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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/ | cable operators ample incentive, through fines or other penalties for noncompliance, to respond to blocking requests in prompt and efficient fashion. Having adduced no evidence in the District Court showing that an adequately advertised 504 would not be effective to aid desirous parents in keeping signal out of their own households, the Government can now cite nothing in the record to support the point. The Government instead takes quite a different approach. After only an offhand suggestion that the success of a well-communicated 504 is "highly *825 unlikely," the Government sets the point aside, arguing instead that society's independent interests will be unserved if parents fail to act on that information. Brief for Appellants 32-33 ("[U]nder an enhanced version of Section 504, parents who had strong feelings about the matter could see to it that their children did not view signal at least in their own homes"); ("Even an enhanced version of Section 504 would succeed in blocking signal only if, and after, parents affirmatively decided to avail themselves of the means offered them to do so. There would certainly be parentsperhaps a large number of parentswho out of inertia, indifference, or distraction, simply would take no action to block signal even if fully informed of the problem and even if offered a relatively easy solution"); Reply Brief for Appellants 12 ("[Society's] interest would of course be served in instances in which parents request blocking under an enhanced Section 504. But in cases in which parents fail to make use of an enhanced Section 504 procedure out of distraction, inertia, or indifference, Section 505 would be the only means to protect society's independent interest"). Even upon the assumption that the Government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech. The Government's argument stems from the idea that parents do not know their children are viewing the material on a scale or frequency to cause concern, or if so, that parents do not want to take affirmative steps to block it and their decisions are to be superseded. The assumptions have not been established; and in any event the assumptions apply only in a regime where the option of blocking has not been explained. The whole point of a publicized 504 would be to advise parents that indecent material may be shown and to afford them an opportunity to block it at all times, even when they are not at home and even after 10 p.m. Time channeling does not offer this assistance. The regulatory |
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/ | p.m. Time channeling does not offer this assistance. The regulatory alternative of a publicized *826 504, which has the real possibility of promoting more open disclosure and the choice of an effective blocking system, would provide parents the information needed to engage in active supervision. The Government has not shown that this alternative, a regime of added communication and support, would be insufficient to secure its objective, or that any overriding harm justifies its intervention. There can be little doubt, of course, that under a voluntary blocking regime, even with adequate notice, some children will be exposed to signal ; and we need not discount the possibility that a graphic image could have a negative impact on a young child. It must be remembered, however, that children will be exposed to signal under time channeling as well. Time channeling, unlike blocking, does not eliminate signal around the clock. Just as adolescents may be unsupervised outside of their own households, it is hardly unknown for them to be unsupervised in front of the television set after 10 p.m. The record is silent as to the comparative effectiveness of the two alternatives. * * * Basic speech principles are at stake in this case. When the purpose and design of a statute is to regulate speech by reason of its content, special consideration or latitude is not accorded to the Government merely because the law can somehow be described as a burden rather than outright suppression. We cannot be influenced, moreover, by the perception that the regulation in question is not a major one because the speech is not very important. The history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly. It follows that all content-based restrictions on speech must give us more than a moment's pause. If television broadcasts can expose children to the real risk of harmful exposure to indecent materials, even in their own home and without parental consent, there is a problem the *827 Government can address. It must do so, however, in a way consistent with First Amendment principles. Here the Government has not met the burden the First Amendment imposes. The Government has failed to show that 505 is the least restrictive means for addressing a real problem; and the District Court did not err in holding the statute violative of the First Amendment. In light of our ruling, it is unnecessary to address the second question presented: whether the District Court was divested of jurisdiction to consider the Government's |
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/ | District Court was divested of jurisdiction to consider the Government's postjudgment motions after the Government filed a notice of appeal in this Court. The judgment of the District Court is affirmed. It is so ordered. APPENDIX TO OPINION OF THE COURT Section 505 of the Telecommunications Act of 1996, Stat. 136, 47 U.S. C. 561 (1994 ed., Supp. III), provides in relevant part: "(a) Requirement "In providing sexually explicit adult programming or other programming that is indecent on any channel of its service primarily dedicated to sexually-oriented programming, a multichannel video programming distributor shall fully scramble or otherwise fully block the video and audio portion of such channel so that one not a subscriber to such channel or programming does not receive it. "(b) Implementation "Until a multichannel video programming distributor complies with the requirement set forth in subsection (a) of this section, the distributor shall limit the access of children to the programming referred to in that subsection by not providing such programming during the hours of the day (as determined by the Commission) *828 when a significant number of children are likely to view it. "(c) `Scramble' defined "As used in this section, the term `scramble' means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an understandable manner." Section 504 of the Telecommunications Act of 1996, Stat. 136, 47 U.S. C. 560 (1994 ed., Supp. III), provides in relevant part: "(a) Subscriber request "Upon request by a cable service subscriber, a cable operator shall, without charge, fully scramble or otherwise fully block the audio and video programming of each channel carrying such programming so that one not a subscriber does not receive it. "(b) `Scramble' defined "As used in this section, the term `scramble' means to rearrange the content of the signal of the programming so that the programming cannot be viewed or heard in an understandable manner." |
Justice Powell | 1,987 | 17 | concurring | Rankin v. McPherson | https://www.courtlistener.com/opinion/111946/rankin-v-mcpherson/ | It is not easy to understand how this case has assumed constitutional dimensions and reached the Supreme Court of the United States. The fact that the case is here, however, illustrates the uniqueness of our Constitution and our system of judicial review: courts at all levels are available and receptive to claims of injustice, large and small, by any and every citizen of this country. As the Court notes, at the time this dispute arose respondent McPherson was a 19-year-old probationary employee in the Constable's office in Harris County, Texas. Her only job was to type information from court papers into a computer. She had no law enforcement responsibility, nor was she permitted to perform the primary task of the Constable's office, serving civil process. While she was seated at her desk, the office radio announced the shocking news that someone had tried to assassinate the President. Reacting to the report, McPherson engaged in a brief conversation with her co-worker, at the end of which she said: "[I]f they go for him again, I hope they get him." Tr. (Jan. 21, 1985), p. 73. This unfortunate remark was overheard by another *393 employee, who relayed it to the Constable. McPherson immediately was summoned to the Constable's office, where she freely admitted having made the statement. Based on this single comment, McPherson was summarily discharged. There is no dispute that McPherson's comment was made during a private conversation with a co-worker who happened also to be her boyfriend. She had no intention or expectation that it would be overheard or acted on by others. Given this, I think it is unnecessary to engage in the extensive analysis normally required by and If a statement is on a matter of public concern, as it was here, it will be an unusual case where the employer's legitimate interests will be so great as to justify punishing an employee for this type of private speech that routinely takes place at all levels in the workplace. The risk that a single, offhand comment directed to only one other worker will lower morale, disrupt the work force, or otherwise undermine the mission of the office borders on the fanciful.[*] To the extent that the full constitutional analysis of the competing interests is required, I generally agree with the Court's opinion. *394 In my view, however, the case is hardly as complex as might be expected in a dispute that now has been considered five separate times by three different federal courts. The undisputed evidence shows that McPherson made an ill-considered but protected comment during |
Justice Stevens | 1,989 | 16 | dissenting | Colonial American Life Ins. Co. v. Commissioner | https://www.courtlistener.com/opinion/112297/colonial-american-life-ins-co-v-commissioner/ | Charting one's course through the intricacies of the Internal Revenue Code on the basis of first principles rather than statutory text can be hazardous. Intuitively, the Court concludes that the ceding commission a reinsurer pays to indemnify a direct insurer on its policy risks constitutes the purchase price for a capital asset because it produces a stream of future income. The same intuition should lead to the conclusion that the commission a direct insurer pays to acquire policies that will bring future profits constitutes a *261 capital expenditure. Yet everyone agrees that the latter payment is currently deductible. See ante, at 250.[*] If the Court had begun its analysis with the text of 26 U.S. C. 809 (1970 ed.) and the regulations promulgated thereunder instead of waiting until after it had decided the case on its view of first principles to respond to the statutory provision it might well have recognized the merit in the taxpayer's position. Section 809(c)(1) distinguishes between assumption and indemnity reinsurance, providing that return premiums "arising out of" an indemnity reinsurance transaction are deductible from gross premiums received. See ante, at 256. The Treasury Regulations thus confirm that while payments made by an assumption reinsurer for purchases of policies must be amortized, Treas. Reg. 1.817-4(d)(2)(ii)(B), 26 CFR 1.817-4(d)(2)(ii)(B) "consideration returned to another life insurance company [by an indemnity reinsurer] in respect of reinsurance ceded" is immediately deductible from the reinsurer's gross premiums. Treas. Reg. 1.809-4(a)(1)(ii), 26 CFR 1.809-4(a)(1)(ii) There is no warrant in the text for the Court's rulings that assumption reinsurance and indemnity reinsurance should be treated alike for tax purposes, ante, at 251, and that experience refunds constitute return premiums while ceding commissions do not. See ante, at 257-258. In the context of this transaction, in which the ceding commission was netted against the initial reinsurance premium, the commission quite literally is a sum that the "reinsuring company has been paid and then must remit to the ceding company." Ante, at 258. In all events, for the reasons stated in full in Judge Will's opinion for the Court of Appeals for the *262 Seventh Circuit in Merit Life Ins. cert. pending, No. 88-955, I would reverse the judgment of the Court of Appeals. |
Justice Alito | 2,014 | 8 | dissenting | Scialabba v. Cuellar De Osorio | https://www.courtlistener.com/opinion/2678135/scialabba-v-cuellar-de-osorio/ | I agree with many of JUSTICE SOTOMAYOR’s criticisms of the plurality opinion. I also agree with THE CHIEF JUSTICE’s critique of the plurality’s suggestion that, when two halves of a statute “do not easily cohere with each other,” an agency administering the statute is free to decide which half it will obey. Ante, at 14. After all, “[d]irect conflict is not ambiguity, and the resolution of such conflict is not statutory construction but legislative choice.” Ante, at 2 (ROBERTS, C. J., concurring in judg- ment). While I, like JUSTICE SOTOMAYOR, would affirm the Court of Appeals, my justification for doing so differs somewhat from hers. As I see it, the question before us is whether there is or is not an “appropriate category” to which the petitions for respondents’ children may be converted. If there is, the agency was obligated by the clear text of 8 U.S. C. to convert the petitions and leave the children with their original priority dates. Any such conversion would be “automatic,” because the agency’s obligation to convert the petitions follows inexorably, and without need for any additional action on the part of either respondents or their children, from the fact that the children’s ages 2 SCIALABBA v. CUELLAR DE OSORIO ALITO, J., dissenting have been calculated to be 21 or older.1 If there is not an appropriate category, then the agency was not required to convert the petitions. By the time respondents became legal permanent resi- dents and filed new petitions for their children (if not sooner), there existed an appropriate category to which the original petitions could be converted. That is because at that point the children all qualified for F2B preference status, as unmarried, adult children of legal permanent residents. Accordingly, the agency should have converted respondents’ children’s petitions and allowed them to retain their original priority dates.2 Section 1153(h)(3) is brief and cryptic. It may well contain a great deal of ambiguity, which the Board of Immigration Appeals in its expertise is free to resolve, so long as its resolution is a “permissible construction of the statute.” Chevron U. S. A. But the statute is clear on at least one point: “If the age of an alien is determined under to be 21 years of age or older the alien’s petition shall automatically be con- verted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition” (emphasis added). The Board was not free to disregard this clear statutory command. —————— 1Ido not believe the term “converted” demands the interpretation the plurality |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | The Court holds today that an administrative law judge can award nominal worker's compensation benefits to an injured longshoreman whose wage-earning capacity has not dropped, and probably will never drop, below his preinjury capacity. Because I believe that 8(h) of the Longshore and Harbor Workers' Compensation Act (LHWCA or Act), 33 U.S. C. 908(h), requires that a worker be compensated if and only if a preponderance of the evidence demonstrates that he has a reduced wage-earning capacitythat is, a present or future loss of earning powerI respectfully dissent. As an initial matter, I note my agreement with some of the starting points for the Court's analysis. It is common ground that "disability" under the LHWCA is an economic, rather than a medical, concept. Ante, at 126; Metropolitan Stevedore Likewise, I agree that a worker's eligibility for compensation (i. e., his disability) under the LHWCA turns on his wage-earning capacity, which depends on his ability to earn wages now and in the future. That is, I agree that an injured worker who is currently receiving high wages, but who is likely to be paid less in the future due to his injury, is disabled under the LHWCA and is therefore eligible for compensation today. See ante, at 128-129. I part company with the Court first because, in my view, 8(h) of the LHWCA, 33 U.S. C. 908(h), requires an administrative law judge (ALJ) to make an up-front finding that "fix[es]" the worker's wage-earning capacity (and hence his eligibility for compensation) by taking into account both the worker's present and future ability to earn wages. Second, *142 a finding of future economic harm must be supported by a preponderance of the evidence pursuant to the Administrative Procedure Act (APA), 5 U.S. C. 551 et seq., in order to affect a claimant's wage-earning capacity. Finally, because I read the ALJ's decision as expressly finding that respondent Rambo will probably suffer no future loss of earning power, and because that finding is supported by substantial evidence, I would reverse the decision of the Court of Appeals and direct the entry of judgment for petitioner Metropolitan Stevedore Co. I My first point of disagreement with the Court is over how an ALJ should fix the wage-earning capacity of a worker like Rambo, whose current wages exceed his preinjury wages, but who claims that his ability to earn money may drop in the future. Section 8(h) of the LHWCA provides: "The wage-earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings if such actual earnings fairly and reasonably |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | his actual earnings if such actual earnings fairly and reasonably represent his wage-earning capacity: Provided, however, That if the employee has no actual earnings or his actual earnings do not fairly and reasonably represent his wage-earning capacity, the deputy commissioner may, in the interest of justice, fix such wageearning capacity as shall be reasonable, having due regard to the nature of his injury, the degree of physical impairment, his usual employment, and any other factors or circumstances in the case which may affect his capacity to earn wages in his disabled condition, including the effect of disability as it may naturally extend into the future." The Court holds that 8(h) permits an adjudicator simply to postpone any determination of whether the worker will suffer a loss in earning power so long as there is a "significant possibility" that such a loss will someday come to pass. *143 Ante, at 137. Until then, the Court rules, the ALJ can award nominal compensation, thereby propping open the agency's door for the worker to seek modification of the award in the future. In my opinion, the LHWCA does not permit an ALJ to award purely nominal benefits in order to guard against the possibility of a future drop in earning power. Instead, the Act requires that a future reduction in a longshoreman's ability to earn money be immediately factored into a present determination of his wage-earning capacity. That an ALJ must make a concrete, immediate finding about a worker's wage-earning capacity is dictated by the language of 8(h), which calls for a determination whether a worker's actual earnings "fairly and reasonably represent his wage-earning capacity." A comparison between a worker's current wages and his earning potential is possible only if the ALJ assigns a dollar amount to the claimant's wage-earning capacity. Section 8(h) further instructs that, if the worker's current pay does not correspond to his true earning capacity, the adjudicator must "fix such wage-earning capacity as shall be reasonable." Again, "fix[ing]" the worker's wage-earning capacity requires the ALJ to make a definite assessment of whether the claimant's capacity has gone up, down, or remained the same; it leaves no room for the equivocal finding that a worker's capacity might have changed. The "wage-earning capacity" that an ALJ must fix is a composite concept, measured partly by the claimant's present earning ability and partly by his future earning ability. Accordingly, the ALJ's finding must reflect predictable changes in the worker's ability to earn wages. Section 8(h) lists the main factors to be taken into account: the nature of his injury, the degree of |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | into account: the nature of his injury, the degree of physical impairment, his usual employment, and the effect of the disability as it may naturally extend into the future. Thus, if an ALJ credits a doctor's testimony that a claimant can work for only five years before his injury leaves him bedridden, that worker would *144 presently have a reduced "wage-earning capacity" within the meaning of the LHWCA, regardless of whether his current wages were as high as his preinjury wages. Just because market conditions and the claimant's physical condition may vary over time does not mean that an ALJ should not consider predicted variations when fixing the worker's wageearning capacity. Quite to the contrary, the ALJ must consider them; otherwise, he would not be "fix[ing]" the worker's capacity at all, but simply putting off that determination for another day. Because an ALJ must make a definite finding regarding a worker's wage-earning capacity, I disagree with the Court that a worker can ever, for purposes of the LHWCA, have a "nominal current disability." Ante, at 135. A worker either has a reduced wage-earning capacity (however slight it may be), or he does not. To say that a claimant has a "nominal current disability," as far as I can tell, means only that he is currently making as much as his preinjury wages. But that answers only half the question, since the worker's future earning potential is also relevant to whether he has a reduced wage-earning capacity today and, hence, a compensable disability. The Court conflates a worker's foreseeable future earning power, which must be considered when awarding benefits, with unforeseeable future developments, which justify reopening an award under 22 of the LHWCA, 33 U.S. C. 922. Section 22 acknowledges that a worker's wageearning capacity can change over time, since it authorizes the Benefits Review Board to modify compensation orders in light of a "change in conditions." All that means is that when circumstances arise that were not predictable in the original benefits determination, and hence were not factored into a prior determination of a worker's wage-earning capacity, an ALJ can adjust an award. If, on the other hand, those circumstances were predicted in the original proceeding, they should have been included in the initial fixing of *145 the claimant's wage-earning capacity. The catch is that 22 permits recognition of changed conditions only within one year of the denial of a claim or the last payment on an award. The Court's mechanism for awarding nominal damages is designed solely to circumvent 22's 1-year limit for reopening terminated or denied claims. The |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | 22's 1-year limit for reopening terminated or denied claims. The Court effectively recognizes as much, since it candidly admits that under its approach, "finality is exchanged for accuracy." Ante, at 133. That is, the 1-year limitations period established by 22 is sacrificed in order to avoid the overcompensation and undercompensation that may result from a straightforward application of the LHWCA. Congress has already evaluated these policy concerns, however, and has come down on the side of finality by enacting 22. When a worker cannot demonstrate a reduction in his wage-earning capacity, in terms of his present or future ability to obtain gainful employment, 22 gives that employee only one year to show that conditions have changed. To hold open a case simply because a "change in conditions" may someday arise certainly violates the spirit, if not the letter, of 22. The proper trade off between finality and accuracy is open to reasoned debate. Indeed, some state legislatures have agreed with the Court that when a worker does not immediately suffer as a result of his work-related injury, it is better to postpone compensation until his disability manifests itself. Accordingly, they have amended their workers' compensation statutes to allow precisely the sort of nominal-benefits mechanism that the Court approves today. See, e. g., Cal. Lab. Code Ann. 5802 (West 1989) ("If, in any proceeding under this division, it is proved that an injury has been suffered but it is not proved that any disability has resulted, the appeals board may, instead of dismissing the application, award a nominal disability indemnity, if it appears that disability is likely to result at a future time"). But until Congress amends the LHWCA, I do not think that the Court's approach is open to us. I would therefore hold that *146 an ALJ cannot circumvent 22's 1-year limitations period by awarding nominal compensation. He must instead make a present determination of the longshoreman's wage-earning capacity, taking into account both his present and future ability to earn money. II I further believe that the APA requires that a claimant's future economic injury be proved by a preponderance of the evidence before such an injury can provide a basis for awarding disability benefits under the LHWCA. This is true regardless of whether such a finding leads to an award of nominal benefits (as the Court holds) or whether such an injury should instead be factored into a claimant's wage-earning capacity immediately (as I believe). I therefore disagree with the Court's holding that merely a "significant possibility" of a future drop in a worker's wage-earning potential is relevant |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | a future drop in a worker's wage-earning potential is relevant to a present benefits determination. As explained in Part I, the ultimate fact to be determined in an LHWCA benefits proceeding is a worker's "wageearning capacity," which has both a present and a future component. Thus, contrary to the Court, I think that "the fact of such a decline [in a worker's wage-earning capacity], rather than some degree of probability of its occurrence," ante, at 138, n. 9, must be shown in order to justify a finding of disability. The Court recognizes that the APA governs benefit determinations under the LHWCA, ante, at 138, so that "the proponent of a rule or order has the burden of proof," 5 U.S. C. 556(d); see 33 U.S. C. 919(d) ("[A]ny hearing held under [the LHWCA] shall be conducted in accordance with the provisions of" the APA). And this proof must be by a preponderance of the evidence. Director, Office of Workers' Compensation It follows that whether a worker has a reduced wage-earning capacity is a fact to be determined by a preponderance of the evidence. *147 The Court's "significant possibility" standard falls far short of the APA's preponderance of the evidence standard. Indeed, although the Court fails to define its standard with any specificity, it at least tells us that a "significant possibility" is certainly less than a "high degree of statistical likelihood." Ante, at 137. Thus, a longshoreman whose paycheck has not shrunk, and is unlikely ever to shrink, below preinjury levels is apparently entitled to an award of nominal damages under the Court's holding today. Such a result, it seems to me, is exactly backwards. Not only does the "significant possibility" standard conflict with the APA, but the Court plucks it out of thin air. The Court seems to rely purely on its perception of "symmetry" in the LHWCA: Where an injury immediately depresses a worker's ability to earn wages, "the payment of actual compensation holds open the option of modification under 22 even for future changes in condition whose probability of occurrence may well be remote at the time of the original award. Consistent application of the Act's wait-and-see approach thus suggests that nominal compensation permitting future modification should not be limited to instances where a decline in capacity can be shown to a high degree of statistical likelihood." Ante, at 136-137. But if symmetry is the goal, then there should logically be no threshold showing (beyond the injury itself) required to award nominal benefits under the LHWCA. Because 22 permits modification of ongoing awards even for completely unforeseeable |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | 22 permits modification of ongoing awards even for completely unforeseeable changes of conditions, "[c]onsistent application" of the Court's "waitand-see" theory (derived from 22) would call for keeping open every case to guard against the possibility that new events might someday reduce a worker's wage-earning capacity. The Court apparently realizes that such a result would completely eviscerate 22's 1-year limitations period, and so it feels obliged to screen out at least the most attenuated claims that conditions may change in the future. As a stopgap, it invents the "significant possibility" test. *148 This supposed "asymmetry" in the LHWCA is not something to be circumvented, however, since it is attributable to Congress' decision to place a strict 1-year time limit on the reopening of denied or terminated claims. Under the proper interpretation of the LHWCA, a worker's wageearning capacity is partly afunction of his future ability to earn money, as proved by a preponderance of the evidence. This preponderance standard screens out claims where a worker cannot show a reduction in his future earning power. Accordingly, there is no need to engage in the sort of arbitrary line-drawing that brings us the "significant possibility" standard, in order to salvage some role for 22's 1-year limitations period. III As a final matter, I believe that the ALJ's conclusion that Rambo "no longer has a wage-earning capacity loss," App. 55, should be upheld regardless of whether the standard for fixing a worker's wage-earning capacity is the one set forth by the Court or the one described in this dissent. I agree with the Court that Metropolitan, as the proponent of a modified compensation order, met its burden of demonstrating a "change in conditions" by proving that Rambo's actual earnings had risen significantly since he began steadily working as a crane operator. Ante, at 139. Upon that showing, 8(h) shifted to Rambo the burden of proving that his new earnings did not fairly and reasonably reflect his wage-earning capacity. In other words, Rambo must show that his ability to earn wages in the future is more likely than not to dip below his preinjury levels. In his written ruling, the ALJ gave this issue his full consideration. As the ALJ observed, "higher post-injury gains/ losses are not necessarily determinative of an employee's wage-earning capacity. One has to consider wage-earning capacity in an open labor market under normal employment conditions." App. 53 (citation omitted). The ALJ then specifically commented on Rambo's future job prospects: "Claimant *149 no longer has a wage-earning capacity loss. Although Claimant testified that he might lose his job at some future time, |
Justice O'Connor | 1,997 | 14 | dissenting | Metropolitan Stevedore Co. v. Rambo | https://www.courtlistener.com/opinion/118130/metropolitan-stevedore-co-v-rambo/ | that he might lose his job at some future time, the evidence shows that Claimant would not be at any greater risk of losing his job than anyone else. Moreover, no evidence has been offered to show that Claimant's age, education, and vocational training are such that he would be at greater risk of losing his present job or in seeking new employment in the event that he should be required to do so. Likewise, the evidence does not show that Claimant's employer is a beneficent one." As I read this statement, the ALJ found that Rambo's current earnings adequately reflected his future job prospectsthat is, he found that Rambo would not suffer any future economic loss due to his injury. The ALJ's findings must be upheld if they are supported by substantial evidence. See 33 U.S. C. 921(b)(3) (setting standard of review that Benefits Review Board must apply to ALJ's findings). The substantial evidence standard is extremely deferential to the factfinder: "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consolidated Edison Based on the evidence submitted by the parties, a "reasonable mind" could undoubtedly have found that Rambo's current earnings accurately reflected his wage-earning capacity, with regard to both his present and future job prospects. Rambo testified that he had learned to operate cranes and heavy lift trucks (tasks that he can perform despite his injury), App. 30-31; that he had worked steadily as a crane operator for one shipping line for the last 2[1]20442 years, ; and that his new job paid a much higher wage than he had received before his injury, The record clearly permitted a finding that, despite his injury, Rambo "no longer has a wage-earning capacity loss." *150 Because the ALJ properly found that Rambo's current earnings reasonably reflected his wage-earning capacity, I see no need to remand this case for further proceedings simply to demand of the ALJ a finding that he has already made. The Benefits Review Board's denial of compensation should be upheld and the Court of Appeals' decision should be reversed. |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | Today's decision turns a critical constitutional guarantee the Sixth Amendment's right to an impartial jury into a hollow formality. Petitioner Dawud Majid Mu'Min's capital *434 murder trial was preceded by exceptionally prejudicial publicity, and at jury selection 8 of the 12 jurors who ultimately convicted Mu'Min of murder and sentenced him to death admitted exposure to this publicity. Nonetheless, the majority concludes that the trial court was under no obligation to ask what these individuals knew about the case before seating them on the jury. Instead, the majority holds that the trial court discharged its obligation to ensure the jurors' impartiality by merely asking the jurors whether they thought they could be fair. The majority's reasoning is unacceptable. When a prospective juror has been exposed to prejudicial pretrial publicity, a trial court cannot realistically assess the juror's impartiality without first establishing what the juror already has learned about the case. The procedures employed in this case were wholly insufficient to eliminate the risk that two-thirds of Mu'Min's jury entered the jury box predisposed against him. I dissent. I The majority concedes that the charges against Mu'Min "engendered substantial publicity," ante, at 417, and that "news reports about Mu'Min were not favorable," ante, at 429, but seeks to minimize the impact of the pretrial publicity by arguing that it was not as extensive as in other cases that have come before this Court, The majority's observation is completely beside the point. Regardless of how widely disseminated news of the charges against Mu'Min might have been, the simple fact of the matter is that two-thirds of the persons on Mu'Min's jury admitted having read or heard about the case. While the majority carefully avoids any discussion of the specific nature of the pretrial publicity, it is impossible to assess fairly Mu'Min's claim without first examining precisely what was written about the case prior to trial. On September 22, 1988, Gladys Nopwasky was stabbed to death in the retail carpet and flooring store she owned in Dale *435 City, Virginia. Several weeks later, Mu'Min, an inmate serving a 48-year sentence for first-degree murder, was indicted for murdering Nopwasky. Facts developed at trial established that Mu'Min had committed the murder after escaping from the site of a Virginia Department of Transportation work detail. See The circumstances of the murder generated intense local interest and political controversy. The press focused on the gross negligence of the corrections officials responsible for overseeing the work detail from which Mu'Min had escaped. It was reported, for instance, that the facility to which Mu'Min was assigned had |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | instance, that the facility to which Mu'Min was assigned had been enclosed by only a four-foot high fence, with a single strand of barbed wire across the top. See App. in No. 890899 (Va. Sup. Ct.), p. 963 (hereinafter App.). It was also reported that the lax supervision at the facility allowed the inmates to have ready access to alcohol, drugs, and weapons and to slip away from the work detail for extended periods without detection. Shortly after the charges against Mu'Min became public, the state official in charge of administering both corrections and highway programs issued a public apology. Not satisfied, a number of area residents wrote editorials demanding that all state officials responsible for the inmate work-release program be fired, and area leaders pushed for increased controls on inmate-release programs, see Officials responded with the introduction of stiffer restrictions on prison work crews, and with the suspension of furloughs for inmates convicted of violent crimes, In explaining the new policies, the director of Virginia's Department of Corrections acknowledged that the explosive public reaction to the charges against Mu'Min had been intensified by the case of Willie Horton, whose rape and assault of a Maryland woman while on furlough became a major *436 issue in the 1988 presidential campaign. "`The world's in an uproar right now,'" the official was quoted as stating. Naturally, a great deal of the media coverage of this controversy was devoted to Mu'Min and the details of his crime. Most of the stories were carried on the front pages of local papers, and almost all of them were extremely prejudicial to Mu'Min. Readers of local papers learned that Nopwasky had been discovered in a pool of blood, with her clothes pulled off and semen on her body. In what was described as a particularly "macabre" side of the story, a local paper reported that, after raping and murdering Nopwasky, Mu'Min returned to the work site to share lunch with other members of the prison detail. Readers also learned that Mu'Min had confessed to the crime. Under the banner headlines, "Murderer confesses to killing woman," and "Inmate Said to Admit to Killing," the press accompanied the news of Mu'Min's indictment with the proud announcement of Virginia's Secretary of Transportation and Public Safety that the State had already secured Mu'Min's acknowledgment of responsibility for the murder. See Subsequent stories reported that, upon being confronted with the charges, Mu'Min initially offered the incredible claim that he had entered the store only to help Nopwasky after witnessing another man attempting to rape her. However, according to these reports, Mu'Min |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | attempting to rape her. However, according to these reports, Mu'Min eventually abandoned this story and confessed to having stabbed Nopwasky twice with a steel spike, once in the neck and once in the chest, after having gotten into a dispute with her over the price of Oriental rugs. One of these stories was carried under the front-page headline: "Accused killer says he stabbed Dale City woman after argument." Another story reported that Mu'Min had admitted at least having contemplated raping Nopwasky. According to this article, Mu'Min had told authorites, "`The thought did cross *437 my mind, but I did not have sex with her.'" This item was reported as a front-page story, captioned by the headline: "Mu'Min Says He Decided against Raping Nopwasky." See also Those who read the detailed reporting of Mu'Min's background would have come away with little doubt that Mu'Min was fully capable of committing the brutal murder of which he was accused. One front-page story set forth the details of Mu'Min's 1973 murder of a cab driver. See Another, entitled "Accused killer had history of prison trouble," stated that between 1973 and 1988, Mu'Min had been cited for 23 violations of prison rules and had been denied parole six times. It was also reported that Mu'Min was a suspect in a recent prison beating. Several stories reported that Mu'Min had strayed from the Dale City work detail to go on numerous criminal forays before murdering Nopwasky, sometimes stealing beer and wine, and on another occasion breaking into a private home, As quoted in a local paper, a Department of Corrections report acknowledged that Mu'Min "`could not be described as a model prisoner.'" Contacted by a reporter, one of Mu'Min's fellow inmates described Mu'Min as a "`lustful'" individual who did "`strange stuff.'" "`Maybe not this,'" the inmate was quoted as saying, "`but I knew something was going to happen.'" Indeed, readers learned that the murder of Nopwasky could have been avoided if the State had been permitted to seek the death penalty in Mu'Min's 1973 murder case. In a story headlined "Mu'Min avoided death for 1973 murder in Va.," one paper reported that but for this Court's decision a year earlier in which temporarily invalidated the death penalty, the prosecutor at the earlier trial "would have had a case of capital murder." App., As reported in the press, the prosecutor *438 who indicted Mu'Min for murdering Nopwasky concurred that the case underscored the need for "`more and swifter capital punishment.'" Finally, area residents following the controversy were told in no uncertain terms that their local officials were |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | told in no uncertain terms that their local officials were already convinced of Mu'Min's guilt. The local Congressman announced that he was "deeply distressed by news that my constituent Gladys Nopwasky was murdered by a convicted murderer serving in a highway department work program" and demanded an explanation of the "decisions that allowed a person like Dawad Mu'min to commit murder." His opponent in the 1988 congressional election, a member of the Virginia House of Delegates, likewise wrote an editorial in which he stated, "I am outraged that a Department of Corrections inmate apparently murdered a resident of Dale City." Assuring the public that the right person had been charged with the crime, the local police chief explained, "`We haven't lost very many [murder cases] lately. All of the evidence will come out at some point.'" Indeed, by virtue of the intense media coverage, that "point" was reached long before trial. II The question before us is whether, in light of the charged atmosphere that surrounded this case, the trial court was constitutionally obliged to ask the eight jurors who admitted exposure to pretrial publicity to identify precisely what they had read, seen, or heard. The majority answers this question in the negative. According to the majority, the trial court need ask no more of a prospective juror who has admitted exposure to pretrial publicity than whether that prospective juror views himself as impartial. Our cases on juror-bias, the majority asserts, have never gone so far as to require trial courts to engage in so-called "content questioning," and to impose such a requirement would prove unduly *439 burdensome to the administration of justice. I cannot accept this analysis. This Court has long and repeatedly recognized that exposure to pretrial publicity may undermine a defendant's Sixth Amendment guarantee to trial by an impartial jury. E. g., ; ; ; ;[1] In order for the jury to fulfill its constitutional role, each juror must set aside any preconceptions about the case and base his verdict solely on the evidence at trial. "The theory of our system is that the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not be any outside influence, whether of private talk or public print." Nonetheless, before today, this Court had not been called upon to address in any great detail the procedures necessary to assure the protection of the right to an impartial jury under the Sixth Amendment. In particular, although our cases indicate that the trial court's conclusion that a particular juror has not been |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | trial court's conclusion that a particular juror has not been overwhelmed by pretrial publicity is reviewable only for "`manifest error,'" quoting we have never indicated the type of voir dire that the trial court must undertake in order for its findings to merit this "`special deference,'" quoting Bose Because the issue in today's case is essentially one of first impression, the majority's observation that our racial-bias cases have never gone so far as to require content questioning, see ante, at 431, is irrelevant. Even assuming that *440 the scope of voir dire in the pretrial-publicity setting need be no greater than the scope of voir dire in the racial-bias setting, no inference can be drawn from the failure of decisions like and to "require questioning of individual jurors about facts or experiences that might have led to racial bias," ante, at 431, because the sole issue in those cases was whether any inquiry into racial bias was required. Indeed, the only firm conclusion that can be drawn from our impartial-jury jurisprudence is that a prospective juror's own "assurances that he is equal to this task cannot be dispositive of the accused's rights." As JUSTICE O'CONNOR has observed, an individual "juror may have an interest in concealing his own bias [or] may be unaware of it." "Natural human pride would suggest a negative answer to whether there was a reason the juror could not be fair and impartial." United ; compare It is simply impossible to square today's decision with the established principle that, where a prospective juror admits exposure to pretrial publicity, the trial court must do more than elicit a simple profession of open-mindedness before swearing that person into the jury. To the extent that this Court has considered the matter, it has emphasized that where a case has been attended by adverse pretrial publicity, the trial court should undertake "searching questioning of potential jurors to screen out those with fixed opinions as to guilt or innocence." Nebraska Press ; accord, Anything less than this renders the defendant's right to an impartial jury meaningless. See As this Court has recognized, "[p]reservation of the opportunity to prove actual bias is a guarantee of a defendant's right to an impartial jury." The fact that the defendant bears the burden of establishing juror partiality, see, e. g., ; makes it all the more imperative that the defendant be entitled to meaningful examination at jury selection in order to elicit potential biases possessed by prospective jurors. In my view, once a prospective juror admits exposure to pretrial publicity, content questioning must be part |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | admits exposure to pretrial publicity, content questioning must be part of the voir dire for at least three reasons. First, content questioning is necessary to determine whether the type and extent of the publicity to which a prospective juror has been exposed would disqualify the juror as a matter of law. Our cases recognize that, under certain circumstances, exposure to particularly inflammatory publicity creates so strong a presumption of prejudice that "the jurors' claims that they can be impartial should not be believed." ; see -799. For instance, in we concluded that a capital defendant was constitutionally entitled to a change of venue because no one who had been exposed to the inflammatory media descriptions of his crime and confession could possibly have fairly judged his case, and because this publicity had saturated the community in which the defendant was on trial. See Similarly, in we presumed community prejudice mandating a change in venue when petitioner's filmed confession obtained during a police interrogation was broadcast on local television over three consecutive days. See An individual exposed to publicity qualitatively *442 akin to the publicity at issue in Irvin and Rideau is necessarily disqualified from jury service no matter how earnestly he professes his impartiality.[2] But unless the trial court asks a prospective juror exactly what he has read or heard about a case, the court will not be able to determine whether the juror comes within this class. Cf. -802 ;[3] Second, even when pretrial publicity is not so extreme as to make a juror's exposure to it per se disqualifying, content questioning still is essential to give legal depth to the trial court's finding of impartiality. One of the reasons that a "juror may be unaware of" his own bias, * is that the issue of impartiality is a mixed question of law and fact, see 366 U. S., the resolution of which necessarily draws upon the trial court's legal expertise. Where, as in this case, a trial court asks a prospective juror merely whether he can be "impartial," the court may well get an answer that is the product of the juror's own confusion as to what impartiality is.[4] By asking the prospective juror in addition to identify what he has read or heard about the case and what corresponding impressions he has formed, the trial court is able to confirm that the impartiality that the juror professes is the same impartiality that the Sixth Amendment demands. Third, content questioning facilitates accurate trial court factfinding. As this Court has recognized, the impartiality "determination is essentially one of credibility." |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | has recognized, the impartiality "determination is essentially one of credibility." 4 U. S., Where a prospective juror acknowledges exposure to pretrial publicity, the precise content of that publicity constitutes contextual information essential to an accurate assessment of whether the prospective *444 juror's profession of impartiality is believable. If the trial court declines to develop this background, its finding of impartiality simply does not merit appellate deference. In my view, the circumstances of this case presented a clear need for content questioning. Exactly two-thirds of the persons on Mu'Min's jury admitted having been exposed to information about the case before trial. As I have shown, see the stories printed prior to trial were extraordinarily prejudicial, and were made no less so by the inflammatory headlines typically used to introduce them. Much of the pretrial publicity was of the type long thought to be uniquely destructive of a juror's ability to maintain an open mind about a case in particular, reports of Mu'Min's confession, see Nebraska Press 563; ; ; statements by prominent public officials attesting to Mu'Min's guilt, see Nebraska Press ; ; and reports of Mu'Min's unsavory past, see Because of the profoundly prejudicial nature of what was published in the newspapers prior to trial, any juror exposed to the bulk of it certainly would have been disqualified as a matter of law under the standards set out in Irvin and Rideau. Indeed, the single story headlined "Murderer confesses to killing woman," App. 975-976, or alternatively the story headlined "Accused killer says he stabbed Dale City woman after argument," in my opinion would have had just as destructive an effect upon the impartiality of anyone who read it as did the filmed confession in Rideau upon the members of the community in which it was broadcast. At minimum, without inquiry into what stories had been read by the eight members of the jury who acknowledged exposure to *445 pretrial publicity, the trial court was in no position to credit their individual professions of impartiality. According to JUSTICE O'CONNOR, the trial court was not obliged to pose content questions because "the trial judge himself was familiar with the potentially prejudicial publicity to which the jurors might have been exposed." Ante, at 433 I find this observation perplexing. The judge's awareness of the contents of the extraordinarily prejudicial stories written about Mu'Min is not a substitute for knowledge of whether the prospective jurors were aware of the content of these stories. As I have explained, it is the judge's ignorance of the jurors' exposure to particular stories that renders his findings |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | the jurors' exposure to particular stories that renders his findings of juror impartiality unworthy of appellate deference. Indeed, because at least two of the stories would have rendered any person who read them per se unqualified to sit on the jury, the trial judge's awareness of these stories makes even more inexcusable his willingness to seat the jurors without first ascertaining what they had read about the case.[5] Nor is it any answer to protest, as JUSTICE O'CONNOR does, that the trial court "repeatedly" asked the prospective jurors whether they thought they could be fair. When a prospective juror admits exposure to pretrial publicity, the juror's assertion of impartiality, on its own, is insufficient to establish his impartiality for constitutional purposes. I do not see how the juror's assertion of impartiality becomes any more sufficient merely through repetition. *446 Finally, I reject the majority's claim that content questioning should be rejected because it would unduly burden trial courts. See ante, at 425. Sixty years ago, Chief Justice Hughes rejected a similar contention: "The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute." -315. This reasoning is fully applicable here. In any case, the majority's solicitude for administrative convenience is wholly gratuitous. Numerous Federal Circuits and have adopted the sorts of procedures for screening juror bias that the majority disparages as being excessively intrusive. See United v. Addonizio, cert. denied, ; United v. Davis, ; Silverthorne v. United (CA9 8) ; Minn. Rule Crim. Proc. 26.02, Subd. 4(2)(b) ; ; ; ; ; See also United v. Colabella, ; United v. Harris, cert. denied sub nom. Clay v. United American Bar Association Standards for Criminal Justice 8-3.5(a) Judicial Conference of the United Revised Report of the Judicial Conference Committee on the Operation of the Jury System on the "Free Press Fair Trial" Issue, 87 F. R. D. 519, 532-533 Additionally, two other guarantee criminal defendants sequestered voir dire as a matter of right in all capital cases. See Ky. Rule Crim. Proc. 9.38; Tex. Code Crim. Proc. Ann., Art. 35.17 (Vernon 1989). In short, the majority's anxiety is difficult to |
Justice Marshall | 1,991 | 15 | dissenting | Mu'Min v. Virginia | https://www.courtlistener.com/opinion/112604/mumin-v-virginia/ | (Vernon 1989). In short, the majority's anxiety is difficult to credit in light of the number of jurisdictions that have concluded that meaningful steps can be taken to insulate the proceedings from juror bias without compromising judicial efficiency.[6] III "Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused." The reason for this is simple and compelling: In our system of justice, "only the jury may strip a man of his liberty or his life." 366 U. S., Eight of the twelve jurors who voted to strip Dawud Majid Mu'Min of his life may well have been rendered incapable of reaching any other verdict after reading of the grisly accusations *448 against Mu'Min and the succession of stories indicating that he was guilty. The majority holds that the trial court was entitled to seat those jurors entirely blind to what they in fact already knew about the case based solely upon their assertions of impartiality. Far from "tak[ing] strong measures to ensure that the balance [was not] weighed against the accused," the procedures undertaken in this case amounted to no more than the trial court going through the motions. I cannot accept that a defendant's Sixth Amendment right to an impartial jury means so little. I dissent. IV Even if I were to believe that the procedures employed at Mu'Min's jury selection satisfied the requirements of the Sixth Amendment, I still would vacate his death sentence. I adhere to my view that the death penalty is in all circumstances cruel and unusual punishment prohibited by the Eighth and Fourteenth Amendments. |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | We noted probable jurisdiction in this case, because the judgment of the Georgia Supreme Court appeared to raise substantial questions under the Fourteenth Amendment that were deserving of our plenary consideration, and because whatever conclusion this Court might reach with respect to them would definitively settle this aspect of the litigation. In brief, the Georgia Supreme Court upheld, over due process and equal protection challenges, a state statutory scheme that compelled appellants, both indigent persons who sought to contest landlord petitions for summary eviction from their homes, to post, as a condition precedent to offering any defense to summary eviction, a surety bond in double the potential amount of rent due at the end of trial. The statutes, this aspect of which was also upheld by the Georgia Supreme Court, provided further that the landlords would become entitled to such double rent should the tenant-appellants lose their cases. The case was first heard by us at the Term, and was thereafter set for reargument at the present Term. At reargument it became apparent that events occurring subsequent to our notation of probable jurisdiction had so drastically undermined the premises on which we originally set this case for plenary consideration as to lead us to conclude that, with due regard for the proper functioning of this Court, we should not now adjudicate it. I The Georgia statutory scheme under which this case was initiated, to 61-30 (1966), and 61-306 operated in the following manner. A landlord seeking summary eviction could file an affidavit in a local court, alleging that the tenant, *146 for one or more statutorily enumerated reasons, was unlawfully holding possession of the premises and had refused the landlord's demand to relinquish possession. ( 61-301.) When such an affidavit had been filed the local judicial officer was required to issue a "warrant or process" to the sheriff directing him to "deliver to the owner" the premises described in the affidavit. ( 61-302.) The sheriff was to give the tenant four days' notice before executing the dispossessory warrant.) The tenant could prevent immediate eviction only by filing a counter-affidavit, alleging one of several specified defenses and accompanied by a surety bond "for the payment of such sum, with costs, as may be recovered against him on the trial of the case." ( 61-303.) Only if the tenant followed these procedures was he then entitled to a trial on the issues raised by the affidavits. ( 61-304.) Against this background, 61-30 provided: "If the issue specified in the preceding section shall be determined against the tenant, judgment shall go against him |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | be determined against the tenant, judgment shall go against him for double the rent reserved or stipulated to be paid, or if he shall be a tenant at will or sufferance, for double what the rent of the premises is shown to be worth" In the case before us, appellants Sanks and Momman were served with dispossessory warrants on May 21, 1968, and July 17, 1968, respectively (App. 3, 18), and then applied for (App. 20), and eventually obtained (App. 24-39) from the Civil Court of Fulton County a "rule nisi" permitting appellants to remain in possession of their respective premises pending resolution of the factual issues raised by their applications, so long as they timely paid their rent into court during the pendency of the litigation. Both the bond-posting *147 requirement ( 61-303) and the double-rent damages measure ( 61-30) were declared unconstitutional and, hence, inapplicable to these eviction proceedings. (App. 27-39.) On an interlocutory appeal, the trial court's constitutional declarations were set aside by the Supreme Court of Georgia, and the judgment of the lower court was reversed. II Since we noted probable jurisdiction the posture of this case has shifted dramatically. Both Mrs. Momman and Mrs. Sanks have removed from the premises originally sought to be recovered by their landlords. In addition, the Georgia General Assembly has repealed virtually the entire statutory scheme that has governed this litigation from its inception and replaced it with a new one, effective July 1, 1970, that contains neither the bond-posting nor double-rent requirement. 1 Ga. Laws 1970, pp. 968-972, Ga. Code Ann. 61-302 to 61-30 Under the new law, dispossessory actions will still be commenced by the landlord's execution of an affidavit. Now, however, this merely compels the local judicial officer to cause the tenant to be summoned to a hearing ( 61-302), and the tenant can retain possession and force a trial of any defenses he may wish to raise simply by answering the affidavit, orally or in writing, at the hearing. ( 61-303.) Expedited trials are encouraged. If the litigation has not been concluded within a month of the execution of the landlord's affidavit, the tenant may retain possession by paying into court all rent as it becomes due, in addition to any rent that was due but not paid prior to issuance of the summons. ( 61-303, 61-304.) If the landlord ultimately prevails, his monetary damages, if any, are to be based on the actual, not double, rent found due. ( 61-30.) Similarly, the tenant may, in effect, stay execution *148 of the dispossessory warrant pending appeal |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | effect, stay execution *148 of the dispossessory warrant pending appeal of an adverse determination simply by paying rent, as it accrues, into the court. ( 61-306.) III The crux of this controversy from its inception has been appellants' insistence that they, not their alleged landlords, had the right to lawful possession of the premises in dispute and their demands that they be permitted to remain in possession pending the outcome of the litigation.[1] With appellants' voluntary removal from the premises this aspect of the case is clearly moot. We have been apprised of no basis in the statutes or case law for assuming that were this Court now to hold Mrs. Sanks and Mrs. Momman were constitutionally entitled to proceed in the trial court without first posting a double-rent bond, they could then seek a decree under the statutes here at issue returning them to possession of the premises. The repealed statute spoke only of enabling a tenant already in possession to contest forcible eviction upon posting a bond. Indeed, neither appellants nor appelleesall of whom resist the suggestion that the case as a whole is mootcontend that this aspect of it is not moot. There is thus no reason to believe that, on remand, either appellant, if successful in this Court, could litigate, in the context of any proceeding that might conceivably be governed by any of the provisions of these repealed Georgia statutes, a claim to be put in possession of the premises she originally occupied. In support of the continued justiciability of the case, appellants rely upon a subsidiary aspect of this controversy which they claim remains alive. Were this *149 Court to affirm the Georgia Supreme Court on the merits, the case would presumably be remanded to the trial court in accordance with the Georgia Supreme Court's mandate. There, argue appellants, those who initially procured the dispossessory warrants might then move for entry of a judgment for double damages as provided in former 61-30. Appellants fear that such a judgment might automatically be entered because their removal from the premises might be construed as effectively conceding their lack of substantive defenses or that, even if they are still technically entitled to raise defenses, appellants' ability to do so will be conditioned on first posting the bond. Such a result is possible only if a number of factors coalesce. First, the original moving parties, the alleged lessors, would have to decide to seek such damages from these relatively impecunious appellants. Second, the Georgia courts would have to rule that such request for damages should be adjudicated under |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | rule that such request for damages should be adjudicated under the repealed statutes. Third, it would also be necessary for the state courts to hold that those statutes contemplated awarding double rent in the circumstances here and (see infra) on a basis that renders material the bond-posting provision. Beyond all this, the original posture of this case has been further upset by the apparent fact that prior to moving out, and in compliance with the order of the trial court, appellants paid their rent money into the court's registry as it became due, money that still remains on deposit there. Tr. of Oral Rearg., Nov. 18, 1970, pp. 10-11, 26. With the case in this Court thus so reoriented, it is impossible for us to predict whether and to what extent our adjudication of the issues originally presented would now be material to any further litigation that might ensue on remand. Whether the original initiating parties will seek double damages is a matter wholly beyond *10 the control of this, or any other, court. Whether the existence of funds in the registry of the trial court will necessitate an adversary proceeding to redistribute them and, if so, whether that proceeding would be governed by the repealed statutes which, on their face, do not even remotely speak to this problem, are matters of pure conjecture. Because the former statutes provided for double damages only where "the issue [is] determined against the tenant" (former 61-30) and provided for joinder of issue only where a double-rent bond had first been posted (former 61-303, 61-304), we are quite unable to say whether the Georgia courts would nevertheless hold this language sufficiently elastic to permit a claim for double damages where eviction was arrested by court order rather than a bond, yet insufficiently flexible to permit simultaneous waiver of the bond-posting requirement before adjudication of such a claim. Nor can we predict whether and to what extent repeal of the former statutory scheme would, on remand, be held to alter any of the conclusions respecting it which the Georgia courts might otherwise adopt in this context.[2] All these issues, so far as it appears, would be matters of first impression for the Georgia judiciary. IV Given this imponderable legal tangle, involving, as it does, purely matters of state law, we perceive no other responsible course for this Court than to decline, at this stage, to adjudicate the issues originally presented. We *11 do not rest this conclusion on a determination that the case is moot. Conceivably, appellants may on remand be subjected to the double-rent |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | Conceivably, appellants may on remand be subjected to the double-rent or bond-posting requirements of the former statutes. But it has always been a matter of fundamental principle with this Court, a principle dictated by our very institutional nature and constitutional obligations, that we exercise our powers of judicial review only as a matter of necessity. As said in United "We have consistently refrained from passing on the constitutionality of a statute until a case involving it has reached a stage where the decision of a precise constitutional issue is a necessity." Manifestly, it cannot plausibly be maintained that this is such a case. Indeed, the only thing that is now apparent about this lawsuit is that the clear-cut constitutional issues it formerly presented cannot with any certainty be said to be relevant to the issues remaining in it, if, in fact, any issues do remain. Moreover, even were the constitutional issues certain to arise below we cannot foretell the context in which they will appear. Possibly the double-rent provision will be successfully invoked, but not the bond-posting requirement. Similarly, if the latter is held applicable, we would at this stage be required to adjudicate, in advance of that fact, its validity as a precondition not to resisting summary eviction, which is its normal and clearly intended use, but to contesting a claim for damages only. The operative competing constitutional considerations, particularly the nature and scope of the State's interest in imposing such a barrier to litigation, may well be significantly different depending on the principal purposes for which the bond is required. Yet, given the debilitated state of this lawsuit, we could address only the subsidiary problemand this in a legal context where we would not know whether that problem will ever arise. The principle of prudent restraint we invoke today is *12 nothing new, although, happily, it has not frequently proved necessary to dispose of appeals on this basis. United 36 U.S. 146 provides an apt analogy. There the United States had appealed the dismissal of an indictment brought under 302 (a) of the Taft-Hartley Act, 61 Stat. 17, which made it unlawful "for any employer to pay or deliver, or to agree to pay or deliver, any money or other thing of value to any representative of any of his employees," where the lower court had construed a Government pretrial memorandum as a concession that the transaction forming the basis of the indictment was a loan and held that the statute did not penalize management for loaning money to union officials. This Court noted probable jurisdiction to consider |
Justice Harlan | 1,971 | 22 | majority | Sanks v. Georgia | https://www.courtlistener.com/opinion/108268/sanks-v-georgia/ | to union officials. This Court noted probable jurisdiction to consider the validity of this construction of the statute, but after oral argument the Solicitor General represented to the Court that he felt the Government was free, on remand, to prove the transaction came within the statute because its particular facts revealed this was not a bona fide loan. This occurrence left the precise issue to be decided so opaque and the extent to which a decision would resolve the controversy so uncertain that the Court, in effect, was being asked to render an "advance expression of legal judgment upon issues which remain unfocused," 36 U.S., at 17. Accordingly, the Court remanded the case without further adjudication. In the case now before us subsequent events have produced similar consequences. The focus of this lawsuit has been completely blurred, if not altogether obliterated, and our judgment on the important issues involved is potentially immaterial. Indeed, the instant case is obviously more compelling than Fruehauf, since this one presents an issue of constitutional, not statutory, interpretation. *13 Similarly, in Rescue 331 U.S. 49 the Court declined to adjudicate an appeal presenting important constitutional issues because those issues were, on close inspection, so intertwined with complex problems of construing the Los Angeles Municipal Code that it was not possible to tell with precision at that stage in what context and to what extent the appellants' freedom was being restrained. So, here, we do not know, assuming the bond-posting or double-damages provisions ultimately are successfully invoked, in what context this will occur, or what the precise rationale for applying them will be. In short, resolution by this Court at this time, of the issues originally raised by appellants would not be appropriate. We leave ourselves completely free, of course, to review these issues should appellants' fears that they will be adversely affected by the repealed statutes subsequently be confirmed by proceedings in the Georgia courts. Accordingly, the appeal will be dismissed and the case remanded to the Supreme Court of Georgia. It is so ordered. MR. JUSTICE BLACK concurs in the judgment of the Court dismissing this appeal but does so specifically on the ground that the case is now moot. |
Justice Stewart | 1,970 | 18 | dissenting | United States v. Seckinger | https://www.courtlistener.com/opinion/108092/united-states-v-seckinger/ | The standard form that the Government uses for its fixed-price construction contracts has long contained a single sentence saying that the contractor "shall be responsible *218 for all damages to persons or property that occur as a result of his fault or negligence in connection with the prosecution of the work."[1] For more than 30 years it has evidently been understood that these words mean what they rather clearly saythat the contractor cannot hold the Government for losses he incurs resulting from his own negligence.[2] The provision, in short, is what the Court of Appeals called "a simple responsibility clause."[3] But today this innocuous boilerplate language is turned inside out. For the Court says that the provision really is a promise by the contractor to reimburse the Government for losses it incurs resulting from its negligence. To be sure, the Court does not go quite so far as to hold that this obscure clause operates as a complete liability insurance policy. But the Court does hold that the clause requires the contractor to indemnify the Government "to the full extent that its negligence, if any, contributed to the injuries to the employee." The magnitude of the burden the Court imposes is well illustrated *219 by the circumstances of this case. Here an employee of the contractor was injured in the scope of his employment on plumbing work that the contractor was performing at the Paris Island Marine Depot in South Carolina. The employee recovered from the contractor the benefits to which he was entitled under the state workmen's compensation law. The employee then sued the Government under the Federal Tort Claims Act, claiming that his injuries had actually been caused by the Government's negligence. The Federal District Court agreed, finding that the negligence of the United States was the "sole cause" of the employee's injuries and awarding him $45,000 in damages. The Court today says that the United States can now recover an indeterminate portion of this $45,000 from the contractor, because the contractor has agreed to "indemnify the United States" Despite intimations in the Court's opinion to the contrary, we do not deal here with "common law or statutory rules of contribution or indemnity."[4] The only question the Court decides is the meaning of the words of a clause in a government contract.[5] I think the *220 meaning attributed to that clause today is as unconscionable as it is inaccurate. The clause first appeared in government contracts at least eight years before the enactment of the Federal Tort Claims Act in 1946. Before the passage of that Act the |
Justice Stewart | 1,970 | 18 | dissenting | United States v. Seckinger | https://www.courtlistener.com/opinion/108092/united-states-v-seckinger/ | Act in 1946. Before the passage of that Act the United States could not be sued in tort for personal injuries. Thus there was absolutely no reason for the Government to secure for itself a right to recovery over against an alleged joint tortfeasor. Yet we are asked to believe that the drafter of this clause was so prescient as to foresee the day of government tort liability nearly a decade in the future, and so ingenious as to smuggle a provision into a standard contract form that would, when that day arrived, allow the Government to shift its liability onto the backs of its contractors. This theory is nothing short of incredible. In drafting its construction contracts the United States certainly has both the power and the resources to write contracts providing expressly that it will pass off onto its contractors, either in whole or in part, liability it incurs for damages caused by its own judicially determined negligence. The Government could require its contractors to hold it harmless without regard to fault on their part, or it could establish a proration of liability arising from the joint negligence of the parties. But the contractual provision before us does neither. It no more says that the contractor shall reimburse the Government for his share of joint negligence than that he shall be a liability insurer for the Government's sole negligence. *221 The Court nonetheless manages to discover that the clause amounts to a contribution agreement, relying for its conclusion upon cases involving, not the simple responsibility clause before us, but express indemnification agreements with "hold harmless" clauses.[6] This result is said to be desirable because it ensures a fair distribution of loss between those jointly responsible for the damage. But when Seckinger entered into this contract, it had every reason to expect that its liability for injuries to its employees would be limited to what is imposed by the South Carolina compensation law. That law relieved it of responsibility in tort in exchange for its guarantee that its employees would recover without regard to fault. Presumably its bid on the government project reflected its reasonable expectation that this would be the extent of its liability on account of employee accidents. Now the Court heaps an unforeseen federal contractual burden atop the requirement the State has already imposed.[7] If the Government wants to impose additional liabilities upon those with whom it contracts to do its work, I would require it to do so openly, so that every bidder may clearly know the extent of his potential liability. Even in the |
Justice Powell | 1,975 | 17 | concurring | Blue Chip Stamps v. Manor Drug Stores | https://www.courtlistener.com/opinion/109267/blue-chip-stamps-v-manor-drug-stores/ | Although I join the opinion of the Court, I write to emphasize the significance of the texts of the Acts of 1933 and 1934 and especially the language of 10 (b) and Rule 10b-5. *756 I The starting point in every case involving construction of a statute is the language itself. The critical phrase in both the statute and the Rule is "in connection with the purchase or sale of any security." 15 U.S. C. 78j (b); 17 CFR 240.10b-5 (1975) (emphasis added). Section 3 (a) (14) of the 1934 Act, 15 U.S. C. 78c (a) (14), provides that the term "sale" shall "include any contract to sell or otherwise dispose of" securities. There is no hint in any provision of the Act that the term "sale," as used in 10 (b), was intendedin addition to its long-established legal meaningto include an "offer to sell." Respondent, nevertheless, would have us amend the controlling language in 10 (b) to read: "in connection with the purchase or sale of, or an offer to sell, any security." Before a court properly could consider taking such liberty with statutory language there should be, at least, unmistakable support in the history and structure of the legislation. None exists in this case. Nothing in the history of the 1933 and 1934 Acts supports any congressional intent to include mere offers in 10 (b). Moreover, as the Court's opinion indicates, impressive evidence in the texts of the two Acts demonstrates clearly that Congress selectively and carefully distinguished between offers, purchases, and sales. For example, 17 (a), the antifraud provision of the 1933 Act, 15 U.S. C. 77q (a), expressly includes "offer[s]" of securities within its terms while 10 (b) of the 1934 Act and Rule 10b-5 do not. The 1933 Act also defines "offer to sell" as something distinct from a sale. 2 (3), 15 U.S. C. 77b (3). If further evidence of congressional intent were needed, it may be found in the subsequent history of these Acts. *757 As noted in the Court's opinion, the Securities and Exchange Commission unsuccessfully sought, in 1957 and again in 1959, to persuade Congress to broaden 10 (b) by adding to the critical language: "or any attempt to purchase or sell" any security. See ante, at 732. This case involves no "purchase or sale" of securities.[1] Respondent was a mere offeree, which instituted this suit some two years after the shares were issued and after the market price had soared. Having "missed the market" on a stock, it is hardly in a unique position. The capital that fuels our enterprise |
Justice Powell | 1,975 | 17 | concurring | Blue Chip Stamps v. Manor Drug Stores | https://www.courtlistener.com/opinion/109267/blue-chip-stamps-v-manor-drug-stores/ | in a unique position. The capital that fuels our enterprise system comes from investors who have frequent opportunities to purchase, or not to purchase, securities being offered publicly. The market prices of new issues rarely remain static: almost invariably they go up or down, and they often fluctuate widely over a period far less than the two years during which respondent reflected on its lost opportunity. Most investors have unhappy memories of decisions not to buy stocks which later performed well. The opinion of the Court, and the dissenting opinion of Judge Hufstedler in the Court of Appeals, correctly emphasize the subjective nature of the inevitable inquiry if the term "offer" were read into the Act and some arguable error could be found in an offering prospectus: "Would I have purchased this particular security at the time it was offered if I had known the correct facts?" Apart from the human temptation for the plaintiff to answer this question in a self-serving fashion, the offeror *758 of the securitiesdefendant in the suitis severely handicapped in challenging the predictable testimony.[2] The subjective issues would be even more speculative in the class actions that inevitably would follow if we held that offers to sell securities are covered by 10 (b) and Rule 10b-5. In this case respondent was clearly identifiable as an offeree, as here the shares were offered to designated persons.[3] In the more customary public sale of securities, identification of those who in fact were bona fide offerees would present severe problems of proof. The 1933 Act requires that offers to sell registered securities be made by means of an effective prospectus. 5 (b), 15 U.S. C. 77e (b). Issues are usually marketed through underwriters and dealers, often including scores of investment banking and brokerage firms across the country. Copies of the prospectus may be widely distributed through the dealer group, and then passed hand to hand among countless persons whose identities cannot be known. If 10 (b) were extended to embrace offers to sell, the number of persons claiming to have been *759 offerees could be legion with respect to any security that subsequently proved to be a rewarding investment. We are entitled to assume that the Congress, in enacting 10 (b) and in subsequently declining to extend it, took into account these and similar considerations. The courts already have inferred a private cause of action that was not authorized by the legislation. In doing this, however, it was unnecessary to rewrite the precise language of 10 (b) and Rule 10b-5. This is exactly what respondentjoined, surprisingly, by the |
Justice Powell | 1,975 | 17 | concurring | Blue Chip Stamps v. Manor Drug Stores | https://www.courtlistener.com/opinion/109267/blue-chip-stamps-v-manor-drug-stores/ | Rule 10b-5. This is exactly what respondentjoined, surprisingly, by the SEC sought in this case.[4] If such a far-reaching change is to *760 be made, with unpredictable consequences for the process of raising capital so necessary to our economic wellbeing, it is a matter for the Congress, not the courts. II MR. JUSTICE BLACKMUN's dissent charges the Court with "a preternatural solicitousness for corporate wellbeing and a seeming callousness toward the investing public." Our task in this case is to construe a statute. In my view, the answer is plainly compelled by the language as well as the legislative history of the 1933 and 1934 Acts. But even if the language is not "plain" to all, I would have thought none could doubt that the statute can be read fairly to support the result the Court reaches. Indeed, if one takes a different viewand imputes callousness to all who disagreehe must attribute a lack of legal and social perception to the scores of federal judges who have followed Birnbaum for two decades. The dissenting opinion also charges the Court with paying "no heed to the unremedied wrong" arising from the type of "fraud" that may result from reaffirmance of the Birnbaum rule. If an issue of statutory construction is to be decided on the basis of assuring a federal remedyin addition to state remediesfor every perceived fraud, at least we should strike a balance between the opportunities for fraud presented by the contending views. It may well be conceded that Birnbaum does allow some fraud to go unremedied under the federal securities Acts. But the construction advocated by the dissent could result in wider opportunities for fraud. As the Court's opinion makes plain, abandoning the Birnbaum construction in favor of the rule urged by the dissent would invite any person who failed to purchase a *761 newly offered security that subsequently enjoyed substantial market appreciation to file a claim alleging that the offering prospectus understated the company's potential. The number of possible plaintiffs with respect to a public offering would be virtually unlimited. As noted above (at 758 n. 2), an honest offeror could be confronted with subjective claims by plaintiffs who had neither purchased its securities nor seriously considered the investment. It frequently would be impossible to refute a plaintiff's assertion that he relied on the prospectus, or even that he made a decision not to buy the offered securities. A rule allowing this type of open-ended litigation would itself be an invitation to fraud.[5] MR. JUSTICE BLACKMUN, with whom MR. JUSTICE DOUGLAS and MR. |
Justice Stevens | 1,992 | 16 | dissenting | United States v. Wilson | https://www.courtlistener.com/opinion/112711/united-states-v-wilson/ | Today's rigid interpretation of a remedial statute is not supported by the text, legislative history, or underlying policies of the statute. In this Court said that "[i]n determining the meaning of [a] statute, we look not only to the particular statutory language, but to the design of the statute as a whole and to its object and policy." The Court has failed to do this today. The statute at issue, 18 U.S. C. 3585(b), gives the convicted defendant a right to have his term of imprisonment shortened by the amount of time he has already spent in either federal or state custody as a result of *338 his offense, provided that the time has not already been credited against another sentence.[1] The defendant's right to the full credit authorized by the statute is obviously an important right. Both the Attorney General and the sentencing judge have a duty to respect and protect that right. Moreover, it is clear that in the event there is a dispute between the parties over the right to a credit, the dispute must be resolved by the court. No one contends that the Attorney General has unreviewable discretion to determine the appropriate credit in any case.[2] In most cases, the calculation of the credit is a routine, ministerial task that will not give rise to any dispute.[3] Occasionally, however, as this case demonstrates, there may be a legitimate difference of opinion either about the meaning of the statute or about the relevant facts.[4] Such a dispute *339 must, of course, be resolved by the judge. The only question that remains, then, is when the judge shall resolve the issueat the time of sentencing, when the defendant is represented by counsel, or at some later date, after the defendant has begun to serve his sentence. The credit at issue in this case was a period of almost 14 months that respondent had spent in state custody before he entered into a plea agreement with the federal prosecutor.[5] Prior to the amendment of 3585(b),[6] which became effective in 1987, the statuteat least as construed by the Sixth Circuit where this case arosedid not authorize a credit for time spent in state custody. See United[7] Consistent with that preamendment practice, the District Court denied respondent's request for credit for the 14 months that he had spent in state custody.[8] There are two points that emerge from that *340 ruling: First, the District Court erroneously construed the amended statute, and second, the legal question that the District Court decided was ripe for decision at the time of sentencing. In |
Justice Stevens | 1,992 | 16 | dissenting | United States v. Wilson | https://www.courtlistener.com/opinion/112711/united-states-v-wilson/ | was ripe for decision at the time of sentencing. In its opinion today, the Court emphasizes the fact that the state court later awarded respondent credit for his 14 months in pretrial detention, arguing that he therefore would not have been entitled to a federal credit if the federal determination had been made after the state sentence was imposed. See ante, at 333, 334. This argument is misleading for three reasons. First, if the Federal District Court had granted respondent's request, it seems unlikely that the state court would also have allowed the credit. Second, although the Court assumes that the risk of a double credit could be avoided by postponing the credit determination until after the convicted defendant begins to serve his federal sentence, that assumption is erroneous because state proceedings frequently do not terminate until after a defendant begins to serve his federal sentence or, indeed, in some cases, until after the defendant has been released from federal custody. Third, when a correct federal sentence, including a correct credit for pretrial custody, has been imposed, the subsequent action of a state court concerning the amount of punishment for any state offenses the defendant may have committed is purely a matter of state concern. In this case, for example, if the Federal Sentencing Guidelines had prescribed a sentence of less than 14 months, and if the District Court, or indeed the Attorney General, had awarded respondent the proper credit, and therefore released him from custody, it would be bizarre to conclude that *341 the Federal Government should rearrest him if a Tennessee court subsequently decided to give him the same credit because he would already have served almost 14 months in custody, thus fulfilling his federal sentence. The possibility that a state court will allow the same credit that a federal court allows exists whenever a state sentence is imposed after the federal credit determination is made, whether it is made by the trial judge or by the Attorney General and whether it is made at the sentencing hearing or at the commencement of the federal sentence. The likelihood that the state court will allow a second credit after a federal credit has been allowed seems remote no matter when or by whom the federal determination is made. More importantly, the existence of a hypothetical risk of double credits in rare cases involving overlapping state and federal jurisdiction is not a sufficient reason for refusing to give effect to the plain language of the statute in cases in which no such problem is presented. I The Court's entire analysis |
Justice Stevens | 1,992 | 16 | dissenting | United States v. Wilson | https://www.courtlistener.com/opinion/112711/united-states-v-wilson/ | no such problem is presented. I The Court's entire analysis rests on an incorrect premise. The Court assumes that the statute mandates one of two starkly different procedures: Either the credit determination must always be made by the Attorney General after the defendant has begun to serve his sentence, or it must always be made by the sentencing judge at the time of sentencing. Neither of these procedures is compelled by the statutory text. An ordinary reading of the statute's plain language ("[a] defendant shall be given credit toward the service of a term of imprisonment") suggests that the judge has ample authority to delegate the task of calculating the credit to a probation officer or to the prosecutor, subject, of course, to judicial review, or to make it himself in the first instance. Surely there is nothing in the statutory text that purports to deprive the judge of discretion to follow whichever procedure seems best suited to the particular facts of a given case. The text, which uses the passive voice, does not specify who *342 will make the decision about jail credit. Certainly we should give effect to Congress' choice of words, and understand that the text, as written, does not identify a particular decisionmaker, and therefore, the appropriate decisionmaker may be either the judge or the Attorney General depending on the circumstances.[9] The statute does indicate that the decision should be made after "the sentence was imposed" and that the credit shall include time spent in official detention "prior to the date the sentence commences" even if some of that time is after the sentencing hearing. If,as is true in most cases, the convicted defendant begins to serve his sentence immediately after it is imposed, it is perfectly consistent with the text in such cases to have the judge determine the credit at the conclusion of the sentencing hearing. Even if the commencement of the sentence is postponed until a later date, an order specifying the amount of the credit to which the defendant was then entitled, and directing that an additional credit be given if appropriate, would also conform to the statutory text. The statute does not prohibit the judge from resolving the issue at any time after the sentence has been imposed.[] In short, the text does not mandate any particular procedure that must be followed in every case. *343 Although Congress' use of the passive voice clearly leaves open the question of who the decisionmaker is with respect to jail credit, the placement of 3585 in Subchapter D Imprisonment, in which "the court" is |
Justice Stevens | 1,992 | 16 | dissenting | United States v. Wilson | https://www.courtlistener.com/opinion/112711/united-states-v-wilson/ | 3585 in Subchapter D Imprisonment, in which "the court" is called upon to determine the sentence, 3581, impose the sentence, 3582, include a term of supervised release, 3583, and determine whether the term is to run concurrently or consecutively in the case of multiple sentences, 3584, clearly points to the judge as the person who is to calculate credit, 3585, in the first instance. Congress could have made this perfectly clear by repeating the phrase "the court" in 3585, but that was made almost unnecessary by placing 3585 in a subchapter in which the court clearly had responsibility for every action that needed to be taken, but could also delegate actions to the appropriate authorities. II The Court's textual argument amounts to nothing more than an assertion that because sometimes all issues relating to the credit determination will not be ripe for decision at the time of sentencing, the trial court never has authority to make the credit determination even in cases that are ripe for decision.[11] Because this reasoning is so plainly flawed, the *344 Court's holding must rest on its understanding of the legislative history. The history on which the Court relies includes no relevant comments in the Committee Reports or the debates. It consists only of the fact that prior to 1987 the statute directed the Attorney General to make the credit determination. See ante, at 331-332. It seems to me, however, that that smidgen of history merely raises the issue without answering it. The fact that Congress carefully rewrote the relevant section in a way that makes the defendant's right significantly more valuable tends to support the conclusion that the changes in language were deliberate and should not be ignored. See Union ; United States Railroad Retirement Recognizing the district court's authority to enter an appropriate order at the conclusion of the sentencing hearing is entirely consistent with a congressional purpose to enhance the value of this right. III No statutory policy would be adversely affected by recognizing the district court's authority to make the initial credit determination in appropriate cases, and in fact, two important policies would be served. First, as the Court of Appeals for the Ninth Circuit has observed, see n. allowing the district court, in its discretion, to compute the credit when the sentence is imposed furthers the interest in providing prisoners with prompt, accurate, and precise information about the time they must spend in prison. This policy is expressly identified in the Senate Report describing *345 the value of a procedure "whereby the offender, the victim, and society all know the |
Justice Stevens | 1,992 | 16 | dissenting | United States v. Wilson | https://www.courtlistener.com/opinion/112711/united-states-v-wilson/ | "whereby the offender, the victim, and society all know the prison release date at the time of the initial sentencing by the court, subject to minor adjustments based on prison behavior called `good time.' " S. Rep. No. 98-225, p. 46 (1983).[12] Second, and of even greater importance, allowing the district court to make the credit determination furthers the interest in uniform and evenhanded sentencing that is the centerpiece of the entire Sentencing Reform Act of When there are disputed issues that must be resolved by a judge, an adversarial proceeding, in which the parties are represented by counsel and the proceeding takes place in open court and on the record, is the best guarantee of a fair and accurate decision.[13] The convicted defendant is represented by trial counsel at the time of sentencing, but usually must fend for himself after he is incarcerated. Committing the decision to the Attorney General after the defendant has begun to serve his sentence, particularly if he must serve his sentence in some facility remote from the district of conviction, can only minimize the effective participation of defense counsel. Indeed, it may generate meritless pro se claims for credit that could be avoided by prompt consideration at sentencing, as well as complicate and delay the disposition of meritorious claims. A flexible approach that allows the judge to decide when, and how, the credit determination *346 should be made is fully consistent with the purposes of the statute and with its text.[14] For the foregoing reasons, I would affirm the judgment of the Court of Appeals. |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | Vermont law restricts the sale, disclosure, and use of pharmacy records that reveal the prescribing practices of individual doctors. Vt. Stat. Ann., Tit. 18, Subject to certain exceptions, the information may not be sold, disclosed by pharmacies for marketing pur poses, or used for marketing by pharmaceutical manufac turers. Vermont argues that its prohibitions safeguard medical privacy and diminish the likelihood that market ing will lead to prescription decisions not in the best inter ests of patients or the State. It can be assumed that these interests are significant. Speech in aid of pharmaceutical marketing, however, is a form of expression protected by the Free Speech Clause of the First Amendment. As a consequence, Vermont’s statute must be subjected to heightened judicial scrutiny. The law cannot satisfy that standard. I A Pharmaceutical manufacturers promote their drugs to 2 SORRELL v. IMS HEALTH INC. Opinion of the Court doctors through a process called “detailing.” This often in- volves a scheduled visit to a doctor’s office to persuade the doctor to prescribe a particular pharmaceutical. De tailers bring drug samples as well as medical studies that explain the “details” and potential advantages of var ious prescription drugs. Interested physicians listen, ask questions, and receive followup data. Salespersons can be more effective when they know the background and pur chasing preferences of their clientele, and pharmaceutical salespersons are no exception. Knowledge of a physi- cian’s prescription practices—called “prescriber-identifying information”—enables a detailer better to ascertain which doctors are likely to be interested in a particular drug and how best to present a particular sales message. Detailing is an expensive undertaking, so pharmaceutical companies most often use it to promote high-profit brand-name drugs protected by patent. Once a brand-name drug’s patent expires, less expensive bioequivalent generic alternatives are manufactured and sold. Pharmacies, as a matter of business routine and federal law, receive prescriber-identifying information when proc essing prescriptions. See U.S. C. see also Vt. of Pharmacy Admin. Rule 9.1 (2009); Rule 9.2. Many pharmacies sell this information to “data miners,” firms that analyze prescriber-identifying information and produce reports on prescriber behavior. Data miners lease these reports to pharmaceutical manufacturers subject to nondisclosure agreements. Detailers, who represent the manufacturers, then use the reports to refine their mar keting tactics and increase sales. In 2007, Vermont enacted the Prescription Confidential ity Law. The measure is also referred to as Act 80. It has several components. The central provision of the present case is (d). “A health insurer, a self-insured employer, an elec Cite as: 564 U. S. (2011) 3 Opinion of the Court tronic transmission intermediary, a |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | (2011) 3 Opinion of the Court tronic transmission intermediary, a pharmacy, or other similar entity shall not sell, license, or exchange for value regulated records containing prescriber identifiable information, nor permit the use of regulated records containing prescriber-identifiable information for marketing or promoting a prescription drug, unless the prescriber consents Pharmaceu tical manufacturers and pharmaceutical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents” The quoted provision has three component parts. The provision begins by prohibiting pharmacies, health insur ers, and similar entities from selling prescriber-identifying information, absent the prescriber’s consent. The parties here dispute whether this clause applies to all sales or only to sales for marketing. The provision then goes on to prohibit pharmacies, health insurers, and similar enti- ties from allowing prescriber-identifying information to be used for marketing, unless the prescriber consents. This prohibition in effect bars pharmacies from disclosing the information for marketing purposes. Finally, the provi sion’s second sentence bars pharmaceutical manufacturers and pharmaceutical marketers from using prescriber identifying information for marketing, again absent the prescriber’s consent. The Vermont attorney general may pursue civil remedies against violators. (f). Separate statutory provisions elaborate the scope of the prohibitions set out in (d). “Marketing” is defined to include “advertising, promotion, or any activity” that is “used to influence sales or the market share of a prescrip tion drug.” (b)(5). Section 4631(c)(1) further pro vides that Vermont’s Department of Health must allow “a prescriber to give consent for his or her identifying infor mation to be used for the purposes” identified in (d). 4 SORRELL v. IMS HEALTH INC. Opinion of the Court Finally, the Act’s prohibitions on sale, disclosure, and use are subject to a list of exceptions. For example, prescriber identifying information may be disseminated or used for “health care research”; to enforce “compliance” with health insurance formularies, or preferred drug lists; for “care management educational communications provided to” pa tients on such matters as “treatment options”; for law enforcement operations; and for purposes “otherwise pro vided by law.” (e). Act 80 also authorized funds for an “evidence-based pre scription drug education program” designed to provide doctors and others with “information and education on the therapeutic and cost-effective utilization of prescription drugs.” An express aim of the program is to advise prescribers “about commonly used brand-name drugs for which the patent has expired” or will soon ex pire. Similar efforts to promote the use of generic pharmaceuticals are sometimes referred to as “counter-detailing.” App. 1; see also IMS Health Inc. v. (Lipez, J., concurring and dissenting). The counterdetailer’s |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | Health Inc. v. (Lipez, J., concurring and dissenting). The counterdetailer’s recommended substitute may be an older, less expensive drug and not a bioequivalent of the brand-name drug the physician might otherwise prescribe. Like the pharmaceutical manufac turers whose efforts they hope to resist, counterdetailers in some States use prescriber-identifying information to increase their effectiveness. States themselves may sup ply the prescriber-identifying information used in these programs. See App. 313; (“[W]e use the data given to us by the State of Pennsylvania to figure out which physicians to talk to”); see also 7–429 (Director of the Office of Vermont Health Access explain ing that the office collects prescriber-identifying informa tion but “does not at this point in time have a counter detailing or detailing effort”). As first enacted, Act 80 also required detailers to provide information about alternative Cite as: 564 U. S. (2011) 5 Opinion of the Court treatment options. The Vermont Legislature, however, later repealed that provision. Vt. Laws No. 89, Act 80 was accompanied by legislative findings. Vt. Acts No. 80, Vermont found, for example, that the “goals of marketing programs are often in conflict with the goals of the state” and that the “marketplace for ideas on medi cine safety and effectiveness is frequently one-sided in that brand-name companies invest in expensive pharmaceuti cal marketing campaigns to doctors.” (4). Detail ing, in the legislature’s view, caused doctors to make decisions based on “incomplete and biased information.” Because they “are unable to take the time to re search the quickly changing pharmaceutical market,” Vermont doctors “rely on information provided by phar maceutical representatives.” The legislature further found that detailing increases the cost of health care and health insurance, encourages hasty and excessive reliance on brand-name drugs, before the profes sion has observed their effectiveness as compared with older and less expensive generic alternatives, and fosters disruptive and repeated marketing visits tanta mount to harassment, The legislative find ings further noted that use of prescriber-identifying in formation “increase[s] the effect of detailing programs” by allowing detailers to target their visits to particular doctors. Use of prescriber-identifying data also helps detailers shape their messages by “tailoring” their “presentations to individual prescriber styles, preferences, and attitudes.” B The present case involves two consolidated suits. One was brought by three Vermont data miners, the other by an association of pharmaceutical manufacturers that produce brand-name drugs. These entities are the re spondents here. Contending that (d) violates their 6 SORRELL v. IMS HEALTH INC. Opinion of the Court First Amendment rights as incorporated by the Four teenth Amendment, the respondents sought declaratory and |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | by the Four teenth Amendment, the respondents sought declaratory and injunctive relief against the petitioners, the Attorney General and other officials of the State of Vermont. After a bench trial, the United States District Court for the District of Vermont denied relief. (2009). The District Court found that “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry” and that, because detailing unpatented generic drugs is not “cost-effective,” pharma ceutical sales representatives “detail only branded drugs.” As the District Court further con- cluded, “the Legislature’s determination that [prescriber identifying] data is an effective marketing tool that en ables detailers to increase sales of new drugs is supported in the record.” The United States Court of Appeals for the Second Circuit reversed and remanded. It held that (d) violates the First Amendment by bur dening the speech of pharmaceutical marketers and data miners without an adequate justification. Judge Livingston dissented. The decision of the Second Circuit is in conflict with de cisions of the United States Court of Appeals for the First Circuit concerning similar legislation enacted by Maine and New Hampshire. See IMS Health ; (New Hamp- shire). Recognizing a division of authority regarding the constitutionality of state statutes, this Court granted certiorari. 5 U. S. (2011). II The beginning point is the text of (d). In the pro- ceedings below, Vermont stated that the first sentence of (d) prohibits pharmacies and other regulated entities from selling or disseminating prescriber identifying information for marketing. The information, Cite as: 564 U. S. (2011) 7 Opinion of the Court in other words, could be sold or given away for purposes other than marketing. The District Court and the Court of Appeals accepted the State’s reading. See 630 F.3d, at 276. At oral argument in this Court, however, the State for the first time advanced an alternative reading of (d)—namely, that pharmacies, health insurers, and similar entities may not sell prescriber-identifying infor mation for any purpose, subject to the statutory exceptions set out at (e). See Tr. of Oral Arg. 19–20. It might be argued that the State’s newfound interpretation comes too late in the day. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (waiver); New Hampshire v. Maine, The respondents, the District Court, and the Court of Appeals were entitled to rely on the State’s plausible interpretation of the law it is charged with enforcing. For the State to change its position is particularly troubling in a First Amendment case, where plaintiffs have a special interest in obtaining a prompt adjudication of their rights, despite potential |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | in obtaining a prompt adjudication of their rights, despite potential ambiguities of state law. See ; Zwickler v. Koota, In any event, (d) cannot be sustained even under the interpretation the State now adopts. As a consequence this Court can assume that the opening clause of (d) prohibits pharmacies, health insurers, and similar entities from selling prescriber-identifying information, subject to the statutory exceptions set out at (e). Under that reading, pharmacies may sell the information to private or academic researchers, see (e)(1), but not, for exam ple, to pharmaceutical marketers. There is no dispute as to the remainder of (d). It prohibits pharmacies, health insurers, and similar entities from disclosing or otherwise allowing prescriber-identifying information to be used for marketing. And it bars pharmaceutical manu facturers and detailers from using the information for 8 SORRELL v. IMS HEALTH INC. Opinion of the Court marketing. The questions now are whether (d) must be tested by heightened judicial scrutiny and, if so, whether the State can justify the law. A 1 On its face, Vermont’s law enacts content- and speaker based restrictions on the sale, disclosure, and use of prescriber-identifying information. The provision first for bids sale subject to exceptions based in large part on the content of a purchaser’s speech. For example, those who wish to engage in certain “educational communications,” (e)(4), may purchase the information. The measure then bars any disclosure when recipient speakers will use the information for marketing. Finally, the provision’s second sentence prohibits pharmaceutical manufacturers from using the information for marketing. The statute thus disfavors marketing, that is, speech with a particular content. More than that, the statute disfavors specific speakers, namely pharmaceutical manufacturers. As a result of these content- and speaker-based rules, detailers cannot obtain prescriber-identifying information, even though the information may be purchased or acquired by other speakers with diverse purposes and viewpoints. Detailers are likewise barred from using the information for marketing, even though the information may be used by a wide range of other speakers. For example, it ap pears that Vermont could supply academic organizations with prescriber-identifying information to use in counter ing the messages of brand-name pharmaceutical manufac turers and in promoting the prescription of generic drugs. But (d) leaves detailers no means of purchasing, acquiring, or using prescriber-identifying information. The law on its face burdens disfavored speech by disfa vored speakers. Any doubt that (d) imposes an aimed, content Cite as: 564 U. S. (2011) 9 Opinion of the Court based burden on detailers is dispelled by the record and by formal legislative findings. As the District Court noted, “[p]harmaceutical |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | by formal legislative findings. As the District Court noted, “[p]harmaceutical manufacturers are essentially the only paying customers of the data vendor industry”; and the almost invariable rule is that detailing by pharmaceutical manufacturers is in support of brand-name drugs. 631 F. Supp. 2d, Vermont’s law thus has the effect of preventing detailers—and only detailers—from communi cating with physicians in an effective and informative manner. Cf. (explaining the “considerable value” of in-person solicita tion). Formal legislative findings accompanying (d) confirm that the law’s express purpose and practical effect are to diminish the effectiveness of marketing by manu facturers of brand-name drugs. Just as the “inevitable effect of a statute on its face may render it unconstitu tional,” a statute’s stated purposes may also be considered. United 3 U.S. 367, Here, the Vermont Legislature explained that detailers, in particular those who promote brand-name drugs, convey messages that “are often in conflict with the goals of the state.” 2007 Vt. No. 80, The legislature designed (d) to target those speakers and their messages for disfavored treatment. “In its practical operation,” Ver mont’s law “goes even beyond mere content discrimina tion, to actual viewpoint discrimination.” R. A. V. v. St. Paul, 3 Given the legislature’s expressed statement of purpose, it is apparent that (d) imposes burdens that are based on the content of speech and that are aimed at a particular viewpoint. Act 80 is designed to impose a specific, content-based burden on protected expression. It follows that heightened judicial scrutiny is warranted. See (applying height ened scrutiny to “a categorical prohibition on the use of newsracks to disseminate commercial messages”); at 10 SORRELL v. IMS HEALTH INC. Opinion of the Court 429 (“[T]he very basis for the regulation is the difference in content between ordinary newspapers and commercial speech” in the form of “commercial handbills Thus, by any commonsense understanding of the term, the ban in this case is ‘content based’ ” (some internal quotation marks omitted)); see also Turner System, (explaining that strict scrutiny applies to regulations reflecting “aversion” to what “disfavored speakers” have to say). The Court has recognized that the “distinction between laws burdening and laws banning speech is but a matter of degree” and that the “Government’s content-based burdens must sat isfy the same rigorous scrutiny as its content-based bans.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 812 (2000). Lawmakers may no more silence unwanted speech by burdening its utterance than by cen soring its content. See Simon & Schuster, 115 (19) (content-based financial burden); Minneapolis Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | Star & Tribune Co. v. Minnesota Comm’r of Revenue, 460 U.S. 575 (speaker-based financial burden). The First Amendment requires heightened scrutiny whenever the government creates “a regulation of speech because of disagreement with the message it conveys.” 4 U.S. 781, 7 ; see also (1986) (explaining that “ ‘content-neutral’ speech regula tions” are “those that are justified without reference to the content of the regulated speech” (internal quotation marks omitted)). A government bent on frustrating an impend ing demonstration might pass a law demanding two years’ notice before the issuance of parade permits. Even if the hypothetical measure on its face appeared neutral as to content and speaker, its purpose to suppress speech and its unjustified burdens on expression would render it unconstitutional. Commercial speech is no excep Cite as: 564 U. S. (2011) 11 Opinion of the Court tion. See Discovery 9–430 (commer cial speech restriction lacking a “neutral justification” was not content neutral). A “consumer’s concern for the free flow of commercial speech often may be far keener than his concern for urgent political dialogue.” That reality has great relevance in the fields of medicine and public health, where information can save lives. 2 The State argues that heightened judicial scrutiny is unwarranted because its law is a mere commercial regula tion. It is true that restrictions on protected expression are distinct from restrictions on economic activity or, more generally, on nonexpressive conduct. It is also true that the First Amendment does not prevent restrictions di rected at commerce or conduct from imposing inciden tal burdens on speech. That is why a ban on race-based hiring may require employers to remove “ ‘White Appli cants Only’ ” signs, ; why “an ordinance against outdoor fires” might forbid “burning a flag,” R. A. V., ; and why antitrust laws can prohibit “agreements in restraint of trade,” Giboney v. Empire Storage & Ice Co., But (d) imposes more than an incidental burden on protected expression. Both on its face and in its practi cal operation, Vermont’s law imposes a burden based on the content of speech and the identity of the speaker. See at 8–11. While the burdened speech results from an economic motive, so too does a great deal of vital ex pression. See (15); New York Times (1964); see also United States v. United Foods, Inc., 533 U.S. 405, 410–411 (applying “First Amendment scrutiny” where speech effects were not incidental and 12 SORRELL v. IMS HEALTH INC. Opinion of the Court noting that “those whose business and livelihood depend in some way upon the product involved no doubt |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | depend in some way upon the product involved no doubt deem First Amendment protection to be just as important for them as it is for other discrete, little noticed groups”). Vermont’s law does not simply have an effect on speech, but is directed at certain content and is aimed at particu lar speakers. The Constitution “does not enact Mr. Her bert Spencer’s Social Statics.” Lochner v. New York, 198 U.S. 45, 75 (1905) (Holmes, J., dissenting). It does enact the First Amendment. Vermont further argues that (d) regulates not speech but simply access to information. Prescriber identifying information was generated in compliance with a legal mandate, the State argues, and so could be consid ered a kind of governmental information. This argument finds some support in Los Angeles Police where the Court held that a plaintiff could not raise a facial chal lenge to a content-based restriction on access to government- held information. Because no private party faced a threat of legal punishment, the Court characterized the law at issue as “nothing more than a governmental denial of access to information in its possession.” Under those circumstances the special reasons for permit ting First Amendment plaintiffs to invoke the rights of others did not apply. at 38–39. Having found that the plaintiff could not raise a facial challenge, the Court re manded for consideration of an as-applied challenge. at 41. United Reporting is thus a case about the availabil ity of facial challenges. The Court did not rule on the merits of any First Amendment claim. United Reporting is distinguishable in at least two respects. First, Vermont has imposed a restriction on access to information in private hands. This confronts the Court with a point reserved, and a situation not ad dressed, in United Reporting. Here, unlike in United Cite as: 564 U. S. (2011) 13 Opinion of the Court Reporting, we do have “a case in which the government is prohibiting a speaker from conveying information that the speaker already possesses.” The difference is significant. An individual’s right to speak is implicated when information he or she possesses is subjected to “re straints on the way in which the information might be used” or disseminated. Seattle Times ; see also v. Vopper, 5 U.S. 514, 527 ; Florida Star v. B. J. F., 4 U.S. 524 ; New York Times Co. v. United States, 403 U.S. 713 (11) (per curiam). In Seattle Times, this Court applied heightened judicial scrutiny before sustaining a trial court order prohibiting a newspaper’s disclosure of information it learned through coercive discovery. It is true |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | of information it learned through coercive discovery. It is true that the respondents here, unlike the newspaper in Seattle Times, do not themselves possess information whose disclosure has been curtailed. That information, however, is in the hands of pharmacies and other private entities. There is no question that the “threat of prosecu tion hangs over their heads.” United Reporting, 528 U.S., at 41. For that reason United Reporting does not bar respondents’ facial challenge. United Reporting is distinguishable for a second and even more important reason. The plaintiff in United Reporting had neither “attempt[ed] to qualify” for access to the government’s information nor presented an as-applied claim in this Court. As a result, the Court assumed that the plaintiff had not suffered a personal First Amendment injury and could prevail only by invok ing the rights of others through a facial challenge. Here, by contrast, the respondents claim—with good reason— that (d) burdens their own speech. That argument finds support in the separate writings in United Report ing, which were joined by eight Justices. All of those writings recognized that restrictions on the disclosure of government-held information can facilitate or burden the 14 SORRELL v. IMS HEALTH INC. Opinion of the Court expression of potential recipients and so transgress the First Amendment. See (suggesting that “a restriction upon access that allows access to the press but at the same time denies access to persons who wish to use the information for certain speech purposes, is in reality a restriction upon speech”); (noting that “the provision of [government] information is a kind of subsidy to people who wish to speak” about certain subjects, “and once a State decides to make such a benefit available to the public, there are no doubt limits to its freedom to decide how that benefit will be distributed”); (Stevens, J., dissenting) (concluding that, “because the State’s discrimination is based on its desire to prevent the information from being used for constitutionally protected purposes, [i]t must assume the burden of justifying its conduct”). Vermont’s law imposes a content- and speaker based burden on respondents’ own speech. That consid eration provides a separate basis for distinguishing United Reporting and requires heightened judicial scrutiny. The State also contends that heightened judicial scru tiny is unwarranted in this case because sales, transfer, and use of prescriber-identifying information are conduct, not speech. Consistent with that submission, the United States Court of Appeals for the First Circuit has charac terized prescriber-identifying information as a mere “com modity” with no greater entitlement to First Amend- ment protection than “beef jerky.” 550 F.3d, at |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | First Amend- ment protection than “beef jerky.” 550 F.3d, at 52–53. In contrast the courts below concluded that a prohibition on the sale of prescriber-identifying informa tion is a content-based rule akin to a ban on the sale of cookbooks, laboratory results, or train schedules. See 630 F.3d, at 271–2 (“The First Amendment protects even dry information, devoid of advocacy, political relevance, or artistic expression” (internal quotation marks and altera tion omitted)); (“A restriction on Cite as: 564 U. S. (2011) 15 Opinion of the Court disclosure is a regulation of speech, and the ‘sale’ of [in formation] is simply disclosure for profit”). This Court has held that the creation and dissemination of information are speech within the meaning of the First Amendment. See, e.g., (“[I]f the acts of ‘disclosing’ and ‘publishing’ information do not constitute speech, it is hard to imagine what does fall within that category, as distinct from the category of expressive conduct” (some internal quotation marks omit ted)); 1 (1995) (“information on beer labels” is speech); Dun & Bradstreet, 4 U.S. 759 (1985) (plurality opinion) (credit report is “speech”). Facts, after all, are the beginning point for much of the speech that is most essential to advance human knowl edge and to conduct human affairs. There is thus a strong argument that prescriber-identifying information is speech for First Amendment purposes. The State asks for an exception to the rule that informa tion is speech, but there is no need to consider that re quest in this case. The State has imposed content- and speaker-based restrictions on the availability and use of prescriber-identifying information. So long as they do not engage in marketing, many speakers can obtain and use the information. But detailers cannot. Vermont’s statute could be compared with a law prohibiting trade magazines from purchasing or using ink. Cf. Minneapolis Star, 460 U.S. 575. Like that hypothetical law, (d) imposes a speaker- and content-based burden on protected expres sion, and that circumstance is sufficient to justify applica tion of heightened scrutiny. As a consequence, this case can be resolved even assuming, as the State argues, that prescriber-identifying information is a mere commodity. B In the ordinary case it is all but dispositive to conclude 16 SORRELL v. IMS HEALTH INC. Opinion of the Court that a law is content-based and, in practice, viewpoint discriminatory. See R. A. V., (“Content based regulations are presumptively invalid”); at 3– 392. The State argues that a different analysis applies here because, assuming (d) burdens speech at all, it at most burdens only commercial speech. As in previous cases, however, |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | most burdens only commercial speech. As in previous cases, however, the outcome is the same whether a special commercial speech inquiry or a stricter form of judicial scrutiny is applied. See, e.g., Greater New Orleans Broad casting Assn., For the same reason there is no need to determine whether all speech hampered by (d) is commercial, as our cases have used that term. Cf. Board of Trustees of State Univ. of N. (discussing whether “pure speech and commercial speech” were inextricably intertwined, so that “the entirety must be classified as noncommercial”). Under a commercial speech inquiry, it is the State’s burden to justify its content-based law as consistent with the First Amendment. To sustain the targeted, content-based burden (d) imposes on pro tected expression, the State must show at least that the statute directly advances a substantial governmental in terest and that the measure is drawn to achieve that interest. See at 0–1; Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n of N. Y., 447 U.S. 557, 566 (1980). There must be a “fit between the legisla ture’s ends and the means chosen to accomplish those ends.” at 0 (internal quotation marks omit ted). As in other contexts, these standards ensure not only that the State’s interests are proportional to the result- ing burdens placed on speech but also that the law does not seek to suppress a disfavored message. See Turner 512 U.S., at 6–663. The State’s asserted justifications for (d) come Cite as: 564 U. S. (2011) 17 Opinion of the Court under two general headings. First, the State contends that its law is necessary to protect medical privacy, includ ing physician confidentiality, avoidance of harassment, and the integrity of the doctor-patient relationship. Sec ond, the State argues that (d) is integral to the achievement of policy objectives—namely, improved public health and reduced healthcare costs. Neither justification withstands scrutiny. 1 Vermont argues that its physicians have a “reasonable expectation” that their prescriber-identifying information “will not be used for purposes other than filling and processing” prescriptions. See 2007 Vt. Laws No. 80, It may be assumed that, for many reasons, physi cians have an interest in keeping their prescription deci sions confidential. But (d) is not drawn to serve that interest. Under Vermont’s law, pharmacies may share prescriber-identifying information with anyone for any rea son save one: They must not allow the information to be used for marketing. Exceptions further allow pharma cies to sell prescriber-identifying information for certain purposes, including “health care research.” (e). And the measure permits insurers, researchers, journalists, the State itself, and others |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | measure permits insurers, researchers, journalists, the State itself, and others to use the information. See (d); cf. App. 370–3; All but conceding that (d) does not in itself advance confidentiality interests, the State suggests that other laws might impose separate bars on the disclosure of prescriber-identifying information. See Vt. of Pharmacy Admin. Rule 20.1. But the potential effectiveness of other measures cannot justify the distinctive set of prohibitions and sanctions imposed by (d). Perhaps the State could have addressed physician confi dentiality through “a more coherent policy.” Greater New Orleans ; see also Discovery 18 SORRELL v. IMS HEALTH INC. Opinion of the Court 507 U.S., 8. For instance, the State might have advanced its asserted privacy interest by allowing the information’s sale or disclosure in only a few narrow and well-justified circumstances. See, e.g., Health In surance Portability and Accountability Act of 1996, 42 U.S. C. §10d–2; 45 CFR pts. 160 and 164 A statute of that type would present quite a different case than the one presented here. But the State did not enact a statute with that purpose or design. Instead, Vermont made prescriber-identifying information available to an almost limitless audience. The explicit structure of the statute allows the information to be studied and used by all but a narrow class of disfavored speakers. Given the information’s widespread availability and many permissi ble uses, the State’s asserted interest in physician confi dentiality does not justify the burden that (d) places on protected expression. The State points out that it allows doctors to forgo the advantages of (d) by consenting to the sale, disclo sure, and use of their prescriber-identifying information. See (c)(1). It is true that private decisionmaking can avoid governmental partiality and thus insulate privacy measures from First Amendment challenge. See v. Post Office Dept., ; cf. But that principle is inapposite here. Vermont has given its doctors a contrived choice: Either consent, which will allow your prescriber-identifying information to be disseminated and used without constraint; or, withhold consent, which will allow your information to be used by those speakers whose message the State supports. Section 4631(d) may offer a limited degree of privacy, but only on terms favorable to the speech the State prefers. Cf. 737, 739, n. 6 (sustaining a law that allowed private par ties to make “unfettered,” “unlimited,” and “unreviewable” choices regarding their own privacy). This is not to say Cite as: 564 U. S. (2011) 19 Opinion of the Court that all privacy measures must avoid content-based rules. Here, however, the State has conditioned privacy on ac ceptance of a content-based |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | State has conditioned privacy on ac ceptance of a content-based rule that is not drawn to serve the State’s asserted interest. To obtain the limited privacy allowed by (d), Vermont physicians are forced to acquiesce in the State’s goal of burdening disfavored speech by disfavored speakers. Respondents suggest that a further defect of (d) lies in its presumption of applicability absent a physician’s election to the contrary. Vermont’s law might burden less speech if it came into operation only after an individual choice, but a revision to that effect would not necessarily save (d). Even reliance on a prior election would not suffice, for instance, if available categories of coverage by design favored speakers of one political persuasion over another. Rules that burden protected expression may not be sustained when the options provided by the State are too narrow to advance legitimate interests or too broad to protect speech. As already explained, (d) permits extensive use of prescriber-identifying information and so does not advance the State’s asserted interest in physician confidentiality. The limited range of available privacy options instead reflects the State’s impermissible purpose to burden disfavored speech. Vermont’s argument accord ingly fails, even if the availability and scope of private election might be relevant in other contexts, as when the statute’s design is unrelated to any purpose to advance a preferred message. The State also contends that (d) protects doctors from “harassing sales behaviors.” 2007 Vt. Laws No. 80, “Some doctors in Vermont are experiencing an undesired increase in the aggressiveness of pharmaceuti cal sales representatives,” the Vermont Legislature found, “and a few have reported that they felt coerced and har assed.” It is doubtful that concern for “a few” physicians who may have “felt coerced and harassed” by 20 SORRELL v. IMS HEALTH INC. Opinion of the Court pharmaceutical marketers can sustain a broad content based rule like (d). Many are those who must en dure speech they do not like, but that is a necessary cost of freedom. See 0–1 (15); (11). In any event the State offers no explanation why remedies other than content-based rules would be inade quate. See 44 Inc. v. Rhode Island, 517 U.S. 4, 503 (1996) (opinion of Stevens, J.). Physicians can, and often do, simply decline to meet with detailers, includ ing detailers who use prescriber-identifying information. See, e.g., App. 180, 333–334. Doctors who wish to forgo detailing altogether are free to give “No Solicitation” or “No Detailing” instructions to their office managers or to receptionists at their places of work. Personal privacy even in one’s own home receives “ample protection” |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | Personal privacy even in one’s own home receives “ample protection” from the “resident’s unquestioned right to refuse to engage in conversation with unwelcome visitors.” Watchtower Bible & Tract Soc. of N. Y., Inc. v. Village of Stratton, 536 U.S. 150, 168 ; see also at A physi cian’s office is no more private and is entitled to no greater protection. Vermont argues that detailers’ use of prescriber identifying information undermines the doctor-patient relationship by allowing detailers to influence treatment decisions. According to the State, “unwanted pressure occurs” when doctors learn that their prescription deci sions are being “monitored” by detailers. 2007 Vt. Laws No. 80, Some physicians accuse detailers of “spy ing” or of engaging in “underhanded” conduct in order to “subvert” prescription decisions. App. 336, 380, 407–408; see also at 6–8. And Vermont claims that detail ing makes people “anxious” about whether doctors have their patients’ best interests at heart. at 7. But the State does not explain why detailers’ use of prescriber identifying information is more likely to prompt these Cite as: 564 U. S. (2011) Opinion of the Court objections than many other uses permitted by (d). In any event, this asserted interest is contrary to basic First Amendment principles. Speech remains protected even when it may “stir people to action,” “move them to tears,” or “inflict great pain.” Snyder v. Phelps, 5 U. S. (2011) (slip op., at 15). The more benign and, many would say, beneficial speech of pharmaceutical marketing is also entitled to the protection of the First Amendment. If pharmaceutical marketing affects treat ment decisions, it does so because doctors find it persua sive. Absent circumstances far from those presented here, the fear that speech might persuade provides no lawful basis for quieting it. 447 (1969) (per curiam). 2 The State contends that (d) advances impor- tant public policy goals by lowering the costs of medical services and promoting public health. If prescriber identifying information were available for use by detailers, the State contends, then detailing would be effective in promoting brand-name drugs that are more expensive and less safe than generic alternatives. This logic is set out at length in the legislative findings accompanying (d). Yet at oral argument here, the State declined to acknowl edge that (d)’s objective purpose and practical effect were to inhibit detailing and alter doctors’ prescription decisions. See Tr. of Oral Arg. 5–6. The State’s reluctance to embrace its own legislature’s rationale reflects the vulnerability of its position. While Vermont’s stated policy goals may be proper, (d) does not advance them in a permissible way. As the |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | does not advance them in a permissible way. As the Court of Appeals noted, the “state’s own explanation of how” (d) “advances its interests cannot be said to be direct.” The State seeks to achieve its policy objectives through the indirect means of restraining 22 SORRELL v. IMS HEALTH INC. Opinion of the Court certain speech by certain speakers—that is, by diminish ing detailers’ ability to influence prescription decisions. Those who seek to censor or burden free expression often assert that disfavored speech has adverse effects. But the “fear that people would make bad decisions if given truth ful information” cannot justify content-based burdens on speech. U.S., at 374; see also Virginia of 425 U.S. 7, “The First Amendment directs us to be especially skeptical of regulations that seek to keep people in the dark for what the government perceives to be their own good.” 44 at 503 (opinion of Stevens, J.); see also Associates, These pre cepts apply with full force when the audience, in this case prescribing physicians, consists of “sophisticated and experienced” consumers. As Vermont’s legislative findings acknowledge, the prem- ise of (d) is that the force of speech can justify the government’s attempts to stifle it. Indeed the State defends the law by insisting that “pharmaceutical market ing has a strong influence on doctors’ prescribing prac tices.” Brief for Petitioners 49–50. This reasoning is incompatible with the First Amendment. In an attempt to reverse a disfavored trend in public opinion, a State could not ban campaigning with slogans, picketing with signs, or marching during the daytime. Likewise the State may not seek to remove a popular but disfavored product from the marketplace by prohibiting truthful, nonmisleading adver tisements that contain impressive endorsements or catchy jingles. That the State finds expression too persuasive does not permit it to quiet the speech or to burden its messengers. The defect in Vermont’s law is made clear by the fact that many listeners find detailing instructive. Indeed the record demonstrates that some Vermont doctors view Cite as: 564 U. S. (2011) 23 Opinion of the Court targeted detailing based on prescriber-identifying infor mation as “very helpful” because it allows detailers to shape their messages to each doctor’s practice. App. 274; see also at 181, 8, 271–2. Even the United States, which appeared here in support of Vermont, took care to dispute the State’s “unwarranted view that the dangers of [n]ew drugs outweigh their benefits to patients.” Brief for United States as Amicus Curiae 24, n. 4. There are di vergent views regarding detailing and the prescription of brand-name drugs. Under |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | views regarding detailing and the prescription of brand-name drugs. Under the Constitution, resolution of that debate must result from free and uninhibited speech. As one Vermont physician put it: “We have a saying in medicine, information is power. And the more you know, or anyone knows, the better decisions can be made.” App. 279. There are similar sayings in law, including that “information is not in itself harmful, that people will perceive their own best interests if only they are well enough informed, and that the best means to that end is to open the channels of communication rather than to close them.” Virginia The choice “between the dangers of suppressing information, and the dangers of its misuse if it is freely available” is one that “the First Amendment makes for us.” Vermont may be displeased that detailers who use prescriber-identifying information are effective in promot ing brand-name drugs. The State can express that view through its own speech. See 431 U.S., at ; cf. §42(a)(1) (establishing a prescription drug educational program). But a State’s failure to persuade does not allow it to hamstring the opposition. The State may not burden the speech of others in order to tilt public debate in a preferred direction. “The commercial marketplace, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not 24 SORRELL v. IMS HEALTH INC. Opinion of the Court the government, assess the value of the information pre sented.” It is true that content-based restrictions on protected expression are sometimes permissible, and that principle applies to commercial speech. Indeed the government’s legitimate interest in protecting consumers from “commer cial harms” explains “why commercial speech can be sub ject to greater governmental regulation than noncommer cial speech.” Discovery 507 U.S., 6; see also 44 517 U. S., (opinion of Stevens, J.). The Court has noted, for example, that “a State may choose to regulate price advertising in one industry but not in oth ers, because the risk of fraud is in its view greater there.” R. A. V., –389 (citing Virginia at 771–7). Here, however, Vermont has not shown that its law has a neutral justification. The State nowhere contends that detailing is false or misleading within the meaning of this Court’s First Amendment precedents. See U.S., at Nor does the State argue that the provision challenged here will prevent false or misleading speech. Cf. post, at 10–11 (BREYER, J., dissenting) |
Justice Kennedy | 2,011 | 4 | majority | Sorrell v. IMS Health Inc. | https://www.courtlistener.com/opinion/219511/sorrell-v-ims-health-inc/ | or misleading speech. Cf. post, at 10–11 (BREYER, J., dissenting) (collecting regulations that the government might defend on this ground). The State’s interest in burdening the speech of detailers instead turns on nothing more than a difference of opinion. See ; * * * The capacity of technology to find and publish personal information, including records required by the govern ment, presents serious and unresolved issues with respect to personal privacy and the dignity it seeks to secure. In considering how to protect those interests, however, the State cannot engage in content-based discrimination to advance its own side of a debate. If Vermont’s statute provided that prescriber-identifying Cite as: 564 U. S. (2011) 25 Opinion of the Court information could not be sold or disclosed except in narrow circumstances then the State might have a stronger posi tion. Here, however, the State gives possessors of the information broad discretion and wide latitude in disclos ing the information, while at the same time restricting the information’s use by some speakers and for some pur poses, even while the State itself can use the information to counter the speech it seeks to suppress. Privacy is a concept too integral to the person and a right too essential to freedom to allow its manipulation to support just those ideas the government prefers. When it enacted (d), the Vermont Legislature found that the “marketplace for ideas on medicine safety and effectiveness is frequently one-sided in that brand name companies invest in expensive pharmaceutical mar keting campaigns to doctors.” 2007 Vt. Laws No. 80, “The goals of marketing programs,” the legislature said, “are often in conflict with the goals of the state.” The text of (d), associated legislative findings, and the record developed in the District Court establish that Vermont enacted its law for this end. The State has burdened a form of protected expression that it found too persuasive. At the same time, the State has left unbur dened those speakers whose messages are in accord with its own views. This the State cannot do. The judgment of the Court of Appeals is affirmed. It is so ordered. Cite as: 564 U. S. (2011) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 10–779 WILLIAM H. SORRELL, ATTORNEY GENERAL OF VERMONT, ET AL., PETITIONERS v. IMS HEALTH INC. ET AL. |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | In this original action we revisit the dispute among Nebraska, and the United over water rights to the North Platte River. In 1945, this Court entered a decree establishing interstate priorities on the North Platte and apportioning the natural flow of one critical portion of the river during the irrigation season. Nebraska returned to the Court in 1986 seeking an order for enforcement of the decree and injunctive relief. A Special Master, appointed by the Court, has supervised pretrial proceedings and discovery since 1987. Before us now are the Special Master's recommended dispositions of several summary judgment motions, together with exceptions filed to the Special Master's reports. I The North Platte River rises in northern and flows through into Nebraska, where it joins the South Platte River. The topology of the river and the history of its early development are described at length in the Court's 1945 opinion. See 325 U. S. *588 589, 592-599. In 1934, Nebraska, invoking this Court's original jurisdiction under Article III, 2,of the Constitution, brought an action against seeking an equitable apportionment of the North Platte. was impleaded as a defendant, and the United intervened. After 11 years of litigation, the Court imposed restrictions on storage and diversion by the upstream -625, established priorities among federal storage reservoirs and certain canals, and apportioned the so-called "pivotal" reach of the North Platte between Whalen, and the Tri-State Dam. The natural irrigation-season flows in that section of the river were apportioned 75% to Nebraska and 25% to The Court directed the parties to formulate a decree to implement its decision. See The resulting decree included a "reopener" provision, Paragraph XIII, that states, in relevant part: "Any of the parties may apply at the foot of this decree for its amendment or for further relief. The Court retains jurisdiction of this suit for the purpose of any order, direction, or modification of the decree, or any supplementary decree, that may at any time be deemed proper in relation to the subject matter in controversy. Matters with reference to which further relief may hereafter be sought shall include, but shall not be limited to, the following: "(c) The question of the effect of the construction or threatened construction of storage capacity not now existing on tributaries entering the North Platte River between Pathfinder Reservoir and Guernsey Reservoir;. "(f) Any change in conditions making modification of the decree or the granting of further relief necessary or appropriate." *589 Paragraph XIII reflects the Court's observation that the decree is designed to "deal with conditions as they obtain today" and that it |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | "deal with conditions as they obtain today" and that it "can be adjusted to meetnew conditions." The Court noted in more than one place in its opinion the need to retain jurisdiction to modify the decree in light of substantial changes in supply, threatened future development, or circumvention of the decree. See, e. g., Since it was entered, the decree already has been modified once, pursuant to the parties' stipulation, to account for construction of a new reservoir. See In 1986, Nebraska petitioned the Court for relief under Paragraph XIII. Nebraska alleged that was violating or threatening to violate the decree by virtue of developments on two North Platte tributaries, Deer Creek and the Laramie River. Nebraska also objected to certain actions taken by with respect to the Inland Lakes in Nebraska. We granted Nebraska leave to file the petition. answered and counterclaimed, arguing, essentially, that Nebraska was circumventing the decree by demanding and diverting water from above the Tri-State Dam for uses below Tri-State that are not recognized in the decree. After we referred the matter to Special Master Owen Olpin, moved for summary judgment. In his First Interim Report, the Master explained his decision to deny the motion but leave open the possibility of summary adjudication following further factual findings. See First Interim Report (June 14, 1989). An intensive period of discovery followed. All four parties then moved for summary judgment on one or more issues. A year later, the Special Master filed a Second Interim Report. See Second Interim Report on Motions for Summary Judgment and Renewed Motions for Intervention (Apr. 9, 1992) (hereinafter Second Interim Report). The Master recommended that the Court deny the intervention motions of certain amici. No exceptions have been filed to this recommendation, and *590 we adopt it. The Master also recommended that the Court grant summary judgment to Nebraska and the United on the Inland Lakes issue, grant partial summary judgment to Nebraska on a discrete question related to the below TriState issues, and deny summary judgment on the remaining issues. Exceptions have been filed by Nebraska, and amicus Basin Electric Power Cooperative (Basin). The United has filed a brief opposing the exceptions. We agree with the Master's recommended dispositions of the summary judgment motions and accordingly overrule the exceptions. II At the outset we consider the legal principles governing the case. The parties do not challenge the summary judgment standards applied by the Special Master. The Master correctly observed that, although not strictly applicable, Rule 56(c) of the Federal Rules of Civil Procedure and our precedents construing that Rule serve |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | of Civil Procedure and our precedents construing that Rule serve as useful guides. See this Court's Rule 17.2. Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. Rule Civ. Proc. 56(c). When the nonmoving party bears the burden of proof at trial, summary judgment is warranted if the nonmovant fails to "make a showing sufficient to establish the existence of an element essential to [its] case." Celotex In determining whether a material factual dispute exists, the Court views the evidence through the prism of the controlling legal standard. Anderson v.Liberty Lobby, Inc., The disagreement in this case centers on the applicable legal standards. The question is whether these proceedings involve an application for enforcement of rights already recognized in the decree, or whether Nebraska seeks a modification of the decree. According to although the Court has jurisdiction to modify the decree under Paragraph *591 XIII, Nebraska obtained leave to file its petition on the assurance that the case would involve only enforcement of existing rights. In 's view, Nebraska subsequently, and improperly, transformed the case into a request for recognition of new rightsin essence, into a request for another equitable apportionment. If Nebraska is allowed to argue for modification of the decree, and amicus Basin maintain, the same high evidentiary threshold applicable to claims for new apportionments applies. Under that standard, Nebraska can prevail only upon proof "by clear and convincing evidence" of "some real and substantial injury or damage." Idaho ex rel. Accord, ; We do not read the pleadings as narrowly as does Nebraska's petition and supporting briefs do contain ambiguous language. See, e. g., Petition for an Order Enforcing Decree and for Injunctive Relief 2 (hereinafter Petition) (alleging that 's actions violate the apportionment already "established in the Decree"); Reply to 's Brief in Opposition to Motion for Leave to File Petition 2 (Jan. 14, 1987) ("We do not propose to litigate anything new, but simply to protect what the Court has already decided"). But Nebraska also expressly invoked Paragraph XIII, and particularly subparagraphs (c) and (f). See Petition 3. As we have said, the Court in those sections retained jurisdiction to modify the decree to answer unresolved questions and to accommodate "change[s] in conditions"a phrase sufficiently broad to encompass not only changes in water supply, see, e. g., 325 U. S., but also new development that threatens a party's interests. Furthermore, nothing would prevent Nebraska from submitting a new petition if we deemed the original one deficient. We |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | new petition if we deemed the original one deficient. We therefore decline the invitation, at this late date, to restrict the scope of the litigation *592 solely to enforcement of rights determined in the prior proceedings. At the same time, we find merit in 's contention that, to the extent Nebraska seeks modification of the decree rather than enforcement, a higher standard of proof applies. The two types of proceeding are markedly different. In an enforcement action, the plaintiff need not show injury. See, e. g., v. When the alleged conduct is admitted, the only question is whether that conduct violates a right established by the decree. To be sure, the right need not be stated explicitly in the decree. As the Master recognized, when the decree is silent or unclear, it is appropriate to consider the underlying opinion, the Master's Report, and the record in the prior proceedings to determine whether the Court previously resolved the issue. See, e. g., v. The parties' course of conduct under the decree also may be relevant. But the underlying issue primarily remains one of interpretation. In a modification proceeding, by contrast, there is by definition no pre-existing right to interpret or enforce. At least where the case concerns the impact of new development, the inquiry may well entail the same sort of balancing of equities that occurs in an initial proceeding to establish an equitable apportionment. See As discussed below, we believe that the Inland Lakes question is fairly characterized as an enforcement issue. The claims regarding tributary development, however, raise questions not decided in the original proceedings and therefore may be best understood as requests for modification of the decree. The question remains what evidentiary standard applies to such claims. The Master evidently thought the high standard advocated by inapplicable because this is not a case in which the Court is asked to interfere *593 with state sovereign interests "in the first instance." Second Interim Report 13. We disagree with the Master to this extent. Paragraph XIII perhaps eases a plaintiff's burden of establishing, as an initial matter, that a claim falling within its purview is "of that character and dignity which makes the controversy a justiciable one under our original jurisdiction." After all, a variety of changed conditions may "promis[e] to disturb the delicate balance of the river" created by the decree. But when the plaintiff essentially seeks a reweighing of equities and an injunction declaring new rights and responsibilities, we think the plaintiff still must make a showing of substantial injury to be entitled to relief. That is so |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | substantial injury to be entitled to relief. That is so not only because a new injunction would work a new infringement on sovereign prerogatives, but also because the interests of certainty and stability counsel strongly against reopening an apportionment of interstate water rights absent considerable justification. Cf. III With these principles in mind, we turn to the summary judgment motions. To the extent that we agree with the Master, we have found it unnecessary to repeat in detail his careful evaluation of the voluminous evidence. A The Inland Lakes are four off-channel reservoirs in Nebraska served by the Interstate Canal, which diverts from the North Platte at Whalen, Both the Inland Lakes and the Interstate Canal are part of the North Platte Project, a series of reservoirs and canals operated by the United Bureau of Reclamation (Bureau). Since 1913, the Bureau has diverted water through the Interstate Canal for storage in the Inland Lakes during nonirrigation months *594 for release to Nebraska users during the irrigation season. Due to icing conditions on the Interstate Canal during the winter, the Bureau also temporarily has stored water destined for the Inland Lakes in the Guernsey and Glendo Reservoirs. It appears that the Inland Lakes always have been operated with the December 6, 1904, priority date that recognizes for other original components of the North Platte Project, even though the Bureau never obtained a separate storage permit for the Inland Lakes. In 1986, however, sued the Bureau in state court, seeking to enjoin the Bureau from storing water in the Inland Lakes without a state permit and out of priority with other users. (The action was subsequently removed to Federal District Court and dismissed without prejudice.) As the Master indicated, there is some reason to think that wished to establish a post-1986 priority date for the Inland Lakes in order to increase the amount of North Platte water available for the new project on Deer Creek. At any rate, Nebraska (which was not a party to the lawsuit) challenged 's actions in its petition to this Court. Nebraska and the United moved for summary judgment, seeking determinations that the decree entitles the Bureau to continue its longstanding diversion and storage practices and that the Inland Lakes have a priority date of December 6, 1904. moved for partial summary judgment that the Inland Lakes do not have storage rights under either state law or the decree. The Special Master recommended that we grant the motions of Nebraska and the United and deny 's motion. That the Bureau lacks a separate permit for the Inland |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | That the Bureau lacks a separate permit for the Inland Lakes, he reasoned, is immaterial because the question of the Inland Lakes' priority was determined in the original proceedings. The decree did not explicitly establish the Inland Lakes' priority. But it is undisputed that the Court *595 recognized a right to store 46,000 acre-feet of water in the Inland Lakes and, at 's suggestion, counted that amount to reduce Nebraska's requirement of natural flows in the pivotal reach. See Report of Michael J. Doherty, Special Master in O. T. 1944, No. 4, pp. 60-61 (hereinafter Doherty Report); 649, and n. 2. The Master therefore concluded that the Inland Lakes' priority was a necessary predicate of the apportionment and should not be disturbed. He also suggested that 's postdecree acquiescence in the Bureau's administration of the Inland Lakes should prevent from challenging the 1904 priority date now. We think the evidence from the prior litigation supports the conclusion that the Inland Lakes' priority was settled there. And even if the issue was not previously determined, we would agree with the Special Master that 's arguments are foreclosed by its postdecree acquiescence. Cf. Accordingly, we clarify today that the Inland Lakes share a December 6, 1904, priority date with other original components of the North Platte Project. Pursuant to that priority, the Bureau has a right to divert 46,000 acre-feet of water during the nonirrigation season months of October, November, and April for storage in the Inland Lakes. Although the practice of storing Inland Lakes water temporarily in the Guernsey and Glendo Reservoirs was not established in 1945, the United contends, and apparently does not dispute, that the practice is necessary to ensure the delivery of the 46,000 acre-feet of water envisioned in the apportionment. For that reason we hold that the temporary storage practice also is protected. Our conclusion does not otherwise affect the rights of the Guernsey and Glendo Reservoirs under the decree. *596 B The Laramie River originates in and meets the North Platte in in the pivotal reach. In its petition, Nebraska challenged two new developments on the Laramie near the North Platte confluence. The first, Grayrocks Project, was completed in 1980. Operated by amicus Basin, it consists of Grayrocks Reservoir and an electric power generating plant. The second, Corn Creek Project, is a proposed irrigation system for farmland. and Nebraska both moved for summary judgment, taking diametrically opposed positions with respect to their rights to Laramie waters. Nebraska claimed that the equitable apportionment of the water in the pivotal reach includes Laramie flows that historically have reached |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | the pivotal reach includes Laramie flows that historically have reached the North Platte. contended that the waters of the Laramie are completely apportioned between and by virtue of this Court's 1922 Laramie River decree, v. which the North Platte decree expressly left undisturbed. Paragraph XII(d) of the North Platte decree does state that the decree "shall not affect [t]he apportionment heretofore made by this Court between the of and of the waters of the Laramie River." ; see also But we think the Master correctly concluded that was not granted the right entirely to dewater the Laramie. The 1922 Laramie decree to which Paragraph XII(d) refers did not apportion all the waters of the Laramie; it dealt only with flows down to and including the Wheatland Project, a facility upstream of Grayrocks and Corn Creek. See v. There is a statement arguably to the contrary in a subsequent decision interpreting the 1922 decree. See v. (decree establishes *597 's right "to receive and divert the remaining waters of the stream and its tributaries"). But we read that language to refer only to the waters actually apportioned in the earlier proceedingsthat is, the waters down to and including Wheatland. There is also contrary language in the new Laramie decree entered on the joint motion of and in 1957. See v. ( "shall have the right to divert and use all water flowing and remaining in the Laramie river and its tributaries"). But the 1957 decree, entered without Nebraska's participation, cannot affect our interpretation of the 1945 North Platte decree, since Paragraph XII(d) addresses only the Laramie apportionment "heretofore made"in other words, the 1922 decree. Further, the Court apparently expected that some Laramie water would contribute to the natural flows available for apportionment in the pivotal reach. See, e. g., Doherty Report 67, Table III (including Laramie inflows in calculation of natural flow in pivotal reach). But the Court did not affirmatively apportion Laramie flows to Nebraska, either. The decree did not restrict 's use of the Laramie or require regularly to deliver a specified amount of Laramie water to the North Platte confluence. Since 1945, Laramie flows that actually have reached the North Platte have been included in the equitable apportionment, but neither Nebraska nor the United has requested that account for diversions above the confluence. For these and other reasons given by the Special Master, we agree that the evidence, most fairly read, indicates that the Court did not decide the fate of the excess Laramie waters in 1945. Because the North Platte decree gives Nebraska no rights to Laramie |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | the North Platte decree gives Nebraska no rights to Laramie waters, affording Nebraska injunctive relief would constitute a modification of the decree. We turn, then, to the question of injury. In 1978, Nebraska entered into a settlement agreement with Basin and other parties *598 (but not ) that limits Grayrocks' consumption of water and requires Basin to release certain minimum flows. The agreement also provides for further depletions in the event that Corn Creek is constructed. See 's App. to Brief in Opposition A-24 to A-32. At this juncture, Nebraska's argument seems to be that it will be injured if interferes with Basin's mandatory minimum releases by allowing new appropriators to divert from the Laramie between Grayrocks and the North Platte confluence. Although has declined to assure the Special Master that it will support Basin's obligation to maintain the minimum flows, see Second Interim Report 66-68, it is undisputed that is not currently interfering with those flows. Other than Corn Creek, Nebraska points to no proposed development that might deplete releases from Grayrocks. Nor does Nebraska seem to argue that Grayrocks otherwise threatens its interests. The Master recommends that Paragraph XIII of the decree be amended expressly to indicate that Nebraska or the United may apply for relief if in the future, threatens to interfere with the releases provided for in the settlement agreement. Because we do not believe such an amendment would add to our authority under subparagraph (f), we do not adopt this proposal. The Master also proposes to hold a status conference concerning Corn Creek. We have no objection to such a conference. We emphasize, however, that unless Nebraska comes forward with evidence sufficient to establish that Corn Creek (or some other project on the Laramie) poses a threat of injury serious enough to warrant modification of the decree, summary judgment should be entered in favor of We express no view as to whether, upon a proper showing of injury, incorporation of the settlement agreement into the North Platte decree would be appropriate. *599 C Deer Creek enters the mainstem of the North Platte in between the Pathfinder and Guernsey Reservoirs, upstream of the pivotal reach. Nebraska's petition challenged 's proposed construction of a new storage reservoir on Deer Creek. As we have said, in Paragraph XIII(c) of the decree the Court expressly retained jurisdiction to consider requests for further relief with respect to the effect of threatened construction of new storage capacity on tributaries entering the North Platte between Pathfinder and Guernsey. See moved for summary judgment on alternative grounds. It asserted that the primary function |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | judgment on alternative grounds. It asserted that the primary function of the Deer Creek Project will be to furnish municipal water supplies (by exchange) to communities. Accordingly, claimed that, Paragraph XIII(c) notwithstanding, the project is exempt from challenge by virtue of Paragraph X of the decree, which provides: "This decree shall not affect or restrict the use or diversion of water from the North Platte River and its tributaries in or for ordinary and usual domestic, municipal and stock watering purposes and consumption." also contended that Nebraska had failed to make an adequate showing of injury. Although admitting that Paragraph X "poses some mysteries," Second Interim Report 79, the Special Master evidently agreed with that the plain language of that provision permits freely to divert North Platte water for ordinary and usual municipal uses and that the other provisions of the decree act only upon the water remaining after such diversions. The Master declined to recommend summary judgment on this ground, however, due to factual questions concerning the Deer Creek Project's municipal character. The Master also recommended against *600 summary judgment on the injury issue, based on an affidavit by H. Lee Becker, former state hydrologist for Nebraska. See Affidavit of H. Lee Becker ¶ 2 (Apr. 25, 1991) (stating that the project would cause reductions in the average yearend carryover storage of federal reservoirs on the North Platte and that "[s]uch reductions could limit diversions in the [pivotal] reach in a series of dry years"), attached to Nebraska's Response to 's and 's Motions for Summary Judgment and to Basin Electric's Memorandum in Support Thereof (Apr. 25, 1991). Nebraska objects strenuously to the Master's interpretation of Paragraph X. The United has not filed exceptions but agrees that the Master's interpretation is "problematic." Brief for United Opposing Exceptions 35 (Aug. 17, 1992) (hereinafter U. S. Brief). We, too, are troubled by Paragraph X. As the Master pointed out, the parties to the original proceedings fought mightily over small quantities of water. It is therefore unclear why they and the Court would have meant that the upstream could make municipal diversions of any magnitude, in derogation of the careful system of interstate priorities established under the decree, without the opportunity for further review. We nonetheless think it unnecessary to settle upon a definitive interpretation of Paragraph X at this time. The Special Master rightly observed that the Deer Creek Project may not qualify as an ordinary and usual municipal use. Although recently has promised to operate the project solely for municipal purposes, both the Final Environmental Impact Statement prepared for the |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | purposes, both the Final Environmental Impact Statement prepared for the projectwhich describes a plan of operation that the project may be obliged to followand the state permit identify nonmunicipal uses. Nebraska also has presented evidence that the communities that the Deer Creek Project is to serve do not need additional municipal supplies, and that, even if they did, there are more cost-effective alternatives than the proposed reservoir. *601 In addition, Nebraska may be unable to prove that operation of the Deer Creek Project will cause it substantial injury. Such proof is necessary, as we have indicated, because the decree does not currently restrict 's use of Deer Creek, and a new injunction would constitute a modification of the decree. Whether the project will injure Nebraska may depend on the way it is administered. has conceded that the Deer Creek Project will be operated in accordance with state law and in priority with the Glendo and Guernsey Reservoirs. It has not agreed, however, to operate the project junior to the Inland Lakes, perhaps because its position throughout the litigation has been that the Inland Lakes lack a priority date. In light of our recognition today that the decree establishes a 1904 priority date for the Inland Lakes, it is unclear whether will persist in seeking to operate the Deer Creek Project out of priority. If the project is operated junior to the Inland Lakes, the evidence of injury to Nebraska appears to be diminished. See Affidavit of H. Lee Becker ¶¶ 4-6 (Aug. 12, 1988) (demonstrating that anticipated reductions in federal reservoirs' carryover storage would be smaller if Inland Lakes' priority were recognized), attached to Nebraska's Response to 's Motion for Summary Judgment (Aug. 22, 1988); Affidavit of David G. Wilde ¶ 89(b) (Aug. 15, 1988) (stating that, although Deer Creek would "substantially impac[t]" federal projects during an extended dry period, impacts would be "minimized" if Deer Creek were administered junior to the Inland Lakes), attached to Response of United to 's Motion for Summary Judgment (Aug. 23, 1988). But still may assert that Paragraph X permits it to divert for municipal uses out of priority with the Inland Lakes. In that event, we think the Wilde and Becker affidavits raise a genuine issue of material fact sufficient to defeat 's summary judgment motion. *602 D In its counterclaim, alleged that Nebraska was violating the decree by demanding natural flows and storage water from sources above the Tri-State Dam and diverting those waters to uses below Tri-State that are not recognized in the decree. also alleged that Nebraska was improperly demanding |
Justice O'Connor | 1,993 | 14 | majority | Nebraska v. Wyoming | https://www.courtlistener.com/opinion/112843/nebraska-v-wyoming/ | in the decree. also alleged that Nebraska was improperly demanding North Platte flows for diversion by canals at and above Tri-State Dam in excess of the irrigation requirements of the Nebraska lands entitled to water under the decree. Increased diversions by the Nebraska canals above Tri-State evidently benefit users below Tri-State because they create increased return flows. Neither nor Nebraska sought summary judgment on 's counterclaim. Rather, both and have sought a number of more limited rulings with respect to the below Tri-State issues. We agree with the Master that most of these claims are "`too theoretical and not sufficiently anchored to concrete pleadings or an adequately developed factual [r]ecord' " to be susceptible of summary resolution at this time. Second Interim Report 92 (quoting Post-Argument Comments of United 6 (July 29, 1991)). We further agree that one issue is sufficiently crystallized to warrant partial summary judgment for Nebraska. Nebraska requested a determination that the decree does not impose absolute ceilings on diversions by canals taking in the pivotal reach. As the Master explained, the irrigation requirements of the lands the canals serve were calculated in the prior proceedings. But the requirements were calculated for the purpose of determining the appropriate apportionment of the pivotal reach, not to impose a cap on the canals' total diversions, either individually or cumulatively. See Doherty Report 161 ("[T]he findings herein as to requirements cannot, I think, be deemed a limitation upon individual canals or groups, in actual administration, either as to natural flow or storage water, nor do I think any such limitations *603 can properly be imposed by the decree" (emphasis in original)). Paragraph V of the decree, which sets forth the apportionment, makes no mention of diversion ceilings and expressly states that Nebraska is free to allocate its share among its canals as it sees fit. See In 's view, Paragraph IV of the decree requires a different result. The Master properly rejected this argument. Paragraph IV establishes the priority of Nebraska canals diverting in the pivotal reach relative to federal projects in See We agree with the United that, although Paragraph IV "limits the extent to which the Nebraska canals may stop federal reservoirs from storing water, [it] does not place any `absolute ceilings' or other restrictions on the quantities of water those canals may actually divert." U. S. Brief 40, n. 21. asks us to clarify that the federal reservoirs have no obligation to bypass natural flow to a senior Nebraska canal when the canal is making excessive calls for federal storage water. Because there is as yet inadequate |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | Today's holding, the majority declares, is compelled by "Congress's choice to limit the relief available under 502(a)(3)." Ante, at 218. In the Court's view, Congress' placement of the word "equitable" in that provision signaled an intent to exhume the "fine distinction[s]" borne of the "days of the divided bench," ante, at 212, 214; to treat as dispositive an ancient classification unrelated to the substance of the relief sought; and to obstruct the general goals of ERISA by relegating to state court (or to no court at all) an array of suits involving the interpretation of employee health plan provisions. Because it is plain that Congress made no such "choice," I dissent. I The Court purports to resolve this case by determining the "nature of the relief" Great-West seeks. Ante, at 215. The opinion's analysis, however, trains on the question, deemed subsidiary, whether the disputed claim could have been brought in an equity court "[i]n the days of the divided bench." Ante, at 212-216 (inquiring whether the claim is akin to "an action derived from the common-law writ of assumpsit" that would have been brought at law, or instead resembles a claim for return of particular assets that would "lie in equity"). To answer that question, the Court scrutinizes the form of the claim and contrasts its features with the technical requirements that once governed the jurisdictional divide between the premerger courts. Finding no clear match on the equitable side of the line, the Court concludes that Great-West's claim is beyond the scope of 502(a)(3) and therefore outside federal jurisdiction. The rarified rules underlying this rigid and time-bound conception of the term "equity" were hardly at the fingertips of those who enacted 502(a)(3). By 174, when ERISA became law, the "days of the divided bench" were a fading memory, for that era had ended nearly 40 years earlier with *225 the advent of the Federal Rules of Civil Procedure. Those rules instruct: "There shall be one form of action" cognizable in the federal courts. Fed. Rule Civ. Proc. 2. Except where reference to historical practice might be necessary to preserve a right established before the merger, see, e. g., the doctrinal rules delineating the boundaries of the divided courts had receded. See 4 C. Wright & A. Federal Practice and Procedure 1041, p. 135 ; C. Wright, Handbook on Law of Federal Courts 67, p. 282 ("[I]nstances in which the old distinctions continue to rule from their graves are quite rare."). It is thus fanciful to attribute to Members of the 3d Congress familiarity with those "needless and obsolete distinctions," 4 |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | 3d Congress familiarity with those "needless and obsolete distinctions," 4 Wright & 1041, at 131, much less a deliberate "choice" to resurrect and import them wholesale into the modern regulatory scheme laid out in ERISA. "[T]here is nothing to suggest that ERISA's drafters wanted to embed their work in a time warp." Health Cost Controls of ; cf. (meaning of "equitable relief" in 502(a)(3) must be determined based on "the state of the law when ERISA was enacted"). That Congress did not intend to strap 502(a)(3) with the anachronistic rules on which the majority relies is corroborated by the anomalous results to which the supposed legislative "choice" leads. Although the Court recognizes that it need not decide the issue, see ante, at 220, its opinion surely contemplates that a constructive trust claim would lie; hence, the outcome of this case would be different if Great-West had sued the trustee of the Special Needs Trust, who has "possession" of the requested funds, instead of the Knudsons, who do not. See ante, at 214 (constructive trust unavailable because "the funds to which petitioners claim an entitlement are not in respondents' possession"). Under *226 that view, whether relief is "equitable" would turn entirely on the designation of the defendant, even though the substance of the relief Great-West could have obtained in a suit against the trusteea judgment ordering the return of wrongfully withheld fundsis identical to the relief GreatWest in fact sought from the Knudsons. Unlike today's majority, I resist this "rule unjustified in reason, which produces different results for breaches of duty in situations that cannot be differentiated in policy." The procedural history of this case highlights the anomaly of upholding a judgment neither party supports,[1] one that will at least protract and perhaps preclude judicial resolution of the nub of the controversyi. e., what recoupment does the Plan's reimbursement provision call for. Great-West named the Knudsons as defendants before Janet Knudson's Special Needs Trust had been approved. There was no other defendant then in the picture. Seeking at that time to preserve the status quo, Great-West requested from the District Court preliminary injunctive relief to stop the Knudsons from disposing of the funds Hyundai paid to settle the state-court action. Only after the District Court denied that relief did the state court approve of, and order that the settlement funds be paid into, the Special Needs Trust. Great-West then moved for leave to amend its complaint to add the trustee as a defendant, but the District Court denied *227 that motion without consideration in light of its judgment for the Knudsons |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | without consideration in light of its judgment for the Knudsons on the merits. Had the District Court ruled differently on this peripheral issue, the majority would presumably reverse rather than affirm a disposition of this case that left in limbo the meaning of the Plan's reimbursement provision. If that is so, then the Court's decision rests on Great-West's failure to appeal an interlocutory issue made moot by the District Court's final judgment, an issue that, to all involved, must have seemed utterly inconsequential post judgment day. The majority's avowed obedience to Congress' "choice" is further belied by the conflict between the Court's holding and Congress' stated goals in enacting ERISA. After today, ERISA plans and fiduciaries unable to fit their suits within the confines the Court's opinion constructs are barred from a federal forum; they may seek enforcement of reimbursement provisions like the one here at issue only in state court. Many such suits may be precluded by antisubrogation laws, see Brief for Maryland HMO Subrogation Plaintiffs as Amici Curiae 4-5, n. 2, others may be preempted by ERISA itself, and those that survive may produce diverse and potentially contradictory interpretations of the disputed plan terms. We have recognized that Congress sought through ERISA "to establish a uniform administrative scheme" and to ensure that plan provisions would be enforced in federal court, free of "the threat of conflicting or inconsistent State and local regulation." Fort Halifax Packing ). The majority's construction frustrates those goals by ascribing to Congress the paradoxical intent to enact a specific provision, 502(a)(3), that thwarts the purposes of the general scheme of which it is part. The Court is no doubt correct that "vague notions of a statute's `basic purpose' are inadequate to overcome the words of its text regarding the specific issue under consideration." *228 Ante, at 220 (quoting ) (emphasis deleted). But when Congress' clearly stated purpose so starkly conflicts with questionable inferences drawn from a single word in the statute, it is the latter, and not the former, that must give way. It is particularly ironic that the majority acts in the name of equity as it sacrifices congressional intent and statutory purpose to archaic and unyielding doctrine. "Equity eschews mechanical rules; it depends on flexibility." 327 U.S. 32, 36 (146). And "[a]s this Court long ago recognized, `there is inherent in the Courts of Equity a jurisdiction to give effect to the policy of the legislature.' " 21-22 (160) (quoting 13 Pet. (183)); see Albemarle Paper 422 U.S. (175) ; cf. Grupo de Desarrollo, S. (Court similarly "relie[d] on an unjustifiably static |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | de Desarrollo, S. (Court similarly "relie[d] on an unjustifiably static conception of equity jurisdiction"). II Unprepared to agree that Congress chose to infuse 502(a)(3) with the recondite distinctions on which the majority relies, I would accord a different meaning to the term "equitable." Consistent with what Congress likely intended and with our decision in I would look to the substance of the relief requested and ask whether relief of that character was "typically available in equity." Great-West seeks restitution, a category of relief fully meeting that measure even if the remedy was also available in cases brought at law. Accordingly, I would not oust this case from the federal courts. *22 That Great-West requests restitution is beyond dispute. The relief would operate to transfer from the Knudsons funds over which Great-West claims to be the rightful owner. See 415 U. S., at 17 ; 328 U.S. 35, (146) Great-West alleges that the Knudsons would be unjustly enriched if permitted to retain the funds. See 1 D. Dobbs, Law of Remedies 4.1(2), p. 557 ("The fundamental substantive basis for restitution is that the defendant has been unjustly enriched by receiving something, tangible or intangible, that properly belongs to the plaintiff."). And Great-West sued to recover an amount representing the Knudsons' unjust gain, rather than Great-West's loss. See 3 12.1(1), at ("Restitutionary recoveries are based on the defendant's gain, not on the plaintiff's loss."). As the majority appears to admit, see ante, at 214, our cases have invariably described restitutionary relief as "equitable" without even mentioning, much less dwelling upon, the ancient classifications on which today's holding rests. See, e. g., ; ; 44 U.S. 558, (10) ; 361 U. S., at 21-23 ; cf. Moses v. Macferlan, 2 Burr. 1005, 1012, 7 Eng. Rep. 676, 681 (K. B. 1760) ("In one word, the gist of this kind of action is that the defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to refund the money."). These cases establish what the Court does not *230 and cannot dispute: Restitution was "within the recognized power and within the highest tradition of a court of equity." Porter, 328 U. S., at More important, if one's concern is to follow the Legislature's will, Congress itself has treated as equitable a type of restitution substantially similar to the relief Great-West seeks here. Congress placed in Title VII of the Civil Rights Act of 164 the instruction that, to redress violations of the Act, courts may award, inter alia, "appropriate equitable relief," including "reinstatement or hiring of employees, with |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | "appropriate equitable relief," including "reinstatement or hiring of employees, with or without back pay." 42 U.S. C. 2000e5(g)(1) (14 ed.). Interpreting this provision, we have recognized that backpay is "a form of restitution," 415 U. S., at 17; see 44 U. S., at 572, and that "Congress specifically characterized backpay under Title VII as a form of `equitable relief,' " The majority used Title VII's "equitable relief" provision as the touchstone for its interpretation of 502(a)(3), see ; today's majority declares, with remarkable inconsistency, that "Title VII has nothing to do with this case," ante, at 21, n. 4. The Court inexplicably fails to offer any reason why Congress did not intend "equitable relief" in 502(a)(3) to include a plaintiff's "recover[y of] money to pay for some benefit the defendant had received from him," ante, at 213 but did intend those words to encompass such relief in a measure (Title VII) enacted years earlier.[2] *231 I agree that "not all relief falling under the rubric of restitution [was] available in equity," ante, at 212 (emphasis added); restitution was also available in claims brought at law, and the majority may be correct that in such cases restitution would have been termed "legal," ante, at 213. But that in no way affects the answer to the question at the core of this case. Section 502(a)(3) as interpreted in encompasses those "categories of relief that were typically available in equity," not those that were exclusively so. Restitution plainly fits that bill. By insisting that 502(a)(3) embraces only those claims that, in the circumstances of the particular case, could be brought in chancery in times of yore, the majority labors against the holding of that case. Indeed, explicitly *232 rejected a position close to the one embraced by the Court today; recognized that "[a]s memories of the divided bench, and familiarity with its technical refinements, recede further into the past, [an interpretation of 502(a)(3) keyed to the relief a court of equity could award in a particular case] becomes, perhaps, increasingly unlikely." -257. My objection to the inquiry the Court today adopts in spite of does not turn on "the difficulty of th[e] task," ante, at 217. To be sure, I question the Court's confidence in the ability of "the standard works" to "make the answer clear"; the Court does not indicate what rule prevails, for example, when those works conflict, as they do on key points, compare Restatement of Restitution 160, Comment e, p. 645 (136) (constructive trust over money available only where transfer procured by abuse of fiduciary relation or where legal |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | transfer procured by abuse of fiduciary relation or where legal remedy inadequate), with 1 Dobbs, Law of Remedies 4.3(2), at 55, 57 (limitation of constructive trust to "misdealings by fiduciaries" a "misconception"; adequacy of legal remedy "seems irrelevant"). And courts have recognized that this Court's preferred method is indeed "difficult to apply," 36 U.S. 531, calling for analysis that "may seem to reek unduly of the study," 28 F.2d 46, (CA2 161) "`if not of the museum,' " at 5 Even if the Court's chosen texts always yielded a quick and plain answer, however, I would think it no less implausible that Congress intended to make controlling the doctrine those texts describe. See Our reliance on that doctrine in the context of the Seventh Amendment and Judiciary Act of 178, see ante, at 217, underscores the incongruity of applying it here. It may be arguable that "preserving" the meaning of those founding-era provisions requires courts to determine which tribunal would have entertained a particular claim in 18th-century England. See *233 Grupo -31; 44 U. S., at 53 ("We cannot preserve a right existing in 171 unless we look to history to identify it."). But no such rationale conceivably justifies asking that question in cases arising under 502(a)(3)(B), a provision of a distinctly modern statute Congress passed in 174. That the import of the term "equity" might depend on context does not signify a "rolling revision of its content," ante, at 217, but rather a recognition that equity, characteristically, was and should remain an evolving and dynamic jurisprudence, see Grupo 527 U. S., at -337 Cf. As courts in the common-law realm have reaffirmed: "Principles of equity, we were all taught, were introduced by Lord Chancellors and their deputies in order to provide relief from the inflexibility of common law rules." Medforth v. Blake, [] 3 All E. R. 7, 110 (C. A.); see Boulting v. Association of Cinematograph, Television and Allied Technicians, [163] 2 Q. B. 606, 636 (C. A.) ("[A]ll rules of equity [are] flexible, in the sense that [they] develo[p] to meet the changing situations and conditions of the time."); Pettkus v. Becker, [180] 2 S. C. R. 834, 847, 117 Dall. L. R. (3d) 257, 273 ("The great advantage of ancient principles of equity is their flexibility: the judiciary is thus able to shape these malleable principles so as to accommodate the changing needs and mores of society."). This Court's equation of "equity" with the rigid application of rules frozen in a bygone era, I maintain, is thus "unjustifiabl[e]" even as applied to a law grounded in |
Justice Ginsburg | 2,002 | 5 | second_dissenting | Great-West Life & Annuity Ins. Co. v. Knudson | https://www.courtlistener.com/opinion/118471/great-west-life-annuity-ins-co-v-knudson/ | thus "unjustifiabl[e]" even as applied to a law grounded in that era. Grupo 527 U. S., at As applied to a statute like ERISA, however, such insistence is senseless. Thus, there is no reason to ask what court would have entertained Great-West's claim "[i]n the days of the divided bench," ante, at 212, and no need to engage in the antiquarian *234 inquiry through which the majority attempts to answer that question. Nor would reading 502(a)(3) to encompass restitution render the modifier "equitable" "utterly pointless," as the Court fears, ante, at 216. Such a construction would confine the scope of that provision to significantly "less than all relief," ante, at 20 (quoting n. 8). Most notably, it would exclude compensatory and punitive damages, see which, "though occasionally awarded in equity" under the "clean up doctrine," (CA7 14), were not typically available in such courts. See 1 S. Symons, Pomeroy's Equity Jurisprudence 181, p. 257 (5th ed. 141). That large limitation is indeed "unmistakable." But cf. ante, at 217. In sum, the reading I would adopt is entirely faithful to the core holding of : "[E]quitable relief" in 502(a)(3) "refer[s] to those categories of relief that were typically available in equity (such as injunction, mandamus, and restitution, but not compensatory damages)." * * * Today's decision needlessly obscures the meaning and complicates the application of 502(a)(3). The Court's interpretation of that provision embroils federal courts in "recondite controversies better left to legal historians," 44 U. S., at 576 and yields results that are demonstrably at odds with Congress' goals in enacting ERISA. Because in my view Congress cannot plausibly be said to have "carefully crafted" such confusion, ante, at 221, I dissent. |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | This case concerns the proper construction of the antidiscrimination provision contained in the public services portion (Title II) of the Americans with Disabilities Act of 1990 (ADA), 42 U.S. C. 12132. Specifically, we confront the question whether the proscription of discrimination may require placement of persons with mental disabilities in community settings rather than in institutions. The answer, we hold, is a qualified yes. Such action is in order when the State's treatment professionals have determined that community placement is appropriate, the transfer from institutional care to a less restrictive setting is not opposed by the affected individual, and the placement can be reasonably accommodated, taking into account the resources available to the State and the needs of others with mental disabilities. In so ruling, we affirm the decision of the Eleventh Circuit in substantial part. We remand the case, however, for further consideration of the appropriate relief, given the range of facilities the State maintains for the care and treatment of persons with diverse mental disabilities, and its obligation to administer services with an even hand. *588 I This case, as it comes to us, presents no constitutional question. The complaints filed by plaintiffs-respondents L. C. and E. W. did include such an issue; L. C. and E. W. alleged that defendants-petitioners, Georgia health care officials, failed to afford them minimally adequate care and freedom from undue restraint, in violation of their rights under the Due Process Clause of the Fourteenth Amendment. See Complaint ¶¶ 87-91; Intervenor's Complaint ¶¶ 30-34. But neither the District Court nor the Court of Appeals reached those Fourteenth Amendment claims. See Civ. No. 1:95cv1210MHS (ND Ga., Mar. 26, 1997), pp. 5-6, 11-13, App. to Pet. for Cert. 34a-35a, 40a-41a; Instead, the courts below resolved the case solely on statutory grounds. Our review is similarly confined. Cf. Mindful that it is a statute we are construing, we set out first the legislative and regulatory prescriptions on which the case turns. In the opening provisions of the ADA, Congress stated findings applicable to the statute in all its parts. Most relevant to this case, Congress determined that "(2) historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem; "(3) discrimination against individuals with disabilities persists in such critical areas as institutionalization ; *589 "(5) individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, failure to make modifications to existing facilities and practices, [and] segregation" 42 U.S. C. 12101(a)(2), (3), (5).[1] |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | and practices, [and] segregation" 42 U.S. C. 12101(a)(2), (3), (5).[1] Congress then set forth prohibitions against discrimination in employment (Title I, 12111-12117), public services furnished by governmental entities (Title II, 12131-12165), and public accommodations provided by private entities (Title III, 12181-12189). The statute as a whole is intended "to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." 12101(b)(1).[2] This case concerns Title II, the public services portion of the ADA.[3] The provision of Title II centrally at issue reads: "Subject to the provisions of this subchapter, no qualified individual with a disability shall, by reason of such *590 disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity." 201, as set forth in 42 U.S. C. 12132. Title II's definition section states that "public entity" includes "any State or local government," and "any department, agency, [or] special purpose district." 12131(1)(A), (B). The same section defines "qualified individual with a disability" as "an individual with a disability who, with or without reasonable modifications to rules, policies, or practices, the removal of architectural, communication, or transportation barriers, or the provision of auxiliary aids and services, meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 12131(2). On redress for violations of 12132's discrimination prohibition, Congress referred to remedies available under 505 of the Rehabilitation Act of 1973, 29 U.S. C. 794a. See 203, as set forth in 42 U.S. C. 12133 ("The remedies, procedures, and rights set forth in [ 505 of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides to any person alleging discrimination on the basis of disability in violation of section 12132 of this title.").[4] *591 Congress instructed the Attorney General to issue regulations implementing provisions of Title II, including 12132's discrimination proscription. See 204, as set forth in 12134(a) ("[T]he Attorney General shall promulgate regulations in an accessible format that implement this part.").[5] The Attorney General's regulations, Congress further directed, "shall be consistent with this chapter and with the coordination regulations applicable to recipients of Federal financial assistance under [ 504 of the Rehabilitation Act]." 204, as set forth in 42 U.S. C. 12134(b). One of the 504 regulations requires recipients of federal funds to "administer programs and activities in the most integrated *592 setting appropriate to the needs of qualified handicapped persons." 28 CFR 41.51(d) As Congress instructed, the Attorney General issued |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | 28 CFR 41.51(d) As Congress instructed, the Attorney General issued Title II regulations, see 28 CFR pt. 35 including one modeled on the 504 regulation just quoted; called the "integration regulation," it reads: "A public entity shall administer services, programs, and activities in the most integrated setting appropriate to the needs of qualified individuals with disabilities." 28 CFR 35.130(d) The preamble to the Attorney General's Title II regulations defines "the most integrated setting appropriate to the needs of qualified individuals with disabilities" to mean "a setting that enables individuals with disabilities to interact with non-disabled persons to the fullest extent possible." 28 CFR pt. 35, App. A, p. Another regulation requires public entities to "make reasonable modifications" to avoid "discrimination on the basis of disability," unless those modifications would entail a "fundamenta[l] alter[ation]"; called here the "reasonable-modifications regulation," it provides: "A public entity shall make reasonable modifications in policies, practices, or procedures when the modifications are necessary to avoid discrimination on the basis of disability, unless the public entity can demonstrate that making the modifications would fundamentally alter the nature of the service, program, or activity." 28 CFR 35.130(b)(7) We recite these regulations with the caveat that we do not here determine their validity. While the parties differ on the proper construction and enforcement of the regulations, we do not understand petitioners to challenge the regulatory formulations themselves as outside the congressional authorization. See Brief for Petitioners 16-17, 36, 40-41; *593 Reply Brief 15-16 (challenging the Attorney General's interpretation of the integration regulation). II With the key legislative provisions in full view, we summarize the facts underlying this dispute. Respondents L. C. and E. W. are mentally retarded women; L. C. has also been diagnosed with schizophrenia, and E. W. with a personality disorder. Both women have a history of treatment in institutional settings. In May 1992, L. C. was voluntarily admitted to Georgia Regional Hospital at Atlanta (GRH), where she was confined for treatment in a psychiatric unit. By May 1993, her psychiatric condition had stabilized, and L. C.'s treatment team at GRH agreed that her needs could be met appropriately in one of the community-based programs the State supported. Despite this evaluation, L. C. remained institutionalized until February 1996, when the State placed her in a community-based treatment program. E. W. was voluntarily admitted to GRH in February 1995; like L. C., E. W. was confined for treatment in a psychiatric unit. In March 1995, GRH sought to discharge E. W. to a homeless shelter, but abandoned that plan after her attorney filed an administrative complaint. By 1996, |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | plan after her attorney filed an administrative complaint. By 1996, E. W.'s treating psychiatrist concluded that she could be treated appropriately in a community-based setting. She nonetheless remained institutionalized until a few months after the District Court issued its judgment in this case in 1997. In May 1995, when she was still institutionalized at GRH, L. C. filed suit in the United States District Court for the Northern District of Georgia, challenging her continued confinement in a segregated environment. Her complaint invoked 42 U.S. C. 1983 and provisions of the ADA, 12131-12134, and named as defendants, now petitioners, the Commissioner of the Georgia Department of Human Resources, the Superintendent of GRH, and the Executive Director of the Fulton County Regional Board (collectively, *594 the State). L. C. alleged that the State's failure to place her in a community-based program, once her treating professionals determined that such placement was appropriate, violated, inter alia, Title II of the ADA. L. C.'s pleading requested, among other things, that the State place her in a community care residential program, and that she receive treatment with the ultimate goal of integrating her into the mainstream of society. E. W. intervened in the action, stating an identical claim.[6] The District Court granted partial summary judgment in favor of L. C. and E. W. See App. to Pet. for Cert. 31a-42a. The court held that the State's failure to place L. C. and E. W. in an appropriate community-based treatment program violated Title II of the ADA. See at 39a, 41a. In so ruling, the court rejected the State's argument that inadequate funding, not discrimination against L. C. and E. W. "by reason of" their disabilities, accounted for their retention at GRH. Under Title II, the court concluded, "unnecessary institutional segregation of the disabled constitutes discrimination per se, which cannot be justified by a lack of funding." at 37a. In addition to contending that L. C. and E. W. had not shown discrimination "by reason of [their] disabilit[ies]," the State resisted court intervention on the ground that requiring immediate transfers in cases of this order would "fundamentally alter" the State's activity. The State reasserted that it was already using all available funds to provide services to other persons with disabilities. See at 38a. Rejecting *595 the State's "fundamental alteration" defense, the court observed that existing state programs provided community-based treatment of the kind for which L. C. and E. W. qualified, and that the State could "provide services to plaintiffs in the community at considerably less cost than is required to maintain them in an institution." at |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | than is required to maintain them in an institution." at 39a. The Court of Appeals for the Eleventh Circuit affirmed the judgment of the District Court, but remanded for reassessment of the State's cost-based defense. See As the appeals court read the statute and regulations: When "a disabled individual's treating professionals find that a community-based placement is appropriate for that individual, the ADA imposes a duty to provide treatment in a community settingthe most integrated setting appropriate to that patient's needs"; "[w]here there is no such finding [by the treating professionals], nothing in the ADA requires the deinstitutionalization of th[e] patient." The Court of Appeals recognized that the State's duty to provide integrated services "is not absolute"; under the Attorney General's Title II regulation, "reasonable modifications" were required of the State, but fundamental alterations were not demanded. The appeals court thought it clear, however, that "Congress wanted to permit a cost defense only in the most limited of circumstances." In conclusion, the court stated that a cost justification would fail "[u]nless the State can prove that requiring it to [expend additional funds in order to provide L. C. and E. W. with integrated services] would be so unreasonable given the demands of the State's mental health budget that it would fundamentally alter the service [the State] provides." Because it appeared that the District Court had entirely ruled out a "lack of funding" justification, see App. to Pet. for Cert. 37a, the appeals court remanded, repeating that the District Court should consider, among other things, "whether the additional expenditures necessary to treat L. C. and E. W. in community-based care would be unreasonable *596 given the demands of the State's mental health budget."[7] We granted certiorari in view of the importance of the question presented to the States and affected individuals. See[8] III Endeavoring to carry out Congress' instruction to issue regulations implementing Title II, the Attorney General, in the integration and reasonable-modifications regulations, see made two key determinations. The first concerned the scope of the ADA's discrimination proscription, 42 U.S. C. 12132; the second concerned the obligation of the States to counter discrimination. As to the first, the Attorney General concluded that unjustified placement or retention of persons in institutions, severely limiting their exposure to the outside community, constitutes a form of discrimination based on disability prohibited by Title II. See 28 CFR 35.130(d) ; Brief for United States as Amicus Curiae in Helen L. v. DiDario, No. 94-13 (CA3 1994), pp. 8, 15-16 (unnecessary segregation of persons with disabilities constitutes a form of discrimination prohibited by the ADA and |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | constitutes a form of discrimination prohibited by the ADA and the integration *597 regulation). Regarding the States' obligation to avoid unjustified isolation of individuals with disabilities, the Attorney General provided that States could resist modifications that "would fundamentally alter the nature of the service, program, or activity." 28 CFR 35.130(b)(7) The Court of Appeals essentially upheld the Attorney General's construction of the ADA. As just recounted, see the appeals court ruled that the unjustified institutionalization of persons with mental disabilities violated Title II; the court then remanded with instructions to measure the cost of caring for L. C. and E. W. in a community-based facility against the State's mental health budget. We affirm the Court of Appeals' decision in substantial part. Unjustified isolation, we hold, is properly regarded as discrimination based on disability. But we recognize, as well, the States' need to maintain a range of facilities for the care and treatment of persons with diverse mental disabilities, and the States' obligation to administer services with an even hand. Accordingly, we further hold that the Court of Appeals' remand instruction was unduly restrictive. In evaluating a State's fundamental-alteration defense, the District Court must consider, in view of the resources available to the State, not only the cost of providing community-based care to the litigants, but also the range of services the State provides others with mental disabilities, and the State's obligation to mete out those services equitably. A We examine first whether, as the Eleventh Circuit held, undue institutionalization qualifies as discrimination "by reason of disability." The Department of Justice has consistently advocated that it does.[9] Because the Department *598 is the agency directed by Congress to issue regulations implementing Title II, see its views warrant respect. We need not inquire whether the degree of deference described in Chevron U. S. A. is in order; "[i]t is enough to observe that the well-reasoned views of the agencies implementing a statute `constitute a body of experience and informed judgment to which courts and litigants may properly resort for guidance.' " The State argues that L. C. and E. W. encountered no discrimination "by reason of" their disabilities because they were not denied community placement on account of those disabilities. See Brief for Petitioners 20. Nor were they subjected to "discrimination," the State contends, because "`discrimination' necessarily requires uneven treatment of similarly situated individuals," and L. C. and E. W. had identified no comparison class, i. e., no similarly situated individuals given preferential treatment. We are satisfied that Congress had a more comprehensive view of the concept of discrimination advanced in the |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | comprehensive view of the concept of discrimination advanced in the ADA.[10] *599 The ADA stepped up earlier measures to secure opportunities for people with developmental disabilities to enjoy the benefits of community living. The Developmentally Disabled Assistance and Bill of Rights Act, a 1975 measure, stated in aspirational terms that "[t]he treatment, services, and habilitation for a person with developmental disabilities should be provided in the setting that is least restrictive of the person's personal liberty." 42 U.S. C. 6010(2) (1976 ed.) (emphasis added); see also Pennhurst State School and (concluding that the 6010 provisions "were intended to be hortatory, not mandatory"). In a related legislative endeavor, the Rehabilitation Act of 1973, Congress used mandatory language to proscribe discrimination against persons with disabilities. See as amended, 29 U.S. C. 794 (1976 ed.) ("No otherwise qualified individual with a disability in the United States shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial *600 assistance." (Emphasis added.)) Ultimately, in the ADA, enacted in 1990, Congress not only required all public entities to refrain from discrimination, see 42 U.S. C. 12132; additionally, in findings applicable to the entire statute, Congress explicitly identified unjustified "segregation" of persons with disabilities as a "for[m] of discrimination." See 12101(a)(2) ("historically, society has tended to isolate and segregate individuals with disabilities, and, despite some improvements, such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem"); 12101(a)(5) ("individuals with disabilities continually encounter various forms of discrimination, including segregation").[11] Recognition that unjustified institutional isolation of persons with disabilities is a form of discrimination reflects two evident judgments. First, institutional placement of persons who can handle and benefit from community settings perpetuates unwarranted assumptions that persons so isolated are incapable or unworthy of participating in community life. Cf. ; Los Angeles Dept. of Water and ). Second, confinement in an institution severely diminishes the everyday life activities of individuals, including family relations, social contacts, work options, economic independence, educational advancement, and cultural enrichment. See Brief for American Psychiatric Association et al. as Amici Curiae 20-22. Dissimilar treatment correspondingly exists in this key respect: In order to receive needed medical services, persons with mental disabilities must, because of those disabilities, relinquish participation in community life they could enjoy given reasonable accommodations, while persons without mental disabilities can receive the medical services they need without similar sacrifice. See Brief for United States as Amicus Curiae 6-7, 17. The State urges that, |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | States as Amicus Curiae 6-7, 17. The State urges that, whatever Congress may have stated as its findings in the ADA, the Medicaid statute "reflected a congressional policy preference for treatment in the institution over treatment in the community." Brief for Petitioners 31. The State correctly used the past tense. Since 1981, Medicaid has provided funding for state-run home and community-based care through a waiver program. See -813, as amended, 42 U.S. C. 1396n(c); Brief for United States as Amicus Curiae 20-21.[12] Indeed, the United States points out that the Department of Health and Human Services (HHS) "has a policy of encouraging States to take advantage of the waiver program, and often approves more waiver slots than a State ultimately uses." We emphasize that nothing in the ADA or its implementing regulations condones termination of institutional settings for persons unable to handle or benefit from community *602 settings. Title II provides only that "qualified individual[s] with a disability" may not "be subjected to discrimination." 42 U.S. C. 12132. "Qualified individuals," the ADA further explains, are persons with disabilities who, "with or without reasonable modifications to rules, policies, or practices, mee[t] the essential eligibility requirements for the receipt of services or the participation in programs or activities provided by a public entity." 12131(2). Consistent with these provisions, the State generally may rely on the reasonable assessments of its own professionals in determining whether an individual "meets the essential eligibility requirements" for habilitation in a communitybased program. Absent such qualification, it would be inappropriate to remove a patient from the more restrictive setting. See 28 CFR 35.130(d) ; cf. School Bd. of Nassau[13] Nor is there any federal requirement that community-based treatment be imposed on patients who do not desire it. See 28 CFR 35.130(e)(1) ; 28 CFR pt. 35, App. A, p. ("[P]ersons with disabilities must be provided the option of declining to accept a particular accommodation."). In this case, however, there is no genuine dispute concerning the status of L. C. and E. W. as individuals "qualified" *603 for noninstitutional care: The State's own professionals determined that community-based treatment would be appropriate for L. C. and E. W., and neither woman opposed such treatment. See[14] B The State's responsibility, once it provides communitybased treatment to qualified persons with disabilities, is not boundless. The reasonable-modifications regulation speaks of "reasonable modifications" to avoid discrimination, and allows States to resist modifications that entail a "fundamenta[l] alter[ation]" of the States' services and programs. 28 CFR 35.130(b)(7) The Court of Appeals construed this regulation to permit a cost-based defense "only in the most limited of |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | permit a cost-based defense "only in the most limited of circumstances," 138 F.3d, and remanded to the District Court to consider, among other things, "whether the additional expenditures necessary to treat L. C. and E. W. in community-based care would be unreasonable given the demands of the State's mental health budget," The Court of Appeals' construction of the reasonablemodifications regulation is unacceptable for it would leave the State virtually defenseless once it is shown that the plaintiff is qualified for the service or program she seeks. If the expense entailed in placing one or two people in a communitybased treatment program is properly measured for reasonableness against the State's entire mental health budget, it is unlikely that a State, relying on the fundamental-alteration defense, could ever prevail. See Tr. of Oral Arg. 27 (State's attorney argues that Court of Appeals' understanding of the *604 fundamental-alteration defense, as expressed in its order to the District Court, "will always preclude the State from a meaningful defense"); cf. Brief for Petitioners 37-38 (Court of Appeals' remand order "mistakenly asks the district court to examine [the fundamental-alteration] defense based on the cost of providing community care to just two individuals, not all Georgia citizens who desire community care"); 1:95 cv1210MHS p. 3, App. 177 (District Court, on remand, declares the impact of its decision beyond L. C. and E. W. "irrelevant"). Sensibly construed, the fundamental-alteration component of the reasonablemodifications regulation would allow the State to show that, in the allocation of available resources, immediate relief for the plaintiffs would be inequitable, given the responsibility the State has undertaken for the care and treatment of a large and diverse population of persons with mental disabilities. When it granted summary judgment for plaintiffs in this case, the District Court compared the cost of caring for the plaintiffs in a community-based setting with the cost of caring for them in an institution. That simple comparison showed that community placements cost less than institutional confinements. See App. to Pet. for Cert. 39a. As the United States recognizes, however, a comparison so simple overlooks costs the State cannot avoid; most notably, a "State may experience increased overall expenses by funding community placements without being able to take advantage of the savings associated with the closure of institutions." Brief for United States as Amicus Curiae 21.[15] As already observed, see the ADA is not reasonably read to impel States to phase out institutions, placing patients in need of close care at risk. Cf. post, at *605 610 (Kennedy, J., concurring in judgment). Nor is it the ADA's mission to drive |
Justice Ginsburg | 1,999 | 5 | majority | Olmstead v. LC | https://www.courtlistener.com/opinion/118315/olmstead-v-lc/ | in judgment). Nor is it the ADA's mission to drive States to move institutionalized patients into an inappropriate setting, such as a homeless shelter, a placement the State proposed, then retracted, for E. W. See Some individuals, like L. C. and E. W. in prior years, may need institutional care from time to time "to stabilize acute psychiatric symptoms." App. 98 (affidavit of Dr. Richard L. Elliott); see ; Reply Brief 19 (placement in a communitybased treatment program does not mean the State will no longer need to retain hospital accommodations for the person so placed). For other individuals, no placement outside the institution may ever be appropriate. See Brief for American Psychiatric Association et al. as Amici Curiae 22-23 ("Some individuals, whether mentally retarded or mentally ill, are not prepared at particular timesperhaps in the short run, perhaps in the long runfor the risks and exposure of the less protective environment of community settings"; for these persons, "institutional settings are needed and must remain available."); Brief for Voice of the Retarded et al. as Amici Curiae 11 ("Each disabled person is entitled to treatment in the most integrated setting possible for that personrecognizing that, on a case-by-case basis, that setting may be in an institution."); ("For many mentally retarded people, the difference between the capacity to do things for themselves within an institution and total dependence on the institution for all of their needs is as much liberty as they ever will know."). To maintain a range of facilities and to administer services with an even hand, the State must have more leeway than the courts below understood the fundamental-alteration defense to allow. If, for example, the State were to demonstrate that it had a comprehensive, effectively working plan *606 for placing qualified persons with mental disabilities in less restrictive settings, and a waiting list that moved at a reasonable pace not controlled by the State's endeavors to keep its institutions fully populated, the reasonable-modifications standard would be met. See Tr. of Oral Arg. 5 (State's attorney urges that, "by asking [a] person to wait a short time until a community bed is available, Georgia does not exclude [that] person by reason of disability, neither does Georgia discriminate against her by reason of disability"); see also In such circumstances, a court would have no warrant effectively to order displacement of persons at the top of the communitybased treatment waiting list by individuals lower down who commenced civil actions.[16] *607 * * * For the reasons stated, we conclude that, under Title II of the ADA, States are required to |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | Today the Court holds that the federal Uniformed Services Former Spouses' Protection Act (Former Spouses' Protection Act or Act) denies state courts the power to order in a divorce decree the division of military retirement pay unilaterally waived by a retiree in order to receive veterans' disability benefits. The harsh reality of this holding is that former spouses like Gaye Mansell can, without their consent, be denied a fair share of their ex-spouse's military retirement pay simply because he elects to increase his after-tax income by converting a portion of that pay into disability benefits. On the Court's reading of the Former Spouses' Protection Act, Gaye Mansell will lose nearly 30 percent of the monthly retirement income she would otherwise have received as community property. I view the Court's holding as inconsistent with both the language and the purposes of the Act, and I respectfully dissent. The Court recognized in that "the plight of an ex-spouse of a retired service member is often a serious one." In holding that federal law precluded state courts from dividing nondisability military retired pay pursuant to state community property laws, McCarty concluded with an invitation to Congress to reexamine the issue. Congress promptly did so and enacted the Former Spouses' Protection Act. Today, despite overwhelming evidence that Congress intended to overrule McCarty completely, to alter pre-existing federal military retirement law so as to eliminate the pre-emptive effect *596 discovered in McCarty, and to restore to the States authority to issue divorce decrees affecting military retirement pay consistent with state law, the Court assumes that Congress only partially rejected McCarty and that the States can apply their community property laws to military retirement pay only to the extent that the Former Spouses' Protection Act affirmatively grants them authority to do so. Ante, 88. The McCarty decision, however, did not address retirement pay waived to receive disability benefits; nor did it identify any explicit statutory provision precluding the States from characterizing such waived retirement pay as community property. Thus, I reject the Court's central premise that the States are precluded by McCarty from characterizing as community property any retirement pay waived to receive disability benefits absent an affirmative grant of authority in the Former Spouses' Protection Act. In my view, Congress intended, by enacting the Former Spouses' Protection Act, to eliminate the effect of McCarty's pre-emption holding altogether and to return to the States their authority "to treat military pensions in the same manner as they treat other retirement benefits." S. Rep. No. 97-502, p. 10 (1982). See also The bill would accomplish this objective by |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | (1982). See also The bill would accomplish this objective by permitting Federal, State, and certain other courts, consistent with the appropriate laws, to once again consider military retired pay when fixing the property rights between the parties to a divorce, dissolution, annulment or legal separation"); ; 6 ("The provision is intended to remove the federal pre-emption found to exist by the United States Supreme Court and permit State and other courts of competent jurisdiction to apply pertinent State or other laws in determining *597 whether military retired or retainer pay should be divis[i]ble"); 128 Cong. Rec. 18314 (1982) ("The amendment simply returns to State courts the authority to treat military retired pay as it does other public and private pensions") (remarks of Rep. Schroeder, bill sponsor). Family law is an area traditionally of state concern, and we have not found federal pre-emption of state authority in this area absent a determination that "Congress has `positively required by direct enactment' that state law be pre-empted." ). The Former Spouses' Protection Act does not "positively require" States to abandon their own law concerning the divisibility upon divorce of military retirement pay waived in order to obtain veterans' disability benefits. On the contrary, the whole thrust of the Act was to restore to the States their traditional authority in the area of domestic relations. Even beyond that restoration, Congress sought to provide greater federal assistance and protection to military spouses than existed before McCarty by creating a federal garnishment remedy in aid of state court community property awards. That, in fact, is the central purpose and preoccupation of the Act's complex statutory framework. The Former Spouses' Protection Act is primarily a remedial statute creating a mechanism whereby former spouses armed with state court orders may enlist the Federal Government to assist them in obtaining some of their property entitlements upon divorce. The federal garnishment remedy created by the Act is limited, but it serves as assistance and not, as the Court would have it, a hindrance to former spouses. Thus, the provision 0 U.S. C. 1408(a)(4)(B) (1982 ed. and Supp. V) of the Act defining "[d]isposable retired or retainer pay" to exclude "amounts waived in order to receive compensation under title 5 or title 38," and its incorporation into 1408(c)(1)'s community property provision, only limits the federal garnishment remedy created by the Act. It does not limit the authority *598 of States to characterize such waived retirement pay as community property under state law. This reading is reinforced by the legislative history, which indicates that "[t]he specific deductions that are to be made |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | indicates that "[t]he specific deductions that are to be made from the total monthly retired and retainer pay generally parallel those existing deductions which may be made from the pay of Federal employees and military personnel before such pay is subject to garnishment for alimony or child support payments under section 459 of the Social Security Act (42 U.S. C. 659)." S. Rep. No. 97-502, 4 The Court finds that this statement "is not helpful in determining why Congress chose to use the defined term `disposable retired or retainer pay' to limit state-court authority in 1408(c)(1)." Ante, 92, n. 14. True, it is singularly unhelpful in supporting the Court's view that 1408(c)(1) denies state courts authority to characterize retirement pay waived in lieu of disability benefits as community property. By contrast, it is helpful in determining why Congress chose to use "disposable retired or retainer pay" as the term limiting state court authority to garnish military retirement pay. In light of the fact that disability benefits are exempt from garnishment in most cases, 38 U.S. C. 3101(a) (1982 ed., Supp. V), had Congress not excluded "amounts waived" in order to receive veterans' disability benefits from the federal garnishment remedy created by the Former Spouses' Protection Act it would have eviscerated the force of the anti-attachment provisions of 3101(a). To take advantage of the federal garnishment remedy, which provides for direct payment by the Government to former spouses in specified circumstances, former spouses must serve on the appropriate service Secretary court orders meeting certain requirements. In the case of a division of property, the court order must "specifically provid[e] for the payment of an amount, expressed in dollars or as a percentage of disposable retired or retainer pay, from the disposable retired or retainer pay of a member." 10 U.S. C. 1408(a) *599 (2)(C) (1982 ed., Supp. V). It must contain certain information and be regular on its face. 1408(b)(1)(B), 1408(b) (1)(C), 1408(b)(1)(D), 1408(b)(2) (1982 ed. and Supp. V). The Act sets forth the procedures to be followed by the Secretary in making payments directly to former spouses. 1408(d) (1982 ed. and Supp. V). Finally, the Act places limits on the total amount of disposable retirement pay that may be paid by the Secretary to former spouses, 1408(e)(1), 1408(e)(4) (B) (1982 ed. and Supp. V), and it clarifies the procedures to be followed in the event of multiple or conflicting court orders. 1408(e)(2), 1408(e)(3)(A) (1982 ed., Supp. V). Subsection 1408(c)(1) authorizes the application of this federal garnishment remedy to community property awards by providing that "a court may treat |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | community property awards by providing that "a court may treat disposable retired or retainer pay payable to a member either as property solely of the member or as property of the member and his spouse in accordance with the law of the jurisdiction of such court." (Emphasis added.) This provision should not be read to preclude States from characterizing retirement pay waived to receive disability benefits as community property but only to preclude the use of the federal direct payments mechanism to attach that waived pay. Nor do 1408 (c)(2), (c)(3), and (c)(4) compel the conclusion that Congress intended to pre-empt States from characterizing gross military retirement pay as community property divisible upon divorce. Those three provisions indicate what States may "not" do. That Congress explicitly restricted the authority of courts in certain specific respects, however, does not support the inference that 1408(c)(1) an affirmative grant of power should be interpreted as precluding everything it does not grant. On the contrary, it supports the inference that Congress explicitly and directly precluded those matters it wished to pre-empt entirely, leaving the balance of responsibility in the area of domestic relations to the States. In this respect, the Court mischaracterizes Gaye Mansell's argument as insisting that "the Act contemplates no federal pre-emption." *600 Ante, 92. Subsection 1408(c) has substantive effects on the power of state courts its first paragraph expands those powers ("a court may treat"); its remaining paragraphs restrict those powers ("this section does not create"; "[t]his section does not authorize"; "[a] court may not treat"). That States remain free to characterize waived portions of retirement pay as community property is unambiguously underscored by the broad language of the saving clause contained in the Act, 1408(e)(6). That clause provides: "Nothing in this section shall be construed to relieve a member of liability for the payment of alimony, child support, or other payments required by a court order on the grounds that payments made out of disposable retired or retainer pay under this section have been made in the maximum amount permitted under paragraph (1) or subparagraph (B) of paragraph (4). Any such unsatisfied obligation of a member may be enforced by any means available under law other than the means provided under this section in any case in which the maximum amount permitted under paragraph (1) has been paid and under section 459 of the Social Security Act (42 U.S. C. 659) in any case in which the maximum amount permitted under subparagraph (B) of paragraph (4) has been paid." (Emphasis added.) The Court explains that the saving |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | been paid." (Emphasis added.) The Court explains that the saving clause "serves the limited purpose of defeating any inference that the federal direct payments mechanism displaced the authority of state courts to divide and garnish property not covered by the mechanism." Ante, 90 I agree. What I do not understand is how the Court can read the Act's saving clause in this manner and yet conclude, without contradiction, that California may not characterize retirement pay waived for disability benefits as community property. All California seeks to do is "divide and garnish property not covered by the [federal direct payments] mechanism." Specifically, California wishes to exercise its traditional family *601 law powers to divide as community property that portion of Major Mansell's retirement pay which he unilaterally converted into disability benefits, and use state-law garnishment remedies to attach the value of Gaye Mansell's portion of this community property. That is precisely what 1408(e)(6) saves to the States by "defeating" any contrary inference, ante, 90, that the Act has displaced the State's authority to enforce its divorce decrees "by any means available under law other than the means provided under this section." 1408(e)(6). As the California Supreme Court so aptly put it, in the saving clause Congress emphasized that "the limitations on the service secretary's ability to reach the retiree's gross pay [are] not to be deemed a limitation on the state court's ability to define the community property interests at the time of dissolution." In other words, while a former spouse may not receive community property payments that exceed 50 percent of a retiree's disposable retirement pay through the direct federal garnishment mechanism, 1408(e)(1), a state court is free to characterize gross retirement pay as community property depending on the law of its jurisdiction, and former spouses may pursue any other remedy "available under law" to satisfy that interest. "Nothing" in the Former Spouses' Protection Act relieves military retirees of liability under such law if they possess other assets equal to the value of the former spouse's share of the gross retirement pay. Under the Court's reading of the Act as precluding the States from characterizing gross retirement pay as community property, a military retiree has the power unilaterally to convert community property into separate property and increase his after-tax income, at the expense of his ex-spouse's financial security and property entitlements. To read the statute as permitting a military retiree to pocket 30 percent, 50 percent, even 80 percent of gross retirement pay by converting it into disability benefits and thereby to avoid his obligations *602 under state community property |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | thereby to avoid his obligations *602 under state community property law, however, is to distort beyond recognition and to thwart the main purpose of the statute, which is to recognize the sacrifices made by military spouses and to protect their economic security in the face of a divorce. Women generally suffer a decline in their standard of living following a divorce. See Weitzman, The Economics of Divorce: Social and Economic Consequences of Property, Alimony and Child Support Awards, Military wives face special difficulties because "frequent change-of-station moves and the special pressures placed on the military spouse as a homemaker make it extremely difficult to pursue a career affording economic security, job skills and pension protection." S. Rep. No. 97-502, at 6. The average military couple married for 20 years moves about 12 times, and military wives experience an unemployment rate more than double that of their civilian counterparts. Brief for Women's Equity Action League et al. as Amici Curiae 10-11. Retirement pay, moreover, is often the single most valuable asset acquired by military couples. 8. Indeed, the one clear theme that emerges from the legislative history of the Act is that Congress recognized the dire plight of many military wives after divorce and sought to protect their access to their ex-husbands' military retirement pay. See S. Rep. No. 97-502, at 6; 128 Cong. Rec. 18318 (1982) ("[F]requent military moves often preclude spouses from pursuing their own careers and establishing economic independence. As a result, military spouses are frequently unable to vest in their own retirement plans or obtain health insurance coverage from a private employer. Military spouses who become divorced often lose all access to retirement and health benefits despite a `career' devoted to the military") (remarks of Rep. Schumer). See also 8315, 18316, 18317, 18320, 18323, 18328. Reading the Act as not precluding States from characterizing retirement pay waived to receive disability benefits as property divisible upon divorce is faithful to *603 the clear remedial purposes of the statute in a way that the Court's interpretation is not. The conclusion that States may treat gross military retirement pay as property divisible upon divorce is not inconsistent with 38 U.S. C. 3101(a) (1982 ed., Supp. V). This anti-attachment provision provides that veterans' disability benefits "shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." Gaye Mansell acknowledges, as she must, that 3101(a) precludes her from garnishing under state law Major Mansell's veterans' disability benefits in satisfaction of her claim to a share of |
Justice O'Connor | 1,989 | 14 | dissenting | Mansell v. Mansell | https://www.courtlistener.com/opinion/112267/mansell-v-mansell/ | benefits in satisfaction of her claim to a share of his gross military retirement pay, just as 1408(c)(1) precludes her from invoking the federal direct payments mechanism in satisfaction of that claim. To recognize that 3101(a) protects the funds from a specific source, however, does not mean that 3101(a) prevents Gaye Mansell from recovering her 50 percent interest in Major Mansell's gross retirement pay out of any income or assets he may have other than his veterans' disability benefits. So long as those benefits themselves are protected, calculation of Gaye Mansell's entitlement on the basis of Major Mansell's gross retirement pay does not constitute an "attachment" of his veterans' disability benefits. Section 3101(a) is designed to ensure that the needs of disabled veterans and their families are met, see without interference from creditors. That purpose is fulfilled so long as the benefits themselves are protected by the anti-attachment provision. In sum, under the Court's interpretation of the Former Spouses' Protection Act, the former spouses Congress sought to protect risk having their economic security severely undermined by a unilateral decision of their ex-spouses to waive retirement pay in lieu of disability benefits. It is inconceivable that Congress intended the broad remedial purposes of the statute to be thwarted in such a way. To be sure, as the Court notes, Congress sought to be "fair and equitable" to retired *604 service members as well as to protect divorced spouses. Ante, 93-594, and n. 19. Congress explicitly protected military members by limiting the percentage of disposable retirement pay subject to the federal garnishment remedy and by expressly providing that military members could not be forced to retire. See 10 U.S. C. 1408(e)(1), 1408(e)(4)(B), 1408(c)(3). Moreover, a retiree is still advantaged by waiving retirement pay in lieu of disability benefits: the pay that is waived is not subject to the federal direct payments mechanism, and the former spouse must resort instead to the more cumbersome and costly process of seeking a state garnishment order against the value of that waived pay. See H. R. Rep. No. 98-700, pp. 4-5 (1984) (discussing difficulties faced by ex-spouses in obtaining state garnishment orders). Even these state processes cannot directly attach the military retiree's disability benefits for purposes of satisfying a community property division given the strictures of the anti-attachment provision of 38 U.S. C. 3101(a). There is no basis for concluding, however, that Congress sought to protect the interests of service members by allowing them unilaterally to deny their former spouses any opportunity to obtain a fair share of the couple's military retirement pay. It is now |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | Police officers entered Bernard Harris' home and arrested him there. They did not have an arrest warrant, he did not consent to their entry, and exigent circumstances did not exist. An arrest in such circumstances violates the Fourth Amendment. See ; see ante, at 16, 17. About an hour after his arrest, Harris made an incriminating statement, which the government subsequently used at his trial. The majority concedes that the fruits of that illegal entry must be suppressed. See ante, at 20. The sole question before us is whether Harris' statement falls within that category. The majority answers this question by adopting a broad and unprecedented principle, holding that "where the police have probable cause to arrest a suspect, the exclusionary rule does not bar the State's use of a statement made by the defendant outside of his home, even though the statement is taken after an arrest made in the home in violation of Payton." Ante, this page. The majority's conclusion is wrong. Its reasoning amounts to nothing more than an analytical sleight of hand, resting on errors in logic, misreadings of our cases, and an apparent blindness to the incentives the Court's *22 ruling creates for knowing and intentional constitutional violations by the police. I dissent. I In recent years, this Court has repeatedly stated that the principal purpose of the Fourth Amendment's exclusionary rule is to eliminate incentives for police officers to violate that Amendment. See, e. g., United A police officer who violates the Constitution usually does so to obtain evidence that he could not secure lawfully. The best way to deter him is to provide that any evidence so obtained will not be admitted at trial. Deterrence of constitutional violations thus requires the suppression not only of evidence seized during an unconstitutional search, but of "derivative evidence, both tangible and testimonial, that is the product of the primary evidence, or that is otherwise acquired as an indirect result of the unlawful search." ; see Wong Not all evidence connected to a constitutional violation is suppressible, however. Rather, the Court has asked " `whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary ' " Accord, ; ; Because deterrence is a principal purpose of the exclusionary rule, our attenuation analysis must be driven by an understanding of how extensive exclusion must be to deter violations of the Fourth Amendment. We have long held that where police have obtained a |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | We have long held that where police have obtained a statement after violating the Fourth Amendment, the interest in deterrence does not *23 disappear simply because the statement was voluntary, as required by the Fifth Amendment. See, e. g., ; ; at Police officers are well aware that simply because a statement is "voluntary" does not mean that it was entirely unaffected by the Fourth Amendment violation. See Indeed, if the Fourth Amendment required exclusion only of statements taken in violation of the Fifth Amendment, the Fourth Amendment would serve no independent purpose. A regime that suppresses only some fruits of constitutional violations is a regime that barely begins to eliminate the incentives to violate the Constitution. When faced with a statement obtained after an illegal arrest, then, a court will have occasion to engage in the attenuation inquiry only if it first determines that the statement is "voluntary," for involuntary statements are suppressible in any event. Attenuation analysis assumes that the statement is "voluntary" and asks whether the connection between the illegal police conduct and the statement nevertheless requires suppression to deter Fourth Amendment violations. That question cannot be answered with a set of per se rules. An inquiry into whether a suspect's statement is properly treated as attributable to a Fourth Amendment violation or to the suspect's independent act of will has an irreducibly psychological aspect, and irrebuttable presumptions are peculiarly unhelpful in such a context. Accordingly, we have identified several factors as relevant to the issue of attenuation: the length of time between the arrest and the statement, the presence of intervening circumstances, and the "purpose and flagrancy" of the violation. See, e. g., We have identified the last factor as "particularly" When a police officer intentionally violates what he knows to be a constitutional command, exclusion is essential to conform police behavior to the law. Such a "flagrant" violation is in marked contrast to a violation *24 that is the product of a good-faith misunderstanding of the relevant constitutional requirements. This Court has suggested that excluding evidence that is the product of the latter variety of violation may result in deterrence of legitimate law enforcement efforts. See Underlying this view is the theory that officers fear that if their judgment as to the constitutionality of their conduct turns out to be wrong, the consequences of their misjudgments may be too costly to justify the possible law enforcement benefits. Any doubt concerning the constitutionality of a course of action will therefore be resolved against that course of action. Whatever the truth of that theory,[1] the concern that |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | action. Whatever the truth of that theory,[1] the concern that officers who act in good faith will be overdeterred is nonexistent when, based on a cynical calculus of the likely results of a suppression hearing, an officer intentionally decides to violate what he knows to be a constitutional command. An application of the factors to this case compels the conclusion that Harris' statement at the station house must be suppressed. About an hour elapsed between the illegal arrest and Harris' confession, without any intervening factor other than the warnings required by This Court has held, however, that "Miranda warnings, alone and per se, cannot assure in every case that the Fourth Amendment violation has not been unduly exploited." at 603 (citing Westover v. United States, decided with ). See Indeed, in we held that a statement made almost two hours after an illegal arrest, and after Miranda warnings had *25 been given, was not sufficiently removed from the violation so as to dissipate the As to the flagrancy of the violation, petitioner does not dispute that the officers were aware that the Fourth Amendment prohibited them from arresting Harris in his home without a warrant. Notwithstanding the officers' knowledge that a warrant is required for a routine arrest in the home, "the police went to defendant's apartment to arrest him and, as the police conceded, if defendant refused to talk to them there they intended to take him into custody for questioning. Nevertheless, they made no attempt to obtain a warrant although five days had elapsed between the killing and the arrest and they had developed evidence of probable cause early in their investigation. Indeed, one of the officers testified that it was departmental policy not to get warrants before making arrests in the home. From this statement a reasonable inference can be drawn that the department's policy was a device used to avoid restrictions on questioning a suspect until after the police had strengthened their case with a confession. Thus, the police illegality was knowing and intentional, in the language of it `had a quality of purposefulness,' and the linkage between the illegality and the confession is clearly established."[2] *26 In short, the officers decided, apparently consistent with a "departmental policy," to violate Harris' Fourth Amendment rights so they could get evidence that they could not otherwise obtain. As the trial court held, "No more clear violation of [Payton], in my view, could be established." App. 20. Where, as here, there is a particularly flagrant constitutional violation and little in the way of elapsed time or intervening circumstances, the |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | in the way of elapsed time or intervening circumstances, the statement in the police station must be suppressed. II Had the Court analyzed this case as our precedents dictate that it should, I could end my discussion here the dispute would reduce to an application of the factors to the constitutional wrong and the inculpatory statement that followed. But the majority chooses no such unremarkable battleground. Instead, the Court redrafts our cases in the service of conclusions they straightforwardly and explicitly reject. Specifically, the Court finds suppression unwarranted on the authority of its newly fashioned per se rule. In the majority's view, when police officers make a warrantless home arrest in violation of Payton, their physical exit from the suspect's home necessarily breaks the causal chain between the illegality and any subsequent statement by the suspect, such that the statement is admissible regardless of the factors.[3] *27 The Court purports to defend its new rule on the basis of the self-evident proposition that the Fourth Amendment does not necessarily require the police to release or to forgo the prosecution of a suspect arrested in violation of Payton. Ante, at 18. To the Court, it follows as a matter of course from this proposition that a Payton violation cannot in any way be the "cause" of a statement obtained from the suspect after he has been forced from his home and is being lawfully detained. Because an attenuation inquiry presupposes some connection between the illegality and the statement, the Court concludes that no such inquiry is necessary here. Ante, at 18. Neither logic nor precedent supports that conclusion. A Certainly, the police were not required to release Harris or forgo his prosecution simply because officers arrested him in violation of Payton. But it is a dramatic leap from that unexceptionable proposition to the suggestion that the Payton violation thus had no effect once the police took Harris from his home. The Court's view to the contrary appears to rest on a cramped understanding of the purposes underlying Payton. The home is a private place, more private than any other. An invasion into the home is therefore the worst kind of invasion of privacy. An intrusion into that sanctum is an assault on the individual's solitude and on the family's communal bonds. As we said in Payton: "The Fourth Amendment protects the individual's privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by *28 the unambiguous physical dimensions of an individual's home a zone that finds its roots in clear |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | home a zone that finds its roots in clear and specific constitutional terms: `The right of the people to be secure in their houses shall not be violated.' That language unequivocally establishes the proposition that `[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.' " -590 ). See The majority's per se rule in this case fails to take account of our repeated holdings that violations of privacy in the home are especially invasive. Rather, its rule is necessarily premised on the proposition that the effect of a Payton violation magically vanishes once the suspect is dragged from his home. But the concerns that make a warrantless home arrest a violation of the Fourth Amendment are nothing so evanescent. A person who is forcibly separated from his family and home in the dark of night after uniformed officers have broken down his door, handcuffed him, and forced him at gunpoint to accompany them to a police station does not suddenly breathe a sigh of relief at the moment he is dragged across his doorstep. Rather, the suspect is likely to be so frightened and rattled that he will say something incriminating. These effects, of course, extend far beyond the moment the physical occupation of the home ends. The entire focus of the factors is to fix the point at which those effects are sufficiently dissipated that deterrence is not meaningfully advanced by suppression. The majority's assertion, as though the proposition were axiomatic, that the effects of such an intrusion must end when the violation ends is both *29 undefended and indefensible. The Court's saying it may make it law, but it does not make it true. B The majority's reading of our cases similarly lacks foundation. In the majority's view, our attenuation cases are not concerned with the lingering taint of an illegal arrest; rather, they focus solely on whether a subsequently obtained statement is made during an illegal detention of the suspect. Ante, at 18-19 ( ). In the Court's view, if (and only if) the detention is illegal at the moment the statement is made will it be suppressed. Unlike an arrest without probable cause, a Payton violation alone does not make the subsequent detention of the suspect illegal. Thus, the Court argues, no statement made after a Payton violation has ended is suppressible by reason of the Fourth Amendment violation as long as the police have probable cause.[4] The majority's theory lacks any support in our cases. |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | cause.[4] The majority's theory lacks any support in our cases. In each case presenting issues similar to those here, we have asked the same question: whether the invasion of privacy occasioned by the illegal arrest taints a statement made after the violation has ended stated another way, whether the arrest caused the statement. See, e. g., Wong -; -592, 603; * 218; 457 U. S., at 694. Never before today has this Court asked whether the illegality itself was continuing at the time the evidence was secured. See ("In short, the `dissipation of the taint' concept that the Court has applied in deciding whether exclusion is appropriate in a particular case `attempts to mark the point at which the detrimental consequences of illegal police action become so attenuated that the deterrent effect of the exclusionary rule no longer justifies its cost' ") Indeed, such an approach would render irrelevant the first and second of the factors, which focus, respectively, on the passage of time and the existence of intervening factors between the illegality and the subsequently obtained statement. If, as the majority claims, the analysis does not even apply unless the illegality is ongoing at the time the evidence is secured, no time would ever pass and no circumstance would ever intervene between the illegality and the statement. The only Supreme Court case in which the majority even attempts to find support is United Crews, however, is inapposite. In that case, the defendant moved to suppress a witness's in-court identification of him on the ground that he had been illegally arrested. Crews' theory was that he was the fruit of his own illegal arrest that he himself should have been "suppressed." Because no identification of him could have been made if he were not in the courtroom, his argument proceeded, that identification had to be suppressed in turn. The Court rejected Crews' argument: "Insofar as [Crews] challenges his own presence at trial, he cannot claim immunity from prosecution simply because his appearance in court was precipitated by an unlawful arrest. An illegal arrest, without more, has never been viewed as a bar to subsequent prosecution, nor as a defense to a valid conviction. The exclusionary *31 principle of Wong and Silverthorne Lumber Co. [v. United States,] delimits what proof the Government may offer against the accused at trial, closing the courtroom door to evidence secured by official lawlessness. [Crews] is not himself a suppressible `fruit,' and the illegality of his detention cannot deprive the Government of the opportunity to prove his guilt through the introduction of evidence wholly |
Justice Marshall | 1,990 | 15 | dissenting | New York v. Harris | https://www.courtlistener.com/opinion/112413/new-york-v-harris/ | to prove his guilt through the introduction of evidence wholly untainted by the police misconduct." Seen in context, the majority's misuse of Crews is apparent. As in Wong and Harris seeks to suppress evidence a statement he made one hour after his arrest. He does not contend that he cannot be tried because he was arrested illegally, nor does he in any way link his demand for suppression of his statement to a claim that his presence at trial, or anywhere else, should somehow be suppressed. Crews is therefore irrelevant. The only authority the majority cites that directly supports its novel view of is a concurring opinion in the New York Court of Appeals, ante, at 19, which is hardly a sufficient basis on which to reject almost years of cases. C Perhaps the most alarming aspect of the Court's ruling is its practical consequences for the deterrence of Payton violations. Imagine a police officer who has probable cause to arrest a suspect but lacks a warrant. The officer knows if he were to break into the home to make the arrest without first securing a warrant, he would violate the Fourth Amendment and any evidence he finds in the house would be suppressed. Of course, if he does not enter the house, he will not be able to use any evidence inside the house either, for the simple reason that he will never see it. The officer knows, though, that waiting for the suspect to leave his house before arresting him could entail a lot of waiting, and the time he *32 would spend getting a warrant would be better spent arresting criminals. The officer could leave the scene to obtain a warrant, thus avoiding some of the delay, but that would entail giving the suspect an opportunity to flee. More important, the officer knows that if he breaks into the house without a warrant and drags the suspect outside, the suspect, shaken by the enormous invasion of privacy he has just undergone, may say something incriminating. Before today's decision, the government would only be able to use that evidence if the Court found that the taint of the arrest had been attenuated; after the decision, the evidence will be admissible regardless of whether it was the product of the unconstitutional arrest.[5] Thus, the officer envisions the following best-case scenario if he chooses to violate the Constitution: He avoids a major expenditure of time and effort, ensures that the suspect will not escape, and procures the most damaging evidence of all, a confession. His worst-case scenario is that |
Justice Blackmun | 1,976 | 11 | dissenting | Commissioner v. Shapiro | https://www.courtlistener.com/opinion/109396/commissioner-v-shapiro/ | I would have thought that when the Commissioner of Internal Revenue, on December 21, 1973, provided respondent Samuel Shapiro with supplements to the responses to the interrogatories, at that time, if not before, he surely satisfied and met all that was required to bring the Anti-Injunction Act, 26 U.S. C. 7421 (a), and the principle of into full and effective application. It would follow that the District Court's dismissal of the complaint at that point was entirely proper and should have been affirmed. Given, however, the result the Court very recently reached in the decision today, shored up by what seem to me to be *635 the inapposite cases cited, ante, at 629-630, n. 11, is not unexpected. I am far from certain that the Court is correct, and I am confused by the Court's failure even to cite Bob Jones and two cases heavily relied upon by the Commissioner here and, I think, of some significance. I observe only that, with Laing and the present decision, the Court now has traveled a long way down the road to the emasculation of the Anti-Injunction Act, and down the companion pathway that leads to the blunting of the strict requirements of Williams Packing and, now, of Mr. Justice Brandeis' opinion for a unanimous Court in The Court has taken this Laing-Shapiro tack, I suspect, as a response to what it deems to be administrative excesses with respect to suspected narcotics operatives who also are, or should be, taxpayers. Whether all this will prove to be stultifying or embarrassing to the collection of the revenues in a more temperate and untroubled time, I do not know. Perhaps, up to a point, the Congress will come to the rescue. The Court, ante, at 624-626, n. 9, demonstrates, of course, that the present case is in a most unsatisfactory posture for review here. It is unfortunate that a case so posed occasions the pronouncement of new and, so far as tax collection efforts are concerned, regressive law. I would reverse the judgment of the Court of Appeals. |
Justice Powell | 1,981 | 17 | dissenting | Democratic Party of United States v. Wisconsin Ex Rel. La Follette | https://www.courtlistener.com/opinion/110418/democratic-party-of-united-states-v-wisconsin-ex-rel-la-follette/ | Under Wisconsin law, the Wisconsin delegations to the Presidential nominating conventions of the two major political parties are required to cast their votes in a way that *127 reflects the outcome of the State's "open" primary election. That election is conducted without advance party registration or any public declaration of party affiliation, thus allowing any registered voter to participate in the process by which the Presidential preferences of the Wisconsin delegation to the Democratic National Convention are determined. The question in this case is whether, in light of the National Party's rule that only publicly declared Democrats may have a voice in the nomination process, Wisconsin's open primary law infringes the National Party's First Amendment rights of association. Because I believe that this law does not impose a substantial burden on the associational freedom of the National Party, and actually promotes the free political activity of the citizens of Wisconsin, I dissent. I The Wisconsin open primary law was enacted in 1903. 1903 Wis. Laws, ch. 451. It was amended two years later to apply to Presidential nominations. 1905 Wis. Laws, ch. 369. See As the Wisconsin Supreme Court described in its opinion below: "The primary was aimed at stimulating popular participation in politics thereby ending boss rule, corruption, and fraudulent practices which were perceived to be part of the party caucus or convention system. Robert M. La Follette, Sr., supported the primary because he believed that citizens, should nominate the party candidates; that the citizens, not the party bosses, could control the party by controlling the candidate selection process; and that the candidates and public officials would be more directly responsible to the citizens." As noted in the opinion of the Court, the open primary law only recently has come into conflict with the rules of the National Democratic Party. The new Rule 2A was enacted *128 as part of a reform effort aimed at opening up the party to greater popular participation. This particular rule, however, has the ironic effect of calling into question a state law that was intended itself to open up participation in the nominating process and minimize the influence of "party bosses." II The analysis in this kind of First Amendment case has two stages. If the law can be said to impose a burden on the freedom of association, then the question becomes whether this burden is justified by a compelling state interest. E. g., The Court in this case concludes that the Wisconsin law burdens associational freedoms. It then appears to acknowledge that the interests asserted by Wisconsin are substantial, ante, at |
Justice Powell | 1,981 | 17 | dissenting | Democratic Party of United States v. Wisconsin Ex Rel. La Follette | https://www.courtlistener.com/opinion/110418/democratic-party-of-united-states-v-wisconsin-ex-rel-la-follette/ | that the interests asserted by Wisconsin are substantial, ante, at 120-121, but argues that these interests "go to the conduct of the Presidential preference primarynot to the imposition of voting requirements upon those who, in a separate process, are eventually selected as delegates," ante, at 125. In my view, however, any burden here is not constitutionally significant, and the State has presented at least a formidable argument linking the law to compelling state interests. A In analyzing the burden imposed on associational freedoms in this case, the Court treats the Wisconsin law as the equivalent of one regulating delegate selection, and, relying on concludes that any interference with the National Party's accepted delegate-selection procedures impinges on constitutionally protected rights. It is important to recognize, however, that the facts of this case present issues that differ considerably from those we dealt with in Cousins. In Cousins, we reversed a determination that a state court could interfere with the Democratic Convention's freedom to *129 select one delegation form the State of Illinois over another. At issue in the case was the power of the National Party to reject a delegation chosen in accordance with state law because the State's delegate-selection procedures violated party rules regarding participation of minorities, women, and young people, as well as other matters. See The state court had ordered the Convention to seat the delegation chosen under state law, rather than the delegation preferred by the convention itself. In contrast with the direct state regulation of the delegate-selection process at issue in Cousins, this case involves a state statutory scheme that regulates delegate selection only indirectly. Under Wisconsin law, the "method of selecting the delegates or alternates [is] determined by the state party organization," (3) (1977). Wisconsin simply mandates that each delegate selected, by whatever procedure, must be pledged to represent a candidate who has won in the state primary election the right to delegate votes at the Convention.[1] In sum, Wisconsin merely requires that the delegates "vote in accordance with the results of the Wisconsin open primary." Ante, at 126. While this regulation affecting participation in the primary is hardly insignificant, it differs substantially from the direct state interference in delegate selection at issue in Cousins. This difference serves to emphasize the importance of close attention to the way in which a state law is said to impose a burden on a party's freedom of association. Cf. All that Wisconsin has done is to require the major parties to allow voters to affiliate with themfor the limited purpose of participation in a primarysecretly, in the privacy *130 |
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