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Justice Brennan | 1,981 | 13 | dissenting | First Nat. Maintenance Corp. v. NLRB | https://www.courtlistener.com/opinion/110533/first-nat-maintenance-corp-v-nlrb/ | Section 8 (d) of the National Labor Relations Act, as amended, requires employers and employee representatives "to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment." 29 U.S. C. 158 (d). The question in this case is whether First National Maintenance Corporation's decision to terminate its Greenpark Care Center operation and to discharge the workers employed in that operation was a decision with respect to "terms and conditions of employment" within the meaning of the Act, thus rendering its failure to negotiate with the union unlawful. *689 As this Court has noted, the words "terms and conditions of employment" plainly cover termination of employment resulting from a management decision to close an operation. Fibreboard Paper Products As the Court today admits, the decision to close an operation "touches on a matter of central and pressing concern to the union and its member employees." Ante, at 677. Moreover, as the Court today further concedes, Congress deliberately left the words "terms and conditions of employment" indefinite, so that the NLRB would be able to give content to those terms in light of changing industrial conditions. Ante, at 675, and n. 14. In the exercise of its congressionally delegated authority and accumulated expertise, the Board has determined that an employer's decision to close part of its operations affects the "terms and conditions of employment" within the meaning of the Act, and is thus a mandatory subject for collective bargaining. Ozark Trailers, Inc., 161 N. L. R. B. 561 (1966). Nonetheless, the Court today declines to defer to the Board's decision on this sensitive question of industrial relations, and on the basis of pure speculation reverses the judgment of the Board and of the Court of Appeals. I respectfully dissent. The Court bases its decision on a balancing test. It states that "bargaining over management decisions that have a substantial impact on the continued availability of employment should be required only if the benefit, for labor-management relations and the collective-bargaining process, outweighs the burden placed on the conduct of the business." Ante, at 679. I cannot agree with this test, because it takes into account only the interests of management; it fails to consider the legitimate employment interests of the workers and their union. Cf. Brockway Motor This one-sided approach hardly serves "to foster in a neutral manner" *690 a system for resolution of these serious, two-sided controversies. See ante, at 680-681. Even if the Court's statement of the test were accurate, I could not join in its application, which is based |
Justice Brennan | 1,981 | 13 | dissenting | First Nat. Maintenance Corp. v. NLRB | https://www.courtlistener.com/opinion/110533/first-nat-maintenance-corp-v-nlrb/ | I could not join in its application, which is based solely on speculation. Apparently, the Court concludes that the benefit to labor-management relations and the collective-bargaining process from negotiation over partial closings is minimal, but it provides no evidence to that effect. The Court acknowledges that the union might be able to offer concessions, information, and alternatives that might obviate or forestall the closing, but it then asserts that "[i]t is unlikely, however, that requiring bargaining over the decision will augment this flow of information and suggestions." Ante, at 681. Recent experience, however, suggests the contrary. Most conspicuous, perhaps, were the negotiations between Chrysler Corporation and the United Auto Workers, which led to significant adjustments in compensation and benefits, contributing to Chrysler's ability to remain afloat. See Wall Street Journal, Oct. 26, 1979, p. 3, col. 1. Even where labor costs are not the direct cause of a company's financial difficulties, employee concessions can often enable the company to continue in operationif the employees have the opportunity to offer such concessions.[*] The Court further presumes that management's need for "speed, flexibility, and secrecy" in making partial closing decisions would be frustrated by a requirement to bargain. Ante, at 682-683. In some cases the Court might be correct. In others, however, the decision will be made openly and deliberately, *691 and considerations of "speed, flexibility, and secrecy" will be inapposite. Indeed, in view of management's admitted duty to bargain over the effects of a closing, see ante, at 677-678, n. 15, it is difficult to understand why additional bargaining over the closing itself would necessarily unduly delay or publicize the decision. I am not in a position to judge whether mandatory bargaining over partial closings in all cases is consistent with our national labor policy, and neither is the Court. The primary responsibility to determine the scope of the statutory duty to bargain has been entrusted to the NLRB, which should not be reversed by the courts merely because they might prefer another view of the statute. Ford Motor ; see I therefore agree with the Court of Appeals that employers presumptively have a duty to bargain over a decision to close an operation, and that this presumption can be rebutted by a showing that bargaining would be futile, that the closing was due to emergency financial circumstances, or that, for some other reason, bargaining would not further the purposes of the National Labor Relations Act. I believe that this approach is amply supported by recent decisions of the Board. E. g., Brooks-Scanlon, Inc., 246 N. L. R. B. 476, 102 |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | [*] The Fair Credit Reporting Act (FCRA or Act) requires notice to any consumer subjected to "adverse action based in whole or in part on any information contained in a consumer [credit] report." 15 U.S.C. 1681m(a). Anyone who "willfully fails" to provide notice is civilly liable to the consumer. 1681n(a). The questions in these consolidated cases are whether willful failure covers a violation committed in reckless disregard of the notice obligation, and, if so, whether petitioners Safeco and GEICO committed reckless violations. We hold that reckless action is covered, that GEICO did not violate the statute, and that while Safeco might have, it did not act recklessly. I A Congress enacted FCRA in 170 to ensure fair and accurate credit reporting, promote efficiency in the banking system, and protect consumer privacy. See 84 *, 15 U.S.C. 1681; TRW The Act requires, among other things, that "any person [who] takes any adverse action with respect to any consumer that is based in whole or in part on any information contained in a consumer report" must notify the affected consumer.[1] 15 U.S.C. 1681m(a). The notice must point out the adverse action, explain how to reach the agency that reported on the consumer's credit, and tell the consumer that he can get a free copy of the report and dispute its accuracy with the agency. As it applies to an insurance company, "adverse action" is "a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for." 1681a(k)(1)(B)(i). FCRA provides a private right of action against businesses that use consumer reports but fail to comply. If a violation is negligent, the affected consumer is entitled to actual damages. 1681o(a) ( ed., Supp. IV). If willful, however, the consumer may have actual damages, or statutory damages ranging from $100 to $1,000, and even punitive damages. 1681n(a) ( ed.). B Petitioner GEICO[2] writes auto insurance through four subsidiaries: GEICO General, which sells "preferred" policies at low rates to low-risk customers; Government Employees, which also sells "preferred" policies, but only to government employees; GEICO Indemnity, which sells standard policies to moderate-risk customers; and GEICO Casualty, which sells nonstandard policies at higher rates to high-risk customers. Potential customers call a toll-free number answered by an agent of the four affiliates, who takes information and, with permission, gets the applicant's credit score.[3] This information goes into GEICO's computer system, which selects any appropriate company and the particular rate at which a policy may be issued. For |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | particular rate at which a policy may be issued. For some time after FCRA went into effect, GEICO sent adverse action notices to all applicants who were not offered "preferred" policies from GEICO General or Government Employees. GEICO changed its practice, however, after a method to "neutralize" an applicant's credit score was devised: the applicant's company and tier placement is compared with the company and tier placement he would have been assigned with a "neutral" credit score, that is, one calculated without reliance *2207 on credit history.[4] Under this new scheme, it is only if using a neutral credit score would have put the applicant in a lower priced tier or company that GEICO sends an adverse action notice; the applicant is not otherwise told if he would have gotten better terms with a better credit score. Respondent Ajene Edo applied for auto insurance with GEICO. After obtaining Edo's credit score, GEICO offered him a standard policy with GEICO Indemnity (at rates higher than the most favorable), which he accepted. Because Edo's company and tier placement would have been the same with a neutral score, GEICO did not give Edo an adverse action notice. Edo later filed this proposed class action against GEICO, alleging willful failure to give notice in violation of 1681m(a); he claimed no actual harm, but sought statutory and punitive damages under 1681n(a). The District Court granted summary judgment for GEICO, finding there was no adverse action when "the premium charged to [Edo] would have been the same even if GEICO Indemnity did not consider information in [his] consumer credit history." U.S. Dist. LEXIS 28522, App. to Pet. for Cert. in No. 06-100, p. 46a. Like GEICO, petitioner Safeco[5] relies on credit reports to set initial insurance premiums,[6] as it did for respondents Charles Burr and Shannon Massey, who were offered higher rates than the best rates possible. Safeco sent them no adverse action notices, and they later joined a proposed class action against the company, alleging willful violation of 1681m(a) and seeking statutory and punitive damages under 1681n(a). The District Court ordered summary judgment for Safeco, on the understanding that offering a single, initial rate for insurance cannot be "adverse action." The Court of Appeals for the Ninth Circuit reversed both judgments. In GEICO's case, it held that whenever a consumer "would have received a lower rate for his insurance had the information in his consumer report been more favorable, an adverse action has been taken against him." Since a better credit score would have placed Edo with GEICO General, not GEICO Indemnity, the appeals court |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | Edo with GEICO General, not GEICO Indemnity, the appeals court held that GEICO's failure to give notice was an adverse action. The Ninth Circuit also held that an insurer "willfully" fails to comply with FCRA if it acts with "reckless disregard" of a consumer's rights under the Act. It explained that a company would not be acting recklessly if it "diligently and in good faith attempted to fulfill its statutory obligations" and came to a "tenable, albeit erroneous, interpretation of the statute." The court went on to say that "a deliberate failure to determine *2208 the extent of its obligations" would not ordinarily escape liability under 1681n, any more than "reliance on creative lawyering that provides indefensible answers." Because the court believed that the enquiry into GEICO's reckless disregard might turn on undisclosed circumstances surrounding GEICO's revision of its notification policy, the Court of Appeals remanded the company's case for further proceedings.[7] In the action against Safeco, the Court of Appeals rejected the District Court's position, relying on its reasoning in GEICO's case (where it had held that the notice requirement applies to a single statement of an initial charge for a new policy). The Court of Appeals also rejected Safeco's argument that its conduct was not willful, again citing the GEICO case, and remanded for further proceedings. We consolidated the two matters and granted certiorari to resolve a conflict in the Circuits as to whether 1681n(a) reaches reckless disregard of FCRA's obligations,[8] and to clarify the notice requirement in 1681m(a). 548 U.S. We now reverse in both cases. II GEICO and Safeco argue that liability under 1681n(a) for "willfully fail[ing] to comply" with FCRA goes only to acts known to violate the Act, not to reckless disregard of statutory duty, but we think they are wrong. We have said before that "willfully" is a "word of many meanings whose construction is often dependent on the context in which it appears," ; and where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well, see ; Trans World Airlines, 83 L. Ed. 2d 5 ; cf. United 303 U.S. )). This construction reflects common law usage, which treated actions in "reckless disregard" of the law as "willful" violations. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 34, p. 212 (5th ed.184) (hereinafter Prosser and Keeton) ("Although efforts have been *220 made to distinguish" the terms "willful," "wanton," and "reckless," "such distinctions have consistently been |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | terms "willful," "wanton," and "reckless," "such distinctions have consistently been ignored, and the three terms have been treated as meaning the same thing, or at least as coming out at the same legal exit"). The standard civil usage thus counsels reading the phrase "willfully fails to comply" in 1681n(a) as reaching reckless FCRA violations,[] and this is so both on the interpretive assumption that Congress knows how we construe statutes and expects us to run true to form, see 113 S. Ct. and under the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way, GEICO and Safeco argue that Congress did point to something different in FCRA, by a drafting history of 1681n(a) said to show that liability was supposed to attach only to knowing violations. The original version of the Senate bill that turned out as FCRA had two standards of liability to victims: grossly negligent violation (supporting actual damages) and willful violation (supporting actual, statutory, and punitive damages). S. 8, 1st Cong., 1st Sess., 1 (16). GEICO and Safeco argue that since a "gross negligence" standard is effectively the same as a "reckless disregard" standard, the original bill's "willfulness" standard must have meant a level of culpability higher than "reckless disregard," or there would have been no requirement to show a different state of mind as a condition of the potentially much greater liability; thus, "willfully fails to comply" must have referred to a knowing violation. Although the gross negligence standard was reduced later in the legislative process to simple negligence (as it now appears in 1681o), the provision for willful liability remains unchanged and so must require knowing action, just as it did originally in the draft of 1681n. Perhaps. But Congress may have scaled the standard for actual damages down to simple negligence because it thought gross negligence, being like reckless action, was covered by willfulness. Because this alternative reading is possible, any inference from the drafting sequence is shaky, and certainly no match for the following clue in the text as finally adopted, which points to the traditional understanding of willfulness in the civil sphere. The phrase in question appears in the preamble sentence of 1681n(a): "Any person who willfully fails to comply with any requirement imposed under this subchapter *2210 with respect to any consumer is liable to that consumer" Then come the details, in paragraphs (1)(A) and (1)(B), spelling out two distinct measures of damages chargeable against the willful violator. As a general matter, the consumer may get either actual damages |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | a general matter, the consumer may get either actual damages or "damages of not less than $100 and not more than $1,000." 1681n(a)(1)(A). But where the offender is liable "for obtaining a consumer report under false pretenses or knowingly without a permissible purpose," the statute sets liability higher: "actual damages or $1,000, whichever is greater." 1681n(a)(1)(B). If the companies were right that "willfully" limits liability under 1681n(a) to knowing violations, the modifier "knowingly" in 1681n(a)(1)(B) would be superfluous and incongruous; it would have made no sense for Congress to condition the higher damages under 1681n(a) on knowingly obtaining a report without a permissible purpose if the general threshold of any liability under the section were knowing misconduct. If, on the other hand, "willfully" covers both knowing and reckless disregard of the law, knowing violations are sensibly understood as a more serious subcategory of willful ones, and both the preamble and the subsection have distinct jobs to do. See United The companies make other textual and structural arguments for their view, but none is persuasive. Safeco thinks our reading would lead to the absurd result that one could, with reckless disregard, knowingly obtain a consumer report without a permissible purpose. But this is not so; action falling within the knowing subcategory does not simultaneously fall within the reckless alternative. Then both GEICO and Safeco argue that the reference to acting "knowingly and willfully" in FCRA's criminal enforcement provisions, 1681q and 1681r, indicates that "willfully" cannot include recklessness. But we are now on the criminal side of the law, where the paired modifiers are often found, see, e.g., 18 U.S.C. 1001 ( ed. and Supp. IV) (false statements to federal investigators); 20 U.S.C. 107(a) ; 18 U.S.C. 1542 ( ed. and Supp. IV) (false statements in a passport application). As we said before, in the criminal law "willfully" typically narrows the otherwise sufficient intent, making the government prove something extra, in contrast to its civil-law usage, giving a plaintiff a choice of mental states to show in making a case for liability, see n. The vocabulary of the criminal side of FCRA is consequently beside the point in construing the civil side. III A Before getting to the claims that the companies acted recklessly, we have the antecedent question whether either company violated the adverse action notice requirement at all. In both cases, respondent-plaintiffs' claims are premised on initial rates charged for new insurance policies, which are not "adverse" actions unless quoting or charging a first-time premium is "an increase in any charge for. any insurance, existing or applied for." 15 U.S.C. |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | charge for. any insurance, existing or applied for." 15 U.S.C. 1681a(k)(1)(B)(i). In Safeco's case, the District Court held that the initial rate for a new insurance policy cannot be an "increase" because there is no prior dealing. The phrase "increase in any charge for insurance" is readily understood to mean a change in *2211 treatment for an insured, which assumes a previous charge for comparison. See Webster's New International Dictionary 1260 (2d ed.157) (defining "increase" as "[a]ddition or enlargement in size, extent, quantity, number, intensity, value, substance, etc.; augmentation; growth; multiplication"). Since the District Court understood "increase" to speak of change just as much as of comparative size or quantity, it reasoned that the statute's "increase" never touches the initial rate offer, where there is no change. The Government takes the part of the Court of Appeals in construing "increase" to reach a first-time rate. It says that regular usage of the term is not as narrow as the District Court thought: the point from which to measure difference can just as easily be understood without referring to prior individual dealing. The Government gives the example of a gas station owner who charges more than the posted price for gas to customers he doesn't like; it makes sense to say that the owner increases the price and that the driver pays an increased price, even if he never pulled in there for gas before. See Brief for United States as Amicus Curiae 26.[10] The Government implies, then, that reading "increase" requires a choice, and the chosen reading should be the broad one in order to conform to what Congress had in mind. We think the Government's reading has the better fit with the ambitious objective set out in the Act's statement of purpose, which uses expansive terms to describe the adverse effects of unfair and inaccurate credit reporting and the responsibilities of consumer reporting agencies. See 1681(a) (inaccurate reports "directly impair the efficiency of the banking system"; unfair reporting methods undermine public confidence "essential to the continued functioning of the banking system"; need to "insure" that reporting agencies "exercise their grave responsibilities" fairly, impartially, and with respect for privacy). The descriptions of systemic problem and systemic need as Congress saw them do nothing to suggest that remedies for consumers placed at a disadvantage by unsound credit ratings should be denied to first-time victims, and the legislative histories of FCRA's original enactment and of the 16 amendment reveal no reason to confine attention to customers and businesses with prior dealings. Quite the contrary.[11] Finally, there is nothing about insurance contracts to |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | the contrary.[11] Finally, there is nothing about insurance contracts to suggest that Congress might have meant to differentiate applicants from existing customers when it set the notice requirement; the newly insured who gets charged more owing to an erroneous report is in the same boat with the renewal applicant.[12] We therefore *2212 hold that the "increase" required for "adverse action," 15 U.S.C. 1681a(k)(1)(B)(i), speaks to a disadvantageous rate even with no prior dealing; the term reaches initial rates for new applicants. B Although offering the initial rate for new insurance can be an "adverse action," respondent-plaintiffs have another hurdle to clear, for 1681m(a) calls for notice only when the adverse action is "based in whole or in part on" a credit report. GEICO argues that in order to have adverse action "based on" a credit report, consideration of the report must be a necessary condition for the increased rate. The Government and respondent-plaintiffs do not explicitly take a position on this point. To the extent there is any disagreement on the issue, we accept GEICO's reading. In common talk, the phrase "based on" indicates a but-for causal relationship and thus a necessary logical condition. Under this most natural reading of 1681m(a), then, an increased rate is not "based in whole or in part on" the credit report unless the report was a necessary condition of the increase. As before, there are textual arguments pointing another way. The statute speaks in terms of basing the action "in part" as well as wholly on the credit report, and this phrasing could mean that adverse action is "based on" a credit report whenever the report was considered in the rate-setting process, even without being a necessary condition for the rate increase. But there are good reasons to think Congress preferred GEICO's necessary-condition reading. If the statute has any claim to lucidity, not all "adverse actions" require notice, only those "based on" information in a credit report. Since the statute does not explicitly call for notice when a business acts adversely merely after consulting a report, conditioning the requirement on action "based on" a report suggests that the duty to report arises from some practical consequence of reading the report, not merely some subsequent adverse occurrence that would have happened anyway. If the credit report has no identifiable effect on the rate, the consumer has no immediately practical reason to worry about it (unless he has the power to change every other fact that stands between himself and the best possible deal); both the company and the consumer are just where they would have |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | company and the consumer are just where they would have been if the company had never seen the report.[13] And if examining reports that make no difference was supposed to trigger a reporting requirement, it would be hard to find any practical point in imposing the "based on" restriction. So it makes more sense to suspect that Congress meant to require notice and prompt a challenge by the consumer only when the consumer would gain something if the challenge succeeded.[14] *2213 C To sum up, the difference required for an increase can be understood without reference to prior dealing (allowing a first-time applicant to sue), and considering the credit report must be a necessary condition for the difference. The remaining step in determining a duty to notify in cases like these is identifying the benchmark for determining whether a first-time rate is a disadvantageous increase. And in dealing with this issue, the pragmatic reading of "based on" as a condition necessary to make a practical difference carries a helpful suggestion. The Government and respondent-plaintiffs argue that the baseline should be the rate that the applicant would have received with the best possible credit score, while GEICO contends it is what the applicant would have had if the company had not taken his credit score into account (the "neutral score" rate GEICO used in Edo's case). We think GEICO has the better position, primarily because its "increase" baseline is more comfortable with the understanding of causation just discussed, which requires notice under 1681m(a) only when the effect of the credit report on the initial rate offered is necessary to put the consumer in a worse position than other relevant facts would have decreed anyway. If Congress was this concerned with practical consequences when it adopted a "based on" causation standard, it presumably thought in equally practical terms when it spoke of an "increase" that must be defined by a baseline to measure from. Congress was therefore more likely concerned with the practical question whether the consumer's rate actually suffered when the company took his credit report into account than the theoretical question whether the consumer would have gotten a better rate with perfect credit.[15] The Government objects that this reading leaves a loophole, since it keeps first-time applicants who actually deserve better-than-neutral credit scores from getting notice, even when errors in credit reports saddle them with unfair rates. This is true; the neutral-score baseline will leave some consumers without a notice that *2214 might lead to discovering errors. But we do not know how often these cases will occur, whereas we |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | not know how often these cases will occur, whereas we see a more demonstrable and serious disadvantage inhering in the Government's position. Since the best rates (the Government's preferred baseline) presumably go only to a minority of consumers, adopting the Government's view would require insurers to send slews of adverse action notices; every young applicant who had yet to establish a gilt-edged credit report, for example, would get a notice that his charge had been "increased" based on his credit report. We think that the consequence of sending out notices on this scale would undercut the obvious policy behind the notice requirement, for notices as common as these would take on the character of formalities, and formalities tend to be ignored. It would get around that new insurance usually comes with an adverse action notice, owing to some legal quirk, and instead of piquing an applicant's interest about the accuracy of his credit record, the commonplace notices would mean just about nothing and go the way of junk mail. Assuming that Congress meant a notice of adverse action to get some attention, we think the cost of closing the loophole would be too high. While on the subject of hypernotification, we should add a word on another point of practical significance. Although the rate initially offered for new insurance is an "increase" calling for notice if it exceeds the neutral rate, did Congress intend the same baseline to apply if the quoted rate remains the same over a course of dealing, being repeated at each renewal date? We cannot believe so. Once a consumer has learned that his credit report led the insurer to charge more, he has no need to be told over again with each renewal if his rate has not changed. For that matter, any other construction would probably stretch the word "increase" more than it could bear. Once the gas station owner had charged the customer the above-market price, it would be strange to speak of the same price as an increase every time the customer pulled in. Once buyer and seller have begun a course of dealing, customary usage does demand a change for "increase" to make sense.[16] Thus, after initial dealing between the consumer and the insurer, the baseline for "increase" is the previous rate or charge, not the "neutral" baseline that applies at the start. IV A In GEICO's case, the initial rate offered to Edo was the one he would have received if his credit score had not been taken into account, and GEICO owed him no adverse action notice under 1681m(a).[17] |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | and GEICO owed him no adverse action notice under 1681m(a).[17] *2215 B Safeco did not give Burr and Massey any notice because it thought 1681m(a) did not apply to initial applications, a mistake that left the company in violation of the statute if Burr and Massey received higher rates "based in whole or in part" on their credit reports; if they did, Safeco would be liable to them on a showing of reckless conduct (or worse). The first issue we can forget, however, for although the record does not reliably indicate what rates they would have obtained if their credit reports had not been considered, it is clear enough that if Safeco did violate the statute, the company was not reckless in falling down in its duty. While "the term recklessness is not self-defining," the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing "an unjustifiably high risk of harm that is either known or so obvious that it should be 114 S. Ct. 170, (14); see Prosser and Keeton 34, at 213-214. The Restatement, for example, defines reckless disregard of a person's physical safety this way: "The actor's conduct is in reckless disregard of the safety of another if he does an act or intentionally fails to do an act which it is his duty to the other to do, knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent." Restatement (Second) of Torts 500, p. 587 (163-164). It is this high risk of harm, objectively assessed, that is the essence of recklessness at common law. See Prosser and Keeton 34, at 213 (recklessness requires "a known or obvious risk that was so great as to make it highly probable that harm would follow"). There being no indication that Congress had something different in mind, we have no reason to deviate from the common law understanding in applying the statute. See 52 U.S., at Thus, a company subject to FCRA does not act in reckless disregard of it unless the action is not only a violation under a reasonable reading of the statute's terms, but shows that the company ran a risk of violating the law substantially greater than the risk associated with a reading that was merely careless. Here, there is no need to pinpoint the negligence/recklessness line, for |
Justice Souter | 2,007 | 20 | majority | Safeco Ins. Co. of America v. Burr | https://www.courtlistener.com/opinion/145725/safeco-ins-co-of-america-v-burr/ | there is no need to pinpoint the negligence/recklessness line, for Safeco's reading of the statute, albeit erroneous, was not objectively unreasonable. As we said, 1681a(k)(1)(B)(i) is silent on the point from which to measure "increase." On the rationale that "increase" presupposes prior dealing, Safeco took the definition as excluding initial rate offers for new insurance, and so sent no adverse action notices to Burr and Massey. While we disagree with Safeco's analysis, we recognize *2216 that its reading has a foundation in the statutory text, see at 11, and a sufficiently convincing justification to have persuaded the District Court to adopt it and rule in Safeco's favor. This is not a case in which the business subject to the Act had the benefit of guidance from the courts of appeals or the Federal Trade Commission (FTC) that might have warned it away from the view it took. Before these cases, no court of appeals had spoken on the issue, and no authoritative guidance has yet come from the FTC[1] (which in any case has only enforcement responsibility, not substantive rulemaking authority, for the provisions in question, see 15 U.S.C. 1681s(a)(1), (e)). Cf. 533 U.S. 14, Given this dearth of guidance and the less-than-pellucid statutory text, Safeco's reading was not objectively unreasonable, and so falls well short of raising the "unjustifiably high risk" of violating the statute necessary for reckless liability.[20] * * * The Court of Appeals correctly held that reckless disregard of a requirement of FCRA would qualify as a willful violation within the meaning of 1681n(a). But there was no need for that court to remand the cases for factual development. GEICO's decision to issue no adverse action notice to Edo was not a violation of 1681m(a), and Safeco's misreading of the statute was not reckless. The judgments of the Court of Appeals are therefore reversed in both cases, which are remanded for further proceedings consistent with this opinion. It is so ordered. Justice STEVENS, with whom Justice GINSBURG joins, concurring in part and concurring in the judgment. |
Justice Douglas | 1,974 | 10 | dissenting | Kelley v. Southern Pacific Co. | https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/ | Today's decision marks a return to the era when the FELA was interpreted in a hostile and restrictive manner by the federal judiciary. Accordingly, I am constrained to register my dissent. The first Employers' Liability Act was enacted in 1906, and this Court responded by holding the Act unconstitutional. Employers' Liability Cases, Congress tried again in 1908 and produced the Act which is now in effect. 45 U.S. C. ง 51 et seq. This time the Court upheld the statute, Second Employers' Liability Cases, but judicial hostility did not end. The defense of assumption of risk was, for the most part, held to be still available to the employer. Seaboard Air Line R. The Act sought expressly to control the use of a contributory negligence defense, but the Court circumvented this to a considerable degree by developing the doctrine of "primary duty." See Great Northern R. *334 Finally, in 1939, the Congress decided that further legislation was needed. The result was a more liberal view of the Act which did not provide the employer with so many defenses. See Since 1939 this Court has interpreted the Act in the spirit of those amendments. Gradual liberalization has occurred, and the narrow, technical approach of earlier years has been eschewed. See W. Prosser, Law of Torts 536-537 (4th ed. 1971). This development did not occur without dissent. Divisions of opinion occurred on the merits and also on the question of whether the Court should involve itself in this area at all. See, e. g., Nevertheless, the Court continued to oversee the application of the Act and to insist that judicial interpretations be consistent with the Act's overall purpose. One of the questions which has arisen under the Act has been the definition of employment. Section 1 of the FELA, 45 U.S. C. ง 51, provides that the carrier is liable in damages for injury or death resulting to an employee from the carrier's negligence. But the damage must be done to the one injured or killed "while he is employed" by the carrier. In the past judges have sometimes tried to give this requirement a rigid, technical content, but such an approach has been rejected by this Court. In the petitioner's decedent had been hired as a workman by W. H. Nichols & a firm which had entered into a contract with the respondent railroad. The decedent was working along the main line of the railroad performing various operations designed to strengthen and stabilize the roadbed. He was killed when he was struck by a train. The trial judge refused to submit |
Justice Douglas | 1,974 | 10 | dissenting | Kelley v. Southern Pacific Co. | https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/ | struck by a train. The trial judge refused to submit the issue of employment to the jury and held that as a matter of *335 law the decedent was not in an employment relationship with the railroad at the time of his death. This Court reversed on the ground that whether the decedent was an employee within the meaning of the Act was properly a question for the jury. Noting that the terms "employee" and "employed" are not used in any "special sense," the Court reasoned that the issue of employment "contains factual elements such as to make it one for the jury under appropriate instructions as to the various relevant factors under law. See Restatement, Agency 2d, ง 220, comment c; ง 227, comment a." involved similar considerations to those in Baker. The petitioner was employed as a laborer by the railroad, but he was working on his day off with a crew which was fixing a siding track that belonged to a third party. Since the petitioner was being paid by this third party on the day of the injury, a question existed as to whether the petitioner was an employee of the railroad at the time of the accident. We held that the trial judge had improperly charged the jury to consider only one factor, that of the awareness of the victim that he was working for a third party on the day in question. We noted that a number of factors must be considered under Restatement (Second) of Agency ง 220. Many Courts of Appeals have been confronted with problems similar to those in Baker and Ward, and they too have taken a nontechnical approach based on the various aspects of the particular case presented. For example, in Missouri K-T R. the injured worker was a car cleaner. The railroad had stopped doing its own car cleaning and had hired a firm to do the job, and the injured worker was nominally the employee of this hired firm. But, upon examining all the factors, the Court of Appeals affirmed *336 the District Court ruling that reasonable men could not differ in the conclusion that the victim was in an employment relationship with the railroad for FELA purposes. In the deceased worker was nominally an employee of a trucking company which was under contract to perform certain pickup and delivery services for the railroad. Considering all the facts the Court of Appeals held that the trial judge had properly submitted to the jury the question of whether the deceased had been employed by the railroad for FELA |
Justice Douglas | 1,974 | 10 | dissenting | Kelley v. Southern Pacific Co. | https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/ | the deceased had been employed by the railroad for FELA purposes. Many more cases of a similar nature exist. See, e. g., ; But see, e. g., aff'd, The case most clearly in point from another Court of Appeals is There the injured worker was also employed by a company which unloaded autos from railroad cars, and, like the petitioner here, the worker fell to the ground from the top tier of one of the cars. The District Court granted the worker summary judgment, since it had no doubt that he was an employee of the railroad within the meaning of the FELA. The Court of Appeals affirmed, using the following language: "Though employees of independent contractors are not accorded coverage under the Act if the injured worker is employed by an agent or adjunct of the railroad he will be treated as an employee of the railroad for purposes of the Act. Thus traditional concepts of agency extend the coverage of the Act." The District Court in this case relied on the language of the Court of Appeals in The Court today holds that this language misstates the law. *337 All servants[1] are agents of their masters. Restatement (Second) of Agency ง 2 (2). But many agents are not servants within the meaning of ง 220 of the Restatement. For example, an agent may be an independent contractor, but an independent contractor may never be a servant. ง 14 N, comment a. In Baker and Ward we referred to the Restatement as a source of principles which provide a basis for the factual decision as to whether an individual is an employee for FELA purposes. Under those principles an employee must be a servant and not merely an agent.[2] Because the District Court in the present case used the word "agent" rather than "servant" or "employee" it committed a technical error. But our inquiry here should not be limited to a narrow examination of whether the right form of words was used to support a judgment in favor of a seriously injured worker. The District Court found that the requisite relationship was present to permit a recovery under the FELA, and we should ask whether the findings of fact that were made were sufficient to support that conclusion under the legal standard as correctly described. The District Court made numerous findings of fact which support its conclusion that the FELA is applicable here, and these findings have not been held to be "clearly erroneous" under Fed. Rule Civ. Proc. 52 (a). Petitioner had been working in the job of |
Justice Douglas | 1,974 | 10 | dissenting | Kelley v. Southern Pacific Co. | https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/ | 52 (a). Petitioner had been working in the job of unloading automobiles from respondent's railroad cars for eight years. Restatement (Second) of Agency งง 220 (2) (f), 227, *338 comment c. The work performed was that of respondent, to be performed in the general course of respondent's business pursuant to its contractual responsibilities. ง 220 (2) (h). The work was of an unskilled variety. งง 220 (2) (d), 227, comment c. Petitioner was paid by the hour. ง 220 (2) (g). The record was unclear as to who supplied the necessary hammers and wrenches, but respondent clearly supplied the necessary ramps and working area, and it was responsible for safety. ง 220 (2) (e). Respondent had the immediate responsibility for supervision and control of the work, though this task was carried out by others who, like petitioner, were servants of Pacific Motor Trucking ง 220 (2) (a).[3] There are basically two reasons for the Court of Appeals' reversal of the District Court's holding in petitioner's *339 favor. First, the District Court found that petitioner was an employee of the trucking company. But this does not mean that petitioner was not also an employee of the railroad for the purposes of the FELA. In 262 F. 2d, at 910, the victim was an employee of Westinghouse who was working on a railroad locomotive at the time of his death. The Court of Appeals noted in that case that "[t]here is, of course, no question but that [the victim] was an employee of Westinghouse. The issue is whether sufficient evidence was adduced to enable the jury to conclude that [the victim] was also an employee of the Railroad." See Restatement (Second) of Agency งง 226 and 227. If the mere fact that an individual is on the payroll of someone other than the railroad sufficed to make that individual not an employee of the railroad for FELA purposes, then this Court would not have found it necessary to reverse in the Baker case. Such a simple test could be devised, but whether such a change in the law is to be made should be up to Congress to decide. The second reason the Court of Appeals used for reversing the District Court was that the District Court had rejected a finding that petitioner was an employee of the railroad. The trial judge was relying on the "agency" language of and he therefore apparently had his labels confused. He was using the concept of employment in a narrow and restricted way, yet was expanding it to accommodate decisions such as Baker by including |
Justice Douglas | 1,974 | 10 | dissenting | Kelley v. Southern Pacific Co. | https://www.courtlistener.com/opinion/109124/kelley-v-southern-pacific-co/ | expanding it to accommodate decisions such as Baker by including both employment and agency relationships within the scope of the FELA. If the District Judge did not find an employment relationship in this narrow sense, that fact is unimportant, for he did find a relationship sufficient to satisfy the correct test. While he used language of agency he gave that language the substantive content *340 of Baker and of the source relied upon by Bakerโ Restatement (Second) of Agency ง 220. He made findings of fact easily sufficient to support the existence of an employment relationship under the correct substantive test, and he in fact found that the requisite relationship existed. The fact that he used the word "agency" rather than the word "employment" to describe this relationship is thus of no more than technical, abstract concern. This is not the sort of concern that should motivate us in the FELA context. The majority here has taken a different tack from that of the Court of Appeals. Citing numerous cases from the era before the 1939 amendments to the Act, the majority argues that the railroad here exercised insufficient control over the petitioner to establish the requisite employment relationship. Under the approach taken in Baker and Ward, however, the existence of a master-servant relationship is to be determined from an examination of many factors. This is quite different from the majority's concentration on technical distinctions regarding kinds and degrees of control and cooperation.[4] As I have indicated, I think that a judgment in favor of the petitioner is quite justified on the basis of facts already found by the District Court. I have no strong objection to the decision that the case be remanded for new findings in light of the correctly stated legal standard, but I dissent from the rigid and old-fashioned standard of liability which the majority indicates should be made applicable. In a strictly doctrinal sense this case may not have a great impact on the coverage of the FELA, but I fear *341 that the precedent set today bodes ill for the future. It distorts the accepted meaning of the Act and reflects a judicial hostility to the FELA of the kind that existed prior to the 1939 amendments. I would reverse the judgment below. MR. |
Justice Black | 1,970 | 21 | dissenting | Wyman v. Rothstein | https://www.courtlistener.com/opinion/108157/wyman-v-rothstein/ | When this action was commenced by appellees, the Secretary of Health, Education, and Welfare was in the process of determining if the New York welfare provisions under attack in this case are consistent with the federal standard requiring uniform statewide application of state welfare plans. See Social Security Act 402, as amended, et seq., 42 U.S. C. 602 (1964 ed., Supp. IV); 45 CFR 233.20. Although the federal agency has not yet made a final decision, it appears from the brief submitted by the United States as amicus curiae that HEW has made a preliminary determination that the New York provisions do not conform to the Social Security Act's requirements. Accordingly, the statutory claim which this Court today remands to the District Court for its consideration involves a live controversy between New York and the Federal Government, and, as I said in my dissenting opinion in it is my belief that such controversies should be resolved in proceedings between the two governments involved, as provided in the Social Security Act. See, e. g., 42 U.S. C. 602, 1316 (1964 ed., Supp. IV). For this reason, I would vacate the judgment of the District Court and remand with directions that the complaint be dismissed |
Justice Brennan | 1,972 | 13 | majority | Operating Engineers v. Flair Builders, Inc. | https://www.courtlistener.com/opinion/108545/operating-engineers-v-flair-builders-inc/ | In November 1968, petitioner brought an action in the United States District Court for the Northern District of Illinois, seeking damages and injunctive relief for an alleged breach by respondent of their collective-bargaining agreement. The complaint charged that since June 1, 1966, respondent had "continually violated" the contract by refusing to abide by any of its terms, including wage, hiring hall, and fringe benefit provisions. The agreement, which incorporated the terms of master contracts between petitioner and a local contractors' association, provided for arbitration of "any difference between the parties hereto which cannot be settled by their representatives, within 48 hours of the occurrence." The District Court dismissed petitioner's action for failure to state a claim and noted, but did not pass upon, two additional contentions of the company"that (1) no contract was ever created, and (2) if consummated, the agreement was subsequently abandoned by the union." No. 68-C-2091 (April 14, 1969) (unreported). The court suggested that the parties arbitrate the binding effect of their contract. When the company refused to arbitrate either that issue or "the subsequent issues of possible violations," petitioner filed an amended complaint to compel arbitration. In moving to dismiss the amended complaint, respondent again denied the existence of a binding agreement and argued that the Union's delay in seeking arbitration constituted laches barring enforcement of the contract. The District Court initially denied the motion, holding that "if the employer consented to the alleged collective bargaining agreement, the laches issue should be decided by the arbitrator rather than the federal courts." (unreported). But after conducting an evidentiary hearing on the scope of the arbitration *489 clause, the court entered an order dismissing the complaint. (unreported). Though agreeing that respondent "was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause," the court found that there had been no contact between the parties from the time of the signing in 1964 until the summer of 1968. It therefore concluded that the Union was guilty of laches in seeking enforcement: "The master agreement contemplates initiation of arbitration proceedings if any dispute is not settled within 48 hours of its occurrence, and further provides that the Board of Arbitrators shall meet `within six (6) days.' Yet demand for arbitration was not made in this case until April, 1969, almost five years from Flair's first alleged failure to comply with the contract and nearly three years from the inception of the alleged breach sought to be arbitrated. "To require Flair to respond, through arbitration, to general charges of noncompliance with contract provisions allegedly beginning |
Justice Brennan | 1,972 | 13 | majority | Operating Engineers v. Flair Builders, Inc. | https://www.courtlistener.com/opinion/108545/operating-engineers-v-flair-builders-inc/ | to general charges of noncompliance with contract provisions allegedly beginning more than two years before this suit was filed would impose an extreme burden on its defense efforts. [T]o compel arbitration would reward plaintiff for its own inaction and subject defendant to the risk of liability because of actions taken or not taken in reliance on plaintiff's apparent abandonment." The Court of Appeals affirmed the order by divided vote. Its opinion read the memorandum of the District Court to hold that the collective-bargaining agreement was still in effect and that therefore the question for decision was "whether a court may properly dismiss the complaint on the basis of laches resulting from dilatory notification of the existence *490 of a dispute in a suit brought to compel arbitration with regard to the dispute." The court then addressed this Court's decision in John Wiley & There an employer refused to arbitrate on the ground that the union, among other things, had failed to follow grievance procedures required by the collective-bargaining agreement. We ordered arbitration, holding that "[o]nce it is determined. that the parties are obligated to submit the subject matter of a dispute to arbitration, `procedural' questions which grow out of the dispute and bear on its final disposition should be left to the arbitrator." The Court of Appeals distinguished Wiley on the ground that the procedural question there concerned "intrinsic" untimeliness, relating solely to the requirements of the contract. Here, on the other hand, the question was one of "extrinsic" untimeliness, based not on a violation of contract procedures but on the failure to give timely notice under the equitable doctrine of laches. Therefore, according to the court, the matter was within its province to decide, for " `we are not indulging in the judicially unwarranted task of interpreting the collective bargaining agreement.' " quoting Amalgamated Clothing We granted certiorari. Petitioner contends that the Court of Appeals erred in limiting Wiley to cases of "intrinsic" delay because the issue of delay, whether "intrinsic" or not, "necessarily involves a determination of the merits of the dispute and bears directly upon the outcome and is accordingly for an arbitrator and not the federal court to decide." Brief for Petitioner 21. In other words, petitioner argues that even if the parties have not agreed to arbitrate the laches issue, Wiley requires that the arbitrator resolve *491 the question as an integral part of the underlying contract dispute. We need not reach the question posed by petitioner, for we find that the parties did in fact agree to arbitrate the issue of laches here. Although |
Justice Brennan | 1,972 | 13 | majority | Operating Engineers v. Flair Builders, Inc. | https://www.courtlistener.com/opinion/108545/operating-engineers-v-flair-builders-inc/ | fact agree to arbitrate the issue of laches here. Although respondent denies that it ever signed a binding contract with petitioner, the District Court found to the contrary and held that the company "was bound by the memorandum agreement to arbitrate labor disputes within the limits of the arbitration clause." That clause applies to "any difference," whatever it may be, not settled by the parties within 48 hours of occurrence. There is nothing to limit the sweep of this language or to except any dispute or class of disputes from arbitration. In that circumstances, we must conclude that the parties meant what they said that "any difference," which would include the issue of laches raised by respondent at trial, should be referred to the arbitrator for decision.[*] The District Court ignored the plain meaning of the clause in deciding that issue. Of course, nothing we say here diminishes the responsibility of a court to determine whether a union and employer have agreed to arbitration. That issue, as well as the scope of the arbitration clause, remains a matter for judicial decision. See But once a court finds that, as here, the parties are subject to an agreement to arbitrate, and that agreement extends to "any difference" between them, then a claim that *492 particular grievances are barred by laches is an arbitrable question under the agreement. Compare Iowa Beef Packers, Having agreed to the broad clause, the company is obliged to submit its laches defense, even if "extrinsic," to the arbitral process. The judgment of the Court of Appeals is Reversed. MR. |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | This case presents the question whether a complex statistical study that indicates a risk that racial considerations enter *3 into capital sentencing determinations proves that petitioner McCleskey's capital sentence is unconstitutional under the Eighth or Fourteenth Amendment. I McCleskey, a black man, was convicted of two counts of armed robbery and one count of murder in the Superior Court of Fulton County, on October 12, McCleskey's convictions arose out of the robbery of a furniture store and the killing of a white police officer during the course of the robbery. The evidence at trial indicated that McCleskey and three accomplices planned and carried out the robbery. All four were armed. McCleskey entered the front of the store while the other three entered the rear. McCleskey secured the front of the store by rounding up the customers and forcing them to lie face down on the floor. The other three rounded up the employees in the rear and tied them up with tape. The manager was forced at gunpoint to turn over the store receipts, his watch, and $6. During the course of the robbery, a police officer, answering a silent alarm, entered the store through the front door. As he was walking down the center aisle of the store, two shots were fired. Both struck the officer. One hit him in the face and killed him. Several weeks later, McCleskey was arrested in connection with an unrelated offense. He confessed that he had participated in the furniture store robbery, but denied that he had shot the police officer. At trial, the State introduced evidence that at least one of the bullets that struck the officer was fired from a38 caliber Rossi revolver. This description matched the description of the gun that McCleskey had carried during the robbery. The State also introduced the testimony of two witnesses who had heard McCleskey admit to the shooting. *4 The jury convicted McCleskey of murder.[1] At the penalty hearing,[2] the jury heard arguments as to the appropriate sentence. Under law, the jury could not consider imposing the death penalty unless it found beyond a reasonable doubt that the murder was accompanied by one of the statutory aggravating circumstances. (c)[3] The jury in this case found two aggravating *2 circumstances to exist beyond a reasonable doubt: the murder was committed during the course of an armed robbery, 17-10-30(b)(2); and the murder was committed upon a peace officer engaged in the performance of his duties, 17-10-30(b)(8). In making its decision whether to impose the death sentence, the jury considered the mitigating and aggravating circumstances of McCleskey's |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | the jury considered the mitigating and aggravating circumstances of McCleskey's conduct. 17-10-2(c). McCleskey offered no mitigating evidence. The jury recommended that he be sentenced to death on the murder charge and to consecutive life sentences on the armed robbery charges. The court followed the jury's recommendation and sentenced McCleskey to death.[4] On appeal, the Supreme Court of affirmed the convictions and the sentences. This Court denied a petition for a writ of certiorari. The Superior Court of Fulton County denied McCleskey's extraordinary motion for a new trial. McCleskey then filed a petition for a writ of habeas corpus in the *6 Superior Court of Butts County. After holding an evidentiary hearing, the Superior Court denied relief. No. 4909 The Supreme Court of denied McCleskey's application for a certificate of probable cause to appeal the Superior Court's denial of his petition, No. 81-23, and this Court again denied certiorari. McCleskey next filed a petition for a writ of habeas corpus in the Federal District Court for the Northern District of His petition raised 18 claims, one of which was that the capital sentencing process is administered in a racially discriminatory manner in violation of the Eighth and Fourteenth Amendments to the United Constitution. In support of his claim, McCleskey proffered a statistical study performed by Professors David C. Baldus, Charles Pulaski, and George Woodworth (the Baldus study) that purports to show a disparity in the imposition of the death sentence in based on the race of the murder victim and, to a lesser extent, the race of the defendant. The Baldus study is actually two sophisticated statistical studies that examine over 2,000 murder cases that occurred in during the 1970's. The raw numbers collected by Professor Baldus indicate that defendants charged with killing white persons received the death penalty in 11% of the cases, but defendants charged with killing blacks received the death penalty in only 1% of the cases. The raw numbers also indicate a reverse racial disparity according to the race of the defendant: 4% of the black defendants received the death penalty, as opposed to 7% of the white defendants. Baldus also divided the cases according to the combination of the race of the defendant and the race of the victim. He found that the death penalty was assessed in 22% of the cases involving black defendants and white victims; 8% of the cases involving white defendants and white victims; 1% of the cases involving black defendants and black victims; and 3% of the cases involving white defendants and black victims. *7 Similarly, Baldus found that prosecutors sought |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | and black victims. *7 Similarly, Baldus found that prosecutors sought the death penalty in 70% of the cases involving black defendants and white victims; 32% of the cases involving white defendants and white victims; 15% of the cases involving black defendants and black victims; and 19% of the cases involving white defendants and black victims. Baldus subjected his data to an extensive analysis, taking account of 230 variables that could have explained the disparities on nonracial grounds. One of his models concludes that, even after taking account of 39 nonracial variables, defendants charged with killing white victims were 4.3 times as likely to receive a death sentence as defendants charged with killing blacks. According to this model, black defendants were 1.1 times as likely to receive a death sentence as other defendants. Thus, the Baldus study indicates that black defendants, such as McCleskey, who kill white victims have the greatest likelihood of receiving the death penalty.[5] The District Court held an extensive evidentiary hearing on McCleskey's petition. Although it believed that McCleskey's Eighth Amendment claim was foreclosed by the Fifth Circuit's decision in cert. denied, it nevertheless considered the Baldus study with care. It concluded *8 that McCleskey's "statistics do not demonstrate a prima facie case in support of the contention that the death penalty was imposed upon him because of his race, because of the race of the victim, or because of any Eighth Amendment concern." As to McCleskey's Fourteenth Amendment claim, the court found that the methodology of the Baldus study was flawed in several respects.[6] Because of these defects, *9 the court held that the Baldus study "fail[ed] to contribute anything of value" to McCleskey's claim. Accordingly, the court denied the petition insofar as it was based upon the Baldus study. The Court of Appeals for the Eleventh Circuit, sitting en banc, carefully reviewed the District Court's decision on McCleskey's claim. It assumed the validity of the study itself and addressed the merits of McCleskey's Eighth and Fourteenth Amendment claims. That is, the court assumed that the study "showed that systematic and substantial disparities existed in the penalties imposed upon homicide defendants in based on race of the homicide victim, that the disparities existed at a less substantial rate in death sentencing based on race of defendants, and that the factors of race of the victim and defendant were at work in Fulton County." Even assuming the study's validity, the Court of Appeals found the statistics "insufficient to demonstrate discriminatory intent or unconstitutional discrimination in the Fourteenth Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | Amendment context, [and] insufficient to show irrationality, arbitrariness and capriciousness under any kind of Eighth Amendment analysis." The court noted: "The very exercise of discretion means that persons exercising discretion may reach different results from exact duplicates. Assuming each result is within the range of discretion, all are correct in the eyes of the law. It would not make sense for the system to require the exercise of discretion in order to be facially constitutional, *290 and at the same time hold a system unconstitutional in application where that discretion achieved different results for what appear to be exact duplicates, absent the state showing the reasons for the difference. "The Baldus approach would take the cases with different results on what are contended to be duplicate facts, where the differences could not be otherwise explained, and conclude that the different result was based on race alone. This approach ignores the realities. There are, in fact, no exact duplicates in capital crimes and capital defendants. The type of research submitted here tends to show which of the directed factors were effective, but is of restricted use in showing what undirected factors control the exercise of constitutionally required discretion." The court concluded: "Viewed broadly, it would seem that the statistical evidence presented here, assuming its validity, confirms rather than condemns the system. The marginal disparity based on the race of the victim tends to support the state's contention that the system is working far differently from the one which Furman [v. ] condemned. In pre-Furman days, there was no rhyme or reason as to who got the death penalty and who did not. But now, in the vast majority of cases, the reasons for a difference are well documented. That they are not so clear in a small percentage of the cases is no reason to declare the entire system unconstitutional." The Court of Appeals affirmed the denial by the District Court of McCleskey's petition for a writ of habeas corpus insofar as the petition was based upon the Baldus study, with three judges dissenting as to McCleskey's claims based on *291 the Baldus study. We granted certiorari, and now affirm. II McCleskey's first claim is that the capital punishment statute violates the Equal Protection Clause of the Fourteenth Amendment.[7] He argues that race has infected the administration of 's statute in two ways: persons who murder whites are more likely to be sentenced to death than persons who murder blacks, and black murderers are more likely to be sentenced to death than white murderers.[8]*292 As a black defendant who killed a |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | than white murderers.[8]*292 As a black defendant who killed a white victim, McCleskey claims that the Baldus study demonstrates that he was discriminated against because of his race and because of the race of his victim. In its broadest form, McCleskey's claim of discrimination extends to every actor in the capital sentencing process, from the prosecutor who sought the death penalty and the jury that imposed the sentence, to the State itself that enacted the capital punishment statute and allows it to remain in effect despite its allegedly discriminatory application. We agree with the Court of Appeals, and every other court that has considered such a challenge,[9] that this claim must fail. A Our analysis begins with the basic principle that a defendant who alleges an equal protection violation has the burden of proving "the existence of purposeful discrimination."[10] A corollary to this principle is that a criminal defendant must prove that the purposeful discrimination "had a discriminatory effect" on him. Thus, to prevail under the Equal Protection Clause, McCleskey must prove that the decisionmakers in his case acted with discriminatory purpose. He offers no evidence specific to his own case that would support an inference that racial * considerations played a part in his sentence. Instead, he relies solely on the Baldus study.[11] McCleskey argues that the Baldus study compels an inference that his sentence rests on purposeful discrimination. McCleskey's claim that these statistics are sufficient proof of discrimination, without regard to the facts of a particular case, would extend to all capital cases in at least where the victim was white and the defendant is black. The Court has accepted statistics as proof of intent to discriminate in certain limited contexts. First, this Court has accepted statistical disparities as proof of an equal protection violation in the selection of the jury venire in a particular district. Although statistical proof normally must present a "stark" pattern to be accepted as the sole proof of discriminatory intent under the Constitution,[12]Arlington "[b]ecause of the nature of the jury-selection task, we have permitted a finding of constitutional violation even when the statistical pattern does not approach [such] extremes." at n. 13.[13] Second, this Court has accepted statistics in the form of multiple-regression analysis to prove statutory violations under Title VII of the Civil Rights Act of 1964. But the nature of the capital sentencing decision, and the relationship of the statistics to that decision, are fundamentally different from the corresponding elements in the venire-selection or Title VII cases. Most importantly, each particular decision to impose the death penalty is made by a |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | decision to impose the death penalty is made by a petit jury selected from a properly constituted venire. Each jury is unique in its composition, and the Constitution requires that its decision rest on consideration of innumerable factors that vary according to the characteristics of the individual defendant and the facts of the particular capital offense. See Hitchcock v. Dugger, post, at 398-3; Thus, the application of an inference drawn from the general statistics to a specific decision in a trial and sentencing simply is not comparable to the application of an inference drawn from general statistics to a specific venire-selection *295 or Title VII case. In those cases, the statistics relate to fewer entities,[14] and fewer variables are relevant to the challenged decisions.[15] *296 Another important difference between the cases in which we have accepted statistics as proof of discriminatory intent and this case is that, in the venire-selection and Title VII contexts, the decisionmaker has an opportunity to explain the statistical disparity. See ; Texas Dept. of Community ; McDonnell Douglas Here, the State has no practical opportunity to rebut the Baldus study. "[C]ontrolling considerations of public policy," dictate that jurors "cannot be called. to testify to the motives and influences that led to their verdict." Chicago, B. & Q. R. Similarly, the policy considerations behind a prosecutor's traditionally "wide discretion"[16] suggest the impropriety of our requiring prosecutors to defend their decisions to seek death penalties, "often years after they were made."[17] See[18] Moreover, absent far stronger proof, it is unnecessary *297 to seek such a rebuttal, because a legitimate and unchallenged explanation for the decision is apparent from the record: McCleskey committed an act for which the United Constitution and laws permit imposition of the death penalty.[19] Finally, McCleskey's statistical proffer must be viewed in the context of his challenge. McCleskey challenges decisions at the heart of the State's criminal justice system. "[O]ne of society's most basic tasks is that of protecting the lives of its citizens and one of the most basic ways in which it achieves the task is through criminal laws against murder." Gregg v. Implementation of these laws necessarily requires discretionary judgments. Because discretion is essential to the criminal justice process, we would demand exceptionally clear proof before we would infer that the discretion has been abused. The unique nature of the decisions at issue in this case also counsels against adopting such an inference from the disparities indicated by the Baldus study. Accordingly, we hold that the Baldus study is clearly insufficient to support an inference that any of the decisionmakers in |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | to support an inference that any of the decisionmakers in McCleskey's case acted with discriminatory purpose. B McCleskey also suggests that the Baldus study proves that the State as a whole has acted with a discriminatory purpose. He appears to argue that the State has violated the Equal *298 Protection Clause by adopting the capital punishment statute and allowing it to remain in force despite its allegedly discriminatory application. But " `[d]iscriminatory purpose'. implies more than intent as volition or intent as awareness of consequences. It implies that the decisionmaker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part `because of,' not merely `in spite of,' its adverse effects upon an identifiable group." Personnel Administrator of See 470 U. S., at -609. For this claim to prevail, McCleskey would have to prove that the Legislature enacted or maintained the death penalty statute because of an anticipated racially discriminatory effect. In Gregg v. this Court found that the capital sentencing system could operate in a fair and neutral manner. There was no evidence then, and there is none now, that the Legislature enacted the capital punishment statute to further a racially discriminatory purpose.[20] Nor has McCleskey demonstrated that the legislature maintains the capital punishment statute because of the racially disproportionate impact suggested by the Baldus study. As legislatures necessarily have wide discretion in the choice of criminal laws and penalties, and as there were *2 legitimate reasons for the Legislature to adopt and maintain capital punishment, see Gregg v. we will not infer a discriminatory purpose on the part of the State of[21] Accordingly, we reject McCleskey's equal protection claims. III McCleskey also argues that the Baldus study demonstrates that the capital sentencing system violates the Eighth Amendment.[22] We begin our analysis of this claim by reviewing the restrictions on death sentences established by our prior decisions under that Amendment. A The Eighth Amendment prohibits infliction of "cruel and unusual punishments." This Court's early Eighth Amendment cases examined only the "particular methods of execution to determine whether they were too cruel to pass constitutional muster." Gregg v. See In re Kemmler, ; *300 Subsequently, the Court recognized that the constitutional prohibition against cruel and unusual punishments "is not fastened to the obsolete but may acquire meaning as public opinion becomes enlightened by a humane justice." Weems, v. United In Weems, the Court identified a second principle inherent in the Eighth Amendment, "that punishment for crime should be graduated and proportioned to offense." Chief Justice Warren, writing for the plurality in acknowledged the |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | Chief Justice Warren, writing for the plurality in acknowledged the constitutionality of capital punishment. In his view, the "basic concept underlying the Eighth Amendment" in this area is that the penalty must accord with "the dignity of man." In applying this mandate, we have been guided by his statement that "[t]he Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society." Thus, our constitutional decisions have been informed by "contemporary values concerning the infliction of a challenged sanction," Gregg v. In assessing contemporary values, we have eschewed subjective judgment, and instead have sought to ascertain "objective indicia that reflect the public attitude toward a given sanction." First among these indicia are the decisions of state legislatures, "because the legislative judgment weighs heavily in ascertaining" contemporary standards, We also have been guided by the sentencing decisions of juries, because they are "a significant and reliable objective index of contemporary values," Most of our recent decisions as to the constitutionality of the death penalty for a particular crime have rested on such an examination of contemporary values. E. g., ; Coker v. (rape); Gregg v. *301 B Two principal decisions guide our resolution of McCleskey's Eighth Amendment claim. In the Court concluded that the death penalty was so irrationally imposed that any particular death sentence could be presumed excessive. Under the statutes at issue in Furman, there was no basis for determining in any particular case whether the penalty was proportionate to the crime: "[T]he death penalty [was] exacted with great infrequency even for the most atrocious crimes and there [was] no meaningful basis for distinguishing the few cases in which it [was] imposed from the many cases in which it [was] not." In Gregg, the Court specifically addressed the question left open in Furman whether the punishment of death for murder is "under all circumstances, `cruel and unusual' in violation of the Eighth and Fourteenth Amendments of the Constitution." We noted that the imposition of the death penalty for the crime of murder "has a long history of acceptance both in the United and in England." "The most marked indication of society's endorsement of the death penalty for murder [was] the legislative response to Furman." During the 4-year period between Furman and Gregg, at least had reenacted the death penalty, and Congress had authorized the penalty for aircraft 4 U.S., -180.[23] The "actions of juries" were "fully compatible with the legislative judgments." We noted that any punishment might be unconstitutionally severe if inflicted without penological justification, but concluded: *302 "Considerations of |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | if inflicted without penological justification, but concluded: *302 "Considerations of federalism, as well as respect for the ability of a legislature to evaluate, in terms of its particular State, the moral consensus concerning the death penalty and its social utility as a sanction, require us to conclude, in the absence of more convincing evidence, that the infliction of death as a punishment for murder is not without justification and thus is not unconstitutionally severe." The second question before the Court in Gregg was the constitutionality of the particular procedures embodied in the capital punishment statute. We explained the fundamental principle of Furman, that "where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action." Numerous features of the then new statute met the concerns articulated in Furman.[24] The system bifurcates guilt and sentencing proceedings so that the jury can receive all relevant information for sentencing without the risk that evidence irrelevant to the defendant's guilt will influence the jury's consideration of that issue. The statute narrows the class of murders subject to the death penalty to cases in which the jury finds at least one statutory aggravating circumstance beyond a reasonable doubt. Conversely, it allows the defendant to introduce any relevant mitigating evidence that might influence the jury not to impose a death sentence. See -164. The procedures also require a particularized inquiry into " `the circumstances of the offense together with the character and propensities of the offender.' " ). Thus, "while some jury discretion still exists, `the *303 discretion to be exercised is controlled by clear and objective standards so as to produce non-discriminatory application.' " -198 ). Moreover, the system adds "an important additional safeguard against arbitrariness and caprice" in a provision for automatic appeal of a death sentence to the State Supreme The statute requires that court to review each sentence to determine whether it was imposed under the influence of passion or prejudice, whether the evidence supports the jury's finding of a statutory aggravating circumstance, and whether the sentence is disproportionate to sentences imposed in generally similar murder cases. To aid the court's review, the trial judge answers a questionnaire about the trial, including detailed questions as to "the quality of the defendant's representation [and] whether race played a role in the trial." C In the cases decided after Gregg, the Court has imposed a number of requirements on the capital |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | Court has imposed a number of requirements on the capital sentencing process to ensure that capital sentencing decisions rest on the individualized inquiry contemplated in Gregg. In we invalidated a mandatory capital sentencing system, finding that the "respect for humanity underlying the Eighth Amendment requires consideration of the character and record of the individual offender and the circumstances of the particular offense as a constitutionally indispensable part of the process of inflicting the penalty of death." (citation omitted). Similarly, a State must "narrow the class of murderers subject to capital punishment," Gregg v. by providing "specific and detailed guidance" to the sentencer.[25]*304 In contrast to the carefully defined standards that must narrow a sentencer's discretion to impose the death sentence, the Constitution limits a State's ability to narrow a sentencer's discretion to consider relevant evidence that might cause it to decline to impose the death sentence.[26] "[T]he sentencer [cannot] 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." (emphasis in original; footnote omitted). See Any exclusion of the "compassionate or mitigating factors stemming from the diverse frailties of humankind" that are relevant to the sentencer's decision would fail to treat all persons as "uniquely individual human beings." Although our constitutional inquiry has centered on the procedures by which a death sentence is imposed, we have not stopped at the face of a statute, but have probed the application *305 of statutes to particular cases. For example, in Godfrey v. the Court invalidated a Supreme Court interpretation of the statutory aggravating circumstance that the murder be "outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim." Ga. Code 27-4.1(b)(7)[27] Although that court had articulated an adequate limiting definition of this phrase, we concluded that its interpretation in Godfrey was so broad that it may have vitiated the role of the aggravating circumstance in guiding the sentencing jury's discretion. Finally, where the objective indicia of community values have demonstrated a consensus that the death penalty is disproportionate as applied to a certain class of cases, we have established substantive limitations on its application. In Coker v. the Court held that a State may not constitutionally sentence an individual to death for the rape of an adult woman. In the Court prohibited imposition of the death penalty on a defendant convicted of felony murder absent a showing that the defendant possessed a sufficiently |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | murder absent a showing that the defendant possessed a sufficiently culpable mental state. Most recently, in 477 U.S. 3 we prohibited execution of prisoners who are insane. D In sum, our decisions since Furman have identified a constitutionally permissible range of discretion in imposing the death penalty. First, there is a required threshold below which the death penalty cannot be imposed. In this context, the State must establish rational criteria that narrow the decisionmaker's judgment as to whether the circumstances of a particular defendant's case meet the threshold. Moreover, a societal consensus that the death penalty is disproportionate *306 to a particular offense prevents a State from imposing the death penalty for that offense. Second, cannot limit the sentencer's consideration of any relevant circumstance that could cause it to decline to impose the penalty. In this respect, the State cannot channel the sentencer's discretion, but must allow it to consider any relevant information offered by the defendant. IV A In light of our precedents under the Eighth Amendment, McCleskey cannot argue successfully that his sentence is "disproportionate to the crime in the traditional sense." See He does not deny that he committed a murder in the course of a planned robbery, a crime for which this Court has determined that the death penalty constitutionally may be imposed. Gregg v. His disproportionality claim "is of a different sort." at McCleskey argues that the sentences in his case is disproportionate to the sentences in other murder cases. On the one hand, he cannot base a constitutional claim on an argument that his case differs from other cases in which defendants did receive the death penalty. On automatic appeal, the Supreme Court found that McCleskey's death sentence was not disproportionate to other death sentences imposed in the State. The court supported this conclusion with an appendix containing citations to 13 cases involving generally similar murders. See Ga. Code Ann. 17-10-(e) Moreover, where the statutory procedures adequately channel the sentencer's discretion, such proportionality review is not constitutionally required. On the other hand, absent a showing that the capital punishment system operates in an arbitrary and capricious manner, McCleskey cannot prove a constitutional *307 violation by demonstrating that other defendants who may be similarly situated did not receive the death penalty. In Gregg, the Court confronted the argument that "the opportunities for discretionary action that are inherent in the processing of any murder case under law," 4 U.S., at 1, specifically the opportunities for discretionary leniency, rendered the capital sentences imposed arbitrary and capricious. We rejected this contention: "The existence of these discretionary stages is |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | rejected this contention: "The existence of these discretionary stages is not determinative of the issues before us. At each of these stages an actor in the criminal justice system makes a decision which may remove a defendant from consideration as a candidate for the death penalty. Furman, in contrast, dealt with the decision to impose the death sentence on a specific individual who had been convicted of a capital offense. Nothing in any of our cases suggests that the decision to afford an individual defendant mercy violates the Constitution. Furman held only that, in order to minimize the risk that the death penalty would be imposed on a capriciously selected group of offenders, the decision to impose it had to be guided by standards so that the sentencing authority would focus on the particularized circumstances of the crime and the defendant." [] *308 Because McCleskey's sentence was imposed under sentencing procedures that focus discretion "on the particularized nature of the crime and the particularized characteristics of the individual defendant," we lawfully may presume that McCleskey's death sentence was not "wantonly and freakishly" imposed, and thus that the sentence is not disproportionate within any recognized meaning under the Eighth Amendment. B Although our decision in Gregg as to the facial validity of the capital punishment statute appears to foreclose McCleskey's disproportionality argument, he further contends that the capital punishment system is arbitrary and capricious in application, and therefore his sentence is excessive, because racial considerations may influence capital sentencing decisions in We now address this claim. To evaluate McCleskey's challenge, we must examine exactly what the Baldus study may show. Even Professor Baldus does not contend that his statistics prove that race enters into any capital sentencing decisions or that race was a factor in McCleskey's particular case.[29] Statistics at most may show only a likelihood that a particular factor entered into some decisions. There is, of course, some risk of racial prejudice influencing a jury's decision in a criminal case. There are similar risks that other kinds of prejudice will influence other criminal trials. See infra, at 315-318. The question * "is at what point that risk becomes constitutionally unacceptable," McCleskey asks us to accept the likelihood allegedly shown by the Baldus study as the constitutional measure of an unacceptable risk of racial prejudice influencing capital sentencing decisions. This we decline to do. Because of the risk that the factor of race may enter the criminal justice process, we have engaged in "unceasing efforts" to eradicate racial prejudice from our criminal justice system.[30] Our efforts have been guided by our |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | criminal justice system.[30] Our efforts have been guided by our recognition that "the inestimable privilege of trial by jury is a vital principle, underlying the whole administration of criminal justice," Ex parte Milligan, See 1[31] Thus, it is the jury that is a criminal defendant's fundamental "protection of life and liberty against race or color prejudice." Specifically, a capital sentencing jury representative of a criminal defendant's community assures a " `diffused impartiality,' " in the jury's task of "express[ing] the conscience of the community on the ultimate question of life or death,"[32] *311 Individual jurors bring to their deliberations "qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable." The capital sentencing decision requires the individual jurors to focus their collective judgment on the unique characteristics of a particular criminal defendant. It is not surprising that such collective judgments often are difficult to explain. But the inherent lack of predictability of jury decisions does not justify their condemnation. On the contrary, it is the jury's function to make the difficult and uniquely human judgments that defy codification and that "buil[d] discretion, equity, and flexibility into a legal system." H. Kalven & H. Zeisel, The American Jury 498 (1966). McCleskey's argument that the Constitution condemns the discretion allowed decisionmakers in the capital sentencing system is antithetical to the fundamental role of discretion in our criminal justice system. Discretion in the criminal justice system offers substantial benefits to the criminal defendant. Not only can a jury decline to impose the death sentence, it can decline to convict or choose to convict of a lesser offense. Whereas decisions against a defendant's interest may be reversed by the trial judge or on appeal, these discretionary exercises of leniency are final and unreviewable.[33] Similarly, the capacity of prosecutorial discretion *312 to provide individualized justice is "firmly entrenched in American law." 2 W. LaFave & J. Israel, Criminal Procedure 13.2(a), p. 160 As we have noted, a prosecutor can decline to charge, offer a plea bargain,[34] or decline to seek a death sentence in any particular case. See n. Of course, "the power to be lenient [also] is the power to discriminate," K. Davis, Discretionary Justice 170 but a capital punishment system that did not allow for discretionary acts of leniency "would be totally alien to our notions of criminal justice." Gregg v. 4 U. S., at 200, n. 50. C At most, the Baldus study indicates a discrepancy that appears to correlate with race. Apparent disparities in sentencing are an inevitable part of our criminal justice system.[]*313 |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | sentencing are an inevitable part of our criminal justice system.[]*313 The discrepancy indicated by the Baldus study is "a far cry from the major systemic defects identified in Furman,"[36] As this Court has recognized, any mode for determining guilt or punishment "has its weaknesses and the potential for misuse." Singer v. United See 4 U.S. 7, Specifically, "there can be `no perfect procedure for deciding in which cases governmental authority should be used to impose death.' " (quoting 8 U. S., at 605 ). Despite these imperfections, our consistent rule has been that constitutional guarantees are met when "the mode [for determining guilt or punishment] itself has been surrounded with safeguards to make it as fair as possible." Singer v. United at Where the discretion that is fundamental to our criminal process is involved, we decline to assume that what is unexplained is invidious. In light of the safeguards designed to minimize racial bias in the process, the fundamental value of jury trial in our criminal justice system, and the benefits that discretion provides to criminal defendants, we hold that the Baldus study does not demonstrate a constitutionally significant risk of racial bias affecting the capital sentencing process.[37] *314 V Two additional concerns inform our decision in this case. First, McCleskey's claim, taken to its logical conclusion, *315 throws into serious question the principles that underlie our entire criminal justice system. The Eighth Amendment is not limited in application to capital punishment, but applies to all penalties. 9-290 ; see Thus, if we accepted McCleskey's claim that racial bias has impermissibly tainted the capital sentencing decision, we could soon be faced with similar claims as to other types of penalty.[38] Moreover, the claim that his sentence *316 rests on the irrelevant factor of race easily could be extended to apply to claims based on unexplained discrepancies that correlate to membership in other minority groups,[39] and *317 even to gender.[40] Similarly, since McCleskey's claim relates to the race of his victim, other claims could apply with equally logical force to statistical disparities that correlate with the race or sex of other actors in the criminal justice system, such as defense attorneys[41] or judges.[42] Also, there is no logical reason that such a claim need be limited to racial or sexual bias. If arbitrary and capricious punishment is the touchstone under the Eighth Amendment, such a claim could at least in theory be based upon any arbitrary variable, such as the defendant's facial characteristics,[] or the physical attractiveness of the defendant or the victim,[44] that some statistical *318 study indicates |
Justice Powell | 1,987 | 17 | majority | McCleskey v. Kemp | https://www.courtlistener.com/opinion/111869/mccleskey-v-kemp/ | defendant or the victim,[44] that some statistical *318 study indicates may be influential in jury decisionmaking. As these examples illustrate, there is no limiting principle to the type of challenge brought by McCleskey.[45]*319 The Constitution does not require that a State eliminate any demonstrable disparity that correlates with a potentially irrelevant factor in order to operate a criminal justice system that includes capital punishment. As we have stated specifically in the context of capital punishment, the Constitution does not "plac[e] totally unrealistic conditions on its use." Gregg v. 4 U. S., at 1, n. 50. Second, McCleskey's arguments are best presented to the legislative bodies. It is not the responsibility or indeed even the right of this Court to determine the appropriate punishment for particular crimes. It is the legislatures, the elected representatives of the people, that are "constituted to respond to the will and consequently the moral values of the people." Legislatures also are better qualified to weigh and "evaluate the results of statistical studies in terms of their own local conditions and with a flexibility of approach that is not available to the courts," Gregg v. Capital punishment is now the law in more than two-thirds of our It is the ultimate duty of courts to determine on a case-by-case basis whether these laws are applied consistently with the Constitution. Despite McCleskey's wide-ranging arguments that basically challenge the validity of capital punishment in our multiracial society, the only question before us is whether in his case, see at 3-2, the law of was properly applied. We agree with the District Court and the Court of Appeals for the Eleventh Circuit that this was carefully and correctly done in this case. *320A VI Accordingly, we affirm the judgment of the Court of Appeals for the Eleventh Circuit. It is so ordered. |
Justice Powell | 1,979 | 17 | concurring | Ford Motor Co. (Chicago Stamping Plant) v. NLRB | https://www.courtlistener.com/opinion/110073/ford-motor-co-chicago-stamping-plant-v-nlrb/ | The Court today holds that prices for in-plant cafeteria and vending machine food and beverages are "terms and conditions of employment" subject to mandatory collective bargaining under the National Labor Relations Act. Although this view of the Act has been taken consistently by the National Labor Relations Board, none of the courts of appeals *504 has agreed with the absolute approach of the Board. Rather, these courts in general have taken the position that whether bargaining with respect to in-plant food service was required depends upon the facts and circumstances of each case. Although the Court of Appeals for the Seventh Circuit enforced the Board's order in this case, it did so on a "facts and circumstances" basis. I had thought that the case-by-case approach was more likely to be fair to both employer and union than is the mandatory bargaining rule adopted today. The conditions and circumstances under which in-plant food service is provided can and do vary widely among the thousands of enterprises subject to the Act. Yet, curiously enough, neither petitioner nor respondent union in this case supports the "facts and circumstances" approach of the Court of Appeals. On balance, I suppose there is merit in having a "bright line" with respect to this issue. This does put the parties to all collective bargaining on prior notice, with a reasonable expectation that the issue usually will be resolved in advance at the bargaining table. I am, therefore, persuaded to join the Court's opinion. MR. JUSTICE BLACKMUN, concurring in the result. I am in accord with muchindeed with mostof what the Court pronounces in its opinion, and I join its judgment. My concern is with the last two sentences of the penultimate paragraph of the Court's opinion. Ante, at 503. The Court there says that "[i]n any event" an employer, by initiating or altering a subsidy to a third-party supplier, "can always affect prices" and "will typically have the right to change suppliers at some point in the future." Thus, to this extent, "the employer holds future, if not present, leverage over in-plant food services and prices." To me, this language seems to say that Ford's control over prices under the facts of this case is really irrelevant to the "mandatory subject" inquiry, and seems to imply that an employer must bargain about prices even if he has no actual control over them at all. *505 Any employer, of course, could achieve some measure of future control over prices, by initiating a subsidy or by changing suppliers. That future possibility, however, should not be enough. If the employer |
Justice Powell | 1,979 | 17 | concurring | Ford Motor Co. (Chicago Stamping Plant) v. NLRB | https://www.courtlistener.com/opinion/110073/ford-motor-co-chicago-stamping-plant-v-nlrb/ | future possibility, however, should not be enough. If the employer has no control over prices, bargaining about them is futile. If the employer rents space in a corner of the plant to a restaurateur, and thereafter maintains a "hands off" attitude and has no input into the food operation, it is difficult for me to see how bargaining about food prices makes any sense. The employer has no more control over prices by virtue of its landlord status than it has over prices charged at the hamburger shop across the street. If the employer really has no control over prices, moreover, it is not obvious that the prices charged "settle an aspect of the relationship between the employer and employees," Chemical & Alkali a precondition for mandatory bargaining status. The pertinent relationship is then between the restaurateur and the employees. If the employer has no control over prices and services whatsoever, and if he nevertheless is required to bargain about them because in the future he might be able to exercise some control over them, the employer's "managerial decision making" may well be usurped, and we are close to the basic concern of the concurrence in Fibreboard Paper Products I think it is unwise to go out of our way to holdif the Court does so herethat an employer with no present actual influence or control over food prices should be forced to bargain about them because of the mere possibility that he might have "future leverage." That situation is not presented in this case, and I see no need for the Court to decide it. For now, I prefer only a general rule that food prices are mandatorily bargainable so long as the employer, as here, has some measure of actual influence over the prices charged. I thus join the Court in the result it reaches in this case. I would reserve other situations for another day. |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | The question presented is whether the Freedom of Information Act (FOIA or Act), 5 U.S. C. 552 (192 ed. and Supp. V), requires the United States Department of Justice (Department) to make available copies of district court decisions that it receives in the course of litigating tax cases on behalf of the Federal Government. We hold that it does. I The Department's Tax Division represents the Federal Government in nearly all civil tax cases in the district courts, the courts of appeals, and the Claims Court. Because it represents a party in litigation, the Tax Division receives copies of all opinions and orders issued by these courts in such cases. Copies of these decisions are made for the Tax Division's staff attorneys. The original documents are sent to the official files kept by the Department. If the Government has won a district court case, the Tax Division must prepare a bill of costs and collect any money judgment indicated in the decision. If the Government has lost, the Tax Division must decide whether to file a motion to alter or amend the judgment or whether to recommend filing an appeal. The decision whether to appeal involves not only the Tax Division but the Internal Revenue Service (IRS) and the Solicitor General. A division of the IRS reviews the district court's decision and prepares a recommendation on whether an appeal should be taken. The court decision and the accompanying recommendation are circulated to the Tax Division, which formulates its own recommendation, and then to the Solicitor General, who reviews the district court decision in light of the IRS and Tax Division's recommendations. If the Solicitor General ultimately approves an appeal, the Tax Division prepares a record and joint appendix, both of which must contain a copy of the district court decision, for transmittal to the court of appeals. If no appeal is *139 taken, the Tax Division is responsible for ensuring the payment of any court-ordered refund and for defending against any claim for attorney's fees. Respondent Tax Analysts publishes a weekly magazine, Tax Notes, which reports on legislative, judicial, and regulatory developments in the field of federal taxation to a readership largely composed of tax attorneys, accountants, and economists. As one of its regular features, Tax Notes provides summaries of recent federal-court decisions on tax issues. To supplement the magazine, Tax Analysts provides full texts of these decisions in microfiche form. Tax Analysts publishes Tax Notes Today, a daily electronic data base that includes summaries and full texts of recent federal-court tax decisions. In late July 19, Tax Analysts filed |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | federal-court tax decisions. In late July 19, Tax Analysts filed a FOIA request in which it asked the Department to make available all district court tax opinions and final orders received by the Tax Division earlier that month.[1] The Department denied the request on the ground that these decisions were not Tax Division records. Tax Analysts then appealed this denial administratively. While the appeal was pending, Tax Analysts agreed to withdraw its request in return for access to the Tax Division's weekly log of tax cases decided by the federal courts. These logs list the name and date of a case, the docket number, the names of counsel, the nature of the case, and its disposition. Since gaining access to the weekly logs, Tax Analysts' practice has been to examine the logs and to request copies of the decisions noted therein from the clerks of the 90 or so district courts around the country and from participating attorneys. In most instances, Tax Analysts procures copies reasonably promptly, but this method of acquisition has proven *140 unsatisfactory approximately 25% of the time. Some court clerks ignore Tax Analysts' requests for copies of decisions, and others respond slowly, sometimes only after Tax Analysts has forwarded postage and copying fees. Because the Federal Government is required to appeal tax cases within 0 days, Tax Analysts frequently fails to obtain copies of district court decisions before appeals are taken. Frustrated with this process, Tax Analysts initiated a series of new FOIA requests in Beginning in November and continuing approximately once a week until May 195, Tax Analysts asked the Department to make available copies of all district court tax opinions and final orders identified in the Tax Division's weekly logs. The Department denied these requests and Tax Analysts appealed administratively. When the Department sustained the denial, Tax Analysts filed the instant suit in the United States District Court for the District of Columbia, seeking to compel the Department to provide it with access to district court decisions received by the Tax Division. The District Court granted the Department's motion to dismiss the complaint, holding that 5 U.S. C. 552(a)(4)(B), which confers jurisdiction in the district courts when "agency records" have been "improperly withheld,"[2] had not been satisfied. The court reasoned that the district court decisions at issue had not been "improperly withheld" because they "already are available from *141 their primary sources, the District Courts," and thus were "on the public record." The court did not address whether the district court decisions are "agency records." at The Court of Appeals for the District of |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | records." at The Court of Appeals for the District of Columbia Circuit reversed. 29 U. S. App. D. C. 315, It first held that the district court decisions were "improperly withheld." An agency ordinarily may refuse to make available documents in its control only if it proves that the documents fall within one of the nine disclosure exemptions set forth in 552(b), the court noted, and in this instance, "[n]o exemption applies to the district court opinions." As for the Department's contention that the district court decisions are publicly available at their source, the court observed that "no court has denied access to documents on the ground that they are available elsewhere, and several have assumed that such documents must still be produced by the agency unless expressly exempted by the Act." The Court of Appeals next held that the district court decisions sought by Tax Analysts are "agency records" for purposes of the FOIA. The court acknowledged that the district court decisions had originated in a part of the Government not covered by the FOIA, but concluded that the documents nonetheless constituted "agency records" because the Department has the discretion to use the decisions as it sees fit, because the Department routinely uses the decisions in performing its official duties, and because the decisions are integrated into the Department's official case files. -109. The court therefore remanded the case to the District Court with instructions to enter an order directing the Department "to provide some reasonable form of access" to the decisions sought by Tax Analysts. We granted certiorari, and now affirm. *142 II In enacting the FOIA 23 years ago, Congress sought " `to open agency action to the light of public scrutiny.' " Department of quoting Department of Air Congress did so by requiring agencies to adhere to " `a general philosophy of full agency disclosure.' " quoting S. Rep. No. 13, 9th Cong., 1st Sess., 3 (195). Congress believed that this philosophy, put into practice, would help "ensure an informed citizenry, vital to the functioning of a democratic society." The FOIA confers jurisdiction on the district courts "to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld." 552(a)(4)(B). Under this provision, "federal jurisdiction is dependent on a showing that an agency has (1) `improperly' (2) `withheld' (3) `agency records.' " Unless each of these criteria is met, a district court lacks jurisdiction to devise remedies to force an agency to comply with the FOIA's disclosure requirements.[3] In this case, all three jurisdictional terms are at issue. Although |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | this case, all three jurisdictional terms are at issue. Although these terms are defined neither in the Act nor in its legislative history, we do not write on a clean slate. Nine Terms ago we decided three cases that explicated the meanings of these partially overlapping terms. ; GTE Sylvania, These decisions form the basis of our analysis of Tax Analysts' requests. A We consider first whether the district court decisions at issue are "agency records," a term elaborated upon both in Kissinger and in Kissinger involved three separate FOIA requests for written summaries of telephone conversations in which Henry Kissinger had participated when he served as Assistant to the President for National Security Affairs from 199 to 1975, and as Secretary of State from 1973 to 1977. Only one of these requests for summaries of specific conversations that Kissinger had had during his tenure as National Security Adviser raised the "agency records" issue. At the time of this request, these summaries were stored in Kissinger's office at the State Department in his personal files. We first concluded that the summaries were not "agency records" at the time they were made because the FOIA does not include the Office of the President in its definition of "agency." We further held that these documents did not acquire the status of "agency records" when they were removed from the White House and transported to Kissinger's office at the State Department, a FOIA-covered agency: "We simply decline to hold that the physical location of the notes of telephone conversations renders them `agency records.' The papers were not in the control of the State Department at any time. They were not generated in the State Department. They never entered the State Department's files, and they were not used by the Department for any purpose. If mere physical location of papers and materials could confer status as an `agency record' Kissinger's personal books, speeches, and all other memorabilia stored in his office would have *144 been agency records subject to disclosure under the FOIA." in turn, involved a request for raw data that formed the basis of a study conducted by a private medical research organization. Although the study had been funded through federal agency grants, the data never passed into the hands of the agencies that provided the funding, but instead was produced and possessed at all times by the private organization. We recognized that "[r]ecords of a nonagency certainly could become records of an agency as" but the fact that the study was financially supported by a FOIA-covered agency did not |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | study was financially supported by a FOIA-covered agency did not transform the source material into "agency records." Nor did the agencies' right of access to the materials under federal regulations change this result. As we explained, "the FOIA applies to records which have been in fact obtained, and not to records which merely could have been obtained." Two requirements emerge from Kissinger and each of which must be satisfied for requested materials to qualify as "agency records." First, an agency must "either create or obtain" the requested materials "as a prerequisite to its becoming an `agency record' within the meaning of the FOIA." In performing their official duties, agencies routinely avail themselves of studies, trade journal reports, and other materials produced outside the agencies both by private and governmental organizations. See Chrysler To restrict the term "agency records" to materials generated internally would frustrate Congress' desire to put within public reach the information available to an agency in its decision-making processes. See As we noted in "The legislative history of the FOIA abounds with *145. references to records acquired by an agency."[4] Second, the agency must be in control of the requested materials at the time the FOIA request is made. By control we mean that the materials have come into the agency's possession in the legitimate conduct of its official duties. This requirement accords with Kissinger's teaching that the term "agency records" is not so broad as to include personal materials in an employee's possession, even though the materials may be physically located at the agency. See 445 U.S., This requirement is suggested by as where we looked to the definition of agency records in the Records Disposal Act, 44 U.S. C. 3301. Under that definition, agency records include "all books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business"[5] Furthermore, the requirement that the materials *14 be in the agency's control at the time the request is made accords with our statement in that the FOIA does not cover "information in the abstract."[] Applying these requirements here, we conclude that the requested district court decisions constitute "agency records." First, it is undisputed that the Department has obtained these documents from the district courts. This is not a case like where the materials never in fact had been received by the agency. The Department contends that a district court is not an "agency" under the FOIA, but this truism |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | is not an "agency" under the FOIA, but this truism is beside the point. The relevant issue is whether an agency covered by the FOIA has "create[d] or obtaine[d]" the materials sought, 445 U. S., not whether the organization from which the documents originated is itself covered by the FOIA.[7] Second, the Department clearly controls the district court decisions that Tax Analysts seeks. Each of Tax Analysts' FOIA requests referred to district court decisions in the agency's possession at the time the requests were made. *147 This is evident from the fact that Tax Analysts based its weekly requests on the Tax Division's logs, which compile information on decisions the Tax Division recently had received and placed in official case files. Furthermore, the court decisions at issue are obviously not personal papers of agency employees. The Department counters that it does not control these decisions because the district courts retain authority to modify the decisions even after they are released, but this argument, too, is beside the point. The control inquiry focuses on an agency's possession of the requested materials, not on its power to alter the content of the materials it receives. Agencies generally are not at liberty to alter the content of the materials that they receive from outside parties. An authorship-control requirement thus would sharply limit "agency records" essentially to documents generated by the agencies themselves. This result is incompatible with the FOIA's goal of giving the public access to all nonexempted information received by an agency as it carries out its mandate. The Department urges us to limit "agency records," at least where materials originating outside the agency are concerned, "to those documents `prepared substantially to be relied upon in agency decisionmaking.' " Brief for Petitioner 21, quoting This limitation disposes of Tax Analysts' requests, the Department argues, because district court judges do not write their decisions primarily with an eye toward agency decisionmaking. This argument, however, makes the determination of "agency records" turn on the intent of the creator of a document relied upon by an agency. Such a mens rea requirement is nowhere to be found in the Act.[] Moreover, discerning the intent of the drafters of a *14 document may often prove an elusive endeavor, particularly if the document was created years earlier or by a large number of people for whom it is difficult to divine a common intent. B We turn next to the term "withheld," which we discussed in Kissinger. Two of the requests in that case for summaries of all the telephone conversations in which Kissinger had engaged |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | of all the telephone conversations in which Kissinger had engaged while serving as National Security Adviser and as Secretary of State implicated that term. These summaries were initially stored in Kissinger's personal files at the State Department. Near the end of his tenure as Secretary of State, Kissinger transferred the summaries first to a private residence and then to the Library of Congress. Significantly, the two requests for these summaries were made only after the summaries had been physically delivered to the Library. We found this fact dispositive, concluding that Congress did not believe that an agency "withholds a document which has been removed from the possession of the agency prior to the filing of the FOIA request. In such a case, the agency has neither the custody nor control necessary to enable it to withhold." 445 U.S., at -151.[9] We accordingly refused to order the State Department to institute a retrieval action against the Library. As we explained, such a course "would have us read the `hold' out of `withhold. A refusal to resort to legal remedies to obtain possession is simply not conduct subsumed by the verb withhold.' "[10] *149 The construction of "withholding" adopted in Kissinger readily encompasses Tax Analysts' requests. There is no claim here that Tax Analysts filed its requests for copies of recent district court tax decisions received by the Tax Division after these decisions had been transferred out of the Department. On the contrary, the decisions were on the Department's premises and otherwise in the Department's control, when the requests were made. See n. Thus, when the Department refused to comply with Tax Analysts' requests, it "withheld" the district court decisions for purposes of 552(a)(4)(B). The Department's counterargument is that, because the district court decisions sought by Tax Analysts are publicly available as soon as they are issued and thus may be inspected and copied by the public at any time, the Department cannot be said to have "withheld" them. The Department notes that the weekly logs it provides to Tax Analysts contain sufficient information to direct Tax Analysts to the "original source of the requested documents." Brief for Petitioner 23. It is not clear from the Department's brief whether this argument is based on the term "withheld" or the term "improperly."[11] But, to the extent the Department relies on the * former term, its argument is without merit. Congress used the word "withheld" only "in its usual sense." Kissinger, 445 U. S., When the Department refused to grant Tax Analysts' requests for the district court decisions in its files, it undoubtedly |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | for the district court decisions in its files, it undoubtedly "withheld" these decisions in any reasonable sense of that term. Nothing in the history or purposes of the FOIA counsels contorting this word beyond its usual meaning. We therefore reject the Department's argument that an agency has not "withheld" a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside of the agency where the document may be publicly available. C The Department is left to argue, finally, that the district court decisions were not "improperly" withheld because of their public availability. The term "improperly," like "agency records" and "withheld," is not defined by the Act. We explained in GTE Sylvania, however, that Congress' use of the word "improperly" reflected its dissatisfaction with 3 of the Administrative Procedure Act, 5 U.S. C. 1002 (194 ed.), which "had failed to provide the desired access to information relied upon in Government decisionmaking, and in fact had become `the major statutory excuse for withholding Government records from public view.' " quoting H. R. Rep. No. 9th Cong., 2d Sess., 3 (19). Under 3, we explained, agencies had "broad discretion in deciding what information to disclose, and that discretion was often abused." In enacting the FOIA, Congress intended "to curb this apparently unbridled discretion" by "clos[ing] the `loopholes which allow agencies to deny legitimate information to the public.' " ; see Toward this end, Congress formulated a system of clearly defined exemptions to the FOIA's otherwise mandatory disclosure requirements. An agency must disclose agency records to any person under 552(a), "unless *151 they may be withheld pursuant to one of the nine enumerated exemptions listed in 552(b)." Department of 4 U.S. 1, Consistent with the Act's goal of broad disclosure, these exemptions have been consistently given a narrow compass. See, e. g., ibid.; 45 U.S. 15, 30 (192). More important for present purposes, the exemptions are "explicitly exclusive." FAA 22 ; see 425 U. S., at 31; Robbins Tire & Rubber ; at As JUSTICE O'CONNOR has explained, Congress sought "to insulate its product from judicial tampering and to preserve the emphasis on disclosure by admonishing that the `availability of records to the public' is not limited, `except as specifically stated.' " at 42 (emphasis in original), quoting 552(c) (now codified at 552(d)); see 45 U.S., at 37, n. 5; H. R. Rep. No. It follows from the exclusive nature of the 552(b) exemption scheme that agency records which do not fall within one of the exemptions are "improperly" withheld.[12] The Department does not contend |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | the exemptions are "improperly" withheld.[12] The Department does not contend here that any exemption enumerated in 552(b) protects the district court decisions sought by Tax Analysts. The Department claims nonetheless that there is nothing "improper" in directing a requester "to the principal, public source of records." Brief for Petitioner 2. The Department advances three somewhat related *152 arguments in support of this proposition. We consider them in turn. First, the Department contends that the structure of the Act evinces Congress' desire to avoid redundant disclosures. An understanding of this argument requires a brief survey of the disclosure provisions of 552(a). Under subsection (a)(1), an agency must "currently publish in the Federal Register" specific materials, such as descriptions of the agency, statements of its general functions, and the agency's rules of procedure. Under subsection (a)(2), an agency must "make available for public inspection and copying" its final opinions, policy statements, and administrative staff manuals, "unless the materials are promptly published and copies offered for sale." Under subsection (a)(3), the general provision covering the disclosure of agency records, an agency need not make available those materials that have already been disclosed under subsections (a)(1) and (a)(2). Taken together, the Department argues, these provisions demonstrate the inapplicability of the FOIA's disclosure requirements to previously disclosed, publicly available materials. "A fortiori, a judicial record that is a public document should not be subject to a FOIA request." The Department's argument proves too much. The disclosure requirements set out in subsections (a)(1) and (a)(2) are carefully limited to situations in which the requested materials have been previously published or made available by the agency itself. It is one thing to say that an agency need not disclose materials that it has previously released; it is quite another to say that an agency need not disclose materials that some other person or group may have previously released. Congress undoubtedly was aware of the redundancies that might exist when requested materials have been previously made available. It chose to deal with that problem by crafting only narrow categories of materials which need not be, in effect, disclosed twice by the agency. If Congress had wished to codify an exemption for all publicly available materials, *153 it knew perfectly how to do so. It is not for us to add or detract from Congress' comprehensive scheme, which already "balances, and protects all interests" implicated by Executive Branch disclosure. at 0, quoting S. Rep. No. 13, 9th Congress, 1st Sess., 3 (195).[13] It is not surprising, moreover, that Congress declined to exempt all publicly available materials from the FOIA's |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | declined to exempt all publicly available materials from the FOIA's disclosure requirements. In the first place, such an exemption would engender intractable fights over precisely what constitutes public availability, unless the term were defined with precision. In some sense, nearly all of the information that comes within an agency's control can be characterized as publicly available. Although the form in which this material comes to an agency i. e., a report or testimony may not be generally available, the information included in that report or testimony may very be. Even if there were some agreement over what constitutes publicly available materials, Congress surely did not envision agencies satisfying their disclosure obligations under the FOIA simply by handing requesters a map and sending them on scavenger expeditions throughout the Nation. Without some express indication in the Act's text or legislative history that Congress intended such a result, we decline to adopt this reading of the statute. The Department's next argument rests on the fact that the disclosure of district court decisions is partially governed by other statutes, in particular 2 U.S. C. 1914, and by rules *154 set by the Judicial Conference of the United States. The FOIA does not compel disclosure of district court decisions, the Department contends, because these other provisions are "more precisely drawn to govern the provision of court records to the general public." Brief for Petitioner 30. We disagree. As with the Department's first argument, this theory requires us to read into the FOIA a disclosure exemption that Congress did not itself provide. This we decline to do. That Congress knew that other statutes created overlapping disclosure requirements is evident from 552(b)(3), which authorizes an agency to refuse a FOIA request when the materials sought are expressly exempted from disclosure by another statute. If Congress had intended to enact the converse proposition that an agency may refuse to provide disclosure of materials whose disclosure is mandated by another statute it was free to do so. Congress, however, did not take such a step.[14] The Department's last argument is derived from GTE Sylvania, where we held that agency records sought from the Consumer Products Safety Commission were not "improperly" withheld even though the records did not fall within one of subsection (b)'s enumerated exemptions. The Commission had not released the records in question because a district court, in the course of an unrelated lawsuit, had enjoined the Commission from doing so. In these circumstances, we held, "[t]he concerns underlying the Freedom of Information Act [were] inapplicable, for the agency made no effort to |
Justice Marshall | 1,989 | 15 | majority | Department of Justice v. Tax Analysts | https://www.courtlistener.com/opinion/112320/department-of-justice-v-tax-analysts/ | Act [were] inapplicable, for the agency made no effort to avoid disclosure." 445 U.S., at 3. We therefore approved the Commission's compliance with the injunction, noting that when Congress passed the FOIA, it had not "intended to require an agency to commit contempt of court in order to release documents. Indeed, Congress viewed the federal courts as the necessary protectors of the public's right to know." at 37. *155 Although the Department is correct in asserting that GTE Sylvania represents a departure from the FOIA's self-contained exemption scheme, this departure was a slight one at best, and was necessary in order to serve a critical goal independent of the FOIA the enforcement of a court order. As we emphasized, GTE Sylvania arose in "a distinctly different context" than the typical FOIA case, at 3, where the agency decides for itself whether to comply with a request for agency records. In such a case, the agency cannot contend that it has "no discretion to exercise." The present dispute is clearly akin to those typical FOIA cases. No claim has been made that the Department was powerless to comply with Tax Analysts' requests. On the contrary, it was the Department's decision, and the Department's decision alone, not to make the court decisions available. We reject the Department's suggestion that GTE Sylvania invites courts in every case to engage in balancing, based on public availability and other factors, to determine whether there has been an unjustified denial of information. The FOIA invests courts neither with the authority nor the tools to make such determinations. III For the reasons stated, the Department improperly withheld agency records when it refused Tax Analysts' requests for copies of the district court tax decisions in its files.[15] Accordingly, the judgment of the Court of Appeals is Affirmed. JUSTICE WHITE concurs in the judgment. |
Justice Stevens | 1,988 | 16 | majority | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112047/employment-div-dept-of-human-resources-of-ore-v-smith/ | Respondents are drug and alcohol abuse rehabilitation counselors who were discharged after they ingested peyote, a hallucinogenic drug, during a religious ceremony of the Native American Church. Both applied for and were denied unemployment compensation by petitioner Employment Division. The Oregon Supreme Court held that this denial, although *662 proper as a matter of Oregon law, violated the Free Exercise Clause of the First Amendment to the Federal Constitution.[1] In reaching that conclusion the state court attached no significance to the fact that the possession of peyote is a felony under Oregon law punishable by imprisonment for up to 10 years.[2] Because we are persuaded that the alleged illegality of respondents' conduct is relevant to the constitutional analysis, we granted certiorari, and now vacate the judgments and remand for further proceedings. I Respondents Alfred Smith and Galen Black were employed by the Douglas County Council on Alcohol and Drug Abuse Prevention and Treatment (ADAPT), a nonprofit corporation that provides treatment for alcohol and drug abusers. Both were qualified to be counselors, in part, because they had former drug and alcohol dependencies. As a matter of policy, ADAPT required its recovering counselors to abstain from the use of alcohol and illegal drugs.[3] ADAPT terminated *663 respondents' employment because they violated that policy. As to each of them the violation consisted of a single act of ingesting a small quantity of peyote for sacramental purposes at a ceremony of the Native American Church. It is undisputed that respondents are members of that church, that their religious beliefs are sincere, and that those beliefs motivated the "misconduct" that led to their discharge. Both respondents applied for unemployment compensation. Petitioner Employment Division considered the applications in a series of administrative hearings and appeals,[4] at the conclusion of which it determined that the applications should be denied.[5] Petitioner considered and rejected respondents' constitutional claim and concluded that they were *664 ineligible for benefits because they had been discharged for work-related "misconduct."[6] The Oregon Court of Appeals, considering the constitutional issue en banc, reversed the Board's decisions.[7] The Oregon Supreme Court granted the State's petitions for review in both cases to consider whether the denial of benefits violated the Oregon Constitution[8] or the First Amendment to the Federal Constitution. The cases were argued together, but the court issued separate opinions, fully analyzing the constitutional issues only in Smith. *665 In accordance with its usual practice,[9] the court first addressed the Oregon constitutional issue. The court concluded: "Under the Oregon Constitution's freedom of religion provisions, claimant has not shown that his right to worship according to the |
Justice Stevens | 1,988 | 16 | majority | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112047/employment-div-dept-of-human-resources-of-ore-v-smith/ | not shown that his right to worship according to the dictates of his conscience has been infringed upon by the denial of unemployment benefits. We do not imply that a governmental rule or policy disqualifying a person from employment or from public services or benefits by reason of conduct that rests on a religious belief or a religious practice could not impinge on the religious freedom guaranteed by Article I, sections 2 and 3. Nor do we revive a distinction between constitutional `rights' and `privileges.' But here it was not the government that disqualified claimant from his job for ingesting peyote. And the rule denying unemployment benefits to one who loses his job for what an employer permissibly considers misconduct, conduct incompatible with doing the job, is itself a neutral rule, as we have said. As long as disqualification by reason of the religiously based conduct is peculiar to the particular employment and most other jobs remain open to the worker, we do not believe that the state is denying the worker a vital necessity in applying the `misconduct' exception of the unemployment compensation law." Turning to the federal issue, the court reasoned that our decisions in and *666 required it to hold that the denial of unemployment benefits significantly burdened respondent's religious freedom. The court also concluded that the State's interest in denying benefits was not greater in this case than in Sherbert or Thomas. This conclusion rested on the premise that the Board had erroneously relied on the State's interest in proscribing the use of dangerous drugs rather than just its interest in the financial integrity of the compensation fund. Whether the state court believed that it was constrained by Sherbert and Thomas to disregard the State's law enforcement interest, or did so because it believed petitioner to have conceded that the legality of respondent's conduct was not in issue, is not entirely clear. The relevant paragraph in the court's opinion reads as follows: "Nor is the state's interest in this case a more `overriding' or `compelling' interest than in Sherbert and Thomas. The Board found that the state's interest in proscribing the use of dangerous drugs was the compelling interest that justified denying the claimant unemployment benefits. However, the legality of ingesting peyote does not affect our analysis of the state's interest. The state's interest in denying unemployment benefits to a claimant discharged for religiously motivated misconduct must be found in the unemployment compensation statutes, not in the criminal statutes proscribing the use of peyote. The Employment Division concedes that `the commission of an illegal act is |
Justice Stevens | 1,988 | 16 | majority | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112047/employment-div-dept-of-human-resources-of-ore-v-smith/ | Division concedes that `the commission of an illegal act is not, in and of itself, grounds for disqualification from unemployment benefits. ORS 657.176(3) permits disqualification only if a claimant commits a felony in connection with work [T]he legality of [claimant's] ingestion of peyote has little direct bearing on this case." *667 The court noted that although the possession of peyote is a crime in Oregon, such possession is lawful in many jurisdictions.[10] In its opinion in Black, the court rejected the Court of Appeals' conclusion that the case should be remanded for factual findings on the religious character of respondent's peyote use. Although the referee's findings concerning the use of peyote were somewhat sparse, the court found them sufficient to support the conclusions that the Native American Church is a recognized religion, that peyote is a sacrament of that church, and that respondent's beliefs were sincerely held. The court noted that other courts had acknowledged the role of peyote in the Native American Church and quoted at length from a decision of the California Supreme Court.[11]*668 This extensive quotation from an opinion that explains why the religious use of peyote is permitted in California raises the question whether the Oregon court might reach a similar conclusion. *669 II Respondents contend that the sacramental use of small quantities of peyote in the Native American Church is comparable to the sacramental use of small quantities of alcohol in Christian religious ceremonies. Even though the State may generally prohibit the use of hallucinogenic drugs and alcohol for recreational purposes and strictly regulate their use for medicinal purposes, respondents assert that the Constitution requires some measure of accommodation for religious use. Alternatively, they argue that Oregon's general prohibition against the possession of peyote is not applicable to its use in a genuine religious ceremony. Even if peyote use is a crime in Oregon, since the State does not administer its unemployment compensation program for law enforcement purposes, they conclude that our decisions in Sherbert and Thomas require that they be awarded benefits. The Oregon Supreme Court agreed with respondents' conclusion, but it did not endorse all of their reasoning. The state court appears to have assumed, without specifically deciding, that respondents' conduct was unlawful. That assumption did not influence the court's disposition of the cases because, as a matter of state law, the commission of an illegal act is not itself a ground for disqualifying a discharged employee from benefits. It does not necessarily follow, however, *670 that the illegality of an employee's misconduct is irrelevant to the analysis of the federal constitutional claim. |
Justice Stevens | 1,988 | 16 | majority | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112047/employment-div-dept-of-human-resources-of-ore-v-smith/ | is irrelevant to the analysis of the federal constitutional claim. For if a State has prohibited through its criminal laws certain kinds of religiously motivated conduct without violating the First Amendment, it certainly follows that it may impose the lesser burden of denying unemployment compensation benefits to persons who engage in that conduct. There is no absolute "constitutional right to unemployment benefits on the part of all persons whose religious convictions are the cause of their unemployment." -410. On three separate occasions, however, we have held that an employee who is required to choose between fidelity to religious belief and cessation of work may not be denied unemployment compensation because he or she is faithful to the tenets of his or her church. As we explained in Sherbert: "Governmental imposition of such a choice puts the same kind of burden upon the free exercise of religion as would a fine imposed against appellant for her Saturday worship." In Sherbert, as in Thomas and the conduct that gave rise to the termination of employment was perfectly legal;[12] indeed, the Court assumed that it was immune from state regulation.[13] *671 The results we reached in Sherbert, Thomas, and might well have been different if the employees had been discharged for engaging in criminal conduct. We have held that bigamy may be forbidden, even when the practice is dictated by sincere religious convictions. If a bigamist may be sent to jail despite the religious motivation for his misconduct, surely a State may refuse to pay unemployment compensation to a marriage counselor who was discharged because he or she entered into a bigamous relationship. The protection that the First Amendment provides to " `legitimate claims to the free exercise of religion,' " see ) (emphasis added), does not extend to conduct that a State has validly proscribed. *672 Neither the Oregon Supreme Court nor this Court has confronted the question whether the ingestion of peyote for sincerely held religious reasons is a form of conduct that is protected by the Federal Constitution from the reach of a State's criminal laws. It may ultimately be necessary to answer that federal question in this case, but it is inappropriate to do so without first receiving further guidance concerning the status of the practice as a matter of Oregon law.[14] A substantial number of jurisdictions have exempted the use of peyote in religious ceremonies from legislative prohibitions against the use and possession of controlled substances.[15] If Oregon is one of those States, respondents' conduct may well be entitled to constitutional protection. On the other hand, if Oregon |
Justice Stevens | 1,988 | 16 | majority | Employment Div., Dept. of Human Resources of Ore. v. Smith | https://www.courtlistener.com/opinion/112047/employment-div-dept-of-human-resources-of-ore-v-smith/ | entitled to constitutional protection. On the other hand, if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon. If that is the case, the State is free to withhold unemployment compensation from respondents for engaging in work-related misconduct, despite its religious motivation. Thus, paradoxical as it may first appear, a necessary predicate to a correct evaluation of respondents' federal claim is an understanding of the legality of their conduct as a matter of state law. Relying on the fact that Oregon statutes prohibit the possession of peyote, see Ore. Rev. Stat. 475.992(4) rather than its use, and the further fact that the Oregon Court of Appeals held that the ingestion of a controlled substance *673 into the bloodstream did not constitute "possession" within the meaning of the predecessor statute, respondents argue that their ceremonial use of the drug was not unlawful.[16] The Attorney General of the State advises us that this argument is without merit. But in the absence of a definitive ruling by the Oregon Supreme Court we are unwilling to disregard the possibility that the State's legislation regulating the use of controlled substances may be construed to permit peyotism or that the State's Constitution may be interpreted to protect the practice.[17] That the Oregon Supreme Court's opinions in these cases not only noted that other States "exempt the religious use of peyote through caselaw,"[18] but also quoted extensively from a California opinion that did so, lends credence to the possibility that this conduct may be lawful in Oregon. Because we are uncertain about the legality of the religious use of peyote in Oregon, it is not now appropriate for us to decide whether the practice is protected by the Federal Constitution. See The possibility that respondents' conduct would be unprotected if it violated the State's criminal code is, however, sufficient to counsel against affirming the state court's holding that the Federal Constitution requires the award of benefits to these respondents. If the Oregon Supreme Court's holding rests on the *674 unstated premise that respondents' conduct is entitled to the same measure of federal constitutional protection regardless of its criminality, that holding is erroneous. If, on the other hand, it rests on the unstated premise that the conduct is not unlawful in Oregon, the explanation of that premise would make it more difficult to distinguish our holdings in Sherbert, Thomas, and We therefore vacate the judgments of the Oregon Supreme Court and remand the cases for further proceedings |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | This case requires us to consider the bounds of a district court's discretion to choose between dismissal with and without *328 prejudice, as a remedy for a violation of the Speedy Trial Act of 1974, as amended, 18 U.S. C. 3161 et seq. (1982 ed. and Supp. IV). I On July 25, respondent Larry Lee Taylor was indicted by a federal grand jury on charges of conspiracy to distribute cocaine and possession of 400 grams of cocaine with intent to distribute. His trial was scheduled to commence in the United States District Court for the Western District of Washington in Seattle on November 19, the day prior to the expiration of the 70-day period within which the Act requires the Government to bring an indicted individual to trial. See 18 U.S. C. 3161(c)(1).[1] Respondent failed to appear for trial, and a bench warrant was issued for his arrest. On February 5, 1985, respondent was arrested by local police officers in San Mateo County, Cal., on state charges that subsequently were dismissed. Respondent's return to Seattle for his federal trial was delayed for a number of reasons, some related to his being required to testify as a defense witness in a federal narcotics prosecution then pending in San Francisco, and others involving slow processing, the convenience of the United States Marshals Service, and what the District Court would later describe as the "lack-adaisical" attitude on the part of the Government. App. to Pet. for Cert. 30a. On April 24, 1985, while respondent was back in San Francisco to testify at a retrial of the narcotics prosecution, a federal grand jury in Seattle issued a superseding indictment against respondent, adding a failure-to-appear *329 charge based on his nonappearance at the scheduled November 19, trial. Upon his return to Seattle, respondent moved to dismiss all charges against him, alleging that the Speedy Trial Act had been violated. The District Court rejected the Government's argument that because respondent had failed to appear for trial, the 70-day speedy trial clock began anew when respondent was arrested on February 5, 1985. After considering the time between respondent's nonappearance on November 19, and the issuance of the superseding indictment on April 24, 1985,[2] the court determined that the time respondent was at large, or testifying in the San Francisco prosecution, or being held on state charges, as well as some reasonable time for transporting him to Seattle, were excludable under 18 U.S. C. 3161(h).[3] The District Court *330 concluded, however, that, despite these time exclusions, 15 nonexcludable days had passed, that the clock thus had expired 14 |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | days had passed, that the clock thus had expired 14 days before the superseding indictment, and that dismissal of the original indictment therefore was mandated. App. to Pet. for Cert. 27a-29a.[4] The District Court found that, although respondent was charged with serious offenses, there was "no excuse for the government's lackadaisical behavior in this case." at 30a. The court observed that some of the Government's explanations for the various nonexcludable delays were inconsistent; that the Marshals Service failed to produce respondent expeditiously when requested to do so by a San Mateo County judge; and that even after the state charges were dropped, respondent was not immediately brought before a federal magistrate on the fugitive warrant. The District Court also noted that after an order issued to bring respondent back to Seattle for trial, the Government responded, but without "dispatch," accommodating the Marshals Service's interest in moving several prisoners at once instead of moving respondent within the time period provided for by the Act. It said: "[T]he court concludes that the administration of the [Act] and of justice would be seriously impaired if the *331 court were not to respond sternly to the instant violation. If the government's behavior in this case were to be tacitly condoned by dismissing the indictment without prejudice, then the [Act] would become a hollow guarantee." at 30a-31a. The court dismissed the original counts with prejudice to reprosecution.[5] A divided panel of the United States Court of Appeals for the Ninth Circuit affirmed. The full panel agreed with the District Court's holding that respondent's failure to appear for trial on November 19, should not restart the speedy trial clock, and confirmed the District Court's calculation of 15 nonexcludable days between respondent's flight and the issuance of the superseding indictment. Applying an abuse-of-discretion standard, the Court of Appeals reviewed the District Court's discussion of its decision to dismiss the drug charges with prejudice. Characterizing the lower court's purpose as sending "a strong message to the government" that the Act must be "observed," even with respect to recaptured fugitives, the majority concluded: "Under the peculiar circumstances of this case, we see no need to disturb that ruling on appeal. The district court acted within the bounds of its discretion." The third judge concurred with the finding of a Speedy Trial Act violation, but concluded that the District Court abused its discretion in barring reprosecution. After reviewing the chronology and disputing whether, as a factual matter, the Government had failed to act reasonably, he felt that "none of the delay shown in this case although admittedly *332 non-excludable |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | delay shown in this case although admittedly *332 non-excludable under the statute was of such studied, deliberate, and callous nature as to justify dismissal with prejudice." On the Government's petition, which suggested that further guidance was needed with respect to the application of the Speedy Trial Act's remedy provision, 3162, we granted certiorari. II A Neither party has asked this Court to review the lower courts' decision that a violation of the Act actually occurred.[6] And the statute admits no ambiguity in its requirement that when such a violation has been demonstrated, "the information or indictment shall be dismissed on motion of the defendant." 3162(a)(2). The only question before us, therefore, is whether the District Court abused its discretion under the Act in dismissing the indictment with prejudice rather than permitting reprosecution. In relevant part, the Act's remedy provision, 3162(a)(2), instructs: "If a defendant is not brought to trial within the time limit required by section 3161(c) as extended by 3161(h), *333 the information or indictment shall be dismissed on motion of the defendant. In determining whether to dismiss the case with or without prejudice, the court shall consider, among others, each of the following factors: the seriousness of the offense; the facts and circumstances of the case which led to the dismissal; and the impact of a reprosecution on the administration of this chapter and on the administration of justice." As is plain from this language, courts are not free simply to exercise their equitable powers in fashioning an appropriate remedy, but, in order to proceed under the Act, must consider at least the three specified factors. Because Congress employed somewhat broad and open-ended language, we turn briefly to the legislative history of the Act for some additional indication of how the contemplated choice of remedy should be made. There apparently were those in Congress who thought courts should consider prejudice to the defendant before barring reprosecution. See 120 Cong. Rec. 41778 (1974) (remarks of Rep. Dennis); After suggesting that he might offer an amendment to add that factor to the statute's list of considerations for the court, Representative Dennis agreed to establish through "legislative history" the relevance of prejudice to the defendant. Representative Cohen, the author of the compromise amendment, agreed that prejudice to the defendant was relevant, but opposed adding that factor to 3162(a)(2) for fear that district courts would treat a lack of prejudice to a defendant as dispositive: "[W]e [should] not consider it as a separate independent ground for the prosecution and open up to the Justice Department and the prosecutor to say |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | up to the Justice Department and the prosecutor to say we have not met the time limit and we did not take advantage of all the other time exemptions, but there is no prejudice to the defendant. I do not think that would be a sufficient basis in the consideration of the other factors to determine *334 if justice would be done." 120 Cong. Rec., Representative Cohen's amendment was thereafter adopted without further modification. Although the discussion in the House is inconclusive as to the weight to be given to the presence or absence of prejudice to the defendant, there is little doubt that Congress intended this factor to be relevant for a district court's consideration. See, e. g., United ; United ; United[7] The legislative history also confirms that, consistent with the language of the statute, Congress did not intend any particular type of dismissal to serve as the presumptive remedy for a Speedy Trial Act violation. Prior to the passage of the Act, the dismissal sanction generated substantial controversy in Congress, with proponents of uniformly barring reprosecution arguing that without such a remedy the Act would lack any real force, and opponents expressing fear that criminals would unjustly escape prosecution. See generally A. Partridge, Legislative History of Title I of the Speedy Trial Act of 1974, pp. 31-33 (Federal Judicial Center 1); United 716 F. 2d, at 978-979 (reviewing legislative history). Eventually, in order to obtain passage of the Act, a compromise was reached that incorporated, through amendments on the floor of the House of Representatives, the language that eventually became 3162(a)(2). *3 See 120 Cong. Rec. 41774-41775, 41778, 41793-41794 (1974). The thrust of the compromise was that the decision to dismiss with or without prejudice was left to the guided discretion of the district court, and that neither remedy was given priority.[8] See, e. g., United 827 F. 2d, at 1176; United (CA5), cert. denied, ; United 1266- ; United 716 F. 2d, at B Consistent with the prevailing view, the Court of Appeals stated that it would review the dismissal with prejudice under an abuse-of-discretion See, e. g., United 827 F. 2d, at 1179 (reversing dismissal with prejudice as abuse of discretion); United 741 F. 2d, at -1268 (reversing dismissal without prejudice as abuse of discretion); United 716 F. 2d, at -981 (same); United 790 F. 2d, at (upholding dismissal without prejudice as within District Court's discretion). The court did not, however, articulate what that standard required. *336 This Court previously has recognized even with respect to another statute the legislative history of which indicated |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | respect to another statute the legislative history of which indicated that courts were to have "wide discretion exercising their equitable powers," 118 Cong. Rec. 7168 quoted in Albemarle Paper that "discretionary choices are not left to a court's `inclination, but to its judgment; and its judgment is to be guided by sound legal principles.'" quoting United (No. 14,692d) (CC Va. 1807) (Marshall, C. J.). Thus, a decision calling for the exercise of judicial discretion "hardly means that it is unfettered by meaningful standards or shielded from thorough appellate review." Albemarle Paper 422 U. S., Whether discretion has been abused depends, of course, on the bounds of that discretion and the principles that guide its exercise. Had Congress merely committed the choice of remedy to the discretion of district courts, without specifying factors to be considered, a district court would be expected to consider "all relevant public and private interest factors," and to balance those factors reasonably. Piper Aircraft v. Reyno, 454 U.S. 2, Appellate review of that determination necessarily would be limited, with the absence of legislatively identified standards or priorities. In the Speedy Trial Act, however, Congress specifically and clearly instructed that courts "shall consider, among others, each of the following factors," 3162(a)(2) (emphasis added), and thereby put in place meaningful standards to guide appellate review. Although the role of an appellate court is not to substitute its judgment for that of the trial court, review must serve to ensure that the purposes of the Act and the legislative compromise it reflects are given effect. Where, as here, Congress has declared that a decision will be governed by consideration of particular factors, a district court must carefully consider those factors as applied to the particular case and, whatever its decision, clearly articulate their effect in order to permit meaningful appellate review. *337 Only then can an appellate court ascertain whether a district court has ignored or slighted a factor that Congress has deemed pertinent to the choice of remedy, thereby failing to act within the limits prescribed by Congress. Factual findings of a district court are, of course, entitled to substantial deference and will be reversed only for clear error. A judgment that must be arrived at by considering and applying statutory criteria, however, constitutes the application of law to fact and requires the reviewing court to undertake more substantive scrutiny to ensure that the judgment is supported in terms of the factors identified in the statute. Nevertheless, when the statutory factors are properly considered, and supporting factual findings are not clearly in error, the district court's judgment |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | findings are not clearly in error, the district court's judgment of how opposing considerations balance should not lightly be disturbed. III Because the District Court did not fully explicate its reasons for dismissing with prejudice the substantive drug charges against respondent, we are left to speculate in response to some of the parties' arguments pro and con. Respondent, for example, argues that the District Court may have taken into account the fact that respondent's codefendant had been sentenced on the same charges to three years' imprisonment, and that by dismissing the drug charges but sentencing respondent to five years' imprisonment on the failure-to-appear charge, it would be possible to effect substantial justice while sending at the same time "a strong message" to the Marshals Service and the local United States Attorney. See Tr. of Oral Arg. 29, 32. There are several problems with that line of reasoning, not the least of which is that the District Court did not articulate it. To the extent that respondent is suggesting that his codefendant's 3-year sentence implies that the offenses with which both were charged were not "serious," his argument is directly at odds *338 with the District Court's statement expressly to the contrary: "there is no question that the drug violations with which [respondent] is charged are serious," App. to Pet. for Cert. 30a. We have no reason to doubt the court's conclusion in that regard. Moreover, at the time the District Court decided to dismiss the drug charges against respondent, he had not yet entered a plea to the failure-to-appear charge, so that the court could not be certain that any opportunity would arise to take the drug violations into account in sentencing.[9] With regard to the second factor that the statute requires a court to consider, that is, the circumstances of the case leading to dismissal, we find it difficult to know what to make of the District Court's characterization of the Government's conduct as "lackadaisical." We do not dispute that a truly neglectful attitude on the part of the Government reasonably could be factored against it in a court's consideration of this issue, but the District Court gave no indication of the foundation for its conclusion. The court's discussion following that *339 statement merely recounted the Speedy Trial Act violations, and chastised the Government for failing to make "any particular show of concern," or to "respon[d] with dispatch." The District Court did not find that the Government acted in bad faith with respect to respondent; neither did the court discover any pattern of neglect by the local United States |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | discover any pattern of neglect by the local United States Attorney, or evidence of what the Court of Appeals' majority later termed "the government's apparent antipathy toward a recaptured fugitive." 821 F.2d, ; see also Tr. of Oral Arg. 34-.[10] Any such finding, suggesting something more than an isolated unwitting violation, would clearly have altered the balance. Instead, the extent of the District Court's explanation for its determination that "the second factor, tends strongly to support the conclusion that the dismissal must be with prejudice," was that there was "no excuse" for the Government's conduct. App. to Pet. for Cert. 30a. Then there is the fact of respondent's failure to appear. The Government was prepared to go to trial on the 69th day of the indictment-to-trial period, and it was respondent, not the prosecution, who prevented the trial from going forward in a timely fashion. Respondent argues that he has been charged separately and punished for his failure to appear for trial, that all the time he was at large has been excluded from the speedy trial calculation, and that the District Court therefore was correct in not considering his flight as a factor in deciding whether to bar reprosecution. Respondent also observes that the Court of Appeals held, and the Government does not dispute here, that his failure to appear for a trial scheduled with only one day remaining in the indictment-to-trial period does not restart the full 70-day *340 speedy trial clock. See -1383.[11] That respondent's flight does not restart the clock, however, goes only to whether there has been a violation of the Act, and not to what the appropriate remedy should be. Respondent's culpable conduct and, in particular, his responsibility for the failure to meet the timely trial schedule in the first instance are certainly relevant as "circumstances of the case which led to the dismissal," 3162(a)(2), and weigh heavily in favor of permitting reprosecution. These factors, however, were considered by neither the District Court nor the Court of Appeals' majority. The Government argues that the District Court failed to consider that the delay caused by the Government's unexcused conduct was brief, and that there was no consequential prejudice to respondent. The length of delay, a measure of the seriousness of the speedy trial violation, in some ways is closely related to the issue of the prejudice to the defendant. The longer the delay, the greater the presumptive or actual prejudice to the defendant, in terms of his ability to prepare for trial or the restrictions on his liberty: "[I]nordinate delay between public charge and trial, |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | on his liberty: "[I]nordinate delay between public charge and trial, wholly aside from possible prejudice to a defense on the merits, may `seriously interfere with the defendant's liberty, whether he is free on bail or not, and may disrupt his employment, drain his financial resources, curtail his associations, subject him to public obloquy, and create anxiety in him, his family and his friends.'" quoting United[12] The District Court found the Act's 70-day indictment-to-trial period here was exceeded by 14 nonexcludable days, but made no finding of prejudice. Indeed, the Court of Appeals concluded that the delay, "although not wholly insubstantial, was not so great as to mandate dismissal with prejudice." That court also found that there was no prejudice to respondent's trial preparation. And, as respondent was being held to answer not only for the drug charges but also on a valid bench warrant issued after he did not appear, neither does there seem to have been any additional restrictions or burdens on his liberty as a result of the speedy trial violation.[13] Thus, although the absence of prejudice is not dispositive, in this case it is another consideration in favor of permitting reprosecution. *342 The District Court's decision to dismiss with prejudice rested largely on its conclusion that the alternative would tacitly condone the Government's behavior, and that a stern response was appropriate in order to vindicate the guarantees of the Speedy Trial Act. We certainly encourage district courts to take seriously their responsibility to consider the "impact of a reprosecution on the administration" of justice and of the Act, 3162(a)(2). It is self-evident that dismissal with prejudice always sends a stronger message than dismissal without prejudice, and is more likely to induce salutary changes in procedures, reducing pretrial delays. See Brief for United States 31. Nonetheless, the Act does not require dismissal with prejudice for every violation. Dismissal without prejudice is not a toothless sanction: it forces the Government to obtain a new indictment if it decides to reprosecute, and it exposes the prosecution to dismissal on statute of limitations grounds. Given the burdens borne by the prosecution and the effect of delay on the Government's ability to meet those burdens, substantial delay well may make reprosecution, even if permitted, unlikely. If the greater deterrent effect of barring reprosecution could alone support a decision to dismiss with prejudice, the consideration of the other factors identified in 3162(a)(2) would be superfluous, and all violations would warrant barring reprosecution.[14] Perhaps there was more to the District Court's decision than meets the eye. It is always difficult to review a cold |
Justice Blackmun | 1,988 | 11 | majority | United States v. Taylor | https://www.courtlistener.com/opinion/112129/united-states-v-taylor/ | the eye. It is always difficult to review a cold appellate record and acquire a full understanding of all the *343 facts, nuances, and attitudes that influence a trial judge's decisionmaking, and we undertake such close review with reluctance. That is why the administration of the Speedy Trial Act and the necessity for thorough appellate review require that a district court carefully express its decision whether or not to bar reprosecution in terms of the guidelines specified by Congress. When the decision whether to bar reprosecution is analyzed in the framework established by the Act, it is evident from the record before us that the District Court abused its discretion in this case. The court did not explain how it factored in the seriousness of the offenses with which respondent stood charged. The District Court relied heavily on its unexplained characterization of the Government conduct as "lackadaisical," while failing to consider other relevant facts and circumstances leading to dismissal. Seemingly ignored were the brevity of the delay and the consequential lack of prejudice to respondent, as well as respondent's own illicit contribution to the delay. At bottom, the District Court appears to have decided to dismiss with prejudice in this case in order to send a strong message to the Government that unexcused delays will not be tolerated. That factor alone, by definition implicated in almost every Speedy Trial Act case, does not suffice to justify barring reprosecution in light of all the other circumstances present.[15] IV Ordinarily, a trial court is endowed with great discretion to make decisions concerning trial schedules and to respond to abuse and delay where appropriate. The Speedy Trial Act, however, confines the exercise of that discretion more narrowly, *344 mandating dismissal of the indictment upon violation of precise time limits, and specifying criteria to consider in deciding whether to bar reprosecution. The District Court failed to consider all the factors relevant to the choice of a remedy under the Act. What factors it did rely on were unsupported by factual findings or evidence in the record. We conclude that the District Court abused its discretion under the Act, and that the Court of Appeals erred in holding otherwise. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | Under what is recognized for present purposes as an incorrect interpretation of rather complex federal regulations, during 1975, 1976, and 1977 respondent received and expended $71,480 in federal funds to provide health care services to Medicare beneficiaries to which it was not entitled. The question presented is whether the Government is estopped from recovering those funds because respondent relied on the express authorization of a responsible Government agent in making the expenditures. I Under the Medicare program, Title XVIII of the Social Security Act, as amended, 42 U.S. C. 1395-1395vv, providers of health care services are reimbursed for the reasonable cost of services rendered to Medicare beneficiaries as determined by the Secretary of Health and Human Services (Secretary). 1395x(v)(1)(A). Providers receive interim payments at least monthly covering the cost of services *54 they have rendered. 1395g(a). Congress recognized, however, that these interim payments would not always correctly reflect the amount of reimbursable costs, and accordingly instructed the Secretary to develop mechanisms for making appropriate retroactive adjustments when reimbursement is found to be inadequate or excessive. 1395x(v)(1)(A)(ii).[1] Pursuant to this statutory mandate, the Secretary requires providers to submit annual cost reports which are then audited to determine actual costs. 42 CFR 405.454, 405.1803 (1982). The Secretary may reopen any reimbursement determination within a 3-year period and make appropriate adjustments. 405.1885. The Act also permits a provider to elect to receive reimbursement through a "fiscal intermediary." 42 U.S. C. 1395h; 42 CFR 421.103 (1982). If the intermediary the provider has nominated meets the Secretary's requirements, the Secretary then enters into an agreement with the intermediary to have it perform those administrative responsibilities she assigns it. 421.5, 421.110. These duties include receipt, disbursement, and accounting for funds used in making Medicare payments, auditing the records of providers in order to ensure payments have been proper, resolving disputes over cost reimbursement, reviewing and reconsidering payments to providers, and recovering overpayments to providers. 421.100(b), (c), (e), (f), 421.120(e). The fiscal intermediary must also "serve as a center for, and communicate to providers, any information or instructions furnished to it by the Secretary, and serve as a channel of communication from providers to the Secretary." 42 U.S. C. 1395h(a)(2)(A). Respondent Community Health Services of Crawford County, Inc. (hereafter respondent), is a nonprofit corporation. In 1966 it entered into a contract with petitioner's predecessor, the Secretary of Health, Education, and Welfare, to provide home health care services to individuals eligible *55 for benefits under Part A of the Medicare program, 42 U.S. C. 1395c to 1395i-2. Under the contract, respondent received reimbursement through a fiscal intermediary, the |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | the contract, respondent received reimbursement through a fiscal intermediary, the Travelers Insurance Cos. (Travelers). In 1973 Congress enacted the Comprehensive Employment and Training Act (CETA), codified, as amended, at 29 U.S. C. 801 et seq. (1976 ed. and Supp. V), and repealed, Stat. 1357, authorizing the use of federal funds to provide training and job opportunities for economically disadvantaged persons. In 1975 respondent began participating in the program, which reimbursed it for the salaries and fringe benefits paid to certain of its employees. CETA funds made it possible for respondent to take on additional personnel and to provide additional home health care services. To prevent what would be in effect double reimbursement of providers' costs, one of the regulations concerning reasonable costs reimbursable under the Medicare program indicates that grants received by a provider in order to pay specific operating costs must be subtracted from the reasonable costs for which the provider may receive reimbursement.[2]*56 After obtaining a CETA grant, respondent's administrator contacted Travelers to ask whether the salaries of its CETA-funded employees who provided services to patients eligible for Medicare benefits were reimbursable as reasonable costs under Medicare. Travelers' Medicare manager orally advised respondent that the CETA funds were "seed money" within the meaning of 612.2 of the Provider Reimbursement Manual, which is defined as "[g]rants designated for the development of new health care agencies or for expansion of services of established agencies,"[3] and therefore, even though the CETA employees' salaries constituted specific operating costs paid by a federal grant, they were reimbursable under the Medicare program. Relying on Travelers' advice, respondent included costs for which it was receiving CETA reimbursement in its cost reports, and received reimbursement for those sums amounting *57 to $7,694, $32,460, and $31,326 in fiscal 1975, 1976, and 1977, respectively.[4] On several occasions during this period, respondent requested and received from Travelers oral verification of the propriety of this treatment.[5] With these additional funds, respondent expanded its annual number of home health care visits from approximately 4,000 in 1974 to over 81,000 in the next three years. Its annual budget increased during that period from about $200,000 to about $900,000. It is undisputed that correct administrative practice required Travelers to refer respondent's inquiry to the Department of Health and Human Services for a definitive answer. However, Travelers did not do this until August 7, 1977, when a written request for instructions was finally submitted to the Philadelphia office of the Department's Bureau of Health Insurance. Travelers was then formally advised that the CETA funds were not "seed money" and therefore had to be subtracted |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | were not "seed money" and therefore had to be subtracted from respondent's Medicare reimbursement. On October 7, 1977, Travelers formally notified respondent of this determination. Travelers then reopened respondent's cost reports for the preceding three years and recomputed respondent's reimbursable costs, determining that respondent had been overpaid a total of $71,480. In May 1978 Travelers made a formal demand for repayment of the disputed amount. Respondent filed suit and obtained temporary injunctive relief against the Secretary and Travelers; in November 1979, the parties entered into a *58 stipulation providing that the Secretary would postpone any attempts at recoupment and that the civil action would be stayed pending the outcome of administrative review. Thereafter, the Secretary's Provider Reimbursement Review Board (PRRB) conducted a hearing and issued a written opinion rejecting the position that CETA funds were "seed money." The PRRB found, however, that the Secretary's right to recoup the 1975 overpayment was barred because Travelers had not given respondent a written notice of reopening within the 3-year limitations period;[6] thus, the amount in dispute was reduced to approximately $63,800. On April 10, 1980, respondent filed a complaint in the District Court seeking review of the administrative determination. The District Court consolidated that case with the equitable action that had been filed about two years earlier. On cross-motions for summary judgment, the District Court ruled in favor of the Secretary, accepting the PRRB's view of the Secretary's regulations and rejecting respondent's claim that the Secretary ought to be estopped to deny that the CETA grants were "seed money" because of the representations of her agent, Travelers. The District Court held that it was unreasonable for respondent to believe it could be in effect twice reimbursed for a given expense.[7] The Court of Appeals reversed, reaching only the estoppel question. Community Health Services of Crawford County, It held that the Government may be estopped by the "affirmative misconduct" of its agents and that Travelers' erroneous advice coupled with its failure to refer the question to the Secretary constituted such misconduct. It rejected as "clearly erroneous" *59 the District Court's finding that it was unreasonable for respondent to rely on Travelers' advice, concluding instead that respondent acted reasonably because the relevant regulation had no clear meaning and respondent had no source other than Travelers to which it could turn for advice. II Estoppel is an equitable doctrine invoked to avoid injustice in particular cases. While a hallmark of the doctrine is its flexible application, certain principles are tolerably clear: "If one person makes a definite misrepresentation of fact to another person having reason to |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | definite misrepresentation of fact to another person having reason to believe that the other will rely upon it and the other in reasonable reliance upon it does an act the first person is not entitled "(b) to regain property or its value that the other acquired by the act, if the other in reliance upon the misrepresentation and before discovery of the truth has so changed his position that it would be unjust to deprive him of that which he thus acquired." Restatement (Second) of Torts 894(1) (1979).[8] Thus, the party claiming the estoppel must have relied on its adversary's conduct "in such a manner as to change his position for the worse,"[9] and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should it have known that its adversary's conduct was misleading.[10] See Wilber National *60 When the Government is unable to enforce the law because the conduct of its agents has given rise to an estoppel, the interest of the citizenry as a whole in obedience to the rule of law is undermined. It is for this reason that it is well settled that the Government may not be estopped on the same terms as any other litigant.[11] Petitioner urges us to expand this principle into a flat rule that estoppel may not in any circumstances run against the Government. We have left the issue open in the past,[12] and do so again today. Though the arguments the Government advances for the rule are substantial, we are hesitant, when it is unnecessary to decide this case, to say that there are no cases in which the public interest in ensuring that the Government can enforce the law free from *61 estoppel might be outweighed by the countervailing interest of citizens in some minimum standard of decency, honor, and reliability in their dealings with their Government.[13] But however heavy the burden might be when an estoppel is asserted against the Government, the private party surely cannot prevail without at least demonstrating that the traditional elements of an estoppel are present. We are unpersuaded that that has been done in this case with respect to either respondent's change in position or its reliance on Travelers' advice. III To analyze the nature of a private party's detrimental change in position, we must identify the manner in which reliance on the Government's misconduct has caused the private citizen to change his position for the worse. In this case the consequences of the Government's misconduct were not entirely adverse. Respondent did receive an immediate benefit |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | were not entirely adverse. Respondent did receive an immediate benefit as a result of the double reimbursement. Its detriment is the inability to retain money that it should never have received in the first place. Thus, this is not a case in which the respondent has lost any legal right, either vested or contingent, *62 or suffered any adverse change in its status.[14] When a private party is deprived of something to which it was entitled of right, it has surely suffered a detrimental change in its position. Here respondent lost no rights but merely was induced to do something which could be corrected at a later time.[15] There is no doubt that respondent will be adversely affected by the Government's recoupment of the funds that it has already spent. It will surely have to curtail its operations and may even be forced to seek relief from its debts through bankruptcy. However, there is no finding as to the extent of the likely curtailment in the volume of services provided by respondent, much less that respondent will reduce its activities below the level that obtained when it was first advised that the double reimbursement was proper. Respondent may need an extended period of repayment or other modifications in the recoupment process if it is to continue to operate, but questions concerning the Government's method of enforcing collection are not before us. The question is whether the Government has entirely forfeited its right to the money. A for-profit corporation could hardly base an estoppel on the fact that the Government wrongfully allowed it the interest-free use of taxpayers' money for a period of two or three years, enabling it to expand its operation.[16] No more can respondent claim any right to expand its services to levels greater than those it would have provided had the error never occurred. Curtailment of operation does not justify an estoppel when by respondent's own account the expansion *63 of its operation was achieved through unlawful access to governmental funds. And even if there will be a reduction below the service provided by respondent prior to its receipt of CETA funds, the record does not foreclose the possibility that the aggregate advantages to the community stemming from respondent's use of the money have more than offset the actual hardship associated with now being required to restore these funds. Respondent cannot raise an estoppel without proving that it will be significantly worse off than if it had never obtained the CETA funds in question. IV Justice Holmes wrote: "Men must turn square corners when they |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | Justice Holmes wrote: "Men must turn square corners when they deal with the Government." Rock Island, A. & L. R. This observation has its greatest force when a private party seeks to spend the Government's money. Protection of the public fisc requires that those who seek public funds act with scrupulous regard for the requirements of law; respondent could expect no less than to be held to the most demanding standards in its quest for public funds. This is consistent with the general rule that those who deal with the Government are expected to know the law and may not rely on the conduct of Government agents contrary to law.[17] *64 As a participant in the Medicare program, respondent had a duty to familiarize itself with the legal requirements for cost reimbursement. Since it also had elected to receive reimbursement through Travelers, it also was acquainted with the nature of and limitations on the role of a fiscal intermediary. When the question arose concerning respondent's CETA funds, respondent's own action in consulting Travelers demonstrates the necessity for it to have obtained an interpretation of the applicable regulations; respondent indisputably knew that this was a doubtful question not clearly covered by existing policy statements. The fact that Travelers' advice was erroneous is, in itself, insufficient to raise an estoppel,[18] as is the fact that the Secretary had not anticipated this problem and made a clear resolution available to respondent.[19] There is simply no requirement that the Government anticipate every problem that may arise in the administration of a complex program such as Medicare; neither can it be expected to ensure that every bit of informal advice given by its agents in the course of such a program will be sufficiently reliable to justify expenditure of sums of money as substantial as those spent by respondent.[20] Nor was the advice given under circumstances that should have induced respondent's reliance. As a recipient of public funds well acquainted with the role of a fiscal intermediary, respondent knew Travelers only acted as a conduit; it could not resolve policy questions. The relevant statute, regulations, and Reimbursement Manual, with which respondent should have *65 been and was acquainted, made that perfectly clear.[21] Yet respondent made no attempt to have the question resolved by the Secretary; it was satisfied with the policy judgment of a mere conduit.[22] The appropriateness of respondent's reliance is further undermined because the advice it received from Travelers was oral. It is not merely the possibility of fraud that undermines our confidence in the reliability of official action that is not confirmed |
Justice Stevens | 1,984 | 16 | majority | Heckler v. Community Health Services of Crawford Cty., Inc. | https://www.courtlistener.com/opinion/111187/heckler-v-community-health-services-of-crawford-cty-inc/ | in the reliability of official action that is not confirmed or evidenced by a written instrument. Written advice, like a written judicial opinion, requires its author to reflect about the nature of the advice that is given to the citizen, and subjects that advice to the possibility of review, criticism, and reexamination. The necessity for ensuring that governmental agents stay within the lawful scope of their authority, and that those who seek public funds act with scrupulous exactitude, argues strongly for the conclusion that an estoppel cannot be erected on the basis of the oral advice that underlay respondent's cost reports. That is especially true when a complex program such as Medicare is involved, in which the need for written records is manifest. In sum, the regulations governing the cost reimbursement provisions of Medicare should and did put respondent on *66 ample notice of the care with which its cost reports must be prepared, and the care which would be taken to review them within the relevant 3-year period. Yet respondent prepared those reports on the basis of an oral policy judgment by an official who, it should have known, was not in the business of making policy. That is not the kind of reasonable reliance that would even give rise to an estoppel against a private party. It therefore cannot estop the Government. Thus, assuming estoppel can ever be appropriately applied against the Government, it cannot be said that the detriment respondent faces is so severe or has been imposed in such an unfair way that petitioner ought to be estopped from enforcing the law in this case. Accordingly, the judgment of the Court of Appeals is reversed, and the case is remanded to that court for further proceedings consistent with this opinion. It is so ordered. JUSTICE REHNQUIST, with whom THE CHIEF JUSTICE joins, concurring in the judgment. |
Justice Marshall | 1,976 | 15 | majority | Tennesse v. Dunlap | https://www.courtlistener.com/opinion/109474/tennesse-v-dunlap/ | Respondent brought this action in the United States District Court for the Eastern District of Tennessee, challenging the termination of his employment as a technician *313 with the Tennessee Air National Guard as violative of the Due Process Clause of the Fourteenth Amendment. Petitioners are the defendants belowthe State of Tennessee and its Governor, the Tennessee Air National Guard, and various officials of the Tennessee Air National Guard. The National Guard Technicians Act of 1968 provides generally that a National Guard technician, who is a fulltime civilian employee of the National Guard, must be a member of the National Guard,[1] and that a technician who is separated from the Guard "shall be promptly separated from his technician employment." 32 U.S. C. 709 (b), (e) (1). The same section of the Act provides that "a technician may, at any time, be separated from his technician employment for cause." 709 (e) (3). On December 8, 1972, respondent was discharged from the Tennessee Air National Guard for the stated reason that his term of enlistment had expired. Five days later respondent was notified by his commander that his employment as a technician would be terminated in 30 days because he was no longer a member of the Guard. Respondent concedes the validity of the statutory requirement that a technician maintain his status as a member of the National Guard. Accordingly, the focus of his claims is petitioners' refusal to permit his re-enlistment. In his complaint respondent alleged that prior to December *314 8 he had attempted, without success, to re-enlist in the Guard. He further alleged that his request for a hearing before the board charged with making a recommendation on his re-enlistment was denied, that he was never supplied a copy of any charges against him, and that the only reason he ever received for the refusal of his requested re-enlistment was a general one that it was not in the best interest of the Guard to allow him to re-enlist. In fact, respondent alleged, the reason he was denied re-enlistment was to effect his discharge as a technician without the necessity of affording him the administrative recourse he would have had if he had been terminated as a technician directly and "for cause" under 709 (e) (3). Liberally construed, the complaint then asserted three constitutional claims: (1) that the mechanism by which respondent was refused re-enlistment denied him procedural due process; (2) that the "alleged discretion" vested in his commander to decide whether his re-enlistment was in the best interest of the Guard does not comport with due process because of |
Justice Marshall | 1,976 | 15 | majority | Tennesse v. Dunlap | https://www.courtlistener.com/opinion/109474/tennesse-v-dunlap/ | the Guard does not comport with due process because of the lack of "any objective or ascertainable standards or criteria" to guide the exercise of that discretion; and (3) that the denial of re-enlistment was arbitrary and capricious, and therefore violative of due process.[2] The District Court dismissed the complaint on the ground that the denial of re-enlistment was a military action not subject to review by a civilian court. The Court of Appeals for the Sixth Circuit reversed. It apparently agreed with the District Court that a decision to refuse re-enlistment in the Guard would ordinarily be nonreviewable in a civil court. But the Court of Appeals held that respondent should be given the opportunity *315 to prove that his denial of re-enlistment was based not on any military considerations, but on a desire to terminate his technician employment in such a way as to circumvent 709 (e) (3)'s requirement of "cause," which would have been applicable if his technician employment had been terminated directly. "In order for [ 709 (e) (3)] to have meaning," the court concluded, "the unreviewable discretion of Guard officials to permit or refuse re-enlistments must not extend to decisions which are made for the purpose of affecting a guardsman's technician employment." In other words, the court held that if a denial of re-enlistment reflects no more than a desire to terminate employment as a technician, cause must be shown under 709 (e) (3). And from this the court concluded that there was a genuine issue as to whether respondent had a property interest in continued employment sufficient to support his due process contentions. We granted certiorari. We do not agree with the Court of Appeals that 709 (e) (3) has any application to this case. Subsection (3) of 709 (e) provides only one of several bases for the termination of a technician's employment. As already indicated, subsection (1) requires that a technician "who is separated from the National Guard or ceases to hold the military grade specified for his position shall be promptly separated from his technician employment." Subsection (2) provides that a technician "who fails to meet military security standards may be separated from his employment as a technician and concurrently discharged from the National Guard." And subsection (3), to repeat, provides additionally that "a technician may, at any time, be separated from his technician employment for cause." There is nothing in the language or structure of 709 (e), or in its legislative history, to suggest that subsection (3)'s requirement of *316 cause was intended to qualify subsection (1)'s mandate that termination of |
Justice Marshall | 1,976 | 15 | majority | Tennesse v. Dunlap | https://www.courtlistener.com/opinion/109474/tennesse-v-dunlap/ | was intended to qualify subsection (1)'s mandate that termination of employment accompany separation from the Guard. Nor is there anything to suggest that subsection (3) was intended to have any bearing on whether one is separated from the Guard. Indeed, the relevant House and Senate committee reports summarize the three subsections as providing "for termination of civilian employment upon loss of Guard membership, failure to meet military security standards, or separation for cause." H. R. Rep. No. 1823, 90th Cong., 2d Sess., 3 (1968); S. Rep. No. 1446, 90th Cong., 2d Sess., 3 (1968) (emphasis added). See also H. R. Rep. No. 1823, p. 8; S. Rep. No. 1446, p. 7. The clear and sole import of subsection (3), then, is that if a technician remains a member of the National Guard and is otherwise eligible for continued employment under subsections (1) and (2), he may nevertheless be discharged for cause. There can be no significance, therefore, to the claim that the denial of re-enlistment to respondent was designed to circumvent the requirements of 709 (e) (3). Nor can 709 (e) (3) provide the foundation for any due process claim in this case, since the property interest it creates in continued employment is confined, in all events, to the guardsman's term of enlistment.[3] The judgment of the Court of Appeals is Reversed. |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | We consider in this case the scope and continued viabil ity of the rule announced by this Court in Michigan v. forbidding police to initiate interrogation of a criminal defendant once he has re quested counsel at an arraignment or similar proceeding. I Petitioner Jesse Montejo was arrested on September 6, 2002, in connection with the robbery and murder of Lewis Ferrari, who had been found dead in his own home one day earlier. Suspicion quickly focused on Jerry Moore, a disgruntled former employee of Ferrari’s dry cleaning business. Police sought to question Montejo, who was a known associate of Moore. Montejo waived his rights under and was interrogated at the sheriff’s office by police detectives through the late afternoon and evening of September 6 and the early morning of Septem ber 7. During the interrogation, Montejo repeatedly changed his account of the crime, at first claiming that he 2 MONTEJO v. LOUISIANA Opinion of the Court had only driven Moore to the victim’s home, and ulti mately admitting that he had shot and killed Ferrari in the course of a botched burglary. These police interroga tions were videotaped. On September 10, Montejo was brought before a judge for what is known in Louisiana as a “72-hour hearing”—a preliminary hearing required under state law.1 Although the proceedings were not transcribed, the minute record indicates what transpired: “The defendant being charged with First Degree Murder, Court ordered N[o] Bond set in this matter. Further, Court ordered the Office of Indigent Defender be appointed to represent the defendant.” App. to Pet. for Cert. 63a. Later that same day, two police detectives visited Mon tejo back at the pri and requested that he accompany them on an excursion to locate the murder weapon (which Montejo had earlier indicated he had thrown into a lake). After some back-and-forth, the substance of which re mains in dispute, Montejo was again read his rights and agreed to go along; during the excursion, he wrote an inculpatory letter of apology to the victim’s widow. Only upon their return did Montejo finally meet his court-appointed attorney, who was quite upset that the detectives had interrogated his client in his absence. At trial, the letter of apology was admitted over defense objection. The jury convicted Montejo of first-degree mur der, and he was sentenced to death. The Louisiana Supreme Court affirmed the conviction and sentence. 06–1807 (1/16/08), As relevant here, the court rejected Montejo’s argument that under the rule of the letter should —————— 1 “The sheriff or law enforcement officer having custody of an arrested per shall bring |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | enforcement officer having custody of an arrested per shall bring him promptly, and in any case within seventy-two hours from the time of the arrest, before a judge for the purpose of appointment of ” La. Code Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009). Cite as: 556 U. S. (2009) 3 Opinion of the Court have been held that “if police initiate interrogation after a defendant’s assertion, at an arraignment or similar proceeding, of his right to counsel, any waiver of the defendant’s right to counsel for that police-initiated interrogation is invalid.” Citing a decision of the United States Court of Appeals for the Fifth Circuit, (1992), the Louisiana Supreme Court reaed that the prophylactic protection of is not triggered unless and until the defendant has actually requested a lawyer or has otherwise asserted his Sixth Amendment right to –1261, and n. 68. Because Montejo simply stood mute at his 72-hour hearing while the judge ordered the appointment of counsel, he had made no such request or assertion. So the proper inquiry, the court ruled, was only whether he had knowingly, intelligently, and voluntarily waived his right to have counsel present during the interaction with the police. at 1261. And because Montejo had been read his rights and agreed to waive them, the Court answered that question in the and up held the conviction. We granted certiorari. 554 U. S. Montejo and his amici raise a number of pragmatic objections to the Louisiana Supreme Court’s interpreta tion of We agree that the approach taken below would lead either to an unworkable standard, or to arbi trary and anomalous distinctions between defendants in different States. Neither would be acceptable. Under the rule adopted by the Louisiana Supreme Court, a criminal defendant must request counsel, or otherwise “assert” his Sixth Amendment right at the preliminary hearing, before the protections are 4 MONTEJO v. LOUISIANA Opinion of the Court triggered. If he does so, the police may not initiate further interrogation in the absence of But if the court on its own appoints counsel, with the defendant taking no action to invoke his right to counsel, then police are free to initiate further interrogations provided that they first obtain an otherwise valid waiver by the defendant of his right to have counsel present. This rule would apply well enough in States that require the indigent defendant formally to request counsel before any appointment is made, which usually occurs after the court has informed him that he will receive counsel if he asks for it. That is how the system works in Michigan, |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | for it. That is how the system works in Michigan, for example, Mich. Ct. Rule 6.005(A) (2009), whose scheme produced the factual background for this Court’s decision in Michigan v. like all other repre sented indigent defendants in the State, had requested counsel in accordance with the applicable state law. But many States follow other practices. In some two dozen, the appointment of counsel is automatic upon a finding of indigency, e.g., –4503(c) (2007); and in a number of others, appointment can be made either upon the defendant’s request or sua sponte by the court, e.g., Del. Code Ann., Tit. 29, (2003). See App. to Brief for National Legal Aid & Defender Assn. et al. as Amici Curiae 1a–21a. Nothing in our opinion indicates whether we were then aware that not all States require that a defendant ly request counsel before one is appointed; and of course we had no occasion there to decide how the rule we announced would apply to these other States. The Louisiana Supreme Court’s answer to that unre solved question is troublesome. The central distinction it draws—between defendants who “assert” their right to counsel and those who do not—is exceedingly hazy when applied to States that appoint counsel absent request from the defendant. How to categorize a defendant who merely Cite as: 556 U. S. (2009) 5 Opinion of the Court asks, prior to appointment, whether he will be appointed counsel? Or who inquires, after the fact, whether he has been? What treatment for one who thanks the court after the appointment is made? And if the court asks a defen dant whether he would object to appointment, will a quick shake of his head count as an assertion of his right? To the extent that the Louisiana Supreme Court’s rule also permits a defendant to trigger through the “acceptance” of counsel, that notion is even more mysteri ous: How does one ly accept counsel appointed by court order? An indigent defendant has no right to choose his counsel, United States v. Gonzalez-Lopez, 548 U.S. 140, 151 (2006), so it is hard to imagine what his “acceptance” would look like, beyond the passive silence that Montejo exhibited. In practice, judicial application of the Louisiana rule in States that do not require a defendant to make a request for counsel could take either of two paths. Courts might ask on a case-by-case basis whether a defendant has somehow invoked his right to counsel, looking to his con duct at the preliminary hearing—his statements and gestures—and the totality of the cir Or, courts might simply determine as |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | totality of the cir Or, courts might simply determine as a categorical matter that defendants in these States—over half of those in the Union—simply have no opportunity to assert their right to counsel at the hearing and are therefore out of luck. Neither approach is desirable. The former would be particularly impractical in light of the fact that, as amici describe, preliminary hearings are often rushed, and are frequently not recorded or transcribed. Brief for National Legal Aid & Defender Assn. et al. 25–30. The sheer vol ume of indigent defendants, see would render the monitoring of each particular defendant’s reaction to the appointment of counsel almost impossible. And some times the defendant is not even present. E.g., La. Code Crim. Proc. Ann., Art. 230.1(A) (West Supp. 2009) (allow 6 MONTEJO v. LOUISIANA Opinion of the Court ing court to appoint counsel if defendant is “unable to appear”). Police who did not attend the hearing would have no way to know whether they could approach a par ticular defendant; and for a court to adjudicate that ques tion ex post would be a fact-intensive and burdensome task, even if monitoring were possible and transcription available. Because “clarity of command” and “cer tainty of application” are crucial in rules that govern law enforcement, 151 (1990), this would be an unfortunate way to proceed. See also The second possible course fares no better, for it would achieve clarity and certainty only at the expense of intro ducing arbitrary distinctions: Defendants in States that automatically appoint counsel would have no opportunity to invoke their rights and trigger while those in other States, effectively instructed by the court to request counsel, would be lucky winners. That sort of hollow formalism is out of place in a doctrine that purports to serve as a practical safeguard for defendants’ rights. I But if the Louisiana Supreme Court’s application of is unsound as a practical matter, then Montejo’s solution is untenable as a theoretical and doctrinal matter. Under his approach, once a defendant is represented by counsel, police may not initiate any further interrogation. Such a rule would be entirely untethered from the original rationale of A It is worth emphasizing first what is not in dispute or at stake here. Under our precedents, once the adversary judicial process has been initiated, the Sixth Amendment guarantees a defendant the right to have counsel present at all “critical” stages of the criminal proceedings. United Cite as: 556 U. S. (2009) 7 Opinion of the Court ; Powell v. Alabama, Interrogation by the State is such a stage. v. |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | Alabama, Interrogation by the State is such a stage. v. United States, 377 U.S. 201, 204–205 (1964); see also United States v. Henry, 447 U.S. 264, 274 (1980). Our precedents also place beyond doubt that the Sixth Amendment right to counsel may be waived by a defen dant, so long as relinquishment of the right is voluntary, knowing, and intelligent. v. Illinois, 487 U.S. 285, 292, n. 4 ; 404 (1977); The defendant may waive the right whether or not he is already represented by counsel; the decision to waive need not itself be counseled. 352–353 (1990). And when a defendant is read his rights (which include the right to have counsel present during interrogation) and agrees to waive those rights, that typically does the trick, even though the rights purportedly have their source in the Fifth Amendment: “As a general matter an accused who is admon ished with the warnings prescribed by this Court in has been sufficiently apprised of the na ture of his Sixth Amendment rights, and of the conse quences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelli gent one.” 6. The only question raised by this case, and the only one addressed by the rule, is whether courts must presume that such a waiver is invalid under certain cir 633. We created such a presumption in by analogy to a similar prophylac tic rule established to protect the Fifth Amendment based right to have counsel present at any custodial interrogation. 8 MONTEJO v. LOUISIANA Opinion of the Court decided that once “an accused has invoked his right to have counsel present during custodial interrogation [he] is not subject to further interrogation by the authori ties until counsel has been made available,” unless he initiates the contact. at 484–485. The Edwards rule is “designed to prevent police from badgering a defendant into waiving his previously as serted rights,” It does this by presuming his postassertion statements to be involun tary, “even where the suspect executes a waiver and his statements would be considered voluntary under tradi tional standards.” This prophylactic rule thus “protect[s] a suspect’s voluntary choice not to speak outside his lawyer’s pres ence.” (KENNEDY, J., concurring). represented a “wholesale importation of the Edwards rule into the Sixth Amendment.” at The Court decided that a request for counsel at an arraignment should be treated as an invocation of the Sixth Amendment right to counsel “at every critical stage of the prosecution,” despite doubt that defendants “actually inten[d] their request for counsel to encompass representation during |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | “actually inten[d] their request for counsel to encompass representation during any further question ing,” at 632–633, because doubts must be “resolved in favor of protecting the constitutional claim,” Citing Edwards, the Court held that any subsequent waiver would thus be “insufficient to justify police initiated interrogation.” In other words, we presume such waivers involuntary “based on the sup position that suspects who assert their right to counsel are unlikely to waive that right voluntarily” in subsequent interactions with police. The dissent presents us with a revisionist view of Jack The defendants’ request for counsel, it contends, was important only because it proved that counsel had been Cite as: 556 U. S. (2009) 9 Opinion of the Court appointed. Such a non sequitur (nowhere alluded to in the case) hardly needs rebuttal. Proceeding from this fanciful premise, the dissent claims that the decision actually established “a rule designed to safeguard a defendant’s right to rely on the assistance of counsel,” post, at 6–7 (opinion of STEVENS, J.), not one “designed to prevent police badgering,” post, To safeguard the right to assistance of counsel from what? From a knowing and voluntary waiver by the defendant himself? Unless the dissent seeks to prevent a defendant altogether from waiving his Sixth Amendment rights, i.e., to “impri a man in his privileges and call it the Constitution,” Adams v. United States ex rel. McCann, (1942)—a view with zero support in rea, history or case law—the answer must be: from police pressure, i.e., badg ering. The antibadgering rationale is the only way to make sense of ’s repeated citations of Edwards, and the only way to reconcile the opinion with our waiver jurisprudence.2 B With this understanding of what stands for and whence it came, it should be clear that Montejo’s interpre tation of that decision—that no represented defendant can ever be approached by the State and asked to consent to interrogation—is off the mark. When a court appoints counsel for an indigent defendant in the absence of any request on his part, there is no basis for a presumption —————— 2 The dissent responds that also ensures that the defendant’s counsel receives notice of any interrogation, post, at 6, n. 2. But notice to what end? Surely not in order to protect some constitu tional right to receive counsel’s advice regarding waiver of the right to have counsel present. Contrary to the dissent’s intimations, neither the advice nor the presence of counsel is needed in order to effectuate a knowing waiver of the Sixth Amendment Our cases make clear that the waivers typically suffice; indeed, |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | Our cases make clear that the waivers typically suffice; indeed, even an unrepre sented defendant can waive his right to See 10 MONTEJO v. LOUISIANA Opinion of the Court that any subsequent waiver of the right to counsel will be involuntary. There is no “initial election” to exercise the right, 487 U.S., 1, that must be preserved through a prophylactic rule against later waivers. No rea exists to assume that a defendant like Montejo, who has done nothing at all to express his intentions with respect to his Sixth Amendment rights, would not be perfectly amenable to speaking with the police without having counsel present. And no rea exists to prohibit the police from inquiring. Edwards and are meant to prevent police from badgering defendants into changing their minds about their rights, but a defendant who never asked for counsel has not yet made up his mind in the first instance. The dissent’s argument to the contrary rests on a flawed a fortiori: “If a defendant is entitled to protection from police-initiated interrogation under the Sixth Amendment when he merely requests a lawyer, he is even more obvi ously entitled to such protection when he has secured a lawyer.” Post, at 3. The question in however, was not whether respondents were entitled to counsel (they unquestionably were), but “whether respondents validly waived their right to counsel,” ; and even if it is reaable to presume from a defendant’s request for counsel that any subsequent waiver of the right was coerced, no such presumption can seriously be enter tained when a lawyer was merely “secured” on the defen dant’s behalf, by the State itself, as a matter of course. Of course, reading the dissent’s analysis, one would have no idea that Montejo executed any waiver at all. In practice, Montejo’s rule would prevent police-initiated interrogation entirely once the Sixth Amendment right attaches, at least in those States that appoint counsel promptly without request from the defendant. As the dissent in pointed out, with no expressed dis agreement from the majority, the opinion “most assuredly Cite as: 556 U. S. (2009) 11 Opinion of the Court [did] not hold that the Edwards per se rule prohibiting all police-initiated interrogations applies from the moment the defendant’s Sixth Amendment right to counsel at taches, with or without a request for counsel by the defen dant.” That would have constituted a “shockingly dramatic restructur ing of the balance this Court has traditionally struck between the rights of the defendant and those of the larger society.” Montejo’s rule appears to have its theoretical roots in codes |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | Montejo’s rule appears to have its theoretical roots in codes of legal ethics, not the Sixth Amendment. The American Bar Association’s Model Rules of Professional Conduct (which nearly all States have adopted into law in whole or in part) mandate that “a lawyer shall not com municate about the subject of [a] representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized to do so by law or a court order.” Model Rule 4.2 But the Constitution does not codify the ABA’s Model Rules, and does not make investigating police officers lawyers. Montejo’s proposed rule is both broader and narrower than the Model Rule. Broader, because Montejo would apply it to all agents of the State, including the detectives who interrogated him, while the ethical rule governs only lawyers. And nar rower, because he agrees that if a defendant initiates contact with the police, they may talk freely—whereas a lawyer could be sanctioned for interviewing a represented party even if that party “initiates” the communication and consents to the interview. Model Rule 4.2, Comment 3. Montejo contends that our decisions support his inter pretation of the rule. We think not. Many of the cases he cites concern the substantive scope of the Sixth Amendment—e.g., whether a particular interaction with the State constitutes a “critical” stage at which counsel is entitled to be present—not the validity of a Sixth Amend 12 MONTEJO v. LOUISIANA Opinion of the Court ment waiver. See ; Henry, ; ; see also Since everyone agrees that absent a valid waiver, Montejo was entitled to a lawyer during the interrogation, those cases do not advance his argument. Montejo also points to descriptions of the hold ing in two later cases. In one, we noted that “analysis of the waiver issue changes” once a defendant “obtains or even requests ” But elsewhere in the same opinion, we explained that applies “after a defendant requests assistance of counsel,” ; “when a suspect charged with a crime requests counsel outside the context of interrogation,” ; and to “suspects who assert their right to counsel,” The accuracy of the “obtains” language is thus ques tionable. Anyway, since held that evidence ob tained in violation of the rule could be admitted to impeach the defendant’s trial testimony, 494 U.S., at 346, the Court’s varying descriptions of when the rule was violated were dicta. The dictum from the other decision, 0, n. 3, is no more probative.3 The upshot is that even on ’s |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | no more probative.3 The upshot is that even on ’s own terms, it —————— 3 In the cited passage, the Court noted that “[o]nce an accused has a lawyer, a distinct set of constitutional safeguards aimed at preserving the sanctity of attorney-client relationship takes effect.” 487 U.S., 0, n. 3. To support that proposition, the Court cited Maine v. Moulton, which was not a case about waiver. The passage went on to observe that “the analysis changes markedly once an accused even requests the assistance of counsel,” 487 U.S., at 290, n. 3 (emphasis in original), this time citing Montejo infers from the “even requests” that having counsel is more conclusive of the invalidity of uncounseled waiver than the mere requesting of But the footnote did not suggest that the analysis “changes” in both these scenarios (having a lawyer, versus requesting one) with specific reference to the validity of waivers under the Sixth Amendment. The citation of Moulton (a nonwaiver case) for the first scenario suggests just the opposite. Cite as: 556 U. S. (2009) 13 Opinion of the Court would be completely unjustified to presume that a defen dant’s consent to police-initiated interrogation was invol untary or coerced simply because he had previously been appointed a lawyer. IV So on the one hand, requiring an initial “invocation” of the right to counsel in order to trigger the pre sumption is consistent with the theory of that decision, but Accordingly, we called for supplemental briefing addressed to the question whether Michigan v. should be overruled. Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well rea ed. Pear v. Callahan, 555 U. S. (2009) (slip op., at 8). The first two cut in favor of abandoning Jack : the opinion is only two decades old, and eliminating it would not upset expectations. Any criminal defendant learned enough to order his affairs based on the rule announced in would also be perfectly capable of interacting with the police on his own. Of course it is likely true that police and prosecutors have been trained to comply with see generally Supplemental Brief 14 MONTEJO v. LOUISIANA Opinion of the Court for Larry D. Thomp et al. as Amici Curiae, but that is hardly a basis for retaining it as a constitutional require ment. If a State wishes to abstain from requesting inter views with represented defendants when counsel is not present, it obviously may continue to do |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | counsel is not present, it obviously may continue to do so.4 Which brings us to the strength of ’s reaing. When this Court creates a prophylactic rule in order to protect a constitutional right, the relevant “reaing” is the weighing of the rule’s benefits against its costs. “The value of any prophylactic rule must be assessed not only on the basis of what is gained, but also on the basis of what is lost.” (SCALIA, J., dis senting). We think that the marginal benefits of (viz., the number of confessions obtained coercively that are suppressed by its bright-line rule and would otherwise have been admitted) are dwarfed by its substantial costs (viz., hindering “society’s compelling interest in finding, convicting, and punishing those who violate the law,” ). What does the rule actually achieve by way of preventing unconstitutional conduct? Recall that the purpose of the rule is to preclude the State from badgering defendants into waiving their previously asserted rights. See ; see also 501 U.S., at The effect of this badgering might be to coerce a waiver, which would render the subsequent interrogation a violation of the Sixth Amendment. See at 204. Even though involuntary waivers are invalid even —————— 4 The dissent posits a different reliance interest: “the public’s interest in knowing that counsel, once secured, may be reaably relied upon as a medium between the accused and the power of the State,” post, at 9. We suspect the public would be surprised to learn that a criminal can freely sign away his right to a lawyer, confess his crimes, and then ask the courts to assume that the confession was coerced—on the ground that he had, at some earlier point in time, made a pro forma statement requesting that counsel be appointed on his behalf. Cite as: 556 U. S. (2009) 15 Opinion of the Court apart from see 487 U.S., 2, n. 4, mistakes are of course possible when courts conduct case by-case voluntariness review. A bright-line rule like that adopted in ensures that no fruits of interrogations made possible by badgering-induced involuntary waivers are ever erroneously admitted at trial. But without how many would be? The answer is few if any. The principal rea is that the Court has already taken substantial other, overlapping measures toward the same end. Under ’s prophylactic protection of the right against compelled self incrimination, any suspect subject to custodial interroga tion has the right to have a lawyer present if he so re quests, and to be advised of that Under Edwards’ prophylactic protection of the right, once such |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | that Under Edwards’ prophylactic protection of the right, once such a defendant “has invoked his right to have counsel present,” interrogation must stop. 451 U.S., at 484. And under ’s prophylactic protection of the Edwards right, no subsequent interrogation may take place until counsel is present, “whether or not the accused has consulted with his attorney.” These three layers of prophylaxis are sufficient. Under the -Edwards- line of cases (which is not in doubt), a defendant who does not want to speak to the police without counsel present need only say as much when he is first approached and given the warn ings. At that point, not only must the immediate contact end, but “badgering” by later requests is prohibited. If that regime suffices to protect the integrity of “a suspect’s voluntary choice not to speak outside his lawyer’s pres ence” before his arraignment, 532 U.S., at it is hard to see why it would not also suffice to protect that same choice after arraign ment, when Sixth Amendment rights have attached. And if so, then is simply superfluous. It is true, as Montejo points out in his supplemental 16 MONTEJO v. LOUISIANA Opinion of the Court brief, that the doctrine established by and Ed wards is designed to protect Fifth Amendment, not Sixth Amendment, rights. But that is irrelevant. What matters is that these cases, like protect the right to have counsel during custodial interrogation—which right hap pens to be guaranteed (once the adversary judicial process has begun) by two sources of law. Since the right under both sources is waived using the same procedure, Patter 6, doctrines ensuring voluntariness of the Fifth Amendment waiver simultaneously ensure the voluntariness of the Sixth Amendment waiver. Montejo also correctly observes that the - Edwards regime is narrower than in one respect: The former applies only in the context of custodial interro gation. If the defendant is not in custody then those deci sions do not apply; nor do they govern other, noninterroga tive types of interactions between the defendant and the State (like pretrial lineups). However, those uncovered situations are the least likely to pose a risk of coerced waivers. When a defendant is not in custody, he is in control, and need only shut his door or walk away to avoid police badgering. And noninterrogative interactions with the State do not involve the “inherently compelling pres sures,” that one might reaably fear could lead to involuntary waivers. was policy driven, and if that policy is being adequately served through other means, there is no rea to retain its rule. and |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | means, there is no rea to retain its rule. and the cases that elaborate upon it already guarantee not simply noncoercion in the traditional sense, but what Justice Harlan referred to as “voluntariness with a vengeance,” (dis senting opinion). There is no need to take ’s fur ther step of requiring voluntariness on stilts. On the other side of the equation are the costs of adding the bright-line rule on top of Edwards and other extant protections. The principal cost of applying any Cite as: 556 U. S. (2009) 17 Opinion of the Court exclusionary rule “is, of course, letting guilty and possibly dangerous criminals go free” Herring v. United States, 555 U. S. (2009) (slip op., at 6). not only “operates to invalidate a confession given by the free choice of suspects who have received proper advice of their rights but waived them nonetheless,” at 174– but also deters law enforcement officers from even trying to obtain voluntary confessions. The “ready ability to obtain unco erced confessions is not an evil but an unmitigated good.” Without these confessions, crimes go unsolved and criminals unpunished. These are not negligible costs, and in our view the Court gave them too short shrift.5 Notwithstanding this calculus, Montejo and his amici urge the retention of Their principal objection to its elimination is that the Edwards regime which remains will not provide an administrable rule. But this Court has praised Edwards precisely because it provides “ ‘clear and unequivocal’ guidelines to the law enforcement profes sion,” Arizona v. Rober, Our cases make clear which sorts of statements trigger its protections, see (1994), and once triggered, the rule operates as a bright line. Montejo expresses concern that courts will have to determine whether statements made at preliminary hear ings constitute Edwards invocations—thus implicating all the practical problems of the Louisiana rule we discussed above, see Part That concern is misguided. “We —————— 5 The dissent claims that, in fact, few confessions have been sup pressed by federal courts applying Post, at 8. If so, that is because, as the dissent boasts, “generations of police officers have been trained to refrain from approaching represented defendants,” post, at 9, n. 4. Anyway, if the rule truly does not hinder law enforcement or make much practical difference, see post, –9, and nn. 3–4, then there is no rea to be particularly exercised about its demise. 18 MONTEJO v. LOUISIANA Opinion of the Court have in fact never held that a per can invoke his rights anticipatorily, in a context other than ‘custodial interrogation’.” What matters for and Edwards |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | context other than ‘custodial interrogation’.” What matters for and Edwards is what happens when the defendant is approached for interrogation, and (if he consents) what happens during the interrogation— not what happened at any preliminary hearing. In sum, when the marginal benefits of the rule are weighed against its substantial costs to the truth seeking process and the criminal justice system, we read ily conclude that the rule does not “pay its way,” United Michi gan v. should be and now is overruled. V Although our holding means that the Louisiana Su preme Court correctly rejected Montejo’s claim under we think that Montejo should be given an oppor tunity to contend that his letter of apology should still have been suppressed under the rule of Edwards. If Mon tejo made a clear assertion of the right to counsel when the officers approached him about accompanying them on the excursion for the murder weapon, then no interroga tion should have taken place unless Montejo initiated it. at Even if Montejo subsequently agreed to waive his rights, that waiver would have been invalid had it followed an “unequivocal election of the right,” Montejo understandably did not pursue an Edwards objection, because served as the Sixth Amend ment analogy to Edwards and offered broader protections. Our decision today, overruling changes the legal landscape and does so in part based on the protections already provided by Edwards. Thus we think that a re mand is appropriate so that Montejo can pursue this alternative avenue for relief. Montejo may also seek on Cite as: 556 U. S. (2009) 19 Opinion of the Court remand to press any claim he might have that his Sixth Amendment waiver was not knowing and voluntary, e.g., his argument that the waiver was invalid because it was based on misrepresentations by police as to whether he had been appointed a lawyer, cf. – 429. These matters have heightened importance in light of our opinion today. We do not venture to resolve these issues ourselves, not only because we are a court of final review, “not of first view,” Cutter v. Wilkin, but also because the relevant facts remain unclear. Mon tejo and the police gave inconsistent testimony about exactly what took place on the afternoon of September 10, 2002, and the Louisiana Supreme Court did not make an explicit credibility determination. Moreover, Montejo’s testimony came not at the suppression hearing, but rather only at trial, and we are unsure whether under state law that testimony came too late to affect the propriety of the admission of the evidence. These matters |
Justice Scalia | 2,009 | 9 | majority | Montejo v. Louisiana | https://www.courtlistener.com/opinion/145873/montejo-v-louisiana/ | the propriety of the admission of the evidence. These matters are best left for resolution on remand. We do reject, however, the dissent’s revisionist legal analysis of the “knowing and voluntary” issue. Post, at 10–14. In determining whether a Sixth Amendment waiver was knowing and voluntary, there is no rea categorically to distinguish an unrepresented defendant from a represented one. It is equally true for each that, as we held in the warnings adequately inform him “of his right to have counsel present during the questioning,” and make him “aware of the consequences of a decision by him to waive his Sixth Amendment rights,” 487 U.S., 3. Somewhat surprisingly for an opinion that extols the virtues of stare decisis, the dissent com plains that our “treatment of the waiver question rests entirely on the dubious decision in” post, at 12. The Court in did not consider the result dubious, nor does the Court today. 20 MONTEJO v. LOUISIANA Opinion of the Court * * * This case is an exemplar of Justice ’s oft quoted warning that this Court “is forever adding new stories to the temples of constitutional law, and the temples have a way of collapsing when one story too many is added.” 319 U.S. 1, (opinion concurring in result). We today remove Michigan v. ’s fourth story of prophylaxis. The judgment of the Louisiana Supreme Court is va cated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. Cite as: 556 U. S. (2009) 1 ALITO, J., concurring SUPREME COURT OF THE UNITED STATES No. 07–1529 JESSE JAY MONTEJO, PETITIONER v. |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | This case presents a challenge to 505 of the Telecommunications Act of 1996, Stat. 136, 47 U.S. C. 561 (1994 ed., Supp. III). Section 505 requires cable television operators who provide channels "primarily dedicated to sexually-oriented programming" either to "fully scramble or otherwise fully block" those channels or to limit their transmission to hours when children are unlikely to be viewing, set by administrative regulation as the time between 10 p.m. and 6 a.m. 47 U.S. C. 561(a) (1994 ed., Supp. III); 47 CFR 76.227 Even before enactment of the statute, signal scrambling was already in use. Cable operators used scrambling in the regular course of business, so that only paying customers had access to certain programs. Scrambling could be imprecise, however; and either or both audio and visual portions of the scrambled programs might be heard or seen, a phenomenon known as "signal" The purpose of 505 is to shield children from hearing or seeing images resulting from signal To comply with the statute, the majority of cable operators adopted the second, or "time channeling," approach. The effect of the widespread adoption of time channeling was to *807 eliminate altogether the transmission of the targeted programming outside the safe harbor period in affected cable service areas. In other words, for two-thirds of the day no household in those service areas could receive the programming, whether or not the household or the viewer wanted to do so. Appellee Playboy Entertainment Group, Inc., challenged the statute as unnecessarily restrictive content-based legislation violative of the First Amendment. After a trial, a three-judge District Court concluded that a regime in which viewers could order signal blocking on a household-byhousehold basis presented an effective, less restrictive alternative to Finding no error in this conclusion, we affirm. I Playboy Entertainment Group owns and prepares programs for adult television networks, including Playboy Television and Spice. Playboy transmits its programming to cable television operators, who retransmit it to their subscribers, either through monthly subscriptions to premium channels or on a so-called "pay-per-view" basis. Cable operators transmit Playboy's signal, like other premium channel signals, in scrambled form. The operators then provide paying subscribers with an "addressable converter," a box placed on the home television set. The converter permits the viewer to see and hear the descrambled signal. It is conceded that almost all of Playboy's programming consists of sexually explicit material as defined by the statute. The statute was enacted because not all scrambling technology is perfect. Analog cable television systems may use either "RF" or "baseband" scrambling systems, which may not prevent signal so discernible pictures may |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | systems, which may not prevent signal so discernible pictures may appear from time to time on the scrambled screen. Furthermore, the listener might hear the audio portion of the program. *808 These imperfections are not inevitable. The problem is that at present it appears not to be economical to convert simpler RF or baseband scrambling systems to alternative scrambling technologies on a system wide scale. Digital technology may one day provide another solution, as it presents no problem at all. Indeed, digital systems are projected to become the technology of choice, which would eliminate the signal problem. Digital technology is not yet in widespread use, however. With imperfect scrambling, viewers who have not paid to receive Playboy's channels may happen across discernible images of a sexually explicit nature. How many viewers, how discernible the scene or sound, and how often this may occur are at issue in this case. Section 505 was enacted to address the signal phenomenon. As noted, the statute and its implementing regulations require cable operators either to scramble a sexually explicit channel in full or to limit the channel's programming to the hours between 10 p.m. and 6 a.m. 47 U.S. C. 561 (1994 ed., Supp. III); 47 CFR 76.227 Section 505 was added by floor amendment, without significant debate, to the Telecommunications Act of 1996 (Act), a major legislative effort designed "to reduce regulation and encourage `the rapid deployment of new telecommunications technologies.' " "The Act includes seven Titles, six of which are the product of extensive committee hearings and the subject of discussion in Reports prepared by Committees of the Senate and the House of Representatives." Section 505 is found in Title V of the Act, which is itself known as the Decency Act of 1996 (CDA). Section 505 was to become effective on March 9, 1996, 30 days after the Act was signed by the President. Note following 47 U.S. C. 561 (1994 ed., Supp. III). *809 On March 7, 1996, Playboy obtained a temporary restraining order (TRO) enjoining the enforcement of (Del.), and brought this suit in a three-judge District Court pursuant to 561 of the Act, note following 47 U.S. C. 223 (1994 ed., Supp. III). Playboy sought a declaration that 505 violates the Constitution and an injunction prohibiting the law's enforcement. The District Court denied Playboy a preliminary injunction, and we summarily affirmed, The TRO was lifted, and the Federal Commission announced it would begin enforcing 505 on May 18, 1997. In re Implementation of Section 505 of the Telecommunications Act of 1996, 12 FCC Rcd. 52, 54 When the |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | Act of 1996, 12 FCC Rcd. 52, 54 When the statute became operative, most cable operators had "no practical choice but to curtail [the targeted] programming during the [regulated] sixteen hours or risk the penalties imposed if any audio or video signal occur[red] during [those] times." The majority of operators"in one survey, 69%"complied with 505 by time channeling the targeted programmers. Since "30 to 50% of all adult programming is viewed by households prior to 10 p.m.," the result was a significant restriction of communication, with a corresponding reduction in Playboy's revenues. In March 1998, the District Court held a full trial and concluded that 505 violates the First Amendment. The District Court observed that 505 imposed a contentbased restriction on speech. It agreed that the interests the statute advanced were compelling but concluded the Government might further those interests in less restrictive ways. One plausible, less restrictive alternative could be found in another section of the Act: 504, which requires a cable operator, "[u]pon request by a cable service subscriber without charge, [to] fully *810 scramble or otherwise fully block" any channel the subscriber does not wish to receive. 47 U.S. C. 560 (1994 ed., Supp. III). As long as subscribers knew about this opportunity, the court reasoned, 504 would provide as much protection against unwanted programming as would -720. At the same time, 504 was content neutral and would be less restrictive of Playboy's First Amendment rights. The court described what "adequate notice" would include, suggesting "[operators] should communicate to their subscribers the information that certain channels broadcast sexuallyoriented programming; that signal may appear; that children may view signal without their parents' knowledge or permission; that channel blocking devices are available free of charge ; and that a request for a free device can be made by a telephone call to the [operator]." at The means of providing this notice could include "inserts in monthly billing statements, barker channels (preview channels of programming coming up on PayPer-View), and on-air advertisement on channels other than the one broadcasting the sexually explicit programming." The court added that this notice could be "conveyed on a regular basis, at reasonable intervals," and could include notice of changes in channel alignments. The District Court concluded that 504 so supplemented would be an effective, less restrictive alternative to 505, and consequently declared 505 unconstitutional and enjoined its enforcement. at -720. The court also required Playboy to insist on these notice provisions in its contracts with cable operators. The United States filed a direct appeal in this Court pursuant to 561. The District Court thereafter |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | in this Court pursuant to 561. The District Court thereafter dismissed for *811 lack of jurisdiction two post-trial motions filed by the Government. App. to Juris. Statement 91a92a. We noted probable jurisdiction, and now affirm. II Two essential points should be understood concerning the speech at issue here. First, we shall assume that many adults themselves would find the material highly offensive; and when we consider the further circumstance that the material comes unwanted into homes where children might see or hear it against parental wishes or consent, there are legitimate reasons for regulating it. Second, all parties bring the case to us on the premise that Playboy's programming has First Amendment protection. As this case has been litigated, it is not alleged to be obscene; adults have a constitutional right to view it; the Government disclaims any interest in preventing children from seeing or hearing it with the consent of their parents; and Playboy has concomitant rights under the First Amendment to transmit it. These points are undisputed. The speech in question is defined by its content; and the statute which seeks to restrict it is content based. Section 505 applies only to channels primarily dedicated to "sexually explicit adult programming or other programming that is indecent." The statute is unconcerned with signal from any other channels. See The overriding justification for the regulation is concern for the effect of the subject matter on young viewers. Section 505 is not "`justified without reference to the content of the regulated speech.' " It "focuses only on the content of the speech and the direct impact that speech has on its listeners." This is the essence of content-based regulation. Not only does 505 single out particular programming content for regulation, it also singles out particular programmers. The speech in question was not thought by Congress to be so harmful that all channels were subject to restriction. Instead, the statutory disability applies only to channels "primarily dedicated to sexually-oriented programming." 47 U.S. C. 561(a) (1994 ed., Supp. III). One sponsor of the measure even identified appellee by name. See 141 Cong. Rec. 15587 (1995) (noting the statute would apply to channels "such as the Playboy and Spice channels"). Laws designed or intended to suppress or restrict the expression of specific speakers contradict basic First Amendment principles. Section 505 limited Playboy's market as a penalty for its programming choice, though other channels capable of transmitting like material are altogether exempt. The effect of the federal statute on the protected speech is now apparent. It is evident that the only reasonable way for a |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | It is evident that the only reasonable way for a substantial number of cable operators to comply with the letter of 505 is to time channel, which silences the protected speech for two-thirds of the day in every home in a cable service area, regardless of the presence or likely presence of children or of the wishes of the viewers. According to the District Court, "30 to 50% of all adult programming is viewed by households prior to 10 p.m.," when the safe-harbor period To prohibit this much speech is a significant restriction of communication between speakers and willing adult listeners, communication which enjoys First Amendment protection. It is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree. The Government's content-based burdens must satisfy the same rigorous scrutiny as its content-based bans. *813 Since 505 is a content-based speech restriction, it can stand only if it satisfies strict scrutiny. Sable of Cal., If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government's purpose, the legislature must use that alternative. ; Sable at To do otherwise would be to restrict speech without an adequate justification, a course the First Amendment does not permit. Our precedents teach these principles. Where the designed benefit of a content-based speech restriction is to shield the sensibilities of listeners, the general rule is that the right of expression prevails, even where no less restrictive alternative exists. We are expected to protect our own sensibilities "simply by averting [our] eyes." ; accord, 0-1 Here, of course, we consider images transmitted to some homes where they are not wanted and where parents often are not present to give immediate guidance. Cable television, like broadcast media, presents unique problems, which inform our assessment of the interests at stake, and which may justify restrictions that would be unacceptable in other contexts. See Denver Area Ed. Telecommunications Consortium, ; ; No one suggests the Government must be indifferent to unwanted, indecent speech that comes into the home without parental consent. The speech here, all agree, is protected speech; and the question is what standard the Government must meet in order to restrict it. As we consider a content-based regulation, the answer should be clear: The standard is strict scrutiny. This case involves speech alone; and even where speech is indecent and enters the home, the objective of shielding children does not suffice to support |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | the objective of shielding children does not suffice to support a blanket ban if the protection can be accomplished by a less restrictive alternative. In Sable for instance, the feasibility of a technological approach to controlling minors' access to "dial-a-porn" messages required invalidation of a complete statutory ban on the -131. And, while mentioned only in passing, the mere possibility that user-based Internet screening software would "`soon be widely available' " was relevant to our rejection of an overbroad restriction of indecent cyberspeech. Compare (upholding statute "whereby any householder may insulate himself from advertisements that offer for sale `matter which the addressee in his sole discretion believes to be erotically arousing or sexually provocative' " (quoting then 39 U.S. C. 4009(a) (1964 ed., Supp. IV))), with Compare also with (rejecting blanket ban of material "`tending to incite minors to violent or depraved or immoral acts, manifestly tending to the corruption of the morals of youth' " (quoting then Mich. Penal Code 343)). Each of these cases arose in a different contextSable Communica- *815 tions and for instance, also note the affirmative steps necessary to obtain access to indecent material via the media at issuebut they provide necessary instruction for complying with accepted First Amendment principles. Our zoning cases, on the other hand, are irrelevant to the question here. Post, at 838 (Breyer, J., dissenting) and ). We have made clear that the lesser scrutiny afforded regulations targeting the secondary effects of crime or declining property values has no application to content-based regulations targeting the primary effects of protected speech. ; -3. The statute now before us burdens speech because of its content; it must receive strict scrutiny. There is, moreover, a key difference between cable television and the broadcasting media, which is the point on which this case turns: Cable systems have the capacity to block unwanted channels on a household-by-household basis. The option to block reduces the likelihood, so concerning to the Court in Pacifica, at that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listenerslisteners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt. Simply put, targeted blocking is less restrictive than banning, and the Government cannot ban speech if targeted blocking is a feasible and effective means of furthering its compelling interests. This is not to say that the absence |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | compelling interests. This is not to say that the absence of an effective blocking mechanism will in all cases suffice to support a law restricting the speech in question; but if a less restrictive means is available for the Government to achieve its goals, the Government must use it. *816 III The District Court concluded that a less restrictive alternative is available: 504, with adequate 30 F. Supp. 2d, at -720. No one disputes that 504, which requires cable operators to block undesired channels at individual households upon request, is narrowly tailored to the Government's goal of supporting parents who want those channels blocked. The question is whether 504 can be effective. When a plausible, less restrictive alternative is offered to a content-based speech restriction, it is the Government's obligation to prove that the alternative will be ineffective to achieve its goals. The Government has not met that burden here. In support of its position, the Government cites empirical evidence showing that 504, as promulgated and implemented before trial, generated few requests for household-by-household blocking. Between March 1996 and May 1997, while the Government was enjoined from enforcing 505, 504 remained in operation. A survey of cable operators determined that fewer than 0.5% of cable subscribers requested full blocking during that time. The uncomfortable fact is that 504 was the sole blocking regulation in effect for over a year; and the public greeted it with a collective yawn. The District Court was correct to direct its attention to the import of this tepid response. Placing the burden of proof upon the Government, the District Court examined whether 504 was capable of serving as an effective, less restrictive means of reaching the Government's goals. at 715, 718-. It concluded that 504, if publicized in an adequate manner, could be. at -720. The District Court employed the proper approach. When the Government restricts speech, the Government bears the burden of proving the constitutionality of its actions. Greater New Orleans Broadcasting Assn., ; 5 U. S., at 879 ; ; Board of Trustees of State Univ. of N. ; When the Government seeks to restrict speech based on its content, the usual presumption of constitutionality afforded congressional enactments is reversed. "Content-based regulations are presumptively invalid," R. A. V. v. St. Paul, and the Government bears the burden to rebut that presumption. This is for good reason. "[T]he line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn." Error in marking that line exacts an extraordinary cost. It is through speech that our convictions and beliefs |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | cost. It is through speech that our convictions and beliefs are influenced, expressed, and tested. It is through speech that we bring those beliefs to bear on Government and on society. It is through speech that our personalities are formed and expressed. The citizen is entitled to seek out or reject certain ideas or influences without Government interference or control. *818 When a student first encounters our free speech jurisprudence, he or she might think it is influenced by the philosophy that one idea is as good as any other, and that in art and literature objective standards of style, taste, decorum, beauty, and esthetics are deemed by the Constitution to be inappropriate, indeed unattainable. Quite the opposite is true. The Constitution no more enforces a relativistic philosophy or moral nihilism than it does any other point of view. The Constitution exists precisely so that opinions and judgments, including esthetic and moral judgments about art and literature, can be formed, tested, and expressed. What the Constitution says is that these judgments are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority. Technology expands the capacity to choose; and it denies the potential of this revolution if we assume the Government is best positioned to make these choices for us. It is rare that a regulation restricting speech because of its content will ever be permissible. Indeed, were we to give the Government the benefit of the doubt when it attempted to restrict speech, we would risk leaving regulations in place that sought to shape our unique personalities or to silence dissenting ideas. When First Amendment compliance is the point to be proved, the risk of nonpersuasion operative in all trialsmust rest with the Government, not with the citizen. With this burden in mind, the District Court explored three explanations for the lack of individual blocking 30 F. Supp. 2d, at First, individual blocking might not be an effective alternative, due to technological or other limitations. Second, although an adequately advertised blocking provision might have been effective, 504 as written did not require sufficient notice to make it so. Third, the actual signal problem might be far less of a concern than the Government at first had supposed. *819 To sustain its statute, the Government was required to show that the first was the right answer. According to the District Court, however, the first and third possibilities were "equally consistent" with the record before it. As for the second, the record was "not clear" as to whether enough notice had |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | record was "not clear" as to whether enough notice had been issued to give 504 a fighting chance. The case, then, was at best a draw. Unless the District Court's findings are clearly erroneous, the tie goes to free expression. The District Court began with the problem of signal itself, concluding "the Government has not convinced us that [signal ] is a pervasive problem." The District Court's thorough discussion exposes a central weakness in the Government's proof: There is little hard evidence of how widespread or how serious the problem of signal is. Indeed, there is no proof as to how likely any child is to view a discernible explicit image, and no proof of the duration of the or the quality of the pictures or sound. To say that millions of children are subject to a risk of viewing signal is one thing; to avoid articulating the true nature and extent of the risk is quite another. Under 505, sanctionable signal can include instances as fleeting as an image appearing on a screen for just a few seconds. The First Amendment requires a more careful assessment and characterization of an evil in order to justify a regulation as sweeping as this. Although the parties have taken the additional step of lodging with the Court an assortment of videotapes, some of which show quite explicit ing and some of which show television static or snow, there is no attempt at explanation or context; there is no discussion, for instance, of the extent to which any particular tape is representative of what appears on screens nationwide. The Government relied at trial on anecdotal evidence to support its regulation, which the District Court summarized as follows: *820 "The Government presented evidence of two city councillors, eighteen individuals, one United States Senator, and the officials of one city who complained either to their [cable operator], to their local Congressman, or to the FCC about viewing signal on television. In each instance, the local [cable operator] offered to, or did in fact, rectify the situation for free (with the exception of 1 individual), with varying degrees of rapidity. Included in the complaints was the additional concern that other parents might not be aware that their children are exposed to this problem. In addition, the Government presented evidence of a child exposed to signal at a friend's house. Cindy Omlin set the lockout feature on her remote control to prevent her child from tuning to adult channels, but her eleven year old son was nevertheless exposed to signal when he attended a slumber party at |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | exposed to signal when he attended a slumber party at a friend's house. "The Government has presented evidence of only a handful of isolated incidents over the 16 years since 1982 when Playboy started broadcasting. The Government has not presented any survey-type evidence on the magnitude of the `problem.' " Spurred by the District Court's express request for more specific evidence of the problem, see n. 16, the Government also presented an expert's spreadsheet estimate that 39 million homes with 29.5 million children had the potential to be exposed to signal -709. The Government made no attempt to confirm the accuracy of its estimate through surveys or other field tests, however. Accordingly, the District Court discounted the figures and made this finding: "[T]he Government presented no evidence on the number of households actually exposed to signal and thus has not quantified the actual extent of the problem of signal" at *8 709. The finding is not clearly erroneous; indeed it is all but required. Once 505 went into effect, of course, a significant percentage of cable operators felt it necessary to time channel their sexually explicit programmers. and n. 14. This is an indication that scrambling technology is not yet perfected. That is not to say, however, that scrambling is completely ineffective. Different cable systems use different scrambling systems, which vary in their dependability. "The severity of the problem varies from time to time and place to place, depending on the weather, the quality of the equipment, its installation, and maintenance." At even the good end of the spectrum a system might to an extent sufficient to trigger the time-channeling requirement for a cautious cable operator. (The statute requires the signal to be "fully block[ed]." 47 U.S. C. 561(a) (1994 ed., Supp. III) (emphasis added).) A rational cable operator, faced with the possibility of sanctions for intermittent ing, could well choose to time channel even if the ing is too momentary to pose any concern to most households. To affirm that the Government failed to prove the existence of a problem, while at the same time observing that the statute imposes a severe burden on speech, is consistent with the analysis our cases require. Here, there is no probative evidence in the record which differentiates among the extent of at individual households and no evidence which otherwise quantifies the signal problem. In addition, market-based solutions such as programmable televisions, VCR's, and mapping systems (which display a blue screen when tuned to a scrambled signal) may eliminate signal at the consumer end of the Playboy made the point at trial that |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | end of the Playboy made the point at trial that the Government's estimate failed to account for these factors. -709. Without some sort of field survey, it is impossible to know how widespread the problem in fact is, and the only indicator in the record is a handful of complaints. Cf. *822 Turner Broadcasting System, If the number of children transfixed by even flickering pornographic television images in fact reached into the millions we, like the District Court, would have expected to be directed to more than a handful of complaints. No support for the restriction can be found in the near barren legislative record relevant to this provision. Section 505 was added to the Act by floor amendment, accompanied by only brief statements, and without committee hearing or debate. See 141 Cong. Rec. 15586-15589 (1995). One of the measure's sponsors did indicate she considered time channeling to be superior to voluntary blocking, which "put[s] the burden of action on the subscriber, not the cable company." This sole conclusory statement, however, tells little about the relative efficacy of voluntary blocking versus time channeling, other than offering the unhelpful, self-evident generality that voluntary measures require voluntary action. The Court has declined to rely on similar evidence before. See Sable -130 ; 5 U. S., and n. 24, 8-876, n. 41 (same). This is not to suggest that a 10,000-page record must be compiled in every case or that the Government must delay in acting to address a real problem; but the Government must present more than anecdote and supposition. The question is whether an actual problem has been proved in this case. We agree that *823 the Government has failed to establish a pervasive, nationwide problem justifying its nationwide daytime speech ban. Nor did the District Court err in its second conclusion. The Government also failed to prove 504 with adequate notice would be an ineffective alternative to Once again, the District Court invited the Government to produce its proof. See ("If the 504 blocking option is not being promoted, it cannot become a meaningful alternative to the provisions of At the time of the permanent injunction hearing, further evidence of the actual and predicted impact and efficacy of 504 would be helpful to us"). Once again, the Government fell short. See 30 F. Supp. 2d, at ("[The Government's argument that 504 is ineffective] is premised on adequate notice to subscribers. It is not clear, however, from the record that notices of the provisions of 504 have been adequate"). There is no evidence that a well-promoted voluntary blocking provision would not |
Justice Kennedy | 2,000 | 4 | majority | United States v. Playboy Entertainment Group, Inc. | https://www.courtlistener.com/opinion/118369/united-states-v-playboy-entertainment-group-inc/ | no evidence that a well-promoted voluntary blocking provision would not be capable at least of informing parents about signal (if they are not yet aware of it) and about their rights to have the blocked (if they consider it a problem and have not yet controlled it themselves). The Government finds at least two problems with the conclusion of the three-judge District Court. First, the Government takes issue with the District Court's reliance, without proof, on a "hypothetical, enhanced version of Section 504." Brief for Appellants 32. It was not the District Court's obligation, however, to predict the extent to which an improved notice scheme would improve 504. It was for the Government, presented with a plausible, less restrictive alternative, to prove the alternative to be ineffective, and 505 to be the least restrictive available means. Indeed, to the extent the District Court erred, it was only in attempting to implement the less restrictive alternative through judicial decree by requiring Playboy to provide for expanded notice in its cable service contracts. The appropriate remedy was not to repair the statute, it was to enjoin the speech restriction. *824 Given the existence of a less restrictive means, if the Legislature wished to improve its statute, perhaps in the process giving careful consideration to other alternatives, it then could do so. The Government also contends a publicized 504 will be just as restrictive as 505, on the theory that the cost of installing blocking devices will outstrip the revenues from distributing Playboy's programming and lead to its cancellation. See This conclusion rests on the assumption that a sufficient percentage of households, informed of the potential for signal would consider it enough of a problem to order blocking devicesan assumption for which there is no support in the record. at It should be noted, furthermore, that Playboy is willing to incur the costs of an effective 504. One might infer that Playboy believes an advertised 504 will be ineffective for its object, or one might infer the company believes the signal problem is not widespread. In the absence of proof, it is not for the Court to assume the former. It is no response that voluntary blocking requires a consumer to take action, or may be inconvenient, or may not go perfectly every time. A court should not assume a plausible, less restrictive alternative would be ineffective; and a court should not presume parents, given full information, will fail to act. If unresponsive operators are a concern, moreover, a notice statute could give cable operators ample incentive, through fines or other penalties for |
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