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per_curiam | 1,974 | 200 | per_curiam | Spence v. Washington | https://www.courtlistener.com/opinion/109092/spence-v-washington/ | the display. See 403 U.S. 5 Nor may appellant be punished for failing to show proper respect for our national emblem. ; Board of [6] We are brought, then, to the state court's thesis that Washington has an interest in preserving the national flag as an unalloyed symbol of our country. The court did not define this interest; it simply asserted it. See 8 Wash. 2d, at 799, MR. JUSTICE REHNQUIST's dissenting opinion today, see post, at 420-422, adopts essentially the same approach. Presumably, this interest might be seen as an effort to prevent the appropriation of a revered national symbol by an individual, interest group, or enterprise where there was a risk that association of the symbol with a particular *43 product or viewpoint might be taken erroneously as evidence of governmental endorsement.[7] Alternatively, it might be argued that the interest asserted by the state court is based on the uniquely universal character of the national flag as a symbol. For the great majority of us, the flag is a symbol of patriotism, of pride in the history of our country, and of the service, sacrifice, and valor of the millions of Americans who in peace and war have joined together to build and to defend a Nation in which self-government and personal liberty endure. It evidences both the unity and diversity which are America. For others the flag carries in varying degrees a different message. "A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another's jest and scorn." Board of 39 U. S., at -633. It might be said that we all draw something from our national symbol, for it is capable of conveying simultaneously a spectrum of meanings. If it may be destroyed or permanently disfigured, it could be argued that it will lose its capability of mirroring the sentiments of all who view it. But we need not decide in this case whether the interest *44 advanced by the court below is valid.[8] We assume, arguendo, that it is. The statute is nonetheless unconstitutional as applied to appellant's activity.[9] There was no risk that appellant's acts would mislead viewers into assuming that the Government endorsed his viewpoint. To the contrary, he was plainly and peacefully[0]*45 protesting the fact that it did not. Appellant was not charged under the desecration statute, see n. nor did he permanently disfigure the flag or destroy it. He displayed it as a flag of his country in a way closely analogous to the manner in which flags have always |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | This capital case concerns defense counsel's strategic decision to concede, at the guilt phase of the trial, the defendant's commission of murder, and to concentrate the defense on establishing, at the penalty phase, cause for sparing the defendant's life. Any concession of that order, the Florida Supreme Court held, made without the defendant's express consenthowever gruesome the crime and despite the strength of the evidence of guiltautomatically ranks as prejudicial ineffective assistance of counsel necessitating a new trial. We reverse the Florida Supreme Court's judgment. Defense counsel undoubtedly has a duty to discuss potential strategies with the defendant. See But when a defendant, informed by counsel, neither consents nor objects to the course counsel describes as the most promising means to avert a sentence of death, counsel is not automatically barred from pursuing that course. The reasonableness of counsel's performance, after consultation with the defendant yields no response, must be judged in accord with the inquiry generally applicable to ineffective-assistance-of-counsel claims: Did counsel's representation "f[a]ll below an objective standard of reasonableness"? at 694. The Florida Supreme *179 Court erred in applying, instead, a presumption of deficient performance, as well as a presumption of prejudice; that latter presumption, we have instructed, is reserved for cases in which counsel fails meaningfully to oppose the prosecution's case. United A presumption of prejudice is not in order based solely on a defendant's failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the defendant. On Monday, August 13, 1984, near a dirt road in the environs of Tallahassee, Florida, a passing motorist discovered Jeanne Bickner's charred body. ; 13 Record 2464-2466. Bickner had been tied to a tree and set on fire while still alive. Her left leg and arm, and most of her hair and skin, had been burned away. The next day, police found Bickner's car, abandoned on a Tallahassee street corner, on fire. Police arrested 23-year-old Joe Elton Nixon later that morning, after Nixon's brother informed the sheriff's office that Nixon had confessed to the murder. Questioned by the police, Nixon described in graphic detail how he had kidnaped Bickner, then killed her.[1] He recounted that he had approached Bickner, a stranger, in a mall, and asked her to help him jump-start his car. 5 Bickner offered Nixon a ride home in her 1973 MG sports car. Once on the road, Nixon directed Bickner to drive to a remote place; en route, he overpowered her and stopped the car. Nixon next put Bickner in the MG's trunk, drove into a wooded area, removed Bickner |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | the MG's trunk, drove into a wooded area, removed Bickner from the car, and tied her to a tree with *180 jumper cables. Bickner pleaded with Nixon to release her, offering him money in exchange. Concerned that Bickner might identify him, Nixon decided to kill her. He set fire to Bickner's personal belongings and ignited her with burning objects. Nixon drove away in the MG, and later told his brother and girlfriend what he had done. He burned the MG on Tuesday, August 14, after reading in the newspaper that Bickner's body had been discovered. The State gathered overwhelming evidence establishing that Nixon had committed the murder in the manner he described. A witness saw Nixon approach Bickner in the mall's parking lot on August 12, and observed Bickner taking jumper cables out of the trunk of her car and giving them to Nixon. 13 Several witnesses told police they saw Nixon driving around in the MG in the hours and days following Bickner's death. See Nixon's palm print was found on the trunk of the car. Nixon's girlfriend, Wanda Robinson, and his brother, John Nixon, both stated that Nixon told them he had killed someone and showed them two rings later identified as Bickner's. 5 ; 13 According to Nixon's brother, Nixon pawned the rings, 5 and attempted to sell the car, At a local pawnshop, police recovered the rings and a receipt for them bearing Nixon's driver's license number; the pawnshop owner identified Nixon as the person who sold the rings to him. 13 n late August 1984, Nixon was indicted in Leon County, Florida, for first-degree murder, kidnaping, robbery, and arson. See App. 1, 55. Assistant public defender Michael Corin, assigned to represent Nixon, see filed a plea of not guilty, and deposed all of the State's potential witnesses, Corin concluded, given the strength of the evidence, that Nixon's guilt was *181 not "subject to any reasonable dispute."[2] Corin thereupon commenced plea negotiations, hoping to persuade the prosecution to drop the death penalty in exchange for Nixon's guilty pleas to all charges. Negotiations broke down when the prosecutors indicated their unwillingness to recommend a sentence other than death. See Faced with the inevitability of going to trial on a capital charge, Corin turned his attention to the penalty phase, believing that the only way to save Nixon's life would be to present extensive mitigation evidence centering on Nixon's mental instability. ; see also Experienced in capital defense, see Corin feared that denying Nixon's commission of the kidnaping and murder during the guilt phase would compromise Corin's ability |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | and murder during the guilt phase would compromise Corin's ability to persuade the jury, during the penalty phase, that Nixon's conduct was the product of his mental illness. See Corin concluded that the best strategy would be to concede guilt, thereby preserving his credibility in urging leniency during the penalty phase. Corin attempted to explain this strategy to Nixon at least three times. Although Corin had represented Nixon previously on unrelated charges and the two had a good relationship in Corin's estimation, see Nixon was generally unresponsive during their discussions, He never verbally approved or protested Corin's proposed strategy. Overall, Nixon gave Corin very little, if any, assistance or direction in preparing the case, and refused to attend pretrial dispositions of various motions, Nixon ; App. 478. Corin eventually exercised his *182 professional judgment to pursue the concession strategy. As he explained: "There are many times lawyers make decisions because they have to make them because the client does nothing." When Nixon's trial began on July 15, 1985, his unresponsiveness deepened into disruptive and violent behavior. On the second day of jury selection, Nixon pulled off his clothing, demanded a black judge and lawyer, refused to be escorted into the courtroom, and threatened to force the guards to shoot him. Nixon ; 10 Record 1934-1935. An extended on-the-record colloquy followed Nixon's bizarre behavior, during which Corin urged the trial judge to explain Nixon's rights to him and ascertain whether Nixon understood the significance of absenting himself from the trial. Corin also argued that restraining Nixon and compelling him to be present would prejudice him in the eyes of the jury. When the judge examined Nixon on the record in a holding cell, Nixon stated he had no interest in the trial and threatened to misbehave if forced to attend. The judge ruled that Nixon had intelligently and voluntarily waived his right to be present at trial. ; 11 The guilt phase of the trial thus began in Nixon's absence.[3] n his opening statement, Corin acknowledged Nixon's guilt and urged the jury to focus on the penalty phase: "n this case, there won't be any question, none whatsoever, that my client, Joe Elton Nixon, caused Jeannie Bickner's death. [T]hat fact will be proved to your satisfaction beyond any "This case is about the death of Joe Elton Nixon and whether it should occur within the next few years by *183 electrocution or maybe its natural expiration after a lifetime of confinement. "Now, in arriving at your verdict, in your penalty recommendation, for we will get that far, you are going to |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | for we will get that far, you are going to learn many facts about Joe Elton Nixon. Some of those facts are going to be good. That may not seem clear to you at this time. But, and sadly, most of the things you learn of Joe Elton Nixon are not going to be good. But, 'm suggesting to you that when you have seen all the testimony, heard all the testimony and the evidence that has been shown, there are going to be reasons why you should recommend that his life be spared." App. 71-72. During its case in chief, the State introduced the tape of Nixon's confession, expert testimony on the manner in which Bickner died, and witness testimony regarding Nixon's confessions to his relatives and his possession of Bickner's car and personal effects. Corin cross-examined these witnesses only when he felt their statements needed clarification, see, e. g., 13 Record 2504, and he did not present a defense case, 20 Corin did object to the introduction of crime scene photographs as unduly prejudicial, 13 and actively contested several aspects of the jury instructions during the charge conference, 11 n his closing argument, Corin again conceded Nixon's guilt, App. 73, and reminded the jury of the importance of the penalty phase: " will hope to argue to you and give you reasons not that Mr. Nixon's life be spared one final and terminal confinement forever, but that he not be sentenced to die," The jury found Nixon guilty on all counts. At the start of the penalty phase, Corin argued to the jury that "Joe Elton Nixon is not normal organically, intellectually, emotionally or educationally or in any other way." Corin presented the testimony of eight witnesses. *184 Relatives and friends described Nixon's childhood emotional troubles and his erratic behavior in the days preceding the murder. See, e. g., A psychiatrist and a psychologist addressed Nixon's antisocial personality, his history of emotional instability and psychiatric care, his low Q, and the possibility that at some point he suffered brain damage. The State presented little evidence during the penalty phase, simply incorporating its guilt-phase evidence by reference, and introducing testimony, over Corin's objection, that Nixon had removed Bickner's underwear in order to terrorize her. n his closing argument, Corin emphasized Nixon's youth, the psychiatric evidence, and the jury's discretion to consider any mitigating circumstances, ; Corin urged that, if not sentenced to death, "Joe Elton Nixon would [n]ever be released from confinement," The death penalty, Corin maintained, was appropriate only for "intact human being[s]," and "Joe Elton Nixon is |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | only for "intact human being[s]," and "Joe Elton Nixon is not one of those. He's never been one of those. He never will be one of those." Corin concluded: "You know, we're not around here all that long. And it's rare when we have the opportunity to give or take life. And you have that opportunity to give life. And 'm going to ask you to do that. Thank you." bid. After deliberating for approximately three hours, the jury recommended that Nixon be sentenced to death. See 21 Record 4013. n accord with the jury's recommendation, the trial court imposed the death penalty. Nixon Notably, at the close of the penalty phase, the court commended Corin's performance during the trial, stating that "the tactic employed by trial counsel was an excellent analysis of [the] reality of his case." 21 Record 4009. The evidence of guilt "would have persuaded any jury beyond all doubt," and "[f]or trial counsel to have inferred that Mr. Nixon was not guilty would have deprived [counsel] of any credibility during the penalty phase." *185 On direct appeal to the Florida Supreme Court, Nixon, represented by new counsel, argued that Corin had rendered ineffective assistance by conceding Nixon's guilt without obtaining Nixon's express consent. Nixon -1339. Relying on United new counsel urged that Corin's concession should be presumed prejudicial because it left the prosecution's case unexposed to "meaningful adversarial testing," 58-. The Florida Supreme Court remanded for an evidentiary hearing on whether Nixon consented to the strategy, see App. 216-217, but ultimately declined to rule on the matter, finding the evidence of Corin's interactions with Nixon inconclusive, Nixon n a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 (1999), Nixon renewed his -based "presumption of prejudice" ineffective-assistance-of-counsel claim.[4] After the trial court rejected the claim, State v. Nixon, Case No. 84-2324 (Cir. Ct., Oct. 22, 1997), App. 389-390, the Florida Supreme Court remanded for a further hearing on Nixon's consent to defense counsel's strategy. (Nixon ). Corin's concession, according to the Florida Supreme Court, was the "functional equivalent of a guilty plea" in that it allowed the prosecution's guilt-phase case to proceed essentially without opposition. Under a guilty plea cannot be inferred from silence; it must be based on express affirmations made intelligently and voluntarily. Similarly, the Florida Supreme Court stated, a concession of guilt at trial requires a defendant's "affirmative, explicit acceptance," without which counsel's performance is presumptively *186 inadequate. Nixon The court acknowledged that Nixon was "very disruptive and uncooperative at trial," and that "counsel's strategy may have been in Nixon's |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | trial," and that "counsel's strategy may have been in Nixon's best interest." at Nevertheless, the court firmly declared that "[s]ilent acquiescence is not enough," ; counsel who concedes a defendant's guilt is inevitably ineffective, the court ruled, if the defendant does not expressly approve counsel's course, at On remand, Corin testified that he explained his view of the case to Nixon several times, App. 479-480, and that at each consultation, Nixon "did nothing affirmative or negative," ; see also -487. Failing to elicit a definitive response from Nixon, Corin stated, he chose to pursue the concession strategy because, in his professional judgment, it appeared to be "the only way to save [Nixon's] life." Nixon did not testify at the hearing. The trial court found that Nixon's "natural pattern of communication" with Corin involved passively receiving information, and that Nixon consented to the strategy "through his behavior." State v. Nixon, Case No. R84-2324AF (Fla. Cir. Ct., Sept. 20, 2001), p. 13; 2 Record 378. Observing that "no competent, substantial evidence establish[ed] that Nixon affirmatively and explicitly agreed to counsel's strategy," the Florida Supreme Court reversed and remanded for a new trial. (Nixon ) (emphasis in original). Three justices disagreed with the majority's determination that Corin's concession rendered his representation inadequate. ; We granted certiorari, to resolve an important question of constitutional law, i. e., whether counsel's failure to obtain the defendant's express consent to a strategy of conceding guilt in a capital trial automatically renders counsel's performance deficient, and whether counsel's *187 effectiveness should be evaluated under or We now reverse the judgment of the Florida Supreme Court. An attorney undoubtedly has a duty to consult with the client regarding "important decisions," including questions of overarching defense strategy. 466 U. S., at That obligation, however, does not require counsel to obtain the defendant's consent to "every tactical decision." Taylor v. llinois, But certain decisions regarding the exercise or waiver of basic trial rights are of such moment that they cannot be made for the defendant by a surrogate. A defendant, this Court affirmed, has "the ultimate authority" to determine "whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal." ; Concerning those decisions, an attorney must both consult with the defendant and obtain consent to the recommended course of action. A guilty plea, we recognized in is an event of signal significance in a criminal proceeding. By entering a guilty plea, a defendant waives constitutional rights that inhere in a criminal trial, including the right to trial by jury, the protection against self-incrimination, |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | the right to trial by jury, the protection against self-incrimination, and the right to confront one's accusers. While a guilty plea may be tactically advantageous for the defendant, the plea is not simply a strategic choice; it is "itself a conviction," and the high stakes for the defendant require "the utmost solicitude," Accordingly, counsel lacks authority to consent to a guilty plea on a client's behalf, ; moreover, a defendant's tacit *188 acquiescence in the decision to plead is insufficient to render the plea valid, 395 U. S., The Florida Supreme Court, as just observed, see required Nixon's "affirmative, explicit acceptance" of Corin's strategy because it deemed Corin's statements to the jury "the functional equivalent of a guilty plea." Nixon We disagree with that assessment. Despite Corin's concession, Nixon retained the rights accorded a defendant in a criminal trial. Cf. 395 U. S., at and n. 4 (a guilty plea is "more than a confession which admits that the accused did various acts," it is a "stipulation that no proof by the prosecution need be advanced" (internal quotation marks omitted)). The State was obliged to present during the guilt phase competent, admissible evidence establishing the essential elements of the crimes with which Nixon was charged. That aggressive evidence would thus be separated from the penalty phase, enabling the defense to concentrate that portion of the trial on mitigating factors. See Further, the defense reserved the right to cross-examine witnesses for the prosecution and could endeavor, as Corin did, to exclude prejudicial evidence. See n addition, in the event of errors in the trial or jury instructions, a concession of guilt would not hinder the defendant's right to appeal. Nixon nevertheless urges, relying on that this Court has already extended the requirement of "affirmative, explicit acceptance" to proceedings "surrender[ing] the right to contest the prosecution's factual case on the issue of guilt or innocence." Brief for Respondent 32. Defense counsel in Brookhart had agreed to a "prima facie" bench trial at which the State would be relieved of its obligation to put on "complete proof" of guilt or persuade a jury of the defendant's guilt beyond a reasonable -6. n contrast to Brookhart, there was in Nixon's *189 case no "truncated" proceeding, shorn of the need to persuade the trier "beyond a reasonable doubt," and of the defendant's right to confront and cross-examine witnesses. While the "prima facie" trial in Brookhart was fairly characterized as "the equivalent of a guilty plea," the full presentation to the jury in Nixon's case does not resemble that severely abbreviated proceeding. Brookhart, in short, does |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | not resemble that severely abbreviated proceeding. Brookhart, in short, does not carry the weight Nixon would place on it. Corin was obliged to, and in fact several times did, explain his proposed trial strategy to Nixon. See Given Nixon's constant resistance to answering inquiries put to him by counsel and court, see Nixon -188 Corin was not additionally required to gain express consent before conceding Nixon's guilt. The two evidentiary hearings conducted by the Florida trial court demonstrate beyond doubt that Corin fulfilled his duty of consultation by informing Nixon of counsel's proposed strategy and its potential benefits. Nixon's characteristic silence each time information was conveyed to him, in sum, did not suffice to render unreasonable Corin's decision to concede guilt and to home in, instead, on the life or death penalty issue. The Florida Supreme Court's erroneous equation of Corin's concession strategy to a guilty plea led it to apply the wrong standard in determining whether counsel's performance ranked as ineffective assistance. The court first presumed deficient performance, then applied the presumption of prejudice that United reserved for situations in which counsel has entirely failed to function as the client's advocate. The Florida court therefore did not hold Nixon to the standard prescribed in which would have required Nixon to show that counsel's concession strategy was unreasonable. As Florida Supreme Court Justice Lewis observed, that court's majority misunderstood and failed to attend to the realities of defending against a *190 capital charge. Nixon -183 recognized a narrow exception to 's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense. instructed that a presumption of prejudice would be in order in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." 466 U.S., 58. The Court elaborated: "[]f counsel entirely fails to subject the prosecution's case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that makes the adversary process itself presumptively unreliable." at ; see We illustrated just how infrequently the "surrounding circumstances [will] justify a presumption of ineffectiveness" in itself. n that case, we reversed a Court of Appeals ruling that ranked as prejudicially inadequate the performance of an inexperienced, underprepared attorney in a complex mail fraud trial. 466 U.S., 62, 666. On the record thus far developed, Corin's concession of Nixon's guilt does not rank as a "fail[ure] to function in any meaningful sense as the Government's adversary." 66.[5] Although such |
Justice Ginsburg | 2,004 | 5 | majority | Florida v. Nixon | https://www.courtlistener.com/opinion/137735/florida-v-nixon/ | any meaningful sense as the Government's adversary." 66.[5] Although such a concession in a run-of-the-mine trial might present a closer question, the gravity of the potential sentence in a capital trial and the proceeding's two-phase *191 structure vitally affect counsel's strategic calculus. Attorneys representing capital defendants face daunting challenges in developing trial strategies, not least because the defendant's guilt is often clear. Prosecutors are more likely to seek the death penalty, and to refuse to accept a plea to a life sentence, when the evidence is overwhelming and the crime heinous. See Goodpaster, The Trial for Life: Effective Assistance of Counsel in Death Penalty Cases, 58 N. Y. U. L. Rev. 299, 329[6] n such cases, "avoiding execution [may be] the best and only realistic result possible." ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases 10.9.1, Commentary reprinted in Counsel therefore may reasonably decide to focus on the trial's penalty phase, at which time counsel's mission is to persuade the trier that his client's life should be spared. Unable to negotiate a guilty plea in exchange for a life sentence, defense counsel must strive at the guilt phase to avoid a counterproductive course. See Lyon, Defending the Death Penalty Case: What Makes Death Different? ("t is not good to put on a `he didn't do it' defense and a `he is sorry he did it' mitigation. This just does not work. The jury will give the death penalty to the *192 client and, in essence, the attorney."); Sundby, The Capital Jury and Absolution: The ntersection of Trial Strategy, Remorse, and the Death Penalty, ; n this light, counsel cannot be deemed ineffective for attempting to impress the jury with his candor and his unwillingness to engage in "a useless charade." See 466 U. S., 56-657, n. 19. Renowned advocate Clarence Darrow, we note, famously employed a similar strategy as counsel for the youthful, cold-blooded killers Richard Loeb and Nathan Leopold. mploring the judge to spare the boys' lives, Darrow declared: " do not know how much salvage there is in these two boys. will be honest with this court as have tried to be from the beginning. know that these boys are not fit to be at large." Attorney for the Damned: Clarence Darrow in the Courtroom 84 (A. Weinberg ed. 1989); see Tr. of Oral Arg. 40-41 (Darrow's clients "did not expressly consent to what he did. But he saved their lives."); cf. To summarize, in a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how |
Justice Marshall | 1,985 | 15 | dissenting | Cornelius v. Nutt | https://www.courtlistener.com/opinion/111486/cornelius-v-nutt/ | Today the Court holds that the Civil Service Reform Act of 1978 requires that an arbitrator, when reviewing an agency disciplinary action taken in violation of collectively bargained procedures, must ignore the possibility that sustaining the adverse action would be injurious to the legitimate interests of the union and to the integrity of the collective-bargaining process. Following Congress' finding that healthy collective bargaining serves the effective conduct of Government business, I agree with the Court of Appeals that an arbitrator may properly take into account in reviewing an adverse action a procedural error that substantially injures the union's collective-bargaining role. Accordingly, I dissent. I In passing the Civil Service Reform Act of 1978, Stat. 1111, Congress declared that "labor organizations and collective bargaining in the civil service are in the public interest." 5 U.S. C. 7101(a). This finding was based on Congress' study of "experience in both public and private employment," ib and on its conclusion that employees' right to "bargain collectively, and participate through labor organizations in decisions which affect them contributes to the effective conduct of public business." One of the major goals of the Act was to effectuate this policy by establishing the framework for a system of labor organization and collective bargaining in the federal civil service. See 5 U.S. C. 7101 et seq. One of the principal spheres where collective-bargaining rights were guaranteed to federal unions was the negotiation of "procedures which management officials of the agency will observe" in taking disciplinary actions against employees. 7106(b)(2) (emphasis added). Congress also required that collective-bargaining agreements covering federal employees *667 must provide for grievance procedures that include union-invoked "binding arbitration." 7121(b)(3)(C). This case involves the arbitration of agency decisions to remove from Government service two Federal Protective Service officers. Both officers were accused of serious acts of misconduct. The arbitrator determined that they "committed the acts enumerated" and that "under normal circumstances [those acts would] justify their removal from government service." App. to Pet. for Cert. 32a. But the arbitrator also found that the agency's behavior in reaching its decision to remove the grievants was plagued by a "pervasive failure to comply with the due process requirements of the [collective-bargaining] agreement." at 38a. Among other violations of the contractual procedures, the agency had repeatedly failed to inform either grievant of his right to have a union representative present during all investigatory interviews. The officers' collective-bargaining agreement and a prior arbitration decision unambiguously established both the right to union representation and the right to be informed by the employer of the availability of union representation. Although the arbitrator |
Justice Marshall | 1,985 | 15 | dissenting | Cornelius v. Nutt | https://www.courtlistener.com/opinion/111486/cornelius-v-nutt/ | employer of the availability of union representation. Although the arbitrator concluded that it would be "unrealistic to pretend that the Grievants. were entirely unaware of their right to representation," at 34a-35a, he also concluded that some modification of the agency action was necessary to avoid denigration of the collectively bargained procedural requirements. In the Court's view, this decision violated the Act's requirement that an employee complaining of procedural errors associated with an adverse action decision must "sho[w] harmful error in the application of the agency's procedures in arriving at such decision." 7701(c)(2)(A). The Court rejects the position of the Court of Appeals for the Federal Circuit, under which an arbitrator's finding of a significant injury to the union stemming from the agency's "[v]iolations of explicit and important procedural rights contained in a contract," constitutes "harmful *668 error." Instead, the Court holds that the harmful-error standard prohibits consideration of any violation that did not affect "the result of the agency's decision to take the disciplinary action against the individual employee." Ante, at 659. But neither the wording of the standard offered by the Court today, nor the statutory language and history, require that arbitrators ignore the possibility that sustaining an agency action may because of an agency's refusal to honor contractual obligations in reaching its disciplinary decisions result in substantial injury to the continued stability of union-agency collective-bargaining relations. By requiring the arbitrator to ignore this factor, the Court undermines the clear congressional intent to gain for the federal sector the benefits derived from a system of stable collective bargaining. II The Court analyzes the concept of "harmful error" in an adverse action case as it would in the context of a criminal trial.[1] Similarly, it narrowly defines the issue before the arbitrator as whether the grievants had in fact committed the acts of misconduct of which they were accused. But by statutory mandate the issue before an arbitrator in an adverse action case is not simply whether the grievants have committed the alleged acts of misconduct; it is rather whether the grievants' removal from the service was for "such cause as will promote the efficiency of the service." 7513(a). This flexible statutory standard easily encompasses Congress' desire to assure that stable collective-bargaining relationships be established in agencies,[2] and accordingly, the concern *669 for stable collective-bargaining relationships is relevant to the statutory concept of harmful error.[3] The statutory phrase "such cause as will promote the efficiency of the service" predates the Civil Service Reform Act's recognition of federal sector collective bargaining. See (discussing history of phrase). Nonetheless it has |
Justice Marshall | 1,985 | 15 | dissenting | Cornelius v. Nutt | https://www.courtlistener.com/opinion/111486/cornelius-v-nutt/ | collective bargaining. See (discussing history of phrase). Nonetheless it has always been understood as an "admittedly general standard," adaptable to the situations faced by "myriad different federal employees performing widely disparate tasks." It was certainly meant to leave room for Congress' evolving conceptions of what constitutes efficient public management. A plurality of this Court has previously explained that "longstanding principles of employer-employee relationships, like those developed in the private sector, should be followed in interpreting the [standard]," and this point takes on special importance in light of Congress' decision that success of collective bargaining in the private sector should to some extent serve as an example for the federal workplace. But whether one looks to the concept of "just cause" that has developed in the unionized private sector or confines the inquiry to the findings made by Congress upon *670 passage of the Civil Service Reform Act, the arbitrator's consideration of collective-bargaining concerns in his evaluation of "cause" was proper.[4] III The Court's discussion of harmful error leaves unanalyzed the public interest in collective bargaining and thus fails to consider whether that interest should be taken into account in the analysis of what constitutes "such cause as will promote the efficiency of the service." 7513(a). Instead it principally rests on the fact that "one of the `central tasks' of the Act was to `[a]llow civil servants to be able to be hired and fired more easily.' " Ante, at 662 (quoting S. Rep. No. 95-969, p. 4 (1978)). The Court reasons that because the grievants in this case had "concededly committed improper acts that justified their removal from the federal service," ib it would defeat a major purpose of the Act to force their reinstatement because of procedural errors that "do not cast doubt upon the reliability of the agency's factfinding or decision." *671 But the agency's decision that removal of these employees would serve the "efficiency of the service" included no consideration of the possible injuries to collective bargaining caused by the serious procedural errors committed by the agency. Given Congress' determination that stable collective-bargaining relationships would serve "the effective conduct of public business," 7101(a), it cannot be so quickly said that the errors involved in this case "do not cast doubt upon the reliability of the agency's decision." If one takes Congress' determination seriously, then the agency's decision is indeed called into question.[5] It is true that facilitating collective bargaining was not the only goal of the Act, and that Congress also intended to "preserv[e] the ability of federal managers to maintain `an effective and efficient Government,' " |
Justice Marshall | 1,985 | 15 | dissenting | Cornelius v. Nutt | https://www.courtlistener.com/opinion/111486/cornelius-v-nutt/ | federal managers to maintain `an effective and efficient Government,' " Bureau of Alcohol, Tobacco and (quoting 5 U.S. C. 7101(b)), and to " `[a]llow civil servants to be able to be hired and fired more easily.' " Ante, at 662 (quoting S. Rep. No. 95-969, p. 4 (1978)). These concerns certainly influenced many aspects of Congress' detailed statutory scheme for the governance of the civil service. Indeed, Congress explicitly reserved as "management rights" *672 the authority "to suspend, remove, reduce in grade or pay, or take other disciplinary action against employees." 7106(a)(2)(A). But Congress also explicitly provided for collective bargaining to establish procedures that "the agency will observe in exercising [its] authority" in this area, 7106(b)(2), and the legislative history of this provision makes clear that Congress well understood that bargained-for procedures could severely limit management's freedom of action over discipline.[6] While the Court underemphasizes the importance of collective bargaining, it overemphasizes the harm to the service of allowing the arbitrator's decision to stand. The issue is not whether common and trivial procedural errors will be a reason for putting clearly unfit people back in positions where they will do harm; this case involves neither a common nor a trivial procedural error, and the arbitrator established no requirement that an employee be returned to a position where he will do harm. The arbitrator found the violations of the agreement "pervasive," App. to Pet. for Cert. 38a, and it was only on that basis that the Court of Appeals affirmed. The concept of *673 harmful error was not written out of the statute in this case, for the Court of Appeals concluded that "violations of explicit and important procedural rights contained in a contract, such as these, could fairly be said to be tantamount to `harmful error' to the union." 718 F.2d, at Under this standard, an arbitrator would certainly be prohibited from reversing an agency's adverse actions because of technical contract violations not serious enough to injure the collective-bargaining process. See Moreover, Government agencies will, it is hoped, not frequently commit flagrant violations of their collective-bargaining agreements. Thus, the burden of decisions like that of arbitrator Nutt will not be great. To the extent that a Government agency perceives a need for greater flexibility, it can seek that freedom through the congressionally sanctioned means the collective-bargaining process. See Lastly, the arbitrator here did not simply ignore the agency's interest by ordering the return of an unqualified grievant to his old position. Instead, because the arbitrator agreed that one of the grieving employees could not be trusted to perform adequately |
Justice Marshall | 1,985 | 15 | dissenting | Cornelius v. Nutt | https://www.courtlistener.com/opinion/111486/cornelius-v-nutt/ | the grieving employees could not be trusted to perform adequately at his old position, he gave the agency substantial flexibility in determining the capacity to which the employee would be reinstated. App. to Pet. for Cert. 38a-39a (allowing agency to reinstate grievant Wilson to any nonclerical position in which "he can reasonably be expected to perform satisfactorily" even if that position would be at the entrance level). The Court is wrong to fear that it will undermine Government's efficiency to follow the unionized private sector and *674 incorporate concerns for the stability of collective bargaining into the evaluation of agency disciplinary actions. Giving force to Congress' view that healthy collective-bargaining relationships serve the effective conduct of public business does not displace the importance of maintaining the "efficiency of the service." To the extent that an arbitrator's decision ignores efficiency concerns, I do not doubt that it would be invalid. In formulating the "harmful error" standard, Congress understood that there would be instances where adverse actions would not serve the public interest even if in the abstract the misconduct rendered the employees deserving of the disciplinary action.[7] IV By determining that collective bargaining in the federal work force was in the public interest, Congress may have made the concept of "cause as will promote the efficiency of the service" slightly more complex. But it understood that this complexity has long been a part of the successful operation of collective bargaining. Accordingly, I dissent. |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | This case is the latest skirmish in the long-running copyright battle over the delivery of television program- ming. Petitioners, a collection of television networks and affiliates (s), broadcast copyrighted programs on the public airwaves for all to see. Aereo, respondent, operates an automated system that allows subscribers to receive, on Internet-connected devices, programs that they select, including the s’ copyrighted programs. The s sued Aereo for several forms of copyright infringement, but we are here concerned with a single claim: that Aereo violates the s’ “exclusive righ[t]” to “perform” their programs “publicly.” 17 U.S. C. That claim fails at the very outset because Aereo does not “perform” at all. The Court manages to reach the opposite conclusion only by disregarding widely accepted rules for service-provider liability and adopting in their place an improvised standard (“looks-like-cable-TV”) that will sow confusion for years to come. I. Legal Standard There are two types of liability for copyright infringe- ment: direct and secondary. As its name suggests, the 2 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting former applies when an actor personally engages in in- fringing conduct. See Corp. of Secondary liability, by contrast, is a means of holding defendants responsible for infringement by third parties, even when the defendants “have not themselves engaged in the in- fringing activity.” It applies when a defendant “intentionally induc[es] or encourag[es]” infringing acts by others or profits from such acts “while declining to exer- cise a right to stop or limit [them].” Metro-Goldwyn-Mayer Studios Most suits against equipment manufacturers and ser- vice providers involve secondary-liability claims. For ex- ample, when movie studios sued to block the sale of ’s Betamax videocassette recorder (VCR), they argued that was liable because its customers were making unauthorized copies. See –435. Record labels and movie studios relied on a similar theory when they sued and StreamCast, two providers of peer-to-peer file-sharing software. See at 920–921, 927. This suit, or rather the portion of it before us here, is fundamentally different. The s claim that Aereo directly infringes their public-performance right. Accord- ingly, the s must prove that Aereo “perform[s]” copyrighted works, when its subscribers log in, select a channel, and push the “watch” button. That pro- cess undoubtedly results in a performance; the question is who does the performing. See Cartoon LP, LLLP v. CSC Holdings, Inc., If Aereo’s subscribers perform but Aereo does not, the claim necessarily fails. The s’ claim is governed by a simple but pro- foundly important rule: A defendant may be held directly liable only if it has engaged in volitional conduct that violates |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | only if it has engaged in volitional conduct that violates the Act. See 3 W. Patry, Copyright (2013). Cite as: 573 U. S. (2014) 3 SCALIA, J., dissenting This requirement is firmly grounded in the Act’s text, which defines “perform” in active, affirmative terms: One “perform[s]” a copyrighted “audiovisual work,” such as a movie or news broadcast, by “show[ing] its images in any sequence” or “mak[ing] the sounds accompanying it audi- ble.” And since the Act makes it unlawful to copy or perform copyrighted works, not to copy or perform in general, see the volitional-act requirement de- mands conduct directed to the plaintiff ’s copyrighted material, see Every Court of Appeals to have considered an automated-service provider’s direct liability for copyright infringement has adopted that rule. See Fox Co. v. Dish LLC, 747 F.3d 1060, 1066–1068 (CA9 2014); Cartoon at –131 ; Group,1 Although we have not opined on the issue, our cases are fully consistent with a volitional-conduct requirement. For example, we gave several examples of direct infringement in each of which involved a volitional act directed to the plaintiff ’s copyrighted material. See n. 18. The volitional-conduct requirement is not at issue in most direct-infringement cases; the usual point of dispute is whether the defendant’s conduct is infringing (e.g., Does the defendant’s design copy the plaintiff ’s?), rather than whether the defendant has acted at all (e.g., Did this defendant create the infringing design?). But it comes right to the fore when a direct-infringement claim is —————— 1 An unpublished decision of the Third Circuit is to the same effect. The s muster only one case they say stands for a different approach, New York Times Reply Brief 18. But Tasini is clearly inapposite; it dealt with the question whether the defendants’ copying was permissible, not whether the defendants were the ones who made the copies. See – 488, 492, 504–506. 4 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting lodged against a defendant who does nothing more than operate an automated, user-controlled system. See, e.g., Fox ; Cartoon at 131. Internet-service providers are a prime example. When one user sends data to another, the provider’s equipment facilitates the transfer automatically. Does that mean that the provider is directly liable when the transmission happens to result in the “reproduc[tion],” of a copyrighted work? It does not. The provid- er’s system is “totally indifferent to the material’s con- tent,” whereas courts require “some aspect of volition” directed at the copyrighted material before direct liability may be imposed. –551.2 The defendant may be held directly liable only if the |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | The defendant may be held directly liable only if the defendant itself “trespassed on the exclusive domain of the copyright owner.” Most of the time that issue will come down to who selects the copyrighted content: the defend- ant or its customers. See Cartoon at 131–132. A comparison between copy shops and video-on-demand services illustrates the point. A copy shop rents out photo- copiers on a per-use basis. One customer might copy his 10-year-old’s drawings—a perfectly lawful thing to do— while another might duplicate a famous artist’s copyrighted photographs—a use clearly prohibited by Either way, the customer chooses the content and activates the copying function; the photocopier does nothing except in response to the customer’s commands. Because the shop plays no role in selecting the content, it cannot be held directly liable when a customer makes an infringing copy. See —————— 2 Congress has enacted several safe-harbor provisions applicable to automated network processes, see, e.g., 17 U.S. C. but those provisions do not foreclose “any other defense,” including a volitional-conduct defense. Cite as: 573 U. S. (2014) 5 SCALIA, J., dissenting Video-on-demand services, like photocopiers, respond automatically to user input, but they differ in one crucial respect: They choose the content. When a user signs in to Netflix, for example, “thousands of movies [and] TV episodes” carefully curated by Netflix are “available to watch instantly.” See How [D]oes Netflix [W]ork?, online at http://help.netflix.com/en/node/412 (as visited June 20, 2014, and available in Clerk of Court’s case file). That selection and arrangement by the service provider consti- tutes a volitional act directed to specific copyrighted works and thus serves as a basis for direct liability. The distinction between direct and secondary liability would collapse if there were not a clear rule for deter- mining whether the defendant committed the infringing act. See Cartoon –133. The volitional-conduct requirement supplies that rule; its purpose is not to excuse defendants from accountability, but to channel the claims against them into the correct analytical track. See Brief for 36 Intellectual Property and Copyright Law Professors as Amici Curiae 7. Thus, in the example given above, the fact that the copy shop does not choose the content simply means that its culpability will be assessed using secondary-liability rules rather than direct-liability rules. See –442; Cartoon at 132–133. II. Application to Aereo So which is Aereo: the copy shop or the video-on-demand service? In truth, it is neither. Rather, it is akin to a copy shop that provides its patrons with a library card. Aereo offers access to an automated system consisting of routers, servers, transcoders, and dime-sized |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | an automated system consisting of routers, servers, transcoders, and dime-sized antennae. Like a photocopier or VCR, that system lies dormant until a subscriber activates it. When a subscriber selects a pro- gram, Aereo’s system picks up the relevant broadcast signal, translates its audio and video components into 6 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting digital data, stores the data in a user-specific file, and transmits that file’s contents to the subscriber via the Internet—at which point the subscriber’s laptop, tablet, or other device displays the broadcast just as an ordinary television would. The result of that process fits the statu- tory definition of a performance to a tee: The subscriber’s device “show[s]” the broadcast’s “images” and “make[s] the sounds accompanying” the broadcast “audible.” The only question is whether those performances are the prod- uct of Aereo’s volitional conduct. They are not. Unlike video-on-demand services, Aereo does not provide a prearranged assortment of movies and television shows. Rather, it assigns each subscriber an antenna that—like a library card—can be used to obtain whatever broadcasts are freely available. Some of those broadcasts are copyrighted; others are in the public do- main. The key point is that subscribers call all the shots: Aereo’s automated system does not relay any program, copyrighted or not, until a subscriber selects the program and tells Aereo to relay it. Aereo’s operation of that sys- tem is a volitional act and a but-for cause of the resulting performances, but, as in the case of the copy shop, that degree of involvement is not enough for direct liability. See (“[T]he producer of a technology which permits unlawful copying does not himself engage in unlawful copying”). In sum, Aereo does not “perform” for the sole and simple reason that it does not make the choice of content. And because Aereo does not perform, it cannot be held directly liable for infringing the s’ public-performance right.3 That conclusion does not necessarily mean that Aereo’s service complies with the Copyright Act. Quite the —————— 3 Because I conclude that Aereo does not perform at all, I do not reach the question whether the performances in this case are to the public. See ante, at 10–15. Cite as: 573 U. S. (2014) 7 SCALIA, J., dissenting contrary. The s’ complaint alleges that Aereo is directly and secondarily liable for infringing their public- performance rights and also their reproduction rights Their request for a preliminary injunc- tion—the only issue before this Court—is based exclusively on the direct-liability portion of the public-performance claim (and further limited to Aereo’s “watch” function, as opposed |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | claim (and further limited to Aereo’s “watch” function, as opposed to its “record” function). See App. to Pet. for Cert. 60a–61a. Affirming the judgment below would merely return this case to the lower courts for consideration of the s’ remaining claims. III. Guilt By Resemblance The Court’s conclusion that Aereo performs boils down to the following syllogism: (1) Congress amended the Act to overrule our decisions holding that cable systems do not perform when they retransmit over-the-air broadcasts;4 (2) Aereo looks a lot like a cable system; therefore (3) Aereo performs. Ante, at 4–10. That reasoning suffers from a trio of defects. First, it is built on the shakiest of foundations. Perceiv- ing the text to be ambiguous, ante, at 4, the Court reaches out to decide the case based on a few isolated snippets of legislative history, ante, at 7–8 (citing H. R. Rep. No. 94– 1476 (1976)). The Court treats those snippets as authori- tative evidence of congressional intent even though they come from a single report issued by a committee whose members make up a small fraction of one of the two Houses of Congress. Little else need be said here about the severe shortcomings of that interpretative methodology. See Lawson v. FMR LLC, 571 U. S. (2014) (SCALIA, J., concurring in principal part and concurring in judgment) (slip op., at 1–2). —————— 4 See Teleprompter Corp. v. Columbia System, Inc., 415 U.S. 394 ; Fortnightly 8 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting Second, the Court’s reasoning fails on its own terms because there are material differences between the cable systems at issue in Teleprompter Corp. v. Columbia System, Inc., and Fort- nightly Corp. v. United Artists Television, Inc., 392 U.S. 390 on the one hand and Aereo on the other. The former (which were then known as community-antenna television systems) captured the full range of broadcast signals and forwarded them to all subscribers at all times, whereas Aereo transmits only specific programs selected by the user, at specific times selected by the user. The Court acknowledges this distinction but blithely concludes that it “does not make a critical difference.” Ante, at 10. Even if that were true, the Court fails to account for other salient differences between the two technologies.5 Though cable systems started out essentially as dumb pipes that routed signals from point A to point B, see ante, at 5, by the 1970’s, that kind of service “ ‘no longer exist[ed],’ ” Brief for Petitioners in Columbia System, Inc. v. Teleprompter Corp., O. T. 1973, No. 72–1633, p. 22. At the |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | Corp., O. T. 1973, No. 72–1633, p. 22. At the time of our Teleprompter decision, cable companies “perform[ed] the same functions as ‘broadcasters’ by delib- erately selecting and importing distant signals, originat- ing programs, [and] selling commercials,” thus making them curators of content—more akin to video-on- demand services than copy shops. So far as the record reveals, Aereo does none of those things. —————— 5 The Court observes that “[t]he subscribers of the Fortnightly and Teleprompter cable systems selected what programs to display on their receiving sets,” but acknowledges that those choices were possible only because “the television signals, in a sense, lurked behind the screen, ready to emerge when the subscriber turned the knob.” Ante, at 10. The latter point is dispositive: The signals were “ready to emerge” because the cable system—much like a video-on-demand provider— took affirmative, volitional steps to put them there. As discussed above, the same cannot be said of the programs available through Aereo’s automated system. Cite as: 573 U. S. (2014) 9 SCALIA, J., dissenting Third, and most importantly, even accepting that the 1976 amendments had as their purpose the overruling of our cable-TV cases, what they were meant to do and how they did it are two different questions—and it is the latter that governs the case before us here. The injury claimed is not violation of a law that says operations similar to cable TV are subject to copyright liability, but violation of of the Copyright Act. And whatever soothing reasoning the Court uses to reach its result (“this looks like cable TV”), the consequence of its holding is that someone who implements this technology “perform[s]” under that provision. That greatly disrupts settled juris- prudence which, before today, applied the straightforward, bright-line test of volitional conduct directed at the copy- righted work. If that test is not outcome determinative in this case, presumably it is not outcome determinative elsewhere as well. And it is not clear what the Court proposes to replace it. Perhaps the Court means to adopt (invent, really) a two-tier version of the Copyright Act, one part of which applies to “cable companies and their equiv- alents” while the other governs everyone else. Ante, at 9– 10, 16. The rationale for the Court’s ad hoc rule for cable- system lookalikes is so broad that it renders nearly a third of the Court’s opinion superfluous. Part II of the opinion concludes that Aereo performs because it resembles a cable company, and Congress amended the Act in 1976 “to bring the activities of cable systems within [its] scope.” Ante, at 8. |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | activities of cable systems within [its] scope.” Ante, at 8. Part III of the opinion purports to address separately the question whether Aereo performs “pub- licly.” Ante, at 10–15. Trouble is, that question cannot remain open if Congress’s supposed intent to regulate whatever looks like a cable company must be given legal effect (as the Court says in Part II). The Act reaches only public performances, see so Congress could not have regulated “the activities of cable systems” without 10 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting deeming their retransmissions public performances. The upshot is this: If Aereo’s similarity to a cable company means that it performs, then by necessity that same char- acteristic means that it does so publicly, and Part III of the Court’s opinion discusses an issue that is no longer relevant—though discussing it certainly gives the opinion the “feel” of real textual analysis. Making matters worse, the Court provides no criteria for determining when its cable-TV-lookalike rule applies. Must a defendant offer access to live television to qualify? If similarity to cable-television service is the measure, then the answer must be yes. But consider the implica- tions of that answer: Aereo would be free to do exactly what it is doing right now so long as it built mandatory time shifting into its “watch” function.6 Aereo would not be providing live television if it made subscribers wait to tune in until after a show’s live broadcast ended. A sub- scriber could watch the 7 p.m. airing of a 1-hour program any time after 8 p.m. Assuming the Court does not intend to adopt such a do-nothing rule (though it very well may), there must be some other means of identifying who is and is not subject to its guilt-by-resemblance regime. Two other criteria come to mind. One would cover any automated service that captures and stores live television broadcasts at a user’s direction. That can’t be right, since it is exactly what remote storage digital video recorders (RS–DVRs) do, see Cartoon – 125, and the Court insists that its “limited holding” does not decide the fate of those devices, ante, at 16–17. The other potential benchmark is the one offered by the Gov- ernment: The cable-TV-lookalike rule embraces any entity —————— 6 Broadcasts accessible through the “watch” function are technically not live because Aereo’s servers take anywhere from a few seconds to a few minutes to begin transmitting data to a subscriber’s device. But the resulting delay is so brief that it cannot reasonably be classified as time shifting. Cite as: 573 U. S. |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | be classified as time shifting. Cite as: 573 U. S. (2014) 11 SCALIA, J., dissenting that “operates an integrated system, substantially de- pendent on physical equipment that is used in common by [its] subscribers.” Brief for United States as Amicus Curiae 20. The Court sensibly avoids that approach because it would sweep in Internet service providers and a host of other entities that quite obviously do not perform. That leaves as the criterion of cable-TV-resemblance nothing but th’ol’ totality-of-the-circumstances test (which is not a test at all but merely assertion of an intent to perform test-free, ad hoc, case-by-case evaluation). It will take years, perhaps decades, to determine which automated systems now in existence are governed by the tradi- tional volitional-conduct test and which get the Aereo treatment. (And automated systems now in contemplation will have to take their chances.) The Court vows that its ruling will not affect cloud-storage providers and cable- television systems, see ante, at 16–17, but it cannot deliver on that promise given the imprecision of its result-driven rule. Indeed, the difficulties inherent in the Court’s makeshift approach will become apparent in this very case. Today’s decision addresses the legality of Aereo’s “watch” function, which provides nearly contemporaneous access to live broadcasts. On remand, one of the first questions the lower courts will face is whether Aereo’s “record” function, which allows subscribers to save a pro- gram while it is airing and watch it later, infringes the s’ public-performance right. The volitional- conduct rule provides a clear answer to that question: Because Aereo does not select the programs viewed by its users, it does not perform. But it is impossible to say how the issue will come out under the Court’s analysis, since cable companies did not offer remote recording and play- back services when Congress amended the Copyright Act in 1976. 12 AMERICAN BROADCASTING COS. v. AEREO, INC. SCALIA, J., dissenting * * * I share the Court’s evident feeling that what Aereo is doing (or enabling to be done) to the s’ copyrighted programming ought not to be allowed. But perhaps we need not distort the Copyright Act to forbid it. As dis- cussed at the outset, Aereo’s secondary liability for per- formance infringement is yet to be determined, as is its primary and secondary liability for reproduction infringe- ment. If that does not suffice, then (assuming one shares the majority’s estimation of right and wrong) what we have before us must be considered a “loophole” in the law. It is not the role of this Court to identify and plug loop- holes. It |
Justice Scalia | 2,014 | 9 | dissenting | American Broadcasting Cos. v. Aereo, Inc. | https://www.courtlistener.com/opinion/2680437/american-broadcasting-cos-v-aereo-inc/ | of this Court to identify and plug loop- holes. It is the role of good lawyers to identify and exploit them, and the role of Congress to eliminate them if it wishes. Congress can do that, I may add, in a much more targeted, better informed, and less disruptive fashion than the crude “looks-like-cable-TV” solution the Court invents today. We came within one vote of declaring the VCR contra- band 30 years ago in See n. 21. The dissent in that case was driven in part by the plain- tiffs’ prediction that VCR technology would wreak all manner of havoc in the television and movie industries. See ; see also Brief for CBS, Inc., as Amicus Curiae, O. T. 1982, No. 81–1687, p. 2 (arguing that VCRs “directly threatened” the bottom line of “[e]very broadcaster”). The s make similarly dire predictions about Aereo. We are told that nothing less than “the very exist- ence of broadcast television as we know it” is at stake. Brief for Petitioners 39. Aereo and its amici dispute those forecasts and make a few of their own, suggesting that a decision in the s’ favor will stifle technological innovation and imperil billions of dollars of investments in cloud-storage services. See Brief for Respondents 48–51; Brief for BSA, The Software Alliance as Amicus Curiae 5– Cite as: 573 U. S. (2014) 13 SCALIA, J., dissenting 13. We are in no position to judge the validity of those self-interested claims or to foresee the path of future technological development. See at 430–431; see also (BREYER, J., concur- ring). Hence, the proper course is not to bend and twist the Act’s terms in an effort to produce a just outcome, but to apply the law as it stands and leave to Congress the task of deciding whether the Copyright Act needs an upgrade. I conclude, as the Court concluded in : “It may well be that Congress will take a fresh look at this new technology, just as it so often has examined other innovations in the past. But it is not our job to apply laws that have not yet been written. Applying the copyright statute, as it now reads, to the facts as they have been developed in this case, the judgment of the Court of Ap- peals must be [affirmed].” I respectfully dissent |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | In this protracted school desegregation litigation, the District Court awarded the plaintiff-petitioners expenses and attorneys' fees for services rendered from March 10, to January 29, 53 F R D 28 The United Court of Appeals for the Fourth Circuit, one judge dissenting, reversed We granted certiorari, to determine whether the allowance of attorneys' fees *699 was proper Pertinent to the resolution of the issue is the enactment in of 718 of Title VII, the Emergency School Aid Act, 20 US C 1617 ( ed, Supp II), as part of the Amendments of Stat 235, 369 I The suit was instituted in 1961 by 11 Negro parents and guardians against the School Board of the city of Richmond, Virginia, as a class action under the Civil Rights Act of 1871, 42 US C 1983, to desegregate the public schools On March 16, 1964, after extended consideration,[1] the District Court approved a "freedom of choice" plan by which every pupil was permitted to attend the school of the pupil's or the parents' choice, limited only by a time requirement for the transfer application and by lack of capacity at the school to which transfer was sought On appeal, the Fourth Circuit, sitting *700 en banc, affirmed, with two judges dissenting in part, and held that the plan satisfied the Board's constitutional obligations The court saw no error in the trial court's refusal to allow the plaintiffs' attorneys more than a nominal fee ($75) The dissenters referred to the fee as "egregiously inadequate" On petition for a writ of certiorari, this Court, per curiam, summarily held that the petitioners improperly had been denied a full evidentiary hearing on their claim that a racially based faculty allocation system rendered the plan constitutionally inadequate under In vacating the judgment of the Court of Appeals and in remanding the case, we expressly declined to pass on the merits of the desegregation plan and noted that further judicial review following the hearing was not After the required hearing, the District Court, on March 30, approved a revised "freedom of choice" plan[2] submitted by the Board and agreed to by the petitioners *701 App 17a It provided that if the steps taken by the Board "do not produce significant results during the -67 school year, it is recognized that the freedom of choice plan will have to be modified" at 23a This plan was in operation about four years While it was in effect, was decided The Court there held that where methods promising speedier and more effective conversion to a unitary system were reasonably available, a freedom-of-choice |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | conversion to a unitary system were reasonably available, a freedom-of-choice plan was not acceptable Thereafter, on March 10, petitioners filed with the District Court a motion for further relief in the light of the opinions of this Court in in and in Specifically, petitioners asked that the court "require the defendant school board forthwith to put into effect" a plan that would "promptly and realistically convert the public schools of the City of Richmond into a unitary non-racial system," and that the court "award a reasonable fee to [petitioners'] counsel" App 25a The court then ordered the Board to advise the court whether the public schools were being operated "in accordance with the constitutional requirements enunciated by the United Supreme Court" at 27a The Board, by a statement promptly filed with the District Court, averred that it had operated the school system to the best of its knowledge and belief in accordance with the decree *702 of March 30, but that it has "been advised" that the city schools were "not being operated as unitary schools in accordance with the most recent enunciations of the Supreme Court" at 28a It was also asserted that the Board had requested the Department of Health, and Welfare to make a study and recommendation; that the Department had agreed to undertake to do this by May 1; and that the Board would submit a plan for the operation of the public school system not later than May 11 Following a hearing, however, the District Court, on April 1, entered a formal order vacating its order of March 30, and enjoining the defendants "to disestablish the existing dual system" and to replace it "with a unitary system" See Thereafter, the Board and several intervenors filed desegregation plans The initial plan offered by the Board and HEW was held unacceptable by the District Court on June 26, The court was concerned (a) with the fact that the Board had taken no voluntary action to change its freedom-of-choice plan after this Court's decision in two years before, (b) with the plan's failure to consider patterns of residential segregation in fixing school zone lines or to use transportation as a desegregation tool, despite the decision in aff'd as modified, and with its failure to consider racial factors in zoning, despite the approval thereof in -578 The District Court also rejected desegregation plans offered by intervenors and by the petitioners[3] *703 A second plan submitted by the Board was also deemed to be unsatisfactory in certain respects Nonetheless, on August 17 the court found its adoption on an interim |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | August 17 the court found its adoption on an interim basis for - to be necessary, since the school year was to begin in two weeks[4] at 578 The court directed the defendants to file within 90 days a report setting out the steps taken "to create a unitary system and the earliest practical and reasonable date that any such system could be put into effect" The Board then submitted three other desegregation plans Hearings were held on these and on still another plan submitted by the petitioners[5] On April 5, *704 the court adopted the Board's third plan, which involved pupil reassignments and extensive transportation within the city 325 F Supp 828 [6] Meanwhile, the Board had moved for leave to make the school boards and governing bodies of adjoining Chesterfield *705 and Henrico Counties, as well as the Virginia State Board of parties to the litigation, and to serve upon these entities a third-party complaint to compel them to take all necessary action to bring about the consolidation of the systems and the merger of the boards The court denied the defense motion for the convening of a three-judge court 324 F Supp 396 On January 10, the court ordered into effect a plan for the integration of the Richmond schools with those of Henrico and Chesterfield Counties 338 F Supp 67 On appeal, the Fourth Circuit, sitting en banc, reversed, with one judge dissenting, holding that state-imposed segregation had been "completely removed" in the Richmond school district and that the consolidation was not justified in the absence of a showing of some constitutional violation in the establishment and maintenance of these adjoining and separate school districts 462 F2d 1058, We granted cross-petitions for writs of certiorari 409 US 1124 After argument, the Court of Appeals' judgment was affirmed by an equally divided Court Richmond School Board v Board of 412 US 92 II The petitioners' request for a significant award of attorneys' fees was included, as has been noted, in their pivotal motion of March 10, App 25a That application was renewed on July 2 at 66a The District Court first suggested, by letter to the parties, that they attempt to reach agreement as to fees When agreement was not reached, the court called for supporting material and briefs[7] In due course the court awarded counsel fees in the amount of $43,355 for services rendered *706 from March 10, to January 29, and expenses of $13,06465 53 F R D 28, 43-44 Noting the absence at that time of any explicit statutory authorization for an award of |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | time of any explicit statutory authorization for an award of fees in school desegregation actions, the court based the award on two alternative grounds rooted in its general equity power[8] First, the court that prior desegregation decisions demonstrated the propriety of awarding counsel fees when the evidence revealed obstinate noncompliance with the law or the use of the judicial process for purposes of harassment or delay in affording rights clearly owed[9] Applying the test enunciated by the Fourth Circuit *707 in 345 F2d, the court sought to determine whether "the bringing of the action should have been unnecessary and was compelled by the school board's unreasonable, obdurate obstinacy" Examining the history of the litigation, the court found that at least since 1968 the Board clearly had been in default in its constitutional duty as enunciated in While reluctant to characterize the litigation engendered by that default as unnecessary in view of the ongoing development of relevant legal standards, the court that the actions taken and the defenses asserted by the Board had caused an unreasonable delay in the desegregation of the schools and, as a result, had caused the plaintiffs to incur substantial expenditures of time and money to secure their constitutional rights[10] *708 As an alternative basis for the award, the District Court that the circumstances that persuaded Congress to authorize by statute the payment of counsel fees under certain sections of the Civil Rights Act of 1964[11] were present in even greater degree in school desegregation litigation In -, cases of this kind were characterized by complex issues pressed on behalf of large classes and thus involved substantial expenditures of lawyers' time with little likelihood of compensation or award of monetary damages If forced to bear the burden of attorneys' fees, few aggrieved persons would be in a position to secure their and the public's interests in a nondiscriminatory public school system Reasoning from this Court's per curiam decision in Newman v Piggie Park Enterprises, Inc, 390 US 400, the District Judge held that plaintiffs in actions of this kind were acting as private attorneys general in leading school boards into compliance with the law, thereby effectuating the constitutional guarantee of nondiscrimination and rendering appropriate the award of counsel fees 53 F R D, at 41-42 The Court of Appeals, in reversing, emphasized that the Board was not operating "in an area where the practical methods to be used were plainly illuminated or where prior decisions had not left a `lingering doubt' as to the proper procedure to be followed," particularly in the light of uncertainties existing prior |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | be followed," particularly in the light of uncertainties existing prior to this Court's then impending decision in Swann v Charlotte-Mecklenburg *709 Board of 472 F2d, at 327 It felt that by the failure of Congress to provide specifically for counsel fees "in a statutory scheme designed to further a public purpose, it may be fairly accepted that it did so purposefully," and that "if such awards are to be made to promote the public policy expressed in legislative action, they should be authorized by Congress and not by the courts" After initial submission of the case to the Court of Appeals, but prior to its decision, the Amendments of of which 718 of Title VII of the Emergency School Aid Act is a part, became law Section 718, 20 US C 1617 ( ed, Supp II), grants authority to a federal court to award a reasonable attorney's fee when appropriate in a school desegregation case[12] The Court of Appeals, sitting en banc, then heard argument as to the applicability of 718 to this and other litigation[13] In the other cases it held that only legal services rendered after July 1, the effective date of 718, see Pub L 92-318, 2 (1), 86 Stat 236, were compensable under that statute Thompson v School Board *710 of the City of Newport News, 472 F2d 177 In the instant case the court held that, because there were no orders pending or appealable on either May 26, when the District Court made its fee award, or on July 1, when the statute became effective, 718 did not sustain the allowance of counsel fees III In Northcross v Board of of the Memphis City Schools, 412 US 427, we held that under 718 "the successful plaintiff `should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust' " We decide today a question left open in Northcross, namely, "whether 718 authorizes an award of attorneys' fees insofar as those expenses were incurred prior to the date that that section came into effect" at 429 n 2 The District Court in this case awarded counsel fees for services rendered from March 10, when petitioners filed their motion for further relief, to January 29, when the court declined to implement the plan proposed by the petitioners It made its award on May 26, after it had ordered into effect the non-interim desegregation plan which it had approved The Board appealed from that award, and its appeal was pending when Congress enacted 718 The question, properly viewed, then, is not simply one relating to |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | question, properly viewed, then, is not simply one relating to the propriety of retroactive application of 718 to services rendered prior to its enactment, but rather, one relating to the applicability of that section to a situation where the propriety of a fee award was pending resolution on appeal when the statute became law This Court in the past has recognized a distinction between the application of a change in the law that takes place while a case is on direct review, on the one hand, *711 and its effect on a final judgment[14] under collateral attack,[15] on the other hand Linkletter v Walker, 381 US 618, We are concerned here only with direct review A We anchor our holding in this case on the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary The origin and the justification for this rule are found in the words of Mr Chief Justice Marshall in United v Schooner Peggy, : "It is in the general true that the province of an appellate court is only to enquire whether a judgment *712 when rendered was erroneous or not But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied If the law be constitutional I know of no court which can contest its obligation It is true that in mere private cases between individuals, a court will and ought to struggle hard against a construction which will, by a retrospective operation, affect the rights of parties, but in great national concerns the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside" [16] In the wake of Schooner Peggy, however, it remained unclear whether a change in the law occurring while a case was pending on appeal was to be given effect only where, by its terms, the law was to apply to pending cases, as was true of the convention under consideration in Schooner Peggy, or, conversely, whether such a change *713 in the law must be given effect unless there was clear indication that it was not to apply in pending cases For a very long time the Court's decisions did little to clarify this |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | long time the Court's decisions did little to clarify this issue[17] *714 Ultimately, in Thorpe v Housing Authority of the City of Durham, 393 US 268 the broader reading of Schooner Peggy was adopted, and this Court ruled that "an appellate court must apply the law in effect at the time it renders its decision" In that case, after the plaintiff Housing Authority had secured a state court eviction order, and it had been affirmed by the Supreme Court of North Carolina, Housing Authority of the City of Durham v Thorpe, 267 N C 431, 148 SE2d 290 and this Court had granted certiorari, 385 US 967 the Department of Housing and Urban Development ordered a new procedural prerequisite for an eviction Following remand by this Court for such further proceedings as might be appropriate in the light of the new directive, 386 US 670 the state court adhered to its decision 271 N C 468, 157 SE2d 147 [18] This Court again granted certiorari 390 US 942 Upon review, we held that, although the circular effecting the change did not indicate whether it *715 was to be applied to pending cases or to events that had transpired prior to its issuance,[19] it was, nonetheless, to be applied to anyone residing in the housing project on the date of its promulgation The Court recited the language in Schooner Peggy, quoted above, and noted that that reasoning "has been applied where the change was constitutional, statutory, or judicial," 393 US, at 282 and that it must apply "with equal force where the change is made by an administrative agency acting pursuant to legislative authorization" Thorpe thus stands for the proposition that even where the intervening law does not explicitly recite that it is to be applied to pending cases, it is to be given recognition and effect Accordingly, we must reject the contention that a change in the law is to be given effect in a pending case only where that is the clear and stated intention of the legislature[20] While neither our decision in Thorpe nor our decision today purports to hold that courts must always thus apply new laws to pending cases in the absence of clear legislative direction to the contrary,[21] we *716 do note that insofar as the legislative history of 718 is supportive of either position,[22] it would seem to provide at least implicit support for the application of the statute to pending cases[23] B The Court in Thorpe, however, that exceptions to the general rule that a court is to apply a law in effect |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | that a court is to apply a law in effect at the time it renders its decision "had been made to prevent manifest injustice," citing e v United *717 376 US 149 [24] Although the precise category of cases to which this exception applies has not been clearly delineated, the Court in Schooner Peggy suggested that such injustice could result "in mere private cases between individuals," and implored the courts to "struggle hard against a construction which will, by a retrospective operation, affect the rights of parties" 1 Cranch, We perceive no such threat of manifest injustice present in this case We decline, accordingly, to categorize it as an exception to Thorpe's general rule The concerns expressed by the Court in Schooner Peggy and in Thorpe relative to the possible working of an injustice center upon (a) the nature and identity of the parties, (b) the nature of their rights, and the nature of the impact of the change in law upon those rights *718 In this case the parties consist, on the one hand, of the School Board, a publicly funded governmental entity, and, on the other, a class of children whose constitutional right to a nondiscriminatory education has been advanced by this litigation The District Court rather vividly described what it regarded as the disparity in the respective abilities of the parties adequately to present and protect their interests[25] Moreover, school desegregation litigation is of a kind different from "mere private cases between individuals" With the Board responsible for the education of the very students who brought suit against it to require that such education comport with constitutional standards, it is not appropriate to view the parties as engaged in a routine private lawsuit In this litigation the plaintiffs may be recognized as having rendered substantial service both to the Board itself, by bringing it into compliance with its constitutional mandate, and to the community at large by securing for it the benefits assumed to flow from a nondiscriminatory educational system[26], 347 U S, at 494 *719 In Northcross we construed, as in pari passu, 718 and 204 (b) of the Civil Rights Act of 1964, 42 US C 2000a-3 (b), providing for an award of counsel fees to a successful plaintiff under the public accommodation subchapter of that Act Our discussion of the latter provision in Piggie Park is particularly apt in the context of school desegregation litigation: "When the Civil Rights Act of 1964 was passed, it was evident that enforcement would prove difficult and that the Nation would have to rely in part upon private |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | the Nation would have to rely in part upon private litigation as a means of securing broad compliance with the law A Title II suit is thus private in form only When a plaintiff brings an action under that Title, he cannot recover damages If he obtains an injunction, he does so not for himself alone but also as a `private attorney general,' vindicating a policy that Congress considered of the highest priority If successful plaintiffs were routinely forced to bear their own attorneys' fees, few aggrieved parties would be in a position to advance the public interest by invoking the injunctive powers of the federal courts" 390 US, at 401- Application of 718 to such litigation would thus appear to have been anticipated by Mr Chief Justice Marshall in Schooner Peggy when he noted that in "great national concerns the court must decide according to existing laws" 1 Cranch, Indeed, the circumstances surrounding the passage of 718, and the numerous expressions of congressional concern and intent with respect to the enactment of that statute, all proclaim its status as having to do with a "great national concern"[27] *720 The second aspect of the Court's concern that injustice may arise from retrospective application of a change in law relates to the nature of the rights effected by the change The Court has refused to apply an intervening change to a pending action where it has concluded that to do so would infringe upon or deprive a person of a right that had matured or become unconditional See e v United 376 U S, at 160; Claridge Apartments Co v Commissioner, 323 US 141, ; Union Pacific R Co v Laramie Stock Yards Co, 231 US 190, We find here no such matured or unconditional right affected by the application of 718 It cannot be claimed that the publicly elected School Board had such a right in the funds allocated to it by the taxpayers These funds were essentially held in trust for the public, and at all times the Board was subject to such conditions or instructions on the use of the funds as the public wished to make through its duly elected representatives The third concern has to do with the nature of the impact of the change in law upon existing rights, or, to state it another way, stems from the possibility that new and unanticipated obligations may be imposed upon a party without notice or an opportunity to be heard In Thorpe, we were careful to note that by the circular the "respective obligations of both HUD |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | that by the circular the "respective obligations of both HUD and the Authority under the annual contributions contract remain unchanged Likewise, the lease agreement between *721 the Authority and petitioner remains inviolate" 393 US, at 279 Here no increased burden was imposed since 718 did not alter the Board's constitutional responsibility for providing pupils with a nondiscriminatory education Also, there was no change in the substantive obligation of the parties From the outset, upon the filing of the original complaint in 1961, the Board engaged in a conscious course of conduct with the knowledge that, under different theories, discussed by the District Court and the Court of Appeals, the Board could have been required to pay attorneys' fees Even assuming a degree of uncertainty in the law at that time regarding the Board's constitutional obligations, there is no indication that the obligation under 718, if known, rather than simply the common-law availability of an award, would have caused the Board to order its conduct so as to render this litigation unnecessary and thereby preclude the incurring of such costs The availability of 718 to sustain the award of fees against the Board therefore merely serves to create an additional basis or source for the Board's potential obligation to pay attorneys' fees It does not impose an additional or unforeseeable obligation upon it Accordingly, upon considering the parties, the nature of the rights, and the impact of 718 upon those rights, it cannot be said that the application of the statute to an award of fees for services rendered prior to its effective date, in an action pending on that date, would cause "manifest injustice," as that term is used in Thorpe, so as to compel an exception of the case from the rule of Schooner Peggy C Finally, we disagree with the Court of Appeals' conclusion that 718 by its very terms is inapplicable to the petitioners' request for fees "because there was no *722 `final order' pending unresolved on appeal," 472 F2d, at 331, when 718 became effective, or on May 26, when the District Court made its award It is true that when the District Court entered its order, it was at least arguable that the petitioners had not yet become "the prevailing party," within the meaning of 718 The application for fees had been included in their March 10, motion for further relief in the light of developments indicated by the decision two years before in The Board's first plan was disapproved by the District Court on June 26 Its second plan was also disapproved but was |
Justice Blackmun | 1,974 | 11 | majority | Bradley v. School Bd. of Richmond | https://www.courtlistener.com/opinion/109027/bradley-v-school-bd-of-richmond/ | June 26 Its second plan was also disapproved but was ordered into effect on an interim basis on August 17 for the year about to begin The third plan was ultimately approved on April 5, and the order allowing fees followed shortly thereafter Surely, the language of 718 is not to be read to the effect that a fee award must be made simultaneously with the entry of a desegregation order The statute, instead, expectedly makes the existence of a final order a prerequisite to the award The unmanageability of a requirement of simultaneity is apparent when one considers the typical course of litigation in a school desegregation action The history of this litigation from to is illustrative The order of June 20, suspending school construction, the order of August 17 of that year placing an interim plan in operation, and the order of April 5, ordering the third plan into effect, all had become final when the fee award was made on May 26, [28] Since most school cases can be expected *723 to involve relief of an injunctive nature that must prove its efficacy only over a period of time and often with frequent modifications, many final orders may issue in the course of the litigation To delay a fee award until the entire litigation is concluded would work substantial hardship on plaintiffs and their counsel, and discourage the institution of actions despite the clear congressional intent to the contrary evidenced by the passage of 718 A district court must have discretion to award fees and costs incident to the final disposition of interim matters See 6 J Moore, Federal Practice ¶ 5470 (5) (1974 ed) Further, the resolution of the fee issue may be a matter of some complexity and require, as here, the taking of evidence and briefing It would therefore be undesirable to delay the implementation of a desegregation plan in order to resolve the question of fees simultaneously The District Court properly chose not to address itself to the question of the award until after it had approved the noninterim plan for achievement of the unitary school system in Richmond on April 5, We are in agreement, however, with the dissenting judge of the Court of Appeals when he 472 F2d, at 337, that the award made by the District Court for services from March 10, to January 29, *724 did not precisely fit 718's requirement that the beneficiary of the fee order be "the prevailing party" In January the petitioners had not yet "prevailed" and realistically did not do so until April 5 |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | The question to be decided in this case is whether federal labor policy pre-empts the authority of a state labor relations board to grant an employer covered by the National Labor Relations Act an order enjoining a union and its members from continuing to refuse to work overtime pursuant to a union policy to put economic pressure on the employer in negotiations for renewal of an expired collective-bargaining agreement. A collective-bargaining agreement between petitioner Lodge 76 (Union) and respondent Kearney & Trecker *134 Corp. (employer) was terminated by the employer pursuant to the terms of the agreement on June 19, 1971. Good-faith bargaining over the terms of a renewal agreement continued for over a year thereafter, finally resulting in the signing of a new agreement effective July 23, 1972. A particularly controverted issue during negotiations was the employer's demand that the provision of the expired agreement under which, as for the prior 17 years, the basic workday was seven and one-half hours, Monday through Friday, and the basic workweek was 37 1/2 hours, be replaced with a new provision providing a basic workday of eight hours and a basic workweek of 40 hours, and that the terms on which overtime rates of pay were payable be changed accordingly. A few days after the old agreement was terminated the employer unilaterally began to make changes in some conditions of employment provided in the expired contract, e. g., eliminating the checkoff of Union dues, eliminating the Union's office in the plant, and eliminating Union lost time. No immediate change was made in the basic workweek or workday, but in March 1972, the employer announced that it would unilaterally implement, as of March 13, 1972, its proposal for a 40-hour week and eight-hour day. The Union response was a membership meeting on March 7 at which strike action was authorized and a resolution was adopted binding Union members to refuse to work any overtime, defined as work in excess of seven and one-half hours in any day or 37 1/2 hours in any week. Following the strike vote, the employer offered to "defer the implementation" of its workweek proposal if the Union would agree to call off the concerted refusal to work overtime. The Union, however, refused the offer and indicated its intent to continue the concerted ban on overtime. Thereafter, the employer did not make effective the proposed changes in the workday and workweek *135 before the new agreement became effective on July 23, 1972. Although all but a very few employees complied with the Union's resolution against acceptance of overtime work |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | complied with the Union's resolution against acceptance of overtime work during the negotiations, the employer did not discipline, or attempt to discipline, any employee for refusing to work overtime. Instead, while negotiations continued, the employer filed a charge with the National Labor Relations Board that the Union's resolution violated 8 (b) (3) of the National Labor Relations Act, as amended, 29 U.S. C. 158 (b) (3). The Regional Director dismissed the charge on the ground that the "policy prohibiting overtime work by its member employees does not appear to be in violation of the Act" and therefore was not conduct cognizable by the Board under However, the employer also filed a complaint before the Wisconsin Employment Relations Commission charging that the refusal to work overtime constituted an unfair labor practice under state law. The Union filed a motion before the Commission to dismiss the complaint for want of "jurisdiction over the subject matter" in that jurisdiction over "the activity of the [Union] complained of [is] pre-empted by" the National Labor Relations Act. App. 11. The motion was denied and the Commission adopted the Conclusion of Law of its Examiner that "the concerted refusal to work overtime, is not an activity which is arguably protected under Section 7 or arguably prohibited under Section 8 of the National Labor Relations Act, as amended, and therefore, the Commission is not pre-empted from asserting its jurisdiction to regulate said conduct." The Commission also adopted the further Conclusion of Law that the Union "by authorizing the concerted refusal to work overtime engaged in a concerted effort to interfere with production and committed an unfair labor practice within the meaning *136 of Section 111.06 (2) (h)."[1] The Commission thereupon entered an order that the Union, inter alia, "[i]mmediately cease and desist from authorizing, encouraging or condoning any concerted refusal to accept overtime assignments" The Wisconsin Circuit Court affirmed and entered judgment enforcing the Commission's order. The Wisconsin Supreme Court affirmed the Circuit Court. We granted certiorari, We reverse. I "The national Act leaves much to the states, though Congress has refrained from telling us how much. We must spell out from conflicting indications of congressional will the area in which state action is still permissible." Federal labor policy as reflected in the National Labor Relations Act, as amended, has been construed not to preclude the States from regulating aspects of labor relations that involve "conduct touch[ing] interests so deeply rooted in local feeling and responsibility that we could not infer that Congress had deprived the States of the power to act." San Diego Policing of actual |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | of the power to act." San Diego Policing of actual or threatened violence to persons or destruction of property has been held most clearly a matter for the States.[2]*137 Similarly, the federal law governing labor relations does not withdraw "from the States power to regulate where the activity regulated [is] a merely peripheral concern of the Labor Management Relations Act."[3] *138 Cases that have held state authority to be pre-empted by federal law tend to fall into one of two categories: (1) those that reflect the concern that "one forum would enjoin, as illegal, conduct which the other forum would find legal" and (2) those that reflect the concern "that the [application of state law by] state courts would restrict the exercise of rights guaranteed by the Federal Acts." Automobile "[I]n referring to decisions holding state laws pre-empted by the NLRA, care must be taken to distinguish based on federal protection of the conduct in question from that based predominantly on the primary jurisdiction of the National Labor Relations Board although the two are often not easily separable." Railroad Each of these distinct aspects of labor law has had its own history in our decisions, to which we now turn. We consider first based predominantly on the primary jurisdiction of the Board. This line of analysis was developed in San Diego and its history was recently summarized in Motor Coach : "[V]arying approaches were taken by the Court in initially grappling with this problem. Thus, for example, some early cases suggested the true distinction lay between judicial application of general common law, which was permissible, as opposed to state rules specifically designed to regulate *139 labor relations, which were pre-empted. See, e. g., Automobile Others made turn on whether the States purported to apply a remedy not provided for by the federal scheme, e. g., while in still others the Court undertook a thorough scrutiny of the federal Act to ascertain whether the state courts had, in fact, arrived at conclusions inconsistent with its provisions, e. g., Automobile [N]one of these approaches proved satisfactory, however, and each was ultimately abandoned. It was, in short, experience not pure logicwhich initially taught that each of these methods sacrificed important federal interests in a uniform law of labor relations centrally administered by an expert agency without yielding anything in return by way of predictability or ease of judicial application. "The failure of alternative analyses and the interplay of the foregoing policy considerations, then, led this Court to hold in 359 U. S., at : " `When it is clear or may fairly be |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | : " `When it is clear or may fairly be assumed that the activities which a State purports to regulate are protected by 7 of the National Labor Relations Act, or constitute an unfair labor practice under 8, due regard for the federal enactment requires that state jurisdiction must yield. To leave the States free to regulate conduct so plainly within the central aim of federal regulation involves too great a danger of conflict between power asserted by Congress and requirements imposed by state law.' " See also San Diego 359 U. S., at -247; *140 However, a second line of analysis has been developed in cases focusing upon the crucial inquiry whether Congress intended that the conduct involved be unregulated because left "to be controlled by the free play of economic forces."[4] Concededly this inquiry was not made in 1949 in the so-called Briggs-Stratton case, Automobile the decision of this Court heavily relied upon by the court below in reaching its decision that state regulation of the conduct at issue is not pre-empted by national labor law. In Briggs-Stratton, the union, in order to bring pressure on the employer during negotiations, *141 adopted a plan whereby union meetings were called at irregular times during working hours without advance notice to the employer or any notice as to whether or when the workers would return. In a proceeding under the Wisconsin Employment Peace Act, the Wisconsin Employment Relations Board issued an order forbidding the union and its members to engage in concerted efforts to interfere with production by those methods. This Court did not inquire whether Congress meant that such methods should be reserved to the union "to be controlled by the free play of economic forces." Rather, because these methods were "neither made a right under federal law nor a violation of it" the Court held that there "was no basis for denying to Wisconsin the power, in governing her internal affairs, to regulate" such conduct. However, the Briggs-Stratton holding that state power is not pre-empted as to peaceful conduct neither protected by 7 nor prohibited by 8 of the federal Act, a holding premised on the statement that "[t]his conduct is governable by the State or it is entirely ungoverned," was undercut by subsequent decisions of this Court. For the Court soon recognized that a particular activity might be "protected" by federal law not only when it fell within 7, but also when it was an activity that Congress intended to be "unrestricted by any governmental power to regulate" because it was among the permissible "economic weapons in |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | regulate" because it was among the permissible "economic weapons in reserve, actual exercise [of which] on occasion by the parties, is part and parcel of the system that the Wagner and Taft-Hartley Acts have recognized." 361 U. S., at -489 "[T]he legislative purpose may dictate that certain activity `neither protected nor prohibited' be deemed privileged against state regulation." Hanna Mining *142 Insurance involved a charge of a refusal by the union to bargain in good faith in violation of 8 (b) (3) of the Act. The charge was based on union activities that occurred during good-faith bargaining over the terms of a collective-bargaining agreement. During the negotiations, the union directed concerted on-the-job activities by its members of a harassing nature designed to interfere with the conduct of the employer's business, for the avowed purpose of putting economic pressure on the employer to accede to the union's bargaining demands. The harassing activities, all peaceful, by the member insurance agents included refusal for a time to solicit new business, and refusal (after the writing of new business was resumed) to comply with the employer insurance company's reporting procedures; refusal to participate in a company campaign to solicit new business; reporting late at district offices the days the agents were scheduled to attend them; refusing to perform customary duties at the office, instead engaging there in "sit-in-mornings," "doing what comes naturally," and leaving at noon as a group; absenting themselves from special business conferences arranged by the company; picketing and distributing leaflets outside the various offices of the company on specified days and hours as directed by the union; distributing leaflets each day to policyholders and others and soliciting policyholders' signatures on petitions directed to the company; and presenting the signed policyholders' petitions to the company at its home office while simultaneously engaging in mass demonstrations there. -481. We held that such tactics would not support a finding by the that the union had failed to bargain in good faith as required by 8 (b) (3) and rejected the per se rule applied by the Board that use of "economically harassing activities" alone sufficed to prove a violation *143 of that section. The Court assumed "that the activities in question here were not `protected' under 7 of the Act," n. 6, but held that the per se rule was beyond the authority of the to apply. "The scope of 8 (b) (3) and the limitations on Board power which were the design of 8 (d) are exceeded, we hold, by inferring a lack of good faith not from any deficiencies of the union's |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | of good faith not from any deficiencies of the union's performance at the bargaining table by reason of its attempted use of economic pressure, but solely and simply because tactics designed to exert economic pressure were employed during the course of the good-faith negotiations. Thus the Board in the guise of determining good or bad faith in negotiations could regulate what economic weapons a party might summon to its aid. And if the Board could regulate the choice of economic weapons that may be used as part of collective bargaining, it would be in a position to exercise considerable influence upon the substantive terms on which the parties contract. As the parties' own devices became more limited, the Government might have to enter even more directly into the negotiation of collective agreements. Our labor policy is not presently erected on a foundation of government control of the results of negotiations. See S. Rep. No. 105, 80th Cong., 1st Sess., p. 2. Nor does it contain a charter for the National Labor Relations Board to act at large in equalizing disparities of bargaining power between employer and union." We noted further that "Congress has been rather specific when it has come to outlaw particular economic weapons on the part of unions" and "the activities here involved have never been specifically outlawed by Congress." Accordingly, the Board's claim "to power * to distinguish among various economic pressure tactics and brand the ones at bar inconsistent with good-faith collective bargaining," was simply inconsistent with the design of the federal scheme in which "the use of economic pressure by the parties to a labor dispute is part and parcel of the process of collective bargaining." The Court had earlier recognized in cases that Congress meant to leave some activities unregulated and to be controlled by the free play of economic forces. in finding pre-empted state power to restrict peaceful recognitional picketing, said: "The detailed prescription of a procedure for restraint of specified types of picketing would seem to imply that other picketing is to be free of other methods and sources of restraint. For the policy of the national Labor Management Relations Act is not to condemn all picketing but only that ascertained by its prescribed processes to fall within its prohibitions. Otherwise, it is implicit in the Act that the public interest is served by freedom of labor to use the weapon of picketing. For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act prohibits." -.[5] Moreover, San Diego expressly recognized that "the Board may decide that an activity is neither protected nor prohibited, and thereby raise the *145 question whether such activity may be regulated by the States."[6] It is true, however, that many decisions fleshing out the concept of activities "protected" because Congress meant them to be "unrestricted by any governmental power to regulate," Insurance 361 U. S., at involved review of per se rules applied in the regulation of the bargaining process. E. g., ; ; ; American Ship Bldg. ; cf. ; H. K. Porter ; Florida Power & But the analysis of Garner and Insurance came full bloom in the area in Teamsters which held pre-empted the application *146 of state law to award damages for peaceful union secondary picketing. Although involved conduct neither "protected nor prohibited" by 7 or 8 of the NLRA, we recognized the necessity of an inquiry whether " `Congress occupied this field and closed it to state regulation.' " Central to 's analysis was the observation that "[i]n selecting which forms of economic pressure should be prohibited Congress struck the `balance between the uncontrolled power of management and labor to further their respective interests,' "[7] and: "This weapon of self-help, permitted by federal law, formed an integral part of the petitioner's effort to achieve its bargaining goals during negotiations with the respondent. Allowing its use is a part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community. If the Ohio law of secondary boycott can be applied to proscribe the same type of conduct which Congress focused upon but did not proscribe when it enacted 303, the inevitable result would be to frustrate the congressional determination to leave this weapon of self-help available, and to upset the balance of power between labor and management expressed in our national labor policy. `For a state to impinge on the area of labor combat designed to be free is quite as much an obstruction of federal policy as if the state were to declare picketing free for purposes or by methods which the federal Act *147 prohibits.'" Although many of our past decisions concerning conduct left by Congress to the free play of economic forces address the question in the context of union and employee activities, self-help is of course also the prerogative of the employer because he, too, may properly employ economic |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | of the employer because he, too, may properly employ economic weapons Congress meant to be unregulable. Mr. Justice Harlan concurring in H. K. Porter stated the obvious: "[T]he Act as presently drawn does not contemplate that unions will always be secure and able to achieve agreement even when their economic position is weak, or that strikes and lockouts will never result from a bargaining impasse. It cannot be said that the Act forbids an employer to rely ultimately on its economic strength to try to secure what it cannot obtain through bargaining." "[R]esort to economic weapons should more peaceful measures not avail" is the right of the employer as well as the employee, American Ship Bldg.[8] and the State may not prohibit the use of such weapons or "add to an employer's federal legal obligations in collective bargaining" any more than in the case of employees. at 1365. See, e. g., Whether self-help economic activities are employed by employer or union, the crucial inquiry regarding is the same: whether "the exercise *148 of plenary state authority to curtail or entirely prohibit self-help would frustrate effective implementation of the Act's processes." Railroad III There is simply no question that the Act's processes would be frustrated in the instant case were the State's ruling permitted to stand. The employer in this case invoked the Wisconsin law because it was unable to overcome the Union tactic with its own economic self-help means.[9] Although it did employ economic weapons putting pressure on the Union when it terminated the previous *149 agreement, it apparently lacked sufficient economic strength to secure its bargaining demands under "the balance of power between labor and management expressed in our national labor policy," Teamsters[10] But the economic weakness of the affected party cannot justify state aid contrary to federal law for, as we have developed, "the use of economic pressure by the parties to a labor dispute is not a grudging exception [under] the [federal] Act; it is part and parcel of the process of collective bargaining." Insurance 361 U. S., The state action in this case is not filling "a regulatory void which Congress plainly assumed would not exist," Hanna Mining Rather, it is clear beyond question that Wisconsin "[entered] into the substantive aspects of the bargaining process to an extent Congress has not countenanced." Our decisions hold that Congress meant that these activities, whether of employer or employees, were not to be regulable by States any more than by the for neither States nor the Board is "afforded flexibility in picking and choosing which economic devices of labor |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | flexibility in picking and choosing which economic devices of labor and management shall be branded as unlawful." Rather, both are without authority to attempt to "introduce *150 some standard of properly `balanced' bargaining power," or to define "what economic sanctions might be permitted negotiating parties in an `ideal' or `balanced' state of collective bargaining." at[11] To sanction state regulation of such economic pressure deemed by the federal Act "desirabl[y]. left for the free play of contending economic forces, is not merely [to fill] a gap [by] outlaw[ing] what federal law fails to outlaw; it is denying one party to an economic contest a weapon that Congress meant him to have available." Lesnick, Preemption Reconsidered: The Apparent Reaffirmation of 72 Colo. L. Rev. 469, 478 (1972).[12] Accordingly, such regulation by *151 the State is impermissible because it " `stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.' " IV There remains the question of the continuing vitality of Briggs-Stratton. San Diego made clear that the Briggs-Stratton approach to is "no longer of general application." See also Insurance at 493 n. 23. We hold today that the ruling of Briggs-Stratton, permitting state regulation of partial strike activities such as are involved in this case is likewise "no longer of general application."[13] *152 Briggs-Stratton assumed "management would be disabled from any kind of self-help to cope with these coercive tactics of the union" and could not "take any steps to resist or combat them without incurring the sanctions of the Act." But as Insurance held, where the union activity complained of is "protected," not because it is within 7, but only because it is an activity Congress meant to leave unregulated, "the employer could have discharged or taken other appropriate disciplinary action against the employees participating." Moreover, even were the activity presented in the instant case "protected" activity within the meaning of 7,[14] economic *153 weapons were available to counter the Union's refusal to work overtime, e. g., a lockout, American Ship Bldg. and the hiring of permanent replacements under v. Mackay Radio & Tel. See Prince Lithograph 205 N. L. R. B. 110, 115 (1973); The Right to Engage in Concerted Activities, Ind. L. J. 319, 339 (1951); Getman, The Protection of Economic Pressure by Section 7 of the National Labor Relations Act, Our decisions since Briggs-Stratton have made it abundantly clear that state attempts to influence the substantive terms of collective-bargaining agreements are as inconsistent with the federal regulatory scheme as are such attempts by the : "Since the federal law operates here, |
Justice Brennan | 1,976 | 13 | majority | MacHinists v. Wisconsin Employment Relations Comm'n | https://www.courtlistener.com/opinion/109508/machinists-v-wisconsin-employment-relations-commn/ | attempts by the : "Since the federal law operates here, in an area where its authority is paramount, to leave the parties free, the inconsistent application of state law is necessarily outside the power of the State." Teamsters And indubitably regulation, whether federal or State, of "the choice of economic weapons that may be used as part of collective bargaining [exerts] considerable influence upon the substantive terms on which the parties contract." 361 U. S., The availability or not of economic weapons that federal law leaves the parties free to use cannot "depend upon the forum in which the [opponent] presses its claims." Howard Johnson v. Hotel Employees,[15] *154 Although we are not unmindful of the demands of stare decisis and the "important policy considerations militat[ing] in favor of continuity and predictability in the law," Boys Markets, Briggs-Stratton "stands as a significant departure from our emphasis upon the congressional policy" central to the statutory scheme it has enacted, and since our later decisions make plain that Briggs-Stratton "does not further but rather frustrates realization of an important goal of our national labor policy," Boys Markets, Briggs-Stratton is expressly overruled. Its authority "has been `so restricted by our later decisions' that [it] must be regarded as having `been worn away by the erosion of time' and of contrary authority." United V This survey of the extent to which federal labor policy and the federal Act have pre-empted state regulatory authority to police the use by employees and employers of peaceful methods of putting economic pressure upon one another compels the conclusion that the judgment of the Wisconsin Supreme Court must be reversed. It is not contended, and on the record could not be contended, that the Union policy against overtime work was enforced by violence or threats of intimidation or injury to property. Workers simply left the plant at the end of their workshift and refused to volunteer for or accept overtime or Saturday work. In sustaining the order of the Wisconsin Commission, the Wisconsin Supreme Court relied on Briggs-Stratton as dispositive against the Union's claim of 2 *155 N. W. 2d, at 206. The court held further that the refusal to work overtime was neither arguably protected under 7 nor arguably prohibited under 8 of the federal Act, 2 N.W.2d, at 208, an analysis which, as developed, is largely inapplicable to the circumstances of this case. was distinguished on the ground that that case dealt only with power "to regulate strike tactics" and left such "regulation to the states." 2 N. W. 2d, at 207. Finally, the court rejected the |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | The question presented in this case is whether and to what extent a State's interest in the confidentiality of its investigative *43 files concerning child abuse must yield to a criminal defendant's Sixth and Fourteenth Amendment right to discover favorable evidence. I As part of its efforts to combat child abuse, the Commonwealth of Pennsylvania has established Children and Youth Services (CYS), a protective service agency charged with investigating cases of suspected mistreatment and neglect. In 1979, respondent George Ritchie was charged with rape, involuntary deviate sexual intercourse, incest, and corruption of a minor. The victim of the alleged attacks was his 13-year-old daughter, who claimed that she had been assaulted by Ritchie two or three times per week during the previous four years. The girl reported the incidents to the police, and the matter then was referred to the CYS. During pretrial discovery, Ritchie served CYS with a subpoena, seeking access to the records concerning the daughter. Ritchie requested disclosure of the file related to the immediate charges, as well as certain records that he claimed were compiled in 1978, when CYS investigated a separate report by an unidentified source that Ritchie's children were being abused.[1] CYS refused to comply with the subpoena, claiming that the records were privileged under Pennsylvania law. The relevant statute provides that all reports and other information obtained in the course of a CYS investigation must be kept confidential, subject to 11 specific exceptions.[2] One of those exceptions is that the agency may *44 disclose the reports to a "court of competent jurisdiction pursuant to a court order." Pa. Stat. Ann., Tit. 11, 2215(a)(5) Ritchie moved to have CYS sanctioned for failing to honor the subpoena, and the trial court held a hearing on the motion in chambers. Ritchie argued that he was entitled to the information because the file might contain the names of favorable witnesses, as well as other, unspecified exculpatory evidence. He also requested disclosure of a medical report that he believed was compiled during the 1978 CYS investigation. Although the trial judge acknowledged that he had not examined the entire CYS file, he accepted a CYS representative's assertion that there was no medical report in the record.[3] The judge then denied the motion and refused to order CYS to disclose the files.[4] See App. 72a. At trial, the main witness against Ritchie was his daughter. In an attempt to rebut her testimony, defense counsel *45 cross-examined the girl at length, questioning her on all aspects of the alleged attacks and her reasons for not reporting the incidents sooner. Except for |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | her reasons for not reporting the incidents sooner. Except for routine evidentiary rulings, the trial judge placed no limitation on the scope of cross-examination. At the close of trial Ritchie was convicted by a jury on all counts, and the judge sentenced him to 3 to 10 years in prison. On appeal to the Pennsylvania Superior Court, Ritchie claimed, inter alia, that the failure to disclose the contents of the CYS file violated the Confrontation Clause of the Sixth Amendment, as applied to the States through the Due Process Clause of the Fourteenth Amendment.[5] The court agreed that there had been a constitutional violation, and accordingly vacated the conviction and remanded for further proceedings. The Superior Court ruled, however, that the right of confrontation did not entitle Ritchie to the full disclosure that he sought. It held that on remand, the trial judge first was to examine the confidential material in camera, and release only the verbatim statements made by the daughter to the CYS counselor. But the full record then was to be made available to Ritchie's lawyer, for the limited purpose of allowing him to argue the relevance of the statements. The court stated that the prosecutor also should be allowed to argue that the failure to disclose the statements was harmless error. If the trial judge determined that the lack of information was prejudicial, *46 Ritchie would be entitled to a new trial. On appeal by the Commonwealth, the Supreme Court of Pennsylvania agreed that the conviction must be vacated and the case remanded to determine if a new trial is necessary. But the court did not agree that the search for material evidence must be limited to the daughter's verbatim statements. Rather, it concluded that Ritchie, through his lawyer, is entitled to review the entire file to search for any useful evidence.[6] It stated: "When materials gathered become an arrow of inculpation, the person inculpated has a fundamental constitutional right to examine the provenance of the arrow and he who aims it." The Pennsylvania Court concluded that by denying access to the file, the trial court order had violated both the Confrontation Clause and the Compulsory Process Clause. The court was unpersuaded by the Commonwealth's argument that the trial judge already had examined the file and determined that it contained no relevant information. It ruled that the constitutional infirmity in the trial court's order was that Ritchie was unlawfully denied the opportunity to have the records reviewed by "the eyes and the perspective of an advocate," who may see relevance in places that a neutral judge |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | who may see relevance in places that a neutral judge would not. In light of the substantial and conflicting interests held by the Commonwealth and Ritchie, we granted certiorari. We now affirm in part, reverse in part, and remand for proceedings not inconsistent with this opinion. *47 II Before turning to the constitutional questions, we first must address Ritchie's claim that the Court lacks jurisdiction, because the decision below is not a "final judgment or decree." See 28 U.S. C. 1257(3); Market Street R. Normally the finality doctrine contained in 1257(3) is not satisfied if the state courts still must conduct further substantive proceedings before the rights of the parties as to the federal issues are resolved. ; Radio Station WOW, Ritchie argues that under this standard the case is not final, because there are several more proceedings scheduled in the Pennsylvania courts: at a minimum there will be an in camera review of the file, and the parties will present arguments on whether the lack of disclosure was prejudicial; after that, there could be a new trial on the merits. Ritchie claims that because the Sixth Amendment issue may become moot at either of these stages, we should decline review until these further proceedings are completed. Although it is true that this Court is without jurisdiction to review an interlocutory judgment, it also is true that the principles of finality have not been construed rigidly. As we recognized in Cox Broadcasting there are at least four categories of cases in which jurisdiction is proper even when there are further proceedings anticipated in the state court. One of these exceptions states that the Court may consider cases: "[W]here the federal claim has been finally decided, with further proceedings on the merits in the state courts to come, but in which later review of the federal issue cannot be had, whatever the ultimate outcome of the case. [I]n these cases, if the party seeking interim review ultimately prevails on the merits, the federal issue will be mooted; if he were to lose on the merits, however, the *48 governing state law would not permit him again to present his federal claims for review." We find that the case before us satisfies this standard because the Sixth Amendment issue will not survive for this Court to review, regardless of the outcome of the proceedings on remand. If the trial court decides that the CYS files do not contain relevant information, or that the nondisclosure was harmless, the Commonwealth will have prevailed and will have no basis to seek review. In this situation |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | will have no basis to seek review. In this situation Ritchie's conviction will be reinstated, and the issue of whether defense counsel should have been given access will be moot. Should Ritchie appeal the trial court's decision, the Commonwealth's only method for preserving the constitutional issue would be by cross-claims. Thus the only way that this Court will be able to reach the Sixth Amendment issue is if Ritchie eventually files a petition for certiorari on the trial court's adverse ruling, and the Commonwealth files a cross-petition. When a case is in this procedural posture, we have considered it sufficiently final to justify review. See, e. g., New ; South Alternatively, if Ritchie is found to have been prejudiced by the withholding and is granted a new trial, the Commonwealth still will be unable to obtain a ruling from this Court. On retrial Ritchie either will be convicted, in which case the Commonwealth's ability to obtain review again will rest on Ritchie's willingness to appeal; or he will be acquitted, in which case the Commonwealth will be barred from seeking review by the Double Jeopardy Clause. See ibid.; ). Therefore, if this Court does not consider the constitutional claims now, there may well be no opportunity to do so in the future.[7] *49 The Sixth Amendment issue has been finally decided by the highest court of Pennsylvania, and unless we review that decision, the harm that the Commonwealth seeks to avoid the disclosure of the entire confidential file will occur regardless of the result on remand. We thus cannot agree with the suggestion in JUSTICE STEVENS' dissent that if we were to dismiss this case and it was resolved on other grounds after disclosure of the file, "the Commonwealth would not have been harmed." Post, at 74. This hardly could be true, because of the acknowledged public interest in ensuring the confidentiality of CYS records. See n. 17, infra. Although this consideration is not dispositive, we have noted that "statutorily created finality requirements * should, if possible, be construed so as not to cause crucial collateral claims to be lost and potentially irreparable injuries to be suffered." We therefore reject Ritchie's claim that the Court lacks jurisdiction, and turn to the merits of the case before us.[8] *51 III The Pennsylvania Supreme Court held that Ritchie, through his lawyer, has the right to examine the full contents of the CYS records. The court found that this right of access is required by both the Confrontation Clause and the Compulsory Process Clause. We discuss these constitutional provisions in turn. |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | Compulsory Process Clause. We discuss these constitutional provisions in turn. A The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination. Ritchie does not allege a violation of the former right. He was not excluded from any part of the trial, nor did the prosecutor improperly introduce out-of-court statements as substantive evidence, thereby depriving Ritchie of the right to "confront" the declarant. See Cf. United Instead, Ritchie claims that by denying him access to the information necessary to prepare his defense, the trial court interfered with his right of cross-examination. Ritchie argues that he could not effectively question his daughter because, without the CYS material, he did not know which types of questions would best expose the weaknesses in her testimony. Had the files been disclosed, Ritchie argues that he might have been able to show that the daughter made statements to the CYS counselor that were inconsistent with her trial statements, or perhaps to reveal that the girl acted with an improper motive. Of course, the right to cross-examine includes the opportunity to show that a witness is biased, or that the testimony is exaggerated or *52 unbelievable. United ; Because this type of evidence can make the difference between conviction and acquittal, see Ritchie argues that the failure to disclose information that might have made cross-examination more effective undermines the Confrontation Clause's purpose of increasing the accuracy of the truth-finding process at trial. See United The Pennsylvania Supreme Court accepted this argument, relying in part on our decision in In Davis the trial judge prohibited defense counsel from questioning a witness about the latter's juvenile criminal record, because a state statute made this information presumptively confidential. We found that this restriction on cross-examination violated the Confrontation Clause, despite 's legitimate interest in protecting the identity of juvenile offenders. -320. The Pennsylvania Supreme Court apparently interpreted our decision in Davis to mean that a statutory privilege cannot be maintained when a defendant asserts a need, prior to trial, for the protected information that might be used at trial to impeach or otherwise undermine a witness' testimony. See 9 Pa., at 365-, 2 A. 2d, at 152-153. If we were to accept this broad interpretation of Davis, the effect would be to transform the Confrontation Clause into a constitutionally compelled rule of pretrial discovery. Nothing in the case law supports such a view. The opinions of this Court show that the right to confrontation is a trial right, designed to prevent improper |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | to confrontation is a trial right, designed to prevent improper restrictions on the types of questions that defense counsel may ask during cross-examination. See ; The ability to question adverse witnesses, however, does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.[9] Normally the right to confront one's accusers is satisfied if defense counsel receives wide latitude at trial to question witnesses. In short, the Confrontation Clause only guarantees "an opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish." See also We reaffirmed this interpretation of the Confrontation Clause last Term in In that case, the defendant was convicted in part on the testimony of the State's expert witness, who could not remember which scientific test he had used to form his opinion. Although this inability to recall frustrated defense counsel's efforts to discredit the testimony, we held that there had been no Sixth Amendment violation. The Court found that the right of confrontation was not implicated, "for the trial court did not limit the scope or nature of defense counsel's cross-examination in any way." was in full accord with our earlier decisions that have upheld a Confrontation Clause infringement claim on this issue only *54 when there was a specific statutory or court-imposed restriction at trial on the scope of questioning.[10] The lower court's reliance on therefore is misplaced. There the state court had prohibited defense counsel from questioning the witness about his criminal record, even though that evidence might have affected the witness' credibility. The constitutional error in that case was not that made this information confidential; it was that the defendant was denied the right "to expose to the jury the facts from which jurors could appropriately draw inferences relating to the reliability of the witness." Similarly, in this case the Confrontation Clause was not violated by the withholding of the CYS file; it only would have been impermissible for the judge to have prevented Ritchie's lawyer from cross-examining the daughter. Because defense counsel was able to cross-examine all of the trial witnesses fully, we find that the Pennsylvania Supreme Court erred in holding that the failure to disclose the CYS file violated the Confrontation Clause. *55 B The Pennsylvania Supreme Court also suggested that the failure to disclose the CYS file violated the Sixth Amendment's guarantee of compulsory process. Ritchie asserts that the trial court's ruling prevented him from learning the names of the "witnesses in his favor," as well as other |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | of the "witnesses in his favor," as well as other evidence that might be contained in the file. Although the basis for the Pennsylvania Supreme Court's ruling on this point is unclear, it apparently concluded that the right of compulsory process includes the right to have the State's assistance in uncovering arguably useful information, without regard to the existence of a state-created restriction here, the confidentiality of the files. 1 This Court has had little occasion to discuss the contours of the Compulsory Process Clause. The first and most celebrated analysis came from a Virginia federal court in 1807, during the treason and misdemeanor trials of Aaron Burr. Chief Justice Marshall, who presided as trial judge, ruled that Burr's compulsory process rights entitled him to serve a subpoena on President Jefferson, requesting the production of allegedly incriminating evidence.[11]United (No. 14,692d) (CC Va. 1807). Despite the implications of the Burr decision for federal criminal procedure, the Compulsory Process Clause rarely was a factor in this Court's decisions during the next 160 years.[12] More recently, *56 however, the Court has articulated some of the specific rights secured by this part of the Sixth Amendment. Our cases establish, at a minimum, that criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.[13] This Court has never squarely held that the Compulsory Process Clause guarantees the right to discover the identity of witnesses, or to require the government to produce exculpatory evidence. But cf. United Instead, the Court traditionally has evaluated claims such as those raised by Ritchie under the broader protections of the Due Process Clause of the Fourteenth Amendment. See United ; See also Because the applicability of the Sixth Amendment to this type of case is unsettled, and because our Fourteenth Amendment precedents addressing the fundamental fairness of trials establish a clear framework for review, we adopt a due process analysis for purposes of this case. Although we conclude that compulsory process provides no greater protections in this area than those afforded by due process, we need not decide today whether and how the guarantees of the Compulsory Process Clause differ from those of the Fourteenth Amendment. It is enough to conclude that on these facts, Ritchie's claims more properly are considered by reference to due process. *57 It is well settled that the government has the obligation to turn over evidence in its possession that is both favorable to the accused and material to guilt |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | is both favorable to the accused and material to guilt or punishment. United ; Although courts have used different terminologies to define "materiality," a majority of this Court has agreed, "[e]vidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A `reasonable probability' is a probability sufficient to undermine confidence in the outcome." United ; see At this stage, of course, it is impossible to say whether any information in the CYS records may be relevant to Ritchie's claim of innocence, because neither the prosecution nor defense counsel has seen the information, and the trial judge acknowledged that he had not reviewed the full file. The Commonwealth, however, argues that no materiality inquiry is required, because a statute renders the contents of the file privileged. Requiring disclosure here, it is argued, would override the Commonwealth's compelling interest in confidentiality on the mere speculation that the file "might" have been useful to the defense. Although we recognize that the public interest in protecting this type of sensitive information is strong, we do not agree that this interest necessarily prevents disclosure in all circumstances. This is not a case where a state statute grants CYS the absolute authority to shield its files from all eyes. Cf. 42 Pa. Cons. Stat. 5945.1(b) (1982)[14] Rather, the Pennsylvania *58 law provides that the information shall be disclosed in certain circumstances, including when CYS is directed to do so by court order. Pa. Stat. Ann., Title 11, 2215(a)(5) Given that the Pennsylvania Legislature contemplated some use of CYS records in judicial proceedings, we cannot conclude that the statute prevents all disclosure in criminal prosecutions. In the absence of any apparent state policy to the contrary, we therefore have no reason to believe that relevant information would not be disclosed when a court of competent jurisdiction determines that the information is "material" to the defense of the accused. We therefore affirm the decision of the Pennsylvania Supreme Court to the extent it orders a remand for further proceedings. Ritchie is entitled to have the CYS file reviewed by the trial court to determine whether it contains information that probably would have changed the outcome of his trial. If it does, he must be given a new trial. If the records maintained by CYS contain no such information, or if the nondisclosure was harmless beyond a reasonable doubt, the lower court will be free to reinstate the prior conviction.[15] *59 C This ruling does not end our analysis, because the |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | C This ruling does not end our analysis, because the Pennsylvania Supreme Court did more than simply remand. It also held that defense counsel must be allowed to examine all of the confidential information, both relevant and irrelevant, and present arguments in favor of disclosure. The court apparently concluded that whenever a defendant alleges that protected evidence might be material, the appropriate method of assessing this claim is to grant full access to the disputed information, regardless of the State's interest in confidentiality. We cannot agree. A defendant's right to discover exculpatory evidence does not include the unsupervised authority to search through the Commonwealth's files. See United ; United Although the eye of an advocate may be helpful to a defendant in ferreting out information, this Court has never held even in the absence of a statute restricting disclosure that a defendant alone may make the determination as to the materiality of the information. Settled practice is to the contrary. In the typical case where a defendant makes only a general request for exculpatory material under it is the State that decides which information must be disclosed. Unless defense counsel becomes aware that other exculpatory evidence was withheld and brings it to the court's attention,[16] the prosecutor's decision on disclosure is final. Defense counsel has no constitutional right to conduct his own search of the State's files to argue relevance. See We find that Ritchie's interest (as well as that of the Commonwealth) in ensuring a fair trial can be protected fully by requiring that the CYS files be submitted only to the trial court for in camera review. Although this rule denies Ritchie the benefits of an "advocate's eye," we note that the trial court's discretion is not unbounded. If a defendant is aware of specific information contained in the file (e. g., the medical report), he is free to request it directly from the court, and argue in favor of its materiality. Moreover, the duty to disclose is ongoing; information that may be deemed immaterial upon original examination may become important as the proceedings progress, and the court would be obligated to release information material to the fairness of the trial. To allow full disclosure to defense counsel in this type of case would sacrifice unnecessarily the Commonwealth's compelling interest in protecting its child-abuse information. If the CYS records were made available to defendants, even through counsel, it could have a seriously adverse effect on Pennsylvania's efforts to uncover and treat abuse. Child abuse is one of the most difficult crimes to detect and prosecute, in |
Justice Powell | 1,987 | 17 | majority | Pennsylvania v. Ritchie | https://www.courtlistener.com/opinion/111822/pennsylvania-v-ritchie/ | of the most difficult crimes to detect and prosecute, in large part because there often are no witnesses except the victim. A child's feelings of vulnerability and guilt and his or her unwillingness to come forward are particularly acute when the abuser is a parent. It therefore is essential that the child have a state-designated person to whom he may turn, and to do so with the assurance of confidentiality. Relatives and neighbors who suspect abuse also will be more willing to come forward if they know that their identities will be protected. Recognizing this, the Commonwealth like all other States[17] has made a commendable effort to assure victims *61 and witnesses that they may speak to the CYS counselors without fear of general disclosure. The Commonwealth's purpose would be frustrated if this confidential material had to be disclosed upon demand to a defendant charged with criminal child abuse, simply because a trial court may not recognize exculpatory evidence. Neither precedent nor common sense requires such a result. IV We agree that Ritchie is entitled to know whether the CYS file contains information that may have changed the outcome of his trial had it been disclosed. Thus we agree that a remand is necessary. We disagree with the decision of the Pennsylvania Supreme Court to the extent that it allows defense counsel access to the CYS file. An in camera review by the trial court will serve Ritchie's interest without destroying the Commonwealth's need to protect the confidentiality of those involved in child-abuse investigations. The judgment of the Pennsylvania Supreme Court is affirmed in part and reversed in part, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE BLACKMUN, concurring in part and concurring in the judgment. |
Justice Kennedy | 1,991 | 4 | concurring | Siegert v. Gilley | https://www.courtlistener.com/opinion/112594/siegert-v-gilley/ | I agree with the Court that "[a] necessary concomitant to the determination of whether the constitutional right asserted by a plaintiff is `clearly established' at the time the defendant acted is the determination of whether the plaintiff has asserted a violation of a constitutional right at all." Ante, at 232. I do not, however, agree that the Court of Appeals "should not have assumed, without deciding," this issue. The Court of Appeals adopted the altogether normal procedure of deciding the case before it on the ground that appeared to offer the most direct and appropriate resolution, and one argued by the parties. If it is plain that a plaintiff's required malice allegations are insufficient but there is some doubt as to the constitutional right asserted, it seems to reverse the usual ordering of issues to tell the trial and appellate courts that they should resolve the constitutional question first. As revealed by the differences in our majority and dissenting opinions, the question whether petitioner asserted the deprivation of a liberty interest protected by the Constitution, under the principles explained in is itself one of some difficulty. In my view, it is unwise to resolve the point without the benefit of a decision by the Court of Appeals and full briefing and argument here. I would affirm for the reasons given by the Court of Appeals. Here malice is a requisite showing to avoid the bar of qualified immunity. The heightened pleading standard is a necessary and appropriate accommodation between the state of mind component of malice and the objective test that prevails in qualified immunity analysis as a general matter. See There is tension between the rationale of Harlow and the requirement *236 of malice, and it seems to me that the heightened pleading requirement is the most workable means to resolve it, The heightened pleading standard is a departure from the usual pleading requirements of Federal Rules of Civil Procedure 8 and 9(b), and departs also from the normal standard for summary judgment under Rule 56. But avoidance of disruptive discovery is one of the very purposes for the official immunity doctrine, and it is no answer to say that the plaintiff has not yet had the opportunity to engage in discovery. The substantive defense of immunity controls. Upon the assertion of a qualified immunity defense the plaintiff must put forward specific, nonconclusory factual allegations which establish malice, or face dismissal. I would reject, however, the Court of Appeals' statement that a plaintiff must present direct, as opposed to circumstantial, evidence. 282 U. S. App. D. C. 392, 398-399, |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | This case presents the related questions whether a previously sentenced probationer is entitled to a hearing when his probation is revoked and, if so, whether he is entitled to be represented by appointed counsel at such a hearing I Respondent, Gerald Scarpelli, pleaded guilty in July 1965, to a charge of armed robbery in Wisconsin The trial judge sentenced him to 15 years' imprisonment, but suspended the sentence and placed him on probation for seven years in the custody of the Wisconsin Department of Public Welfare (the Department)[1] At that time, he signed an agreement specifying the terms of his probation and a "Travel Permit and Agreement to Return" allowing him to reside in Illinois, with supervision there under an interstate compact On August 5, 1965, he was accepted for supervision by the Adult Probation Department of Cook County, Illinois On August 6, respondent was apprehended by Illinois police, who had surprised him and one Fred Kleckner, *780 Jr, in the course of the burglary of a house After being apprised of his constitutional rights, respondent admitted that he and Kleckner had broken into the house for the purpose of stealing merchandise or money, although he now asserts that his statement was made under duress and is false Probation was revoked by the Wisconsin Department on September 1, without a hearing The stated grounds for revocation were that: "1 [Scarpelli] has associated with known criminals, in direct violation of his probation regulations and his supervising agent's instructions; "2 [Scarpelli,] while associating with a known criminal, namely Fred Kleckner, Jr, was involved in, and arrested for, a burglary in Deerfield, Illinois" App 20 On September 4, 1965, he was incarcerated in the Wisconsin State Reformatory at Green Bay to begin serving the 15 years to which he had been sentenced by the trial judge At no time was he afforded a hearing Some three years later, on December 16, 1968, respondent applied for a writ of habeas corpus After the petition had been filed, but before it had been acted upon, the Department placed respondent on parole[2] The District Court found that his status as parolee was sufficient custody to confer jurisdiction on the court and that the petition was not moot because the revocation carried "collateral consequences," presumably including the restraints imposed by his parole On the merits, the District Court held that revocation without a hearing and counsel was a denial of due process The Court of Appeals affirmed sub *781 nom and we granted certiorari II Two prior decisions set the bounds of our present inquiry In the |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | decisions set the bounds of our present inquiry In the Court held that a probationer is entitled to be represented by appointed counsel at a combined revocation and sentencing hearing Reasoning that counsel is required "at every stage of a criminal proceeding where substantial rights of a criminal accused may be affected," and that sentencing is one such stage, the Court concluded that counsel must be provided an indigent at sentencing even when it is accomplished as part of a subsequent probation revocation proceeding But this line of reasoning does not require a hearing or counsel at the time of probation revocation in a case such as the present one, where the probationer was sentenced at the time of trial Of greater relevance is our decision last Term in There we held that the revocation of parole is not a part of a criminal prosecution "Parole arises after the end of the criminal prosecution, including imposition of sentence Revocation deprives an individual, not of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions" Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process Specifically, we held that a parolee is entitled to two hearings, one a *782 preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision Petitioner does not contend that there is any difference relevant to the guarantee of due process between the revocation of parole and the revocation of probation, nor do we perceive one[3] Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty[4] Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in supra[5] *783 III The second, and more difficult, question posed by this case is whether an indigent probationer or parolee has a due process right to be represented by appointed counsel at these hearings[6] In answering that question, we draw heavily on the opinion in Morrissey Our first point of reference is the character of probation or parole As noted in Morrissey regarding parole, the "purpose is to help individuals reintegrate into society as |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | the "purpose is to help individuals reintegrate into society as constructive individuals as soon as they are able " The duty and attitude of the probation or parole officer reflect this purpose: "While the parole or probation officer recognizes his double duty to the welfare of his clients and to the safety of the general community, by and large concern for the client dominates his professional attitude *784 The parole agent ordinarily defines his role as representing his client's best interests as long as these do not constitute a threat to public safety"[7] Because the probation or parole officer's function is not so much to compel conformance to a strict code of behavior as to supervise a course of rehabilitation, he has been entrusted traditionally with broad discretion to judge the progress of rehabilitation in individual cases, and has been armed with the power to recommend or even to declare revocation In Morrissey, we recognized that the revocation decision has two analytically distinct components: "The first step in a revocation decision thus involves a wholly retrospective factual question: whether the parolee has in fact acted in violation of one or more conditions of his parole Only if it is determined that the parolee did violate the conditions does the second question arise: should the parolee be recommitted to prison or should other steps be taken to protect society and improve chances of rehabilitation?" 408 US, at 479-480[8] *785 The parole officer's attitude toward these decisions reflects the rehabilitative rather than punitive focus of the probation/parole system: "Revocation is, if anything, commonly treated as a failure of supervision While presumably it would be inappropriate for a field agent never to revoke, the whole thrust of the probation-parole movement is to keep men in the community, working with adjustment problems there, and using revocation only as a last resort when treatment has failed or is about to fail"[9] But an exclusive focus on the benevolent attitudes of those who administer the probation/parole system when it is working successfully obscures the modification in attitude which is likely to take place once the officer has decided to recommend revocation Even though the officer is not by this recommendation converted into a prosecutor committed to convict, his role as counsellor to the probationer or parolee is then surely compromised When the officer's view of the probationer's or parolee's conduct differs in this fundamental way from the latter's own view, due process requires that the difference be resolved before revocation becomes final Both the probationer or parolee and the State have interests in the accurate finding |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | parolee and the State have interests in the accurate finding of fact and the informed use of discretion the probationer or parolee to insure that his liberty is not unjustifiably taken away and the State to make certain that it is neither unnecessarily interrupting a successful effort at rehabilitation nor imprudently prejudicing the safety of the community *786 It was to serve all of these interests that Morrissey mandated preliminary and final revocation hearings At the preliminary hearing, a probationer or parolee is entitled to notice of the alleged violations of probation or parole, an opportunity to appear and to present evidence in his own behalf, a conditional right to confront adverse witnesses, an independent decisionmaker, and a written report of the hearing 408 US, at 487 The final hearing is a less summary one because the decision under consideration is the ultimate decision to revoke rather than a mere determination of probable cause, but the "minimum requirements of due process" include very similar elements: "(a) written notice of the claimed violations of [probation or] parole; (b) disclosure to the [probationer or] parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a `neutral and detached' hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole" These requirements in themselves serve as substantial protection against ill-considered revocation, and petitioner argues that counsel need never be supplied What this argument overlooks is that the effectiveness of the rights guaranteed by Morrissey may in some circumstances depend on the use of skills which the probationer or parolee is unlikely to possess Despite the informal nature of the proceedings and the absence of technical *787 rules of procedure or evidence, the unskilled or uneducated probationer or parolee may well have difficulty in presenting his version of a disputed set of facts where the presentation requires the examining or cross-examining of witnesses or the offering or dissecting of complex documentary evidence By the same token, we think that the Court of Appeals erred in accepting respondent's contention that the State is under a constitutional duty to provide counsel for indigents in all probation or parole revocation cases While such a rule has the appeal of simplicity, it would impose direct costs and serious collateral |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | of simplicity, it would impose direct costs and serious collateral disadvantages without regard to the need or the likelihood in a particular case for a constructive contribution by counsel In most cases, the probationer or parolee has been convicted of committing another crime or has admitted the charges against him[10] And while in some cases he may have a justifiable excuse for the violation or a convincing reason why revocation is not the appropriate disposition, mitigating evidence of this kind is often not susceptible of proof or is so simple as not to require either investigation or exposition by counsel The introduction of counsel into a revocation proceeding will alter significantly the nature of the proceeding If counsel is provided for the probationer or parolee, the State in turn will normally provide its own counsel; lawyers, by training and disposition, are advocates and bound by professional duty to present all available evidence and arguments in support of their clients' positions and to contest with vigor all adverse evidence and views The role of the hearing body itself, aptly described in Morrissey as being "predictive and discretionary" as well as factfinding, may become more akin to that of a judge at a trial, and less attuned to the *788 rehabilitative needs of the individual probationer or parolee In the greater self-consciousness of its quasi-judicial role, the hearing body may be less tolerant of marginal deviant behavior and feel more pressure to reincarcerate than to continue nonpunitive rehabilitation Certainly, the decisionmaking process will be prolonged, and the financial cost to the Statefor appointed counsel, counsel for the State, a longer record, and the possibility of judicial reviewwill not be insubstantial[11] In some cases, these modifications in the nature of the revocation hearing must be endured and the costs borne because, as we have indicated above, the probationer's or parolee's version of a disputed issue can fairly be represented only by a trained advocate But due process is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed In so concluding, we are of course aware that the case-by-case approach to the right to counsel in felony prosecutions adopted in Betts v Brady, 316 US 455 was later rejected in favor of a per se rule in Gideon v Wainwright, 372 US 335 See also Argersinger v Hamlin, 407 US 25 We do not, however, draw from Gideon and Argersinger the conclusion that a case-by-case approach to furnishing counsel is necessarily inadequate to protect constitutional rights asserted in varying types of proceedings: there are |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | constitutional rights asserted in varying types of proceedings: there are critical differences between criminal trials and probation or parole revocation *789 hearings, and both society and the probationer or parolee have stakes in preserving these differences In a criminal trial, the State is represented by a prosecutor; formal rules of evidence are in force; a defendant enjoys a number of procedural rights which may be lost if not timely raised; and, in a jury trial, a defendant must make a presentation understandable to untrained jurors In short, a criminal trial under our system is an adversary proceeding with its own unique characteristics In a revocation hearing, on the other hand, the State is represented, not by a prosecutor, but by a parole officer with the orientation described above; formal procedures and rules of evidence are not employed; and the members of the hearing body are familiar with the problems and practice of probation or parole The need for counsel at revocation hearings derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases The differences between a criminal trial and a revocation hearing do not dispose altogether of the argument that under a case-by-case approach there may be cases in which a lawyer would be useful but in which none would be appointed because an arguable defense would be uncovered only by a lawyer Without denying that there is some force in this argument, we think it a sufficient answer that we deal here, not with the right of an accused to counsel in a criminal prosecution, but with the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime[12] *790 We thus find no justification for a new inflexible constitutional rule with respect to the requirement of counsel We think, rather, that the decision as to the need for counsel must be made on a case-by-case basis in the exercise of a sound discretion by the state authority charged with responsibility for administering the probation and parole system Although the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings, there will remain certain cases in which fundamental fairnessthe touchstone of due processwill require that the State provide at its expense counsel for indigent probationers or parolees It is neither possible nor prudent to attempt to formulate a precise and detailed set of guidelines to be followed in determining when the providing of counsel is necessary to meet the applicable due process requirements The |
Justice Powell | 1,973 | 17 | majority | Gagnon v. Scarpelli | https://www.courtlistener.com/opinion/108785/gagnon-v-scarpelli/ | is necessary to meet the applicable due process requirements The facts and circumstances in preliminary and final hearings are susceptible of almost infinite variation, and a considerable discretion must be allowed the responsible agency in making the decision Presumptively, it may be said that counsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present In passing on a request for the appointment of counsel, the responsible agency also should consider, *791 especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record IV We return to the facts of the present case Because respondent was not afforded either a preliminary hearing or a final hearing, the revocation of his probation did not meet the standards of due process prescribed in Morrissey, which we have here held applicable to probation revocations Accordingly, respondent was entitled to a writ of habeas corpus On remand, the District Court should allow the State an opportunity to conduct such a hearing As to whether the State must provide counsel, respondent's admission to having committed another serious crime creates the very sort of situation in which counsel need not ordinarily be provided But because of respondent's subsequent assertions regarding that admission, see we conclude that the failure of the Department to provide respondent with the assistance of counsel should be re-examined in light of this opinion The general guidelines outlined above should be applied in the first instance by those charged with conducting the revocation hearing Affirmed in part, reversed in part, and remanded MR JUSTICE DOUGLAS, dissenting in part I believe that due process requires the appointment of counsel in this case because of the claim that respondent's confession of the burglary was made under duress See (opinion of DOUGLAS, J) |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | The issue in this case is not whether Customs Service employees can constitutionally be denied promotion, or even dismissed, for a single instance of unlawful drug use, at home or at work. They assuredly can. The issue here is what steps can constitutionally be taken to detect such drug use. The Government asserts it can demand that employees perform "an excretory function traditionally shielded by great privacy," Skinner v. Railway Labor Executives' Assn., ante, at 626, while "a monitor of the same sex remains close at hand to listen for the normal sounds," ante, at 661, and that the excretion thus produced be turned over to the Government for chemical analysis. The Court agrees that this constitutes a search for purposes of the Fourth Amendment and I think it obvious that it is a type of search particularly destructive of privacy and offensive to personal dignity. Until today this Court had upheld a bodily search separate from arrest and without individualized suspicion of wrong-doing only with respect to prison inmates, relying upon the uniquely dangerous nature of that environment. See Today, in Skinner, we allow a less intrusive bodily search of railroad employees involved in train accidents. I joined the Court's opinion there because the demonstrated frequency of drug and alcohol use by the targeted class of employees, and the demonstrated connection between such use and grave harm, rendered the search a reasonable means of protecting society. *681 I decline to join the Court's opinion in the present case because neither frequency of use nor connection to harm is demonstrated or even likely. In my view the Customs Service rules are a kind of immolation of privacy and human dignity in symbolic opposition to drug use. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." While there are some absolutes in Fourth Amendment law, as soon as those have been left behind and the question comes down to whether a particular search has been "reasonable," the answer depends largely upon the social necessity that prompts the search. Thus, in upholding the administrative search of a student's purse in a school, we began with the observation (documented by an agency report to Congress) that "[m]aintaining order in the classroom has never been easy, but in recent years, school disorder has often taken particularly ugly forms: drug use and violent crime in the schools have become major social problems." New When we approved fixed checkpoints near the Mexican border to stop and search cars for illegal |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | the Mexican border to stop and search cars for illegal aliens, we observed at the outset that "the Immigration and Naturalization Service now suggests there may be as many as 10 or 12 million aliens illegally in the country," and that "[i]nterdicting the flow of illegal entrants from Mexico poses formidable law enforcement problems." United And the substantive analysis of our opinion today in Skinner begins, "[t]he problem of alcohol use on American railroads is as old as the industry itself," and goes on to cite statistics concerning that problem and the accidents it causes, including a 1979 study finding that "23% of the operating personnel were `problem drinkers.' " Skinner, ante, at 606, and 607, n. 1. The Court's opinion in the present case, however, will be searched in vain for real evidence of a real problem that will be solved by urine testing of Customs Service employees. *682 Instead, there are assurances that "[t]he Customs Service is our Nation's first line of defense against one of the greatest problems affecting the health and welfare of our population," ante, at 668; that "[m]any of the Service's employees are often exposed to [drug smugglers] and to the controlled substances [they seek] to smuggle into the country," ante, at 669; that "Customs officers have been the targets of bribery by drug smugglers on numerous occasions, and several have been removed from the Service for accepting bribes and other integrity violations," ibid.; that "the Government has a compelling interest in ensuring that front-line interdiction personnel are physically fit, and have unimpeachable integrity and judgment," ante, at 670; that the "national interest in self-protection could be irreparably damaged if those charged with safeguarding it were, because of their own drug use, unsympathetic to their mission of interdicting narcotics," ibid.; and that "the public should not bear the risk that employees who may suffer from impaired perception and judgment will be promoted to positions where they may need to employ deadly force," ante, at 671. To paraphrase Churchill, all this contains much that is obviously true, and much that is relevant; unfortunately, what is obviously true is not relevant, and what is relevant is not obviously true. The only pertinent points, it seems to me, are supported by nothing but speculation, and not very plausible speculation at that. It is not apparent to me that a Customs Service employee who uses drugs is significantly more likely to be bribed by a drug smuggler, any more than a Customs Service employee who wears diamonds is significantly more likely to be bribed by a diamond smuggler |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | significantly more likely to be bribed by a diamond smuggler unless, perhaps, the addiction to drugs is so severe, and requires so much money to maintain, that it would be detectable even without benefit of a urine test. Nor is it apparent to me that Customs officers who use drugs will be appreciably less "sympathetic" to their drug-interdiction mission, any more than police officers who exceed the speed limit in their private cars are appreciably less *683 sympathetic to their mission of enforcing the traffic laws. (The only difference is that the Customs officer's individual efforts, if they are irreplaceable, can theoretically affect the availability of his own drug supply a prospect so remote as to be an absurd basis of motivation.) Nor, finally, is it apparent to me that urine tests will be even marginally more effective in preventing gun-carrying agents from risking "impaired perception and judgment" than is their current knowledge that, if impaired, they may be shot dead in unequal combat with unimpaired smugglers unless, again, their addiction is so severe that no urine test is needed for detection. What is absent in the Government's justifications notably absent, revealingly absent, and as far as I am concerned dispositively absent is the recitation of even a single instance in which any of the speculated horribles actually occurred: an instance, that is, in which the cause of bribetaking, or of poor aim, or of unsympathetic law enforcement, or of compromise of classified information, was drug use. Although the Court points out that several employees have in the past been removed from the Service for accepting bribes and other integrity violations, and that at least nine officers have died in the line of duty since 1974, ante, at 669, there is no indication whatever that these incidents were related to drug use by Service employees. Perhaps concrete evidence of the severity of a problem is unnecessary when it is so well known that courts can almost take judicial notice of it; but that is surely not the case here. The Commissioner of Customs himself has stated that he "believe[s] that Customs is largely drug-free," that "[t]he extent of illegal drug use by Customs employees was not the reason for establishing this program," and that he "hope[s] and expect[s] to receive reports of very few positive findings through drug screening." App. 10, 15. The test results have fulfilled those hopes and expectations. According to the Service's counsel, out of 3,600 employees *684 tested, no more than 5 tested positive for drugs. See ante, at 673. The |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | 5 tested positive for drugs. See ante, at 673. The Court's response to this lack of evidence is that "[t]here is little reason to believe that American workplaces are immune from [the] pervasive social problem" of drug abuse. Ante, at 674. Perhaps such a generalization would suffice if the workplace at issue could produce such catastrophic social harm that no risk whatever is tolerable the secured areas of a nuclear power plant, for example, see But if such a generalization suffices to justify demeaning bodily searches, without particularized suspicion, to guard against the bribing or blackmailing of a law enforcement agent, or the careless use of a firearm, then the Fourth Amendment has become frail protection indeed. In Skinner, Bell, T. L. O., and Martinez-Fuerte, we took pains to establish the existence of special need for the search or seizure a need based not upon the existence of a "pervasive social problem" combined with speculation as to the effect of that problem in the field at issue, but rather upon well-known or well-demonstrated evils in that field, with well-known or well-demonstrated consequences. In Skinner, for example, we pointed to a long history of alcohol abuse in the railroad industry, and noted that in an 8-year period 45 train accidents and incidents had occurred because of alcohol- and drug-impaired railroad employees, killing 34 people, injuring 66, and causing more than $28 million in property damage. Ante, at 608. In the present case, by contrast, not only is the Customs Service thought to be "largely drug-free," but the connection between whatever drug use may exist and serious social harm is entirely speculative. Except for the fact that the search of a person is much more intrusive than the stop of a car, the present case resembles where we held that the Fourth Amendment prohibited random stops to check drivers' licenses and motor vehicle registrations. The contribution of this practice to highway *685 safety, we concluded, was "marginal at best" since the number of licensed drivers that must be stopped in order to find one unlicensed one "will be large indeed." Today's decision would be wrong, but at least of more limited effect, if its approval of drug testing were confined to that category of employees assigned specifically to drug interdiction duties. Relatively few public employees fit that description. But in extending approval of drug testing to that category consisting of employees who carry firearms, the Court exposes vast numbers of public employees to this needless indignity. Logically, of course, if those who carry guns can be treated in this fashion, |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | those who carry guns can be treated in this fashion, so can all others whose work, if performed under the influence of drugs, may endanger others automobile drivers, operators of other potentially dangerous equipment, construction workers, school crossing guards. A similarly broad scope attaches to the Court's approval of drug testing for those with access to "sensitive information."[1] Since this category is not limited to *686 Service employees with drug interdiction duties, nor to "sensitive information" specifically relating to drug traffic, today's holding apparently approves drug testing for all federal employees with security clearances or, indeed, for all federal employees with valuable confidential information to impart. Since drug use is not a particular problem in the Customs Service, employees throughout the Government are no less likely to violate the public trust by taking bribes to feed their drug habit, or by yielding to blackmail. Moreover, there is no reason why this super-protection against harms arising from drug use must be limited to public employees; a law requiring similar testing of private citizens who use dangerous instruments such as guns or cars, or who have access to classified information, would also be constitutional. There is only one apparent basis that sets the testing at issue here apart from all these other situations but it is not a basis upon which the Court is willing to rely. I do not believe for a minute that the driving force behind these drug-testing rules was any of the feeble justifications put forward by counsel here and accepted by the Court. The only plausible explanation, in my view, is what the Commissioner himself offered in the concluding sentence of his memorandum to Customs Service employees announcing the program: "Implementation of the drug screening program would set an important example in our country's struggle with this most serious threat to our national health and security." App. 12. Or as respondent's brief to this Court asserted: "[I]f a law enforcement agency and its employees do not take the law seriously, neither will the public on which the agency's effectiveness depends." Brief for Respondent 36. What better way to show that the Government is serious about its "war on drugs" than to subject its employees on the front line of that war to this invasion of their privacy and affront to their dignity? To be sure, there is only a slight chance that it will prevent some serious public harm resulting from Service employee drug use, but it will show to the world that the *687 Service is "clean," and most important of all |
Justice Scalia | 1,989 | 9 | second_dissenting | Treasury Employees v. Von Raab | https://www.courtlistener.com/opinion/112220/treasury-employees-v-von-raab/ | *687 Service is "clean," and most important of all will demonstrate the determination of the Government to eliminate this scourge of our society! I think it obvious that this justification is unacceptable; that the impairment of individual liberties cannot be the means of making a point; that symbolism, even symbolism for so worthy a cause as the abolition of unlawful drugs, cannot validate an otherwise unreasonable search. There is irony in the Government's citation, in support of its position, of Justice Brandeis' statement in that "[f]or good or for ill, [our Government] teaches the whole people by its example." Brief for Respondent 36. Brandeis was there dissenting from the Court's admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government's example of vigor and enthusiasm in combatting crime, but condemning its example that "the end justifies the means," 277 U.S., at An even more apt quotation from that famous Brandeis dissent would have been the following: "[I]t is immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding." Those who lose because of the lack of understanding that be-got the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own. |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | This case presents two related questions: First, does our decision in govern the admissibility of statements made during custodial interrogation by a suspect accused of a misdemeanor traffic *423 offense? Second, does the roadside questioning of a motorist detained pursuant to a traffic stop constitute custodial interrogation for the purposes of the doctrine enunciated in Miranda? I A The parties have stipulated to the essential facts. See App. to Pet. for Cert. A-1. On the evening of March 31, 190, Trooper Williams of the State Highway Patrol observed respondent's car weaving in and out of a lane on Interstate Highway 270. After following the car for two miles, Williams forced respondent to stop and asked him to get out of the vehicle. When respondent complied, Williams noticed that he was having difficulty standing. At that point, "Williams concluded that [respondent] would be charged with a traffic offense and, therefore, his freedom to leave the scene was terminated." at A-2. However, respondent was not told that he would be taken into custody. Williams then asked respondent to perform a field sobriety test, commonly known as a "balancing test." Respondent could not do so without falling. While still at the scene of the traffic stop, Williams asked respondent whether he had been using intoxicants. Respondent replied that "he had consumed two beers and had smoked several joints of marijuana a short time before." Respondent's speech was slurred, and Williams had difficulty understanding him. Williams thereupon formally placed respondent under arrest and transported him in the patrol car to the Franklin County Jail. At the jail, respondent was given an intoxilyzer test to determine the concentration of alcohol in his blood.[1] The test did not detect any alcohol whatsoever in respondent's system. Williams then resumed questioning respondent *424 in order to obtain information for inclusion in the State Highway Patrol Alcohol Influence Report. Respondent answered affirmatively a question whether he had been drinking. When then asked if he was under the influence of alcohol, he said, "I guess, barely." Williams next asked respondent to indicate on the form whether the marihuana he had smoked had been treated with any chemicals. In the section of the report headed "Remarks," respondent wrote, "No ang[el] dust or PCP in the pot. Rick McCarty." App. 2. At no point in this sequence of events did Williams or anyone else tell respondent that he had a right to remain silent, to consult with an attorney, and to have an attorney appointed for him if he could not afford one. B Respondent was charged with operating a motor vehicle |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | one. B Respondent was charged with operating a motor vehicle while under the influence of alcohol and/or drugs in violation of Under law, that offense is a first-degree misdemeanor and in punishable by fine or imprisonment for up to six months. 2929.21 (192). Incarceration for a minimum of three days is mandatory. 4511.99 Respondent moved to exclude the various incriminating statements he had made to Trooper Williams on the ground that introduction into evidence of those statements would violate the Fifth Amendment insofar as he had not been informed of his constitutional rights prior to his interrogation. When the trial court denied the motion, respondent pleaded "no contest" and was found guilty.[2] He was sentenced to 90 *425 days in jail, 0 of which were suspended, and was fined $300, $100 of which were suspended. On appeal to the Franklin County Court of Appeals, respondent renewed his constitutional claim. Relying on a prior decision by the Supreme Court, which held that the rule announced in Miranda "is not applicable to misdemeanors," cert. denied, the Court of Appeals rejected respondent's argument and affirmed his conviction. State v. McCarty, No. 0AP-60 (Mar. 10, 191). The Supreme Court dismissed respondent's appeal on the ground that it failed to present a "substantial constitutional question." State v. McCarty, No. 1-710 (July 1, 191). Respondent then filed an action for a writ of habeas corpus in the District Court for the Southern District of[3] The District Court dismissed the petition, holding that "Miranda warnings do not have to be given prior to in custody interrogation of a suspect arrested for a traffic offense." No. C-2-1-111 (Dec. 11, 191). A divided panel of the Court of Appeals for the Sixth Circuit reversed, holding that "Miranda warnings must be given to all individuals prior to custodial interrogation, whether the offense investigated be a felony or a misdemeanor traffic offense." In applying this principle to the facts of the case, the Court of Appeals distinguished between the statements made by respondent before and after his formal arrest.[4] The postarrest statements, the court ruled, were *426 plainly inadmissible; because respondent was not warned of his constitutional rights prior to or "[a]t the point that Trooper Williams took [him] to the police station," his ensuing admissions could not be used against him. The court's treatment of respondent's prearrest statements was less clear. It eschewed a holding that "the mere stopping of a motor vehicle triggers Miranda," but did not expressly rule that the statements made by respondent at the scene of the traffic stop could be used against him. In the |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | the traffic stop could be used against him. In the penultimate paragraph of its opinion, the court asserted that "[t]he failure to advise [respondent] of his constitutional rights rendered at least some of his statements inadmissible," suggesting that the court was uncertain as to the status of the prearrest confessions.[5] "Because [respondent] was convicted on inadmissible evidence," the court deemed it necessary to vacate his conviction and order the District Court to issue a writ of habeas corpus. [6] However, the Court of Appeals did not specify which statements, if any, could be used against respondent in a retrial. We granted certiorari to resolve confusion in the federal and state courts regarding the applicability of our ruling in *427 Miranda to interrogations involving minor offenses[7] and to questioning of motorists detained pursuant to traffic stops.[] *42 II The Fifth Amendment provides: "No person shall be compelled in any criminal case to be a witness against himself." It is settled that this provision governs state as well as federal criminal proceedings. In the Court addressed the problem of how the privilege against compelled self-incrimination guaranteed by the Fifth Amendment could be protected from the coercive pressures that can be brought to bear upon a suspect in the context of custodial interrogation. The Court held: "[T]he prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of [a] defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the *429 following measures are required. Prior to any questioning, the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." In the years since the decision in Miranda, we have frequently reaffirmed the central principle established by that case: if the police take a suspect into custody and then ask him questions without informing him of the rights enumerated above, his responses cannot be introduced into evidence to establish his guilt.[9] See, e. g., (191); Rhode 297-29 (190) ; ; (196).[10] Petitioner asks us to carve an exception out |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | ; (196).[10] Petitioner asks us to carve an exception out of the foregoing principle. When the police arrest a person for allegedly committing a misdemeanor traffic offense and then ask him questions without telling him his constitutional rights, petitioner argues, his responses should be admissible against him.[11] We cannot agree. *430 One of the principal advantages of the doctrine that suspects must be given warnings before being interrogated while in custody is the clarity of that rule. "Miranda's holding has the virtue of informing police and prosecutors with specificity as to what they may do in conducting custodial interrogation, and of informing courts under what circumstances statements obtained during such interrogation are not admissible. This gain in specificity, which benefits the accused and the State alike, has been thought to outweigh the burdens that the decision in Miranda imposes on law enforcement agencies and the courts by requiring the suppression of trust-worthy and highly probative evidence even though the confession might be voluntary under traditional Fifth Amendment analysis." 71 The exception to Miranda proposed by petitioner would substantially undermine this crucial advantage of the doctrine. The police often are unaware when they arrest a person whether he may have committed a misdemeanor or a felony. Consider, for example, the reasonably common situation in which the driver of a car involved in an accident is taken into custody. Under law, both driving while under the influence of intoxicants and negligent vehicular homicide are misdemeanors, Rev. Code Ann. 2903.07, 4511.99 while reckless vehicular homicide is a felony, 2903.06 When arresting a person for causing a collision, the police may not know which of these offenses he may have committed. Indeed, the nature of his offense may depend upon circumstances unknowable to the police, such as whether the suspect has previously committed *431 a similar offense[12] or has a criminal record of some other kind. It may even turn upon events yet to happen, such as whether a victim of the accident dies. It would be unreasonable to expect the police to make guesses as to the nature of the criminal conduct at issue before deciding how they may interrogate the suspect.[13] Equally importantly, the doctrinal complexities that would confront the courts if we accepted petitioner's proposal would be Byzantine. Difficult questions quickly spring to mind: For instance, investigations into seemingly minor offenses sometimes escalate gradually into investigations into more serious matters;[14] at what point in the evolution of an affair of this sort would the police be obliged to give Miranda warnings to a suspect in custody? What evidence would be necessary |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | to a suspect in custody? What evidence would be necessary to establish that an arrest for a misdemeanor offense *432 was merely a pretext to enable the police to interrogate the suspect (in hopes of obtaining information about a felony) without providing him the safeguards prescribed by Miranda?[15] The litigation necessary to resolve such matters would be time-consuming and disruptive of law enforcement. And the end result would be an elaborate set of rules, interlaced with exceptions and subtle distinctions, discriminating between different kinds of custodial interrogations.[16] Neither the police nor criminal defendants would benefit from such a development. Absent a compelling justification we surely would be unwilling so seriously to impair the simplicity and clarity of the holding of Miranda. Neither of the two arguments proffered by petitioner constitutes such a justification. Petitioner first contends that Miranda warnings are unnecessary when a suspect is questioned about a misdemeanor traffic offense, because the police have no reason to subject such a suspect to the sort of interrogation that most trouble the Court in Miranda. We cannot agree that the dangers of police abuse are so slight in this context. For example, the offense of driving while intoxicated is increasingly regarded in many jurisdictions as a very serious matter.[17] Especially when the intoxicant at issue is a narcotic drug rather than alcohol, the police sometimes have difficulty obtaining evidence of this crime. Under such circumstances, the incentive for the police to try to induce the defendant to incriminate *433 himself may well be substantial. Similar incentives are likely to be present when a person is arrested for a minor offense but the police suspect that a more serious crime may have been committed. See We do not suggest that there is any reason to think improper efforts were made in this case to induce respondent to make damaging admissions. More generally, we have no doubt that, in conducting most custodial interrogations of persons arrested for misdemeanor traffic offenses, the police behave responsibly and do not deliberately exert pressures upon the suspect to confess against his will. But the same might be said of custodial interrogations of persons arrested for felonies. The purposes of the safeguards prescribed by Miranda are to ensure that the police do not coerce or trick captive suspects into confessing,[1] to relieve the " `inherently compelling pressures' " generated by the custodial setting itself, " `which work to undermine the individual's will to resist,' "[19] and as much as possible to free courts from the task of scrutinizing individual cases to try to determine, after the fact, whether |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | individual cases to try to determine, after the fact, whether particular confessions were voluntary.[20] Those purposes are implicated as much by in-custody questioning of persons suspected of misdemeanors as they are by questioning of persons suspected of felonies. *434 Petitioner's second argument is that law enforcement would be more expeditious and effective in the absence of a requirement that persons arrested for traffic offenses be informed of their rights. Again, we are unpersuaded. The occasions on which the police arrest and then interrogate someone suspected only of a misdemeanor traffic offense are rare. The police are already well accustomed to giving Miranda warnings to persons taken into custody. Adherence to the principle that all suspects must be given such warnings will not significantly hamper the efforts of the police to investigate crimes. We hold therefore that a person subjected to custodial interrogation is entitled to the benefit of the procedural safeguards enunciated in Miranda,[21] regardless of the nature or severity of the offense of which he is suspected or for which he was arrested. The implication of this holding is that the Court of Appeals was correct in ruling that the statements made by respondent at the County Jail were inadmissible. There can be no question that respondent was "in custody" at least as of the moment he was formally placed under arrest and instructed to get into the police car. Because he was not informed of *435 his constitutional rights at that juncture, respondent's subsequent admissions should not have been used against him. III To assess the admissibility of the self-incriminating statements made by respondent prior to his formal arrest, we are obliged to address a second issue concerning the scope of our decision in Miranda: whether the roadside questioning of a motorist detained pursuant to a routine traffic stop should be considered "custodial interrogation." Respondent urges that it should,[22] on the ground that Miranda by its terms applies whenever "a person has been taken into custody or otherwise deprived of his freedom of action in any significant way," 34 U.S., ; see[23]*436 Petitioner contends that a holding that every detained motorist must be advised of his rights before being questioned would constitute an unwarranted extension of the Miranda doctrine. It must be acknowledged at the outset that a traffic stop significantly curtails the "freedom of action" of the driver and the passengers, if any, of the detained vehicle. Under the law of most States, it is a crime either to ignore a policeman's signal to stop one's car or, once having stopped, to drive away without permission. E. |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | or, once having stopped, to drive away without permission. E. g., Rev. Code Ann. 4511.02 (192).[24] Certainly few motorists would feel free either to disobey a directive to pull over or to leave the scene of a traffic stop without being told they might do so.[25] Partly for these reasons, we have long acknowledged that "stopping an automobile and detaining its occupants constitute a `seizure' *437 within the meaning of [the Fourth] Amendmen[t], even though the purpose of the stop is limited and the resulting detention quite brief." 440 U.S. 64, However, we decline to accord talismanic power to the phrase in the Miranda opinion emphasized by respondent. Fidelity to the doctrine announced in Miranda requires that it be enforced strictly, but only in those types of situations in which the concerns that powered the decision are implicated. Thus, we must decide whether a traffic stop exerts upon a detained person pressures that sufficiently impair his free exercise of his privilege against self-incrimination to require that he be warned of his constitutional rights. Two features of an ordinary traffic stop mitigate the danger that a person questioned will be induced "to speak where he would not otherwise do so freely," 34 U. S., First, detention of a motorist pursuant to a traffic stop is presumptively temporary and brief. The vast majority of roadside detentions last only a few minutes. A motorist's expectations, when he sees a policeman's light flashing behind him, are that he will be obliged to spend a short period of time answering questions and waiting while the officer checks his license and registration, that he may then be given a citation, but that in the end he most likely will be allowed to continue on his way.[26] In this respect, *43 questioning incident to an ordinary traffic stop is quite different from stationhouse interrogation, which frequently is prolonged, and in which the detainee often is aware that questioning will continue until he provides his interrogators the answers they seek. See[27] Second, circumstances associated with the typical traffic stop are not such that the motorist feels completely at the mercy of the police. To be sure, the aura of authority surrounding an armed, uniformed officer and the knowledge that the officer has some discretion in deciding whether to issue a citation, in combination, exert some pressure on the detainee to respond to questions. But other aspects of the situation substantially offset these forces. Perhaps most importantly, the typical traffic stop is public, at least to some degree. Passersby, on foot or in other cars, witness the interaction of |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | on foot or in other cars, witness the interaction of officer and motorist. This exposure to public view both reduces the ability of an unscrupulous policeman to use illegitimate means to elicit self-incriminating statements and diminishes the motorist's fear that, if he does not cooperate, he will be subjected to abuse. The fact that the detained motorist typically is confronted by only one or at most two policemen further mutes his sense of vulnerability. In short, the atmosphere *439 surrounding an ordinary traffic stop is substantially less "police dominated" than that surrounding the kinds of interrogation at issue in Miranda itself, see 34 U.S., at 445, 491-49, and in the subsequent cases in which we have applied Miranda.[2] In both of these respects, the usual traffic stop is more analogous to a so-called "Terry stop," see (196), than to a formal arrest.[29] Under the Fourth Amendment, we have held, a policeman who lacks probable cause but whose "observations lead him reasonably to suspect" that a particular person has committed, is committing, or is about to commit a crime, may detain that person briefly[30] in order to "investigate the circumstances that provoke suspicion." United 422 U.S. 73, 1 "[T]he stop and inquiry must be `reasonably related in scope to the justification for their initiation.' " (quoting) Typically, this means that the officer may ask the detainee a moderate number of questions to determine his identity and to try to obtain information confirming or dispelling the officer's suspicions. But the detainee is not obliged to respond. And, unless the detainee's answers provide the officer with probable cause to arrest him,[31] he must then be *440 released.[32] The comparatively nonthreatening character of detentions of this sort explains the absence of any suggestion in our opinions that Terry stops are subject to the dictates of Miranda. The similarly noncoercive aspect of ordinary traffic stops prompts us to hold that persons temporarily detained pursuant to such stops are not "in custody" for the purposes of Miranda. Respondent contends that to "exempt" traffic stops from the coverage of Miranda will open the way to widespread abuse. Policemen will simply delay formally arresting detained motorist, and will subject them to sustained and intimidating interrogation at the scene of their initial detention. Cf. (192) (predicting the emergence of a rule that "a person has not been significantly deprived of freedom of action for Miranda purposes as long as he is in his own car, even if it is surrounded by several patrol cars and officers with drawn weapons"), withdrawn on rehearing, (192), cert. pending, No. 2-315. The net |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | withdrawn on rehearing, (192), cert. pending, No. 2-315. The net result, respondent contends, will be a serious threat to the rights that the Miranda doctrine is designed to protect. We are confident that the state of affairs projected by respondent will not come to pass. It is settled that the safeguards prescribed by Miranda become applicable as soon as a suspect's freedom of action is curtailed to a "degree associated with formal arrest." If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him "in custody" for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda. See 4 *441 Admittedly, our adherence to the doctrine just recounted will mean that the police and lower courts will continue occasionally to have difficulty deciding exactly when a suspect has been taken into custody. Either a rule that Miranda applies to all traffic stops or a rule that a suspect need not be advised of his rights until he is formally placed under arrest would provide a clearer, more easily administered line. However, each of these two alternatives has drawbacks that make it unacceptable. The first would substantially impede the enforcement of the Nation's traffic laws by compelling the police either to take the time to warn all detained motorists of their constitutional rights or to forgo use of self-incriminating statements made by those motorists while doing little to protect citizens' Fifth Amendment rights.[33] The second would enable the police to circumvent the constraints on custodial interrogations established by Miranda. Turning to the case before us, we find nothing in the record that indicates that respondent should have been given Miranda warnings at any point prior to the time Trooper Williams placed him under arrest. For the reasons indicated above, we reject the contention that the initial stop of respondent's car, by itself, rendered him "in custody." And respondent has failed to demonstrate that, at any time between the initial stop and the arrest, he was subjected to restraints comparable to those associated with a formal arrest. Only a short period of time elapsed between the stop and the arrest.[34] At no point during that interval was respondent *442 informed that his detention would not be temporary. Although Trooper Williams apparently decided as soon as respondent stepped out of his car that respondent would be taken into custody and charged with a traffic offense, Williams never communicated his intention to respondent. A policeman's unarticulated plan has no bearing on the question whether a suspect was "in |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | no bearing on the question whether a suspect was "in custody" at a particular time; the only relevant inquiry is how a reasonable man in the suspect's position would have understood his situation.[35] Nor do other aspects of the interaction of Williams and respondent support the contention that respondent was exposed to "custodial interrogation" at the scene of the stop. From aught that appears in the stipulation of facts, a single police officer asked respondent a modest number of questions and requested him to perform a simple balancing test at a location visible to passing motorists.[36] Treatment of this sort cannot fairly be characterized as the functional equivalent of formal arrest. We conclude, in short, that respondent was not taken into custody for the purposes of Miranda until Williams arrested him. Consequently, the statements respondent made prior to that point were admissible against him. IV We are left with the question of the appropriate remedy. In his brief, petitioner contends that, if we agree with the *443 Court of Appeals that respondent's postarrest statements should have been suppressed but conclude that respondent's prearrest statements were admissible, we should reverse the Court of Appeals' judgment on the ground that the state trial court's erroneous refusal to exclude the postarrest admissions constituted "harmless error" within the meaning of 36 U.S. 1 Relying on petitioner argues that the statements made by respondent at the police station "were merely recitations of what respondent had already admitted at the scene of the traffic arrest" and therefore were unnecessary to his conviction. Brief for Petitioner 25. We reject this proposed disposition of the case for three cumulative reasons. First, the issue of harmless error was not presented to any of the courts, to the District Court, or to the Court of Appeals.[37] Though, when reviewing a judgment of a federal court, we have jurisdiction to consider an issue not raised below, see (190), we are generally reluctant to do so, 39 U.S. 144,[3] Second, the admissions respondent made at the scene of the traffic stop and the statements he made at the police station were not identical. Most importantly, though respondent at the scene admitted having recently drunk beer and smoked marihuana, not until questioned at the station did he *444 acknowledge being under the influence of intoxicants, an essential element of the crime for which he was convicted.[39] This fact assumes significance in view of the failure of the intoxilyzer test to discern any alcohol in his blood. Third, the case arises in a procedural posture that makes the use of harmless-error analysis especially difficult.[40] |
Justice Marshall | 1,984 | 15 | majority | Berkemer v. McCarty | https://www.courtlistener.com/opinion/111249/berkemer-v-mccarty/ | posture that makes the use of harmless-error analysis especially difficult.[40] This is not a case in which a defendant, after denial of a suppression motion, is given a full trial resulting in his conviction. Rather, after the trial court ruled that all of respondent's self-incriminating statements were admissible, respondent elected not to contest the prosecution's case against him, while preserving his objection to the denial of his pretrial motion.[41] As a result, respondent has not yet had an opportunity to try to impeach the State's evidence or to present evidence of his own. For example, respondent alleges that, at the time of his arrest, he had an injured back and a limp[42] and that those ailments accounted for his difficulty getting out of the car and performing the balancing test; because he pleaded "no contest," he never had a chance to make that argument to a jury. It is difficult enough, on the basis of a complete record of a trial and the parties' contentions regarding the relative importance of each portion of the evidence presented, to determine whether the erroneous admission of particular material affected the outcome. Without the benefit of such a record in this case, we decline to rule that *445 the trial court's refusal to suppress respondent's postarrest statements "was harmless beyond a reasonable doubt." See 36 U. S., at 24. Accordingly, the judgment of the Court of Appeals is Affirmed. JUSTICE STEVENS, concurring in part and concurring in the judgment. |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | The Court's process of orderly adjudication has broken down in this case. The Court disposes of challenges to only two of the District Court's many discrete remedial orders by declaring that the District Court erroneously provided an interdistrict remedy for an intradistrict violation. n doing so, it resolves a foundational issue going to one element of the District Court's decree that we did not accept for review in this case, that we need not reach in order to answer the questions that we did accept for review, and that we specifically *139 refused to consider when it was presented in a prior petition for certiorari. Since, under these circumstances, the respondent school district and pupils naturally came to this Court without expecting that a fundamental premise of a portion of the District Court's remedial order would become the focus of the case, the essence of the Court's misjudgment in reviewing and repudiating that central premise lies in its failure to have warned the respondents of what was really at stake. This failure lulled the respondents into addressing the case without sufficient attention to the foundational issue, and their lack of attention has now infected the Court's decision. No one on the Court has had the benefit of briefing and argument informed by an appreciation of the potential breadth of the rulin The deficiencies from which we suffer have led the Court effectively to overrule a unanimous constitutional precedent of 20 years' standing, which was not even addressed in argument, was mentioned merely in passing by one of the parties, and discussed by another of them only in a misleading way. The Court's departures from the practices that produce informed adjudication would call for dissent even in a simple case. But in this one, with a trial history of more than 10 years of litigation, the Court's failure to provide adequate notice of the issue to be decided (or to limit the decision to issues on which certiorari was clearly granted) rules out any confidence that today's result is sound, either in fact or in law. n 30 years after our decision in the District Court found that the State of Missouri and the Kansas City, Missouri, School District (KCMSD) had failed to reform the segregated scheme of public school education in the KCMSD, previously mandated by the State, which had required black and white children to be taught separately according to race.[1] After Brown, neither the State nor the KCMSD moved to dismantle this system of separate education "root and branch," despite their affirmative obligation to do that under the |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | branch," despite their affirmative obligation to do that under the Constitution. "nstead, the [KCMSD] chose to operate some completely segregated schools and some integrated ones," using devices like optional attendance zones and liberal transfer policies to "allo[w] attendance patterns to continue on a segregated basis." Consequently, on the 20th anniversary of Brown in 1974, 39 of the 77 schools in the KCMSD had student bodies that were more than 90 percent black, and 80 percent of all black school children in the KCMSD attended those 1493. Ten years later, in the 1983- school year, schools remained racially isolated with more than 90 percent black enrollment. Because the State and the KCMSD intentionally created this segregated system of education, and subsequently failed to correct it, the District Court concluded that the State and the district had "defaulted in their obligation to uphold the Constitution." Neither the State nor the KCMSD appealed this finding of liability, after which the District Court entered a series of remedial orders aimed at eliminating the vestiges of segregation. *141 Since the District Court found that segregation had caused, among other things, "a system wide reduction in student achievement in the schools of the KCMSD," it ordered the adoption, starting in of a series of remedial programs to raise educational performance. As the Court recognizes, the District Court acted well within the bounds of its equitable discretion in doing so, ante, at 90, 101; in we held that a district court is authorized to remedy all conditions flowing directly from the constitutional violations committed by state or local officials, including the educational deficits that result from a segregated school system (programs aimed to correct those deficits are therefore frequently referred to as Milliken programs). at 281 283. Nor was there any objection to the District Court's orders from the State and the KCMSD, who agreed that it was "`appropriate to include a number of properly targeted educational programs in [the] desegregation plan,' " 639 F. Supp., at They endorsed many of the initiatives directed at improving student achievement that the District Court ultimately incorporated into its decree, including those calling for the attainment of AAA status for the KCMSD (a designation, conferred by the State Department of Elementary and Secondary Education upon consideration of a limited number of criteria, indicating "that a school system quantitatively and qualitatively has the resources necessary to provide minimum basic education to its students," at 26), full day kindergarten, summer school, tutoring before and after school, early childhood development, and reduction in class sizes. at -26. Between and the District Court |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | in class sizes. at -26. Between and the District Court ordered the implementation of a magnet school concept, and extensive capital improvements to the schools of the KCMSD. 672 *, ; ; -41. The District Court found that magnet schools would not only serve to remedy the deficiencies in student achievement in the KCMSD, but would assist in desegregating the district by attracting white students back into the school system. See, e. ; see The District Court, finding that the physical facilities in the KCMSD had "literally rotted," similarly grounded its orders of capital improvements in the related remedial objects of improving student achievement and desegregating the KCMSD. ("The improvement of school facilities is an important factor in the overall success of this desegregation plan. Specifically, a school facility which presents safety and health hazards to its students and faculty serves both as an obstacle to education as well as to maintaining and attracting non-minority enrollment. Further, conditions which impede the creation of a good learning climate, such as heating deficiencies and leaking roofs, reduce the effectiveness of the quality education components contained in this plan"); see 855 F. 2d, at 1305 ("[T]he capital improvements [are] required both to improve the education available to the victims of segregation as well as to attract whites to the schools"). *143 As a final element of its remedy, in the District Court ordered funding for increases in teachers' salaries as a step toward raising the level of student achievement. "[]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty." Neither the State nor the KCMSD objected to increases in teachers' salaries as an element of the comprehensive remedy, or to this cost as an item in the desegregation budget. n however, the State went to the Eighth Circuit with a broad challenge to the District Court's remedial concept of magnet schools and to its orders of capital improvements (though it did not appeal the salary order), arguing that the District Court had run afoul of by ordering an interdistrict remedy for an intradistrict violation. The Eighth Circuit rejected the State's position, and in 1989 the State petitioned for certiorari. The State's petition presented two questions for review, one challenging the District Court's authority to order a property tax increase to fund its remedial program, the other going to the legitimacy of the magnet school concept at the very foundation of the Court's desegregation plan: "For a purely intradistrict violation, the courts below have ordered remediescosting hundreds of millions of |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | the courts below have ordered remediescosting hundreds of millions of dollarswith the stated goals of attracting more nonminority students to the school district and making programs and facilities comparable to those in neighboring districts "The questio[n] presented [is] ". Whether a federal court, remedying an intradistrict violation under may *144 "a) impose a duty to attract additional non-minority students to a school district, and "b) require improvements to make the district schools comparable to those in surrounding districts." Pet. for Cert. in O. T. No. 88-1150, p. i. We accepted the taxation question, and decided that while the District Court could not impose the tax measure itself, it could require the district to tax property at a rate adequate to fund its share of the costs of the desegregation remedy. f we had accepted the State's broader, foundational question going to the magnet school concept, we could have made an informed decision on whether that element of the District Court's remedial scheme was within the limits of the Court's equitable discretion in response to the constitutional violation found. Each party would have briefed the question fully and would have identified in some detail those items in the record bearing on it. But none of these things happened. nstead of accepting the foundational question in 1989, we denied certiorari on it. The State did not raise that question again when it returned to this Court with its petition for certiorari, which led to today's decision. nstead, the State presented, and we agreed to review, these two questions: "1. Whether a remedial educational desegregation program providing greater educational opportunities to victims of past de jure segregation than provided anywhere else in the country nonetheless fails to satisfy the Fourteenth Amendment (thus precluding a finding of partial unitary status) solely because student achievement in the District, as measured by results on standardized test scores, has not risen to some unspecified level? "2. Whether a federal court order granting salary increases to virtually every employee of a school district *145 including non-instructional personnelas a part of a school desegregation remedy conflicts with applicable decisions of this court which require that remedial components must directly address and relate to the constitutional violation and be tailored to cure the condition that offends the Constitution?" Pet. for Cert. i. These questions focus on two discrete issues: the extent to which a district court may look at students' test scores in determining whether a school district has attained partial unitary status as to its Milliken educational programs, and whether the particular salary increases ordered by the District Court |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | whether the particular salary increases ordered by the District Court constitute a permissible component of its remedy. The State did not go beyond these discrete issues, and it framed no broader, foundational question about the validity of the District Court's magnet concept. The Court decides, however, that it can reach that question of its own initiative, and it sees no bar to this course in the provision of this Court's Rule 14.1 that "[o]nly the questions set forth in the petition, or fairly included therein, will be considered" Ante, at 84-85. The broader issue, the Court claims, is "fairly included" in the State's salary question. But that claim does not survive scrutiny. The standard under Rule 14.1 is quite simple: as the Court recognizes, we have held that an issue is fairly comprehended in a question presented when the issue must be resolved in order to answer the question. See ib, citing ; United That should be the end of the matter here, since the State itself concedes that we can answer its salary and test-score questions without addressing the soundness of the magnet element of the District Court's underlying remedial scheme, see Brief for Petitioners 18 ("each question [presented] can be dealt with on its own terms"). While the Court ignores that concession, it is patently correct. There *146 is no reason why we cannot take the questions as they come to us; assuming the validity of the District Court's basic remedial concept, we can determine the significance of test scores and assess the salary orders in relation to that concept. Of course, as we understand necessity in prudential matters like this, it comes in degrees, and would not deny that sometimes differing judgments are possible about the need to go beyond a question as originally accepted. But this is not even arguably such a case. t is instead a case that presents powerful reasons to confine discussion to the questions taken.[2] Quite naturally, the respondents here chose not to devote any significant attention to a question not raised, and they presumably had no reason to designate for printing those portions of the record bearing on an issue not apparently before us. And while respondents seemingly gave some thought to the bare possibility that the Court would choose *147 to deal with the discrete questions by going beyond them to a more comprehensive underlying issue, they were entitled to reject that possibility as a serious one for the very reason that the Court had already, in 1989, expressly refused to consider that foundational issue when the State expressly attempted |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | to consider that foundational issue when the State expressly attempted to raise it. Our deliberate refusal to entertain so important an issue is and ought to be a reasonable basis to infer that we will not subsequently allow it to be raised on our own motion without saying so in advance and giving notice to a party whose interests might be adversely affected. Thus the Court misses the point when it argues that the foundational issue is in a sense antecedent to the specific ones raised, and that those can be answered by finding error in some element of the underlying remedial scheme. Even if the Court were correct that the foundational issue could be reached under Rule 14.1, the critical question surely is whether that issue may fairly be decided without clear warning, at the culmination of a course of litigation in which this Court has specifically refused to consider the issue and given no indication of any subsequent change of mind. The answer is obviously no. And the Court's claim of necessity rings particularly hollow when one considers that if it really were essential to decide the foundational issue to address the two questions that are presented, the Court could give notice to the parties of its intention to reach the broader issue, and allow for adequate briefing and argument on it. And yet the Court does none of that, but simply decides the issue without any warning to respondents. f there is any doubt about the lack of fairness and prudence displayed by the Court, it should disappear upon seeing two things: first, how readily the questions presented can be answered on their own terms, without giving any countenance to the State's now successful attempt to "`smuggl[e] additional questions into a case after we grant[ed] certiorari,' " zumi Seimitsu Kogyo Kabushiki quoting 7 U.S. 128, ; and, second, how the Court's decision to go beyond those questions to address an issue not adequately briefed or argued by one set of parties leads it to render an opinion anchored in neither the findings and evidence contained in the record, nor in controlling precedent, which is squarely at odds with the Court's holding today. A The test-score question as it comes to us is one of word play, not substance. While the Court insists that the District Court's Order of June 17, 1992 (the only order relevant to the test-score question on review here), "requir[ed] the State to continue to fund the quality education programs because student achievement levels [in the KCMSD] were still `at or below national norms |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | [in the KCMSD] were still `at or below national norms at many grade levels'" ante, at 100; see ante, at 73, that order contains no discussion at all of student achievement levels in the KCMSD in comparison to national norms, and in fact does not explicitly address the subject of partial unitary status. App. to Pet. for Cert. A-69 to A-75. The reference to test scores "at or below national norms" comes from an entirely different and subsequent order of the District Court which is not under review. ts language presumably would not have been quoted to us, if the Court of Appeals's opinion affirming the District Court's June 17, 1992, order had not canvassed subsequent orders and mentioned the District Court's finding of fact that the "KCMSD is still at or below national norms at many grade levels," citing Order of Apr. 16, App. to Pet. for Cert. A-130. n any event, what is important here is that none of the District Court's or Court of Appeals's opinions or orders requires a certain level of test scores before unitary status can be found, or indicates that test scores are the only thing standing between the State and a finding of unitary *149 status as to the KCMSD's Milliken programs. ndeed, the opinion concurring in the denial of rehearing en banc below (not mentioned by the Court, although it is certainly more probative of the governing law in the Eighth Circuit than the dissenting opinion on which the Court does rely) expressly disavows any dispositive role for test scores: "The dissent accepts, at least in part, the State's argument that the district court adopted a student achievement goal, measured by test scores, as the only basis for determining whether past discrimination has been remedied. When we deal with student achievement in a quality education program in the of relieving a school district of court supervision, test results must be considered. Test scores, however, must be only one factor in the equation. Nothing in this court's opinion, the district court's opinion, or the testimony of KCMSD's witnesses indicates that test results were the only criteria used in denying the State's claim that its obligation for the quality education programs should be ended by a declaration they are unitary." f, then, test scores do not explain why there was no finding of unitary status as to the Milliken programs, one may ask what does explain it. The answer is quite straightforward. The Court of Appeals refused to order the District Court to enter a finding of partial unitary status as to the |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | enter a finding of partial unitary status as to the KCMSD's Milliken programs (and apparently, the District Court did not speak to the issue itself) simply because the State did not attempt to make the showing required for that relief. As the Court recognizes, ante, at 88 89, we have established a clear set of procedures to be followed by governmental entities seeking the partial termination of a desegregation decree. n we held that "[t]he duty and responsibility *150 of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system." Accordingly, before a district court may grant a school district (or other governmental entity) partial release from a desegregation decree, it must first consider "whether there has been full and satisfactory compliance with the decree in those aspects of the system where supervision is to be withdrawn" Full and satisfactory compliance, we emphasized in Freeman, is to be measured by "`whether the vestiges of past discrimination ha[ve] been eliminated to the extent practicable.' " quoting Board of Ed. of Oklahoma City Public 9-250 The district court must then consider "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 [or other governmental entity] 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." 503 U.S., The burden of showing that these conditions to finding partial unitary status have been met rests (as one would expect) squarely on the constitutional violator who seeks relief from the existing remedial order. While the Court recognizes the three-part showing that the State must make under Freeman in order to get a finding of partial unitary status, ante, at 88-89, it fails to acknowledge that the State did not even try to make a Freeman showing in the litigation leading up to the District Court's Order of June 17, 1992. The District Court's order was triggered not by a motion for partial unitary status filed by the State, but by a motion filed by the KCMSD for approval of its desegregation plan for the 1992- school year. See App. to Pet. for Cert. A-69. While the State's response to *151 that motion suggested that the District Court should enter a finding of partial unitary status as to the |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | enter a finding of partial unitary status as to the district's Milliken component of its decree, State's Response to KCMSD Motion for Approval of Desegregation Plan for 1992-, pp. 1-20 (hereinafter State's Response), the State failed even to allege its compliance with two of the three prongs of the Freeman test. The State did not claim that implementation of the Milliken component of the decree had remedied the reduction in student achievement in the KCMSD to the extent practicable; it simply argued that various Milliken programs had been implemented. State's Response 9-17. Accordingly, in the hearings held by the District Court on the KCMSD's motion, the State's expert witness testified only that the various Milliken programs had been implemented and had increased educational opportunity in the district. -483. With the exception of the "effective schools" program, he said nothing about the effects of those programs on student achievement, and in fact admitted on cross-examination that he did not have an opinion as to whether the programs had remedied to the extent practicable the reduction in student achievement caused by the segregation in the KCMSD. "Q: Dr. Stewart, do you, testifying on behalf of the State. have an opinion as to whether or not the educational deficits that you acknowledged were vestiges of the prior segregation have been eliminated to the extent practicable in the Kansas City School District? "A: No, that's not the purpose of my testimony, Mr. Benson." Nor did the State focus on its own good faith in complying with the District Court's decree; it emphasized instead the district's commitment to the decree and to the constitutional provisions on which the decree rested. State's Response 8. The State, indeed, said nothing to contradict the very findings *152 made elsewhere by the District Court that have called the State's own commitment to the success of the decree into question. See, e. ; see App. to Pet. for Cert. A-123 ("The State, a constitutional violator, has historically opposed the implementation of any program offered to desegregate the KCMSD. The Court recognizes that the State has had to bear the brunt of the costs of desegregation due to the joint and several liability finding previously made by the Court. However, the State has never offered the Court a viable, even tenable, alternative and has been extremely antagonistic in its approach to effecting the desegregation of the KCMSD") Thus, it was the State's failure to meet or even to recognize its burden under Freeman that led the Court of Appeals to reject the suggestion that it make a finding of partial unitary |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | the suggestion that it make a finding of partial unitary status as to the district's Milliken education programs: "t is significant that the testimony of [the State's expert] did no more than describe the successful establishment of the several educational programs, but gave no indication of whether these programs had succeeded in improving student achievement. "The only evidence before the district court with respect to the degree of progress on elimination of vestiges of past discrimination was at best that a start had been made. The evidence on the record fell far short of establishing that such vestiges had been eliminated to the extent practicable. *153 ". [Further, the] State did not try to prove that it has demonstrated a good faith commitment to the whole of the court's decree. ". [T]he district court did not abuse its discretion in continuing the quality education programs." -765 Examining only the first Freeman prong, there can be no doubt that the Court of Appeals was correct. Freeman and Dowell make it entirely clear that the central focus of this prong of the unitary status enquiry is on effects: to the extent reasonably possible, a constitutional violator must remedy the ills caused by its actions before it can be freed of the court-ordered obligations it has brought upon itself. Under the logic of the State's arguments to the District Court, the moment the Milliken programs were put in place, the State was at liberty to walk away from them, no matter how great the remaining consequences of segregation for educational quality or how great the potential for curing them if state funding continued. Looking ahead, if indeed the State believes itself entitled to a finding of partial unitary status on the subject of educational programs, there is an orderly procedural course for it to follow. t may frame a proper motion for partial unitary status, and prepare to make a record sufficient to allow the District Court and the Court of Appeals to address the continued need for and efficacy of the Milliken programs. n the development of a proper unitary status record, test scores will undoubtedly play a role. t is true, as the Court recognizes, that all parties to this case agree that it would be error to require that the students in a school district attain the national average test score as a prerequisite to a finding of partial unitary status, if only because all sorts of causes independent of the vestiges of past school segregation might stand in the way of the goal. Ante, at 101-102. That *154 said, |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | way of the goal. Ante, at 101-102. That *154 said, test scores will clearly be relevant in determining whether the improvement programs have cured a deficiency in student achievement to the practicable extent. The District Court has noted (in the finding that the Court would read as a dispositive requirement for unitary status) that while students' scores have shown a trend of improvement, they remain at or below national norms. App. to Pet. for Cert. A-131 The significance of this fact is subject to assessment. Depending, of course, on other facts developed in the course of unitary status proceedings, the improvement to less than the national average might reasonably be taken to show that education programs are having a good effect on student achievement, and that further improvement can be expected. On the other hand, if test-score changes were shown to have flattened out, that might suggest the impracticability of any additional remedial progress. While the significance of scores is thus open to judgment, the judgment is not likely to be very sound unless it is informed by more of a record than we have in front of us, and the Court's admonition that the District Court should "sharply limit" its reliance on test scores, ante, at 101, should be viewed in this light. B The other question properly before us has to do with the propriety of the District Court's recent salary orders. While the Court suggests otherwise, ante, at 84, 100, the District Court did not ground its orders of salary increases solely on the goal of attracting students back to the KCMSD. From the start, the District Court has consistently treated salary increases as an important element in remedying the systemwide reduction in student achievement resulting from segregation in the KCMSD. As noted above, the Court does not question this remedial goal, which we expressly approved in Milliken See The only issue, then, is whether the salary increases ordered by the District Court have been reasonably related to achieving *155 that goal, keeping in mind the broad discretion enjoyed by the District Court in exercising its equitable powers. The District Court first ordered KCMSD salary increases, limited to teachers, in basing its decision on the need to raise the level of student achievement. "[]t is essential that the KCMSD have sufficient revenues to fund an operating budget which can provide quality education, including a high quality faculty." The State raised no objection to the District Court's order, and said nothing about the issue of salary increases in its appeal to the Eighth Circuit. When the District Court's |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | its appeal to the Eighth Circuit. When the District Court's order expired in all parties, including the State, agreed to a further order increasing salaries for both instructional and noninstructional personnel through the 1991-1992 school year. n 1992 the District Court merely ordered that salaries in the KCMSD be maintained at the same level for the following year, rejecting the State's argument that desegregation funding for salaries should be discontinued, App. to Pet. for Cert. A-76 to A-93 and in the District Court ordered small salary increases for both instructional and noninstructional personnel through the end of the 1995-1996 school year, App. to Pet. for Cert. A-94 to A-109 t is the District Court's 1992 and orders that are before us, and it is difficult to see how the District Court abused its discretion in either instance. The District Court had evidence in front of it that adopting the State's position and discontinuing desegregation funding for salary levels would result in their abrupt drop to - levels, with the resulting disparity between teacher pay in the district and the nationwide level increasing to as much as 40 to 45 percent, and a mass exodus of competent employees likely taking place. at A-76, A-78 to A-91. Faced with this evidence, the District Court found that continued desegregation funding of salaries, and small increases in those salaries *156 over time, were essential to the successful implementation of its remedial scheme, including the elevation of student achievement: "[]n the absence of desegregation funding for salaries, the District will not be able to implement its desegregation plan. "High quality personnel are necessary not only to implement specialized desegregation programs intended to `improve educational opportunities and reduce racial isolation,' but to `ensure that there is no diminution in the quality of its regular academic program.' ". There is no question but that a salary roll back would have effects that would drastically impair implementation of the desegregation remedy. ". A salary roll back would result in excessive employee turnover, a decline in the quality and commitment of work and an inability of the KCMSD to achieve the objectives of the desegregation plan." at A-86 to A-91 quoting 855 F. 2d, at and See App. to Pet. for Cert. A-95 to A-97, A-101 to A-102 The Court of Appeals affirmed the District Court's orders on the basis of these findings, again taking special note of the importance of adequate salaries to the remedial goal of improving student achievement: "[Q]uality education programs and magnet schools [are] a part of the remedy for the vestiges of segregation causing |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | part of the remedy for the vestiges of segregation causing a system wide reduction in student achievement in the KCMSD The significant finding of the [district] court with respect to the earlier funding order was that the salary increases were essential to comply with the court's desegregation orders, and that high *157 quality teachers, administrators, and staff must be hired to improve the desegregative attractiveness of KCMSD. ". t is evident that the district court had before it substantial evidence of a statistically significant reduction in the turnover rates for full-time employees, a dramatic increase in the percentage of certified employees selecting KCMSD because of the salary increases, and a significant decline in the number of employees lost to other districts. Further, the court heard testimony that the average performance evaluation for the professional employees increased positively and significantly." See -769. There is nothing exceptionable in the lower courts' findings about the relationship between salaries and the District Court's remedial objectives, and certainly nothing in the record suggests obvious error as to the amounts of the increases ordered.[3] f it is tempting to question the place of salary increases for administrative and maintenance personnel in a desegregation order, the Court of Appeals addressed the temptation in specifically affirming the District Court's finding that such personnel are critical to the success of the desegregation (referring to order of June 30, App. to Pet. for Cert. A-104), and did so in the circumstances of a district whose schools have been plagued by leaking roofs, defective lighting, and reeking *158 lavatories. See 855 F. 2d, at 1306; -404. As for teachers' increases, the District Court and the Court of Appeals were beyond reproach in finding and affirming that in order to remedy the educational deficits flowing from segregation in the KCMSD, "those persons charged with implementing the [remedial] plan [must] be the most qualified persons reasonably attainable," App. to Pet. for Cert. A-102. ndeed, the Court does not question the District Court's salary orders insofar as they relate to the objective of raising the level of student achievement in the KCMSD, but rather overlooks that basis for the orders altogether. The Court suggests that the District Court rested its approval of salary increases only on the object of drawing students into the district's schools, ante, at 91, and rejects the increases for that reason. t seems clear, however, that the District Court and the Court of Appeals both viewed the salary orders as serving two complementary but distinct purposes, and to the extent that the District Court concludes on remand that its salary |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | that the District Court concludes on remand that its salary orders are justified by reference to the quality of education alone, nothing in the Court's opinion precludes those orders from remaining in effect. The two discrete questions that we actually accepted for review are, then, answerable on their own terms without any need to consider whether the District Court's use of the magnet school concept in its remedial plan is itself constitutionally vulnerable. The capacity to deal thus with the questions raised, coupled with the unfairness of doing otherwise without warning, are enough to demand a dissent. But there is more to fuel dissent. On its face, the Court's opinion projects an appealing pragmatism in seeming to cut through the details of many facts by applying a rule of law that can claim both precedential support and intuitive sense, that there is error in imposing an interdistrict remedy to *159 cure a merely intradistrict violation. Since the District Court has consistently described the violation here as solely intradistrict, and since the object of the magnet schools under its plan includes attracting students into the district from other districts, the Court's result seems to follow with the necessity of logic, against which arguments about detail or calls for fair warning may not carry great weight. The attractiveness of the Court's analysis disappears, however, as soon as we recognize two things. First, the District Court did not mean by an "intradistrict violation" what the Court apparently means by it today. The District Court meant that the violation within the KCMSD had not led to segregation outside of it, and that no other school districts had played a part in the violation. t did not mean that the violation had not produced effects of any sort beyond the district. ndeed, the record that we have indicates that the District Court understood that the violation here did produce effects spanning district borders and leading to greater segregation within the KCMSD, the reversal of which the District Court sought to accomplish by establishing magnet [4] nsofar as the Court assumes that this *160 was not so in fact, there is at least enough in the record to cast serious doubt on its assumption. Second, the Court violates existing case law even on its own apparent view of the facts, that the segregation violation within the KCMSD produced no proven effects, segregative or otherwise, outside it. Assuming this to be true, the Court's decision that the rule against interdistrict remedies for intradistrict violations applies to this case, solely because the remedy here is meant to produce |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | case, solely because the remedy here is meant to produce effects outside the district in which the violation occurred, is flatly contrary to established precedent. A The Court appears to assume that the effects of segregation were wholly contained within the KCMSD, and based on this assumption argues that any remedy looking beyond the district's boundaries is forbidden. The Court's position rests on the premise that the District Court and the Court of Appeals erred in finding that segregation had produced effects outside the district, and hence were in error when they treated the reversal of those effects as a proper subject of the equitable power to eliminate the remaining vestiges of the old segregation so far as practicable. The Court has not shown the trial court and the Eighth Circuit to be wrong on the facts, however, and on the record before us this Court's factual assumption is at the very least a questionable basis for removing one major foundation of the desegregation decree. do not, of course, claim to be in a position to say for sure that the Court is wrong, for like the Court, am a victim of an approach to the case uninformed by any warning that a foundational issue would be dispositive. My sole point is that the Court is not in any obvious sense correct, wherever the truth may ultimately lie. To be sure, the District Court found, and the Court of Appeals affirmed, that the suburban school districts (SSD's) had taken no action contributing to segregation in the KCMSD. ; *161 Those courts further concluded that the constitutional violations committed by the State and the KCMSD had not produced any significant segregative effects in the SSD's, all of which have operated as unitary districts since shortly after our decision in Brown. 807 F. 2d, at 672, 678; t was indeed on the basis of just these findings that the District Court concluded that it was dealing with an intradistrict violation, and, consistently with our decision in Milliken refused to consolidate the SSD's with the KCMSD. 807 F. 2d, at 660-661, 674; -723, 725, 810-811. There is no inconsistency between these findings and the possibility, however, that the actions of the State and the KCMSD produced significant nonsegregative effects outside the KCMSD that led to greater segregation within it. To the contrary, the District Court and the Court of Appeals concurred in finding that "the preponderance of black students in the [KCMSD] was due to the State and KCMSD's constitutional violations, which caused white flight. [T]he existence of segregated schools led to white |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | white flight. [T]he existence of segregated schools led to white flight from the KCMSD to suburban districts and to private " 855 F. 2d, at 1302, citing the District Court's Order of Au 25, ("[S]egregated schools, a constitutional violation, ha[ve] led to white flight from the KCMSD to suburban districts [and] large numbers of students leaving the schools of Kansas City and attending private"). While this exodus of white students would not have led to segregation within the SSD's, which have all been run in a unitary fashion since the time of Brown, it clearly represented an effect spanning district borders, and one which the District Court and the Court of Appeals expressly attributed to segregation in the KCMSD. The Court, however, rejects the findings of the District Court, endorsed by the Court of Appeals, that segregation led to white flight from the KCMSD, and does so at the expense *162 of another accepted norm of our appellate procedure. We have long adhered to the view that "[a] court of law, such as this Court is, rather than a court for correction of errors in factfinding, cannot undertake to review concurrent findings of fact by two courts below in the absence of a very obvious and exceptional showing of error." Graver Tank & Mf ; see The Court fails to show any exceptional circumstance present here, however: it relies on a "contradiction" that is not an obvious contradiction at all, and on an arbitrary "supposition" that "`white flight' may result from desegregation, not de jure segregation," ante, at 95, a supposition said to be bolstered by the District Court's statement that there was "an abundance of evidence that many residents of the KCMSD left the district and moved to the suburbs because of the district's s to integrate its "[5] The doubtful contradiction is said to exist between the District Court's findings, on the one hand, that segregation caused white flight to the SSD's, and the Court of Appeals's conclusion, on the other, that the District Court "`made specific findings that negate current significant interdistrict effects' " Ante, at 96, quoting 807 F. 2d, at 672. Any impression of contradiction quickly disappears, however, when the Court of Appeals's statement is read in : "[T]he [district] court explicitly recognized that [to consolidate school districts] under Milliken [] `there *163 must be evidence of a constitutional violation in one district that produces a significant segregative effect in another district.' Order of June 5, at 14, 95. The district court thus dealt not only with the issue of whether the SSDs were constitutional |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | only with the issue of whether the SSDs were constitutional violators but whether there were significant interdistrict segregative effects. See V, infra. When it did so, it made specific findings that negate current significant interdistrict effects" b t is clear that, in this passage, the Court of Appeals was summarizing the District Court's findings that the constitutional violations within the KCMSD had not produced any segregative effects in other districts. b While the Court of Appeals did not repeat the word "segregative" in its concluding sentence, there is nothing to indicate that it was referring to anything but segregative effects, and there is in fact nothing in the District Court's own statements going beyond its finding that the State and the KCMSD's actions did not lead to segregative effects in the SSD's.[6]*164 There is, in turn, no contradiction between this finding and the District Court's findings about white flight: while white flight would have produced significant effects in other school districts, in the form of greatly increased numbers of white students, those effects would not have been segregative beyond the KCMSD, as the departing students were absorbed into wholly unitary systems. Without the contradiction, the Court has nothing to justify its rejection of the District Court's finding that segregation caused white flight but its supposition that flight results from integration, not segregation. The supposition, and the distinction on which it rests, are untenable. At the more obvious level, there is in fact no break in the chain of causation linking the effects of desegregation with those of segregation. There would be no desegregation orders and no remedial plans without prior unconstitutional segregation as the occasion for issuing and adopting them, and an adverse reaction to a desegregation order is traceable in fact to the segregation that is subject to the remedy. When the Court quotes the District Court's reference to abundant evidence that integration caused flight to the suburbs, then, it quotes nothing inconsistent with the District Court's other findings that segregation had caused the flight. The only difference between the statements lies in the point to which the District Court happened to trace the causal sequence. The unreality of the Court's categorical distinction can be illustrated by some examples. There is no dispute that before the District Court's remedial plan was placed into effect the schools in the unreformed segregated system were physically a shambles: "The KCMSD facilities still have numerous health and safety hazards, educational environment hazards, functional impairments, and appearance impairments. The *165 specific problems include: inadequate lighting; peeling paint and crumbling plaster on ceilings, walls and |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | lighting; peeling paint and crumbling plaster on ceilings, walls and corridors; loose tiles, torn floor coverings; odors resulting from unventilated restrooms with rotted, corroded toilet fixtures; noisy classrooms due to lack of adequate acoustical treatment; lack of off street parking and bus loading for parents, teachers and students; lack of appropriate space for many cafeterias, libraries, and classrooms; faulty and antiquated heating and electrical systems; damaged and inoperable lockers; and inadequate fire safety systems. The conditions at Paseo High School are such that even the principal stated that he would not send his own child to that facility." See 855 F. 2d, at 1300 (reciting District Court findings); -40. The cost of turning this shambles into habitable schools was enormous, as anyone would have seen long before the District Court ordered repairs. See -40 Property tax-paying parents of white children, seeing the handwriting on the wall in could well have decided that the inevitable cost of cleanup would produce an intolerable tax rate and could have moved to escape it. The District Court's remedial orders had not yet been put in place. Was the white flight caused by segregation or desegregation? The distinction has no significance. Another example makes the same point. After Brown, white parents likely came to understand that the practice of spending more on white schools than on black ones would be stopped at some point. f they were unwilling to raise all expenditures to match the customary white school level, they must have expected the expenditures on white schools to drop to the level of those for the segregated black schools or to some level in between. See, e. -40 *166 (describing a decline in all 68 of the KCMSD's school buildings in the past "10 to 15 years"). f they thus believed that the white schools would deteriorate they might then have taken steps to establish private white schools, starting a practice of local private education that has endured. Again, what sense does it make to say of this example that the cause of white private education was desegregation (not yet underway), rather than the segregation that led to it? do not claim that either of these possible explanations would ultimately turn out to be correct, for any such claim would head me down the same road the Court is taking, of resolving factual issues independently of the trial court without warning the respondents that the full evidentiary record bearing on the issue should be identified for us. My point is only that the Court is on shaky grounds when it assumes that prior segregation |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | is on shaky grounds when it assumes that prior segregation and later desegregation are separable in fact as causes of "white flight," that the flight can plausibly be said to result from desegregation alone, and that therefore as a matter of fact the "intradistrict" segregation violation lacked the relevant consequences outside the district required to justify the District Court's magnet concept. With the arguable plausibility of each of these assumptions seriously in question, it is simply rash to reverse the concurrent factual findings of the District Court and the Court of Appeals. All the judges who spoke to the issue below concluded that segregated schooling in the KCMSD contributed to the exodus of white students from the district. Among them were not only the judges most familiar with the record of this litigation, Judge Clark of the District Court and the three members of the Court of Appeals panel that has retained jurisdiction over the case, see but the five judges who dissented from the denial of rehearing en banc in the Court of Appeals (whose opinion the majority does not hesitate to rely on for other purposes): "[By ], `[w]hite flight' to private schools and to the suburbs was rampant. *167 "The district court, correctly recognizing that at least part of this problem was the consequence of the de jure segregation previously practiced under Missouri constitutional and statutory law, fashioned a remedial plan for the desegregation of the KCMSD" The reality is that the Court today overturns the concurrent factual findings of the District Court and the Court of Appeals without having identified any circumstance in the record sufficient to warrant such an extraordinary course of action. B To the substantial likelihood that the Court proceeds on erroneous assumptions of fact must be added corresponding errors of law. We have most recently summed up the obligation to correct the condition of de jure segregation by saying 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.' " Freeman, quoting 391 U. S., at Although the fashioning of judicial remedies to this end has been left, in the first instance, to the equitable discretion of the district courts, in Milliken we established an absolute limitation on this exercise of equitable authority. "[W]ithout an interdistrict violation and interdistrict effect, there is no constitutional wrong calling for an interdistrict remedy." Milliken The Court proceeds as if there is no question but that this proscription applies to this case. But |
Justice Souter | 1,995 | 20 | dissenting | Missouri v. Jenkins | https://www.courtlistener.com/opinion/117944/missouri-v-jenkins/ | question but that this proscription applies to this case. But the proscription does not apply. We are not dealing here with an interdistrict remedy in the sense that Milliken used the term. n the Milliken litigation, the District Court had ordered 53 surrounding school districts to be consolidated with the Detroit *168 school system, and mandatory busing to be started within the enlarged district, even though the court had not found that any of the suburban districts had acted in violation of the Constitution. "The metropolitan remedy would require, in effect, consolidation of 54 independent school districts historically administered as separate units into a vast new super school district." t was this imposition of remedial measures on more than the one wrongdoing school district that we termed an "interdistrict remedy": "We turn to address, for the first time, the validity of a remedy mandating cross-district or interdistrict consolidation to remedy a condition of segregation found to exist in only one district." And it was just this subjection to court order of school districts not shown to have violated the Constitution that we deemed to be in error: "Before the boundaries of separate and autonomous school districts may be set aside by consolidating the separate units for remedial purposes or by imposing a cross-district remedy, it must first be shown that there has been a constitutional violation within one district that produces a significant segregative effect in another district. ". To approve the remedy ordered by the court would impose on the outlying districts, not shown to have committed any constitutional violation, a wholly impermissible remedy based on a standard not hinted at in Brown and or any holding of this Court." -745. We did not hold, however, that any remedy that takes into account conditions outside of the district in which a constitutional violation has been committed is an "interdistrict remedy," and as such improper in the absence of an "interdistrict violation." To the contrary, by emphasizing that remedies in school desegregation cases are grounded in traditional equitable *169 principles, at 7-, we left open the possibility that a district court might subject a proven constitutional wrongdoer to a remedy with intended effects going beyond the district of the wrongdoer's violation, when such a remedy is necessary to redress the harms flowing from the constitutional violation. The Court, nonetheless, reads Milliken quite differently. t reads the case as categorically forbidding imposition of a remedy on a guilty district with intended consequences in a neighboring innocent district, unless the constitutional violation yielded segregative effects in that innocent district. See, e. ante, |
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