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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/ | purpose of participation in a primarysecretly, in the privacy *130 of the voting booth.[2] The Democrats remain free to require public affiliation from anyone wishing any greater degree of participation in party affairs. In Wisconsin, participation in the caucuses where delegates are selected is limited to publicly affiliated Democrats. Brief for Appellee Democratic Party of Wisconsin 19. And, as noted above, the State's law requires that delegates themselves affirm their membership in the party publicly. In evaluating the constitutional significance of this relatively minimal state regulation of party membership requirements, I am unwillingat least in the context of a claim by one of the two major political partiesto conclude that every conflict between state law and party rules concerning participation in the nomination process creates a burden on associational rights. Instead, I would look closely at the nature *131 of the intrusion, in light of the nature of the association involved, to see whether we are presented with a real limitation on First Amendment freedoms. It goes without saying that nomination of a candidate for President is a principal function performed by a national political party, and Wisconsin has, to an extent, regulated the terms on which a citizen may become a "member" of the group of people permitted to influence that decision. If appellant National Party were an organization with a particular ideological orientation or political mission, perhaps this regulation would present a different question.[3] In such a case, the state law might well open the organization to participation by persons with incompatible beliefs and interfere with the associational rights of its founders. The Democratic Party, however, is not organized around the achievement of defined ideological goals. Instead, the major parties in this country "have been characterized by a fluidity and overlap of philosophy and membership." It can hardly be denied that this Party generally has been composed of various elements reflecting most of the American Political spectrum.[4] The Party does take positions *132 on public issues, but these positions vary from time to time, and there never has been a serious effort to establish for the Party a monolithic ideological identity by excluding all those with differing views. As a result, it is hard to see what the Democratic Party has to fear from an open primary plan. Wisconsin's law may influence to some extent the outcome of a primary contest by allowing participation by voters who are unwilling to affiliate with the Party publicly. It is unlikely, however, that this influence will produce a delegation with preferences that differ from those represented by a substantial number of |
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 differ from those represented by a substantial number of delegates from other parts of the country. Moreover, it seems reasonable to conclude that, insofar as the major parties do have ideological identities, an open primary merely allows relatively independent voters to cast their lot with the party that speaks to their present concerns.[5]*133 By attracting participation by relatively independent-minded voters, the Wisconsin plan arguably may enlarge the support for a party at the general election. It is significant that the Democratic Party of Wisconsin, which represents those citizens of Wisconsin willing to take part publicly in Party affairs, is here defending the state law. Moreover, the National Party's apparent concern that the outcome of the Wisconsin Presidential primary will be skewed cannot be taken seriously when one considers the alternative delegate-selection methods that are acceptable to the Party under its rules. Delegates pledged to various candidates may be selected by a caucus procedure involving a small minority of Party members, as long as all participants in the process are publicly affiliated. While such a process would eliminate "crossovers," it would be at least as likely as an open primary to reflect inaccurately the views of a State's Democrats.[6] In addition, the National Party apparently is quite willing to accept public affiliation immediately before primary voting, which some States permit.[7] As Party affiliation becomes this easy for a voter to change in order to participate in a particular primary election, the difference between open and closed primaries loses its practical significance.[8] *134 In sum, I would hold that the National Party has failed to make a sufficient showing of a burden on its associational rights.[9] B The Court does not dispute that the State serves important interests by its open primary plan. Instead the Court argues that these interests are irrelevant because they do not support a requirement that the outcome of the primary be binding on delegates chosen for the convention. This argument, however, is premised on the unstated assumption that a non-binding primary would be an adequate mechanism for pursuing the state interests involved. This assumption is unsupportable because the very purpose of a Presidential primary, as enunciated as early as 1903 when Wisconsin passed its first primary law, was to give control over the nomination process to individual voters.[10] Wisconsin cannot do this, and still pursue the interests underlying an open primary, without making the open primary binding.[11] *135 If one turns to the interests asserted, it becomes clear that they are substantial. As explained by the Wisconsin Supreme Court: "The state's interest in maintaining a primary |
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/ | Wisconsin Supreme Court: "The state's interest in maintaining a primary and in not restricting voting in the presidential preference primary to those who publicly declare and record their party preference is to preserve the overall integrity of the electoral process by encouraging increased voter participation in the political process and providing secrecy of the ballot, thereby ensuring that the primary itself and the political party's participation in the primary are conducted in a fair and orderly manner. "In guaranteeing a private primary ballot, the open primary serves the state interest of encouraging voters to participate in selecting the candidates of their party which, in turn, fosters democratic government. Historically the primary was initiated in Wisconsin in an effort to enlarge citizen participation in the political process and to remove from the political bosses the process of selecting candidates." -513, 287 N. W. 2d, at 536-537 (footnote omitted). The State's interest in promoting the freedom of voters to affiliate with parties and participate in party primaries has been recognized in the decisions of this court. In several cases, we have dealt with challenges to state laws restricting voters who wished to change party affiliation in order to participate in a primary. We have recognized that voters have a right of free association that can be impaired unconstitutionally if such state laws become too burdensome. In the Court upheld a *136 registration time limit, but emphasized that the law did not absolutely prevent any voter from participating in a primary and was "tied to a particularized legitimate purpose" of preventing "raiding."[12]Id., at 762. In we struck down an Illinois law that prevented voters who had participated in one party's primary from switching affiliations to vote in another party's primary during the succeeding 23 months. We concluded that such a law went too far in interfering with the freedom of the individual voter, and could not be justified by the State's interest in preventing raiding. Here, Wisconsin has attempted to ensure that the prospect of public party affiliation will not inhibit voters from participating in a Democratic primary. Under the cases just discussed, the National Party's rule requiring public affiliation for primary voters is not itself an unconstitutional interference with voters' freedom of association. (Conn.) (three-judge court), summarily aff'd, But these cases do support the State's interest in promoting free voter participation by allowing private party affiliation. The State of Wisconsin has determined that some voters are deterred from participation by a public affiliation requirement,[13] and the validity of that concern is not something that we should second-guess.[14] *137 III The history of |
Justice Brennan | 1,977 | 13 | dissenting | Codd v. Velger | https://www.courtlistener.com/opinion/109594/codd-v-velger/ | I dissent from today's holding substantially for the reasons expressed by my Brother STEVENS in Part I of his dissent, despite my belief that the Court's ruling is likely to be of little practical importance. Respondent alleged that he suffered deprivation of his liberty when petitioners terminated his employment and retained stigmatizing information in his employment file, information later disseminated to a prospective employer. Under Board of respondent therefore was entitled to a timely pretermination hearing. The Court today reaffirms Roth, but holds that respondent's retrospective claim for damages and equitable relief under 42 U.S. C. 1983 must be denied because "at no stage of this litigation,"[1]ante, at 628, has he "raise[d] an issue *630 about the substantial accuracy of the report" in question.[2]Ibid. That holding, I believe, erroneously allocates the burden of introducing truth or falsity into the lawsuit. Twice before this Term we have reasserted the principle that once a plaintiff establishes that another has interfered with his constitutional rights, the burden shifts to the wrongdoer to demonstrate that any such interference was strictly harmless. Arlington Heights v. Metropolitan Housing Dev. Corp., ante, at 270-271, n. 21; Mt. Healthy City Board of Ed. v. Doyle, ante, at 287. In this case respondent met his initial burden, for he adequately alleged that he has suffered injury to his reputation and job prospects in conjunction with a discharge from public employment, and that petitioners failed to comply with Roth's resulting requirement of a due process hearing. I agree that the District Court remains open to a determination that petitioners' denial of respondent's due process rights produced little[3] or no compensable injury, since, even had the *631 hearing properly been held, the stigmatizing charges would have remained unrefuted. But any such allegation and proof of truthful material properly is a defense to be raised by the defendant wrongdoersubject, of course, to appropriate disposition of the case by way of summary judgment should the employee thereupon fail to contest the "substantial accuracy of the report." Since petitioners interposed no such defense in this case, respondent's due process claim should be upheld. I also agree with Part III of MR. JUSTICE STEVENS' dissenting opinion, and I would therefore remand this case to the Court of Appeals for further proceedings. MR. |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | The Court decides today that petitioner "has not shown that the Government prosecuted him because of his protest activities," and it remands to permit his prosecution to go forward. However interesting the question decided by the Court may be, it is not necessary to the disposition of this case. Instead, the issue this Court must grapple with is far less momentous but no less deserving of thoughtful treatment. What it must decide is whether Wayte has earned the *615 right to discover Government documents relevant to his claim of selective The District Court ordered such discovery, the Government refused to comply, and the District Court dismissed the indictment. The Court of Appeals reversed on the grounds that Wayte had failed to prevail on the merits of his selective prosecution claim, and that the discovery order was improper. If Wayte is entitled to obtain evidence currently in the Government's possession, the Court cannot dismiss his claim on the basis of only the evidence now in the record. To prevail here, then, all that Wayte needs to show is that the District Court applied the correct legal standard and did not abuse its discretion in determining that he had made a nonfrivolous showing of selective prosecution entitling him to discovery. There can be no doubt that Wayte has sustained his burden. Therefore, his claim cannot properly be dismissed at this stage in the litigation. I respectfully dissent from this Court's decision to do so. I In order to understand the precise nature of the legal question before this Court, it is important to review in some detail the posture in which this case comes to us. In July an indictment filed in the District Court for the Central District of California charged Wayte with knowingly and willfully failing to register for the draft. In September Wayte moved to have the indictment dismissed on the ground of selective In support of his claim, he presented 10 exhibits: 7 internal Justice Department memoranda discussing the mechanism for the prosecution of individuals who failed to register for the draft, a report by the United States General Accounting Office discussing alternatives to the registration program, a statement by the Director of Selective Service before the Subcommittee on Courts, Civil Liberties and the Administration of Justice of the House Judiciary Committee, and a *616 transcript of a meeting of the Department of Defense's Military Manpower Task Force. According to Wayte, this evidence supported his claim that the Government had designed a prosecutorial scheme that purposefully discriminated against those who had chosen to exercise their First Amendment right |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | those who had chosen to exercise their First Amendment right to oppose draft registration. Wayte argued that he had demonstrated sufficient facts on his claim of selective prosecution to be entitled to an evidentiary hearing on that issue. In this regard, Wayte moved to discover a variety of Government documents that he asserted were relevant to his selective prosecution claim, and indicated his intention to subpoena seven out-of-district witnesses, including Edwin Meese III, the Counsellor to the President. On September 30, the District Court found that the motion to dismiss the indictment on the ground of selective prosecution was "non-frivolous." The following day, it held a hearing in which the parties presented their disagreements over Wayte's discovery requests. The District Court granted some of Wayte's requests, denied others, and ordered the Government to submit some documents for in camera inspection. At a hearing on October 5, the District Court denied the Government's motion for reconsideration of the discovery order and postponed ruling on the requested subpoenas until after a preliminary evidentiary hearing on Wayte's selective prosecution claim. This hearing was held on October 7. Two witnesses testified: David J. Kline, a Senior Legal Advisor at the Justice Department's Criminal Division, and Richard Romero, an Assistant United States Attorney in the Central District of California and the principal prosecutor in Wayte's case. Kline's testimony dealt extensively with the Justice Department's policies for prosecuting individuals who violated the draft-registration statute. At a nonevidentiary hearing on October 15, the District Court ruled that portions of three of the many documents that had been submitted in camera should be turned over to *617 the defense. The three documents in question had previously been given to the defense in expurgated fashion. As to certain parts of them, however, the District Court determined that the defense's need for the still undisclosed materials outweighed the Government's interest in nondisclosure. Specifically, the District Court ordered disclosure of two sentences and one paragraph in one letter, and one paragraph in each of two memoranda. The District Court also indicated that some of the documents submitted for in camera review had been redacted in a manner that made them incomprehensible. The Government was less than eager to comply with the District Court's order of October 15. The Government's response to that order indicated, in a paragraph that was later stricken at the Government's request following an admonishment by the District Court: "It is obvious that the Court's appetite for more and more irrelevant disclosures of sensitive information has become insatiable. It is also apparent that with each new disclosure, made |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | It is also apparent that with each new disclosure, made pursuant to near-impossible deadlines, the court feels compelled to impugn the motives of the Government." Record, Doc. No. 95, p. 3. The Government invoked a "deliberative processes" privilege for documents that it had turned over to the District Court for in camera review. It also refused to allow Meese's testimony, on the ground that all information on which he could testify was privileged. The saga continued on October 20, when the District Court ordered the production, for in camera review, of unredacted versions of documents that had previously been submitted in redacted form. The Government eventually complied with that order. On October 29, the District Court ordered that certain portions of those documents be turned over to the defense. The list of documents was kept under seal. The District Court *618 applied the standard for determining whether an assertion of executive privilege is valid announced in United The court determined: "Applying the balancing test from to the facts, this court finds that the scales of justice tip decidedly in favor of the defendant's right to review several of the documents which this court has inspected in camera. The Government's generalized assertion of a `deliberative process' executive privilege must yield to the defendant's specific need for for documents, which this court has determined must be released to Mr. Wayte." Record, Doc. No. 119, p. 5. In the same order, the District Court also granted Wayte's request that Meese be ordered to testify at an evidentiary hearing. In this connection, the District Court made a series of findings: (1) that the Government's normal prosecutorial policies were not being followed for the prosecution of nonregistrants; (2) that Meese served as a nexus between the White House and the Justice Department on this issue; and (3) that Meese had been directly involved in decisions involving the Government's prosecutorial policies toward nonregistrants. It therefore determined that his testimony was relevant to Wayte's claim. The Government refused to comply with the District Court's order of October 29. It explained: "[I]t is our position that important governmental interests are at stake in connection with our claim of privilege, which we sincerely believe have not been shown to be overridden in this case. Nor can we concur in the Court's conclusion that a sufficient basis has been established to justify requiring the appearance and testimony of an official as senior as the Counsellor to the President. Contrary to the Court's finding in its Order of October 29, we believe that the record amply demonstrates that decisions relating to |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | believe that the record amply demonstrates that decisions relating to the prosecution of nonregistrants were made within the Department of Justice and *619 that there is, therefore, no nexus between the White House and the selection of the defendant for " Record, Doc. No. 3, p. 3. The District Court held its last hearing on this matter on November 15. In an order and opinion filed that day, the District Court dismissed Wayte's indictment. It found, first, that Wayte had alleged sufficient facts on his selective prosecution claim "to take the question beyond the frivolous stage," at 1379 ), and thus had earned the right to discover relevant Government documents. Second, it found that the Government had refused to comply with the discovery order of October 29 and that it was the Government's position that "the only way to achieve appellate review of the Government's assertion of executive privilege is for the court to dismiss the indictment against the defendant." -1379; see Having made these findings, the District Court turned to the merits of Wayte's underlying claim. It found that Wayte had gone beyond satisfying the standard for obtaining discovery, and that he had in fact made out a prima facie case of selective -1380. As a result, the burden shifted to the Government to prove that its policy was not based on impermissible motives. The District Court found that the Government had failed to rebut Wayte's prima facie case. On appeal to the Court of Appeals for the Ninth Circuit, the Government conceded that "[t]he event that triggered dismissal for selective prosecution was the government's declination, following the surrender of Presidential documents to the court, to comply with orders directing that certain of *620 these documents be furnished to the defense and that Presidential Counsellor Edwin Meese be made available as a witness." Brief for United States in No. 82-1699 (CA9), p. 42. The Government gave two reasons for its refusal to comply with the District Court's order. First, it maintained that Wayte "did not even meet the colorable basis test so as to trigger a discovery obligation on the part of the government." Second, it argued that Wayte had not shown that he had a particularized need for the privileged materials that was sufficiently substantial to outweigh the asserted need to preserve confidentiality. The Government acknowledged that the District Court had applied the correct standard for evaluating claims of privilege that set out in United The Government, however, disagreed with the manner in which the District Court had weighed the relevant factors. In his brief to the |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | had weighed the relevant factors. In his brief to the Ninth Circuit, Wayte argued that one independent basis for the dismissal of the indictment was that the Government had refused to comply with the District Court's lawful discovery orders. Brief for Appellee in No. 82-1699 (CA9), pp. 20-31. Wayte's brief clearly stated that "the indictment could properly have been dismissed on that basis alone." In this connection, Wayte argued that he had alleged sufficient facts to take his selective prosecution claim beyond the frivolous stage, that the District Court's orders concerned materials that were relevant to that claim, that the propriety of discovery orders must be reviewed under an abuse of discretion standard, that the District Court had not abused its discretion in ordering discovery in this case, and that the District Court properly rejected the Government's claim of privilege. A divided panel of the Court of Appeals for the Ninth Circuit reversed the dismissal of Wayte's indictment. Writing for the majority, Judge Wright focused primarily on the merits of the underlying selective prosecution claim. He concluded that, on the record before the *621 court, Wayte had failed to show that he was selected for prosecution "because of his exercise of his constitutional rights." The Court of Appeals dealt with the Government's failure to comply with the discovery order in only one brief paragraph: "Because Wayte made no initial showing of selective prosecution, he was not entitled to discovery of government documents. That access to the documents might have been helpful to him does not in itself entitle him to discovery. The government's refusal to comply with the discovery orders was justified." In an unsuccessful petition for rehearing, Wayte argued that the majority had overlooked the standard of review applicable to trial court discovery orders. Pet. for Rehearing and Suggestion of Appropriateness of Rehearing en Banc in No. 82-1699 (CA9), pp. 8-10. Wayte renewed his selective prosecution arguments before this Court. See Pet. for Cert. 9-; Tr. of Oral Arg. 9-11. II A This streamlined account of the stormy proceedings below makes clear that, from a legal perspective, this case is first and foremost a discovery dispute. If the District Court correctly resolved the discovery issue, Wayte was entitled to additional evidence. And if he was entitled to additional evidence, the Court cannot reject his claim on the merits, on the basis of only the evidence to which Wayte had access at the time of the District Court proceedings.[1] *622 The question of whether the discovery order was appropriate breaks down into three narrower inquiries. The first is whether Wayte |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | down into three narrower inquiries. The first is whether Wayte made a sufficient showing of selective prosecution *623 to be entitled to any discovery. The second is whether the documents and testimony ordered released were relevant to Wayte's selective prosecution claim, that is, whether the scope of discovery was appropriate. The third is whether Wayte's need for the materials outweighed the Government's assertion of executive privilege. The Court of Appeals dealt with only the first of these questions, finding that an adequate showing had not been made. Thus, if that decision is incorrect, the proper disposition of this case is a remand to the Court of Appeals for a determination of the second and third questions. Certainly this Court is in no position to perform those inquiries, as the documents at stake, which were submitted to the District Court for in camera review, are not before us. B A two-part inquiry leads to the resolution of the narrow discovery question before this Court: (1) what showing must a defendant make to obtain discovery on a claim of selective prosecution, and (2) under what standard does an appellate court review a district court's finding that the required showing was made. The Courts of Appeals have adopted a standard under which a defendant establishes his right to discovery if he can show that he has a "colorable basis" for a selective prosecution claim. See, e. g., United ; United ; United ; United To make this showing, a defendant must allege sufficient facts in support of his selective prosecution claim "to take the question past the frivolous state." United ; United 576 F. 2d, at In general, a defendant must present "some evidence tending to show the existence of the essential elements of the defense." United at This standard, which the District Court applied in this case, is consistent with our exhortation that "[t]he need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts." United It also recognizes that most of the relevant proof in selective prosecution cases will normally be in the Government's hands. Cf. At the same time, the standard adequately protects the Government from attempts by the defense to seek discovery as a means of harassment or of delay. See United at With respect to the second determination, which concerns the appropriate scope of review, there is no doubt that trial judges should enjoy great deference in discovery matters. District court |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | judges should enjoy great deference in discovery matters. District court decisions on discovery are therefore not subject to plenary review on appeal, but are instead reviewed under an abuse-of-discretion standard. As we stated in United : "Enforcement of a pretrial subpoena duces tecum must necessarily be committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. Without a determination of arbitrariness or that the trial court finding was without record support, an appellate court will not ordinarily disturb a finding that the applicant for a subpoena complied with [Federal Rule of Criminal Procedure] 17(c)." The abuse-of-discretion standard acknowledges that appellate courts in general, and this Court in particular, should not * expend their limited resources making determinations that can profitably be made only at the trial level. Cf. Anderson v. Bessemer City, ante, at 573-576; The Court of Appeals below, however, did not even mention the appropriate standard of review, much less explain how to apply it. To the extent that its conclusory statements shed any light on the basis for its decision, it appears that the Court of Appeals performed a de novo inquiry. Such review is especially inappropriate in this case, given the painstaking care that the District Court took in supervising the discovery process, and the narrowly tailored scope of its rulings. III The proper starting point, then, is to consider whether the District Court abused its discretion in determining that Wayte had presented sufficient facts to support a nonfrivolous claim of selective I believe that the District Court acted well within the scope of its discretion. To evaluate the merit of Wayte's claim, I consider the elements of a prima facie case of selective prosecution and ascertain whether Wayte has made a nonfrivolous showing as to the existence of these elements. It is important to bear in mind at this stage that Wayte need not have made out a full prima facie case in order to be entitled to discovery. A prima facie case, of course, is one that if unrebutted will lead to a finding of selective It shifts to the Government the burden of rebutting the presumption of unconstitutional action. See ; ; ; But a defendant need not meet this high burden just to get discovery; the standard for discovery is merely nonfrivolousness. Moreover, Wayte need not convince this Court, as he had no need to persuade the Court of Appeals, that it would have *626 made a finding of nonfrivolousness itself if it had sat as a finder |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | of nonfrivolousness itself if it had sat as a finder of fact. All that he needs to show is that the District Court's finding of nonfrivolousness did not constitute an abuse of discretion. See United 546 F. 2d, at 242; United 501 F. 2d, at -. I turn, then, to consider whether a sufficient showing was made. The Court correctly points out that Wayte's selective prosecution claims must be judged according to ordinary equal protection standards. Ante, at 608; see U.S. 448, ; Yick Wayte presents an equal protection challenge to the "passive" enforcement system, under which Selective Service refers to the Justice Department for further investigation and possible prosecution only the "names of young men who fall into two categories: (1) those who wrote to Selective Service and said that they refused to register and (2) those whose neighbors and others reported them as persons who refused to register." App. 239. Wayte argues that the scheme purposefully singled out these individuals as a result of their exercise of First Amendment rights. See Brief for Appellee in No. 82-1699 (CA9), pp. 3-8, 11-20. To make out a prima facie case, Wayte must show first that he is a member of a recognizable, distinct class. Second, he must show that a disproportionate number of this class was selected for investigation and possible Third, he must show that this selection procedure was subject to abuse or was otherwise not neutral. The inquiry then is whether Wayte has presented sufficient evidence as to each of the elements to show that the claim is not frivolous. Wayte has clearly established the first element of a prima facie case. The record demonstrates unequivocally that Wayte is a member of a class of vocal opponents to the Government's draft registration program. All members of that class exercised a First Amendment right to speak freely and *627 to petition the Government for a redress of grievances, and either reported themselves or were reported by others as having failed to register for the draft. To establish the second element, Wayte must show that the "passive" enforcement policy identified for investigation and possible prosecution a disproportionate number of vocal opponents of draft registration. The record, as it stands given the Government's refusal to comply with the District Court's discovery order, does not contain a breakdown of how many of the approximately 300 young men referred by Selective Service to the Justice Department were "vocal." However, the record suggests that responsible officials in the Justice Department were aware that the vast majority of these individuals would be vocal opponents of |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | vast majority of these individuals would be vocal opponents of draft registration. For example, a draft letter prepared by David J. Kline, the Justice Department official responsible for overall enforcement of the draft registration law, for Assistant Attorney General Jensen to send to Herbert C. Puscheck, Selective Service's Associate Director for plans and operations, stated: "Unfortunately, we believe that if the government initiates prosecutions with only the present passive identification scheme in place, there exists a real risk that the United States will lose at least a few of those initial cases. There is a high probability that persons who write to the Service and that persons who are reported by others are vocal proponents of non-registration. Since a passive identification scheme necessarily means that there will be enormous numbers of non-registrants who are neither identified nor prosecuted, a prosecution of a vocal non-registrant will undoubtedly lead to claims that the prosecution is brought in retribution for the non-registrant's exercise of his first amendment rights. Indeed, with the present univers[e] of hundreds of thousands of non-registrants, the chances that a quiet non-registrant will be prosecuted is probably about the *628 same as the chances that he will be struck by lightning." App. 290-291 (emphasis added; citation omitted). Similarly a memorandum from Jensen to various United States Attorney's Offices states: "Selective Service's enforcement program is presently `passive.' Non-registrants are brought to the Service's attention either when they report themselves or when others report them. Consequently, the first prosecutions are liable to consist of a large sample of (1) persons who object on religious and moral grounds and (2) persons who publicly refuse to register." Perhaps, by itself, this evidence would not suffice to establish the second element of a prima facie case. However, it is more than adequate to make nonfrivolous the claim that the "passive" enforcement scheme identified for possible prosecution a disproportionate number of vocal opponents of draft registration. As to the third element, the decision to implement the "passive" enforcement system was certainly a decision susceptible to abuse. "This is indeed an exceptional area of national life where conscientious opposition to government policy has been intertwined with violations of the laws which implement the policy." United (Fairchild, J., concurring). The correlation between vocal opposition and violations of the law makes it relatively easy to punish speech under the guise of enforcing the laws. Here, the enforcement scheme was implemented with full knowledge that its effects would be particularly harsh on vocal opponents of the Government's policies. See App. 290-291, 361-362 ( at 627 and this page); Such knowledge |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | 290-291, 361-362 ( at 627 and this page); Such knowledge makes the scheme directly vulnerable to the charge that its purpose was to punish individuals for the exercise of their *629 First Amendment rights. This Court has recognized that "[a]dherence to a particular policy or practice, `with full knowledge of the predictable effects of such adherence is one factor among others which may be considered by a court' " in determining whether a decision was based on an impermissible ground. Columbus Board of ; see also Personnel Administrator of ; ("To discern the purposes underlying facially neutral policies, this Court has considered the foreseeability of any disproportionate impact"); United Thus, Wayte has established the first and third elements of a prima facie case, and has presented a colorable claim as to the second.[2] As a result, there can thus be no doubt that the District Court did not abuse its discretion when it found that Wayte's equal protection claim was not frivolous. The Court, of course, has not viewed this case through the same lens. Instead of focusing on the elements of a prima facie case, and on whether Wayte presented sufficient evidence as to the existence of each of these elements to earn the right to discover relevant information in the Government's possession, the Court leaps over these two issues and proceeds directly to the merits of the equal protection claim. The Court's analysis is flawed in two respects. First, as I have shown, the Court ignores the simple fact that, if Wayte is entitled to discovery, his claim cannot be rejected on the merits for lack of evidence. Second, and of equal importance, the Court errs in the manner in which it analyzes the merits of the equal protection claim. It simply focuses on the wrong problem when it states that "the Government treated all reported nonregistrants similarly" and that "those prosecuted in effect selected *630 themselves for prosecution by refusing to register after being reported and warned by the Government." Ante, at 610. Those issues are irrelevant to the correct disposition of this case. The claim here is not that the Justice Department discriminated among known violators of the draft registration law either in its administration of the "beg" policy, which gave such individuals the option of registering to avoid prosecution, or in prosecuting only some reported nonregistrants. Instead, the claim is that the system by which the Department defined the class of possible prosecutees the "passive" enforcement system was designed to discriminate against those who had exercised their First Amendment rights. Such governmental action |
Justice Marshall | 1,985 | 15 | dissenting | Wayte v. United States | https://www.courtlistener.com/opinion/111375/wayte-v-united-states/ | who had exercised their First Amendment rights. Such governmental action cannot stand if undertaken with discriminatory intent. As this Court has clearly stated, "for an agent of the State to pursue a course of action whose objective is to penalize a person's reliance on his legal rights is `patently unconstitutional.' " ; see also United 457 U.S. If the Government intentionally discriminated in defining the pool of potential prosecutees, it cannot immunize itself from liability merely by showing that it used permissible methods in choosing whom to prosecute from this previously tainted pool. Cf. Under the Court's flawed approach, there would have been no equal protection violation in Yick this Court's seminal selective prosecution decision. In Yick Wo, the Court reversed a conviction under a municipal ordinance that prohibited the construction of wooden laundries without a license. The Court held that such a conviction could not stand because the municipal licensors had discriminatorily denied licenses to individuals of Chinese origin. If the Court then had focused only on the prosecutions themselves, as it does now, it would have found no discrimination in the choice, among violators of the ordinance, *631 of the individuals to be prosecuted. Indeed, all but one of these violators were of Chinese origin. Instead, the Court properly focused on the official action that led to those prosecutions. In Yick Wo, that prior action was the discriminatory denial of licenses, which affected the definition of the class from which prosecutes were chosen. In this case, the referrals made by Selective Service to the Justice Department for investigation and possible prosecution played a similar role and may also have been discriminatory. It is to that issue that the Court should have directed its attention. I do not suggest that all prosecutions undertaken pursuant to passive enforcement schemes warrant evidentiary hearings on the question of selective But where violations of the law are so closely intertwined with political activity, where the speech at issue is so unpalatable to the Government, and where the discriminatory effect is conceded, the need for a hearing is significant and in no way opens the door to an onslaught of such hearings in less compelling contexts.[3] Here, I believe that Wayte has raised sufficient questions about the Government's intentions to be entitled to obtain access to evidence in the Government's possession. I therefore dissent from the Court's outright dismissal of his equal protection claim. |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | The Government avoids reversal of a criminal conviction by showing that trial error, albeit raised by a timely objection, affected no substantial right of the defendant and was thus harmless. Fed. Rule Crim. Proc. 52(a). A defendant who failed to object to trial error may nonetheless obtain reversal of a conviction by carrying the converse burden, showing among other things that plain error did affect his substantial rights. Fed. Rule Crim. Proc. 52(b). Rule 11(h) of the Federal Rules of Criminal Procedure is a separate harmless-error rule applying only to errors committed under Rule 11, the rule meant to ensure that a guilty plea is knowing and voluntary, by laying out the steps a trial judge must take before accepting such a plea. Like Rule 52(a), it provides that a failure to comply with Rule 11 that "does not affect substantial rights shall be disregarded." Rule 11(h) does not include a plain-error provision comparable to Rule 52(b). The first question here is whether a defendant who lets Rule 11 error pass without objection in the trial court must carry the burdens of Rule 52(b) or whether even the silent defendant can put the Government to the burden of proving the Rule 11 error harmless.[1] The second question is *59 whether a court reviewing Rule 11 error under either standard is limited to examining the record of the colloquy between court and defendant when the guilty plea was entered, or may look to the entire record begun at the defendant's first appearance in the matter leading to his eventual plea. We hold that a silent defendant has the burden to satisfy the plain-error rule and that a reviewing court may consult the whole record when considering the effect of any error on substantial rights. I On February 28, 1997, respondent Alphonso Vonn was charged with armed bank robbery, under 18 U.S. C. 2113(a) and (d), and using and carrying a firearm during and in relation to a crime of violence, under 18 U.S. C. 924(c). Vonn appeared that day before a Magistrate Judge, who advised him of his constitutional rights, including "the right to retain and to be represented by an attorney of [his] own choosing at each and every sta[g]e of the proceedings." App. 15. Vonn said that he had heard and understood his rights, and the judge appointed counsel to represent him. On March 17, 1997, three days after being indicted, Vonn, along with his appointed counsel, appeared in court for his arraignment. Again, the Magistrate Judge told Vonn about his rights, including the right to counsel at all |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | about his rights, including the right to counsel at all stages of the proceedings. Vonn's counsel gave the court a form entitled "Statement of Defendant's Constitutional Rights," on which *60 Vonn said he understood his rights, including the right to counsel. His counsel signed a separate statement that he was satisfied that Vonn had read and understood the statement of his rights. The Clerk of Court then asked Vonn whether he had heard and understood the court's explanation of his rights, and whether he had read and signed the statement, and Vonn said yes to each question. On May 12, 1997, Vonn came before the court and indicated that he would plead guilty to armed bank robbery but would go to trial on the firearm charge. The court then addressed him and, up to a point, followed Rule 11(c)(3) of the Federal Rules of Criminal Procedure. The judge advised Vonn of the constitutional rights he would relinquish by pleading guilty, but skipped the required advice that if Vonn were tried he would have "the right to the assistance of counsel." Several months later, the stakes went up when the grand jury returned a superseding indictment, charging Vonn under an additional count of conspiracy to commit bank robbery. Although he first pleaded not guilty to this charge as well as the firearm count, at a hearing on September 3, 1997, Vonn said he intended to change both pleas to guilty. Again, the court advised Vonn of rights waived by guilty pleas, but failed to mention the right to counsel if he went to trial. This time, the prosecutor tried to draw the court's attention to its error, saying that she did not "remember hearing the Court inform the defendant of his right to assistance of counsel." The court, however, may have mistaken the remark as going to Rule 11(c)(2), and answered simply that Vonn was represented by counsel.[2] Eight months later, Vonn moved to withdraw his guilty plea on the firearm charge. He did not, however, cite Rule 11 error but instead based his request on his own mistake *61 about facts relevant to the charge. The court denied this motion, and on June 22, sentenced Vonn to 97 months in prison. On appeal, Vonn sought to set aside not only the firearm conviction but the other two as well, for the first time making an issue of the District Judge's failure to advise him of his right to counsel at trial, as required by the Rule. The Court of Appeals agreed there had been error, and held that Vonn's failure |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | agreed there had been error, and held that Vonn's failure to object before the District Court to its Rule 11 omission was of no import, since Rule 11(h) "supersedes the normal waiver rule," and subjects all Rule 11 violations to harmless-error review, The consequence was to put the Government to the burden of showing no effect on substantial rights.[3] The court declined to "go beyond the plea proceeding in considering whether the defendant was aware of his rights," and did not accept the record of Vonn's plea colloquies as evidence that Vonn was aware of his continuing right to counsel at trial. 224 F.3d, at It held the Government had failed to shoulder its burden to show the error harmless and vacated Vonn's convictions. We granted certiorari, to resolve conflicts among the Circuits on the legitimacy of (1) placing the burden of plain error on a defendant appealing on the basis of Rule 11 error raised for the first time on appeal,[4] and (2) looking beyond the plea colloquy to other parts of the *62 official record to see whether a defendant's substantial rights were affected by a deviation from Rule 11.[5] We think the Court of Appeals was mistaken on each issue, and vacate and remand. II Rule 11 of the Federal Rules of Criminal Procedure requires a judge to address a defendant about to enter a plea of guilty, to ensure that he understands the law of his crime in relation to the facts of his case, as well as his rights as a criminal defendant. The Rule has evolved over the course of 30 years from general scheme to detailed plan, which now includes a provision for dealing with a slip-up by the judge in applying the Rule itself. Subsection (h) reads that "[a]ny variance from the procedures required by this rule which does not affect substantial rights shall be disregarded." The language comes close to tracking the text of Rule 52(a), providing generally for "harmless-error" review, that is, consideration of error raised by a defendant's timely objection, but subject to an opportunity on the Government's part to carry the burden of showing that any error was harmless, as having no effect on the defendant's substantial rights. See Fed. Rule Crim. Proc. 52(a) ("Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded"); United Rule 52(a), however, has a companion in Rule 52(b), a "plain-error" rule covering issues not raised before the district court in a timely way: "Plain errors or defects affecting substantial rights may be noticed although they were not |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | affecting substantial rights may be noticed although they were not brought to the attention of the court." When an appellate court considers error that qualifies as plain, the tables are turned on demonstrating the substantiality of any effect on *63 a defendant's rights: the defendant who sat silent at trial has the burden to show that his "substantial rights" were affected. at -735. And because relief on plain-error review is in the discretion of the reviewing court, a defendant has the further burden to persuade the court that the error "`seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.' " ). The question here is whether Congress's importation of the harmless-error standard into Rule 11(h) without its companion plain-error rule was meant to eliminate a silent defendant's burdens under the Rule 52(b) plain-error review, and instead give him a right to subject the Government to the burden of demonstrating harmlessness. If the answer is yes, a defendant loses nothing by failing to object to obvious Rule 11 error when it occurs. We think the answer is no. A Vonn's most obvious recourse is to argue from the text itself: Rule 11(h) unequivocally provides that a trial judge's "variance" from the letter of the Rule 11 scheme shall be disregarded if it does not affect substantial rights, the classic shorthand formulation of the harmless-error standard. It includes no exception for nonobjecting defendants. Despite this unqualified simplicity, however, Vonn does not argue that Rule 11 error must always be reviewed on the 11(h) standard, with its burden on the Government to show an error harmless. Even though Rule 11(h) makes no distinction between direct and collateral review, Vonn does not claim even that the variant of harmless-error review applicable on collateral attack, see would apply when evaluating Rule 11 error on habeas review. Rather, he concedes that the adoption of 11(h) had no effect on the stringent standard for collateral review of Rule 11 error under 28 U.S. C. 2255 (1994 ed.), as established by our holding in United that a defendant cannot overturn a guilty plea on collateral review absent a showing that the Rule 11 proceeding was "`inconsistent with the rudimentary demands of fair procedure' " or constituted a "`complete miscarriage of justice,' " ). The concession is prudent, for the Advisory Committee Notes explaining the adoption of Rule 11(h) speak to a clear intent to leave Timmreck undisturbed,[6] and there is no question of Timmreck `s validity in the aftermath of the 1983 amendments. Whatever may be the significance of the text of Rule 11(h) for our |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | the significance of the text of Rule 11(h) for our issue, then, it cannot be as simple as the face of the provision itself. Indeed, the closest Vonn gets to a persuasive argument that Rule 11 excuses a silent defendant from the burdens of plain-error review is his invocation of the common interpretive canon for dealing with a salient omission from statutory text. He claims that the specification of harmless-error review in 11(h) shows an intent to exclude the standard with which harmless error is paired in Rule 52, the plain-error standard with its burdens on silent defendants. The congressional choice to express the one standard of review without its customary companion does not, however, speak with any clarity in Vonn's favor. *65 At best, as we have said before, the canon that expressing one item of a commonly associated group or series excludes another left unmentioned is only a guide, whose fallibility can be shown by contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion of its common relatives. See ; cf. Here, the plausibility of an expressionexclusion reading of Rule 11(h) is subject to one strike without even considering what such a reading would mean in practice, or examining the circumstances of adopting 11(h). For here the harmless- and plain-error alternatives are associated together in the formally enacted Rule 52, having apparently equal dignity with Rule 11(h), and applying by its terms to error in the application of any other Rule of criminal procedure. To hold that the terms of Rule 11(h) imply that the latter half of Rule 52 has no application to Rule 11 errors would consequently amount to finding a partial repeal of Rule 52(b) by implication, a result sufficiently disfavored, as to require strong support. Support, however, is not readily found. In the first place, even if we indulge Vonn with the assumption that Congress meant to imply something by failing to pair a plain-error provision with the harmless-error statement in Rule 11(h), just what it would have meant is subject to argument. Vonn thinks the implication is that defendants who let Rule 11 error pass without objection are relieved of the burden on silent defendants generally under the plain-error rule, to show the error plain, prejudicial, and disreputable to the judicial system. But, of course, this is not the only "implication" consistent with Congress's choice to say nothing about Rule 11 plain error. It would be equally possible, as a matter *66 of logic, to argue that if Rule 52(b) were implicitly made inapplicable to |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | argue that if Rule 52(b) were implicitly made inapplicable to Rule 11 errors, a defendant who failed to object to Rule 11 errors would have no right of review on direct appeal whatever. A defendant's right to review of error he let pass in silence depends upon the plain-error rule; no plain-error rule, no direct review. Vonn has, then, merely selected one possible interpretation of the supposedly intentional omission of a Rule 52(b) counterpart, even though logic would equally allow another one, not to Vonn's liking. B Recognition of the equivocal character of any claimed implication of speaking solely in terms of harmless error forces Vonn to look beyond the text in hope of finding confirmation for his reading as opposed to the one less hospitable to silent defendants. And this effort leads him to claim support in and the developments in the wake of that case culminating in the enactment of Rule 11(h). This approach, at least, gets us on the right track, for the one clearly expressed objective of Rule 11(h) was to end the practice, then commonly followed, of reversing automatically for any Rule 11 error, and that practice stemmed from an expansive reading of McCarthy. What that case did, and did not, hold is therefore significant. When McCarthy was decided, Rule 11 was relatively primitive, requiring without much detail that the trial court personally address a defendant proposing to plead guilty and establish on the record that he was acting voluntarily, with an understanding of the charge and upon a factual basis supporting conviction.[7] When McCarthy stood before *67 the District Court to plead guilty to tax evasion, however, the judge's colloquy with him went no further than McCarthy's understanding of his right to a jury trial, the particular sentencing possibilities, and the absence of any threats or promises. There was no discussion of the elements of the crime charged, or the facts that might support it. Indeed, despite the allegation that McCarthy had acted "willfully and knowingly," his lawyer consistently argued at the sentencing hearing that his client had merely been neglectful, Although defense counsel raised no objection to the trial court's deficient practice under Rule 11, this Court reversed the conviction on direct review. The Court rested the result solely on the trial judge's obvious failure to conform to the Rule, and emphasized that the Rule's procedural safeguards served important constitutional interests in guarding against inadvertent and ignorant waivers of constitutional rights, Although the Government asked to have the case remanded for further evidentiary hearing and an opportunity to show that McCarthy's plea had |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | hearing and an opportunity to show that McCarthy's plea had been made knowingly and voluntarily, the Court said no and ordered the plea and resulting conviction vacated. Vonn does not, of course, claim that McCarthy held that a silent defendant had no plain-error burden, but he says that this must have been the Court's understanding, or it would have taken McCarthy's failure to object to the trial judge's Rule 11 failings, combined with his failure to meet the requirements of the plain-error rule, as a bar to relief. This reasoning is unsound, however, for two reasons, the first being that not a word was said in McCarthy about the plainerror rule, or for that matter about harmless error. The opinion said nothing about Rule 52 or either of the rules by name. The parties' briefs said nothing. The only serious issue was raised by the Government's request to remand the case for a new evidentiary hearing on McCarthy's state of mind when he entered the plea, and not even this had anything *68 to do with either the harmless- or plain-error rule. Under the former, the Government's opportunity and burden is to show the error harmless based on the entire record before the reviewing court, see United ; under the plain-error rule the Government likewise points to parts of the record to counter any ostensible showing of prejudice the defendant may make, see United Under either rule, the Government's opportunity is to persuade with what it has, not to initiate further litigation. Yet further litigation is what the Government wanted in McCarthy. It argued that if the Court did not think that the existing record demonstrated that McCarthy's plea had been knowing and voluntary, the Court should remand for a further hearing with new evidence affirmatively making this showing, When the Court said no, it made no reference to harmless or plain error, but cited the object of Rule 11 to eliminate time-wasting litigation after the fact about how knowing and voluntary a defendant really had been at an earlier hearing. And it expressed intense skepticism that any defendant would succeed, no matter how little he understood, once the evidence at a subsequent hearing showed that he had desired to plead. In sum, McCarthy had nothing to do with the choice between harmless-error and plain-error review; the issue was simply whether the Government could extend the litigation for additional evidence. Vonn's attempt to read the McCarthy Court's mind is therefore purely speculative. What is worse, however, his speculation is less plausible than the view that the Court would probably have |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | plausible than the view that the Court would probably have held that McCarthy satisfied the plainerror burdens if that had mattered. There was no question that the trial judge had failed to observe Rule 11, and the failing was obvious. So was the prejudice to McCarthy. Having had no explanation from the judge of the knowing and willful state of mind charged as of the time of the tax *69 violation, he pleaded guilty and was later sentenced at a hearing in which his lawyer repeatedly represented that McCarthy had been guilty of nothing but sloppiness.[8] The contradiction between the plea and the denial of the mental state alleged bespoke the prejudice of an unknowing plea, to which the judge's indifference was an affront to the integrity of the judicial system. While we need not religitate or rewrite McCarthy at this point, it is safe to say that the actual opinion is not even speculative authority that the plain-error rule stops short of Rule 11 errors. Nor is there any persuasive reason to think that when the Advisory Committee and Congress later came to consider Rule 11(h) they accepted the view Vonn erroneously attributes to this Court in McCarthy. The attention of the Advisory Committee to the problem of Rule 11 error was not drawn by McCarthy so much as by events that subsequently invested that case with a significance beyond its holding. In a few years after McCarthy came down, Congress transformed Rule 11 into a detailed formula for testing a defendant's readiness to proceed to enter a plea of guilty, obliging the judge to give specified advice about the charge, the applicable criminal statute, and even collateral law. The Court in McCarthy had, for example, been content to say that a defendant would need to know of the right against self-incrimination and rights to jury trial and confrontation before he could knowingly plead. But the revision of Rule 11 required instruction on such further matters as cross-examination in addition to confrontation, see Fed. Rule Crim. Proc. 11(c)(3); the right to counsel "at trial" even when the defendant stood in court with a lawyer next to him (as in this case), see ; and even the consequences of any *70 perjury the defendant might commit at the plea hearing, see Rule 11(c)(5). Although the details newly required in Rule 11 colloquies did not necessarily equate to the importance of the overarching issues of knowledge and voluntariness already addressed in the earlier versions of the Rule, some Courts of Appeals felt bound to treat all Rule 11 lapses as equal |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | felt bound to treat all Rule 11 lapses as equal and to read McCarthy as mandating automatic reversal for any one of them. See Advisory Committee's Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U.S. C. App., p. 1568 (hereinafter Advisory Committee's Notes) ; United ). This approach imposed a cost on Rule 11 mistakes that McCarthy neither required nor justified, and by 1983 the practice of automatic reversal for error threatening little prejudice to a defendant or disgrace to the legal system prompted further revision of Rule 11. Advisory Committee's Notes 1568. The Advisory Committee reasoned that, although a rule of per se reversal might have been justified at the time McCarthy was decided, "[a]n inevitable consequence of the amendments was some increase in the risk that a trial judge, in a particular case, might inadvertently deviate to some degree from the procedure which a very literal reading of Rule 11 would appear to require." Advisory Committee's Notes 1568. After the amendments, "it became more apparent than ever that Rule 11 should not be given such a crabbed interpretation that ceremony was exalted over substance." Vonn thinks the Advisory Committee's report also includes a signal that it meant to dispense with a silent defendant's plain-error burdens. He stresses that the report cited Courts of Appeals cases of "crabbed interpretation" that had given relief to nonobjecting defendants. By proposing only a harmless-error amendment to correct the mistakes made *71 in these cases, he says, the Committee must have thought that the Government's only answer to nonobjecting defendants should be to prove error harmless, if it could. But this argument ignores the fact that these cases were not merely instances of automatic reversal, but were cited along with harmless-error cases as illustrations of the "considerable disagreement" that arose after McCarthy among Courts of Appeals in treating errors of trivial significance. See Advisory Committee's Notes 1568. Given the Advisory Committee's apparent focus on the disarray among courts, the citations Vonn points to cannot reliably be read to suggest that plainerror review should never apply to Rule 11 errors, when the Advisory Committee Notes never made such an assertion and the reported cases cited by the Committee never mentioned the plain-error/harmless-error distinction. We think, rather, that the significance of Congress's choice to adopt a harmless-error rule is best understood by taking the Advisory Committee at its word. "It must be emphasized that a harmless error provision has been added to Rule 11 because some courts have read McCarthy as meaning that the general harmless error provision in Rule 52(a) cannot |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | that the general harmless error provision in Rule 52(a) cannot be utilized with respect to Rule 11 proceedings." The Committee said it was responding simply to a claim that the harmless-error rule did not apply. Having pinpointed that problem, it gave a pinpoint answer. If instead the Committee had taken note of claims that "Rule 52" did not apply, or that "neither harmless-error nor plain-error rule applied," one could infer that enacting a harmless-error rule and nothing more was meant to rule out anything but harmless-error treatment. But by providing for harmless-error review in response to nothing more than the claim that harmless-error review would itself be erroneous, the Advisory Committee implied nothing more than it said, and it certainly did not implicitly repeal Rule 52(b) so far as it might cover a Rule 11 case. *72 C A further reason to doubt that Congress could have intended Vonn's position is the tendency it would have to undercut the object of Rule 32(e), which governs withdrawing a plea of guilty by creating an incentive to file withdrawal motions before sentence, not afterward. A trial judge is authorized to grant such a presentence motion if the defendant carries the burden of showing a "fair and just reason" for withdrawal, and a defendant who fails to move for withdrawal before sentencing has no further recourse except "direct appeal or motion under 28 U.S. C. 2255," subject to the rules covering those later stages. Fed. Rule Crim. Proc. 32(e). Whatever the "fair and just" standard may require on presentence motions,[9] the Advisory Committee Notes confirm the textual suggestion that the Rule creates a "`near-presumption' " against granting motions filed after sentencing, Advisory Committee's Notes on 1983 Amendment to Fed. Rule Crim. Proc. 32, 18 U.S. C. App., p. 21 ). This is only good sense; in acting as an incentive to think through a guilty plea before sentence is imposed, the Rule tends to separate meritorious second thoughts (say, a defendant's doubts about his understanding) and mere sour grapes over a sentence once pronounced. The "near-presumption" concentrates plea litigation in the trial courts, where genuine mistakes can be corrected easily, and promotes the finality required in a system as heavily dependent on guilty pleas as ours. *73 But the incentive to think and act early when Rule 11 is at stake would prove less substantial if Vonn's position were law; a defendant could choose to say nothing about a judge's plain lapse under Rule 11 until the moment of taking a direct appeal, at which time the burden would always fall on the |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | at which time the burden would always fall on the Government to prove harmlessness. A defendant could simply relax and wait to see if the sentence later struck him as satisfactory; if not, his Rule 11 silence would have left him with clear but uncorrected Rule 11 error to place on the Government's shoulders. This result might, perhaps, be sufferable if there were merit in Vonn's objection that applying the plain-error standard to a defendant who stays mum on Rule 11 error invites the judge to relax. The plain-error rule, he says, would discount the judge's duty to advise the defendant by obliging the defendant to advise the judge. But, rhetoric aside, that is always the point of the plain-error rule: the value of finality requires defense counsel to be on his toes, not just the judge, and the defendant who just sits there when a mistake can be fixed cannot just sit there when he speaks up later on.[10] *74 In sum, there are good reasons to doubt that expressing a harmless-error standard in Rule 11(h) was meant to carry any implication beyond its terms. At the very least, there is no reason persuasive enough to think 11(h) was intended to repeal Rule 52(b) for every Rule 11 case. III The final question goes to the scope of an appellate court's enquiry into the effect of a Rule 11 violation, whatever the review, plain error or harmless. The Court of Appeals confined itself to considering the record of "the plea proceeding," applying Circuit precedent recognizing that the best evidence of a defendant's understanding when pleading guilty is the colloquy closest to the moment he enters the plea. While there is no doubt that this position serves the object of Rule 11 to eliminate wasteful post hoc probes into a defendant's psyche, McCarthy, the Court of Appeals was more zealous than the policy behind the Rule demands. The Advisory Committee intended the effect of error to be assessed on an existing record, no question, but it did not mean to limit that record strictly to the plea proceedings: the enquiry "`must be resolved solely on the basis of the Rule 11 transcript' and the other portions (e. g., sentencing hearing) of the limited record made in such cases." Advisory Committee's Notes 1569 ). True, language in McCarthy ostensibly supports the position taken by the Court of Appeals (which did not, however, rest on it); we admonished that "[t]here is no adequate substitute *75 for demonstrating in the record at the time the plea is entered the defendant's understanding of the |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | time the plea is entered the defendant's understanding of the nature of the charge against him," But McCarthy was decided before the enactment of Rule 11(h), which came with the commentary just quoted, and McCarthy in any event was not a case with a record of anything on point, even outside the Rule 11 hearing. The Government responded to the laconic plea colloquy not by referring to anything illuminating in the record; instead it brought up the indictment, tried to draw speculative inferences from conversations McCarthy probably had with his lawyer, and sought to present new evidence. The only serious alternative to "the record at the time the plea [was] entered" was an evidentiary hearing for further factfinding by the trial court. Here, however, there is a third source of information, outside the four corners of the transcript of the plea hearing and Rule 11 colloquy, but still part of the record. Transcripts brought to our attention show that Vonn was advised of his right to trial counsel during his initial appearance before the Magistrate Judge and twice at his first arraignment. The record shows that four times either Vonn or his counsel affirmed that Vonn had heard or read a statement of his rights and understood what they were. Because there are circumstances in which defendants may be presumed to recall information provided to them prior to the plea proceeding, cf. the record of Vonn's initial appearance and arraignment is relevant in fact, and well within the Advisory Committee's understanding of "other portions of the limited record" that should be open to consideration. It may be considered here. The transcripts covering Vonn's first appearance and arraignment were not, however, presented to the Court of Appeals. Probably owing to that court's self-confinement to a *76 narrower record, it made no express ruling on the part of the Government's rehearing motion requesting to make the first-appearance and arraignment transcripts part of the appellate record. For that reason, even with the transcripts now in the parties' joint appendix filed with us, we should not resolve their bearing on Vonn's claim before the Court of Appeals has done so. Adarand Constructors, We therefore vacate the Court of Appeals's judgment and remand the case for further proceedings consistent with this opinion. It is so ordered. Justice Stevens, concurring in part and dissenting in part. For the reasons stated in Part III of the Court's opinion, I agree that the effect of a violation of Rule 11 of the Federal Rules of Criminal Procedure should be evaluated on the basis of the entire record, rather |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | be evaluated on the basis of the entire record, rather than just the record of the plea colloquy, and that a remand is therefore required. Contrary to the Court's analysis in Part II of its opinion, however, I am firmly convinced that the history, the text of Rule 11, and the special office of the Rule all support the conclusion, "urged by the Government" in that the burden of demonstrating that a violation of that Rule is harmless is "place[d] upon the Government," In McCarthy, after deciding that the trial judge had not complied with Rule 11, the Court had to "determine the effect of that noncompliance, an issue that ha[d] engendered a sharp difference among the courts of appeals." The two alternatives considered by those courts were the automatic reversal rule that we ultimately unanimously endorsed in McCarthy and the harmless-error rule urged by *77 the Government.[1] No one even argued that the defendant should have the burden of proving prejudice.[2] The Court's conclusion that "prejudice inheres in a failure to comply with Rule 11" was uncontroversial.[3] at 471. During the years preceding the 1983 amendment to Rule 11, it was generally understood that noncompliance with Rule 11 in direct appeal cases required automatic reversal. See Advisory Committee's Notes on 1983 Amendments to Fed. Rule Crim. Proc. 11, 18 U.S. C. App., p. 1568 (hereinafter Advisory Committee's Notes) ; United ). Thus, prior to the addition of Rule 11(h), neither plain-error[4] nor harmless-error review applied to Rule 11 violations. Rejecting McCarthy `s "extreme *78 sanction of automatic reversal" for technical violations, Congress added subsection 11(h), which closely tracks the harmless-error language of Rule 52(a).[5] Advisory Committee's Notes 1569. As the Advisory Committee's Notes make clear, "Subdivision (h) makes no change in the responsibilities of the judge at Rule 11 proceedings, but instead merely rejects the extreme sanction of automatic reversal." The plain text thus embodies Congress' choice of incorporating the standard found in Rule 52(a), while omitting that of Rule 52(b).[6] Because the pre-existing background of Rule 11 was that Rule 52(b) did not apply, and because the amendment adding Rule 52(a) via subsection (h) did not also add Rule 52(b), the straightforward conclusion is that plain-error review does not apply to Rule 11 errors. Congress' decision to apply only Rule 52(a)'s harmlesserror standard to Rule 11 errors is tailored to the purpose of the Rule. The very premise of the required Rule 11 colloquy is that, even if counsel is present, the defendant may not adequately understand the rights set forth in the Rule unless the judge explains |
Justice Souter | 2,002 | 20 | majority | United States v. Vonn | https://www.courtlistener.com/opinion/118487/united-states-v-vonn/ | rights set forth in the Rule unless the judge explains them. It is thus perverse to place the burden on the uninformed defendant to object to deviations from Rule 11 or to establish prejudice arising out of the judge's failure to mention a right that he does not know he *79 has.[7] Under the Court's approach, the Government bears the burden of establishing no harm only when the defendant objects to the district court's failure to inform him. In other words, the Government must show prejudice only when the defendant asks the judge to advise him of a right of which the Rule 11 colloquy assumes he is unaware. To see the implausibility of this, imagine what such an objection would sound like: "Your Honor, I object to your failure to inform me of my right to assistance of counsel if I proceed to trial." Despite this implausible scenario, and to support the result that it reaches, the Court's analysis relies upon an image of a cunning defendant, who is fully knowledgeable of his rights, and who games the system by sitting silently as the district court, apparently less knowledgeable than the defendant, slips up in following the dictates of Rule 11. See, e. g., ante, at 63 ("[A] defendant loses nothing by failing to *80 object to obvious Rule 11 error when it occurs"); ante, at 73 ("[A] defendant could choose to say nothing about a judge's plain lapse under Rule 11 until the moment of taking a direct appeal, at which time the burden would always fall on the Government to prove harmlessness. A defendant could simply relax and wait to see if the sentence later struck him as satisfactory"). My analysis is based on a fundamentally different understanding of the considerations that motivated the Rule 11 colloquy requirements in the first place. Namely, in light of the gravity of a plea, the court will assume no knowledge on the part of the defendant, even if represented by counsel, and the court must inform him of a base level of information before accepting his plea.[8] The express inclusion in Rule 11 of a counterpart to Rule 52(a) and the omission of a counterpart to Rule 52(b) is best understood as a reflection of the fact that it is only fair to place the burden of proving the impact of the judge's error on the party who is aware of it rather than the party who is unaware of it. This burden allocation gives incentive to the judge to follow meticulously the Rule 11 requirements and to the prosecutor |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | Respondent South Coast Air Quality Management District (District) is a political subdivision of California responsible for air pollution control in the Los Angeles metropolitan area and parts of surrounding counties that make up the South Coast Air Basin. It enacted six Fleet Rules that generally prohibit the purchase or lease by various public and private *249 fleet operators of vehicles that do not comply with stringent emission requirements. The question in this case is whether these local Fleet Rules escape pre-emption under 209(a) of the Clean Air Act (CAA), as renumbered and amended, 42 U.S. C. 7543(a), because they address the purchase of vehicles, rather than their manufacture or sale. I The District is responsible under state law for developing and implementing a "comprehensive basinwide air quality management plan" to reduce emission levels and thereby achieve and maintain "state and federal ambient air quality standards." Cal. Health & Safety Code Ann. 40402(e) (West 1996). Between June and October the District adopted six Fleet Rules. The Rules govern operators of fleets of street sweepers (Rule 1186.1), of passenger cars, light-duty trucks, and medium-duty vehicles (Rule 1191), of public transit vehicles and urban buses (Rule 1192), of solid waste collection vehicles (Rule 1193), of airport passenger transportation vehicles, including shuttles and taxicabs picking up airline passengers (Rule 1), and of heavy-duty on-road vehicles (Rule 1196). All six Rules apply to public operators; three apply to private operators as well (Rules 1186.1, 1193, and 1). The Fleet Rules contain detailed prescriptions regarding the types of vehicles that fleet operators must purchase or lease when adding or replacing fleet vehicles. Four of the Rules (1186.1, 1192, 1193, and 1196) require the purchase or lease of "alternative-fuel vehicles,"[1] and the other two *250 (1191 and 1) require the purchase or lease of either "alternative-fueled vehicles"[2] or vehicles that meet certain emission specifications established by the California Air Resources Board (CARB).[3] CARB is a statewide regulatory body that California law designates as "the air pollution control agency for all purposes set forth in federal law." Cal. *251 Health & Safety Code Ann. 39602 (West 1996). The Rules require operators to keep records of their purchases and leases and provide access to them upon request. See, e. g., Rule 1186.1(g)(1), App. 23. Violations expose fleet operators to fines and other sanctions. See Cal. Health & Safety Code Ann. 42400-42410, 40447.5 (West 1996 and Supp. 4). In August petitioner Engine Manufacturers Association sued the District and its officials, also respondents, claiming that the Fleet Rules are pre-empted by 209 of the CAA, which prohibits the adoption or attempted |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | 209 of the CAA, which prohibits the adoption or attempted enforcement of any state or local "standard relating to the control of emissions from new motor vehicles or new motor vehicle engines." 42 U.S. C. 7543(a).[4] The District Court granted summary judgment to respondents, upholding the Rules in their entirety. It held that the Rules were not "standard[s]" under 209(a) because they regulate only the purchase of vehicles that are otherwise certified for sale in California. The District Court recognized that the Courts of Appeals for the First and Second Circuits had previously held that CAA 209(a) pre-empted state laws mandating that a specified percentage of a manufacturer's in-state sales be of "zero-emission vehicles." See Association of Int'l Automobile Mfrs., ; American Automobile Mfrs.[5] It did not express disagreement with these rulings, but distinguished them as involving a restriction on vehicle sales rather than vehicle purchases: "Where a state *252 regulation does not compel manufacturers to meet a new emissions limit, but rather affects the purchase of vehicles, as the Fleet Rules do, that regulation is not a standard." (CD Cal. 1). The Ninth Circuit affirmed on the reasoning of the District Court. (2). We granted certiorari. (3). II Section 209(a) of the CAA states: "No State or any political subdivision thereof shall adopt or attempt to enforce any standard relating to the control of emissions from new motor vehicles or new motor vehicle engines subject to this part. No State shall require certification, inspection, or any other approval relating to the control of emissions as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. 7543(a). The District Court's determination that this express pre-emption provision did not invalidate the Fleet Rules hinged on its interpretation of the word "standard" to include only regulations that compel manufacturers to meet specified emission limits. This interpretation of "standard" in turn caused the court to draw a distinction between purchase restrictions (not pre-empted) and sale restrictions (pre-empted). Neither the manufacturer-specific interpretation of "standard" nor the resulting distinction between purchase and sale restrictions finds support in the text of 209(a) or the structure of the CAA. "Statutory construction must begin with the language employed by Congress and the assumption that the ordinary meaning of that language accurately expresses the legislative purpose." Park 'N Fly, Today, as in 1967 when 209(a) became law, "standard" is defined as that which "is established *253 by authority, custom, or general consent, as a model or example; criterion; test." Webster's Second New International Dictionary 2455 |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | or example; criterion; test." Webster's Second New International Dictionary 2455 (5). The criteria referred to in 209(a) relate to the emission characteristics of a vehicle or engine. To meet them the vehicle or engine must not emit more than a certain amount of a given pollutant, must be equipped with a certain type of pollution-control device, or must have some other design feature related to the control of emissions. This interpretation is consistent with the use of "standard" throughout Title II of the CAA (which governs emissions from moving sources) to denote requirements such as numerical emission levels with which vehicles or engines must comply, e. g., 42 U.S. C. 7521(a)(3)(B)(ii), or emission-control technology with which they must be equipped, e. g., 7521(a)(6). Respondents, like the courts below, engraft onto this meaning of "standard" a limiting component, defining it as only "[a] production mandat[e] that require[s] manufacturers to ensure that the vehicles they produce have particular emissions characteristics, whether individually or in the aggregate." Brief for Respondent South Coast Air Quality Management District 13 (emphases added). This confuses standards with the means of enforcing standards. Manufacturers (or purchasers) can be made responsible for ensuring that vehicles comply with emission standards, but the standards themselves are separate from those enforcement techniques. While standards target vehicles or engines, standard-enforcement efforts that are proscribed by 209 can be directed to manufacturers or purchasers. The distinction between "standards," on the one hand, and methods of standard enforcement, on the other, is borne out in the provisions immediately following 202. These separate provisions enforce the emission criteria i. e., the 202 standards. Section 203 prohibits manufacturers from selling any new motor vehicle that is not covered by a "certificate of conformity." 42 U.S. C. 7522(a). Section 206 *254 enables manufacturers to obtain such a certificate by demonstrating to the Environmental Protection Agency that their vehicles or engines conform to the 202 standards. 7525. Sections 204 and 205 subject manufacturers, dealers, and others who violate the CAA to fines imposed in civil or administrative enforcement actions. 7523-7524. By defining "standard" as a "production mandate directed toward manufacturers," respondents lump together 202 and these other distinct statutory provisions, acknowledging a standard to be such only when it is combined with a mandate that prevents manufacturers from selling noncomplying vehicles. That a standard is a standard even when not enforced through manufacturer-directed regulation can be seen in Congress's use of the term in another portion of the CAA. As the District Court recognized, CAA 246 (in conjunction with its accompanying provisions) requires state-adopted and federally approved "restrictions |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | with its accompanying provisions) requires state-adopted and federally approved "restrictions on the purchase of fleet vehicles to meet clean-air standards." 158 F. Supp. 2d, at ; see also 42 U.S. C. 7581-7590. (Respondents do not defend the District's Fleet Rules as authorized by this provision; the Rules do not comply with all of the requirements that it contains.) Clearly, Congress contemplated the enforcement of emission standards through purchase requirements.[6] Respondents contend that their qualified meaning of "standard" is necessary to prevent 209(a) from pre-empting "far too much" by "encompass[ing] a broad range of state-level clean-air initiatives" such as voluntary incentive programs. *255 Brief for Respondent South Coast Air Quality Management District 29; But it is hard to see why limitation to mandates on manufacturers is necessary for this purpose; limitation to mandates on manufacturers and purchasers, or to mandates on anyone, would have the same salvific effect. We need not resolve application of 209(a) to voluntary incentive programs in this case, since all the Fleet Rules are mandates. In addition to having no basis in the text of the statute, treating sales restrictions and purchase restrictions differently for pre-emption purposes would make no sense. The manufacturer's right to sell federally approved vehicles is meaningless in the absence of a purchaser's right to buy them. It is true that the Fleet Rules at issue here cover only certain purchasers and certain federally certified vehicles, and thus do not eliminate all demand for covered vehicles. But if one State or political subdivision may enact such rules, then so may any other; and the end result would undo Congress's carefully calibrated regulatory scheme. A command, accompanied by sanctions, that certain purchasers may buy only vehicles with particular emission characteristics is as much an "attempt to enforce" a "standard" as a command, accompanied by sanctions, that a certain percentage of a manufacturer's sales volume must consist of such vehicles. We decline to read into 209(a) a purchase/ sale distinction that is not to be found in the text of 209(a) or the structure of the CAA. III The dissent expresses many areas of disagreement with our interpretation, but this should not obscure its agreement with our answer to the question "whether these local Fleet Rules escape pre-emption because they address the purchase of vehicles, rather than their manufacture or sale." The dissent joins us in answering "no." See post, at 262-263 (opinion of SOUTER, J.). It reaches a different *256 outcome in the case because (1) it feels free to read into the unconditional words of the statute a requirement for the courts to |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | words of the statute a requirement for the courts to determine which purchase restrictions in fact coerce manufacture and which do not; and (2) because it believes that Fleet Rules containing a "commercial availability" proviso do not coerce manufacture. As to the first point: The language of 209(a) is categorical. It is (as we have discussed) impossible to find in it an exception for standards imposed through purchase restrictions rather than directly upon manufacturers; it is even more inventive to discover an exception for only that subcategory of standards-imposed-through-purchase-restrictions that does not coerce manufacture. But even if one accepts that invention, one cannot conclude that these "provisos" save the day. For if a vehicle of the mandated type were commercially available, thus eliminating application of the proviso, the need to sell vehicles to persons governed by the Rule would effectively coerce manufacturers into meeting the artificially created demand. To say, as the dissent does, that this would be merely the consequence of "market demand and free competition," post, at 263, is fanciful. The demand is a demand, not generated by the market but compelled by the Rules, which in turn effectively compels production. To think that the Rules are invalid until such time as one manufacturer makes a compliant vehicle available, whereupon they become binding, seems to us quite bizarre. The dissent objects to our interpretive method, which neither invokes the "presumption against preemption" to determine the scope of pre-emption nor delves into legislative history. Post, at 260-261. Application of those methods, on which not all Members of this Court agree, demonstrably makes no difference to resolution of the principal question, which the dissent (after applying them) answers the same as we. As for the additional question that the dissent reaches, we think the same is true: The textual obstacles to the strained interpretation that would validate the Rules by reason *257 of the "commercial availability" provisos are insurmountable principally, the categorical words of 209(a). The dissent contends that giving these words their natural meaning of barring implementation of standards at the purchase and sale stage renders superfluous the second sentence of 209(a), which provides: "No State shall require certification, inspection, or any other approval relating to the control of emissions from any new motor vehicle or new motor vehicle engine as condition precedent to the initial retail sale, titling (if any), or registration of such motor vehicle, motor vehicle engine, or equipment." 42 U.S. C. 7543(a). We think it not superfluous, since it makes clear that the term "attempt to enforce" in the first sentence is not limited |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | "attempt to enforce" in the first sentence is not limited to the actual imposition of penalties for violation, but includes steps preliminary to that action. The sentence is, however, fatal to the dissent's interpretation of the statute. It categorically prohibits "certification, inspection, or any other approval" as conditions precedent to sale. Why in the world would it do that if it had no categorical objection to standards imposed at the sale stage? Why disable the States from assuring compliance with requirements that they are authorized to impose? The dissent next charges that our interpretation attributes carelessness to Congress because 246 mandates fleet purchasing restrictions, but does so without specifying "notwithstanding" 209(a). Post, at 264. That addition might have been nice, but hardly seems necessary. It is obvious, after all, that the principal sales restrictions against which 209(a) is directed are those requiring compliance with state-imposed standards. What 246 mandates are fleet purchase restrictions under federal standards designed precisely for federally required clean-fuel fleet vehicle programs which programs, in turn, must be federally approved as meeting detailed federal specifications. It is not surprising that a "notwithstanding" 209(a) did not come to mind. Far from casting doubt upon our interpretation, 246 *258 is impossible to reconcile with the dissent's interpretation. The fleet purchase standards it mandates must comply strictly with federal specifications, being neither more lenient nor more demanding. But what is the use of imposing such a limitation if the States are entirely free to impose their own fleet purchase standards with entirely different specifications? Finally, the dissent says that we should "admit" that our opinion pre-empts voluntary incentive programs. Post, at 265-266. Voluntary programs are not at issue in this case, and are significantly different from command-and-control regulation. Suffice it to say that nothing in the present opinion necessarily entails pre-emption of voluntary programs. It is at least arguable that the phrase "adopt or attempt to enforce any standard" refers only to standards that are enforceable a possibility reinforced by the fact that the prohibition is imposed only on entities (States and political subdivisions) that have power to enforce. IV The courts below held all six of the Fleet Rules to be entirely outside the pre-emptive reach of 209(a) based on reasoning that does not withstand scrutiny. In light of the principles articulated above, it appears likely that at least certain aspects of the Fleet Rules are pre-empted. For example, the District may have attempted to enforce CARB's ULEV, SULEV, and ZEV standards when, in Rule 1, it required 50% of new passenger-car and medium-duty-vehicle purchases by private |
Justice Scalia | 2,004 | 9 | majority | Engine Mfrs. Assn. v. South Coast Air Quality Management Dist. | https://www.courtlistener.com/opinion/134734/engine-mfrs-assn-v-south-coast-air-quality-management-dist/ | required 50% of new passenger-car and medium-duty-vehicle purchases by private airport-shuttle van operators to "meet ULEV, SULEV, or ZEV emission standards" after July 1, 1, and 100% to meet those standards after July 1, 2.[7] See Rules 1(d)(2)(A)-(B), App. 62. It does not necessarily follow, however, that the Fleet Rules are pre-empted in toto. We have not addressed a *259 number of issues that may affect the ultimate disposition of petitioners' suit, including the scope of petitioners' challenge, whether some of the Fleet Rules (or some applications of them) can be characterized as internal state purchase decisions (and, if so, whether a different standard for pre-emption applies), and whether 209(a) pre-empts the Fleet Rules even as applied beyond the purchase of new vehicles (e. g., to lease arrangements or to the purchase of used vehicles). These questions were neither passed on below nor presented in the petition for certiorari. They are best addressed in the first instance by the lower courts in light of the principles articulated above. The judgment is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. |
Justice O'Connor | 1,983 | 14 | dissenting | Idaho Ex Rel. Evans v. Oregon | https://www.courtlistener.com/opinion/110986/idaho-ex-rel-evans-v-oregon/ | The Special Master reasoned that Idaho was entitled to a "fair share" of the anadromous fish that are the subject of this dispute. Without quantifying that share, however, he rejected the claim that and Oregon had mismanaged the fishery, Report of Special Master 30-34, concluding instead that they had acted in good faith, and that the relief requested by Idaho was unworkable, *1030 In reaching that conclusion, he refused to consider any evidence pertaining to years earlier than or to future developments. The Court today overrules the exceptions to the report of the Special Master. I see substantial merit to several of the points raised by Idaho and am persuaded that they require a remand to the Special Master for further proceedings. Accordingly, I dissent. I The Master properly concluded that "Idaho is entitled to its fair share of the fish." No one owns an individual fish until he reduces that fish to possession, and, indeed, even the States do not have full-fledged "property" interests in the wildlife within their boundaries, see, e. g., ; Nonetheless, courts have long recognized the opportunity to fish as an interest of sufficient dignity and importance to warrant certain protections. See, e. g., Union Oil ; Louisiana ex rel. ; Weld v. Hornby, 7 East 195 (K. B. 1806); J. Gould, Law of Waters 186, 187 (1883); 3 J. Kent, Commentaries 411 (5th ed. 1844); cf. New ; (although State has no ownership in wildlife in the conventional sense, it has a "substantial proprietary interest"). See generally United cert. denied, Indeed, in recent years, as the runs of anadromous fish have diminished and no longer satisfy fully the demands of all fishermen, the federal courts frequently find themselves confronted with disputes over the management and conservation of the resource. Faced with these problems, the courts, including *1031 this Court, have not hesitated to recognize that various claimants do possess protectible rights in the runs of fish, whether or not those claimants ultimately manage to land and reduce particular specimens to possession and full ownership. See, e. g., Game ; ; United When States enter the fray, this Court must be prepared to undertake the admittedly difficult task of assessing the claim of each and arriving at an equitable resolution that protects the interests of each, for, as we held long ago in a leading case on our original jurisdiction: "[W]henever the action of one State reaches through the agency of natural laws into the territory of another State, the question of the extent and the limitations of the rights of the two States becomes |
Justice O'Connor | 1,983 | 14 | dissenting | Idaho Ex Rel. Evans v. Oregon | https://www.courtlistener.com/opinion/110986/idaho-ex-rel-evans-v-oregon/ | the limitations of the rights of the two States becomes a matter of justiciable dispute between them, and this court is called upon to settle that dispute in such a way as will recognize the equal rights of both and at the same time establish justice between them."[1] *1032 Having reached the correct conclusion that Idaho has a right to a fair share of the anadromous fish of the Columbia and Snake Rivers, though, the Master adopted procedures that denied Idaho an opportunity to effectuate that right. It is the approval of the limitations placed on Idaho's establishment of its rights with which I disagree. II In spite of his recognition that Idaho was entitled to a fair share of the runs of anadromous fish, the Master found that there was no injury to Idaho. I am at a loss to understand how he reached that conclusion without specifying the nature and extent of Idaho's entitlement.[2] The Master excluded from consideration any evidence of past conditions or probable future conditions, focusing instead solely on the evidence for the period -1980. Report of Special Master 25-26, 27.[3] During those years, the harvests were negligible, so, in *1033 the Master's view, Idaho's rights were similarly negligible, and Idaho could not show the "substantial injury" necessary to obtain relief from this Court in the exercise of its original jurisdiction, see, e. g., ; Of course, as the Court recognizes, ante, at 1027, the Master properly required a showing by clear and convincing evidence that Idaho sustained a substantial injury. Nonetheless, two basic problems flaw the Master's approach. First, it assumes that Idaho's only concern is with its share of the harvest and that, in the absence of a harvestable surplus,[4] Idaho's interest in the runs vanishes. Second, it excludes evidence relevant in explaining the current state of the runs and in determining what types of management will best conserve and increase the resource for the benefit of all. A The first problem with the Master's approach requires little elaboration. Even if there is absolutely no harvestable surplus for a year or for several years, Idaho has a right to seek to maintain and eventually increase the runs by requiring the defendants to refrain from practices that prevent fish from returning to their spawning grounds in numbers sufficient to perpetuate the species in this river system. Cf. ; The allegations of mismanagement over the period leading up to this lawsuit in particular the allegation that the defendants made a practice of closing fishing seasons only after it became clear that they would not |
Justice O'Connor | 1,983 | 14 | dissenting | Idaho Ex Rel. Evans v. Oregon | https://www.courtlistener.com/opinion/110986/idaho-ex-rel-evans-v-oregon/ | seasons only after it became clear that they would not meet the goal of a minimum spawning escapement, Exceptions of Idaho 65; Pretrial Order 7, Admitted Fact 30 if true, may show the existence of a threat to Idaho's interest in the maintenance of the runs. Indeed, the *1034 very paucity of the harvest in -1980 that the Master relied upon in denying Idaho any relief suggests that there may be some merit in Idaho's contention that the runs have not been properly managed in the past. Further, the need for relief in such a situation is compelling. Techniques are available that may aid significantly in maintaining or increasing the runs.[5] But Idaho is unlikely to devote substantial resources to projects designed to maintain and increase the runs if the defendants are free to engage in mismanagement downstream that will negate Idaho's efforts. The Master should not have concluded that, simply because Idaho shared equally in the failure of the harvest in -1980, it had no further interest in promoting the conservation of the species and the eventual restoration of the runs, neither of which could occur without proper management practices on the part of the defendants. B In my view, the Master erred also in excluding the evidence of the past practices of the defendants, of the past conditions on the river system, and of the probable conditions in the future. Consideration of Idaho's interest in maintaining the runs has already illustrated one way in which evidence of the past conditions and practices and of probable future conditions was indeed relevant in this action. Moreover, the Master's limitations place Idaho in an untenable position. Although harvests were minimal from to 1980, conditions were different when Idaho sought leave to file its complaint in this action on March 31, In and Oregon had harvested some 22,400 spring chinook and 9,500 summer steelhead. Report of Special Master 18-19. *1035 Indeed, even with the negligible harvests for the latter half of the decade, during the 1970's, and Oregon harvested an annual average of 27,320 upriver spring chinook, 2,260 upriver summer chinook, and 12,360 upriver summer steelhead, compared with Idaho's average harvests of 3,150 upriver spring chinook, no upriver summer chinook, and 8,550 upriver summer steelhead. Assuming Idaho's allegations to be true, substantial portions of the fish harvested by and Oregon rightfully should have returned to Idaho. This period did not reflect a pristine and irretrievably lost state of nature. On the contrary, all the dams were in place before 1970, see ante, at 1020. But the Master refused to consider these |
Justice O'Connor | 1,983 | 14 | dissenting | Idaho Ex Rel. Evans v. Oregon | https://www.courtlistener.com/opinion/110986/idaho-ex-rel-evans-v-oregon/ | ante, at 1020. But the Master refused to consider these figures, looking only to figures for harvests taking place after Idaho sought relief. Under this approach, to vindicate its rights, Idaho will have to wait until the runs regenerate relying on the goodwill of the defendants to maintain and increase them. Then, once there is a harvest available, Idaho will have to hope that the runs survive any mismanagement long enough to establish a new record of fishing on harvests rightfully belonging to Idaho and that both the runs and the mismanagement will persist throughout the time necessary to complete litigation. I would not place such hurdles in the way of a State seeking to preserve its natural resources. III The proper approach in this case, in my view, would require the Master to determine whether Idaho has a protectible interest in the preservation of the runs and what Idaho's proper share is, expressed as a proportion of the harvestable surplus. In making that determination, the Master should have a broad range of flexibility, drawing guidance from our previous cases reconciling conflicting claims of States to natural resources by equitable apportionment. The classic statement of the considerations governing equitable apportionment of interstate streams emphasizes *1036 the breadth of the inquiry and the importance of all relevant factors:[6] "Apportionment calls for the exercise of an informed judgment on a consideration of many factors. Priority of appropriation is the guiding principle. But physical and climatic conditions, the consumptive use of water in the several sections of the river, the character and rate of return flows, the extent of established uses, the availability of storage water, the practical effect of wasteful uses on downstream areas, the damage to upstream areas as compared to the benefits to downstream areas if a limitation is imposed on the former these are all relevant factors. They are merely an illustrative, not an exhaustive catalogue. They indicate the nature of the problem of apportionment and the delicate adjustment of interests which must be made." See ; ; 2 Waters and Water *1037 Rights 132.5(B) (R. Clark ed. 1967). Of course, the relevant considerations stated in cases concerning rights to water must be adapted to this new context. Nevertheless, the general principles apply. I would direct the Master to consider a range of factors including, but not limited to, the harm that must be incurred by Oregon and in terms of harvest forgone in order to allow a given number of fish to reach Idaho, cf. ; the contribution of each State to preservation of the habitat |
Justice O'Connor | 1,983 | 14 | dissenting | Idaho Ex Rel. Evans v. Oregon | https://www.courtlistener.com/opinion/110986/idaho-ex-rel-evans-v-oregon/ | the contribution of each State to preservation of the habitat necessary for spawning; the contribution of each State to the preservation of the proper habitat necessary for the survival and development of fish during passage; the investment of each State in programs to mitigate losses and enhance the runs, such as hatcheries and transportation programs, see n. 5, [7] and the relative values of the types of fishery commercial or sport operated by the defendants and by Idaho, cf. Only after making this initial determination can we decide whether Idaho has been wrongfully deprived of fish. If the depletion of the runs is attributable to mismanagement by Oregon and we should grant relief. The Master suggested that relief is unworkable because of the difficulties of estimating the runs and apportioning them. The task is indeed a complicated one, as we recognized when we stated in Puyallup: "Only an expert could fairly estimate what degree of net fishing plus fishing by hook and line would allow the escapement of fish necessary for perpetuation of the species." Nevertheless, it is a task that we have recognized as possible, v. *1038 State Commercial Passenger Fishing Vessel Assn., and the difficulty of providing equitable relief has never provided an excuse for shirking the duty imposed on us by the Constitution. Idaho ex rel. ; The lower federal courts have proved able to grant appropriate relief, e. g., 529 F. 2d, at 572-573; United so we too should be able to overcome the difficulties.[8] Moreover, a statement of relative rights may induce the parties to cooperate in devising a plan to accommodate not only the rights of all but also the difficulties of management, as the defendants here did when sued by the Indians for enforcement of treaty fishing rights. See Report of Special Master 34-35 (discussing Five-Year Plan entered by parties to ).[9] IV Since the Master failed to quantify Idaho's right in the anadromous fish, he was unable to determine whether Idaho suffered any injury entitling it to a remedy. I would remand to allow the Master to apply our precedents on equitable apportionment to determine the extent of Idaho's rights, and, if appropriate, to devise a remedy protecting those rights. |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | This case concerns the proper forum for judicial review when a federal employee complains of a serious adverse employment action taken against him, one falling within the compass of the Civil Service Reform Act of 1978 (CSRA), 5 U.S. C. et seq., and attributes the action, in whole or in part, to bias based on race, gender, age, or disability, in violation of federal antidiscrimination laws. We refer to complaints of that order, descriptively, as “mixed cases.” In the CSRA, Congress created the Merit Systems Pro- tection Board (MSPB or Board) to review certain serious personnel actions against federal employees. If an em- ployee asserts rights under the CSRA only, MSPB deci- sions, all agree, are subject to judicial review exclusively in the Federal If the employee as- serts no civil-service rights, invoking only federal antidis- crimination law, the proper forum for judicial review, again all agree, is a federal district court, see v. Solis, ; the Federal Circuit, while empowered to review MSPB decisions on civil-service 2 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court claims, lacks authority over claims arising under antidiscrimination laws, see When a complaint presents a mixed case, and the MSPB dismisses it, must the employee resort to the Federal Circuit for review of any civil-service issue, reserving claims under federal antidiscrimination law for discrete district court adjudication? If the MSPB dismisses a mixed case on the merits, the parties agree, review au- thority lies in district court, not in the Federal In 56, we held, the proper review forum is also the district court when the MSPB dismisses a mixed case on procedural grounds, in itself, failure to meet a deadline for Board review set by the MSPB. We hold today that the review route remains the same when the MSPB types its dismissal of a mixed case as “jurisdictional.” As in we are mindful that re- view rights should be read not to protract proceedings, increase costs, and stymie employees,1 but to secure expedi- tious resolution of the claims employees present. See Elgin v. Department of Treasury, (empha- sizing need for “clear guidance about the proper forum for [an] employee’s [CSRA] claims”). Cf. Fed. Rule Civ. Proc. l. I A The CSRA “establishes a framework for evaluating personnel actions taken against federal employees.” v. Solis, For “particu- larly serious” actions, “for example, a removal from em- ployment or a reduction in grade or pay,” “the affected employee has a right to appeal the agency’s decision to the MSPB.” (citing 7512, 7701). Such an appeal —————— 1 Many CSRA claimants proceed pro |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | Such an appeal —————— 1 Many CSRA claimants proceed pro se. See MSPB, Congressional Budget Justification FY 2017, p. 14 (“Geally, at least half or more of the appeals filed with the [MSPB] are from pro se appellants”). Cite as: 582 U. S. (2017) 3 Opinion of the Court may present a civil-service claim only. Typically, the employee may allege that “the agency had insufficient cause for taking the action under the CSRA.” at An appeal to the MSPB, however, may also complain of adverse action taken, in whole or in part, because of dis- crimination prohibited by another federal statute, for example, Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq., or the Age Discrimination in Em- ployment Act of 1967, 29 U.S. C. et seq. See 5 U.S. C. 568 U.S., at In we explained, “[w]hen an employee com- plains of a personnel action serious enough to appeal to the MSPB and alleges that the action was based on dis- crimination, she is said (by pertinent regulation) to have brought a ‘mixed case.’ ” ). See also (defining “mixed case appeal” as one in which an employee “alleges that an appealable agency action was effected, in whole or in part, because of discrimination”). For mixed cases, “[t]he CSRA and regulations of the MSPB and Equal Employment Opportunity Commission (EEOC) set out special proce- dures different from those used when the employee either challenges a serious personnel action under the CSRA alone or attacks a less serious action as discrimina- tory.” 568 U.S., at –45. As detailed, the CSRA provides diverse proce- dural routes for an employee’s pursuit of a mixed case. The employee “may first file a discrimination complaint with the agency itself,” in the agency’s equal employment opportunity (EEO) office, “much as an employee challeng- ing a personnel practice not appealable to the MSPB could do.” at 45 (citing 5 CFR §1201.4(a) ; 29 CFR ); see “If the agency [EEO office] decides against her, the employee may then either take the matter to the MSPB or bypass further adminis- trative review by suing the agency in district court.” 4 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court (citing 5 CFR §1201.4(b); 29 CFR see “Alternatively, the employee may initiate the process by bringing her case directly to the MSPB, forgoing the agency’s own system for evaluating discrimination charges.” 568 U.S., at 45 (citing 5 CFR §1201.4(a); (b)); see Section 7702 prescribes appellate proceedings in actions involving discrimination. Defining the MSPB’s jurisdic- tion in mixed-case appeals that bypass an agency’s |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | MSPB’s jurisdic- tion in mixed-case appeals that bypass an agency’s EEO office, states in relevant part: “[I]n the case of any employee who— “(A) has been affected by an action which the em- ployee may appeal to the [MSPB], and “(B) alleges that a basis for the action was discrimi- nation prohibited by [specified antidiscrimination statutes], “the Board shall, within 120 days of the filing of the appeal, decide both the issue of discrimination and the appealable action in accordance with the Board’s ap- pellate procedures”2 Section 7702(a)(2) similarly authorizes a mixed-case ap- peal to the MSPB from an agency EEO office’s decision. Then, “[i]f the MSPB upholds the personnel action (whether in the first instance or after the agency has done so), the employee again has a choice: She may request additional administrative process, this time with the EEOC, or else she may seek judicial review.” (citing (b); ; ). —————— 2 If the MSPB fails to render a “judicially reviewable action” within 120 days, an employee may, “at any time after the 120th day,” “file a civil action [in district court] to the same extent and in the same man as provided in” the federal antidiscrimination laws invoked by the employee. Cite as: 582 U. S. (2017) 5 Opinion of the Court Section 7703(b) designates the proper forum for judicial review of MSPB decisions. Section 7703(b)(1)(A) provides the geal rule: “[A] petition to review a final decision of the Board shall be filed in the United States Court of Appeals for the Federal ” Section 7703(b)(2) states the exception here relevant, governing “[c]ases of discrim- ination subject to the provisions of See Kloeck- 568 U.S., at (“The ‘cases of discrimination’ in exception are mixed cases, in which an employee challenges as discriminatory a personnel action appealable to the MSPB.”). Such cases “shall be filed under [the enforcement sections of Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Fair Labor Standards Act of 1938, 29 U.S. C. et seq.], as applicable.” Those enforce- ment provisions “all authorize suit in federal district court.” 568 U.S., at (citing, inter alia, 42 U.S. C. §–16(c), 2000e–5(f); 29 U.S. C. Thus, if the MSPB decides against the employee on the merits of a mixed case, the statute instructs her to seek review in federal district court under the enforcement provision of the relevant antidiscrimination laws. see n. 4.3 Federal district court is also the proper forum for judicial review, we held in when the MSPB dismisses a mixed case on procedural grounds. We —————— |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | MSPB dismisses a mixed case on procedural grounds. We —————— 3 Our decision in v. Solis, did not merely assume that the civil-service component of mixed cases travels to district court. See (“If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions.” (emphasis added)). But see post, at 9–10. Charac- teristic of “mixed cases,” the employee in complained of adverse action taken, at least in part, because of discrimination. See The Board dismissed that case, not for any flaw under antidiscrimination law, but because the employee missed a deadline set by the MSPB. See at 47–48. 6 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court rested that conclusion on this syllogism: “Under ‘cases of discrimination subject to shall be filed in district court.” Further, “[u]nder [mixed cases qualify as] ‘cases of discrimination subject to ” (third alteration in original). Thus, “mixed cases shall be filed in district court.” That syllogism, we held, holds true whether the dismissal rests on procedural grounds or on the merits, for “nowhere in the [CSRA’s] provisions on judicial review” is a distinction drawn between MSPB merits decisions and procedural rulings. The instant case presents this question: Where does an employee seek judicial review when the MSPB dis- misses her civil-service case alleging discrimination neither on the merits nor on a procedural ground, but for lack of jurisdiction? B Anthony Perry worked at the U. S. Census Bureau until 2012. In 2011, Perry received notice that he would be terminated because of spotty attendance. Later that year, Perry and the Bureau reached a settlement in which Perry agreed to a 30-day suspension and early retirement. The agreement required Perry to dismiss discrimination claims he had separately filed with the EEOC. After retiring, Perry appealed his suspension and re- tirement to the MSPB. He alleged discrimination on grounds of race, age, and disability, as well as retaliation by the Bureau for his prior discrimination complaints. The settlement, he maintained, did not stand in the way, because the Bureau coerced him into signing it. An MSPB administrative law judge (ALJ) eventually determined that Perry had failed to prove that the settle- ment was coerced. Perry v. Department of Commerce, No. DC–0752–12–0486–B–1 etc. (initial deci- Cite as: 582 U. S. (2017) 7 Opinion of the Court sion), App. to Pet. for Cert. 32a, 47a. Presuming Perry’s retirement to be voluntary, the ALJ dismissed his case. 3a, 47a. Voluntary actions are not appealable |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | dismissed his case. 3a, 47a. Voluntary actions are not appealable to the MSPB, the ALJ observed, hence, the ALJ concluded, the Board lacked jurisdiction to entertain Perry’s claims. a. The MSPB affirmed the ALJ’s decision. See Perry v. Department of Commerce, (Aug. 6, 2014) (final order). The settlement agreement, the Board recounted, provided that Perry would waive his Board appeal rights with respect to his suspension and retire- ment. Because Perry did not prove that the agree- ment was involuntary, the Board determined (in accord with the ALJ) that his separation should be deemed vol- untary, hence not an adverse action subject to the Board’s jurisdiction under at *3–*4. If dissatis- fied with the MSPB’s ruling, the Board stated in its deci- sion, Perry could seek judicial review in the Federal Cir- cuit. Perry instead filed a pro se petition for review in the D. C. The court ordered juris- dictional briefing and appointed counsel to argue for Perry. By the time the court heard argument, the parties had agreed that the D. C. Circuit lacked jurisdic- tion, but disagreed on whether the proper forum for judi- cial review was the Federal Circuit, as the Government contended, or federal district court, as Perry maintained. The D. C. Circuit held that the Federal Circuit had jurisdiction over Perry’s petition and transferred his case to that court under 28 U.S. C. The court’s disposition was precedent-bound: In a prior decision, 8 F.3d 597, 598 the D. C. Circuit had held that the Federal Circuit is the proper forum for judicial review of MSPB decisions dismissing mixed cases “on procedural or 8 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court threshold grounds.” See 767–768. Notably, Powell ranked as a “procedural or threshold matter” “the Board’s view of its jurisdiction.” 8 F.3d, at 599 (internal quotation marks omitted). The D. C. Circuit rejected Perry’s argument that Powell was undermined by this Court’s intervening decision in which held MSPB procedural dispositions of mixed cases reviewable in district court. 829 F.3d, at 764–768. the D. C. Circuit observed, repeatedly tied its decision to dismissals on “procedural grounds,” 568 U.S., at 49, 52, 54, 55. See Jurisdictional dismissals differ from procedural dismis- sals, the D. C. Circuit concluded, given the CSRA’s refer- ence to mixed cases as those “which the employee may appeal to the [MSPB].” at 766–767 (quoting (A); emphasis added). A jurisdictional dismis- sal, the court said, rests on the Board’s determination that the employee may not appeal his case to the MSPB. at 766–767. In contrast, a dismissal on procedural grounds, e.g., |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | at 766–767. In contrast, a dismissal on procedural grounds, e.g., untimely resort to the MSPB, leaves the employee still “affected by an action which [she] may appeal to the MSPB.” (quoting (A); alteration in original). We granted certiorari to review the D. C. Circuit’s deci- sion, 580 U. S. (2017), which accords with the Federal Circuit’s decision in II Federal employees, the Government acknowledges, have a right to pursue claims of discrimination in violation of federal law in federal district court. Nor is there any doubt that the Federal Circuit lacks authority to adjudi- cate such claims. See (preserving “right to have the facts subject to trial de novo by the reviewing court” in any “case of discrimination” brought under Cite as: 582 U. S. (2017) 9 Opinion of the Court The sole question here disputed: What procedural route may an employee in Perry’s situation take to gain judicial review of the MSPB’s jurisdictional disposition of a com- plaint that alleges adverse action taken under the CSRA in whole or in part due to discrimination proscribed by federal law? The Government argues, and the dissent agrees, that employees, situated as Perry is, must split their claims, appealing MSPB nonappealability rulings to the Federal Circuit while repairing to the district court for adjudica- tion of their discrimination claims. As Perry sees it, one stop is all he need make. Exclusively competent to adjudi- cate “[c]ases of discrimination,” the district court alone can resolve his entire complaint, Perry urges; the CSRA, he maintains, forces no bifurcation of his case. Section 7702(a)(1), the Government contends, marks a case as mixed only if the employee “has been affected by an action which the employee may appeal to the [MSPB].” Brief for Respondent 17–19, 21. An MSPB finding of nonappealability removes a case from that category, the Government asserts, and hence, from the purview of “[c]ases of discrimination” described in Only this reading of the CSRA’s provisions on judicial review—one ordering Federal Cir- cuit review of any and all MSPB appealability determina- tions—the Government maintains, can ensure nationwide uniformity in answering questions arising under the CSRA. at 26–32. Perry emphasizes in response that (A)’s language, delineating cases in which an employee “has been affected by an action which the employee may appeal to the [MSPB],” is not confined to cases an em- ployee may successfully appeal to the Board. Brief for Peti- tio 19. The MSPB’s adverse ruling on the merits of his claim that the settlement was coerced, Perry argues, “did not retroactively divest the MSPB of jurisdiction to render 10 PERRY v. MERIT |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | the MSPB of jurisdiction to render 10 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court that decision.” The key consideration, accord- ing to Perry, is not what the MSPB determined about appealability; it is instead the nature of an employee’s claim that he had been “affected by an action [appealable] to the [MSPB]” (here, suspension for more than 14 days and involuntary removal, see (2)). See 23–24. Perry draws support for this argument from our recognition that “a party [may] establish jurisdiction at the outset of a case by means of a nonfrivolous assertion of jurisdictional elements,” Jerome B. Grubart, See Brief for Petitio 21–22. Perry, we hold, advances the more sensible reading of the statutory prescriptions. The Government’s procedure- jurisdiction distinction, we conclude, is no more tenable than “the merits-procedure distinction” we rejected in 568 U.S., A As just noted, a nonfrivolous allegation of jurisdiction geally suffices to establish jurisdiction upon initiation of a case. See Jerome B. Grubart, 513 U.S., at See also (19) (To invoke federal-question jurisdiction, allegations in a com- plaint must simply be more than “insubstantial or frivo- lous,” and “[i]f the court does later exercise its jurisdiction to determine that the allegations in the complaint do not state a ground for relief, then dismissal of the case would be on the merits, not for want of jurisdiction.”). So too here: whether an employee “has been affected by an action which [she] may appeal to the [MSPB],” (1)(A), turns on her well-pleaded allegations. EEOC regulations, and Courts of Appeals’ decisions are corroborative. We announced a clear rule in : “[M]ixed cases shall be filed in district court.” An em- Cite as: 582 U. S. (2017) 11 Opinion of the Court ployee brings a mixed case, we explained, when she “com- plains of a personnel action serious enough to appeal to the MSPB,” e.g., suspension for more than 14 days, “and alleges that the action was based on dis- crimination.” at The key to district court review, we said, was the employee’s “clai[m] that an agency action appealable to the MSPB violates an antidiscrimination statute listed in ” (emphasis added). EEOC regulations, see are in accord: The defining feature of a “mixed case appeal,” those regula- tions instruct, is the employee’s “alleg[ation] that an ap- pealable agency action was effected, in whole or in part, because of discrimination.” (a)(2) (emphasis added). Several Courts of Appeals have simi- larly described mixed-case appeals as those alleging an adverse action subject to MSPB jurisdiction taken, in whole or in part, because of unlawful discrimination. See, e.g., (“Mixed |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | or in part, because of unlawful discrimination. See, e.g., (“Mixed appeals to the MSPB are those appeals alleging an appealable action affected in whole or in part by pro- hibited discrimination.” (emphasis added)); Powell, 8 F.3d, at 597 (defining mixed-case appeal as “an appeal alleging both a Board-jurisdictional agency action and a claim of unlawful discrimination” (emphasis added)). See also 713 F.3d, 26–1127, n. 5 (Dyk, J., dissenting).4 Because Perry “complain[ed] of a personnel action seri- ous enough to appeal to the MSPB” (in his case, a 30-day suspension and involuntary removal, see ; —————— 4 Our interpretation is also consistent with another CSRA provision, which provides that “[a]n employee against whom an action is taken under this section is entitled to appeal to the Board.” Be- cause the “entitle[ment] to appeal” conferred in must be determined before an appeal is filed, such a right cannot depend on the outcome of the appeal. 12 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court (2)) and “allege[d] that the [personnel] action was based on discrimination,” he brought a mixed case. 568 U.S., at5 Judicial review of such a case lies in district court. B The Government rests heavily on a distinction between MSPB merits and procedural decisions, on the one hand, and the Board’s jurisdictional rulings, on the other.6 The distinction has multiple infirmities. “If Congress had wanted to [bifurcate judicial review,] send[ing] merits decisions to district court and procedural dismissals to the Federal Circuit,” we observed in Kloeck- “it could just have said so.” The same observation could be made about bifurcating judicial re- view here, sending the MSPB’s merits and procedural decisions to district court, but its jurisdictional dismissals to the Federal 7 —————— 5 If,as the dissent and the Government argue, see post, –10; Brief for Respondent 19–26, 33–35, Perry’s case is not “mixed,” one can only wonder what kind of case it is, surely not one asserting rights under the CSRA only, or one invoking only antidiscrimination law. See at 1–2. This is, of course, a paradigm mixed case: Perry alleges serious personnel actions (suspension and forced retirement) caused in whole or in part by prohibited discrimination. So did the employee in Kloeck- She alleged that her firing (a serious personnel action) was based on discrimination. See Thus Perry, like well understood what the term “mixed case” means. 6 Notably, the dissent ventures no support for the principal argument made by the Government, i.e., that MSPB jurisdictional dispositions belong in the Federal Circuit, procedural and merits dispositions, in district court. 7 As Judge Dyk, dissenting in |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | dispositions, in district court. 7 As Judge Dyk, dissenting in v. Merit Systems Protection Bd., pointed out: “[W]here Congress intended to distinguish between different types of Board decisions, it did so expressly.” 24, n. 1 (citing (“An election under this section may not be made after the [MSPB] has issued a judicially reviewable decision on the merits of the appeal.” (emphasis added)); (“The Board shall be named respondent in any Cite as: 582 U. S. (2017) 13 Opinion of the Court The Government’s attempt to separate jurisdictional dismissals from procedural dismissals is newly devised. In the Government agreed with the employee that there was “no basis” for a procedure-jurisdiction distinction. Brief for Respondent, O. T. 2012, No. 11–184, p. 25, n. 3; see Reply to Brief in Opposition, O. T. 2012, No. 11–184, pp. 1–2 (stating employee’s agreement with the Government that procedural and jurisdictional dismissals should travel together). Issues of both kinds, the Govern- ment there urged, should go to the Federal Draw- ing such a distinction, the Government observed, would be “difficult and unpredictable.” Brief in Opposition in O. T. 2012, No. 11–184, p. (internal quota- tion marks omitted). Now, in light of our holding in that procedural dismissals should go to district court, the Government has changed course, contending that MSPB procedural and jurisdictional dismissals should travel different paths.8 A procedure-jurisdiction distinction for purposes of determining the court in which judicial review lies, as both —————— proceeding brought pursuant to this subsection, unless the employee seeks review of a final order or decision on the merits” (empha- sis added))). 8 This is not the first time the Government has changed its position. Before the Federal Circuit in 738 F.2d 12 the Government moved to transfer to district court an appeal challenging a jurisdictional dismissal by the MSPB. See The Government argued that “even a question of the Board’s jurisdiction to hear an attempted mixed case appeal must be addressed by a district court.” (internal quotation marks omitted). Rejecting the Government’s position, the Federal Circuit concluded that it could review MSPB decisions on “procedural or threshold matters, not related to the merits of a discrimination claim.” In we disapproved the Federal Circuit’s holding with respect to MSPB procedural 56. Today we disapprove Ballentine’s holding with respect to jurisdictional dismis- sals, thereby adopting precisely the position advanced by the Govern- ment in that case. 14 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court parties recognized in would be perplexing and elusive. If a 30-day suspension followed by termination becomes nonappealable to the MSPB when the Board credits |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | termination becomes nonappealable to the MSPB when the Board credits a release signed by the employee, one may ask why a determination that the employee complained of such adverse actions (suspension and termination) too late, i.e., after a Board-set deadline, does not similarly render the complaint nonappealable. In both situations, the Board disassociates itself from the case upon making a threshold determination. This Court, like others, we note, has some- times wrestled over the proper characterization of timeli- ness questions. Compare 209–211, 2 (2007) (timely filing of notice of appeal in civil cases is “jurisdictional”), with 7–219 (Souter, J., dissenting) (timeliness of notice of appeal is a proce- dural issue). Just as the proper characterization of a question as jurisdictional rather than procedural can be slippery, the distinction between jurisdictional and merits issues is not inevitably sharp, for the two inquiries may overlap. See (CA Fed. 2001) (“recogniz[ing] that the MSPB’s jurisdic- tion and the merits of an alleged involuntary separation are inextricably intertwined” (internal quotation marks omitted)). This case fits that bill. The MSPB determined that it lacked jurisdiction over Perry’s civil-service claims on the ground that he voluntarily released those claims by entering into a valid settlement with his employing agency, the Census Bureau. See App. to Pet. for Cert. 27a.9 —————— 9 In civil litigation, a release is an affirmative defense to a plaintiff’s claim for relief, not something the plaintiff must anticipate and negate in her pleading. See Fed. Rule Civ. Proc. 8(c)(1) (listing among affirma- tive defenses “release” and “waiver”); 391 (1987). In that light, the MSPB’s jurisdiction should be determined by the adverse actions Perry asserts, suspension and forced retirement; the settlement releasing Perry’s claims would figure as a defense to his Cite as: 582 U. S. (2017) Opinion of the Court But the validity of the settlement is at the heart of the dispute on the merits of Perry’s complaint. In essence, the MSPB ruled that it lacked jurisdiction because Perry’s claims fail on the merits. See 260 F.3d, at (If it is established that an employee’s “resignation or retire- ment was involuntary and thus tantamount to forced removal,” then “not only [does the Board] ha[ve] jurisdic- tion, but also the employee wins on the merits and is entitled to reinstatement.” (internal quotation marks omitted)). See also 713 F.3d, 26 (Dyk, J., dissenting) (“[I]t cannot be that [the Federal Circuit] lack[s] jurisdiction to review the ‘merits’ of mixed cases but nevertheless may review ‘jurisdictional’ issues that are identical to the merits”).10 Distinguishing between MSPB jurisdictional rulings and the Board’s procedural or substantive rulings |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | MSPB jurisdictional rulings and the Board’s procedural or substantive rulings for purposes of allocating judicial review authority between district court and the Federal Circuit is problematic for a further reason: In practice, the distinction may be un- workable. The MSPB sometimes rules on alternate grounds, one typed “jurisdictional,” another either proce- dural or substantive. See, e.g., Davenport v. Postal Ser- vice, 97 MSPR 417 (2004) (dismissing “for lack of jurisdic- tion and as untimely filed” (emphasis added)). To which court does appeal lie? Or, suppose that the Board ad- dresses a complaint that encompasses multiple claims, dismissing some for want of jurisdiction, others on proce- dural or substantive grounds. See, e.g., WL 8598, *3 Tellingly, the Government is silent on the proper channel- —————— complaint, it would not enter into the determination whether the Board has jurisdiction over his claims. 10 If a reviewing court “agree[d] with the Board’s assessment,” then Perry would indeed have “lost his chance to pursue his discrimina- tion claim[s],” post, for those claims would have been defeated had he voluntarily submitted to the agency’s 16 PERRY v. MERIT SYSTEMS PROTECTION BD. Opinion of the Court ing of appeals in such cases. Desirable as national uniformity may be,11 it should not override the expense, delay, and inconvenience of requir- ing employees to sever inextricably related claims, resort- ing to two discrete appellate forums, in order to safeguard their rights. Perry’s comprehension of the complex statu- tory text, we are persuaded, best serves “[t]he CSRA’s objective of creating an integrated scheme of review[, which] would be seriously undermined” by “parallel litiga- tion regarding the same agency ” Elgin, 567 U.S., at 14. See also United 4–512 Perry asks us not to “tweak” the stat- —————— 11 In we rejected the Government’s national uniformity argument. See –56, n. 4. “When Congress passed the CSRA, the Federal Circuit did not exist,” we observed, so uniformity did not then figure in Congress’ calculus. Moreover, even under the Government’s reading, “many cases involving federal em- ployment issues [would be resolved] in district court. If the MSPB rejects on the merits a complaint alleging that an agency violated the CSRA as well as an antidiscrimination law, the suit will come to district court for a decision on both questions.” 12 In both and United we rejected employees’ attempts to divide particular issues or claims among review forums. In Elgin, a federal employee opted not to seek review of an MSPB ALJ’s decision, either before the full Board or in the Federal Circuit; he instead brought in District Court, in the first instance, |
Justice Ginsburg | 2,017 | 5 | majority | Perry v. Merit Systems Protection Bd. | https://www.courtlistener.com/opinion/4403798/perry-v-merit-systems-protection-bd/ | he instead brought in District Court, in the first instance, a constitutional challenge to an agency personnel –8. We con- cluded that an employee with civil-service claims must follow the CSRA’s procedures and may not bring a standalone constitutional challenge in district court. In Fausto, a federal employee with CSRA claims filed an action in the United States Claims Court under the Back Pay Act of 484 U.S., We determined that the employee could not bring his action under the Back Pay Act because the CSRA provided “the comprehensive and integrated review scheme.” See Contrary to the dissent’s suggestion, see post, at 10, neither case indicated that the Federal Circuit, as opposed to district court, is the preferred forum for judicial review of all CSRA claims. Rather, both decisions emphasized the benefits of an integrated review scheme and the problems associated with bifurcating consideration of a Cite as: 582 U. S. (2017) 17 Opinion of the Court ute, see post, at 1, but to read it sensibly, i.e., to refrain from reading into it the appeal-splitting bifurcation sought by the Government. Accordingly, we hold: (1) the Federal Circuit is the proper review forum when the MSPB dis- poses of complaints arising solely under the CSRA; and (2) in mixed cases, such as Perry’s, in which the employee (or former employee) complains of serious adverse action prompted, in whole or in part, by the employing agency’s violation of federal antidiscrimination laws, the district court is the proper forum for judicial review. * * * For the reasons stated, the judgment of the United States Court of Appeals for the District of Columbia Cir- cuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. —————— single matter in different forums. See –14; 484 U. S., at 4–5. It is the dissent’s insistence on bifurcated review, therefore, that “Elgin and Fausto warned against,” post, at 10. Cite as: 582 U. S. (2017) 1 GORSUCH, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–399 ANTHONY W. PERRY, PETITIONER v. |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | DeKalb County, Georgia, is a major suburban area of Atlanta. This case involves a court-ordered desegregation decree for the DeKalb County School System (DCSS). DCSS now serves some 73,000 students in kindergarten through high school and is the 32d largest elementary and secondary school system in the Nation. DCSS has been subject to the supervision and jurisdiction of the United States District Court for the Northern District of Georgia since when it was ordered to dismantle its dual school system. In 1986, petitioners filed a motion for final dismissal. The District Court ruled that DCSS had not achieved unitary status in all respects but had done so in student attendance and three other categories. In its order the District Court relinquished remedial control as to those aspects of the system in which unitary status had been achieved, and retained supervisory authority only for those aspects of the school system in which the district was not in full compliance. The Court of Appeals for the Eleventh Circuit reversed, holding that a district court should retain full remedial authority over a school system until it achieves unitary status in six categories at the same time for several We now reverse the judgment of the Court of Appeals and remand, holding that a district court is permitted to withdraw judicial supervision with respect to discrete categories in which the school district has achieved compliance with a court-ordered desegregation plan. A district court need not retain active control over every aspect of school administration until a school district has demonstrated unitary status in all facets of its system. I A For decades before our decision in and our mandate in *472 which ordered school districts to desegregate with "all deliberate speed," DCSS was segregated by law. DCSS' initial response to the mandate of Brown was an all too familiar one. Interpreting "all deliberate speed" as giving latitude to delay steps to desegregate, DCSS took no positive action toward desegregation until the 1966-1967 school year, when it did nothing more than adopt a freedom of choice transfer plan. Some black students chose to attend former de jure white schools, but the plan had no significant effect on the former de jure black schools. In 1968, we decided We held that adoption of a freedom of choice plan does not, by itself, satisfy a school district's mandatory responsibility to eliminate all vestiges of a dual system. was a turning point in our law in a further respect. Concerned by more than a decade of inaction, we stated that "`[t]he time for mere "deliberate speed" has run |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | stated that "`[t]he time for mere "deliberate speed" has run out.' " quoting We said that the obligation of school districts once segregated by law was to come forward with a plan that "promises realistically to work, and promises realistically to work now. " The case before us requires an understanding and assessment of how DCSS responded to the directives set forth in Within two months of our ruling in respondents, who are black school children and their parents, instituted this class action in the United States District Court for the Northern District of Georgia. After the suit was filed, DCSS voluntarily began working with the Department of Health, Education, and Welfare to devise a comprehensive and final plan of desegregation. The District Court, in June entered a consent order approving the proposed plan, which was to be implemented in the -1970 school year. The order abolished the freedom of choice plan and adopted *473 a neighborhood school attendance plan that had been proposed by DCSS and accepted by the Department of Health, Education, and Welfare subject to a minor modification. Under the plan all of the former de jure black schools were closed, and their students were reassigned among the remaining neighborhood schools. The District Court retained jurisdiction. Between and 1986, respondents sought only infrequent and limited judicial intervention into the affairs of DCSS. They did not request significant changes in student attendance zones or student assignment policies. In DCSS was ordered to expand its Majority-to-Minority (M-to-M) student transfer program, allowing students in a school where they are in the majority race to transfer to a school where they are in the minority; to establish a biracial committee to oversee the transfer program and future boundary line changes; and to reassign teachers so that the ratio of black to white teachers in each school would be, in substance, similar to the racial balance in the school population systemwide. From to 1979, the District Court approved a boundary line change for one elementary school attendance zone and rejected DCSS proposals to restrict the M-to-M transfer program. In 1983, DCSS was ordered to make further adjustments to the M-to-M transfer program. In 1986, petitioners filed a motion for final dismissal of the litigation. They sought a declaration that DCSS had satisfied its duty to eliminate the dual education system, that is to say a declaration that the school system had achieved unitary status. The District Court approached the question whether DCSS had achieved unitary status by asking whether DCSS was unitary with respect to each of the factors identified in The |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | with respect to each of the factors identified in The court considered an additional factor that is not named in : the quality of education being offered to the white and black student populations. *474 The District Court found DCSS to be "an innovative school system that has travelled the often long road to unitary status almost to its end," noting that "the court has continually been impressed by the successes of the DCSS and its dedication to providing a quality education for all students within that system." App. to Pet. for Cert. 71a. It found that DCSS is a unitary system with regard to student assignments, transportation, physical facilities, and extracurricular activities, and ruled that it would order no further relief in those areas. The District Court stopped short of dismissing the case, however, because it found that DCSS was not unitary in every respect. The court said that vestiges of the dual system remain in the areas of teacher and principal assignments, resource allocation, and quality of education. DCSS was ordered to take measures to address the remaining problems. B Proper resolution of any desegregation case turns on a careful assessment of its facts. Here, as in most cases where the issue is the degree of compliance with a school desegregation decree, a critical beginning point is the degree of racial imbalance in the school district, that is to say a comparison of the proportion of majority to minority students in individual schools with the proportions of the races in the district as a whole. This inquiry is fundamental, for under the former de jure regimes racial exclusion was both the means and the end of a policy motivated by disparagement of, or hostility towards, the disfavored race. In accord with this principle, the District Court began its analysis with an assessment of the current racial mix in the schools throughout DCSS and the explanation for the racial imbalance it found. Respondents did not contend on appeal that the findings of fact were clearly erroneous, and the Court of Appeals did not find them to be erroneous. The Court of Appeals did disagree with the conclusion reached *475 by the District Court respecting the need for further supervision of racial balance in student assignments. In the extensive record that comprises this case, one fact predominates: Remarkable changes in the racial composition of the county presented DCSS and the District Court with a student population in 1986 far different from the one they set out to integrate in Between 1950 and 1985, DeKalb County grew from 70,000 to 450,000 |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | 1950 and 1985, DeKalb County grew from 70,000 to 450,000 in total population, but most of the gross increase in student enrollment had occurred by the relevant starting date for our purposes. Although the public school population experienced only modest changes between and 1986 (remaining in the low 70,000's), a striking change occurred in the racial proportions of the student population. The school system that the District Court ordered desegregated in had 5.6% black students; by 1986 the percentage of black students was 47%. To compound the difficulty of working with these radical demographic changes, the northern and southern parts of the county experienced much different growth patterns. The District Court found that "[a]s the result of these demographic shifts, the population of the northern half of DeKalb County is now predominantly white and the southern half of DeKalb County is predominantly black." App. to Pet. for Cert. 38a. In 1970, there were 7,615 nonwhites living in the northern part of DeKalb County and 11,508 nonwhites in the southern part of the county. By 1980, there were 15,365 nonwhites living in the northern part of the county, and 87,583 nonwhites in the southern part. Most of the growth in the nonwhite population in the southern portion of the county was due to the migration of black persons from the city of Atlanta. Between 1975 and 1980 alone, approximately 64,000 black citizens moved into southern DeKalb County, most of them coming from Atlanta. During the same period, approximately 37,000 white citizens moved out of southern DeKalb County to the surrounding counties. *476 The District Court made findings with respect to the number of nonwhite citizens in the northern and southern parts of the county for the years 1970 and 1980 without making parallel findings with respect to white citizens. Yet a clear picture does emerge. During the relevant period, the black population in the southern portion of the county experienced tremendous growth while the white population did not, and the white population in the northern part of the county experienced tremendous growth while the black population did not. The demographic changes that occurred during the course of the desegregation order are an essential foundation for the District Court's analysis of the current racial mix of DCSS. As the District Court observed, the demographic shifts have had "an immense effect on the racial compositions of the DeKalb County schools." From to 1986, enrollment in elementary schools declined overall by 15%, while black enrollment in elementary schools increased by 86%. During the same period, overall high school enrollment declined by 16%, while black |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | period, overall high school enrollment declined by 16%, while black enrollment in high schools increased by 119%. These effects were even more pronounced in the southern portion of DeKalb County. Concerned with racial imbalance in the various schools of the district, respondents presented evidence that during the 1986- school year DCSS had the following features: (1) 47% of the students attending DCSS were black; (2) 50% of the black students attended schools that were over 90% black; (3) 62% of all black students attended schools that had more than 20% more blacks than the system-wide average; (4) 27% of white students attended schools that were more than 90% white; (5) 59% of the white students attended schools that had more than 20% more whites than the system-wide average; (6) of the 22 DCSS high schools, five had student populations that were more than 90% black, while five other schools had student populations that were more than 80% white; and (7) of the 74 elementary schools *477 in DCSS, 18 are over 90% black, while 10 are over 90% white. at 31a. (Respondents' evidence on these points treated all nonblack students as white. The District Court noted that there was no evidence that nonblack minority students constituted even 1% of DCSS student population.) Respondents argued in the District Court that this racial imbalance in student assignment was a vestige of the dual system, rather than a product of independent demographic forces. In addition to the statistical evidence that the ratio of black students to white students in individual schools varied to a significant degree from the system-wide average, respondents contended that DCSS had not used all available desegregative tools in order to achieve racial balancing. Respondents pointed to the following alleged shortcomings in DCSS' desegregative efforts: (1) DCSS did not break the county into subdistricts and racially balance each subdistrict; (2) DCSS failed to expend sufficient funds for minority learning opportunities; (3) DCSS did not establish community advisory organizations; (4) DCSS did not make full use of the freedom of choice plan; (5) DCSS did not cluster schools, that is, it did not create schools for separate grade levels which could be used to establish a feeder pattern; (6) DCSS did not institute its magnet school program as early as it might have; and (7) DCSS did not use busing to facilitate urban to suburban exchanges. According to the District Court, respondents conceded that the order assigning all students to their neighborhood schools "effectively desegregated the DCSS for a period of time" with respect to student assignment. at 35a. The District |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | time" with respect to student assignment. at 35a. The District Court noted, however, that despite this concession respondents contended there was an improper imbalance in two schools even in Respondents made much of the fact that despite the small percentage of blacks in the county in there were then two schools that contained a majority of black students: Terry Mill Elementary School *478 was 76% black, and Stoneview Elementary School was 51% black. The District Court found the racial imbalance in these schools was not a vestige of the prior de jure system. It observed that both the Terry Mill and Stoneview schools were de jure white schools before the freedom of choice plan was put in place. It cited expert witness testimony that Terry Mill had become a majority black school as a result of demographic shifts unrelated to the actions of petitioners or their predecessors. In 1966, the overwhelming majority of students at Terry Mill were white. By 1967, due to migration of black citizens from Atlanta into DeKalb County and into the neighborhood surrounding the Terry Mill school in particular 23% of the students at Terry Mill were black. By 1968, black students constituted 50% of the school population at Terry Mill. By when the plan was put into effect, the percentage of black students had grown to 76. In accordance with the evidence of demographic shifts, and in the absence of any evidence to suggest that the former dual system contributed in any way to the rapid racial transformation of the Terry Mill student population, the District Court found that the pre- unconstitutional acts of petitioners were not responsible for the high percentage of black students at the Terry Mill school in Its findings in this respect are illustrative of the problems DCSS and the District Court faced in integrating the whole district. Although the District Court found that DCSS was desegregated for at least a short period under the court-ordered plan of it did not base its finding that DCSS had achieved unitary status with respect to student assignment on that circumstance alone. Recognizing that "[t]he achievement of unitary status in the area of student assignment cannot be hedged on the attainment of such status for a brief moment," at 37a, the District Court examined the interaction between DCSS policy and demographic shifts in DeKalb County. *479 The District Court noted that DCSS had taken specific steps to combat the effects of demographics on the racial mix of the schools. Under the order, a biracial committee had reviewed all proposed changes in the |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | a biracial committee had reviewed all proposed changes in the boundary lines of school attendance zones. Since the original desegregation order, there had been about 170 such changes. It was found that only three had a partial segregative effect. An expert testified, and the District Court found, that even those changes had no significant effect on the racial mix of the school population, given the tremendous demographic shifts that were taking place at the same time. The District Court also noted that DCSS, on its own initiative, started an M-to-M program in the 1972 school year. The program was a marked success. Participation increased with each passing year, so that in the 1986- school year, 4,500 of the 72,000 students enrolled in DCSS participated. An expert testified that the impact of an M-to-M program goes beyond the number of students transferred because students at the receiving school also obtain integrated learning experiences. The District Court found that about 19% of the students attending DCSS had an integrated learning experience as a result of the M-to-M program. at 40a. In addition, in the 1980's, DCSS instituted a magnet school program in schools located in the middle of the county. The magnet school programs included a performing arts program, two science programs, and a foreign language program. There was testimony in the District Court that DCSS also had plans to operate additional magnet programs in occupational education and gifted and talented education, as well as a preschool program and an open campus. By locating these programs in the middle of the county, DCSS sought to attract black students from the southern part of the county and white students from the northern part. Further, the District Court found that DCSS operates a number of experience programs integrated by race, including *480 a writing center for fifth and seventh graders, a driving range, summer school programs, and a dialectical speech program. DCSS employs measures to control the racial mix in each of these special areas. In determining whether DCSS has achieved unitary status with respect to student assignment, the District Court saw its task as one of deciding if petitioners "have accomplished maximum practical desegregation of the DCSS or if the DCSS must still do more to fulfill their affirmative constitutional duty." at 41a. Petitioners and respondents presented conflicting expert testimony about the potential effects that desegregative techniques not deployed might have had upon the racial mix of the schools. The District Court found that petitioners' experts were more reliable, citing their greater familiarity with DCSS, their experience, and their standing within the expert |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | with DCSS, their experience, and their standing within the expert community. The District Court made these findings: "[The actions of DCSS] achieved maximum practical desegregation from to 1986. The rapid population shifts in DeKalb County were not caused by any action on the part of the DCSS. These demographic shifts were inevitable as the result of suburbanization, that is, work opportunities arising in DeKalb County as well as the City of Atlanta, which attracted blacks to DeKalb; the decline in the number of children born to white families during this period while the number of children born to black families did not decrease; blockbusting of formerly white neighborhoods leading to selling and buying of real estate in the DeKalb area on a highly dynamic basis; and the completion of Interstate 20, which made access from DeKalb County into the City of Atlanta much easier. There is no evidence that the school system's previous unconstitutional conduct may have contributed to this segregation. This court is convinced that any further actions taken by defendants, while the actions might have made marginal adjustments in the *481 population trends, would not have offset the factors that were described above and the same racial segregation would have occurred at approximately the same speed." at 44a-45a. The District Court added: "[A]bsent massive bussing, which is not considered as a viable option by either the parties or this court, the magnet school program and the M-to-M program, which the defendants voluntarily implemented and to which the defendants obviously are dedicated, are the most effective ways to deal with the effects on student attendance of the residential segregation existing in DeKalb County at this time." at 46a. Having found no constitutional violation with respect to student assignment, the District Court next considered the other factors, beginning with faculty and staff assignments. The District Court first found that DCSS had fulfilled its constitutional obligation with respect to hiring and retaining minority teachers and administrators. DCSS has taken active steps to recruit qualified black applicants and has hired them in significant numbers, employing a greater percentage of black teachers than the statewide average. The District Court also noted that DCSS has an "equally exemplary record" in retention of black teachers and administrators. App. to Pet. for Cert. 49a. Nevertheless, the District Court found that DCSS had not achieved or maintained a ratio of black to white teachers and administrators in each school to approximate the ratio of black to white teachers and administrators throughout the system. See cert. denied, In other words, a racial imbalance existed in the assignment of |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | other words, a racial imbalance existed in the assignment of minority teachers and administrators. The District Court found that in the 1984-1985 school year, seven schools deviated by more than 10% from the system-wide average *482 of 26.4% minority teachers in elementary schools and 24.9% minority teachers in high schools. The District Court also found that black principals and administrators were overrepresented in schools with high percentages of black students and underrepresented in schools with low percentages of black students. The District Court found the crux of the problem to be that DCSS has relied on the replacement process to attain a racial balance in teachers and other staff and has avoided using mandatory reassignment. DCSS gave as its reason for not using mandatory reassignment that the competition among local school districts is stiff, and that it is difficult to attract and keep qualified teachers if they are required to work far from their homes. In fact, because teachers prefer to work close to their homes, DCSS has a voluntary transfer program in which teachers who have taught at the same school for a period of three years may ask for a transfer. Because most teachers request to be transferred to schools near their homes, this program makes compliance with the objective of racial balance in faculty and staff more difficult. The District Court stated that it was not "unsympathetic to the difficulties that DCSS faces in this regard," but held that the law of the Circuit requires DCSS to comply with Singleton. App. to Pet. for Cert. 53a. The court ordered DCSS to devise a plan to achieve compliance with Singleton, noting that "[i]t would appear that such compliance will necessitate reassignment of both teachers and principals." App. to Pet. for Cert. 58a. With respect to faculty, the District Court noted that meeting Singleton would not be difficult, citing petitioners' own estimate that most schools' faculty could conform by moving, at most, two or three teachers. Addressing the more ineffable category of quality of education, the District Court rejected most of respondents' contentions that there was racial disparity in the provision of certain educational resources (e. g., teachers with advanced *483 degrees, teachers with more experience, library books), contentions made to show that black students were not being given equal educational opportunity. The District Court went further, however, and examined the evidence concerning achievement of black students in DCSS. It cited expert testimony praising the overall educational program in the district, as well as objective evidence of black achievement: Black students at DCSS made greater gains on the Iowa |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | Black students at DCSS made greater gains on the Iowa Tests of Basic Skills than white students, and black students at DCSS are more successful than black students nationwide on the Scholastic Aptitude Test. It made the following finding: "While there will always be something more that the DCSS can do to improve the chances for black students to achieve academic success, the court cannot find, as plaintiffs urge, that the DCSS has been negligent in its duties to implement programs to assist black students. The DCSS is a very innovative school system. It has implemented a number of programs to enrich the lives and enhance the academic potential of all students, both blacks and whites. Many remedial programs are targeted in the majority black schools. Programs have been implemented to involve the parents and offset negative socio-economic factors. If the DCSS has failed in any way in this regard, it is not because the school system has been negligent in its duties." App. to Pet. for Cert. 69a-70a (footnote omitted). Despite its finding that there was no intentional violation, the District Court found that DCSS had not achieved unitary status with respect to quality of education because teachers in schools with disproportionately high percentages of white students tended to be better educated and have more experience than their counterparts in schools with disproportionately high percentages of black students, and because per-pupil expenditures in majority white schools *484 exceeded per-pupil expenditures in majority black schools. From these findings, the District Court ordered DCSS to equalize spending and remedy the other problems. The final factors considered by the District Court were: (1) physical facilities, (2) transportation, and (3) extracurricular activities. The District Court noted that although respondents expressed some concerns about the use of portable classrooms in schools in the southern portion of the county, they in effect conceded that DCSS has achieved unitary status with respect to physical In accordance with its factfinding, the District Court held that it would order no further relief in the areas of student assignment, transportation, physical facilities, and extracurricular activities. The District Court, however, did order DCSS to establish a system to balance teacher and principal assignments and to equalize per-pupil expenditures throughout DCSS. Having found that blacks were represented on the school board and throughout DCSS administration, the District Court abolished the biracial committee as no longer necessary. Both parties appealed to the United States Court of Appeals for the Eleventh Circuit. The Court of Appeals affirmed the District Court's ultimate conclusion that DCSS has not yet achieved unitary status, but reversed the |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | DCSS has not yet achieved unitary status, but reversed the District Court's ruling that DCSS has no further duties in the area of student assignment. The Court of Appeals held that the District Court erred by considering the six factors as separate categories. The Court of Appeals rejected the District Court's incremental approach, an approach that has also been adopted by the Court of Appeals for the First Circuit, and held that a school system achieves unitary status only after it has satisfied all six factors at the same time for several Because, under this test, DCSS had not achieved unitary status at any time, the Court of Appeals held that DCSS could "not shirk *485 its constitutional duties by pointing to demographic shifts occurring prior to unitary status." The Court of Appeals held that petitioners bore the responsibility for the racial imbalance, and in order to correct that imbalance would have to take actions that "may be administratively awkward, inconvenient, and even bizarre in some situations," such as pairing and clustering of schools, drastic gerrymandering of school zones, grade reorganization, and busing. We granted certiorari, Two principal questions are presented. The first is whether a district court may relinquish its supervision and control over those aspects of a school system in which there has been compliance with a desegregation decree if other aspects of the system remain in noncompliance. As we answer this question in the affirmative, the second question is whether the Court of Appeals erred in reversing the District Court's order providing for incremental withdrawal of supervision in all the circumstances of this case. A The duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system. This is required in order to ensure that the principal wrong of the de jure system, the injuries and stigma inflicted upon the race disfavored by the violation, is no longer present. This was the rationale and the objective of Brown I and Brown In Brown I we said: "To separate [black students] from others of similar age and qualifications solely because of their race generates a feeling of inferiority as to their status in the community that may affect their hearts and minds in a way unlikely ever to be undone." We *486 quoted a finding of the three-judge District Court in the underlying Kansas case that bears repeating here: "`Segregation of white and colored children in public schools has a detrimental effect upon the colored children. The impact is greater when it |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | upon the colored children. The impact is greater when it has the sanction of the law; for the policy of separating the races is usually interpreted as denoting the inferiority of the negro group. A sense of inferiority affects the motivation of a child to learn. Segregation with the sanction of law, therefore, has a tendency to [retard] the educational and mental development of negro children and to deprive them of some of the benefits they would receive in a racial[ly] integrated school system.' " The objective of Brown I was made more specific by our holding in that the duty of a former de jure district is to "take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch." -438. We also identified various parts of the school system which, in addition to student attendance patterns, must be free from racial discrimination before the mandate of Brown is met: faculty, staff, transportation, extracurricular activities, and The factors are a measure of the racial identifiability of schools in a system that is not in compliance with Brown, and we instructed the District Courts to fashion remedies that address all these components of elementary and secondary school systems. The concept of unitariness has been a helpful one in defining the scope of the district courts' authority, for it conveys the central idea that a school district that was once a dual system must be examined in all of its facets, both when a remedy is ordered and in the later phases of desegregation when the question is whether the district courts' remedial control ought to be modified, lessened, or withdrawn. But, as we explained last Term in Board of Ed. of Oklahoma City *487 Public the term "unitary" is not a precise concept: "[I]t is a mistake to treat words such as `dual' and `unitary' as if they were actually found in the Constitution. Courts have used the terms `dual' to denote a school system which has engaged in intentional segregation of students by race, and `unitary' to describe a school system which has been brought into compliance with the command of the Constitution. We are not sure how useful it is to define these terms more precisely, or to create sub classes within them." It follows that we must be cautious not to attribute to the term a utility it does not have. The term "unitary" does not confine the discretion and authority of the District Court in a way that departs from traditional equitable principles. That the term |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | way that departs from traditional equitable principles. That the term "unitary" does not have fixed meaning or content is not inconsistent with the principles that control the exercise of equitable power. The essence of a court's equity power lies in its inherent capacity to adjust remedies in a feasible and practical way to eliminate the conditions or redress the injuries caused by unlawful action. Equitable remedies must be flexible if these underlying principles are to be enforced with fairness and precision. In this respect, as we observed in Swann, "a school desegregation case does not differ fundamentally from other cases involving the framing of equitable remedies to repair the denial of a constitutional right. The task is to correct, by a balancing of the individual and collective interests, the condition that offends the Constitution." Swann, -16. The requirement of a unitary school system must be implemented according to this prescription. Our application of these guiding principles in Pasadena Bd. of is instructive. There we held that a District Court exceeded its remedial authority in requiring annual readjustment of school *488 attendance zones in the Pasadena school district when changes in the racial makeup of the schools were caused by demographic shifts "not attributed to any segregative acts on the part of the [school district]." at 436. In so holding we said: "It may well be that petitioners have not yet totally achieved the unitary system contemplated by Swann. There has been, for example, dispute as to the petitioners' compliance with those portions of the plan specifying procedures for hiring and promoting teachers and administrators. See vacated, But that does not undercut the force of the principle underlying the quoted language from Swann. In this case the District Court approved a plan designed to obtain racial neutrality in the attendance of students at Pasadena's public schools. No one disputes that the initial implementation of this plan accomplished that objective. That being the case, the District Court was not entitled to require the [Pasadena Unified School District] to rearrange its attendance zones each year so as to ensure that the racial mix desired by the court was maintained in perpetuity. For having once implemented a racially neutral attendance pattern in order to remedy the perceived constitutional violations on the part of the defendants, the District Court had fully performed its function of providing the appropriate remedy for previous racially discriminatory attendance patterns." See also n. 5 ("Counsel for the original plaintiffs has urged, in the courts below and before us, that the District Court's perpetual `no majority of any minority' requirement was |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | District Court's perpetual `no majority of any minority' requirement was valid and consistent with Swann, at least until the school system achieved `unitary' status in all other respects such as the hiring and promoting of teachers and administrators. Since we have concluded that the case is moot with *489 regard to these plaintiffs, these arguments are not properly before us. It should be clear from what we have said that they have little substance"). Today, we make explicit the rationale that was central in Spangler. A federal court in a school desegregation case has the discretion to order an incremental or partial withdrawal of its supervision and control. This discretion derives both from the constitutional authority which justified its intervention in the first instance and its ultimate objectives in formulating the decree. The authority of the court is invoked at the outset to remedy particular constitutional violations. In construing the remedial authority of the district courts, we have been guided by the principles that "judicial powers may be exercised only on the basis of a constitutional violation," and that "the nature of the violation determines the scope of the remedy." Swann, A remedy is justifiable only insofar as it advances the ultimate objective of alleviating the initial constitutional violation. We have said that the court's end purpose must be to remedy the violation and, in addition, to restore state and local authorities to the control of a school system that is operating in compliance with the Constitution. 0-1 Partial relinquishment of judicial control, where justified by the facts of the case, can be an important and significant step in fulfilling the district court's duty to return the operations and control of schools to local authorities. In Dowell, we emphasized that federal judicial supervision of local school systems was intended as a "temporary measure." Although this temporary measure has lasted decades, the ultimate objective has not changed to return school districts to the control of local authorities. Just as a court has the obligation *490 at the outset of a desegregation decree to structure a plan so that all available resources of the court are directed to comprehensive supervision of its decree, so too must a court provide an orderly means for withdrawing from control when it is shown that the school district has attained the requisite degree of compliance. A transition phase in which control is relinquished in a gradual way is an appropriate means to this end. As we have long observed, "local autonomy of school districts is a vital national tradition." Dayton Bd. of Returning schools to |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | a vital national tradition." Dayton Bd. of Returning schools to the control of local authorities at the earliest practicable date is essential to restore their true accountability in our governmental system. When the school district and all state entities participating with it in operating the schools make decisions in the absence of judicial supervision, they can be held accountable to the citizenry, to the political process, and to the courts in the ordinary course. As we discuss below, one of the prerequisites to relinquishment of control in whole or in part is that a school district has demonstrated its commitment to a course of action that gives full respect to the equal protection guarantees of the Constitution. Yet it must be acknowledged that the potential for discrimination and racial hostility is still present in our country, and its manifestations may emerge in new and subtle forms after the effects of de jure segregation have been eliminated. It is the duty of the State and its subdivisions to ensure that such forces do not shape or control the policies of its school systems. Where control lies, so too does responsibility. We hold that, in the course of supervising desegregation plans, federal courts have the authority to relinquish supervision and control of school districts in incremental stages, before full compliance has been achieved in every area of school operations. While retaining jurisdiction over the case, the court may determine that it will not order further *491 remedies in areas where the school district is in compliance with the decree. That is to say, upon a finding that a school system subject to a court-supervised desegregation plan is in compliance in some but not all areas, the court in appropriate cases may return control to the school system in those areas where compliance has been achieved, limiting further judicial supervision to operations that are not yet in full compliance with the court decree. In particular, the district court may determine that it will not order further remedies in the area of student assignments where racial imbalance is not traceable, in a proximate way, to constitutional violations. A court's discretion to order the incremental withdrawal of its supervision in a school desegregation case must be exercised in a manner consistent with the purposes and objectives of its equitable power. Among the factors which must inform the sound discretion of the court in ordering partial withdrawal are the following: whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn; whether retention of |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | system where supervision is to be withdrawn; whether retention of judicial control is necessary or practicable to achieve compliance with the decree in other facets of the school system; and whether the school district has demonstrated, to the public and to the parents and students of the once disfavored race, its good-faith commitment to the whole of the court's decree and to those provisions of the law and the Constitution that were the predicate for judicial intervention in the first instance. In considering these factors, a court should give particular attention to the school system's record of compliance. A school system is better positioned to demonstrate its goodfaith commitment to a constitutional course of action when its policies form a consistent pattern of lawful conduct directed to eliminating earlier violations. And, with the passage of time, the degree to which racial imbalances continue to represent vestiges of a constitutional violation may diminish, *492 and the practicability and efficacy of various remedies can be evaluated with more precision. These are the premises that guided our formulation in Dowell of the duties of a district court during the final phases of a desegregation case: "The District Court should address itself to whether the Board had complied in good faith with the desegregation decree since it was entered, and whether the vestiges of past discrimination had been eliminated to the extent practicable." -250. B We reach now the question whether the Court of Appeals erred in prohibiting the District Court from returning to DCSS partial control over some of its affairs. We decide that the Court of Appeals did err in holding that, as a matter of law, the District Court had no discretion to permit DCSS to regain control over student assignment, transportation, physical facilities, and extracurricular activities, while retaining court supervision over the areas of faculty and administrative assignments and the quality of education, where full compliance had not been demonstrated. It was an appropriate exercise of its discretion for the District Court to address the elements of a unitary system discussed in to inquire whether other elements ought to be identified, and to determine whether minority students were being disadvantaged in ways that required the formulation of new and further remedies to ensure full compliance with the court's decree. Both parties agreed that quality of education was a legitimate inquiry in determining DCSS' compliance with the desegregation decree, and the trial court found it workable to consider the point in connection with its findings on resource allocation. Its order retaining supervision over this aspect of the case has not been |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | supervision over this aspect of the case has not been challenged by the parties, and we need not examine it except as it underscores the school district's record of compliance in some areas but not others. The District Court's approach illustrates *493 that the factors need not be a rigid framework. It illustrates also the uses of equitable discretion. By withdrawing control over areas where judicial supervision is no longer needed, a district court can concentrate both its own resources and those of the school district on the areas where the effects of de jure discrimination have not been eliminated and further action is necessary in order to provide real and tangible relief to minority students. The Court of Appeals' rejection of the District Court's order rests on related premises: first, that given noncompliance in some discrete categories, there can be no partial withdrawal of judicial control; and second, until there is full compliance, heroic measures must be taken to ensure racial balance in student assignments system wide. Under our analysis and our precedents, neither premise is correct. The Court of Appeals was mistaken in ruling that our opinion in Swann requires "awkward," "inconvenient," and "even bizarre" measures to achieve racial balance in student assignments in the late phases of carrying out a decree, when the imbalance is attributable neither to the prior de jure system nor to a later violation by the school district but rather to independent demographic forces. In Swann we undertook to discuss the objectives of a comprehensive desegregation plan and the powers and techniques available to a district court in designing it at the outset. We confirmed that racial balance in school assignments was a necessary part of the remedy in the circumstances there presented. In the case before us the District Court designed a comprehensive plan for desegregation of DCSS in one that included racial balance in student assignments. The desegregation decree was designed to achieve maximum practicable desegregation. Its central remedy was the closing of black schools and the reassignment of pupils to neighborhood schools, with attendance zones that achieved racial balance. The plan accomplished its objective in the first year of operation, before dramatic demographic changes altered residential *494 patterns. For the entire 17-year period respondents raised no substantial objection to the basic student assignment system, as the parties and the District Court concentrated on other mechanisms to eliminate the de jure taint. That there was racial imbalance in student attendance zones was not tantamount to a showing that the school district was in noncompliance with the decree or with its duties |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | was in noncompliance with the decree or with its duties under the law. Racial balance is not to be achieved for its own sake. It into be pursued when racial imbalance has been caused by a constitutional violation. Once the racial imbalance due to the de jure violation has been remedied, the school district is under no duty to remedy imbalance that is caused by demographic factors. Swann, -32 ("Neither school authorities nor district courts are constitutionally required to make year-by-year adjustments of the racial composition of student bodies once the affirmative duty to desegregate has been accomplished and racial discrimination through official action is eliminated from the system. This does not mean that federal courts are without power to deal with future problems; but in the absence of a showing that either the school authorities or some other agency of the State has deliberately attempted to fix or alter demographic patterns to affect the racial composition of the schools, further intervention by a district court should not be necessary"). If the unlawful de jure policy of a school system has been the cause of the racial imbalance in student attendance, that condition must be remedied. The school district bears the burden of showing that any current imbalance is not traceable, in a proximate way, to the prior violation. The findings of the District Court that the population changes which occurred in DeKalb County were not caused by the policies of the school district, but rather by independent factors, are consistent with the mobility that is a distinct characteristic of our society. In one year (from to 1988) over 40 million Americans, or 17.6% of the total population, *495 moved households. U. S. Dept. of Commerce, Bureau of Census, Statistical Abstract of the United States 19 (Table 25). Over a third of those people moved to a different county, and over six million migrated between States. In such a society it is inevitable that the demographic makeup of school districts, based as they are on political subdivisions such as counties and municipalities, may undergo rapid change. The effect of changing residential patterns on the racial composition of schools, though not always fortunate, is somewhat predictable. Studies show a high correlation between residential segregation and school segregation. Wilson & Taeuber, Residential and School Segregation: Some Tests of Their Association, in Demography and Ethnic Groups 57-58 (F. Bean & W. Frisbie eds. 1978). The District Court in this case heard evidence tending to show that racially stable neighborhoods are not likely to emerge because whites prefer a racial mix of 80% white |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | emerge because whites prefer a racial mix of 80% white and 20% black, while blacks prefer a 50-50 mix. Where resegregation is a product not of state action but of private choices, it does not have constitutional implications. It is beyond the authority and beyond the practical ability of the federal courts to try to counteract these kinds of continuous and massive demographic shifts. To attempt such results would require ongoing and never-ending supervision by the courts of school districts simply because they were once de jure segregated. Residential housing choices, and their attendant effects on the racial composition of schools, present an ever-changing pattern, one difficult to address through judicial remedies. In one sense of the term, vestiges of past segregation by state decree do remain in our society and in our schools. Past wrongs to the black race, wrongs committed by the State and in its name, are a stubborn fact of history. And stubborn facts of history linger and persist. But though we cannot escape our history, neither must we overstate its consequences *496 in fixing legal responsibilities. The vestiges of segregation that are the concern of the law in a school case may be subtle and intangible but nonetheless they must be so real that they have a causal link to the de jure violation being remedied. It is simply not always the case that demographic forces causing population change bear any real and substantial relation to a de jure violation. And the law need not proceed on that premise. As the de jure violation becomes more remote in time and these demographic changes intervene, it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure system. The causal link between current conditions and the prior violation is even more attenuated if the school district has demonstrated its good faith. In light of its finding that the demographic changes in DeKalb County are unrelated to the prior violation, the District Court was correct to entertain the suggestion that DCSS had no duty to achieve system-wide racial balance in the student population. It was appropriate for the District Court to examine the reasons for the racial imbalance before ordering an impractical, and no doubt massive, expenditure of funds to achieve racial balance after 17 years of efforts to implement the comprehensive plan in a district where there were fundamental changes in demographics, changes not attributable to the former de jure regime or any later actions by school officials. The District Court's determination to order instead the expenditure |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | officials. The District Court's determination to order instead the expenditure of scarce resources in areas such as the quality of education, where full compliance had not yet been achieved, underscores the uses of discretion in framing equitable remedies. To say, as did the Court of Appeals, that a school district must meet all six factors before the trial court can declare the system unitary and relinquish its control over school attendance zones, and to hold further that racial balancing by all necessary means is required in the interim, is *497 simply to vindicate a legal phrase. The law is not so formalistic. A proper rule must be based on the necessity to find a feasible remedy that ensures system-wide compliance with the court decree and that is directed to curing the effects of the specific violation. We next consider whether retention of judicial control over student attendance is necessary or practicable to achieve compliance in other facets of the school system. Racial balancing in elementary and secondary school student assignments may be a legitimate remedial device to correct other fundamental inequities that were themselves caused by the constitutional violation. We have long recognized that the factors may be related or interdependent. Two or more factors may be intertwined or synergistic in their relation, so that a constitutional violation in one area cannot be eliminated unless the judicial remedy addresses other matters as well. We have observed, for example, that student segregation and faculty segregation are often related problems. See Dayton Bd. of ("`[P]urposeful segregation of faculty by race was inextricably tied to racially motivated student assignment practices' "); As a consequence, a continuing violation in one area may need to be addressed by remedies in another. See, e. g., ("There is no merit to the suggestion that the relation between faculty allocation on an alleged racial basis and the adequacy of the desegregation plans is entirely speculative"); There was no showing that racial balancing was an appropriate mechanism to cure other deficiencies in this case. It is true that the school district was not in compliance with respect to faculty assignments, but the record does not show that student reassignments would be a feasible or practicable way to remedy this defect. To the contrary, the District Court suggests that DCSS could solve the faculty assignment problem by reassigning a few teachers per school. The District Court, not having our analysis before it, did not have the opportunity to make specific findings and conclusions on this aspect of the case, however. Further proceedings are appropriate for this purpose. The requirement that |
Justice Kennedy | 1,992 | 4 | majority | Freeman v. Pitts | https://www.courtlistener.com/opinion/112718/freeman-v-pitts/ | Further proceedings are appropriate for this purpose. The requirement that the school district show its goodfaith commitment to the entirety of a desegregation plan so that parents, students, and the public have assurance against further injuries or stigma also should be a subject for more specific findings. We stated in Dowell that the good-faith compliance of the district with the court order over a reasonable period of time is a factor to be considered in deciding whether or not jurisdiction could be relinquished. -250 A history of good-faith compliance is evidence that any current racial imbalance is not the product of a new de jure violation, and enables the district court to accept the school board's representation that it has accepted the principle of racial equality and will not suffer intentional discrimination in the future. See 831 *499 F. 2d, at 321 ("A finding of good faith reduces the possibility that a school system's compliance with court orders is but a temporary constitutional ritual"). When a school district has not demonstrated good faith under a comprehensive plan to remedy ongoing violations, we have without hesitation approved comprehensive and continued district court supervision. See Columbus Bd. of ); Dayton In contrast to the circumstances in Penick and Brinkman, the District Court in this case stated that throughout the period of judicial supervision it has been impressed by the successes DCSS has achieved and its dedication to providing a quality education for all students, and that DCSS "has travelled the often long road to unitary status almost to its end." With respect to those areas where compliance had not been achieved, the District Court did not find that DCSS had acted in bad faith or engaged in further acts of discrimination since the desegregation plan went into effect. This, though, may not be the equivalent of a finding that the school district has an affirmative commitment to comply in good faith with the entirety of a desegregation plan, and further proceedings are appropriate for this purpose as well. The judgment is reversed, and the case is remanded to the Court of Appeals. It should determine what issues are open for its further consideration in light of the previous briefs and arguments of the parties and in light of the principles set forth in this opinion. Thereupon it should order further *500 proceedings as necessary or order an appropriate remand to the District Court. Each party is to bear its own costs. It is so ordered. Justice Thomas took no part in the consideration or decision of this case. |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | [] Petitioner, sentenced to death by the Louisiana state courts, makes two federal constitutional attacks on his sentence. He first contends that the trial court impermissibly coerced the jury to return a sentence of death by inquiries it made to the jury and a supplemental charge which it gave to the jury following the receipt of a communication from that body. Petitioner's second contention is that the death sentence violates the Eighth Amendment to the United States Constitution because the single "aggravating circumstance" found by the jury and upheld by the Supreme Court of Louisiana merely duplicates an element of the underlying offense of first-degree murder of which he was convicted at the guilt stage. We reject both of these contentions. I Petitioner was charged with killing a woman with whom he had lived, three members of her family, and one of her male friends. The jury found petitioner guilty of two counts of manslaughter and three counts of first-degree murder; an essential element of the latter verdicts was a finding that petitioner intended "to kill or inflict great bodily harm upon more than one person." La. Rev. Stat. Ann. 14:30A(3) *234 The jury commenced its sentencing deliberations on the same day that it returned the verdict of guilt, and the judge's charge to them in this second phase of the trial included the familiar admonition that the jurors should consider the views of others with the objective of reaching a verdict, but that they should not surrender their own honest beliefs in doing so. The court also charged the jury that if it were unable to reach a unanimous recommendation, the court would impose a sentence of life imprisonment without the possibility of probation, parole, or suspension of sentence. The jury was allowed to retire late in the evening, and reconvene the next day. During the afternoon of that day a note came from the foreman of the jury stating that the jury was unable to reach a decision at that time, and requesting that the court again advise the jury as to its responsibilities. The jury was called back. The court provided a piece of paper to each juror and asked each to write on the paper his or her name and the answer to the question whether "further deliberations would be helpful in obtaining a verdict." The jurors complied, and were asked to retire to the jury room. The papers revealed eight answers in the affirmative that more deliberation would be helpful and four in the negative. Defense counsel renewed a previously made motion for |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | the negative. Defense counsel renewed a previously made motion for a mistrial, arguing that the jury was obviously hung. The trial court denied the motion, noting that this was the first sign that the jury was having trouble reaching a verdict in the penalty phase. The court directed that as previously agreed upon the jury would return to the courtroom and be instructed again as to its obligations in reaching a verdict. When the jurors returned to the courtroom a new note from them was given to the judge. This note stated that some of the jurors had misunderstood the question previously asked. The judge polled the jury again using the same method but changing the question slightly; the judge asked, "Do you feel that any further deliberations will enable you to arrive at a verdict?" App. 55. This time 11 jurors answered *235 in the affirmative and 1 in the negative. The court then reinstructed the jury: "Ladies and Gentlemen, as I instructed you earlier if the jury is unable to unanimously agree on a recommendation the Court shall impose the sentence of Life Imprisonment without benefit of Probation, Parole, or Suspension of Sentence. "When you enter the jury room it is your duty to consult with one another to consider each other's views and to discuss the evidence with the objective of reaching a just verdict if you can do so without violence to that individual judgment. "Each of you must decide the case for yourself but only after discussion and impartial consideration of the case with your fellow jurors. You are not advocates for one side or the other. Do not hesitate to reexamine your own views and to change your opinion if you are convinced you are wrong but do not surrender your honest belief as to the weight and effect of evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict." Defense counsel did not object to either poll, to the manner in which the polls were conducted, or to the supplemental instruction. The jury resumed its deliberations and in 30 minutes returned with a verdict sentencing petitioner to death on all three counts of first-degree murder. In support of all three sentences, the jury found the statutory aggravating circumstance of "knowingly creat[ing] a risk of death or great bodily harm to more than one person." La. Code Crim. Proc. Ann., Art. 905.4(d) (West 1984). One death sentence was additionally supported by the aggravating circumstance that "the victim was a witness in a prosecution against the |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | "the victim was a witness in a prosecution against the defendant." Art. 905.4(h). On direct appeal, the Louisiana Supreme Court upheld the convictions and sentences. cert. denied, The court *236 ruled that the evidence was insufficient to support the aggravating circumstance that the victim was a witness in a prosecution against the defendant, but concluded that the remaining aggravating circumstance was established by the evidence and was sufficient to support the sentences. -1258. The court went on to hold that the trial court had not abused its discretion in declining to declare a mistrial during sentencing when the jury indicated that it was having difficulty reaching a verdict. "This court has rejected the construction that the court is required to declare a deadlock at the first sign of trouble." Finally, the court rejected petitioner's argument that the judge had coerced the sentence recommendations from the jury. "It is a well settled proposition that when the court is informed by a jury that they are having difficulty in agreeing, it is not error for the court to impress upon them the importance of the case, urge them to come to agreement, and send them back for further deliberation." Subsequently petitioner sought habeas corpus from the United States District Court for the Eastern District of Louisiana. Petitioner raised, inter alia, the two issues now before this Court: whether a sentence of death may validly rest upon a single aggravating circumstance that is a necessary element of the underlying offense of first-degree murder, and whether the judge had coerced the sentence verdicts from the jury. The District Court denied relief and a divided panel of the United States Court of Appeals for the Fifth Circuit affirmed. The panel unanimously rejected the aggravating circumstance claim. The majority went on to conclude: "there is no showing of coercion; the record certainly does not demonstrate coercion sufficient to render the trial fundamentally unfair." The dissenting judge argued that the combination of the supplemental instruction to the jury and the polling of the jury as to the usefulness of further deliberations constituted improper coercion. *237 II Our review of petitioner's contention that the jury was improperly coerced requires that we consider the supplemental charge given by the trial court "in its context and under all the circumstances." The use of a supplemental charge has long been sanctioned. Nearly a century ago in this Court reviewed a charge similar but by no means identical to that given to the Louisiana jury here, and concluded that it was not reversible error even within the federal system. The defendant in |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | reversible error even within the federal system. The defendant in that case had been sentenced to death by Judge Parker in the Western District of Arkansas, exercising a jurisdiction unique among federal courts. The judge's charge is not set out verbatim in the opinion of this Court, but it differed from the charge given in the present case in that the Allen charge urged the minority to consider the views of the majority, and ask themselves whether their own views were reasonable under the circumstances. This Court upheld the conviction and sentence against the defendant's claim of coercion, saying: "The very object of the jury system is to secure unanimity by a comparison of views, and by arguments among the jurors themselves. It certainly cannot be the law that each juror should not listen with deference to the arguments and with a distrust of his own judgment, if he finds a large majority of the jury taking a different view of the case from what he does himself. It cannot be that each juror should go to the jury room with a blind determination that the verdict shall represent his opinion of the case at that moment; or, that he should close his ears to the arguments of men who are equally honest and intelligent as himself." The continuing validity of this Court's observations in Allen are beyond dispute, and they apply with even greater *238 force in a case such as this, where the charge given, in contrast to the so-called "traditional Allen charge," does not speak specifically to the minority jurors.[1] But in this case one of the purposes served by such a charge the avoidance of the societal costs of a retrial is not present because Louisiana law provides that if the jury hangs, the court shall impose a sentence of life imprisonment. La. Code Crim. Proc. Ann., Art. 905.8 (West 1984). Petitioner naturally urges that this difference makes the charge here impermissible under the Due Process Clause and the Eighth Amendment. The difference between the division of function between the jury and judge in this case and the division in Allen obviously weighs in the constitutional calculus, but we do not find it dispositive. The State has in a capital sentencing proceeding a strong interest in having the jury "express the conscience of the community on the ultimate question of life or death." Surely if the jury had returned from its deliberations after only one hour and informed the court that it had failed to achieve unanimity on the first ballot, the court would |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | to achieve unanimity on the first ballot, the court would incontestably have had the authority to insist that they deliberate further. This is true even in capital cases such as this one and Allen, even though we are naturally mindful in such cases that the "qualitative *239 difference between death and other penalties calls for a greater degree of reliability when the death sentence is imposed." Petitioner relies on this Court's decision in [2] but we think that case affords him no help. There the jury had sent a note to the judge to the effect that it was unable to agree upon a verdict; the judge then gave additional instructions to the jury, in the course of which he said: " `You have got to reach a decision in this case.' " at This Court concluded that "in its context and under all the circumstances the judge's statement had the coercive effect attributed to it." The difference between the language used there and the language used in the present case is sufficiently obvious to show the fallacy of petitioner's reliance. The same is true of the colloquy between the judge and the foreman of the jury in United upon which petitioner also relies. Petitioner argues, however, that the coercive effect of the supplemental charge was exacerbated by inquiries made to the jury by the trial court. In the trial court had, after deliberations stalled, inquired as to how the jury was divided, and was informed simply that the jury stood nine to three. The jury resumed deliberations and subsequently found the defendants guilty. This Court concluded that the inquiry into the jury's numerical division necessitated reversal because it was generally coercive and almost always brought to bear "in some degree, serious although not measurable, an improper influence upon the jury." Although the decision *240 in Brasfield was an exercise of this Court's supervisory powers,[3] it is nonetheless instructive as to the potential dangers of jury polling. Petitioner's attempt to fit the instant facts within the holding of Brasfield is, however, unavailing. Here the inquiry as to the numerical division of the jury was not as to how they stood on the merits of the verdict, but how they stood on the question of whether further deliberations might assist them in returning a verdict. There is no reason why those who may have been in the minority on the merits would necessarily conclude that further deliberation would not be helpful, or that those in the majority would necessarily conclude otherwise. The two questions are clearly independent of one another. We |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | The two questions are clearly independent of one another. We believe the type of question asked by the trial court in this case is exactly what the Court in Brasfield implicitly approved when it stated: "[An inquiry as to numerical division] serves no useful purpose that cannot be attained by questions not requiring the jury to reveal the nature or extent of its division." We are mindful that the jury returned with its verdict soon after receiving the supplemental instruction, and that this suggests the possibility of coercion. United States Gypsum We note, however, that defense counsel did not object to either the polls or the supplemental instruction. We do not suggest that petitioner thereby waived this issue, but we think such an omission indicates that the potential for coercion argued now was not apparent to one on the spot.[4] at 430-431, and n. 11. *241 We hold that on these facts the combination of the polling of the jury and the supplemental instruction was not "coercive" in such a way as to deny petitioner any constitutional right. By so holding we do not mean to be understood as saying other combinations of supplemental charges and polling might not require a different conclusion. Any criminal defendant, and especially any capital defendant, being tried by a jury is entitled to the uncoerced verdict of that body. For the reasons stated we hold there was no coercion here. III Petitioner advances as a second ground for vacating his sentence of death that the sole aggravating circumstance found by the jury at the sentencing phase was identical to an element of the capital crime of which he was convicted. Petitioner urges that this overlap left the jury at the sentencing phase free merely to repeat one of its findings in the guilt phase, and thus not to narrow further in the sentencing phase the class of death-eligible murderers. Upon consideration of the Louisiana capital punishment scheme in the light of the decisions of this Court we reject this argument. Louisiana has established five grades of homicide: first-degree murder, second-degree murder, manslaughter, negligent homicide, and vehicular homicide. La. Rev. Stat. Ann. 14:29 Second-degree murder includes intentional murder and felony murder, and provides for punishment of life imprisonment without the possibility of parole. 14:30.1.[5] Louisiana defines first-degree murder to include a narrower class of homicides: *242 "First degree murder is the killing of a human being: "(1) When the offender has specific intent to kill or to inflict great bodily harm and is engaged in the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | the perpetration or attempted perpetration of aggravated kidnapping, aggravated escape, aggravated arson, aggravated rape, aggravated burglary, armed robbery, or simple robbery; "(2) When the offender has a specific intent to kill or to inflict great bodily harm upon a fireman or peace officer engaged in the performance of his lawful duties; "(3) When the offender has a specific intent to kill or to inflict great bodily harm upon more than one person; or "(4) When the offender has specific intent to kill or inflict great bodily harm and has offered, has been offered, has given, or has received anything of value for the killing. "(5) When the offender has the specific intent to kill or to inflict great bodily harm upon a victim under the age of twelve years." 14:30A. An individual found guilty of first-degree murder is sentenced by the same jury in a separate proceeding to either death or life imprisonment without benefit of parole, probation, or suspension of sentence. 14:30C. "A sentence of death shall not be imposed unless the jury finds beyond a reasonable doubt that at least one statutory aggravating circumstance exists and, after consideration of any mitigating circumstances, recommends that the sentence of death be imposed." La. Code Crim. Proc. Ann., Art. 905.3 (West 1984). Louisiana has established 10 statutory aggravating circumstances. *243 Art. 905.4.[6] If the jury returns a sentence of death, the sentence is automatically reviewable for excessiveness by the Supreme Court of Louisiana. Art. 905.9. Petitioner was found guilty of three counts of first-degree murder under 14.30.A.(3): "[T]he offender has a specific intent to kill or to inflict great bodily harm upon more than one person." The sole aggravating circumstance both found by the jury and upheld by the Louisiana Supreme Court was that "the offender knowingly created a risk of death or great bodily harm to more than one person." Art. 905.4(d). In these circumstances, these two provisions are interpreted in *244 a "parallel fashion" under Louisiana law. See Petitioner's argument that the parallel nature of these provisions requires that his sentences be set aside rests on a mistaken premise as to the necessary role of aggravating circumstances. To pass constitutional muster, a capital sentencing scheme must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." ; cf. Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. ; |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | least one aggravating circumstance before it may impose death. ; By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. In we upheld a sentence of death imposed pursuant to the Georgia capital sentencing statute, under which "the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty." We found no constitutional deficiency in that scheme because the aggravating circumstances did all that the Constitution requires. The use of "aggravating circumstances" is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury's discretion. We see no reason why this narrowing function may not be *245 performed by jury findings at either the sentencing phase of the trial or the guilt phase. Our opinion in establishes this point. The Jurek Court upheld the Texas death penalty statute, which, like the Louisiana statute, narrowly defined the categories of murders for which a death sentence could be imposed. If the jury found the defendant guilty of such a murder, it was required to impose death so long as it found beyond a reasonable doubt that the defendant's acts were deliberate, the defendant would probably constitute a continuing threat to society, and, if raised by the evidence, the defendant's acts were an unreasonable response to the victim's provocation. We concluded that the latter three elements allowed the jury to consider the mitigating aspects of the crime and the unique characteristics of the perpetrator, and therefore sufficiently provided for jury discretion. But the opinion announcing the judgment noted the difference between the Texas scheme, on the one hand, and the Georgia and Florida schemes discussed in the cases of and "While Texas has not adopted a list of statutory aggravating circumstances the existence of which can justify the imposition of the death penalty as have Georgia and Florida, its action in narrowing the categories of murders for which a death sentence may ever be imposed serves much the same purpose. In fact, each of the five classes of murders made capital by the Texas statute is encompassed in Georgia and Florida by one or more of their statutory aggravating circumstances. Thus, in essence, the Texas statute requires that the jury find the existence of a statutory aggravating circumstance before the death penalty may be imposed. So far as consideration of aggravating circumstances |
Justice Rehnquist | 1,988 | 19 | majority | Lowenfield v. Phelps | https://www.courtlistener.com/opinion/111978/lowenfield-v-phelps/ | may be imposed. So far as consideration of aggravating circumstances is concerned, therefore, the principal difference between Texas and the other two States is that the death penalty is an available sentencing option even potentially for *246 a smaller class of murders in Texas." -271 It seems clear to us from this discussion that the narrowing function required for a regime of capital punishment may be provided in either of these two ways: The legislature may itself narrow the definition of capital offenses, as Texas and Louisiana have done, so that the jury finding of guilt responds to this concern, or the legislature may more broadly define capital offenses and provide for narrowing by jury findings of aggravating circumstances at the penalty phase. See also discussing Jurek and concluding: "[I]n Texas, aggravating and mitigating circumstances were not considered at the same stage of the criminal prosecution." Here, the "narrowing function" was performed by the jury at the guilt phase when it found defendant guilty of three counts of murder under the provision that "the offender has a specific intent to kill or to inflict great bodily harm upon more than one person." The fact that the sentencing jury is also required to find the existence of an aggravating circumstance in addition is no part of the constitutionally required narrowing process, and so the fact that the aggravating circumstance duplicated one of the elements of the crime does not make this sentence constitutionally infirm. There is no question but that the Louisiana scheme narrows the class of death-eligible murderers and then at the sentencing phase allows for the consideration of mitigating circumstances and the exercise of discretion. The Constitution requires no more. The judgment of the Court of Appeals for the Fifth Circuit is accordingly Affirmed. |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | The result in this case ought to be intolerable in any society which purports to call itself an organized society. It continues *416 the Courtby the narrowest marginon the much-criticized course of punishing the public for the mistakes and misdeeds of law enforcement officers, instead of punishing the officer directly, if in fact he is guilty of wrongdoing. It mechanically and blindly keeps reliable evidence from juries whether the claimed constitutional violation involves gross police misconduct or honest human error. Williams is guilty of the savage murder of a small child; no member of the Court contends he is not. While in custody, and after no fewer than five warnings of his rights to silence and to counsel, he led police to the concealed body of his victim. The Court concedes Williams was not threatened or coerced and that he spoke and acted voluntarily and with full awareness of his constitutional rights. In the face of all this, the Court now holds that because Williams was prompted by the detective's statementnot interrogation but a statement the jury must not be told how the police found the body. Today's holding fulfills Judge (later Mr. Justice) Cardozo's grim prophecy that someday some court might carry the exclusionary rule to the absurd extent that its operative effect would exclude evidence relating to the body of a murder victim because of the means by which it was found.[1] In so ruling *417 the Court regresses to playing a grisly game of "hide and seek," once more exalting the sporting theory of criminal justice which has been experiencing a decline in our jurisprudence. With JUSTICES WHITE, BLACKMUN, and REHNQUIST, I categorically reject the remarkable notion that the police in this case were guilty of unconstitutional misconduct, or any conduct justifying the bizarre result reached by the Court. Apart from a brief comment on the merits, however, I wish to focus on the irrationality of applying the increasingly discredited exclusionary rule to this case. (1) The Court Concedes Williams' Disclosures Were Voluntary Under well-settled precedents which the Court freely acknowledges, it is very clear that Williams had made a valid waiver of his Fifth Amendment right to silence and his Sixth Amendment right to counsel when he led police to the child's body. Indeed, even under the Court's analysis I do not understand how a contrary conclusion is possible. The Court purports to apply as the appropriate constitutional waiver standard the familiar "intentional relinquishment or abandonment of a known right or privilege" test of Ante, at 404. The Court assumes, without deciding, that Williams' conduct and |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | 404. The Court assumes, without deciding, that Williams' conduct and statements were voluntary. It concedes, as it must, ibid., that Williams had been informed of and fully understood his constitutional rights and the consequences of their waiver. Then, having either assumed or found every element necessary to make out a valid waiver under its own test, the *418 Court reaches the astonishing conclusion that no valid waiver has been demonstrated. This remarkable result is compounded by the Court's failure to define what evidentiary showing the State failed to make. Only recently, in the Court analyzed the distinction between a voluntary act and the waiver of a right; there MR. JUSTICE STEWART stated for the Court: "[T]he question whether a person has acted `voluntarily' is quite distinct from the question whether he has `waived' a trial right. The former question, as we made clear in Brady v. United 397 U. S. [742,] 749, can be answered only by examining all the relevant circumstances to determine if he has been coerced. The latter question turns on the extent of his knowledge." Similarly, in we said that since a guilty plea constituted a waiver of a host of constitutional rights, "it must be an intelligent act `done with sufficient awareness of the relevant circumstances and likely consequences.' " If the Court today applied these standards with fidelity to the Schneckloth and McMann holdings it could not reach the result now announced. The evidence is uncontradicted that Williams had abundant knowledge of his right to have counsel present and of his right to silence. Since the Court does not question his mental competence, it boggles the mind to suggest that Williams could not understand that leading police to the child's body would have other than the most serious consequences. All of the elements necessary to make out a valid waiver are shown by the record and acknowledged by the Court; we thus are left to guess how the Court reached its holding. One plausible but unarticulated basis for the result reached is that once a suspect has asserted his right not to talk without the presence of an attorney, it becomes legally impossible *419 for him to waive that right until he has seen an attorney. But constitutional rights are personal, and an otherwise valid waiver should not be brushed aside by judges simply because an attorney was not present. The Court's holding operates to "imprison a man in his privileges," ; it conclusively presumes a suspect is legally incompetent to change his mind and tell the truth until an attorney is present. It |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | and tell the truth until an attorney is present. It denigrates an individual to a nonperson whose free will has become hostage to a lawyer so that until the lawyer consents, the suspect is deprived of any legal right or power to decide for himself that he wishes to make a disclosure. It denies that the rights to counsel and silence are personal, nondelegable, and subject to a waiver only by that individual.[2] The opinions in support of the Court's judgment do not enlighten us as to why police conductwhether good or badshould operate to suspend Williams' right to change his mind and "tell all" at once rather than waiting until he reached Des Moines.[3] In his concurring opinion MR. JUSTICE POWELL suggests that the result in this case turns on whether Detective Leaming's remarks constituted "interrogation," as he views them, or whether they were "statements" intended to prick the conscience of the accused. I find it most remarkable that a murder case should turn on judicial interpretation that a statement becomes a question simply because it is followed by an *420 incriminating disclosure from the suspect. The Court seems to be saying that since Williams said he would "tell the whole story" at Des Moines, the police should have been content and waited; of course, that would have been the wiser course, especially in light of the nuances of constitutional jurisprudence applied by the Court, but a murder case ought not turn on such tenuous strands. In any case, the Court assures us, ante, at 405-406, this is not at all what it intends, and that a valid waiver was possible in these circumstances, but was not quite made. Here, of course, Williams did not confess to the murder in so many words; it was his conduct in guiding police to the body, not his words, which incriminated him. And the record is replete with evidence that Williams knew precisely what he was doing when he guided police to the body. The human urge to confess wrongdoing is, of course, normal in all save hardened, professional criminals, as psychiatrists and analysts have demonstrated. T. Reik, The Compulsion to Confess (2) The Exclusionary Rule Should Not be Applied to Non-egregious Police Conduct Even if there was no waiver, and assuming a technical violation occurred, the Court errs gravely in mechanically applying the exclusionary rule without considering whether that Draconian judicial doctrine should be invoked in these circumstances, or indeed whether any of its conceivable goals will be furthered by its application here. The obvious flaws of the exclusionary rule as |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | application here. The obvious flaws of the exclusionary rule as a judicial remedy are familiar. See ; ; Oaks, Studying the Exclusionary Rule in Search and Seizure, ; Williams, The Exclusionary Rule Under Foreign LawEngland, *421 52 J. Crim. L. 272 (1961). Today's holding interrupts what has been a more rational perception of the constitutional and social utility of excluding reliable evidence from the truth-seeking process. In its Fourth Amendment context, we have now recognized that the exclusionary rule is in no sense a personal constitutional right, but a judicially conceived remedial device designed to safeguard and effectuate guaranteed legal rights generally. ; United ; United ; see We have repeatedly emphasized that deterrence of unconstitutional or otherwise unlawful police conduct is the only valid justification for excluding reliable and probative evidence from the criminal factfinding process. ; United ; United Accordingly, unlawfully obtained evidence is not automatically excluded from the factfinding process in all circumstances.[4] In a variety of contexts we inquire whether application *422 of the rule will promote its objectives sufficiently to justify the enormous cost it imposes on society. "As with any remedial device, the application of the rule has been restricted to those areas where its remedial objectives are thought most efficaciously served." United ; accord, ; United ; United This is, of course, the familiar balancing process applicable to cases in which important competing interests are at stake. It is a recognition, albeit belated, that "the policies behind the exclusionary rule are not absolute," It acknowledges that so serious an infringement of the crucial truth-seeking function of a criminal prosecution should be allowed only when imperative to safeguard constitutional rights. An important factor in this amalgam is whether the violation at issue may properly be classed as "egregious." The Court understandably does not try to characterize the police actions here as "egregious." Against this background, it is striking that the Court fails even to consider whether the benefits secured by application of the exclusionary rule in this case outweigh its obvious social costs. Perhaps the failure is due to the fact that this case arises not under the Fourth Amendment, but under and the Sixth Amendment right to counsel. The Court apparently perceives the function of the exclusionary rule to be so different in these varying contexts that it must be mechanically and uncritically *423 applied in all cases arising outside the Fourth Amendment.[5] But this is demonstrably not the case where police conduct collides with Miranda's procedural safeguards rather than with the Fifth Amendment privilege against compulsory self-incrimination. Involuntary and coerced admissions are |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | Amendment privilege against compulsory self-incrimination. Involuntary and coerced admissions are suppressed because of the inherent unreliability of a confession wrung from an unwilling suspect by threats, brutality, or other coercion. ; ; -497 ; We can all agree on " `[t]he abhorrence of society to the use of involuntary confessions,' " at and the need to preserve the integrity of the human personality and individual free will. ; But use of Williams' disclosures and their fruits carries no risk whatever of unreliability, for the body was found where he said it would be found. Moreover, since the Court makes no issue of voluntariness, no dangers are posed to individual dignity or free will. Miranda's safeguards are premised on presumed unreliability long associated with confessions extorted by brutality or threats; they are not personal constitutional rights, but are simply judicially created prophylactic measures. ; Doyle ; Thus, in cases where incriminating disclosures are voluntarily made without coercion, and hence not violative of the Fifth Amendment, but are obtained in violation of one of the Miranda prophylaxes, suppression is no longer automatic. Rather, we weigh the deterrent effect on unlawful police conduct, together with the normative Fifth Amendment justifications for suppression, against "the strong interest under any system of justice of making available to the trier of fact all concededly relevant and trustworthy evidence which either party seeks to adduce. We also `must consider society's interest in the effective prosecution of criminals' "[6] This individualized consideration or balancing process with respect to the exclusionary sanction is possible in this case, as in others, because Williams' incriminating disclosures are not infected with any element of compulsion the Fifth Amendment forbids; nor, as noted earlier, does this evidence pose any danger of unreliability to the factfinding process. In short, there is no reason to exclude this evidence. Similarly, the exclusionary rule is not uniformly implicated in the Sixth Amendment, particularly its pretrial aspects. We have held that "the core purpose of the counsel guarantee was to assure `Assistance' at trial, when the accused was confronted with both the intricacies of the law and the advocacy of the public prosecutor." United Thus, the right to counsel is fundamentally a "trial" right necessitated by the legal complexities of a criminal prosecution *425 and the need to offset, to the trier of fact, the power of the State as prosecutor. See It is now thought that modern law enforcement involves pretrial confrontations at which the defendant's fate might effectively be sealed before the right of counsel could attach. In order to make meaningful the defendant's opportunity to |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | attach. In order to make meaningful the defendant's opportunity to a fair trial and to assistance of counsel at that trialthe core purposes of the counsel guaranteethe Court formulated a per se rule guaranteeing counsel at what it has characterized as "critical" pretrial proceedings where substantial rights might be endangered. United ; As we have seen in the Fifth Amendment setting, violations of prophylactic rules designed to safeguard other constitutional guarantees and deter impermissible police conduct need not call for the automatic suppression of evidence without regard to the purposes served by exclusion; nor do Fourth Amendment violations merit uncritical suppression of evidence. In other situations we decline to suppress eyewitness identifications which are the products of unnecessarily suggestive lineups or photo displays unless there is a "very substantial likelihood of irreparable misidentification." Recognizing that "[i]t is the likelihood of misidentification which violates a defendant's right to due process," we exclude evidence only when essential to safeguard the integrity of the truth-seeking process. The test, in short, is the reliability of the evidence. So, too, in the Sixth Amendment sphere failure to have counsel in a pretrial setting should not lead to the "knee-jerk" suppression of relevant and reliable evidence. Just as even uncounseled "critical" pretrial confrontations may often be conducted fairly and not in derogation of Sixth Amendment values, evidence *426 obtained in such proceedings should be suppressed only when its use would imperil the core values the Amendment was written to protect. Having extended Sixth Amendment concepts originally thought to relate to the trial itself to earlier periods when a criminal investigation is focused on a suspect, application of the drastic bar of exclusion should be approached with caution. In any event, the fundamental purpose of the Sixth Amendment is to safeguard the fairness of the trial and the integrity of the factfinding process.[7] In this case, where the evidence of how the child's body was found is of unquestioned reliability, and since the Court accepts Williams' disclosures as voluntary and uncoerced, there is no issue either of fairness or evidentiary reliability to justify suppression of truth. It appears suppression is mandated here for no other reason than the Court's general impression that it may have a beneficial effect on future police conduct; indeed, the Court fails to say even that much in defense of its holding. Thus, whether considered under Miranda or the Sixth Amendment, there is no more reason to exclude the evidence in this case than there was in ;[8] that holding was *427 premised on the utter reliability of evidence sought to be suppressed, |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | on the utter reliability of evidence sought to be suppressed, the irrelevancy of the constitutional claim to the criminal defendant's factual guilt or innocence, and the minimal deterrent effect of habeas corpus on police misconduct. This case, like comes to us by way of habeas corpus after a fair trial and appeal in the state courts. Relevant factors in this case are thus indistinguishable from those in Stone, and from those in other Fourth Amendment cases suggesting a balancing approach toward utilization of the exclusionary sanction. Rather than adopting a formalistic analysis varying with the constitutional provision invoked,[9] we should apply the exclusionary rule on the basis of its benefits and costs, at least in those cases where the police conduct at issue is far from being outrageous or egregious. In his opinion, MR. JUSTICE POWELL intimates that he agrees there is little sense in applying the exclusionary sanction where the evidence suppressed is " `typically reliable and often the most probative information bearing on the guilt or innocence of the defendant.' " Ante, at 414. Since he seems to concede that the evidence in question is highly reliable and probative, his joining the Court's opinion can be explained only by an insistence that the "question has not been presented in the briefs or arguments submitted to us." But petitioner has directly challenged the applicability of the exclusionary rule to this case, Brief for Petitioner 31-32, and has invoked principles of comity and federalism against reversal of the conviction. Moreover, at oral argumentthe first opportunity to do sopetitioner argued *428 that our intervening decision in should be extended to this case, just as respondent argued that it should not. Tr. of Oral Arg. 26-27, 49-50. At the least, if our intervening decision in Stone makes application of the exclusionary rule in this case an open question which "should be resolved only after the implications of such a ruling have been fully explored," the plainly proper course is to vacate the judgment of the Court of Appeals and remand the case for reconsideration in light of that case. Indeed, only recently we actually applied the intervening decision of to resolve the constitutional issue in Arlington There, we found no difficulty in applying the intervening holding ourselves without a remand to give the Court of Appeals an opportunity to reconsider its holding; we reached the correct result directly, over MR. JUSTICE WHITE'S dissent urging a remand. Today, the Court declines either to apply the intervening case of which MR. JUSTICE POWELL admits may well be controlling, or to remand for reconsideration in |
Justice Burger | 1,977 | 12 | dissenting | Brewer v. Williams | https://www.courtlistener.com/opinion/109624/brewer-v-williams/ | may well be controlling, or to remand for reconsideration in light of that case; this is all the more surprising since MR. JUSTICE POWELL wrote and today makes the fifth vote for the Court's judgment. The bizarre result reached by the Court today recalls Mr. Justice Black's strong dissent in There, too, a defendant sought release after his conviction had been affirmed on appeal. There, as here, the defendant's guilt was manifest, and was not called into question by the constitutional claims presented. This Court granted relief because it thought reliable evidence had been unconstitutionally obtained. Mr. Justice Black's reaction, foreshadowing our long overdue holding in serves as a fitting conclusion to the views I have expressed: "It is seemingly becoming more and more difficult to gain acceptance for the proposition that punishment of *429 the guilty is desirable, other things being equal. One commentator, who attempted in vain to dissuade this Court from today's holding, thought it necessary to point out that there is `a strong public interest in convicting the guilty.' ". I would not let any criminal conviction become invulnerable to collateral attack where there is left remaining the probability or possibility that constitutional commands related to the integrity of the fact-finding process have been violated. In such situations society has failed to perform its obligation to prove beyond a reasonable doubt that the defendant committed the crime. But it is quite a different thing to permit collateral attack on a conviction after a trial according to due process when the defendant clearly is, by the proof and by his own admission, guilty of the crime charged. In collateral attacks whether by habeas corpus or by 2255 proceedings, I would always require that the convicted defendant raise the kind of constitutional claim that casts some shadow of a doubt on his guilt. This defendant is permitted to attack his conviction collaterally although he conceded at the trial and does not now deny that he had robbed the savings and loan association and although the evidence makes absolutely clear that he knew what he was doing. Thus, his guilt being certain, surely he does not have a constitutional right to get a new trial. I cannot possibly agree with the Court." -242. Like Mr. Justice Black in Kaufman, I cannot possibly agree with the Court. MR. JUSTICE WHITE, with whom MR. JUSTICE BLACKMUN and MR. |
Justice White | 1,975 | 6 | dissenting | Lefkowitz v. Newsome | https://www.courtlistener.com/opinion/109196/lefkowitz-v-newsome/ | Because I believe that federal law provides respondent Newsome no right to set aside his plea of guiltya solemn, counseled admission in open court that he is in fact guiltyeven assuming that he had previously been the victim of a search which did not measure up to federal standards, I respectfully dissent. I The federal habeas corpus statute, pursuant to which Newsome sought to have the courts below set aside his plea of guilty, provides relief only if the petitioner can establish that "he is in custody in violation of the Constitution or laws or treaties of the United s." 28 U.S. C. 2254 (a). It is common ground, I take it, that the Federal Constitution does not itself entitle a defendant who has pleaded guilty to have that plea set aside upon a showing that he has previously been the victim of an unconstitutional search, even if he can also show that he pleaded guilty only because the prosecution planned to use the fruits of the search against him at ; ; ; McMann v. Richardson, 397 U. S. *295 759 ; In Tollett, we said: "We thus reaffirm the principle recognized in the Brady trilogy: a guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea. He may only attack the voluntary and intelligent character of the guilty plea by showing that the advice he received from counsel was not within the standards set forth in McMann." (Emphasis added.) This "principle" is a rule of substantive constitutional law limiting the federal constitutional grounds upon which a defendant may attack a judicial admission of guilt. It is not, as the majority assumes, ante, at 289, a rule of procedure, disentitling a defendant to raise a Fourth Amendment claim which was not properly "preserved" under state law. If it were such a rule of procedure, both McMann and Tollett would have come out differently: both were federal habeas corpus proceedings; as the majority points out, ante, at 290 n. 6, federal issues are "preserved" for habeas corpus purposes unless state procedures for litigating them have been "deliberately bypassed"; and neither the petitioner in McMann nor the petitioner in Tollett had "deliberately bypassed" state procedures for raising the coerced-confession or grand-jury-discrimination claims there involved.[2] Indeed, |
Justice White | 1,975 | 6 | dissenting | Lefkowitz v. Newsome | https://www.courtlistener.com/opinion/109196/lefkowitz-v-newsome/ | for raising the coerced-confession or grand-jury-discrimination claims there involved.[2] Indeed, the entire majority *296 opinion rests on the erroneous notion that we refused to hear antecedent constitutional claims in McMann and Tollett because the defendants had "bypassed" those claims by pleading guilty. In fact, those decisions were based on the substantive proposition that the defendants' guilt in those cases, and the 's consequent absolute right to incarcerate them, was established by their voluntary and intelligent pleas of guilty.[3] The question raised in this case, therefore, is whether, if a chooses to open its appellate courts to hear claims of constitutional deprivations preceding entry of a guilty plea and to set aside the plea if the antecedent violation is established, the thereby creates a federal *297 constitutional right to set aside the guilty plea where none would have existed otherwise. The question almost answers itself. More importantly, however, it has already been answered by this Court in In Parker, the defendant sought to set aside his guilty plea in a state habeas corpus proceeding alleging, inter alia, that a confession had been unconstitutionally coerced from him and that he pleaded guilty only because of the confession. The state trial court held a hearing on the merits of the coerced-confession claim and found both the confession and the subsequent plea to have been voluntary. On appeal, the North Court of Appeals clearly accepted the proposition that Parker's plea should be set aside if the confession was involuntary, and if it was the but-for cause of the plea. It concluded, however, that Parker's confession was voluntary and his plea not the product of it. On certiorari, we did not feel compelledby the fact that North gave Parker a right to set aside his plea if it was based upon a confession coerced in violation of federal standardsto give him a similar right. Instead, assuming that the confession was inadmissible and that he pleaded guilty in the contrary belief, we held that Parker was not entitled "to disavow his admission in open court that he committed the offense with which he was charged."[4] Like Newsome in New York, a defendant who loses a pretrial suppression motion in North and then pleads guilty may assume, by reading the North Court of Appeals opinion in Parker v. *298 that state appellate courts will hear the merits of his claim (in a state habeas corpus proceeding, if he can establish that his guilty plea was entered because the suppression motion was denied). However, our decision in Parker would preclude any claim that this Court or any federal |
Justice White | 1,975 | 6 | dissenting | Lefkowitz v. Newsome | https://www.courtlistener.com/opinion/109196/lefkowitz-v-newsome/ | would preclude any claim that this Court or any federal court would do likewise. Similarly, here, Newsome's guilt has been established by as reliable a method as is known to the criminal lawhis solemn admission of guilt, made in open court. The Federal Constitution entitles him to set aside that plea only upon a showing that it was involuntary or unintelligent. The fact that New York has nonetheless chosen to set aside his conviction upon a showing that he was the victim of a previous illegal seizure does not and cannot alter substantive federal constitutional law.[5] II The majority contends, however, that since state law provides a defendant with a "guarantee" that he may plead guilty and still litigate his Fourth Amendment claim, it cannot possibly be said that he has chosen to bypass that claim by pleading guilty. Moreover, the majority asserts that the New York guilty plea involved here is a "guilty plea" in name only, and is something else in reality in light of the "different expectations" surrounding it and the different "legal consequences" flowing from it. There are two things wrong with these contentions. *299 First, the contentions assume that the Brady trilogy was based upon notions of waiver. In other words, it assumes that this Court has in the past refused to set aside "guilty pleas" on the basis of antecedent violations of constitutional rights only because the plea was deemed to have "waived" those rights. This assumption finds some support in the language of those cases, but waiver was not their basic ingredient. In any event, the Court squarely and conclusively rejected the waiver rationale in We said there: "If the issue were to be cast solely in terms of `waiver,' the Court of Appeals was undoubtedly correct in concluding that there had been no such waiver here." Nonetheless, the Court of Appeals' decision in Tollett was reversed. Under Tollett's interpretation of the trilogy, and under Tollett itself, federal constitutional principles simply preclude the setting aside of a state conviction by a federal court where the defendant's guilt has been conclusively established by a voluntary and intelligent plea of guilty. Labels aside, a guilty plea for federal purposes is a judicial admission of guilt conclusively establishing a defendant's factual guilt. Newsome's plea plainly qualifies.[6] *300 Second, the contentions assume that New York intended to create the expectation and has the power to create the expectation on the part of defendants who plead guilty that they will be able to litigate their antecedent Fourth Amendment claims not only in state courts, but also in federal |
Justice White | 1,975 | 6 | dissenting | Lefkowitz v. Newsome | https://www.courtlistener.com/opinion/109196/lefkowitz-v-newsome/ | claims not only in state courts, but also in federal courts. There is absolutely no reason to suppose that New York intended to create such expectations and, if it had so intended, it would have been acting plainly beyond its power. New York may, of course, give its defendants as a matter of state law the right to set aside guilty pleas on the basis of antecedent violations of federal constitutional search standards. If they do, it cannot be said that a defendant who pleads guilty has "waived" that state-law right. But, it is for Congress or this Court to decide whether federal law gives a defendant the right to set aside his plea under such circumstances. The "legal circumstances" in federal courts which will flow from a state plea, and the "expectations" which a defendant should have about what will occur in federal courts following the plea are not matters to be decided by the New York *301 Legislature and surely not finally by the Court of Appeals for the Second Circuit. If this Court had followed its prior decisions and reiterated in the present context that Newsome may not litigate his Fourth Amendment claim in federal court, then once those who counsel defendants in the New York court system read the opinion, it would be incontestable that a guilty plea in New York would foreclose federal habeas corpus relief based on already rejected Fourth Amendment claims and that no defendant might legitimately harbor "expectations" to the contrary.[7] Thus, even under a waiver theory, counseled defendants waive all rights by pleading guilty, which the applicable law says they waive; and, since the applicable law in this case is federal, it is for us, and not the New York Legislature, to say whether Fourth Amendment claims such as those involved here will or will not be waived by a guilty plea. To illustrate, suppose instead of passing the statute involved here New York had sought to achieve substantially the same result by permitting pretrial appeals from denials of suppression motions in all cases in which the trial judge certified that the seized evidence was likely to be determinative of the outcome of the trial. Suppose further that a defendant avails himself of this opportunity, loses on the merits of his Fourth Amendment claim in the highest state court, and subsequently pleads guilty. Suppose, finally, the *302 passed a second statute permitting a defendant who pleads guilty under the circumstances just described to appeal his conviction directly to this Court or to bring directly a federal habeas corpus proceeding attacking the |
Justice White | 1,975 | 6 | dissenting | Lefkowitz v. Newsome | https://www.courtlistener.com/opinion/109196/lefkowitz-v-newsome/ | to bring directly a federal habeas corpus proceeding attacking the constitutionality of the searchthe statute expressly stating that the Fourth Amendment right is deemed not waived by the plea of guilty. The second statute would, obviously, be of no effect whatever, since it would be a plain effort by the to legislate federal law. However, so far as the federal courts are concerned, the hypothesized statute is the functional equivalent of the statute at issue in this case as construed and effectuated by the majority. The only difference is that, in the case of the real statute, the state appeals follow the plea rather than precede it. Finally, the majority argues that a contrary decision by this Court would interfere with the 's policy of avoiding unnecessary trials by permitting appeals from guilty pleas. New York, whose policy this Court is seeking to further, has appeared here through its Attorney General and argued precisely to the contrary. Obviously, New York believes that its policy is adequately served by the state appeals. There is no reason for the Court to decide the case one way for New York's benefit, when New York is arguing strenuously that we should decide the case the other way. MR. JUSTICE POWELL, with whom THE CHIEF JUSTICE and MR. |
per_curiam | 1,974 | 200 | per_curiam | Spence v. Washington | https://www.courtlistener.com/opinion/109092/spence-v-washington/ | Appellant displayed a United States flag, which he owned, out of the window of his apartment. Affixed to both surfaces of the flag was a large peace symbol fashioned of removable tape. Appellant was convicted under a Washington statute forbidding the exhibition of a United States flag to which is attached or superimposed figures, symbols, or other extraneous material. The Supreme Court of Washington affirmed appellant's *406 conviction. It rejected appellant's contentions that the statute under which he was charged, on its face and as applied, contravened the First Amendment, as incorporated by the Fourteenth Amendment, and was void for vagueness. We noted probable jurisdiction. We reverse on the ground that as applied to appellant's activity the Washington statute impermissibly infringed protected expression. I On May 0, 970, appellant, a college student, hung his United States flag from the window of his apartment on private property in Seattle, Washington. The flag was upside down, and attached to the front and back was a peace symbol (i. e., a circle enclosing a trident) made of removable black tape. The window was above the ground floor. The flag measured approximately three by five feet and was plainly visible to passersby. The peace symbol occupied roughly half of the surface of the flag. Three Seattle police officers observed the flag and entered the apartment house. They were met at the main door by appellant, who said: "I suppose you are here about the flag. I didn't know there was anything wrong with it. I will take it down." Appellant permitted the officers to enter his apartment, where they seized the flag and arrested him. Appellant cooperated with the officers. There was no disruption or altercation. Appellant was not charged under Washington's flag-desecration statute. See as amended.[] Rather, the State relied on the so-called *407 "improper use" statute, This statute provides, in pertinent part: "No person shall, in any manner, for exhibition or display: "() Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any flag, standard, color, ensign or shield of the United States or of this state or "(2) Expose to public view any such flag, standard, color, ensign or shield upon which shall have been printed, painted or otherwise produced, or to which shall have been attached, appended, affixed or annexed any such word, figure, mark, picture, design, drawing or advertisement"[2] Appellant initially was tried to the bench in a local justice court, where he was found guilty and sentenced to 90 days' confinement, with 60 days suspended. Appellant exercised his |
per_curiam | 1,974 | 200 | per_curiam | Spence v. Washington | https://www.courtlistener.com/opinion/109092/spence-v-washington/ | 90 days' confinement, with 60 days suspended. Appellant exercised his right to be tried de novo in King County Superior Court, where he received a jury trial. The State based its case on the flag itself and the testimony of the three arresting officers, who testified that they had observed the flag displayed from appellant's window and that on the flag was superimposed what they identified as a peace symbol. Appellant took *408 the stand in his own defense. He testified that he put a peace symbol on the flag and displayed it to public view as a protest against the invasion of Cambodia and the killings at Kent State University, events which occurred a few days prior to his arrest. He said that his purpose was to associate the American flag with peace instead of war and violence: "I felt there had been so much killing and that this was not what America stood for. I felt that the flag stood for America and I wanted people to know that I thought America stood for peace." Appellant further testified that he chose to fashion the peace symbol from tape so that it could be removed without damaging the flag. The State made no effort to controvert any of appellant's testimony. The trial court instructed the jury in essence that the mere act of displaying the flag with the peace symbol attached, if proved beyond a reasonable doubt, was sufficient to convict. There was no requirement of specific intent to do anything more than display the flag in that manner. The jury returned a verdict of guilty. The court sentenced appellant to 0 days in jail, suspended, and to a $75 fine. The Washington Court of Appeals reversed the conviction. It held the improper-use statute overbroad and invalid on its face under the First and Fourteenth Amendments. With one justice dissenting and two concurring in the result, the Washington Supreme Court reversed and reinstated the conviction. II A number of factors are important in the instant case. First, this was a privately owned flag. In a technical property sense it was not the property of any government. *409 We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property. But this is a different case. Second, appellant displayed his flag on private property. He engaged in no trespass or disorderly conduct. Nor is this a case that might be analyzed in terms of reasonable time, place, or manner restraints on access to a public area. Third, |
per_curiam | 1,974 | 200 | per_curiam | Spence v. Washington | https://www.courtlistener.com/opinion/109092/spence-v-washington/ | or manner restraints on access to a public area. Third, the record is devoid of proof of any risk of breach of the peace. It was not appellant's purpose to incite violence or even stimulate a public demonstration. There is no evidence that any crowd gathered or that appellant made any effort to attract attention beyond hanging the flag out of his own window. Indeed, on the facts stipulated by the parties there is no evidence that anyone other than the three police officers observed the flag. Fourth, the State concedes, as did the Washington Supreme Court, that appellant engaged in a form of communication.[3] Although the stipulated facts fail to show that any member of the general public viewed the flag, the State's concession is inevitable on this record. The undisputed facts are that appellant "wanted people to know that I thought America stood for peace." To be sure, appellant did not choose to articulate his views through printed or spoken words. It is therefore necessary to determine whether his activity was sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments, for as the Court noted in United "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled `speech' whenever the person engaging in the conduct intends thereby to express an idea." But the nature of *40 appellant's activity, combined with the factual context and environment in which it was undertaken, lead to the conclusion that he engaged in a form of protected expression. The Court for decades has recognized the communicative connotations of the use of flags. E. g., In many of their uses flags are a form of symbolism comprising a "primitive but effective way of communicating ideas" and "a short cut from mind to mind." Board of On this record there can be little doubt that appellant communicated through the use of symbols. The symbolism included not only the flag but also the superimposed peace symbol. Moreover, the context in which a symbol is used for purposes of expression is important, for the context may give meaning to the symbol. See In Tinker, the wearing of black armbands in a school environment conveyed an unmistakable message about a contemporaneous issue of intense public concernthe Vietnam hostilities. In this case, appellant's activity was roughly simultaneous with and concededly triggered by the Cambodian incursion and the Kent State tragedy, also issues of great public moment. Cf. A flag bearing a peace symbol and displayed upside down by a student today might be interpreted as nothing |
per_curiam | 1,974 | 200 | per_curiam | Spence v. Washington | https://www.courtlistener.com/opinion/109092/spence-v-washington/ | down by a student today might be interpreted as nothing more than bizarre behavior, but it would have been difficult for the great majority of citizens to miss the drift of appellant's point at the time that he made it. It may be noted, further, that this was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to *4 convey a particularized message was present, and in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it. We are confronted then with a case of prosecution for the expression of an idea through activity. Moreover, the activity occurred on private property, rather than in an environment over which the State by necessity must have certain supervisory powers unrelated to expression. Cf. ; ; Accordingly, we must examine with particular care the interests advanced by appellee to support its prosecution. We are met at the outset with something of an enigma in the manner in which the case was presented to us. The Washington Supreme Court rejected any reliance on a breach-of-the-peace n. n. It based its result primarily on the ground that "the nation and state both have a recognizable interest in preserving the flag as a symbol of the nation"[4] Yet counsel for the State declined to support the highest state court's principal rationale in argument before us.[5] He pursued instead the breach-of-the-peace theory discarded by the state court. Indeed, that was the only basis on which he chose to support the constitutionality of the state statute. *42 Despite counsel's approach, we think it appropriate to review briefly the range of various state interests that might be thought to support the challenged conviction, drawing upon the arguments before us, the opinions below, and the Court's opinion in The first interest at issue is prevention of breach of the peace. In our view, the Washington Supreme Court correctly rejected this notion. It is totally without support in the record. We are also unable to affirm the judgment below on the ground that the State may have desired to protect the sensibilities of passersby. "It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of their hearers." Moreover, appellant did not impose his ideas upon a captive audience. Anyone who might have been offended could easily have avoided the display. See 403 U.S. 5 Nor may appellant be |
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