's testimony did not contradict the State's claim that Cole was a dangerous person, but instead sought to provide an explanation for his behavior that might reduce his moral culpability. Dr. Wendell Dickerson, a psychologist who had not previously examined Cole, observed that it was difficult to predict future dangerousness, but that "violent conduct is predominantly, overwhelmingly the province of the young" with the risk of violence becoming rare as people grow older. On cross-examination, in response to a hypothetical question about a person with Cole's character and history, Dr. Dickerson acknowledged that he would be "alarmed" about the future conduct of such a person because "yes, there absolutely is a probability that they would commit. future acts of violence." In sum, the strength of Cole's mitigating evidence was not its potential to contest his immediate dangerousness, to which end the experts' testimony was at least as harmful as it was helpful. Instead, its strength was its tendency to prove that his violent propensities were caused by factors beyond his control namely, neurological damage and childhood neglect and abandonment. It was these latter considerations, however, that the prosecutor discouraged jurors from taking into account when formulating their answers to the special issues. During the voir dire, the prosecutor advised the jurors that they had a duty to answer the special issues based on the facts, and the extent to which such facts objectively supported findings of deliberateness and future dangerousness, rather than their views about what might be an appropriate punishment for this particular defendant. For example, juror Beeson was asked: "[If a person had a bad upbringing, but looking at those special issues, you felt that they [sic met the standards regarding deliberateness and being a continuing threat to society, could you still vote `yes,' even though you felt like maybe they'd [sic had a rough time as a kid? If you felt that the facts brought to you by the prosecution warranted a *1662 `yes' answer, could you put that |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | prosecution warranted a *1662 `yes' answer, could you put that out of your mind and just go by the facts? [That would not keep you from answering `yes,' just because a person had a poor upbringing, would it?" XI Voir Dire Statement of Facts filed in No. CR88-0043-A (Dist. Ct. Tom Green Cty., Tex., 51st Jud. Dist.), p. 88. The prosecutor began his final closing argument with a reminder to the jury that during the voir dire they had "promised the State that, if it met its burden of proof," they would answer "yes" to both special issues. App. 145. The trial judge refused to give any of several instructions requested by Cole that would have authorized a negative answer to either of the special issues on the basis of "any evidence which, in [the jury's opinion, mitigate[d against the imposition of the Death Penalty, including any aspect of the Defendant's character or record." ; see also Ultimately, the jurors answered both issues in the affirmative and Cole was sentenced to death. On direct appeal, the sole issue raised by Cole was that the evidence was insufficient to support the jury's verdict. The CCA rejected Cole's claim and affirmed the judgment of the trial court on September 26, On March 2, 1992, the lawyer who then represented Cole filed an application for a writ of habeas corpus in the Texas trial court, alleging 21 claims of error.[3 Counsel later withdrew, and after delays caused in part by a letter from Cole to the trial judge stating that he wished to withdraw his "appeal," the judge ultimately "had petitioner bench warranted" to a hearing on September 4, 1998. During that hearing, Cole advised the court that he wished to proceed with his habeas proceedings and to have the CCA appoint counsel to represent him. Without counsel having been appointed to represent Cole, and without conducting an evidentiary hearing, the trial court entered its findings and conclusions recommending denial of the application. Three of Cole's 21 claims related to the jury's inability to consider mitigating evidence. The trial judge rejected the first "that his mitigating evidence was not able to be properly considered and given effect by the jury under the special issues," at 7because he concluded that the record, and "especially" the testimony of the two expert witnesses, "provide[d a basis for the jury to sufficiently consider the mitigating evidence offered by petitioner,"[4 at 161. With respect to Cole's second claim, the judge agreed that appellate counsel had been ineffective for failing *1663 to assign error based on "the trial court's |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | failing *1663 to assign error based on "the trial court's failure to instruct the jury on mitigating evidence as contemplated by the Pendry [sic decision." He nevertheless found that the result on appeal would have been the same had the point been raised. On the third claim relating to mitigating evidence, the judge rejected Cole's argument that the trial court's failure to specifically instruct the jury to consider mitigating evidence and offer a definition of "mitigating" was error. Over the dissent of two members of the court, and after adopting the trial court's findings of fact and conclusions of law with only minor changes, the CCA denied Cole's application for state collateral relief. Ex parte Cole, No. 41,673-01 (Nov. 24, 1999) App. 178-179. We consolidated this case with I After the Federal District Court granted Cole's motion for the appointment of counsel, he filed a timely petition for a federal writ of habeas corpus pursuant to His principal claim then, as it is now, was that the sentencing jury "was unable to consider and give effect to the mitigating evidence in his case," in violation of the Constitution. Cole v. Civ. Action No. 6:00-CV-014-C p. 5, App. 184. In its opinion denying relief, the District Court began by summarizing Cole's mitigating evidence, highlighting his "destructive family background." The court then correctly described our decision in Penry I, in these words: "In [Penry the Supreme Court found that when the defendant places mitigating evidence before the jury, Texas juries must be given instructions which allow the jury to give effect to that mitigating evidence and to express its reasoned moral response to that evidence in determining whether to impose the death penalty."[5 Civ. Action No. 6:00-CV-014-C, at 8-9, App. 188. The court next noted that the Fifth Circuit had formulated its own analysis for evaluating Penry claims. Under that analysis, for mitigating evidence to be constitutionally relevant, it "must show (1) a uniquely severe permanent handicap with which the defendant is burdened through no fault of his own, and (2) that the criminal act was attributable to this severe permanent condition." Civ. Action No. 6:00-CV-014-C, at 9, App. 189 ). Ultimately, Cole's inability to show a "nexus" between his troubled family background and his commission of capital murder doomed his Penry claim. Civ. Action No. 6:00-CV-014-C, at 13, App. 193. The Court of Appeals denied Cole's application for a certificate of appealability (COA), holding that "reasonable jurists would not debate the district court's conclusion that Cole's evidence was not constitutionally relevant mitigating evidence." Shortly thereafter, however, we held that the Fifth |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | mitigating evidence." Shortly thereafter, however, we held that the Fifth Circuit's "screening *1664 test" for determining the "`constitutional relevance'" of mitigating evidence had "no foundation in the decisions of this Court." Accordingly, we vacated its order denying a COA in this case and remanded for further proceedings. On remand, the Court of Appeals reviewed Cole's Penry claim on the merits and affirmed the District Court's judgment denying the writ. Focusing primarily on the testimony of petitioner's two experts rather than that of his mother and his aunt, the Court of Appeals reviewed our recent decisions and concluded "that the Texas special issues allowed the jury to give `full consideration and full effect' to the mitigating evidence that Cole presented at the punishment phase of his trial."[6 With two judges dissenting, the court denied the petition for rehearing en banc.[7 IV Because Cole filed his federal habeas petition after the effective date of AEDPA, the provisions of that Act govern the scope of our review. We must therefore ask whether the CCA's adjudication of Cole's claim on the merits "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (d)(1). We conclude that it did. A careful review of our jurisprudence in this area makes clear that well before our decision in Penry I, our cases had firmly established that sentencing juries must be able to give meaningful consideration and effect to all mitigating evidence that might provide a basis for refusing to impose the death penalty on a particular individual, notwithstanding the severity of his crime or his potential to commit similar offenses in the future. Three of the five cases decided on the same day in and identified the background principles we would apply in later cases to evaluate specific rules inhibiting the jury's ability to give meaningful effect to such mitigating evidence. In we invalidated a statute that made death the mandatory sentence for all persons convicted of first-degree murder. One of the statute's constitutional shortcomings was its "failure to allow the particularized consideration of relevant aspects of the character and record of each convicted defendant before the imposition upon him of a sentence of death."[8 In Proffitt v. *1665 Florida and the joint opinions rejected facial challenges to the sentencing statutes enacted in Florida and Texas, assuming in both cases that provisions allowing for the unrestricted admissibility of mitigating evidence would ensure that a sentencing jury had adequate guidance in performing its sentencing function.[9 As a majority of |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | guidance in performing its sentencing function.[9 As a majority of the Court later acknowledged, our holding in Jurek did not preclude the possibility that the Texas sentencing statute might be found unconstitutional as applied in a particular case. See n. infra. Two years later, in a plurality concluded "that the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." (footnote omitted). Because Ohio's death penalty statute was inconsistent with this principle, it was declared unconstitutional. The plurality noted the possible tension between a holding that the Ohio statute was invalid and our decisions in Proffitt and Jurek upholding the Florida and Texas statutes, but distinguished those cases because neither statute "clearly operated at that time to prevent the sentencer from considering any aspect of the defendant's character and record or any circumstances of his offense as an independently mitigating factor." While Chief Justice Burger's opinion in Lockett was joined by only three other Justices, the rule it announced was endorsed and broadened in our subsequent decisions in and In those cases, we emphasized the severity of imposing a death sentence and that "the sentencer in capital cases must be permitted to consider any relevant mitigating factor."[, (emphasis added). In the wake of our decision in Lockett, Ohio amended its capital sentencing statute to give effect to Lockett's holding.[11 Neither Florida nor Texas did so, however, until after our unanimous decision in unequivocally confirmed the settled quality of the Lockett rule. As Justice SCALIA's opinion for the Court explained, the defendant had introduced some rather atypical mitigating evidence that was not expressly authorized by the Florida statute: "In the sentencing phase of this case, petitioner's counsel introduced before the advisory jury evidence that as a child petitioner had the habit of inhaling gasoline fumes from automobile gas tanks; that he had once passed out after doing so; that thereafter his mind tended to wander; that petitioner had been one of seven children in a poor family that earned its living by picking cotton; that his father had died of cancer; and that petitioner had been a fond and affectionate uncle to the children of one of his brothers." As the opinion further explained, the Florida courts had construed the state statute to preclude consideration of mitigating factors unmentioned in the statute. Accordingly, despite our earlier |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | mitigating factors unmentioned in the statute. Accordingly, despite our earlier decision in Proffitt upholding the statute against a facial challenge, it was necessary to set aside Hitchcock's death sentence. We explained: "We think it could not be clearer that the advisory jury was instructed not to consider, and the sentencing judge refused to consider, evidence of nonstatutory mitigating circumstances, and that the proceedings therefore did not comport with the requirements of [, [, and [, Respondent has made no attempt to argue that this error was harmless, or that it had no effect on the jury or the sentencing judge. In the absence of such a showing our cases hold that the exclusion of mitigating evidence of the sort at issue here renders the death sentence invalid. See ;" -399, Of course, our reference to "exclusion" of the evidence did not refer to its admissibility, but rather to its exclusion from meaningful consideration by the jury. Had Jurek and Proffitt truly stood for the proposition that the mere availability of relevant mitigating evidence was sufficient to satisfy the Constitution's requirements, Hitchcock could never have been decided as it was.[12 *1667 In the year following our decision in Hitchcock, we made clear that sentencing under the Texas statute, like that under the Florida statute, must accord with the Lockett rule. In the plurality rejected the claim that the judge's instructions did not allow the jury to give adequate weight to whatever "`residual doubts'" it may have had concerning the defendant's guilt, or to evidence of the petitioner's good behavior while in prison. That particular holding is unremarkable because we have never held that capital defendants have an Eighth Amendment right to present "residual doubt" evidence at sentencing, see and in most cases evidence of good behavior in prison is primarily, if not exclusively, relevant to the issue of future dangerousness. What makes significant, however, is the separate opinion of Justice O'Connor, and particularly those portions of her opinion expressing the views of five Justices, see infra, 8-1669, and n. After summarizing the cases that clarified Jurek's holding,[13 she wrote: "In my view, the principle underlying Lockett, and Hitchcock is that punishment should be directly related to the personal culpability of the criminal defendant. "`[Evidence about the defendant's background and character is relevant because of the belief, long held by this society, that defendants who commit criminal acts that are attributable to a disadvantaged background, or to emotional and mental problems, may be less culpable than defendants who have no such excuse Thus, the sentence imposed at the penalty stage should reflect |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | Thus, the sentence imposed at the penalty stage should reflect a reasoned moral response to the defendant's background, character, and crime.' (emphasis in original). "In light of this principle it is clear that a State may not constitutionally prevent the sentencing body from giving effect to evidence relevant to the defendant's background or character or the circumstances of the offense that mitigates against the death penalty. Indeed, the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration. *1668 "Under the sentencing procedure followed in this case the jury could express its views about the appropriate punishment only by answering the special verdict questions regarding the deliberateness of the murder and the defendant's future dangerousness. To the extent that the mitigating evidence introduced by petitioner was relevant to one of the special verdict questions, the jury was free to give effect to that evidence by returning a negative answer to that question. If, however, petitioner had introduced mitigating evidence about his background or character or the circumstances of the crime that was not relevant to the special verdict questions, or that had relevance to the defendant's moral culpability beyond the scope of the special verdict questions, the jury instructions would have provided the jury with no vehicle for expressing its `reasoned moral response' to that evidence." 184-185, (opinion concurring in judgment) (emphasis added). Justice O'Connor's opinion for the Court in Penry I endorsed the views she had expressed in and unquestionably governs the facts of this case.[14 Penry contended that his mitigating evidence of mental retardation and an abusive childhood provided a basis for a sentence of life imprisonment rather than death and that the jury should have been instructed that it could consider that evidence when making its sentencing decision. In response to that contention, our opinion first held that Penry was not asking us to make new law because he was relying on a rule that was "dictated" by earlier cases, see n. and explained why Justice O'Connor's separate opinion in correctly defined the relevant rule of law.[*1669 In we noted, "both the concurrence and the dissent stressed that `the right to have the sentencer consider and weigh relevant mitigating evidence would be meaningless unless the sentencer was also permitted to give effect to its consideration' in imposing sentence." (citing (O'Connor, J., concurring in judgment); (STEVENS, J., dissenting)). Applying that standard, we held that neither the "deliberateness" nor the "future dangerousness" special issue provided the jury with a meaningful opportunity to give |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | issue provided the jury with a meaningful opportunity to give effect to Penry's mitigating evidence. With respect to the former, we explained: "In the absence of jury instructions defining `deliberately' in a way that would clearly direct the jury to consider fully Penry's mitigating evidence as it bears on his personal culpability, we cannot be sure that the jury was able to give effect to the mitigating evidence of Penry's mental retardation and history of abuse in answering the first special issue. Without such a special instruction, a juror who believed that Penry's retardation and background diminished his moral culpability and made imposition of the death penalty unwarranted would be unable to give effect to that conclusion if the juror also believed that Penry committed the crime `deliberately.' Thus, we cannot be sure that the jury's answer to the first special issue reflected a `reasoned moral response' to Penry's mitigating evidence." With respect to the future dangerousness issue, we emphasized the fact that Penry's evidence of mental retardation was relevant only as an aggravating factor. More broadly, we noted that the evidence of Penry's mental retardation and childhood abuse functioned as a "two-edged sword," because it "may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future." We therefore held that, in the absence of an appropriate instruction directing the "jury to consider fully" mitigating evidence as it bears on the extent to which a defendant is undeserving of a death sentence, "we cannot be sure" that it did so. As our discussion of the deliberateness issue demonstrates, we did not limit our holding in Penry I to mitigating evidence that can only be viewed as aggravating. When the evidence proffered is double edged, or is as likely to be viewed as aggravating as it is as mitigating, the statute most obviously fails to provide for adequate consideration of such evidence.[16 *1670 The former special issues (as composed at the time of both Penry's and Cole's sentencing proceedings) provided an adequate vehicle for the evaluation of mitigating evidence offered to disprove deliberateness or future dangerousness. As Judge Reavley noted in his opinion for the Court of Appeals in Penry I, however, they did not tell the jury as to what "to do if it decided that Penry, because of retardation, arrested emotional development and a troubled youth, should not be executed." (internal quotation marks omitted). V In recommending denial of Cole's application for collateral relief, the Texas trial judge did not analyze Penry I itself. Under the |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | trial judge did not analyze Penry I itself. Under the framework set forth in Penry I,[17 the testimony of Cole's mother and aunt, as well as the portions of the expert testimony suggesting that his dangerous character may have been the result of his rough childhood and possible neurological damage, were not relevant to either of the special verdict questions, except, possibly, as evidence supporting the State's argument that Cole would be dangerous in the future. This would not satisfy the requirement of Penry I, however, that the evidence be permitted its mitigating force beyond the scope of the special issues. Therefore, it would have followed that those questions failed to provide the jury with a vehicle for expressing its "reasoned moral response" to that evidence. Instead of relying on Penry I, the trial judge relied on three later Texas cases and on our opinion in as having held that nine different categories of mitigating evidenceincluding a troubled family background, bipolar disorder, low IQ, substance abuse, paranoid personality disorder, and child abusewere sufficiently considered under the Texas special issues.[18 App. 9-160. *1671 Applying those cases, the judge defined the legal issue "whether the mitigating evidence can be sufficiently considered" as one that "must be determined on a case by case basis, depending on the nature of the mitigating evidence offered and whether there exists other testimony in the record that would allow consideration to be given." As we have noted, in endorsing this formulation of the issue, neither the trial judge nor the CCA had the benefit of any input from counsel representing petitioner. See Part In our view, denying relief on the basis of that formulation of the issue, while ignoring the fundamental principles established by our most relevant precedents, resulted in a decision that was both "contrary to" and "involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (d). The state court's primary reliance on to the exclusion of our other cases in this line of jurisprudence, was misguided. In we held that granting collateral relief to a defendant who had been sentenced to death in 1984 would require the announcement of a new rule of constitutional law in contravention of 9 S. Ct. 60, 3 L. Ed. 2d 334 In reaching that conclusion we relied heavily on the fact that in 1984 it was reasonable for judges to rely on the interpretation of Jurek that the plurality had espoused in See -472, ; see also n. But as we have explained, in both and Penry I, a |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | as we have explained, in both and Penry I, a majority of the Court ultimately rejected the plurality's interpretation of Jurek. Neither nor Penry I was inconsistent with 's narrow holding, but they do suggest that our later decisionsincluding in which we refused to adopt the rule that sought[19are of more relevance to Cole's case than The relevance of those cases lies not in their resultsin several instances, we concluded, after applying the relevant law, that the special issues provided for adequate consideration of the defendant's mitigating evidence[20but in their failure to disturb the basic legal principle that continues to govern such cases: The jury must have a "meaningful basis to consider the relevant mitigating qualities" of the defendant's proffered evidence.[21, *1672 ; see also (explaining that Penry was entitled to additional instructions "[because it was impossible [for the jury to give meaningful mitigating effect to Penry's evidence by way of answering the special issues"). Before turning to those more recent cases, it is appropriate to identify the reasons why the CCA's ruling was not a reasonable application of Penry I itself. First, the ruling ignored the fact that even though Cole's mitigating evidence may not have been as persuasive as Penry's, it was relevant to the question of Cole's moral culpability for precisely the same reason as Penry's. Like Penry's evidence, Cole's evidence of childhood deprivation and lack of self-control did not rebut either deliberateness or future dangerousness but was intended to provide the jury with an entirely different reason for not imposing a death sentence. Second, the judge's assumption that it would be appropriate to look at "other testimony in the record" to determine whether the jury could give mitigating effect to the testimony of Cole's mother and aunt is neither reasonable nor supported by the Penry opinion. App. 160. Third, the fact that the jury could give mitigating effect to some of the experts' testimony, namely, their predictions that Cole could be expected to become less dangerous as he aged, provides no support for the conclusion that the jury understood it could give such effect to other portions of the experts' testimony or that of other witnesses. In sum, the judge ignored our entire line of cases establishing the importance of allowing juries to give meaningful effect to any mitigating evidence providing a basis for a sentence of life rather than death. His recommendation to the CCA was therefore unsupported by either the text or the reasoning in Penry I. VI The same principles originally set forth in earlier cases such as Lockett and have been articulated |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | in earlier cases such as Lockett and have been articulated explicitly by our later cases, which explained that the jury must be permitted to "consider fully" such mitigating evidence and that such consideration "would be meaningless" unless the jury not only had such evidence available to it, but also was permitted to give that evidence meaningful, mitigating effect in imposing the ultimate sentence. Penry I, 323, (internal quotation marks omitted); (acknowledging that a "constitutional defect" has occurred not only when a jury is "precluded from even considering certain types of mitigating evidence," but also when "the defendant's evidence [is placed before the sentencer but the sentencer ha[s no reliable means of giving mitigating effect to that evidence"). Four of our more recent cases lend support to the conclusion that the CCA's decision was unsupported by either the text or the reasoning of Penry I.[22 In we held that the Texas special issues allowed adequate consideration of petitioner's youth as a mitigating circumstance. Indeed, we thought it "strain[ed credulity to suppose that the jury would have viewed the evidence of *1673 petitioner's youth as outside its effective reach" because its relevance was so obvious. There is of course a vast difference between youtha universally applicable mitigating circumstance that every juror has experienced and which necessarily is transientand the particularized childhood experiences of abuse and neglect that Penry I and Cole describedwhich presumably most jurors have never experienced and which affect each individual in a distinct manner. Evidence of youth, moreover, has special relevance to the question of future dangerousness. A critical assumption motivating the Court's decision in was that juries would in fact be able to give mitigating effect to the evidence, albeit within the confines of the special issues. See ("If any jurors believed that the transient qualities of petitioner's youth made him less culpable for the murder, there is no reasonable likelihood that those jurors would have deemed themselves foreclosed from considering that in evaluating petitioner's future dangerousness"). Prosecutors in some subsequent cases, however, have undermined this assumption, taking pains to convince jurors that the law compels them to disregard the force of evidence offered in mitigation. Cole's prosecution is illustrative: the State made jurors "promise" they would look only at the questions posed by the special issues, which, according to the prosecutor, required a juror to "put out of [his mind" Cole's mitigating evidence and "just go by the facts." 2. Arguments like these are at odds with the Court's understanding in that juries could and would reach mitigating evidence proffered by a defendant. Nothing in forecloses relief |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | mitigating evidence proffered by a defendant. Nothing in forecloses relief in these circumstances. See ("Penry remains the law and must be given a fair reading"). This conclusion derives further support from the fact that, in the Court understood that the defendant's evidence of youthincluding testimony from his father that "his son's actions were due in large part to his youth," and counsel's corresponding arguments that the defendant could change as he grew olderwas "readily comprehended as a mitigating factor," in the context of the special issues. The evidence offered in this case, however, as well as that offered by the petitioner in Brewer, U.S. at - 1709-17, and n.1, is closer in nature to that offered by the defendant in Penry I than that at issue in While the consideration of the defendant's mitigating evidence of youth in could easily have directed jurors towards a "no" answer with regard to the question of future dangerousness, a juror considering Cole's evidence of childhood neglect and abandonment and possible neurological damage or Brewer's evidence of mental illness, substance abuse, and a troubled childhood could feel compelled to provide a "yes" answer to the same question, finding himself without a means for giving meaningful effect to the mitigating qualities of such evidence.[23 In such a case, there is a *1674 reasonable likelihood that the special issues would preclude that juror from giving meaningful consideration to such mitigating evidence, as required by Penry I. See "we held that a reviewing court must determine `whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence'"). In three later cases, we gave Penry I the "fair reading" required by and repudiated several Fifth Circuit precedents providing the basis for its narrow reading of that case. First, in our review of Penry's resentencing, at which the judge had supplemented the special issues with a nullification instruction, we again concluded that the jury had not been provided with an adequate "vehicle for expressing its reasoned moral response" to his mitigating evidence. Penry v. 121 S. Ct. 19, 0 L. Ed. 2d 9 (Penry ). Indeed, given that the resentencing occurred after the enactment of AEDPA, we concluded (contrary to the views of the Fifth Circuit, which had denied Penry a COA) that the CCA's judgment affirming the death sentence was objectively unreasonable. 121 S. Ct. 19. Second, and as we have already noted, in Tennard we held that the Fifth Circuit's test for identifying relevant mitigating evidence was 542 U.S., at and again contrary |
Justice Stevens | 2,007 | 16 | majority | Abdul-Kabir v. Quarterman | https://www.courtlistener.com/opinion/145742/abdul-kabir-v-quarterman/ | relevant mitigating evidence was 542 U.S., at and again contrary to the views of the Fifth Circuit, we held that a nullification instruction that was different from the one used in Penry's second sentencing hearing did not foreclose the defendant's claim that the special issues had precluded the jury from "expressing a `reasoned moral response' to all of the evidence relevant to the defendant's culpability." V Our line of cases in this area has long recognized that before a jury can undertake the grave task of imposing a death sentence, it must be allowed to consider a defendant's moral culpability and decide whether death is an appropriate punishment for that individual in light of his personal history and characteristics and the circumstances of the offense.[24 As Chief Justice Burger wrote in Lockett: "There is no perfect procedure for deciding in which cases governmental authority should be used to impose death. But a statute that prevents the sentencer in all capital cases from giving independent mitigating weight to aspects of the defendant's character and record and to circumstances of the offense proffered in mitigation creates the risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty. When the choice is between life and death, that risk is unacceptable *1675 and incompatible with the commands of the Eighth and Fourteenth Amendments." Our cases following Lockett have made clear that when the jury is not permitted to give meaningful effect or a "reasoned moral response" to a defendant's mitigating evidencebecause it is forbidden from doing so by statute or a judicial interpretation of a statutethe sentencing process is fatally flawed.[25 For that reason, our post-Penry cases are fully consistent with our conclusion that the judgment of the Court of Appeals in this case must be reversed. The case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | The Court holds that Ohio's Pilot Project Scholarship Program, (voucher program), survives respondents' Establishment Clause challenge. While I join the Court's opinion, I write separately for two reasons. First, although the Court takes an important step, I do not believe that today's decision, when considered in light of other longstanding government programs that impact religious organizations and our prior Establishment Clause jurisprudence, marks a dramatic break from the past. Second, given the emphasis the Court places on verifying that parents of voucher students in religious schools have exercised "true private choice," I think it is worth elaborating on the Court's conclusion that this inquiry should consider all reasonable educational alternatives to religious schools that are available to parents. To do otherwise is to ignore how the educational system in Cleveland actually functions. I These cases are different from prior indirect aid cases in part because a significant portion of the funds appropriated for the voucher program reach religious schools without restrictions on the use of these funds. The share of public resources that reach religious schools is not, however, as significant as respondents suggest. See, e. g., Brief for Respondents Simmons-Harris et al. 1-2. Data from the 1999- school year indicate that 82 percent of schools participating in the voucher program were religious and that 96 percent of participating students enrolled in religious *664 schools, see App. in Nos. 00-3055, etc. (CA6), p. 1679 (46 of 56 private schools in the program are religiously affiliated; 3,637 of 3,765 voucher students attend religious private schools), but these data are incomplete. These statistics do not take into account all of the reasonable educational choices that may be available to students in Cleveland public schools. When one considers the option to attend community schools, the percentage of students enrolled in religious schools falls to 62.1 percent. If magnet schools are included in the mix, this percentage falls to 16.5 percent. See J. Greene, The Racial, Economic, and Religious Context of Parental Choice in Cleveland 11, Table 4 App. 217a (reporting 2,087 students in community schools and 16,184 students in magnet schools). Even these numbers do not paint a complete picture. The Cleveland program provides voucher applicants from lowincome families with up to $2,250 in tuition assistance and provides the remaining applicants with up to $1,875 in tuition assistance. 33.976(A)(8), 33.978(A) and (C)(1). In contrast, the State provides community schools $4,518 per pupil and magnet schools, on average, $7,097 per pupil. Affidavit of Caroline M. Hoxby ¶¶ 4b, 4c, App. 56a. Even if one assumes that all voucher students came from low-income families and |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | assumes that all voucher students came from low-income families and that each voucher student used up the entire $2,250 voucher, at most $8.2 million of public funds flowed to religious schools under the voucher program in 1999-. Although just over one-half as many students attended community schools as religious private schools on the state fisc, the State spent over $1 million more$9.4 millionon students in community schools than on students in religious private schools because per-pupil aid to community schools is more than double the per-pupil aid to private schools under the voucher Moreover, the amount spent on religious private schools is minor compared to the $114.8 million the State spent on students in the Cleveland magnet schools. *665 Although $8.2 million is no small sum, it pales in comparison to the amount of funds that federal, state, and local governments already provide religious institutions. Religious organizations may qualify for exemptions from the federal corporate income tax, see 26 U.S. C. 501(c)(3); the corporate income tax in many States, see, e. g., Cal. Rev. & Tax. Code Ann. 23701d (West 1992); and property taxes in all 50 States, see Turner, Property Tax Exemptions for Nonprofits, 12 Probate & Property 25 (Sept./Oct. 1998); and clergy qualify for a federal tax break on income used for housing expenses, 26 U.S. C. 1402(a)(8). In addition, the Federal Government provides individuals, corporations, trusts, and estates a tax deduction for charitable contributions to qualified religious groups. See 170, 642(c). Finally, the Federal Government and certain state governments provide tax credits for educational expenses, many of which are spent on education at religious schools. See, e. g., 25A (Hope tax credit); Minn. Stat. 290.0674 (Supp. 2001). Most of these tax policies are well established, see, e. g., ; yet confer a significant relative benefit on religious institutions. The state property tax exemptions for religious institutions alone amount to very large sums annually. For example, available data suggest that Colorado's exemption lowers that State's tax revenues by more than $40 million annually, see Rabey, Exemptions a Matter of Faith: No Proof Required of Tax-Free Churches, Colorado Springs Gazette Telegraph, Oct. 26, 1992, p. B1; Colorado Debates Church, Nonprofit Tax-Exempt Status, Philadelphia Enquirer, Oct. 4, 1996, p. 8; Maryland's exemption lowers revenues by more than $60 million, see Maryland Dept. of Assessment and Taxation, 2001 SDAT Annual Report (Apr. 25, 2002), http://www.dat.state.md.us/sdatweb/stats/ *666 01ar_rpt.html (Internet sources available in Clerk of Court's case file); Wisconsin's exemption lowers revenues by approximately $122 million, see Wisconsin Dept. of Revenue, Division of Research and Analysis, Summary of Tax Exemption Devices 2001, Property |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | Research and Analysis, Summary of Tax Exemption Devices 2001, Property Tax (Apr. 25, 2002), http://www.dor. state.wi.us/ra/sum00pro.html ($5. billion in exempt religious property; statewide average property tax rate of $21.46 per $1,000 of property); and Louisiana's exemption, looking just at the city of New Orleans, lowers revenues by over $36 million, see Bureau of Governmental Research, Property Tax Exemptions and Assessment Administration in Orleans Parish: Summary and Recommendations 2 ($22.6 million for houses of worship and $14.1 million for religious schools). As for the Federal Government, the tax deduction for charitable contributions reduces federal tax revenues by nearly $25 billion annually, see U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 344 (hereinafter Statistical Abstract), and it is reported that over 60 percent of household charitable contributions go to religious charities, Even the relatively minor exemptions lower federal tax receipts by substantial amounts. The parsonage exemption, for example, lowers revenues by around $500 million. See Diaz, Ramstad Prepares Bill to Retain Tax Break for Clergy's Housing, Star Tribune (Minneapolis-St. Paul), Mar. 30, 2002, p. 4A. These tax exemptions, which have "much the same effect as [cash grants] of the amount of tax [avoided]," ; see also are just part of the picture. Federal dollars also reach religiously affiliated organizations through public health programs such as Medicare, 42 U.S. C. 1395 1395ggg, and Medicaid, 1396 et seq., through educational programs such as the Pell Grant program, 20 U.S. C. 1070a, and the G. I. Bill of Rights, 38 U.S. C. 3451, 3698; and *667 through childcare programs such as the Child Care and Development Block Grant Program (CCDBG), 42 U.S. C. 9858 (1994 ed., Supp. V). Medicare and Medicaid provide federal funds to pay for the healthcare of the elderly and the poor, respectively, see 1 B. Furrow, T. Greaney, S. Johnson, T. Jost, & R. Schwartz, Health Law 545-546 ; 2 ; the Pell Grant program and the G. I. Bill subsidize higher education of low-income individuals and veterans, respectively, see Mulleneaux, The Failure to Provide Adequate Higher Education Tax Incentives for Lower-Income Individuals, ; and the CCDBG program finances child care for low-income parents, see Pitegoff, Child Care Policy and the Welfare Reform Act, These programs are well-established parts of our social welfare system, see, e. g., Committee for Public Ed. & Religious and can be quite substantial, see Statistical Abstract 92 (Table 120) ($211.4 billion spent on Medicare and nearly $176.9 billion on Medicaid in 1998), ; Bush On Welfare: Tougher Work Rules, More State Control, Congress Daily, Feb. 26, 2002, p. 8 ($4.8 |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | State Control, Congress Daily, Feb. 26, 2002, p. 8 ($4.8 billion for the CCDBG program in 2001). A significant portion of the funds appropriated for these programs reach religiously affiliated institutions, typically without restrictions on its subsequent use. For example, it has been reported that religious hospitals, which account for 18 percent of all hospital beds nationwide, rely on Medicare funds for 36 percent of their revenue. MergerWatch, New Study Details Public Funding of Religious Hospitals (Jan. 2002), http://www.mergerwatch.org/inthenews/ publicfunding.html. Moreover, taking into account both Medicare and Medicaid, religious hospitals received nearly $45 billion from the federal fisc in 1998. Federal aid *668 to religious schools is also substantial. Although data for all States are not available, data from Minnesota, for example, suggest that a substantial share of Pell Grant and other federal funds for college tuition reach religious schools. Roughly one-third or $27.1 million of the federal tuition dollars spent on students at schools in Minnesota were used at private 4-year colleges. Minnesota Higher Education Services Office, Financial Aid Awarded, Fiscal Year 1999: Grants, Loans, and Student Earning from Institution Jobs (Jan. 24, 2001). The vast majority of these funds$23.5 million flowed to religiously affiliated institutions. Against this background, the support that the Cleveland voucher program provides religious institutions is neither substantial nor atypical of existing government programs. While this observation is not intended to justify the Cleveland voucher program under the Establishment Clause, see post, at 709-710, n. 19 (Souter, J., dissenting), it places in broader perspective alarmist claims about implications of the Cleveland program and the Court's decision in these cases. See post, at 685-686 (Stevens, J., dissenting); post, at 715-716 (Souter, J., dissenting); post, p. 717 (Breyer, J., dissenting). II Nor does today's decision signal a major departure from this Court's prior Establishment Clause jurisprudence. A central tool in our analysis of cases in this area has been the Lemon test. As originally formulated, a statute passed this test only if it had "a secular legislative purpose," if its "principal or primary effect" was one that "neither advance[d] nor inhibit[ed] religion," and if it did "not foster an excessive government entanglement with religion." In we folded the entanglement inquiry into the primary effect inquiry. This made sense because both inquiries rely on the same evidence, see ib and the degree of entanglement *669 has implications for whether a statute advances or inhibits religion, see The test today is basically the same as that set forth in School Dist. of Abington over 40 years ago. The Court's opinion in these cases focuses on a narrow question related |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | opinion in these cases focuses on a narrow question related to the Lemon test: how to apply the primary effects prong in indirect aid cases? Specifically, it clarifies the basic inquiry when trying to determine whether a program that distributes aid to beneficiaries, rather than directly to service providers, has the primary effect of advancing or inhibiting religion, or, as I have put it, of "endors[ing] or disapprov[ing] religion," ; see also See also ante, at 652. Courts are instructed to consider two factors: first, whether the program administers aid in a neutral fashion, without differentiation based on the religious status of beneficiaries or providers of services; second, and more importantly, whether beneficiaries of indirect aid have a genuine choice among religious and nonreligious organizations when determining the organization to which they will direct that aid. If the answer to either query is "no," the program should be struck down under the Establishment Clause. See ante, at 652-653. Justice Souter portrays this inquiry as a departure from Everson. See post, at 687- (dissenting opinion). A fair reading of the holding in that case suggests quite the opposite. Justice Black's opinion for the Court held that the "[First] Amendment requires the state to be a neutral in its relations with groups of religious believers and nonbelievers; it does not require the state to be their adversary." Everson, ; see also 18, *670 How else could the Court have upheld a state program to provide students transportation to public and religious schools alike? What the Court clarifies in these cases is that the Establishment Clause also requires that state aid flowing to religious organizations through the hands of beneficiaries must do so only at the direction of those beneficiaries. Such a refinement of the Lemon test surely does not betray Everson. III There is little question in my mind that the Cleveland voucher program is neutral as between religious schools and nonreligious schools. See ante, at 653-654. Justice Souter rejects the Court's notion of neutrality, proposing that the neutrality of a program should be gauged not by the opportunities it presents but rather by its effects. In particular, a "neutrality test [should] focus on a category of aid that may be directed to religious as well as secular schools, and ask whether the scheme favors a religious direction." Post, at 697 (dissenting opinion). Justice Souter doubts that the Cleveland program is neutral under this view. He surmises that the cap on tuition that voucher schools may charge low-income students encourages these students to attend religious rather than nonreligious private voucher schools. See |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | to attend religious rather than nonreligious private voucher schools. See post, at 704-705. But Justice Souter's notion of neutrality is inconsistent with that in our case law. As we put it in Agostini, government aid must be "made available to both religious and secular beneficiaries on a nondiscriminatory basis." 521 U.S., I do not agree that the nonreligious schools have failed to provide Cleveland parents reasonable alternatives to religious schools in the voucher For nonreligious schools to qualify as genuine options for parents, they need not be superior to religious schools in every respect. They need only be adequate substitutes for religious schools in the eyes of parents. The District Court record demonstrates that nonreligious schools were able to compete effectively *671 with Catholic and other religious schools in the Cleveland voucher See ante, at 656-657, n. 4. The best evidence of this is that many parents with vouchers selected nonreligious private schools over religious alternatives and an even larger number of parents send their children to community and magnet schools rather than seeking vouchers at Moreover, there is no record evidence that any voucher-eligible student was turned away from a nonreligious private school in the voucher program, let alone a community or magnet school. See ; Affidavit of David L. Brennan ¶ 8, App. 147a. To support his hunch about the effect of the cap on tuition under the voucher program, Justice Souter cites national data to suggest that, on average, Catholic schools have a cost advantage over other types of schools. See post, at 705-706, n. 15 (dissenting opinion). Even if national statistics were relevant for evaluating the Cleveland program, Justice Souter ignores evidence which suggests that, at a national level, nonreligious private schools may target a market for a different, if not a higher, quality of education. For example, nonreligious private schools are smaller, see U. S. Dept. of Ed., National Center for Education Statistics, Private School Universe Survey, 1997-1998 (Table 60) (87 and 269 students per private nonreligious and Catholic elementary school, respectively); have smaller class sizes, see ; have more highly educated teachers, see U. S. Dept. of Ed., National Center for Education Statistics, Private Schools in the United States: A Statistical Profile, 1993-1994 (Table 3.4) (37.9 percent of nonreligious private school teachers but only 29.9 percent of Catholic school teachers have Master's degrees); and have principals with longer job tenure than Catholic schools, see (average tenure *672 of principals at private nonreligious and Catholic schools is 8.2 and 4.7 years, respectively). Additionally, Justice Souter's theory that the Cleveland voucher program's cap on the tuition |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | theory that the Cleveland voucher program's cap on the tuition encourages low-income students to attend religious schools ignores that these students receive nearly double the amount of tuition assistance under the community schools program than under the voucher program and that none of the community schools is religious. See ante, at 647. In my view the more significant finding in these cases is that Cleveland parents who use vouchers to send their children to religious private schools do so as a result of true private choice. The Court rejects, correctly, the notion that the high percentage of voucher recipients who enroll in religious private schools necessarily demonstrates that parents do not actually have the option to send their children to nonreligious schools. Ante, at 656-660. Likewise, the mere fact that some parents enrolled their children in religious schools associated with a different faith than their own, see post, at 704 (Souter, J., dissenting), says little about whether these parents had reasonable nonreligious options. Indeed, no voucher student has been known to be turned away from a nonreligious private school participating in the voucher this page. This is impressive given evidence in the record that the present litigation has discouraged the entry of some nonreligious private schools into the voucher Declaration of David P. Zanotti ¶¶ 5, 10, App. 225a, 227a. Finally, as demonstrated above, the Cleveland program does not establish financial incentives to undertake a religious education. I find the Court's answer to the question whether parents of students eligible for vouchers have a genuine choice between religious and nonreligious schools persuasive. In looking at the voucher program, all the choices available to potential beneficiaries of the government program should be considered. In these cases, parents who were eligible to *673 apply for a voucher also had the option, at a minimum, to send their children to community schools. Yet the Court of Appeals chose not to look at community schools, let alone magnet schools, when evaluating the Cleveland voucher See That decision was incorrect. Focusing in these cases only on the program challenged by respondents ignores how the educational system in Cleveland actually functions. The record indicates that, in 1999, two nonreligious private schools that had previously served 15 percent of the students in the voucher program were prompted to convert to community schools because parents were concerned about the litigation surrounding the program, and because a new community schools program provided more per-pupil financial aid. Many of the students that enrolled in the two schools under the voucher program transferred to the community schools program and continued to |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | program transferred to the community schools program and continued to attend these schools. See Affidavit of David L. Brennan ¶¶ 3, 10, App. 145a, 147a; Declaration of David P. Zanotti ¶¶ 4-10, 25a227a. This incident provides strong evidence that both parents and nonreligious schools view the voucher program and the community schools program as reasonable alternatives. Considering all the educational options available to parents whose children are eligible for vouchers, including community and magnet schools, the Court finds that parents in the Cleveland schools have an array of nonreligious options. Ante, at 655. Not surprisingly, respondents present no evidence that any students who were candidates for a voucher were denied slots in a community school or a magnet school. Indeed, the record suggests the opposite with respect to community schools. See Affidavit of David L. Brennan ¶ 8, App. 147a. Justice Souter nonetheless claims that, of the 10 community schools operating in Cleveland during the 1999- school year, 4 were unavailable to students with vouchers and 4 others reported poor test scores. See post, at 702 *674 703, n. 10 (dissenting opinion). But that analysis unreasonably limits the choices available to Cleveland parents. It is undisputed that Cleveland's 24 magnet schools are reasonable alternatives to voucher schools. See post, at 701 702, n. 9 (Souter, J., dissenting); http://www.cmsdnet.net/ administration/EducationalServices/magnet.htm (June 20, 2002). And of the four community schools Justice Souter claims are unavailable to voucher students, he is correct only about one (Life Skills Center of Cleveland). Affidavit of Steven M. Puckett ¶ 12, App. 162a. Justice Souter rejects the three other community schools (Horizon Science Academy, Cleveland Alternative Learning, and International Preparatory School) because they did not offer primary school classes, were targeted toward poor students or students with disciplinary or academic problems, or were not in operation for a year. See post, at 702-703, n. 10. But a community school need not offer primary school classes to be an alternative to religious middle schools, and catering to impoverished or otherwise challenged students may make a school more attractive to certain inner-city parents. Moreover, the one community school that was closed in 1999 was merely looking for a new location and was operational in other years. See Affidavit of Steven M. Puckett ¶ 12, App. 162a; Ohio Dept. of Ed., Office of School Options, Community Schools, Ohio's Community School Directory (June 22, 2002), http://www.ode.state.oh.us/community_ schools/community_school_directory/default.asp. Two more community schools were scheduled to open after the 1999 school year. See Affidavit of Steven M. Puckett ¶ 13, App. 163a. Of the six community schools that Justice Souter admits as alternatives |
Justice O'Connor | 2,002 | 14 | concurring | Zelman v. Simmons-Harris | https://www.courtlistener.com/opinion/121168/zelman-v-simmons-harris/ | the six community schools that Justice Souter admits as alternatives to the voucher program in 1999-, he notes that four (the Broadway, Cathedral, Chapelside, and Lincoln Park campuses of the Hope Academy) reported lower test scores than public schools during the school year after the District Court's grant of summary judgment to respondents, *675 according to report cards prepared by the Ohio Department of Education. See post, at 702-703, n. 10 (dissenting opinion).) These report cards underestimate the value of the four Hope Academy schools. Before they entered the community school program, two of them participated in the voucher Although they received far less state funding in that capacity, they had among the highest rates of parental satisfaction of all voucher schools, religious or nonreligious. See P. Peterson, W. Howell, & J. Greene, An Evaluation of the Cleveland Voucher Program after Two Years 6, Table 4 (hereinafter Peterson). This is particularly impressive given that a Harvard University study found that the Hope Academy schools attracted the "poorest and most educationally disadvantaged students." J. Greene, W. Howell, P. Peterson, Lessons from the Cleveland Scholarship Program 22, 24 Moreover, Justice Souter's evaluation of the Hope Academy schools assumes that the only relevant measure of school quality is academic performance. It is reasonable to suppose, however, that parents in the inner city also choose schools that provide discipline and a safe environment for their children. On these dimensions some of the schools that Justice Souter derides have performed quite ably. See Peterson, Table 7. Ultimately, Justice Souter relies on very narrow data to draw rather broad conclusions. One year of poor test scores at four community schools targeted at the most challenged students from the inner city says little about the value of those schools, let alone the quality of the 6 other community schools and 24 magnet schools in Cleveland. Justice Souter's use of statistics confirms the Court's wisdom in refusing *676 to consider them when assessing the Cleveland program's constitutionality. See ante, at 658. What appears to motivate Justice Souter's analysis is a desire for a limiting principle to rule out certain nonreligious schools as alternatives to religious schools in the voucher See post, at 700, 701-702, n. 9 (dissenting opinion). But the goal of the Court's Establishment Clause jurisprudence is to determine whether, after the Cleveland voucher program was enacted, parents were free to direct state educational aid in either a nonreligious or religious direction. See ante, at 655-656. That inquiry requires an evaluation of all reasonable educational options Ohio provides the Cleveland school system, regardless of whether they are |
Justice Burger | 1,985 | 12 | majority | Tennessee v. Street | https://www.courtlistener.com/opinion/111424/tennessee-v-street/ | We granted certiorari to decide whether respondent's rights under the Confrontation Clause were violated by the introduction of the confession of an accomplice for the non-hearsay purpose of rebutting respondent's testimony that his own confession was coercively derived from the accomplice's statement. I Ben Tester was last seen alive on August 26, 1981, as he walked toward his home in Hampton, Tennessee. The next day Tester's body was found hanging by a nylon rope from an *411 apple tree in his yard. Tester's house had been ransacked, and it appeared that Tester had struggled with his assailants. Respondent, a neighbor of Tester, was arrested and charged with the murder. At respondent's trial, which was severed from the trials of others charged with the crime, the State relied on a detailed confession that respondent made during an interview with Sheriff Papantoniou and agents of the Tennessee Bureau of Investigation on September 17, 1981. According to respondent's confession, he and Clifford Peele decided to burglarize Ben Tester's house when Tester was away at church. While respondent, Peele and two others were in the house, however, Tester returned home and surprised the intruders. Peele threw Tester to the floor and declared that they were going to "string him up." Working toward that end, respondent tore a sheet to make a gag for Tester's mouth. Respondent then watched as the others carried Tester out of the house, placed him in the back of a pickup truck, put a rope around his neck, tied the rope to a tree, and pushed him off the tailgate.[1] Respondent testified at trial that he did not burglarize Tester's house, nor participate in the murder. He also maintained that his September 17 confession was coerced. The confession, respondent testified, was derived from a written statement that Peele had previously given the Sheriff. Respondent claimed that Sheriff Papantoniou read from Peele's statement and directed him to say the same thing. In rebuttal, the State called Sheriff Papantoniou to testify about the September 17 interview. The Sheriff denied that respondent was read Peele's statement or pressured to repeat the terms of Peele's confession. To corroborate this testimony, and to rebut respondent's claim that his own confession *412 was a coerced imitation, the Sheriff read Peele's confession to the jury.[2] Before Peele's statement was received, however, the trial judge twice informed the jury that it was admitted "not for the purpose of proving the truthfulness of his statement, but for the purpose of rebuttal only." App. 292, 293. Although Peele's statement was generally consistent with Street's confession, there were some differences. For |
Justice Burger | 1,985 | 12 | majority | Tennessee v. Street | https://www.courtlistener.com/opinion/111424/tennessee-v-street/ | generally consistent with Street's confession, there were some differences. For instance, Peele portrayed respondent as an active participant in Tester's hanging, and respondent's statement contained factual details that were not found in Peele's confession.[3] Following the reading of Peele's confession, the prosecutor elicited from the Sheriff testimony emphasizing the differences between the confessions. The prosecutor referred to Peele's confession in his closing argument to dispute respondent's claim that he had been forced to repeat Peele's statement. The prosecutor noted details of the crime that appeared solely in respondent's confession and argued that respondent knew these facts because he participated in the murder. In instructing the jury, the trial judge stated: "The Court has allowed an alleged confession or statement by Clifford Peele to be read by a witness. "I instruct you that such can be considered by you for rebutable [sic] purposes only, and you are not to consider the truthfulness of the statement in any way whatsoever." Respondent was found guilty and sentenced to life in prison. The Court of Criminal Appeals of Tennessee, ruling that the introduction of Peele's confession denied respondent his Sixth Amendment right to confront witnesses, reversed. *413 The court noted that Peele's confession was not hearsay evidence because it was not admitted to prove the truth of Peele's assertions. Nevertheless, the court believed that the jury was left with the impression "that the confession was a true rendition of events on the night of the homicide." It held, therefore, that "admission of [Peele's] confession for any purpose constitutes a denial of [respondent's] fundamental right to cross-examine those witnesses against him." Ibid.[4] We granted certiorari. We reverse. II A This case is significantly different from the Court's previous Confrontation Clause cases such as and Confrontation Clause issues arose in Roberts and Dutton because hearsay evidence was admitted as substantive evidence against the ; And in the Court considered whether a codefendant's confession, which was inadmissible hearsay as to could be admitted into evidence accompanied by a limiting -136. In this case, by contrast, the prosecutor did not introduce Peele's out-of-court confession to prove the truth of Peele's assertions. Thus, as the Court of Criminal Appeals acknowledged, Peele's confession was not hearsay under traditional rules of ; accord, Fed. Rule Evid. 801(c). In fact, the prosecutor's nonhearsay use of Peele's confession was critical to rebut respondent's testimony that his own confession was derived from Peele's. Before the details of Peele's confession were admitted, the jury *414 could evaluate the reliability of respondent's confession only by weighing and comparing the testimony of respondent and Sheriff Papantoniou. Once |
Justice Burger | 1,985 | 12 | majority | Tennessee v. Street | https://www.courtlistener.com/opinion/111424/tennessee-v-street/ | and comparing the testimony of respondent and Sheriff Papantoniou. Once Peele's statement was introduced, however, the jury could compare the two confessions to determine whether it was plausible that respondent's account of the crime was a coerced imitation.[5] The nonhearsay aspect of Peele's confession not to prove what happened at the murder scene but to prove what happened when respondent confessed raises no Confrontation Clause concerns. The Clause's fundamental role in protecting the right of cross-examination, see was satisfied by Sheriff Papantoniou's presence on the stand. If respondent's counsel doubted that Peele's confession was accurately recounted, he was free to cross-examine the Sheriff. By cross-examination respondent's counsel could also challenge Sheriff Papantoniou's testimony that he did not read from Peele's statement and direct respondent to say the same thing. In short, the State's rebuttal witness against respondent was not Peele, but Sheriff Papantoniou. See generally B The only similarity to is that Peele's statement, like the codefendant's confession in could have been misused by the jury. If the jury had been asked to infer that Peele's confession proved that respondent participated in the murder, then the evidence would have been hearsay; and because Peele was not available for cross-examination, Confrontation Clause concerns would have been implicated. The jury, however, was pointedly instructed by the trial court "not to consider the truthfulness of [Peele's] statement in any *415 way whatsoever." App. 350. Thus as in the question is reduced to whether, in light of the competing values at stake, we may rely on the " `crucial assumption' " that the jurors followed " `the instructions given them by the trial judge.' "[6] The State's most important piece of substantive evidence was respondent's confession. When respondent testified that his confession was a coerced imitation, therefore, the focus turned to the State's ability to rebut respondent's Had the prosecutor been denied the opportunity to present Peele's confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of respondent's testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission to advance "the accuracy of the truth-determining process in criminal trials." Moreover, unlike the situation in there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of [7] We do not agree with the Court of Criminal Appeals' suggestion that Peele's confession could have been edited |
Justice Burger | 1,985 | 12 | majority | Tennessee v. Street | https://www.courtlistener.com/opinion/111424/tennessee-v-street/ | Criminal Appeals' suggestion that Peele's confession could have been edited to reduce the risk of jury misuse "without detracting from the alleged purpose for which the confession was introduced." 674 S.W.2d, ; see generally n. 10. If all of Peele's references to respondent had been deleted, *416 it would have been more difficult for the jury to evaluate respondent's testimony that his confession was a coerced imitation of Peele's. Indeed, such an approach would have undercut the theory of defense by creating artificial differences between respondent's and Peele's confessions. Respondent correctly notes that Sheriff Papantoniou could have pointed out the differences between the two statements without reading Peele's confession. But such a rebuttal presentation was not the only option constitutionally open. After respondent testified that his confession was based on Peele's, the Sheriff read Peele's confession to the jury and answered questions that emphasized the differences. In closing argument, the prosecutor recited the details that appeared only in respondent's confession, and argued that respondent knew these facts because he participated in the murder. The whole of the State's rebuttal, therefore, was designed to focus the jury's attention on the differences, not the similarities between the two confessions. Finally, we reject the Court of Criminal Appeals' implicit holding that the State was required to call Peele to testify or to forgo effective rebuttal of respondent's 674 S.W.2d, Because Peele's confession was introduced to refute respondent's claim of coercive interrogation, Peele's testimony would not have made the State's point. And respondent's cross-examination of Peele would have been ineffective to undermine the prosecutor's limited purpose in introducing Peele's confession. It was appropriate that, instead of forcing the State to call a witness who could offer no relevant testimony on the immediate issue of coercion,[8] the trial judge left to respondent the choice whether to call Peele.[9] *417 III The State introduced Peele's confession for the legitimate, nonhearsay purpose of rebutting respondent's testimony that his own confession was a coerced "copy" of Peele's statement. The jury's attention was directed to this distinctive and limited purpose by the prosecutor's questions and closing argument. In this context, we hold that the trial judge's instructions were the appropriate way to limit the jury's use of that evidence in a manner consistent with the Confrontation Clause. Accordingly, the judgment of the Court of Criminal Appeals is Reversed. JUSTICE POWELL took no part in the consideration or decision in this case. |
Justice Harlan | 1,971 | 22 | concurring | Coolidge v. New Hampshire | https://www.courtlistener.com/opinion/108377/coolidge-v-new-hampshire/ | From the several opinions that have been filed in this case it is apparent that the law of search and seizure is due for an overhauling. State and federal law enforcement officers and prosecutorial authorities must find quite intolerable the present state of uncertainty, which extends even to such an everyday question as the circumstances under which police may enter a man's property to arrest him and seize a vehicle believed to have been used during the commission of a crime. I would begin this process of re-evaluation by overruling and The former of these cases made the federal "exclusionary rule" applicable to the States. The latter forced the States to follow all the ins and outs of this Court's Fourth Amendment decisions, handed down in federal cases. In combination Mapp and Ker have been primarily responsible for bringing about serious distortions and incongruities in this field of constitutional law. Basically these have had two aspects, as I believe an examination of our more recent opinions and certiorari docket will show. First, the States have been put in a federal mold with respect to this aspect of criminal law enforcement, thus depriving the country of the opportunity to observe *491 the effects of different procedures in similar settings. See, e. g., Oaks, Studying the Exclusionary Rule in Search and Seizure, suggesting that the assumed "deterrent value" of the exclusionary rule has never been adequately demonstrated or disproved, and pointing out that because of Mapp all comparative statistics are 10 years old and no new ones can be obtained. Second, in order to leave some room for the States to cope with their own diverse problems, there has been generated a tendency to relax federal requirements under the Fourth Amendment, which now govern state procedures as well. For an illustration of that tendency in another constitutional field, again resulting from the infelicitous "incorporation" doctrine, see Until we face up to the basic constitutional mistakes of Mapp and Ker, no solid progress in setting things straight in search and seizure law will, in my opinion, occur. But for Mapp and Ker, I would have little difficulty in voting to sustain this conviction, for I do not think that anything the State did in this case could be said to offend those values which are "at the core of the Fourth Amendment." ; cf. ; Because of Mapp and Ker, however, this case must be judged in terms of federal standards, and on that basis I concur, although not without difficulty, in Parts I, II-D, and III of the Court's opinion and in |
Justice Harlan | 1,971 | 22 | concurring | Coolidge v. New Hampshire | https://www.courtlistener.com/opinion/108377/coolidge-v-new-hampshire/ | I, II-D, and III of the Court's opinion and in the judgment of the Court.[*] It must be recognized that the case is a close one. The reason I am tipped in favor of MR. JUSTICE *492 STEWART'S position is that a contrary result in this case would, I fear, go far toward relegating the warrant requirement of the Fourth Amendment to a position of little consequence in federal search and seizure law, a course which seems to me opposite to the one we took in two Terms ago. Recent scholarship has suggested that in emphasizing the warrant requirement over the reasonableness of the search the Court has "stood the fourth amendment on its head" from a historical standpoint. T. Taylor, Two Studies in Constitutional Interpretation 23-24 This issue is perhaps most clearly presented in the case of a warrantless entry into a man's home to arrest him on probable cause. The validity of such entry was left open in and although my Brothers WHITE and STEWART both feel that their contrary assumptions on this point are at the root of their disagreement in this case, ante, at 477-479; post, at 510-512, 521, the Court again leaves the issue open. Ante, at 481. In my opinion it does well to do so. This matter should not be decided in a state case not squarely presenting the issue and where it was not fully briefed and argued. I intimate no view on this subject, but until it is ripe for decision, I hope in a federal case, I am unwilling to lend my support to setting back the trend of our recent decisions. MR. CHIEF JUSTICE BURGER, dissenting in part and concurring in part. I join the dissenting opinion of MR. JUSTICE WHITE and in Parts II and III of MR. JUSTICE BLACK'S concurring and dissenting opinion. I also agree with most of what is said in Part I of MR. JUSTICE BLACK'S opinion, but I am not prepared to accept the proposition that the Fifth Amendment requires the exclusion of evidence *493 seized in violation of the Fourth Amendment. I join in Part III of MR. JUSTICE STEWART'S opinion. This case illustrates graphically the monstrous price we pay for the exclusionary rule in which we seem to have imprisoned ourselves. See my dissent in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, ante, p. 411. On the merits of the case I find not the slightest basis in the record to reverse this conviction. Here again the Court reaches out, strains, and distorts rules that were showing |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | "To be prepared for war is one of the most effectual means of preserving peace." 1 Messages and Papers of the Presidents 57 (J. Richardson comp. 1897). So said George Washington in his first Annual Address to Congress, 218 years ago. One of the most important ways the Navy prepares for war is through integrated training exercises at sea. These exercises include training in the use of modern sonar to detect and track enemy submarines, something the Navy has done for the past 40 years. The plaintiffs complained that the Navy's sonar training program harmed marine mammals, and that the Navy should have prepared an environmental impact statement before commencing its latest round of training exercises. The Court of Appeals upheld a preliminary injunction imposing restrictions on the Navy's sonar training, even though that court acknowledged that "the record contains no evidence that marine mammals have been harmed" by the Navy's exercises. The Court of Appeals was wrong, and its decision is reversed. I The Navy deploys its forces in "strike groups," which are groups of surface ships, submarines, and aircraft centered around either an aircraft carrier or an amphibious assault ship. App. to Pet. for Cert. (Pet. App.) 316a-317a. Seamless coordination among strike-group assets is critical. Before deploying a strike group, the Navy requires extensive integrated training in analysis and prioritization of threats, execution of military missions, and maintenance of force protection. App. 1-111. Antisubmarine warfare is currently the Pacific Fleet's top war-fighting priority. Pet. App. 270a-271a. Modern diesel-electric submarines pose a significant threat to Navy vessels because they can operate almost silently, making them extremely difficult to detect and track. Potential adversaries of the United States possess at least 300 of these submarines. App. 571. The most effective technology for identifying submerged diesel-electric submarines within their torpedo range is active sonar, which involves emitting pulses of sound underwater and then receiving the acoustic waves that echo off the target. Pet. App. 266a-267a, 274a. Active sonar is a particularly useful tool because it provides both the bearing and the distance of target submarines; it is also sensitive enough to allow the Navy to track enemy submarines that are quieter than the surrounding marine [1] This case concerns the Navy's use of "mid-frequency active" (MFA) sonar, which transmits sound waves at frequencies between 1 kHz and kHz. Not surprisingly, MFA sonar is a complex technology, and sonar operators must undergo extensive training to become proficient in its use. Sonar reception can be affected by countless different factors, including the time of day, water density, salinity, currents, weather conditions, and the |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | of day, water density, salinity, currents, weather conditions, and the contours of the sea floor. at 278a-279a. When working as part of a strike group, sonar operators must be able to coordinate with other Navy ships and planes while avoiding interference. The Navy conducts regular training exercises under realistic conditions to ensure that sonar operators are thoroughly skilled in its use in a variety of situations. The waters off the coast of southern California (SOCAL) are an ideal location for conducting integrated training exercises, as this is the only area on the west coast that is relatively close to land, air, and sea bases, as well as amphibious landing areas. App. 141-142. At issue in this case are the Composite Training Unit Exercises and the Joint Tactical Force Exercises, in which individual naval units (ships, submarines, and aircraft) train together as members of a strike group. A strike group cannot be certified for deployment until it has successfully completed the integrated training exercises, including a demonstration of its ability to operate under simulated hostile In light of the threat posed by enemy submarines, all strike groups must demonstrate proficiency in antisubmarine warfare. Accordingly, the SOCAL exercises include extensive training in detecting, tracking, and neutralizing enemy submarines. The use of MFA sonar during these exercises is "mission-critical," given that MFA sonar is the only proven method of identifying submerged diesel-electric submarines operating on battery power. Sharing the waters in the SOCAL operating area are at least 37 species of marine mammals, including dolphins, whales, and sea lions. The parties strongly dispute the extent to which the Navy's training activities will harm those animals or disrupt their behavioral patterns. The Navy emphasizes that it has used MFA sonar during training exercises in SOCAL for 40 years, without a single documented sonar-related injury to any marine mammal. The Navy asserts that, at most, MFA sonar may cause temporary hearing loss or brief disruptions of marine mammals' behavioral patterns. The plaintiffs are the Natural Resources Defense Council, Jean-Michael Cousteau (an environmental enthusiast and filmmaker), and several other groups devoted to the protection of marine mammals and ocean habitats. They contend that MFA sonar can cause much more serious injuries to marine mammals than the Navy acknowledges, including permanent hearing loss, decompression sickness, and major behavioral disruptions. According to the plaintiffs, several mass strandings of marine mammals (outside of SOCAL) have been "associated" with the use of active sonar. They argue that certain species of marine mammalssuch as beaked whalesare uniquely susceptible to injury from active sonar; these injuries would not necessarily be detected by |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | active sonar; these injuries would not necessarily be detected by the Navy, given that beaked whales are "very deep divers" that spend little time at the surface. II The procedural history of this case is rather complicated. The Marine Mammal Protection Act of 1 (MMPA), generally prohibits any individual from "taking" a marine mammal, defined as harassing, hunting, capturing, or killing it. 16 U.S. C. 1372(a). The Secretary of Defense may "exempt any action or category of actions" from the MMPA if such actions are "necessary for national defense." In January the Deputy Secretary of Defenseacting for the Secretarygranted the Navy a 2-year exemption from the MMPA for the training exercises at issue in this case. Pet. App. 219a-220a. The exemption was conditioned on the Navy adopting several mitigation procedures, including: (1) training lookouts and officers to watch for marine mammals; (2) requiring at least five lookouts with binoculars on each vessel to watch for anomalies on the water surface (including marine mammals); (3) requiring aircraft and sonar operators to report detected marine mammals in the vicinity of the training exercises; (4) requiring reduction of active sonar transmission levels by 6 dB if a marine mammal is detected within 1,000 yards of the bow of the vessel, or by dB if detected within yards; (5) requiring complete shutdown of active sonar transmission if a marine mammal is detected within 200 yards of the vessel; (6) requiring active sonar to be operated at the "lowest practicable level"; and (7) adopting coordination and reporting procedures. at 222a-230a. The National Environmental Policy Act of 1969 (NEPA), requires federal agencies "to the fullest extent possible" to prepare an environmental impact statement (EIS) for "every major Federal actio[n] significantly affecting the quality of the human " 42 U.S. C. (2000 ed.). An agency is not required to prepare a full EIS if it determinesbased on a shorter environmental assessment (EA)that the proposed action will not have a significant impact on the (a), 1508.13 In February the Navy issued an EA concluding that the 14 SOCAL training exercises scheduled through January 2009 would not have a significant impact on the App. 226-227. The EA divided potential injury to marine mammals into two categories: Level A harassment, defined as the potential destruction or loss of biological tissue (i.e., physical injury), and Level B harassment, defined as temporary injury or disruption of behavioral patterns such as migration, feeding, surfacing, and breeding. The Navy's computer models predicted that the SOCAL training exercises would cause only eight Level A harassments of common dolphins each year, and that even these injuries |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | of common dolphins each year, and that even these injuries could be avoided through the Navy's voluntary mitigation measures, given that dolphins travel in large pods easily located by Navy lookouts. The EA also predicted 274 Level B harassments of beaked whales per year, none of which would result in permanent injury. Beaked whales spend little time at the surface, so the precise effect of active sonar on these mammals is unclear. Erring on the side of caution, the Navy classified all projected harassments of beaked whales as Level A. In light of its conclusion that the SOCAL training exercises would not have a significant impact on the environment, the Navy determined that it was unnecessary to prepare a full EIS. See Shortly after the Navy released its EA, the plaintiffs sued the Navy, seeking declaratory and injunctive relief on the grounds that the Navy's SOCAL training exercises violated NEPA, the Endangered Species Act of 1973 (ESA), and the Coastal Zone Management Act of 1 (CZMA).[2] The District Court granted plaintiffs' motion for a preliminary injunction and prohibited the Navy from using MFA sonar during its remaining training exercises. The court held that plaintiffs had "demonstrated a probability of success" on their claims under NEPA and the CZMA. Pet. App. 207a, 215a. The court also determined that equitable relief was appropriate because, under Ninth Circuit precedent, plaintiffs had established at least a "`possibility'" of irreparable harm to the at 217a. Based on scientific studies, declarations from experts, and other evidence in the record, the District Court concluded that there was in fact a "near certainty" of irreparable injury to the environment, and that this injury outweighed any possible harm to the Navy. at 217a-218a. The Navy filed an emergency appeal, and the Ninth Circuit stayed the injunction pending appeal. After hearing oral argument, the Court of Appeals agreed with the District Court that preliminary injunctive relief was appropriate. The appellate court concluded, however, that a blanket injunction prohibiting the Navy from using MFA sonar in SOCAL was overbroad, and remanded the case to the District Court "to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." On remand, the District Court entered a new preliminary injunction allowing the Navy to use MFA sonar only as long as it implemented the following mitigation measures (in addition to the measures the Navy had adopted pursuant to its MMPA exemption): (1) imposing a 12-mile "exclusion zone" from the coastline; (2) using lookouts to conduct additional monitoring for marine mammals; (3) restricting the use of |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | additional monitoring for marine mammals; (3) restricting the use of "helicopter-dipping" sonar; (4) limiting the use of MFA sonar in geographic "choke points"; (5) shutting down MFA sonar when a marine mammal is spotted within 2,200 yards of a vessel; and (6) powering down MFA sonar by 6 dB during significant surface ducting conditions, in which sound travels further than it otherwise would due to temperature differences in adjacent layers of water. The Navy filed a notice of appeal, challenging only the last two restrictions. The Navy then sought relief from the Executive Branch. The President, pursuant to 16 U.S. C. granted the Navy an exemption from the CZMA. Section 1456(c)(1)(B) permits such exemptions if the activity in question is "in the paramount interest of the United States." The President determined that continuation of the exercises as limited by the Navy was "essential to national security." Pet. App. 232a. He concluded that compliance with the District Court's injunction would "undermine the Navy's ability to conduct realistic training exercises that are necessary to ensure the combat effectiveness of strike groups." Simultaneously, the Council on Environmental Quality (CEQ) authorized the Navy to implement "alternative arrangements" to NEPA compliance in light of "emergency circumstances." See[3] The CEQ determined that alternative arrangements were appropriate because the District Court's injunction "create[s] a significant and unreasonable risk that Strike Groups will not be able to train and be certified as fully mission capable." Pet. App. 238a. Under the alternative arrangements, the Navy would be permitted to conduct its training exercises under the mitigation procedures adopted in conjunction with the exemption from the MMPA. The CEQ also imposed additional notice, research, and reporting requirements. In light of these actions, the Navy then moved to vacate the District Court's injunction with respect to the 2,200-yard shutdown zone and the restrictions on training in surface ducting The District Court refused to do so, and the Court of Appeals affirmed. The Ninth Circuit held that there was a serious question regarding whether the CEQ's interpretation of the "emergency circumstances" regulation was lawful. Specifically, the court questioned whether there was a true "emergency" in this case, given that the Navy has been on notice of its obligation to comply with NEPA from the moment it first planned the SOCAL training exercises. The Court of Appeals concluded that the preliminary injunction was entirely predictable in light of the parties' litigation The court also held that plaintiffs had established a likelihood of success on their claim that the Navy was required to prepare a full EIS for the SOCAL training exercises. The Ninth |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | a full EIS for the SOCAL training exercises. The Ninth Circuit agreed with the District Court's holding that the Navy's EAwhich resulted in a finding of no significant environmental impactwas "cursory, unsupported by cited evidence, or unconvincing." [4] The Court of Appeals further determined that plaintiffs had carried their burden of establishing a "possibility" of irreparable injury. Even under the Navy's own figures, the court concluded, the training exercises would cause 564 physical injuries to marine mammals, as well as 170,000 disturbances of marine mammals' behavior. at Lastly, the Court of Appeals held that the balance of hardships and consideration of the public interest weighed in favor of the plaintiffs. The court emphasized that the negative impact on the Navy's training exercises was "speculative," since the Navy has never before operated under the procedures required by the District Court. In particular, the court determined that: (1) the 2,200-yard shutdown zone imposed by the District Court was unlikely to affect the Navy's operations, because the Navy often shuts down its MFA sonar systems during the course of training exercises; and (2) the power-down requirement during significant surface ducting conditions was not unreasonable because such conditions are rare, and the Navy has previously certified strike groups that had not trained under such The Ninth Circuit concluded that the District Court's preliminary injunction struck a proper balance between the competing interests at stake. We granted certiorari, 554 U. S. and now reverse and vacate the injunction. III A A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. See Munaf v. Geren, 553 U. S. (slip op., at 12); Amoco Production ; The District Court and the Ninth Circuit concluded that plaintiffs have shown a likelihood of success on the merits of their NEPA claim. The Navy strongly disputes this determination, arguing that plaintiffs' likelihood of success is low because the CEQ reasonably concluded that "emergency circumstances" justified alternative arrangements to NEPA compliance. Plaintiffs' briefs before this Court barely discuss the ground relied upon by the lower courtsthat the plain meaning of "emergency circumstances" does not encompass a court order that was "entirely predictable" in light of the parties' litigation Instead, plaintiffs contend that the CEQ's actions violated the separation of powers by readjudicating a factual issue already decided by an Article III court. Moreover, they assert that the CEQ's interpretations of NEPA are |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | Moreover, they assert that the CEQ's interpretations of NEPA are not entitled to deference because the CEQ has not been given statutory authority to conduct adjudications. The District Court and the Ninth Circuit also held that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a "possibility" of irreparable at -697; ; Earth Island ). The lower courts held that plaintiffs had met this standard because the scientific studies, declarations, and other evidence in the record established to "a near certainty" that the Navy's training exercises would cause irreparable harm to the The Navy challenges these holdings, arguing that plaintiffs must demonstrate a likelihood of irreparable injury not just a possibilityin order to obtain preliminary relief. On the facts of this case, the Navy contends that plaintiffs' alleged injuries are too speculative to give rise to irreparable injury, given that ever since the Navy's training program began 40 years ago, there has been no documented case of sonar-related injury to marine mammals in SOCAL. And even if MFA sonar does cause a limited number of injuries to individual marine mammals, the Navy asserts that plaintiffs have failed to offer evidence of species-level harm that would adversely affect their scientific, recreational, and ecological interests. For their part, plaintiffs assert that they would prevail under any formulation of the irreparable injury standard, because the District Court found that they had established a "near certainty" of irreparable We agree with the Navy that the Ninth Circuit's "possibility" standard is too lenient. Our frequently reiterated standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is likely in the absence of an injunction. Los ; Granny Goose Foods, ; ; see also 11A C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure p. 139 (2d ed. 1995) (hereinafter Wright & Miller) (applicant must demonstrate that in the absence of a preliminary injunction, "the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered"); Issuing a preliminary injunction based only on a possibility of irreparable harm is inconsistent with our characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief. It is not clear that articulating the incorrect standard affected the Ninth Circuit's analysis of irreparable Although the court referred to the "possibility" standard, and cited Circuit precedent along the same lines, it affirmed the District Court's conclusion that plaintiffs had established a "`near certainty'" of irreparable 518 F.3d, |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | plaintiffs had established a "`near certainty'" of irreparable 518 F.3d, at -697. At the same time, however, the nature of the District Court's conclusion is itself unclear. The District Court originally found irreparable harm from sonar-training exercises generally. But by the time of the District Court's final decision, the Navy challenged only two of six restrictions imposed by the court. See The District Court did not reconsider the likelihood of irreparable harm in light of the four restrictions not challenged by the Navy. This failure is significant in light of the District Court's own statement that the 12-mile exclusion zone from the coastlineone of the unchallenged mitigation restrictions"would bar the use of MFA sonar in a significant portion of important marine mammal habitat." We also find it pertinent that this is not a case in which the defendant is conducting a new type of activity with completely unknown effects on the When the Government conducts an activity, "NEPA itself does not mandate particular results." Instead, NEPA imposes only procedural requirements to "ensur[e] that the agency, in reaching its decision, will have available, and will carefully consider, detailed information concerning significant environmental impacts." Part of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures. Here, in contrast, the plaintiffs are seeking to enjoinor substantially restrict training exercises that have been taking place in SOCAL for the last 40 years. And the latest series of exercises were not approved until after the defendant took a "hard look at environmental consequences," at ), as evidenced by the issuance of a detailed, 293-page EA. As explained in the next section, even if plaintiffs have shown irreparable injury from the Navy's training exercises, any such injury is outweighed by the public interest and the Navy's interest in effective, realistic training of its sailors. A proper consideration of these factors alone requires denial of the requested injunctive relief. For the same reason, we do not address the lower courts' holding that plaintiffs have also established a likelihood of success on the merits. B A preliminary injunction is an extraordinary remedy never awarded as of right. Munaf, 553 U. S., at (slip op., at 12). In each case, courts "must balance the competing claims of injury and must consider the effect on each party of the granting or withholding of the requested relief." Amoco Production 480 U. S., at "In exercising their sound courts of equity should pay particular regard for the public consequences in employing the |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | pay particular regard for the public consequences in employing the extraordinary remedy of injunction." ; see also Railroad Comm'n of In this case, the District Court and the Ninth Circuit significantly understated the burden the preliminary injunction would impose on the Navy's ability to conduct realistic training exercises, and the injunction's consequent adverse impact on the public interest in national defense. This case involves "complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force," which are "essentially professional military judgments." We "give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." As the Court emphasized just last Term, "neither the Members of this Court nor most federal judges begin the day with briefings that may describe new and serious threats to our Nation and its people." Boumediene v. Bush, 553 U. S. (slip op., at 68). Here, the record contains declarations from some of the Navy's most senior officers, all of whom underscored the threat posed by enemy submarines and the need for extensive sonar training to counter this threat. Admiral Gary Rougheadthe Chief of Naval Operationsstated that during training exercises: "It is important to stress the ship crews in all dimensions of warfare simultaneously. If one of these training elements were impactedfor example, if effective sonar training were not possiblethe training value of the other elements would also be degraded" Pet. App. 342a. Captain Martin Maythe Third Fleet's Assistant Chief of Staff for Training and Readinessemphasized that the use of MFA sonar is "mission-critical." App. 570-571. He described the ability to operate MFA sonar as a "highly perishable skill" that must be repeatedly practiced under realistic During training exercises, MFA sonar operators learn how to avoid sound-reducing "clutter" from ocean floor topography and environmental conditions; they also learn how to avoid interference and how to coordinate their efforts with other sonar operators in the strike group. Several Navy officers emphasized that realistic training cannot be accomplished under the two challenged restrictions imposed by the District Courtthe 2,200-yard shutdown zone and the requirement that the Navy power down its sonar systems during significant surface ducting See, e.g., Pet. App. 333a (powering down in presence of surface ducting "unreasonably prevent[s] realistic training"); at 356a (shutdown zone would "result in a significant, adverse impact to realistic training"). We accept these officers' assertions that the use of MFA sonar under realistic conditions during training exercises is of the utmost importance to the Navy and the Nation. These interests must be weighed against the possible harm to the |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | interests must be weighed against the possible harm to the ecological, scientific, and recreational interests that are legitimately before this Court. Plaintiffs have submitted declarations asserting that they take whale watching trips, observe marine mammals underwater, conduct scientific research on marine mammals, and photograph these animals in their natural habitats. Plaintiffs contend that the Navy's use of MFA sonar will injure marine mammals or alter their behavioral patterns, impairing plaintiffs' ability to study and observe the animals. While we do not question the seriousness of these interests, we conclude that the balance of equities and consideration of the overall public interest in this case tip strongly in favor of the Navy. For the plaintiffs, the most serious possible injury would be harm to an unknown number of the marine mammals that they study and observe. In contrast, forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet. Active sonar is the only reliable technology for detecting and tracking enemy diesel-electric submarines, and the Presidentthe Commander in Chiefhas determined that training with active sonar is "essential to national security." Pet. App. 232a. The public interest in conducting training exercises with active sonar under realistic conditions plainly outweighs the interests advanced by the plaintiffs. Of course, military interests do not always trump other considerations, and we have not held that they do. In this case, however, the proper determination of where the public interest lies does not strike us as a close question. C 1. Despite the importance of assessing the balance of equities and the public interest in determining whether to grant a preliminary injunction, the District Court addressed these considerations in only a cursory fashion. The court's entire discussion of these factors consisted of one (albeit lengthy) sentence: "The Court is also satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." at 217a-218a. As the prior Ninth Circuit panel in this case put it, in staying the District Court's original preliminary injunction, "[t]he district court did not give serious consideration to the public interest factor." F.3d, at 863. The District Court's order on remand did nothing to cure this defect, but simply repeated nearly verbatim the same sentence from its previous order. with Pet. App. 217a-218a. The subsequent Ninth Circuit panel framed its |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | Pet. App. 217a-218a. The subsequent Ninth Circuit panel framed its opinion as reviewing the District Court's exercise of -699, but that was barely exercised here. The Court of Appeals held that the balance of equities and the public interest favored the plaintiffs, largely based on its view that the preliminary injunction would not in fact impose a significant burden on the Navy's ability to conduct its training exercises and certify its strike groups. The court deemed the Navy's concerns about the preliminary injunction "speculative" because the Navy had not operated under similar procedures before. But this is almost always the case when a plaintiff seeks injunctive relief to alter a defendant's conduct. The lower courts failed properly to defer to senior Navy officers' specific, predictive judgments about how the preliminary injunction would reduce the effectiveness of the Navy's SOCAL training exercises. See Wright & Miller at 167-68 ("The policy against the imposition of judicial restraints prior to an adjudication of the merits becomes more significant when there is reason to believe that the decree will be burdensome"). 2. The preliminary injunction requires the Navy to shut down its MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. The Ninth Circuit stated that the 2,200-yard shutdown zone would not be overly burdensome because sightings of marine mammals during training exercises are relatively rare. But regardless of the frequency of marine mammal sightings, the injunction will greatly increase the size of the shutdown zone. Pursuant to its exemption from the MMPA, the Navy agreed to reduce the power of its MFA sonar at 1,000 yards and yards, and to completely turn off the system yards. Pet. App. 222a-230a. The District Court's injunction does not include a graduated power-down, instead requiring a total shutdown of MFA sonar if a marine mammal is detected within 2,200 yards of a sonar-emitting vessel. There is an exponential relationship between radius length and surface area (Area = π r2). Increasing the radius of the shutdown zone from 200 to 2,200 yards would accordingly expand the surface area of the shutdown zone by a factor of over 0 (from 125,664 square yards to 15,205,308 square yards). The lower courts did not give sufficient weight to the views of several top Navy officers, who emphasized that because training scenarios can take several days to develop, each additional shutdown can result in the loss of several days' worth of training. at 344a. Limiting the number of sonar shutdowns is particularly important during the Joint Tactical Force Exercises, which usually last for less than two |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | Tactical Force Exercises, which usually last for less than two weeks. Admiral Bird explained that the 2,200-yard shutdown zone would cause operational commanders to "lose awareness of the tactical situation through the constant stopping and starting of MFA [sonar]." at 332a; see also at 356a ("It may take days to get to the pivotal attack in antisubmarine warfare, but only minutes to confound the results upon which certification is based"). Even if there is a low likelihood of a marine mammal sighting, the preliminary injunction would clearly increase the number of disruptive sonar shutdowns the Navy is forced to perform during its SOCAL training exercises. The Court of Appeals also concluded that the 2,200-yard shutdown zone would not be overly burdensome because the Navy had shut down MFA sonar 27 times during its eight prior training exercises in SOCAL; in several of these cases, the Navy turned off its sonar when marine mammals were spotted well beyond the Navy's selfimposed 200-yard shutdown zone. n. 65. Admiral Locklearthe Commander of the Navy's Third Fleetstated that any shutdowns beyond the 200-yard zone were voluntary avoidance measures that likely took place at tactically insignificant times; the Ninth Circuit discounted this explanation as not supported by the record. In reaching this conclusion, the Court of Appeals ignored key portions of Admiral Locklear's declaration, in which he stated unequivocally that commanding officers "would not shut down sonar until legally required to do so if in contact with a submarine." Pet. App. 354a-355a. Similarly, if a commanding officer is in contact with a target submarine, "the CO will be expected to continue to use active sonar unless another ship or helicopter can gain contact or if regulatory reasons dictate otherwise." at 355a. The record supports the Navy's contention that its shutdowns of MFA sonar during prior training exercises only occurred during tactically insignificant times; those voluntary shutdowns do not justify the District Court's imposition of a mandatory 2,200-yard shutdown zone. Lastly, the Ninth Circuit stated that a 2,200-yard shutdown zone was feasible because the Navy had previously adopted a 2,000-meter zone for low-frequency active (LFA) sonar. The Court of Appeals failed to give sufficient weight to the fact that LFA sonar is used for long-range detection of enemy submarines, and thus its use and shutdown involve tactical considerations quite different from those associated with MFA sonar. See App. 508 (noting that equating MFA sonar with LFA sonar "is completely misleading and is like comparing 20 degrees Fahrenheit to 20 degrees Celsius"). 3. The Court of Appeals also concluded that the Navy's training exercises would not be |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | also concluded that the Navy's training exercises would not be significantly affected by the requirement that it power down MFA sonar by 6 dB during significant surface ducting Again, we think the Ninth Circuit understated the burden this requirement would impose on the Navy's ability to conduct realistic training exercises. Surface ducting is a phenomenon in which relatively little sound energy penetrates beyond a narrow layer near the surface of the water. When surface ducting occurs, active sonar becomes more useful near the surface but less useful at greater depths. Pet. App. 299a-300a. Dieselelectric submariners are trained to take advantage of these distortions to avoid being detected by sonar. at 333a. The Ninth Circuit determined that the power-down requirement during surface ducting conditions was unlikely to affect certification of the Navy's strike groups because surface ducting occurs relatively rarely, and the Navy has previously certified strike groups that did not train under such -702. This reasoning is backwards. Given that surface ducting is both rare and unpredictable, it is especially important for the Navy to be able to train under these conditions when they occur. Admiral Bird explained that the 6 dB powerdown requirement makes the training less valuable because it "exposes [sonar operators] to unrealistically lower levels of mutual interference caused by multiple sonar systems operating together by the ships within the Strike Group." Pet. App. 281a (footnote omitted). Although a 6 dB reduction may not seem terribly significant, decibels are measured on a logarithmic scale, so a 6 dB decrease in power equates to a 75% reduction. at 284a-285a. 4. The District Court acknowledged that "`the imposition of these mitigation measures will require the Navy to alter and adapt the way it conducts antisubmarine warfare traininga substantial challenge. Nevertheless, evidence presented to the Court reflects that the Navy has employed mitigation measures in the past, without sacrificing training objectives.'" Apparently no good deed goes unpunished. The fact that the Navy has taken measures in the past to address concerns about marine mammalsor, for that matter, has elected not to challenge four additional restrictions imposed by the District Court in this case, see hardly means that other, more intrusive restrictions pose no threat to preparedness for war. The Court of Appeals concluded its opinion by stating that "the Navy may return to the district court to request relief on an emergency basis" if the preliminary injunction "actually result[s] in an inability to train and certify sufficient naval forces to provide for the national defense." This is cold comfort to the Navy. The Navy contends that the injunction will hinder |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | the Navy. The Navy contends that the injunction will hinder efforts to train sonar operators under realistic conditions, ultimately leaving strike groups more vulnerable to enemy submarines. Unlike the Ninth Circuit, we do not think the Navy is required to wait until the injunction "actually result[s] in an inability to train sufficient naval forces for the national defense" before seeking its dissolution. By then it may be too late. IV As noted above, we do not address the underlying merits of plaintiffs' claims. While we have authority to proceed to such a decision at this point, see Munaf, 553 U. S., at (slip op., at 13-14), doing so is not necessary here. In addition, reaching the merits is complicated by the fact that the lower courts addressed only one of several issues raised, and plaintiffs have largely chosen not to defend the decision below on that ground.[5] At the same time, what we have said makes clear that it would be an abuse of to enter a permanent injunction, after final decision on the merits, along the same lines as the preliminary injunction. An injunction is a matter of equitable ; it does not follow from success on the merits as a matter of course. Romero-Barcelo, The factors examined abovethe balance of equities and consideration of the public interestare pertinent in assessing the propriety of any injunctive relief, preliminary or permanent. See Amoco Production n. 12 Given that the ultimate legal claim is that the Navy must prepare an EIS, not that it must cease sonar training, there is no basis for enjoining such training in a manner credibly alleged to pose a serious threat to national security. This is particularly true in light of the fact that the training has been going on for 40 years with no documented episode of harm to a marine mammal. A court concluding that the Navy is required to prepare an EIS has many remedial tools at its disposal, including declaratory relief or an injunction tailored to the preparation of an EIS rather than the Navy's training in the interim. See, e.g., In the meantime, we see no basis for jeopardizing national security, as the present injunction does. Plaintiffs confirmed at oral argument that the preliminary injunction was "the whole ball game," Tr. of Oral Arg. 33, and our analysis of the propriety of preliminary relief is applicable to any permanent injunction as well. * * * President Theodore Roosevelt explained that "the only way in which a navy can ever be made efficient is by practice at sea, under all the conditions |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | efficient is by practice at sea, under all the conditions which would have to be met if war existed." President's Annual Message, 42 Cong. Rec. 67, 81 (1907). We do not discount the importance of plaintiffs' ecological, scientific, and recreational interests in marine mammals. Those interests, however, are plainly outweighed by the Navy's need to conduct realistic training exercises to ensure that it is able to neutralize the threat posed by enemy submarines. The District Court abused its by imposing a 2,200-yard shutdown zone and by requiring the Navy to power down its MFA sonar during significant surface ducting The judgment of the Court of Appeals is reversed, and the preliminary injunction is vacated to the extent it has been challenged by the Navy. It is so ordered. JUSTICE BREYER, with whom JUSTICE STEVENS joins as to Part I, concurring in part and dissenting in part. As of December the United States Navy planned to engage in a series of 14 antisubmarine warfare training exercises off the southern California coast. The Natural Resources Defense Council, Inc., and others (hereinafter NRDC) brought this case in Federal District Court claiming that the National Environmental Policy Act of 1969 (NEPA) requires the Navy to prepare an environmental impact statement (EIS) (assessing the impact of the exercises on marine mammals) prior to its engaging in the exercises. As the case reaches us, the District Court has found that the NRDC will likely prevail on its demand for an EIS; the Navy has agreed to prepare an EIS; the District Court has forbidden the Navy to proceed with the exercises unless it adopts six mitigating measures; and the Navy has agreed to adopt all but two of those measures. The controversy between the parties now concerns the two measures that the Navy is unwilling to adopt. The first concerns the "shutdown zone," a circle with a ship at the center within which the Navy must try to spot marine mammals and shut down its sonar if one is found. The controverted condition would enlarge the radius of that circle from about one-tenth of a mile (200 yards) to one and one-quarter mile (2,200 yards). The second concerns special ocean conditions called "surface ducting " The controverted condition would require the Navy, when it encounters any such condition, to diminish the sonar's power by 75%. The Court of Appeals affirmed the District Court order that contained these two I We must now decide whether the District Court was legally correct in forbidding the training exercises unless the Navy implemented the two controverted In doing so, I |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | the Navy implemented the two controverted In doing so, I assume, like the Court, that the NRDC will prevail on its demand for an EIS. (Indeed, the Navy is in the process of preparing one.) And, I would ask whether, in imposing these conditions, the District Court properly "balance[d the] harms." See, e.g., Amoco Production Respondents' (hereinafter plaintiffs) argument favoring the District Court injunction is a strong one. As JUST-ICE GINSBURG well points out, see post, at 4-5 (dissenting opinion), the very point of NEPA's insistence upon the writing of an EIS is to force an agency "carefully" to "consider. detailed information concerning significant environmental impacts," while "giv[ing] the public the assurance that the agency `has indeed considered environmental concerns in its decisionmaking process.'" NEPA seeks to assure that when Government officials consider taking action that may affect the environment, they do so fully aware of the relevant environmental considerations. An EIS does not force them to make any particular decision, but it does lead them to take environmental considerations into account when they decide whether, or how, to act. Thus, when a decision to which EIS obligations attach is made without the informed environmental consideration that NEPA requires, much of the harm that NEPA seeks to prevent has already taken place. In this case, for example, the absence of an injunction means that the Navy will proceed with its exercises in the absence of the fuller consideration of environmental effects that an EIS is intended to bring. The absence of an injunction thereby threatens to cause the very environmental harm that a full preaction EIS might have led the Navy to avoid (say, by adopting the two additional mitigation measures that the NRDC proposes). Consequently, if the exercises are to continue, conditions designed to mitigate interim environmental harm may well be appropriate. On the other hand, several features of this case lead me to conclude that the record, as now before us, lacks adequate support for an injunction imposing the two controverted requirements. First, the evidence of need for the two special conditions is weak or uncertain. The record does show that the exercises as the Navy originally proposed them could harm marine mammals. The District Court found (based on the Navy's study of the matter) that the exercises might cause 466 instances of Level A harm and 170,000 instances of Level B App. to Pet. for Cert. 196a-197a. (The environmental assessment (EA) actually predicted 564 instances of Level A See App. 223-224.) The study defines Level A injury as "any act that injures or has the significant potential |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | as "any act that injures or has the significant potential to injure a marine mammal or marine mammal stock in the wild" through "destruction or loss of biological tissue," whether "slight to severe." It defines Level B harm as "`any act that disturbs or is likely to disturb a marine mammal by causing disruption of natural behavioral patterns including, but not limited to, migration, surfacing, nursing, breeding, feeding, or sheltering to a point where such behaviors are abandoned or significantly altered'" and describes it as a "short term" and "temporary" "disturbance." The raw numbers seem large. But the parties argue about the extent to which they mean likely The Navy says the classifications and estimates err on the side of caution. (When in doubt about the amount of harm to a mammal, the study assumed the harm would qualify as Level A harassment.) The Navy also points out that, by definition, mammals recover from Level B injuries, often very quickly. It notes that, despite 40 years of naval exercises off the southern California coast, no injured marine mammal has ever been found. App. to Pet. for Cert. 274a-275a. (It adds that dolphins often swim alongside the ships.) At the same time, plaintiffs point to instances where whales have been found stranded. They add that scientific studies have found a connection between those beachings and the Navy's use of sonar, see, e.g., App. 600-602, and the Navy has even acknowledged one stranding where "U. S. Navy midfrequency sonar has been identified as the most plausible contributory source to the stranding event," Given the uncertainty the figures create in respect to the harm caused by the Navy's original training plans, it would seem important to have before us at least some estimate of the harm likely avoided by the Navy's decision not to contest here four of the six mitigating conditions that the District Court ordered. Without such evidence, it is difficult to assess the relevant harmthat is, the environmental harm likely caused by the Navy's exercises with the four uncontested mitigation measures (but without the two contested mitigation measures) in place. Second, the Navy has filed multiple affidavits from Navy officials explaining in detail the seriousness of the harm that the delay associated with completion of this EIS (approximately one year) would create in respect to the Navy's ability to maintain an adequate national defense. See generally App. to Pet. for Cert. 260a-357a. Taken by themselves, those affidavits make a strong case for the proposition that insistence upon the two additional mitigating conditions would seriously interfere with necessary defense training. The |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | mitigating conditions would seriously interfere with necessary defense training. The affidavits explain the importance of training in antisubmarine warfare, at 263a; the need to use active sonar to detect enemy submarines, at 266a-267a, App. 566; the complexity of a training exercise involving sonar, App. to Pet. for Cert. 343a; the need for realistic conditions when training exercises take place, at 299a-300a, App. 566; the "cascading" negative "effect" that delay in one important aspect of a set of coordinated training exercises has upon the Navy's ability "to provide combat ready forces," App. to Pet. for Cert. 343a; the cost and disruption that would accompany the adoption of the two additional mitigating conditions that the NRDC seeks, ibid.; the Navy's resulting inability adequately to train personnel, at 278a; the effectiveness of the mammal-protecting measures that the Navy has taken in the past, at 285a-298a; and the reasonable likelihood that the mitigating conditions to which it has agreed will prove adequate, at 296a. Third, and particularly important in my view, the District Court did not explain why it rejected the Navy's affidavit-supported contentions. In its first opinion enjoining the use of sonar, the District Court simply stated: "The Court is satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur if prevented from using [mid-frequency active (MFA)] sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." at 217a-218a. Following remand from the Court of Appeals, the District Court simply repeated, word for word, this same statement. It said: "The Court is satisfied that the balance of hardships tips in favor of granting an injunction, as the harm to the environment, Plaintiffs, and public interest outweighs the harm that Defendants would incur (or the public interest would suffer) if Defendants were prevented from using MFA sonar, absent the use of effective mitigation measures, during a subset of their regular activities in one part of one state for a limited period." With respect to the imposition of the 2,200 yard shutdown zone, the District Court noted evidence of the harm that MFA sonar poses to marine mammals, and then concluded that "[t]he Court therefore is persuaded that while the 2200 yard shutdown requirement may protect marine mammals from the harshest of sonar-related consequences, it represents a minimal imposition [on] the Navy's training exercises." The District Court did not there explain the basis for that conclusion. With respect to the |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | explain the basis for that conclusion. With respect to the imposition of the surface ducting condition, the District Court said nothing about the Navy's interests at all. While a District Court is often free simply to state its conclusion in summary fashion, in this instance neither that conclusion, nor anything else I have found in the District Court's opinion, answers the Navy's documented claims that the two extra conditions the District Court imposed will, in effect, seriously interfere with its ability to carry out necessary training exercises. The first condition requires the Navy to reduce the power of its sonar equipment by 75% when the ship encounters a condition called "surface ducting" that occurs when the presence of layers of water of different temperature make it unusually difficult for sonar operators to determine whether a diesel submarine is hiding below. Rear Admiral John Bird, an expert in submarine warfare, made clear that the 75% power-reduction requirement was equivalent to forbidding any related training. App. to Pet. for Cert. 297a. But he says in paragraph 52 of his declaration: "Training in surface ducting conditions is critical to effective training because sonar operators need to learn how sonar transmissions are altered due to surface ducting and how submarines may take advantage of them." at 299a-300a. The District Court, as far as I can tell, did not even acknowledge in its opinion the Navy's asserted interest in being able to train under these 530 F. Supp. 2d, The second condition requires the Navy to expand the sonar "shutdown" area surrounding a ship (i.e., turn off the sonar if a mammal is spotted in the area) from a circle with a radius of about one-tenth of a mile to a circle with a radius of about one mile and a quarter. Both sides agree that this requirement will lead to more shutdowns. Admiral Gary Roughead, Chief of Naval Operations, states in paragraph 12 of his declaration that this expanded zone requirement "will result in increased interruptions to training exercises, vastly increas[ing] the risk of negating training effectiveness, preventing strike group certification, and disrupting carefully orchestrated deployment plans to meet world-wide operational commitments." App. to Pet. for Cert. 344a. Again, I can find nothing in the District Court's opinion that specifically explains why this is not so. -1120. Fourth, the Court of Appeals sought, through its own thorough examination of the record, to supply the missing explanations. But those explanations are not sufficient. In respect to the surface ducting conditions, the Court of Appeals rejected the Navy's contentions on the ground that those conditions are |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | the Navy's contentions on the ground that those conditions are "rar[e]," and the Navy has certified trainings that did not involve any encounter with those -702. I am not certain, however, why the rarity of the condition supports the District Court's conclusion. Rarity argues as strongly for training when the condition is encountered as it argues for the contrary. In respect to the expansion of the "shutdown" area, the Court of Appeals noted that (1) the Navy in earlier exercises had shut down its sonar when marine mammals were sited within about one-half a mile, (2) the Navy has used a larger shutdown area when engaged in exercises with lower frequency sonar equipment, and (3) foreign navies have used larger shutdown areas. and nn. 63, 67. But the Navy's affidavits state that (1) earlier shutdowns when marine mammals were spotted at farther distances "likely occurred during tactically insignificant times," App. to Pet. for Cert. 356a, (2) ships with low frequency sonar (unlike the sonar here at issue) have equipment that makes it easier to monitor the larger area, particularly by significantly reducing the number of monitoring personnel necessarily involved, and (3) foreign navy experience is not relevant given the potentially different military demands upon those navies, App. 508-509. Finally, the Court of Appeals, mirroring a similar District Court suggestion in the language I have quoted, says that "the exercises in southern California are only a subset of the Navy's training activities involving active sonar." It adds that the Navy's study "shows the Navy is still able to conduct its exercises in alternative locations, in reduced number, or through simulation." n. 69. The Court of Appeals, however, also concluded that the study "provides reasonably detailed justifications for why the Southern California Operating Area is uniquely suited to these exercises, and demonstrates that the Navy would suffer a certain hardship if the considered alternatives were employed instead." Fifth, when the Court of Appeals first heard this case following the District Court's imposition of a broad, absolute injunction, it held that any injunction must be crafted so that the Navy could continue its training exercises. Noting that the Navy had, in the past, been able to use mitigation measures to "reduce the harmful effects of its active sonar," it "vacate[d] the stay and remand[ed] this matter to the district court to narrow its injunction so as to provide mitigation conditions under which the Navy may conduct its training exercises." For the reasons just stated, neither the District Court nor the Court of Appeals has explained why we should reject the Navy's assertions that |
Justice Roberts | 2,008 | 0 | majority | Winter v. Natural Resources Defense Council, Inc. | https://www.courtlistener.com/opinion/145928/winter-v-natural-resources-defense-council-inc/ | has explained why we should reject the Navy's assertions that it cannot effectively conduct its training exercises under the mitigation conditions imposed by the District Court. I would thus vacate the preliminary injunction imposed by the District Court to the extent it has been challenged by the Navy. Neither the District Court nor the Court of Appeals has adequately explained its conclusion that the balance of the equities tips in favor of plaintiffs. Nor do those parts of the record to which the parties have pointed supply the missing explanation. II Nonetheless, as the Court of Appeals held when it first considered this case, the Navy's past use of mitigation conditions makes clear that the Navy can effectively train under some mitigation In the ordinary course, I would remand so the District Court could, pursuant to the Court of Appeals' direction, set forth mitigation conditions that will protect the marine wildlife while also enabling the Navy to carry out its exercises. But, at this point, the Navy has informed us that this set of exercises will be complete by January, at the latest, and an EIS will likely be complete at that point, as well. Thus, by the time the District Court would have an opportunity to impose new conditions, the case could very well be moot. In February of this year, the Court of Appeals stayed the injunction imposed by the District Courtbut only pending this Court's resolution of the case. The Court of Appeals concluded that "[i]n light of the short time before the Navy is to commence its next exercise, the importance of the Navy's mission to provide for the national defense and the representation by the Chief of Naval Operations that the district court's preliminary injunction in its current form will `unacceptably risk' effective training and strike group certification and thereby interfere with his statutory responsibility to `organiz[e], train[], and equip[] the Navy,'" interim relief was appropriate, and the court then modified the two mitigation conditions at issue. With respect to the 2,200 yard shutdown zone, it required the Navy to suspend its use of the sonar if a marine mammal is detected within 2,200 yards, except when sonar is being used at a "critical point in the exercise," in which case the amount by which the Navy must power down is proportional to the mammal's proximity to the sonar. at -706 With respect to surface ducting, the Navy is only required to shut down sonar altogether when a marine mammal is detected within meters and the amount by which it is otherwise required to power |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | Pursuant to the federal use immunity provisions, 18 U.S. C. งง 6001-6005, a United States Attorney may request an order from a federal court compelling a witness to testify even though he has asserted his privilege against self-incrimination. Section 6002 provides, however, that "no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case" The issue presented in this case is whether a deponent's civil deposition testimony, repeating *250 verbatim or closely tracking his prior immunized testimony, is immunized "testimony" that can be compelled over the valid assertion of his Fifth Amendment privilege. I Respondent John Conboy is a former executive of a defendant in In re Corrugated Container Antitrust Litigation, M. D. L. 310 (SD Tex.). In January 1978, United States Department of Justice attorneys interviewed Conboy following a promise of use immunity. Conboy subsequently appeared before a grand jury investigating price-fixing activities and, pursuant to 18 U.S. C. ง 6002, was granted formal use immunity for his testimony. Following the criminal indictment of several companies, numerous civil antitrust actions were filed in various United States District Courts. Those actions were consolidated for discovery in the District Court for the Southern District of Texas. Petitioners here are purchasers of corrugated containers who elected to opt out of the class-action proceedings and pursue their own causes of action against manufacturers. The District Court ordered that portions of the immunized Government interview and grand jury testimony of certain witnesses, including that of Conboy, be made available to lawyers for the class and opt-outs.[1] Pursuant to a subpoena issued by the District Court for the Northern District of Illinois, Conboy appeared in Chicago for a deposition at which he, his counsel, and petitioners' counsel had copies of his immunized testimony. The transcripts were marked as deposition exhibits so that all could follow the intended examination. The questioning fell into the following pattern: a question was read from the transcript; it then was rephrased to include the transcript answer (i. e., *251 "Is it not the fact that"); finally, Conboy was asked if he had "so testif[ied]" in his immunized interview and grand jury examination.[2] Conboy refused to answer each question, asserting his Fifth Amendment privilege against self-incrimination. The District Court granted petitioners' motion to compel Conboy to answer the questions.[3] When Conboy continued to claim his privilege, the District Court held him in contempt, but stayed its order pending appeal. A panel of the Court of Appeals for the Seventh Circuit |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | panel of the Court of Appeals for the Seventh Circuit affirmed the contempt order, holding that, "[b]ecause the questions asked in this deposition were taken verbatim from or closely tracked the transcript of Conboy's grand jury testimony, we believe that his answers at the deposition would be `derived from' the prior immunized [testimony] and therefore unavailable for use in any subsequent criminal prosecution." In re Corrugated Container Antitrust Litigation, Appeal of Conboy, On rehearing en banc, the Court of Appeals reversed the District Court. It first determined that Conboy's alleged fear of prosecution was more than "fanciful," and that Conboy therefore was entitled to assert his Fifth Amendment privilege unless his deposition *252 testimony could not be used against him in a subsequent criminal action, see[4] The court then held that under ง 6002, absent a separate and independent grant of immunity,[5] a deponent's civil deposition testimony that repeats verbatim or closely tracks his prior immunized testimony is not protected. While acknowledging that verbatim questions "of course [would be] derived" from the immunized testimony, the court reasoned that the answers to such questions "are derived from the deponent's current, independent memory of events" and thus "necessarily create a new source of evidence" that could be used in a subsequent criminal prosecution against Conboy. We granted certiorari to resolve the conflict in the Courts of Appeals,[6] and now affirm. II It is settled that government must have the power to compel testimony "to secure information necessary for effective law enforcement."[7] For many years, however, a person who was compelled to testify under a grant of governmental *253 immunity could not be prosecuted for any conduct about which he had testified. See New (19). Prosecutors therefore were reluctant to grant such "transactional" immunity to potential targets of criminal investigations. See S. Rep. No. 91-617, p. 53 (1969). The "major purpose" of the Organized Crime Control Act of 1970, Stat. 922, of which ง 6002 was a key provision, was "to provide the criminal justice system with the necessary legal tools to strengthe[n] the evidence gathering process and insur[e] that the evidence will then be available and admissible at trial." 116 Cong. Rec. 35200 (1970) (statement of Rep. St Germain). Congress sought to make the grant of immunity more useful for law enforcement officers through two specific changes. First, Congress made the grant of immunity less expansive[8] by repealing the authority for transactional immunity and providing for the less comprehensive use immunity authorized in ง 6002.[9] Second, Congress gave certain officials in *254 the Department of Justice[10] exclusive authority to grant immunities.[11] The |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | the Department of Justice[10] exclusive authority to grant immunities.[11] The Court upheld the constitutionality of the use immunity statute in The power to compel testimony is limited by the Fifth Amendment, and we held that any grant of immunity must be coextensive with the privilege. We were satisfied, however, *255 that ง 6002 provided this measure of protection and thus "removed the dangers against which the privilege protects." In rejecting the argument that use and derivative-use immunity would not adequately protect a witness from various incriminating uses of the compelled testimony, we emphasized that "[t]he statute provides a sweeping proscription of any use, direct or indirect, of the compelled testimony and any information derived therefrom" We added that once a defendant establishes that he has testified under a grant of immunity, "the prosecution [has] the affirmative duty to prove that the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Thus, "immunity from use and derivative use `leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege' in the absence of a grant of immunity." (quoting 378 U. S., at ). III With the foregoing statutory history and relevant principles in mind, we turn now to this case. It is not disputed that the questions asked of Conboy were directly or indirectly derived from his immunized testimony. The issue as presented to us is whether the causal connection between the questions and the answers is so direct that the answers also are derived from that testimony and therefore should be excluded under the grant of immunity. Petitioners' argument is based on the language of ง 6002 and on a common understanding of the words "derived from." The questions formulated on the basis of immunized testimony are clearly "derived from" the prior testimony. Thus, the answers that repeat verbatim or closely track a deponent's testimony are necessarily also "derived from" and "tainted by" such testimony. Petitioners therefore find no basis for the distinction made by the Court of Appeals between questions and answers responsive to those same questions. *256 An answer by its very nature is evoked by and responds to information contained in a question. Conboy's position is also straightforward: Questions do not incriminate; answers do. Unlike the questions, answers are not directly or indirectly derived from the immunized grand jury or interview transcripts, but from the deponent's current, independent memory of events. Even when a deponent's deposition answers are identical to those he gave to the grand jury, he is under |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | those he gave to the grand jury, he is under oath to tell the truth, not necessarily as he told it before the grand jury, but as he knows it now. Each new statement of the deponent creates a new "source." In sum, the initial grant of immunity does not prevent the prosecutor from prosecuting; it merely limits his sources of evidence. Although the parties make their arguments in terms tracking those of the statute โ whether the deposition testimony is "derived from" the prior testimony โ it is clear that the crux of their dispute is whether the earlier grant of immunity itself compelled Conboy to talk.[12] Petitioners contend that the prior grant of immunity already had supplanted Conboy's Fifth Amendment privilege at the time of the civil deposition. Petitioners would limit this immunity, of course, to testimony that "closely tracks" his prior immunized testimony. It is argued that this would not threaten the Government's need for admissible evidence or the individual's interest in avoiding self-incrimination. In the absence of such a threat, admissible evidence should be available to civil antitrust plaintiffs. But we cannot accept the assumptions upon which petitioners' conclusion rests. In our view, a District Court cannot compel Conboy to answer deposition questions over a *257 valid assertion of his Fifth Amendment right, absent a duly authorized assurance of immunity at the time.[13] We note at the outset that although there may be practical reasons for not testifying,[14] as far as the deponent's Fifth Amendment right is concerned he should be indifferent between the protection afforded by silence and that afforded by immunity. A deponent's primary interest is that the protection be certain. The Government's interest, however, may be affected seriously by whether the deponent relies at the civil deposition on his Fifth Amendment privilege or on his prior grant of immunity. With due recognition of petitioners' *258 need for admissible evidence, our inquiry then is whether this need can be met without jeopardizing the Government's interest in limiting the scope of an immunity grant or encroaching upon the deponent's certainty of protection. A Questions taken verbatim from a transcript of immunized testimony could evoke one of several responses from a deponent: (i) he could repeat or adopt his immunized answer;[15] (ii) he could affirm that the transcript of his immunized answers accurately reflects his prior testimony; (iii) he could recall additional information responsive to the question but not disclosed in his immune testimony; or (iv) he could disclose information that is not responsive to the question. Petitioners do not contend, nor could they, that the |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | question. Petitioners do not contend, nor could they, that the prior grant of use immunity affords protection for all self-incriminating information disclosed by the immunized witness on any occasion after the giving of the immunized testimony. Rather, petitioners argue that only the first three responses would be "derived from" his immune testimony and therefore would be unavailable for use against the deponent in any subsequent criminal prosecution. Petitioners' premise is that the deposition of Conboy is designed not to discover new information,[16] but to obtain evidence *259 that simply repeats the statements in the immunized transcript.[17] Because there will be little opportunity for the grant of immunity to sweep in statements on direct examination that the Government did not intend to immunize, or for the deponent to give responses that may fall outside of the grant of immunity and later be used against him in a subsequent criminal prosecution, petitioners argue that Conboy's deposition will yield only a carbon copy of the grand jury transcript. In such a situation, it would be desirable for civil plaintiffs, particularly those bringing private suits that supplement the criminal enforcement of the federal antitrust laws, to have access to the available, probative information. But even if the direct examination is limited to the questions and answers in the immunized transcript, there remains the right of cross-examination,[18] a right traditionally relied upon expansively to test credibility as well as to seek the truth. Petitioners recognize this problem, but maintain that the antitrust defendants "would be entitled to test the accuracy *260 and truthfulness of Conboy's repeated immunized testimony without going beyond the confines of that testimony." Reply Brief for Petitioners 14-15. Regardless of any limitations that may be imposed on its scope,[19] however, cross-examination is intended to and often will produce information not elicited on direct. We must assume that, to produce admissible evidence, the scope of cross-examination at the deposition cannot easily be limited to the immunized testimony. This assumption implicates both the Government's and the individual's interests embodied in ง 6002. B Use immunity was intended to immunize and exclude from a subsequent criminal trial only that information to which the Government expressly has surrendered future use. If the Government is engaged in an ongoing investigation of the particular activity at issue, immunizing new information (e. g., the answers to questions in a case like this one) may make it more difficult to show in a subsequent prosecution that similar information was obtained from wholly independent sources. If a district court were to conclude in a subsequent civil proceeding that the prior immunity |
Justice Powell | 1,983 | 17 | majority | Pillsbury Co. v. Conboy | https://www.courtlistener.com/opinion/110821/pillsbury-co-v-conboy/ | conclude in a subsequent civil proceeding that the prior immunity order extended to civil deposition testimony closely tracking the immunized testimony, it in effect could invest the deponent with transactional immunity on matters about which he testified at the immunized proceedings. This is precisely the kind of immunity Congress intended to prohibit. The purpose of ง 6002 was to limit the scope of immunity to the level that is constitutionally required, as well as to limit the use of *261 immunity to those cases in which the Attorney General, or officials designated by him, determine that gaining the witness' testimony outweighs the loss of the opportunity for criminal prosecution of that witness.[20] C Petitioners' interpretation of ง 6002 also places substantial risks on the deponent.[21] Unless the grant of immunity assures a witness that his incriminating testimony will not be used against him in a subsequent criminal prosecution, the witness has not received the certain protection of his Fifth Amendment privilege that he has been forced to exchange. No court has authority to immunize a witness. That responsibility, as we have noted, is peculiarly an executive one, and only the Attorney General or a designated officer of the Department of Justice has authority to grant use immunity. See 18 U.S. C. งง 6002, 6003. Nor should a court, at the time of the civil testimony, predetermine the decision of the court in a subsequent criminal prosecution on the question whether the Government has met its burden of proving that "the evidence it proposes to use is derived from a legitimate source wholly independent of the compelled testimony." Kastigar, 406 U. S., Yet in holding Conboy in contempt for his Fifth Amendment silence, the District Court below essentially predicted that a court in any future criminal prosecution of Conboy will be obligated to protect against evidentiary use of the deposition testimony petitioners seek. We do not think such a predictive judgment is enough. *262 Petitioners' interpretation of ง 6002 imposes risks on the deponent whether or not the deposition testimony properly can be used against him in a subsequent criminal prosecution.[22] Accordingly, the District Court's compulsion order in this case, in the absence of statutory authority or a new grant of immunity by the United States Attorney, cannot be justified by the subsequent exclusion of the compelled testimony. As JUSTICE MARSHALL notes in his concurring opinion: "Whatever justification there may be for requiring a witness to give incriminating testimony in aid of a criminal investigation after the Government has granted use immunity, there is no similar justification for compelling a witness |
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