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Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
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https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
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The Court today embraces a rule that would find no affront to the First Amendment in the Government's destruction of a book and film business and its entire inventory of legitimate expression as punishment for a single past speech offense. Until now I had thought one could browse through any book or film store in the United without fear that the proprietor had chosen each item to avoid risk to the whole inventory and indeed to the business itself. This ominous, onerous threat undermines free speech and press principles essential to our personal freedom. Obscenity laws would not work unless an offender could be arrested and imprisoned despite the resulting chill on his own further speech. But, at least before today, we have understood state action directed at protected books or other expressive works themselves to raise distinct constitutional concerns. The Court's decision is a grave repudiation of First Amendment principles, and with respect I dissent. I A The majority believes our cases "establish quite clearly that the First Amendment does not prohibit either stringent criminal sanctions for obscenity offenses or forfeiture of expressive materials as punishment for criminal conduct." *561 Ante, at 555. True, we have held that obscenity is expression which can be regulated and punished, within proper limitations, without violating the First Amendment. See, e. g., New ; ; Paris Adult Theatre ; And the majority is correct to note that we have upheld stringent fines and jail terms as punishments for violations of the federal obscenity laws. See Fort Wayne Books, ; But that has little to do with the destruction of protected titles and the facilities for their distribution or publication. None of our cases address that matter, or it would have been unnecessary for us to reserve the specific question four Terms ago in Fort Wayne Books, at 65. The fundamental defect in the majority's reasoning is a failure to recognize that the forfeiture here cannot be equated with traditional punishments such as fines and jail terms. Noting that petitioner does not challenge either the 6-year jail sentence or the $100,000 fine imposed against him as punishment for his convictions under the Racketeer Influenced and Corrupt Organizations Act (RICO), the majority ponders why RICO's forfeiture penalty should be any different. See ante, at 554. The answer is that RICO's forfeiture penalties are different from traditional punishments by Congress' own design as well as in their First Amendment consequences. The federal RICO statute was passed to eradicate the infiltration of legitimate business by organized crime. Title IX, as amended, 18 U.S. C. 1961-1968 (1988 ed.
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
Title IX, as amended, 18 U.S. C. 1961-1968 (1988 ed. and Supp. III). Earlier steps to combat organized crime were not successful, in large part because traditional penalties targeted individuals engaged in racketeering activity rather than the criminal enterprise itself. Punishing racketeers with fines and jail terms failed to *562 break the cycle of racketeering activity because the criminal enterprises had the resources to replace convicted racketeers with new recruits. In passing RICO, Congress adopted a new approach aimed at the economic roots of organized crime: "What is needed here are new approaches that will deal not only with individuals, but also with the economic base through which those individuals constitute such a serious threat to the economic well-being of the Nation. In short, an attack must be made on their source of economic power itself, and the attack must take place on all available fronts." S. Rep. No. 91-617, p. 79 (1969). Criminal liability under RICO is premised on the commission of a "pattern of racketeering activity," defined by the statute as engaging in two or more related predicate acts of racketeering within a 10-year period. 18 U.S. C. 1961(5). A RICO conviction subjects the violator not only to traditional, though stringent, criminal fines and prison terms, but also mandatory forfeiture under 1963.[*] It is the mandatory forfeiture penalty that is at issue here. *563 While forfeiture remedies have been employed with increasing frequency in civil proceedings, forfeiture remedies and penalties are the subject of historic disfavor in our country. Although in personam forfeiture statutes were well grounded in the English common law, see in personam criminal forfeiture penalties like those authorized under 1963 were unknown in the federal system until the enactment of RICO in 19. See 1 C. Wright, Federal Practice and Procedure 125.1, p. 389 Section 1963's forfeiture penalties are novel for their punitive character as well as for their unprecedented sweep. Civil in rem forfeiture is limited in application to contraband and articles put to unlawful use, or in its broadest reach, to proceeds traceable to unlawful activity. See United ; The Palmyra, Extending beyond contraband or its traceable proceeds, RICO mandates the forfeiture of property constituting the defendant's "interest in the racketeering enterprise" and property affording the violator a "source of influence" over the RICO enterprise. 18 U.S. C. 1963(a) (1988 ed. and Supp. III). In a previous decision, we acknowledged the novelty of RICO's penalty scheme, stating that Congress passed RICO to provide "new weapons of unprecedented scope for an assault upon organized crime and its economic roots." As enacted in 19, RICO
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
crime and its economic roots." As enacted in 19, RICO targeted offenses then thought endemic to organized crime. 18 U.S. C. 1961(1). When RICO was amended in 1984 to include obscenity as a predicate offense, there was no comment or debate in Congress on the First Amendment implications of the change. Act of Oct. 12, 1984, Stat. 2143. The consequence of adding a speech offense to a statutory scheme designed *564 to curtail a different kind of criminal conduct went far beyond the imposition of severe penalties for obscenity offenses. The result was to render vulnerable to Government destruction any business daring to deal in sexually explicit materials. The unrestrained power of the forfeiture weapon was not lost on the Executive Branch, which was quick to see in the amended statute the means and opportunity to move against certain types of disfavored speech. The Attorney General's Commission on Pornography soon advocated the use of RICO and similar state statutes to "substantially handicap" or "eliminate" pornography businesses. 1 United Dept. of Justice, Attorney General's Commission on Pornography, Final Report 498 As these comments illustrate, the constitutional concerns raised by a penalty of this destructive capacity are distinct from the concerns raised by traditional methods of punishment. The Court says that, taken together, our decisions in Fort Wayne Books and dispose of petitioner's First Amendment argument. See ante, at 556-558. But while instructive, neither case is dispositive. In Fort Wayne Books we considered a state law patterned on the federal RICO statute, and upheld its scheme of using obscenity offenses as the predicate acts resulting in fines and jail terms of great severity. We recognized that the fear of severe penalties may result in some self-censorship by cautious booksellers, but concluded that this is a necessary consequence of conventional obscenity 489 U.S., at In rejecting the argument that the fines and jail terms in Fort Wayne Books infringed upon First Amendment principles, we regarded the penalties as equivalent to a sentence enhancement for multiple obscenity violations, a remedy of accepted constitutional legitimacy. at 59-. We did not consider in Fort Wayne Books the First Amendment implications of extensive penal forfeitures, including the official destruction of protected expression. Further, while Fort Wayne Books acknowledges that some *565 degree of self-censorship may be unavoidable in obscenity regulation, the alarming element of the forfeiture scheme here is the pervasive danger of government censorship, an issue, I submit, the Court does not confront. In Arcara, we upheld against First Amendment challenge a criminal law requiring the temporary closure of an adult bookstore as a penal sanction
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
temporary closure of an adult bookstore as a penal sanction for acts of prostitution occurring on the premises. We did not subject the closure penalty to First Amendment scrutiny even though the collateral consequence of its imposition would be to affect interests of traditional First Amendment concern. We said that such scrutiny was not required when a criminal penalty followed conduct "manifest[ing] absolutely no element of protected expression." That the RICO prosecution of Alexander involved the targeting of a particular class of unlawful speech itself suffices to distinguish the instant case from Arcara. There can be little doubt that regulation and punishment of certain classes of unprotected speech have implications for other speech that is close to the proscribed line, speech which is entitled to the protections of the First Amendment. See Further, a sanction requiring the temporary closure of a bookstore cannot be equated, as it is under the Court's unfortunate analysis, see ante, at 556-557, with a forfeiture punishment mandating its permanent destruction. B The majority tries to occupy the high ground by assuming the role of the defender of the doctrine of prior restraint. It warns that we disparage the doctrine if we reason from it. But as an analysis of our prior restraint cases reveals, our application of the First Amendment has adjusted to meet new threats to speech. The First Amendment is a rule of substantive protection, not an artifice of categories. The admitted design and the overt purpose of the forfeiture in this case are to destroy an entire speech business and all its protected *566 titles, thus depriving the public of access to lawful expression. This is restraint in more than theory. It is censorship all too real. Relying on the distinction between prior restraints and subsequent punishments, ante, at 548, 553-554, the majority labels the forfeiture imposed here a punishment and dismisses any further debate over the constitutionality of the forfeiture penalty under the First Amendment. Our cases do recognize a distinction between prior restraints and subsequent punishments, but that distinction is neither so rigid nor so precise that it can bear the weight the Court places upon it to sustain the destruction of a speech business and its inventory as a punishment for past expression. In its simple, most blatant form, a prior restraint is a law which requires submission of speech to an official who may grant or deny permission to utter or publish it based upon its contents. See ; Joseph Burstyn, ; A Quantity of Copies of ; see also M. on Freedom of Speech 4.03, p. 4-14
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
see also M. on Freedom of Speech 4.03, p. 4-14 (1984). In contrast are laws which punish speech or expression only after it has occurred and been found unlawful. See Kingsley Books, While each mechanism, once imposed, may abridge speech in a direct way by suppressing it, or in an indirect way by chilling its dissemination, we have interpreted the First Amendment as providing greater protection from prior restraints than from subsequent punishments. See, e. g., ; Southeastern Promotions, ; Kingsley Books, at In Southeastern Promotions, we explained that "[b]ehind the distinction is a theory deeply etched in our law: a free society prefers to punish the few who abuse rights of speech after *567 they break the law than to throttle them and all others beforehand." It has been suggested that the distinction between prior restraints and subsequent punishments may have slight utility, see 4.04, at 4-18 to 4-25, for in a certain sense every criminal obscenity statute is a prior restraint because of the caution a speaker or bookseller must exercise to avoid its imposition. See ; see also Jeffries, Rethinking Prior Restraint, 92 Yale L. J. 409, 437 To be sure, the term "prior restraint" is not self-defining. One problem, of course, is that some governmental actions may have the characteristics both of punishment and prior restraint. A historical example is the sentence imposed on Hugh Singleton in 1579 after he had enraged Elizabeth I by printing a certain tract. See F. Freedom of the Press in England, 1476-1776, pp. 91-92 Singleton was condemned to lose his right hand, thus visiting upon him both a punishment and a disability encumbering all further printing. Though the sentence appears not to have been carried out, it illustrates that a prior restraint and a subsequent punishment may occur together. Despite the concurrent operation of the two kinds of prohibitions in some cases, the distinction between them persists in our law, and it is instructive here to inquire why this is so. Early in our legal tradition the source of the distinction was the English common law, in particular the oft cited passage from William Blackstone's 18th-century Commentaries on the Laws of England. He observed as follows: "The liberty of the press is indeed essential to the nature of a free state; but this consists in laying no previ- ous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public: to forbid this, is to *568 destroy the freedom of the press:
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
this, is to *568 destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequence of his own temerity." 4 W. Blackstone, Commentaries *151*152. The English law which Blackstone was compiling had come to distrust prior restraints, but with little accompanying condemnation of subsequent punishments. Part of the explanation for this lies in the circumstance that, in the centuries before Blackstone wrote, prior censorship, including licensing, was the means by which the Crown and the Parliament controlled speech and press. See As those methods were the principal means used by government to control speech and press, it follows that an unyielding populace would devote its first efforts to avoiding or repealing restrictions in that form. Even as Blackstone wrote, however, subsequent punishments were replacing the earlier censorship schemes as the mechanism for government control over disfavored speech in England. Whether Blackstone's apparent tolerance of subsequent punishments resulted from his acceptance of the English law as it then existed or his failure to grasp the potential threat these measures posed to liberty, or both, subsequent punishment in the broad sweep that he commented upon would be in flagrant violation of the principles of free speech and press that we have come to know and understand as being fundamental to our First Amendment freedoms. Indeed, in the beginning of our Republic, James Madison argued against the adoption of Blackstone's definition of free speech under the First Amendment. Said Madison: "[T]his idea of the freedom of the press can never be admitted to be the American idea of it" because a law inflicting penalties would have the same effect as a law authorizing a prior restraint. 6 Writings of James Madison 386 (G. Hunt ed. 1906). The enactment of the alien and sedition laws early in our own history is an unhappy testament to the allure that restrictive *569 measures have for governments tempted to control the speech and publications of their people. And our earliest cases tended to repeat the suggestion by Blackstone that prior restraints were the sole concern of First Amendment protections. See ; In time, however, the Court rejected the notion that First Amendment freedoms under our Constitution are coextensive with liberties available under the common law of England. See From this came the conclusion that "[t]he protection of the First Amendment is not limited to the Blackstonian idea that freedom of the press means only freedom from restraint prior to publication." As our First Amendment law has developed, we have not confined the application of the prior restraint
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
we have not confined the application of the prior restraint doctrine to its simpler forms, outright licensing or censorship before speech takes place. In considering governmental measures deviating from the classic form of a prior restraint yet posing many of the same dangers to First Amendment freedoms, we have extended prior restraint protection with some latitude, toward the end of declaring certain governmental actions to fall within the presumption of invalidity. This approach is evident in the leading case in which we invoked the prior restraint doctrine to invalidate a state injunctive decree. In Near, a Minnesota statute authorized judicial proceedings to abate as a nuisance a "`malicious, scandalous and defamatory newspaper, magazine or other periodical.' " In a suit brought by the attorney for Hennepin County it was established that Near had published articles in various editions of The Saturday Press in violation of the statutory standard. Citing the instance of these past unlawful publications, the court enjoined any future *5 violations of the state statute. In one sense the injunctive order, which paralleled the nuisance statute, did nothing more than announce the conditions under which some later punishment might be imposed, for one presumes that contempt could not be found until there was a further violation in contravention of the order. But in Near the publisher, because of past wrongs, was subjected to active state intervention for the control of future speech. We found that the scheme was a prior restraint because it embodied "the essence of censorship." This understanding is confirmed by our later decision in Kingsley Books v. where we said that it had been enough to condemn the injunction in Near that Minnesota had "empowered its courts to enjoin the dissemination of future issues of a publication because its past issues had been found offensive." Indeed the Court has been consistent in adopting a speechprotective definition of prior restraint when the state attempts to attack future speech in retribution for a speaker's past transgressions. See (invalidating as a prior restraint procedure authorizing state courts to abate as a nuisance an adult theater which had exhibited obscene films in the past because the effect of the procedure was to prevent future exhibitions of pictures not yet found to be obscene). It is a flat misreading of our precedents to declare as the majority does that the definition of a prior restraint includes only those measures which impose a "legal impediment," ante, at 551, on a speaker's ability to engage in future expressive activity. Bantam Books, v. best illustrates the point. There a state commission did nothing
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Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
best illustrates the point. There a state commission did nothing more than warn booksellers that certain titles could be obscene, implying that criminal prosecutions could follow if their warnings were not heeded. The commission had no formal enforcement powers, and failure to heed its warnings was not a criminal offense. Although *571 the commission could impose no legal impediment on a speaker's ability to engage in future expressive activity, we held that scheme was an impermissible "system of prior administrative restraints." There we said: "We are not the first court to look through forms to the substance and recognize that informal censorship may sufficiently inhibit the circulation of publications to warrant injunctive relief." If mere warning against sale of certain materials was a prior restraint, I fail to see why the physical destruction of a speech enterprise and its protected inventory is not condemned by the same doctrinal principles. One wonders what today's majority would have done if faced in Near with a novel argument to extend the traditional conception of the prior restraint doctrine. In view of the formalistic approach the Court advances today, the Court likely would have rejected Near's pleas on the theory that to accept his argument would be to "blur the line separating prior restraints from subsequent punishments to such a degree that it would be impossible to determine with any certainty whether a particular measure is a prior restraint or not." Ante, at 554. In so holding the Court would have ignored, as the Court does today, that the applicability of First Amendment analysis to a governmental action depends not alone upon the name by which the action is called, but upon its operation and effect on the suppression of speech. Near, at 8 See also ; Southeastern Promotions, -553 ; The cited cases identify a progression in our First Amendment jurisprudence which results from a more fundamental principle. As governments try new ways to subvert essential freedoms, legal and constitutional systems respond by making more explicit the nature and the extent of the liberty in question. First in Near, and later in Bantam Books and Vance, we were faced with official action which did not fall within the traditional meaning of the term "prior restraint," yet posed many of the same censorship dangers. Our response was to hold that the doctrine not only includes licensing schemes requiring speech to be submitted to a censor for review prior to dissemination, but also encompasses injunctive systems which threaten or bar future speech based on some past infraction. Although we consider today a new method of
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Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
past infraction. Although we consider today a new method of government control with unmistakable dangers of official censorship, the majority concludes that First Amendment freedoms are not endangered because forfeiture follows a lawful conviction for obscenity offenses. But this explanation does not suffice. The rights of free speech and press in their broad and legitimate sphere cannot be defeated by the simple expedient of punishing after in lieu of censoring before. See at -102; -102 This is so because in some instances the operation and effect of a particular enforcement scheme, though not in the form of a traditional prior restraint, may be to raise the same concerns which inform all of our prior restraint cases: the evils of state censorship and the unacceptable chilling of protected speech. The operation and effect of RICO's forfeiture remedies are different from a heavy fine or a severe jail sentence because *573 RICO's forfeiture provisions are different in purpose and kind from ordinary criminal sanctions. See at 563 565. The Government's stated purpose under RICO, to destroy or incapacitate the offending enterprise, bears a striking resemblance to the motivation for the state nuisance statute the Court struck down as an impermissible prior restraint in Near. The purpose of the state statute in Near was "not punishment, in the ordinary sense, but suppression of the offending newspaper or periodical." In the context of the First Amendment, it is quite odd indeed to apply a measure implemented not only to deter unlawful conduct by imposing punishment after violations, but to "`incapacitate, and directly to remove the corrupting influence from the channels of commerce.' " quoting 116 Cong. Rec. 18955 (19) (remarks of sponsor Sen. McClellan). The particular nature of Ferris Alexander's activities ought not blind the Court to what is at stake here. Under the principle the Court adopts, any bookstore or press enterprise could be forfeited as punishment for even a single obscenity conviction. Assuming the constitutionality of the mandatory forfeiture under 1963 when applied to nonspeech-related conduct, the constitutional analysis must be different when that remedy is imposed for violations of the federal obscenity laws. "Our decisions furnish examples of legal devices and doctrines, in most applications consistent with the Constitution, which cannot be applied in settings where they have the collateral effect of inhibiting the freedom of expression." The regulation of obscenity, often separated from protected expression only by a "dim and uncertain line," must be accomplished through "procedures that will ensure against the curtailment of constitutionally protected expression." Bantam Books v. Because freedoms of expression are "vulnerable to gravely damaging yet
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
Because freedoms of expression are "vulnerable to gravely damaging yet barely visible encroachments," *574 ib the government must use measures that are sensitive to First Amendment concerns in its task of regulating or punishing speech. 357 U. S., at Whatever one might label the RICO forfeiture provisions at issue in this case, be it effective, innovative, or Draconian, 1963 was not designed for sensitive and exacting application. What is happening here is simple: Books and films are condemned and destroyed not for their own content but for the content of their owner's prior speech. Our law does not permit the government to burden future speech for this sort of taint. Section 1963 requires trial courts to forfeit not only the unlawful items and any proceeds from their sale, but also the defendant's entire interest in the enterprise involved in the RICO violations and any assets affording the defendant a source of influence over the enterprise. 18 U.S. C. 1963(a)(1)(3) (1988 ed. and Supp. III). A defendant's exposure to this massive penalty is grounded on the commission of just two or more related obscenity offenses committed within a 10-year period. Aptly described, RICO's forfeiture provisions "arm prosecutors not with scalpels to excise obscene portions of an adult bookstore's inventory but with sickles to mow down the entire undesired use." Fort Wayne Books, What is at work in this case is not the power to punish an individual for his past transgressions but the authority to suppress a particular class of disfavored speech. The forfeiture provisions accomplish this in a direct way by seizing speech presumed to be protected along with the instruments of its dissemination, and in an indirect way by threatening all who engage in the business of distributing adult or sexually explicit materials with the same disabling measures. Cf. Pittsburgh Press v. Pittsburgh Comm'n on Human Relations, In a society committed to freedom of thought, inquiry, and discussion without interference or guidance from the state, public confidence in the institutions devoted to the dissemination of written matter and films is essential. That confidence erodes if it is perceived that speakers and the press are vulnerable for all of their expression based on some errant expression in the past. Independence of speech and press can be just as compromised by the threat of official intervention as by the fact of it. See Bantam Books, v. at Though perhaps not in the form of a classic prior restraint, the application of the forfeiture statute here bears its censorial cast. Arcara recognized, as the Court today does not, the vital difference between
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
as the Court today does not, the vital difference between a punishment imposed for a speech offense and a punishment imposed for some other crime. Where the government seeks forfeiture of a bookstore because of its owner's drug offenses, there is little reason to surmise, absent evidence of selective prosecution, that abolishing the bookstore is related to the government's disfavor of the publication outlet or its activities. Where, however, RICO forfeiture stems from a previous speech offense, the punishment serves not only the Government's interest in purging organized-crime taint, but also its interest in deterring the activities of the speech-related business itself. The threat of a censorial motive and of ongoing speech supervision by the state justifies the imposition of First Amendment protection. Free speech principles, well established by our cases, require in this case that the forfeiture of the inventory and of the speech distribution facilities be held invalid. The distinct concern raised by 1963 forfeiture penalties is not a proportionality concern; all punishments are subject to analysis for proportionality and this concern should be addressed under the Eighth Amendment. See Austin v. *576 United post, p. 2. Here, the question is whether, when imposed as punishment for violation of the federal obscenity laws, the operation of RICO's forfeiture provisions is an exercise of Government censorship and control over protected speech as condemned in our prior restraint cases. In my view the effect is just that. For this reason I would invalidate those portions of the judgment which mandated the forfeiture of petitioner's business enterprise and inventory, as well as all property affording him a source of influence over that enterprise. II Quite apart from the direct bearing that our prior restraint cases have on the entire forfeiture that was ordered in this case, the destruction of books and films that were not obscene and not adjudged to be so is a remedy with no parallel in our cases. The majority says that our cases "establish quite clearly that the First Amendment does not prohibit forfeiture of expressive materials as punishment for criminal conduct." See ante, at 555. But the single case cited in support of this stark new threat to all speech enterprises is Arcara, as is quite inapposite. There we found unconvincing the argument that protected book selling activities were burdened by the closure, saying that the owners "remain free to sell [and the public remains free to acquire] the same materials at another location." Alexander and the public do not have those choices here for a simple reason: The Government has destroyed the inventory. Further, the
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
simple reason: The Government has destroyed the inventory. Further, the sanction in Arcara did not involve a complete confiscation or destruction of protected expression as did the forfeiture in this case. Here the inventory forfeited consisted of hundreds of original titles and thousands of copies, all of which are presumed to be protected speech. In fact, some of the materials seized were the very ones the jury here determined not to be obscene. Even so, all of the inventory was seized and destroyed. *577 Even when interim pretrial seizures are used, we have been careful to say that First Amendment materials cannot be taken out of circulation until they have been determined to be unlawful. "[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause. it is otherwise when materials presumptively protected by the First Amendment are involved." Fort Wayne Books, See ; Lo-Ji Sales, v. New York, 3, n. 5 In we invalidated a mass pretrial seizure of allegedly obscene publications achieved through a warrant that was vague and unspecific. The constitutional defect there was that the seizure was imposed without safeguards necessary to assure nonobscene material the constitutional protection to which it is entitled. In similar fashion we invalidated, in A Quantity of Copies of 213, a state procedure authorizing seizure of books alleged to be obscene prior to hearing, even though the system involved judicial examination of some of the seized titles. While the force behind the special protection accorded searches for and seizures of First Amendment materials is the risk of prior restraint, see 4 in substance the rule prevents seizure and destruction of expressive materials in circumstances such as are presented in this case without an adjudication of their unlawful character. It follows from the search cases in which the First Amendment required exacting protection, that one title does not become seizable or tainted because of its proximity on the shelf to another. And if that is the rule for interim seizures, it follows with even greater force that protected materials cannot be destroyed altogether for some alleged taint from an owner who committed a speech violation. In attempting *578 to distinguish the holdings of Marcus and A Quantity of Books, the Court describes the constitutional infirmity in those cases as follows: "[T]he government had seized or otherwise restrained materials suspected of being obscene without a prior judicial determination that they were in fact so." Ante, at 551. But the same constitutional defect is present in the case before
|
Justice Kennedy
| 1,993 | 4 |
dissenting
|
Alexander v. United States
|
https://www.courtlistener.com/opinion/112902/alexander-v-united-states/
|
the same constitutional defect is present in the case before us today, and the Court fails to explain why it is not fatal to the forfeiture punishment here under review. Thus, while in the past we invalidated seizures which resulted in a temporary removal of presumptively protected materials from circulation, today the Court approves of Government measures having the same permanent effect. In my view, the forfeiture of expressive material here that had not been adjudged to be obscene, or otherwise without the protection of the First Amendment, was unconstitutional. * * * Given the Court's principal holding, I can interpose no objection to remanding the case for further consideration under the Eighth Amendment. But it is unnecessary to reach the Eighth Amendment question. The Court's failure to reverse this flagrant violation of the right of free speech and expression is a deplorable abandonment of fundamental First Amendment principles. I dissent from the judgment and from the opinion of the Court.
|
Justice Roberts
| 2,006 | 0 |
dissenting
|
Georgia v. Randolph
|
https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
|
The Court creates constitutional law by surmising what is typical when a social guest encounters an entirely atypical situation. The rule the majority fashions does not implement the high office of the Fourth Amendment to protect privacy, but instead provides protection on a random and happenstance basis, protecting, for example, a co-occupant who happens to be at the front door when the other occupant consents to a search, but not one napping or watching television in the next room. And the cost of affording such random protection is great, as demonstrated by the recurring cases in which abused spouses seek to authorize police entry into a home they share a nonconsenting abuser. *128 The correct approach to the question presented is clearly mapped out in our precedents: The Fourth Amendment protects privacy. If an individual shares information, papers, or places another, he assumes the risk that the other person will in turn share access to that information or those papers or places the government. And just as an individual who has shared illegal plans or incriminating documents another cannot interpose an objection when that other person turns the information over to the government, just because the individual happens to be present at the time, so too someone who shares a place another cannot interpose an objection when that person decides to grant access to the police, simply because the objecting individual happens to be present. A warrantless search is reasonable if police obtain the voluntary consent of a person authorized to give it. Co-occupants have "assumed the risk that one of their number might permit [a] common area to be searched." United Just as Mrs. Randolph could walk upstairs, come down, and turn her husband's cocaine straw over to the police, she can consent to police entry and search of what is, after all, her home, too. I In this Court stated that "[w]hat [a person] is assured by the Fourth Amendment is not that no government search of his house will occur unless he consents; but that no such search will occur that is `unreasonable.'" One element that can make a warrantless government search of a home "`reasonable'" is voluntary consent. ; Proof of voluntary consent "is not limited to proof that consent was given by the defendant," but the government "may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship *129 to the premises." Today's opinion creates an exception to this otherwise clear rule: A third-party consent search is unreasonable, and therefore constitutionally impermissible, if the co-occupant
|
Justice Roberts
| 2,006 | 0 |
dissenting
|
Georgia v. Randolph
|
https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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search is unreasonable, and therefore constitutionally impermissible, if the co-occupant against whom evidence is obtained was present and objected to the entry and search. This exception is based on what the majority describes as "widely shared social expectations" that "when people living together disagree over the use of their common quarters, a resolution must come through voluntary accommodation." Ante, at 111, 113-114. But this fundamental predicate to the majority's analysis gets us nowhere: Does the objecting co-tenant accede to the consenting co-tenant's wishes, or the other way around? The majority's assumption about voluntary accommodation simply leads to the common stalemate of two gentlemen insisting that the other enter a room first. Nevertheless, the majority is confident in assumingconfident enough to incorporate its assumption into the Constitutionthat an invited social guest who arrives at the door of a shared residence, and is greeted by a disagreeable co-occupant shouting "`stay out,'" would simply go away. Ante, at 113. The Court observes that "no sensible person would go inside under those conditions," ib and concludes from this that the inviting co-occupant has no "authority" to insist on getting her way over the wishes of her co-occupant, ante, at 114. But it seems equally accurate to saybased on the majority's conclusion that one does not have a right to prevail over the express wishes of his co-occupantthat the objector has no "authority" to insist on getting his way over his co-occupant's wish that her guest be admitted. The fact is that a wide variety of differing social situations can readily be imagined, giving rise to quite different social expectations. A relative or good friend of one of two feuding roommates might well enter the apartment over the objection of the other roommate. The reason the invitee *130 appeared at the door also affects expectations: A guest who came to celebrate an occupant's birthday, or one who had traveled some distance for a particular reason, might not readily turn away simply because of a roommate's objection. The nature of the place itself is also pertinent: Invitees may react one way if the feuding roommates share one room, differently if there are common areas from which the objecting roommate could readily be expected to absent himself. Altering the numbers might well change the social expectations: Invitees might enter if two of three co-occupants encourage them to do so, over one dissenter. The possible scenarios are limitless, and slight variations in the fact pattern yield vastly different expectations about whether the invitee might be expected to enter or to go away. Such shifting expectations are not a
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Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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or to go away. Such shifting expectations are not a promising foundation on which to ground a constitutional rule, particularly because the majority has no support for its basic assumptionthat an invited guest encountering two disagreeing co-occupants would fleebeyond a hunch about how people would typically act in an atypical situation. And in fact the Court has not looked to such expectations to decide questions of consent under the Fourth Amendment, but only to determine when a search has occurred and whether a particular person has standing to object to a search. For these latter inquiries, we ask whether a person has a subjective expectation of privacy in a particular place, and whether "the expectation [is] one that society is prepared to recognize as `reasonable.'" ; see But the social expectations concept has not been applied to all questions arising under the Fourth Amendment, least of all issues of consent. A criminal might have a strong expectation that his longtime confidant will not allow the government to listen to their private conversations, but however profound his shock might be *131 upon betrayal, government monitoring the confidant's consent is reasonable under the Fourth Amendment. See United The majority suggests that "widely shared social expectations" are a "constant element in assessing Fourth Amendment reasonableness," ante, at 111 ), but that is not the case; the Fourth Amendment precedents the majority cites refer instead to a "legitimate expectation of privacy," Whatever social expectation the majority seeks to protect, it is not one of privacy. The very predicate giving rise to the question in cases of shared information, papers, containers, or places is that privacy has been shared another. Our common social expectations may well be that the other person will not, in turn, share what we have shared them anotherincluding the policebut that is the risk we take in sharing. If two friends share a locker and one keeps contraband inside, he might trust that his friend will not let others look inside. But by sharing private space, privacy has "already been frustrated" respect to the lockermate. United If two roommates share a computer and one keeps pirated software on a shared drive, he might assume that his roommate will not inform the government. But that person has given up his privacy respect to his roommate by saving the software on their shared computer. A wide variety of often subtle social conventions may shape expectations about how we act when another shares us what is otherwise private, and those conventions go by a variety of labelscourtesy, good manners, custom, protocol, even honor among
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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variety of labelscourtesy, good manners, custom, protocol, even honor among thieves. The Constitution, however, protects not these but privacy, and once privacy has been shared, the shared information, documents, or places remain private only at the discretion of the confidant. *132 II Our cases reflect this understanding. In United we held that one party to a conversation can consent to government eavesdropping, and statements made by the other party will be admissible at 401 U.S., at This rule is based on privacy: "Inescapably, one contemplating illegal activities must realize and risk that his companions may be reporting to the police. [I]f he has no doubts, or allays them, or risks what doubt he has, the risk is his." The Court has applied this same analysis to objects and places as well. In a duffel bag "was being used jointly" by two cousins. The Court held that the consent of one was effective to result in the seizure of evidence used against both: "[I]n allowing [his cousin] to use the bag and in leaving it in his house, [the defendant] must be taken to have assumed the risk that [his cousin] would allow someone else to look inside." As the Court explained in United "It is well settled that when an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information. Once frustration of the original expectation of privacy occurs, the Fourth Amendment does not prohibit governmental use of the now nonprivate information: `This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in a third party will not be betrayed.'" *133 at ). The same analysis applies to the question whether our privacy can be compromised by those whom we share common living space. If a person keeps contraband in common areas of his home, he runs the risk that his co-occupants will deliver the contraband to the police. In 403 U.S. Mrs. Coolidge retrieved four of her husband's guns and the clothes he was wearing the previous night and handed them over to police. We held that these items were properly admitted at trial because "when Mrs. Coolidge of her own accord produced the guns and clothes for inspection, it was not incumbent
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Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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the guns and clothes for inspection, it was not incumbent on the police to stop her or avert their eyes." Even in our most private relationships, our observable actions and possessions are private at the discretion of those around us. A husband can request that his wife not tell a jury about contraband that she observed in their home or illegal activity to which she bore witness, but it is she who decides whether to invoke the testimonial marital privilege. In Trammel, we noted that the former rule prohibiting a wife from testifying about her husband's observable wrongdoing at his say-so "goes far beyond making `every man's house his castle,' and permits a person to convert his house into `a den of thieves.'" There is no basis for evaluating physical searches of shared space in a manner different from how we evaluated the privacy interests in the foregoing cases, and in fact the Court has proceeded along the same lines in considering such searches. In police arrested the defendant in the front yard of a house and placed him in a squad car, and then obtained permission from Mrs. Graff to search a shared bedroom for evidence of 's bank robbery. Police certainly could have assumed that *134 would have objected were he consulted as he sat handcuffed in the squad car outside. And in where Miss Fischer offered to facilitate the arrest of her sleeping boyfriend by admitting police into an apartment she apparently shared him, police might have noted that this entry was undoubtedly contrary to 's social expectations. Yet both of these searches were reasonable under the Fourth Amendment because Mrs. Graff had authority, and Miss Fischer apparent authority, to admit others into areas over which they exercised control, despite the almost certain wishes of their present co-occupants. The common thread in our decisions upholding searches conducted pursuant to third-party consent is an understanding that a person "assume[s] the risk" that those who have access to and control over his shared property might consent to a search. 415 U. S., at In we explained that this assumption of risk is derived from a third party's "joint access or control for most purposes" of shared property. And we concluded that shared use of property makes it "reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right." In this sense, the risk assumed by a joint occupant is comparable to the risk assumed by one who reveals private information to another. If a person has incriminating information, he can keep
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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another. If a person has incriminating information, he can keep it private in the face of a request from police to share it, because he has that right under the Fifth Amendment. If a person occupies a house incriminating information in it, he can keep that information private in the face of a request from police to search the house, because he has that right under the Fourth Amendment. But if he shares the informationor the house another, that other can grant access to the police in each instance.[1] *135 To the extent a person wants to ensure that his possessions will be subject to a consent search only due to his own consent, he is free to place these items in an area over which others do not share access and control, be it a private room or a locked suitcase under a bed. Mr. Randolph acknowledged this distinction in his motion to suppress, where he differentiated his law office from the rest of the Randolph house by describing it as an area that "was solely in his control and dominion." App. 3. As to a "common area," however, co-occupants "joint access or control" may consent to an entry and search. at By emphasizing the objector's presence and noting an occupant's understanding that obnoxious guests might "be admitted in [one's] absence," ante, at 111, the majority appears to resurrect an agency theory of consent suggested in our early cases. See ; This agency theory is belied by the facts of and both defendants were present but simply not asked for consentand the Court made clear in those cases that a co-occupant's authority to consent rested not on an absent occupant's delegation of choice to an agent, but on the consenting co-occupant's "joint access or control" of the property. at ; see ; United ("[A]gency analysis [was] put to rest by the Supreme Court's reasoning in "). The law acknowledges that although we might not expect our friends and family to admit the government into common areas, sharing space entails risk. A person assumes the risk that his co-occupantsjust as they might report his illegal activity or deliver his contraband to the governmentmight consent to a search of areas over which they have access and control. See United (finding it a "relatively easy case when two persons share identical, overlapping privacy interests in a particular place, container, or conversation. Here both share the power to surrender each other's privacy to a third party"). III The majority states its rule as follows: "[A] warrantless search of a shared dwelling for evidence
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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follows: "[A] warrantless search of a shared dwelling for evidence over the express refusal of consent by a physically present resident cannot be justified as reasonable as to him on the basis of consent given to the police by another resident." Ante, at 120. Just as the source of the majority's rule is not privacy, so too the interest it protects cannot reasonably be described as such. That interest is not protected if a co-owner happens to be absent when the police arrive, in the backyard gardening, asleep in the next room, or listening to music *137 through earphones so that only his co-occupant hears the knock on the door. That the rule is so random in its application confirms that it bears no real relation to the privacy protected by the Fourth Amendment. What the majority's rule protects is not so much privacy as the good luck of a co-owner who just happens to be present at the door when the police arrive. Usually when the development of Fourth Amendment jurisprudence leads to such arbitrary lines, we take it as a signal that the rules need to be rethought. See We should not embrace a rule at the outset that its sponsors appreciate will result in drawing fine, formalistic lines. See ante, at 121. Rather than draw such random and happenstance lines and pretend that the Constitution decreed themthe more reasonable approach is to adopt a rule acknowledging that shared living space entails a limited yielding of privacy to others, and that the law historically permits those to whom we have yielded our privacy to in turn cooperate the government. Such a rule flows more naturally from our cases concerning Fourth Amendment reasonableness and is logically grounded in the concept of privacy underlying that Amendment. The scope of the majority's rule is not only arbitrary but obscure as well. The majority repeats several times that a present co-occupant's refusal to permit entry renders the search unreasonable and invalid "as to him." Ante, at 106, 120, 122. This implies entry and search would be reasonable "as to" someone else, presumably the consenting co-occupant and any other absent co-occupants. The normal Fourth Amendment rule is that items discovered in plain view are admissible if the officers were legitimately on the premises; if the entry and search were reasonable "as to" Mrs. Randolph, based on her consent, it is not clear why the cocaine straw should not be admissible "as to" Mr. Randolph, as discovered in plain view during a legitimate search "as *138 to" Mrs. Randolph. The majority's differentiation between entry
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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"as *138 to" Mrs. Randolph. The majority's differentiation between entry focused on discovering whether domestic violence has occurred (and the consequent authority to seize items in plain view), and entry focused on searching for evidence of other crime, is equally puzzling. See ante, at 118-119. This Court has rejected subjective motivations of police officers in assessing Fourth Amendment questions, see good reason: The police do not need a particular reason to ask for consent to search, whether for signs of domestic violence or evidence of drug possession. While the majority's rule protects something random, its consequences are particularly severe. The question presented often arises when innocent co-tenants seek to disassociate or protect themselves from ongoing criminal activity. See, e. g., United (wife asked police "`to get her baby and take [a] sawed-off shotgun out of her house'"); ; United Under the majority's rule, there will be many cases in which a consenting co-occupant's wish to have the police enter is overridden by an objection from another present co-occupant. What does the majority imagine will happen, in a case in which the consenting co-occupant is concerned about the other's criminal activity, once the door clicks shut? The objecting co-occupant may pause briefly to decide whether to destroy any evidence of wrongdoing or to inflict retribution on the consenting co-occupant first, but there can be little doubt that he will attend to both in short order. It is no answer to say that the consenting co-occupant can depart the police; remember that it is her home, too, and the other co-occupant's very presence, which allowed him to object, may also prevent the consenting co-occupant from doing more than urging the police to enter. *139 Perhaps the most serious consequence of the majority's rule is its operation in domestic abuse situations, a context in which the present question often arises. See ; United ; ; While people living together might typically be accommodating to the wishes of their co-tenants, requests for police assistance may well come from co-inhabitants who are having a disagreement. The Court concludes that because "no sensible person would go inside" in the face of disputed consent, ante, at 113, and the consenting co-tenant thus has "no recognized authority" to insist on the guest's admission, ante, at 114, a "police officer [has] no better claim to reasonableness in entering than the officer would have in the absence of any consent at all," But the police officer's superior claim to enter is obvious: Mrs. Randolph did not invite the police to join her for dessert and coffee; the officer's precise purpose
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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join her for dessert and coffee; the officer's precise purpose in knocking on the door was to assist a dispute between the Randolphsone in which Mrs. Randolph felt the need for the protective presence of the police. The majority's rule apparently forbids police from entering to assist a domestic dispute if the abuser whose behavior prompted the request for police assistance objects.[2] *140 The majority acknowledges these concerns, but dismisses them on the ground that its rule can be expected to give rise to exigent situations, and police can then rely on an exigent circumstances exception to justify entry. Ante, at 116-, n. 6. This is a strange way to justify a rule, and the fact that alternative justifications for entry might arise does not show that entry pursuant to consent is unreasonable. In addition, it is far from clear that an exception for emergency entries suffices to protect the safety of occupants in domestic disputes. See, e. g., United (finding no exigent circumstances justifying entry when police responded to a report of domestic abuse, officers heard no noise upon arrival, defendant told officers that his wife was out of town, and wife then appeared at the door seemingly unharmed but resisted husband's efforts to close the door). Rather than give effect to a consenting spouse's authority to permit entry into her house to avoid such situations, the majority again alters established Fourth Amendment rules to defend giving veto power to the objecting spouse. In response to the concern that police might be turned away under its rule before entry can be justified based on exigency, the majority creates a new rule: A "good reason" to enter, coupled one occupant's consent, will ensure that a police officer is "lawfully in the premises." Ante, at 118. As support for this "consent plus a good reason" rule, the majority cites a treatise, which itself refers only to emergency entries. (citing 4 W. LaFave, Search and Seizure 8.3(d), p. 161 (4th ed. 2004)). For the sake of defending what it concedes are fine, formalistic lines, the majority *141 spins out an entirely new framework for analyzing exigent circumstances. Police may now enter a "good reason" to believe that "violence (or threat of violence) has just occurred or is about to (or soon will) occur." Ante, at 118. And apparently a key factor allowing entry a "good reason" short of exigency is the very consent of one co-occupant the majority finds so inadequate in the first place. The majority's analysis alters a great deal of established Fourth Amendment law. The majority imports the concept
|
Justice Roberts
| 2,006 | 0 |
dissenting
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Georgia v. Randolph
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https://www.courtlistener.com/opinion/145669/georgia-v-randolph/
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of established Fourth Amendment law. The majority imports the concept of "social expectations," previously used only to determine when a search has occurred and whether a particular person has standing to object to a search, into questions of consent. Ante, at 111, 113. To determine whether entry and search are reasonable, the majority considers a police officer's subjective motive in asking for consent, which we have otherwise refrained from doing in assessing Fourth Amendment questions. Ante, at 118. And the majority creates a new exception to the warrant requirement to justify warrantless entry short of exigency in potential domestic abuse situations. Considering the majority's rule is solely concerned protecting a person who happens to be present at the door when a police officer asks his co-occupant for consent to search, but not one who is asleep in the next room or in the backyard gardening, the majority has taken a great deal of pain in altering Fourth Amendment doctrine, for precious little (if any) gain in privacy. Perhaps one day, as the consequences of the majority's analytic approach become clearer, today's opinion will be treated the same way the majority treats our opinions in and as a "loose end" to be tied up. Ante, at 121. One of the concurring opinions states that if it had to choose between a rule that a co-tenant's consent was valid or a rule that it was not, it would choose the former. Ante, at 125 (opinion of Breyer, J.). The concurrence advises, *142 however, that "no single set of legal rules can capture the ever-changing complexity of human life," ib and joins what becomes the majority opinion, "[g]iven the case-specific nature of the Court's holding," ante, at 127. What the majority establishes, in its own terms, is "the rule that a physically present inhabitant's express refusal of consent to a police search is dispositive as to him, regardless of the consent of a fellow occupant." Ante, at 122-123 (emphasis added). The concurrence joins the apparent "understandin[g]" that the majority's "rule" is not a rule at all, but simply a "case-specific" holding. Ante, at 127 (opinion of Breyer, J.). The end result is a complete lack of practical guidance for the police in the field, let alone for the lower courts. * * * Our third-party consent cases have recognized that a person who shares common areas others "assume[s] the risk that one of their number might permit the common area to be searched." 415 U. S., at The majority reminds us, in high tones, that a man's home is his castle, ante, at
|
Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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This case presents the question whether, in an 1894 statute that ratified an agreement for the sale of surplus tribal lands, Congress diminished the boundaries of the Yankton Sioux Reservation in South Dakota. The reservation was established pursuant to an 1858 Treaty between the United States and the Yankton Sioux Tribe. Subsequently, under the Indian General Allotment Act, Act of Feb. 8,1887, 25 U.S. C. 331 (Dawes Act), individual members of the Tribe received allotments of reservation land, and the Government then negotiated with the Tribe for the cession of the remaining, unallotted lands. The issue we confront illustrates the jurisdictional quandaries wrought by the allotment policy: We must decide whether a landfill constructed on non-Indian fee land that falls within the boundaries of the original Yankton Reservation remains subject to federal environmental regulations. If the divestiture of Indian property in 1894 effected a diminishment of Indian territory, then the ceded lands no longer constitute "Indian country" as defined by 18 U.S. C. 1151(a), and the State now has primary jurisdiction over them. In light of the operative language of the 1894 Act, and the circumstances surrounding its passage, we hold that Congress intended to diminish the Yankton Reservation and consequently that the waste site is not in Indian country. I A At the outset of the 19th century, the Yankton Sioux Tribe held exclusive dominion over 13 million acres of land between the Des Moines and Missouri Rivers, near the boundary that currently divides North and South Dakota. H. Hoover, The Yankton Sioux 25 (1988). In 1858, the *334 Yanktons entered into a treaty with the United States renouncing their claim to more than 11 million acres of their aboriginal lands in the north-central plains. Treaty of Apr. 19, 1858, Pursuant to the agreement, the Tribe ceded "all the lands now owned, possessed, or claimed by them, wherever situated, except four hundred thousand acres thereof, situated and described as follows, to witBeginning at the mouth of the Naw-izi-wa-koo-pah or Chouteau River and extending up the Missouri River thirty miles; thence due north to a point; thence easterly to a point on the said Chouteau River; thence down said river to the place of beginning, so as to include the said quantity of four hundred thousand acres." Art. I, The retained portion of the Tribe's lands, located in what is now the southeastern part of Charles Mix County, South Dakota, was later surveyed and determined to encompass 430,405 acres. See Letter from the Commissioner of Indian Affairs to the Secretary of the Interior (Dec. 9, 1893), reprinted in S. Exec.
|
Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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of the Interior (Dec. 9, 1893), reprinted in S. Exec. Doc. No. 27, 53d Cong., 2d Sess., 5 (1894) (hereinafter Letter). In consideration for the cession of lands and release of claims, the United States pledged to protect the Yankton Tribe in their "quiet and peaceable possession" of this reservation and agreed that "[n]o white person," with narrow exceptions, would "be permitted to reside or make any settlement upon any part of the [reservation]." Arts. IV, X, 747. The Federal Government further promised to pay the Tribe, or expend for the benefit of members of the Tribe, $1.6 million over a 50-year period, and appropriated an additional $50,000 to aid the Tribe in its transition to the reservation through the purchase of livestock and agricultural implements, and the construction of houses, schools, and other buildings. *335 Not all of this assistance was forthcoming, and the Tribe experienced severe financial difficulties in the years that followed, compounded by weather cycles of drought and devastating floods. When war broke out between the United States and the Sioux Nation in 1862, the Yankton Tribe alone sided with the Federal Government, a decision that isolated it from the rest of the Sioux Federation and caused severe inner turmoil as well. The Tribe's difficulties coincided with a period of rapid growth in the United States' population, increasing westward migration, and ensuing demands from non-Indians to open Indian holdings throughout the Western States to settlement. In response to these "familiar forces," Congress retreated from the reservation concept and began to dismantle the territories that it had previously set aside as permanent and exclusive homes for Indian tribes. See v.Bartlett, The pressure from westward-bound homesteaders, and the belief that the Indians would benefit from private property ownership, prompted passage of the Dawes Act in 1887, The Dawes Act permitted the Federal Government to allot tracts of tribal land to individual Indians and, with tribal consent, to open the remaining holdings to non-Indian settlement. Within a generation or two, it was thought, the tribes would dissolve, their reservations would disappear, and individual Indians would be absorbed into the larger community of white settlers. See Hearings on H. R. 7902 before the House Committee on Indian Affairs, 73d Cong., 2d Sess., 428 (1934) (statement of D. S. Otis on the history of the allotment policy). With respect to the Yankton Reservation in particular, some Members of Congress speculated that "close contact with the frugal, moral, and industrious people who will settle [on the reservation] [would] stimulate individual effort and make [the Tribe's] progress much *336 more rapid than heretofore."
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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make [the Tribe's] progress much *336 more rapid than heretofore." Report of the Senate Committee on Indian Affairs, S. Rep. No. 196, 53d Cong., 2d Sess., 1 (1894). In accordance with the Dawes Act, each member of the Yankton Tribe received a 160-acre tract from the existing reservation, held in trust by the United States for 25 years. Members of the Tribe acquired parcels of land throughout the 1858 reservation, although many of the allotments were clustered in the southern part, near the Missouri River. By 1890, the allotting agent had apportioned 167,5 acres of reservation land, 95,000 additional acres were subsequently allotted under the Act of February 28, 1891, and a small amount of acreage was reserved for government and religious purposes. The surplus amounted to approximately 168,000 acres of unallotted lands. See Letter, at 5. In 1892, the Secretary of the Interior dispatched a threemember Yankton Indian Commission to Greenwood, South Dakota, to negotiate for the acquisition of these surplus lands. See Act of July 13, 1892, When the Commissioners arrived on the reservation in October 1892, they informed the Tribe that they had been sent by the "Great Father" to discuss the cession of "this land that [members of the Tribe] hold in common," Council of the Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. No. 27, at 48, and they abruptly encountered opposition to the sale from traditionalist tribal leaders. See Report of the Yankton Indian Commission (Mar. 31, 1893), reprinted in S. Exec. Doc. No. 27, at 9-11 (hereinafter Report). In the lengthy negotiations that followed, members of the Tribe raised concerns about the suggested price per acre, the preservation of their annuities under the 1858 Treaty, and other outstanding claims against the United States, but they did not discuss the future boundaries of the *337 reservation. Once the Commissioners garnered a measure of support for the sale of the unallotted lands, they submitted a proposed agreement to the Tribe.[1] *338 Article I of the agreement provided that the Tribe would "cede, sell, relinquish, and convey to the United States" all of the unallotted lands on the reservation. Pursuant to Article II, the United States agreed to compensate the Tribe in a single payment of $600,000, which amounted to $3.60 per acre.[2] Much of the agreement focused on the payment and disposition of that sum. Article VII further provided that all the signatories and adult male members of the Tribe would receive a $20 gold piece to commemorate the agreement. Some members of the Tribe also sought unpaid wages from their service as
|
Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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the Tribe also sought unpaid wages from their service as scouts in the Sioux War, and in Article XV, the United States recognized their claim. The saving clause in Article XVIII, the core of the current disagreement between the parties to this case, stated that nothing *339 in the agreement's terms "shall be construed to abrogate the treaty [of 1858]" and that "all provisions of the said treaty shall be in full force and effect, the same as though this agreement had not been made." By March 1893, the Commissioners had collected signatures from 255 of the 458 male members of the Tribe eligible to vote, and thus obtained the requisite majority endorsement. The Yankton Indian Commission filed its report in May 1893, but congressional consideration was delayed by an investigation into allegations of fraud in the procurement of signatures. On August 15, 1894, Congress finally ratified the 1892 agreement, together with similar surplus land sale agreements between the United States and the Siletz and Nez Perce Tribes. Act of Aug. 15, 1894, The 1894 Act incorporated the 1892 agreement in its entirety and appropriated the necessary funds to compensate the Tribe for the ceded lands, to satisfy the claims for scout pay, and to award the commemorative $20 gold pieces. Congress also prescribed the punishment for violating a liquor prohibition included in the agreement and reserved certain sections in each township for common-school purposes. President Cleveland issued a proclamation opening the ceded lands to settlement as of May 21, 1895, and non-Indians rapidly acquired them. By the turn of the century, 90 percent of the unallotted tracts had been settled. See Yankton Sioux A majority of the individual allotments granted to members of the Tribe also were subsequently conveyed in fee by the members to non-Indians. Today, the total Indian holdings in the region consist of approximately 30,000 acres of allotted land and 6,000 acres of tribal land. Indian Reservations: A State and Federal Handbook 260 Although formally repudiated with the passage of the Indian Reorganization Act in 1934, 25 U.S. C. 461, the policy favoring assimilation of Indian tribes through the allotment of reservation land left behind a lasting *340 legacy. The conflict between the modern-day approach to tribal self-determination and the assimilation impetus of the allotment era has engendered "a spate of jurisdictional disputes between state and federal officials as to which sovereign has authority over lands that were opened by the [surplus land] Acts and have since passed out of Indian ownership." B We confront such a dispute in the instant case,in which tribal, federal, and
|
Justice O'Connor
| 1,998 | 14 |
majority
|
South Dakota v. Yankton Sioux Tribe
|
https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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a dispute in the instant case,in which tribal, federal, and state officials disagree as to the environmental regulations applicable to a proposed waste site. In February 1992, several South Dakota counties formed the Southern Missouri Recycling and Waste Management District (hereinafter Waste District) for the purpose of constructing a municipal solid waste disposal facility. The Waste District acquired the site for the landfill, which falls within the 1858 boundaries of the Yankton Sioux Reservation, in fee from a non-Indian. The predicate for the parties' claims in this case is that the waste site lies on land ceded in the 1894 Act, and the record supports that assumption. In the Tribe's complaint, the proposed landfill is described as "the south one-half north one-quarter (S½ S¼), Section 6, Township 96 North, Range 65 West (S6, T96N, R65W) of the Fifth Principal Meridan [sic], Charles Mix County, South Dakota." App. 24. That description corresponds to the account of a tract of land deeded to Lars K. Langeland under the Homestead Act in 1904. See App. to Brief for Respondent Southern Missouri Waste Management District 1a2a. Because all of the land allotted to individual Indians on the Yankton Reservation was inalienable, pursuant to the Dawes Act, during a 25-year trust period, the tract acquired by a homesteader in 1904 and currently owned by the Waste District must consist of unallotted land ceded in the 1894 Act. (The Dawes Act was amended in 1906 by the Burke Act, 25 U.S. C. 349, which permitted the issuance of *341 some fee-simple patents before the expiration of the 25-year trust period, but the restrictions on alienation remained in place as of 1904.) When the Waste District sought a state permit for the landfill, the Yankton Tribe intervened and objected on environmental grounds, arguing that the proposed compacted clay liner was inadequate to prevent leakage. After an administrative hearing in December 1993, the State Board of Minerals and the Environment granted the solid waste permit, finding that South Dakota regulations did not require the installation of the synthetic composite liner the Tribe had requested. The Sixth Judicial Circuit affirmed the Board's decision, and no appeal was taken to the State Supreme Court. In September 1994, the Tribe filed suit in the Federal District Court for the District of South Dakota to enjoin construction of the landfill, and the Waste District joined South Dakota as a third party so that the State could defend its jurisdiction to grant the permit. The Tribe also sought a declaratory judgment that the permit did not comport with Federal Environmental Protection Agency (EPA)
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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permit did not comport with Federal Environmental Protection Agency (EPA) regulations mandating the installation of a composite liner in the landfill. See 40 CFR 258.40(b) The District Court held, in accordance with our decision in South that the Tribe itself could not assert regulatory jurisdiction over the non-Indian activity on fee lands. Furthermore, because the Tribe did not establish that the landfill would compromise the "political integrity, the economic security, or the health or welfare of the tribe," the court concluded that the Tribe could not invoke its inherent sovereignty under the exceptions in Accordingly, the court declined to enjoin the landfill project, a decision the Tribe does not appeal. The District Court also determined, however, that the 1894 Act did not diminish the exterior boundaries of the reservation as delineated in the 1858 *342 Treaty between the United States and the Tribe, and consequently that the waste site lies within an Indian reservation where federal environmental regulations apply. On appeal by the State,[3] a divided panel of the Court of Appeals for the Eighth Circuit agreed that "Congress intended by its 1894 Act that the Yankton Sioux sell their surplus land to the government, but not their governmental authority over it." The court relied primarily on the saving clause in Article XVIII, reasoning that, given its "unusually expansive language," other sections of the 1894 Act "should be read narrowly to minimize any conflict with the 1858 treaty." The court further concluded that neither the historical evidence nor the demographic development of the area could sustain a finding of diminishment. at We granted certiorari to resolve a conflict between the decision of the Court of Appeals and a number of decisions of the South Dakota Supreme Court declaring that the reservation has been diminished.[4] We now reverse the Eighth Circuit's decision and hold that the unallotted lands ceded as a result of the 1894 Act did not retain reservation status. *343 II States acquired primary jurisdiction over unallotted opened lands where "the applicable surplus land Act freed that land of its reservation status and thereby diminished the reservation boundaries." In contrast, if a surplus land Act "simply offered non-Indians the opportunity to purchase land within established reservation boundaries," then the entire opened area remained Indian country. Our touchstone to determine whether a given statute diminished or retained reservation boundaries is congressional purpose. See Sioux Congress possesses plenary power over Indian affairs, including the power to modify or eliminate tribal rights. See, e. g., Santa Clara Accordingly, only Congress can alter the terms of an Indian treaty by diminishing a reservation,
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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the terms of an Indian treaty by diminishing a reservation, United and its intent to do so must be "clear and plain," United Here, we must determine whether Congress intended by the 1894 Act to modify the reservation set aside for the Yankton Tribe in the 1858 Treaty. Our inquiry is informed by the understanding that, at the turn of this century, Congress did not view the distinction between acquiring Indian property and assuming jurisdiction over Indian territory as a critical one, in part because "[t]he notion that reservation status of Indian lands might not be coextensive with tribal ownership was unfamiliar," and in part because Congress then assumed that the reservation system would fade over time. "Given this expectation, Congress naturally failed to be meticulous in clarifying whether a particular piece of legislation formally sliced a certain parcel of land off one reservation." ; see also ("As a result of the patina history has placed on the allotment *344 Acts, the Court is presented with questions that their architects could not have foreseen"). Thus, although "[t]he most probative evidence of diminishment is, of course, the statutory language used to open the Indian lands," we have held that we will also consider "the historical context surrounding the passage of the surplus land Acts," and, to a lesser extent, the subsequent treatment of the area in question and the pattern of settlement there. Throughout this inquiry, "we resolve any ambiguities in favor of the Indians, and we will not lightly find diminishment." A Article I of the 1894 Act provides that the Tribe will "cede, sell, relinquish, and convey to the United States all their claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation"; pursuant to Article II, the United States pledges a fixed payment of $600,000 in return. This "cession" and "sum certain" language is "precisely suited" to terminating reservation status. See Indeed, we have held that when a surplus land Act contains both explicit language of cession, evidencing "the present and total surrender of all tribal interests," and a provision for a fixed-sum payment, representing "an unconditional commitment from Congress to compensate the Indian tribe for its opened land," a "nearly conclusive," or "almost insurmountable," presumption of diminishment arises. ; see also The terms of the 1894 Act parallel the language that this Court found terminated the Lake Traverse Indian Reservation in and, as in the 1894 Act ratified a negotiated agreement supported by a majority of the Tribe. Moreover, the Act we construe here more clearly indicates diminishment than
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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the Act we construe here more clearly indicates diminishment than did the surplus land Act at issue in which we concluded diminished reservation lands even though it provided only that "all the *345 unallotted lands within said reservation shall be restored to the public domain." See The 1894 Act is also readily distinguishable from surplus land Acts that the Court has interpreted as maintaining reservation boundaries. In both and we held that Acts declaring surplus land "subject to settlement, entry, and purchase," without more, did not evince congressional intent to diminish the reservations. Likewise, in we did not read a phrase authorizing the Secretary of the Interior to "sell and dispose" of surplus lands belonging to the Cheyenne River Sioux as language of cession. See 465 U. S.,. In contrast, the 1894 Act at issue herea negotiated agreement providing for the total surrender of tribal claims in exchange for a fixed paymentbears the hallmarks of congressional intent to diminish a reservation. B The Yankton Tribe and the United States, appearing as amicus for the Tribe, rest their argument against diminishment primarily on the saving clause in Article XVIII of the 1894 Act. The Tribe asserts that because that clause purported to conserve the provisions of the 1858 Treaty, the existing reservation boundaries were maintained. The United States urges a similarly "holistic" construction of the agreement, which would presume that the parties intended to modify the 1858 Treaty only insofar as necessary to open the surplus lands for settlement, without fundamentally altering the treaty's terms. Such a literal construction of the saving clause, as the South Dakota Supreme Court noted in would "impugn the entire sale." The unconditional relinquishment of the Tribe's territory for settlement by non-Indian homesteaders can by no means be reconciled with the central provisions of the 1858 Treaty, *346 which recognized the reservation as the Tribe's "permanent" home and prohibited white settlement there. See Oregon Dept. of Fish and Moreover, the Government's contention that the Tribe intended to cede some property but maintain the entire reservation as its territory contradicts the common understanding of the time: that tribal ownership was a critical component of reservation status. See We "cannot ignore plain language that, viewed in historical context and given a fair appraisal, clearly runs counter to a tribe's later claims." Rather than read the saving clause in a manner that eviscerates the agreement in which it appears, we give it a "sensible construction" that avoids this "absurd conclusion." See United The most plausible interpretation of Article XVIII revolves around the annuities in the form of cash, guns,
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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revolves around the annuities in the form of cash, guns, ammunition, food, and clothing that the Tribe was to receive in exchange for its aboriginal claims for 50 years after the 1858 Treaty. Along with the proposed sale price, these annuities and other unrealized Yankton claims dominated the 1892 negotiations between the Commissioners and the Tribe. The tribal historian testified, before the District Court, that the loss of their rations would have been "disastrous" to the Tribe, App. 589, and members of the Tribe clearly perceived a threat to the annuities. At a particularly tense point in the negotiations, when the tide seemed to turn in favor of forces opposing the sale, Commissioner John J. Cole warned: "I want you to understand that you are absolutely dependent upon the Great Father to-day for a living. Let the Government send out instructions to your agent to cease to issue these rations, let the Government instruct *347 your agent to cease to issue your clothes.Let the Government instruct him to cease to issue your supplies, let him take away the money to run your schools with, and I want to know what you would do. Everything you are wearing and eating is gratuity. Take all this away and throw this people wholly upon their own responsibility to take care of themselves, and what would be the result? Not one-fourth of your people could live through the winter, and when the grass grows again it would be nourished by the dust of all the balance of your noble tribe." Council of the Yankton Indians (Dec. 10, 1892), transcribed in S. Exec. Doc. No. 27, at 74. Given the Tribe's evident concern with reaffirmance of the Government's obligations under the 1858 Treaty, and the Commissioners' tendency to wield the payments as an inducement to sign the agreement, we conclude that the saving clause pertains to the continuance of annuities, not the 1858 borders. The language in Article XVIII specifically ensuring that the "Yankton Indians shall continue to receive their annuities under the [1858 Treaty]" underscores the limited purpose and scope of the saving clause. It is true that the Court avoids interpreting statutes in a way that "renders some words altogether redundant." 513 U.S. 1, But in light of the fact that the record of the negotiations between the Commissioners and the Yankton Tribe contains no discussion of the preservation of the 1858 boundaries but many references to the Government's failure to fulfill earlier promises, see, e. g., Council of the Yankton Indians (Dec. 3, 1892), transcribed in S. Exec. Doc. No. 27, at
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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3, 1892), transcribed in S. Exec. Doc. No. 27, at 54-55, it seems most likely that the parties inserted and understood Article XVIII, including both the general statement regarding the force of the 1858 Treaty and the particular provision that payments would continue as specified therein, to assuage the Tribes' concerns about their past claims and future entitlements. *348 Indeed, apart from the pledge to pay annuities, it is hard to identify any provision in the 1858 Treaty that the Tribe might have sought to preserve, other than those plainly inconsistent with or expressly included in the 1894 Act. The Government points to Article XI of the treaty, in which the Tribe agreed to submit for federal resolution "all matters of dispute and difficulty between themselves and other Indians," and urges us to extrapolate from this provision that the Tribe implicitly retained jurisdiction over internal matters, and from there to apply the standard canon of Indian law that "[o]nce powers of tribal self-government or other Indian rights are shown to exist, by treaty or otherwise, later federal action which might arguably abridge them is construed narrowly in favor of retaining Indian rights." F. Cohen, Handbook of Federal Indian Law 224 (1982) (hereinafter Cohen). But the treaty's reference to tribal authority is indirect, at best, and it does not persuade us to view the saving clause as an agreement to maintain exclusive tribal governance within the original reservation boundaries. The Tribe further contends that because Article XVIII affirms that the 1858 Treaty will govern "the same as though [the 1892 agreement] had not been made," without reference to consistency between those agreements, it has more force than the standard saving clause. While the language of the saving clause is indeed unusual, we do not think it is meaningfully distinct from the saving clauses that have failed to move this Court to find that pre-existing treaties remain in effect under comparable circumstances. See, e. g., -; 558-559; Furthermore, "it is a commonplace of statutory construction that the specific" cession and sum certain language in Articles I and II "governs the general" terms of the saving clause. See *349 Finally, the Tribe argues that, at a minimum, the saving clause renders the statute equivocal, and that confronted with that ambiguity we must adopt the reading that favors the Tribe. See The principle according to which ambiguities are resolved to the benefit of Indian tribes is not, however, "a license to disregard clear expressions of tribal and congressional intent." ; see also South In previous decisions, this Court has recognized that the precise cession
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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previous decisions, this Court has recognized that the precise cession and sum certain language contained in the 1894 Act plainly indicates diminishment, and a reasonable interpretation of the saving clause does not conflict with a like conclusion in this case. C Both the State and the Tribe seek support for their respective positions in two other provisions of the 1894 Act: a clause reserving sections of each township for schools and a prohibition on liquor within the ceded lands. Upon ratification, Congress added that "the sixteenth and thirty-sixth sections in each Congressional township shall be reserved for common-school purposes and be subject to the laws of the State of South Dakota." This "school sections clause" parallels the enabling Act admitting South Dakota to the Union, which grants the State sections 16 and 36 in every township for the support of common schools, but expressly exempts reservation land "until the reservation shall have been extinguished and such lands restored to the public domain." Act of Feb. 22, 1889, When considering a similar provision included in the Act ceding the Sioux Reservation in South Dakota, the Court discerned congressional intent to diminish the reservation, "thereby making the sections available for disposition to the State of South Dakota for `school sections.' " The Tribe argues that the clause in the 1894 Act specifying the application of state law would be superfluous if Congress *350 intended to diminish the reservation. As the Court stated in however, "the natural inference would be that state law is to govern the manner in which the 16th and 36th sections are to be employed `for common school purposes,' " which "implies nothing about the presence or absence of state civil and criminal jurisdiction over the remainder of the ceded lands." n.33. Although we agree with the State that the school sections clause reinforces the view that Congress intended to extinguish the reservation status of the unallotted land, a somewhat contradictory provision counsels against finding the reservation terminated. Article VIII of the 1894 Act reserved from sale those surplus lands "as may now be occupied by the United States for agency, schools, and other purposes." In the Court noted with respect to virtually identical language that "[i]t is difficult to imagine why Congress would have reserved lands for such purposes if it did not anticipate that the opened area would remain part of the reservation." 465 U. S.,at 474. The State's position is more persuasively supported by the liquor prohibition included in Article XVII of the agreement. The provision prohibits the sale or offering of "intoxicating liquors" on "any
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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prohibits the sale or offering of "intoxicating liquors" on "any of the lands by this agreement ceded and sold to the United States" or "any other lands within or comprising the reservations of the Yankton Sioux or Dakota Indians as described in the [1858] treaty," thus signaling a jurisdictional distinction between reservation and ceded land. The Commissioners' report recommends that Congress "fix a penalty for the violation of this provision which will make it most effective in preventing the introduction of intoxicants within the limits of the reservation," Report, at 21, which could be read to suggest that ceded lands remained part of the reservation. We conclude, however, that "the most reasonable inference from the inclusion of this provision is that Congress was aware that the opened, unallotted areas would henceforth not be `Indian *351 country.' " By 1892, Congress already had enacted laws prohibiting alcohol on Indian reservations, see Cohen 306-307, and "[w]e assume that Congress is aware of existing law when it passes legislation," Furthermore, the Commissioner of Indian Affairs described the provision as prohibiting "the sale or disposition of intoxicants upon any of the lands now within the Yankton Reservation," Letter, at 6-7 (emphasis added), indicating that the lands would be severed from the reservation upon ratification of the agreement. In Perrin v.United States, 2 U.S. 478 we implied that the lands conveyed by the 1894 Act lost their reservation status when we construed Article XVII as applying to "ceded lands formerly included in the Yankton Sioux Indian Reservation." We now reaffirm that the terms of the 1894 Act, including both the explicit language of cession and the surrounding provisions, attest to Congress' intent to diminish the Yankton Reservation. III Although we perceive congressional intent to diminish the reservation in the plain statutory language, we also take note of the contemporary historical context, subsequent congressional and administrative references to the reservation, and demographic trends. Even in the absence of a clear expression of congressional purpose in the text of a surplus land Act, unequivocal evidence derived from the surrounding circumstances may support the conclusion that a reservation has been diminished. See In this case, although the context of the Act is not so compelling that, standing alone, it would indicate diminishment, neither does it rebut the "almost insurmountable presumption" that arises from the statute's plain terms. A The "manner in which the transaction was negotiated" with the Yankton Tribe and "the tenor of legislative Reports *352 presented to Congress" reveal a contemporaneous understanding that the proposed legislation modified the reservation. In 1892, when the Commissioner of Indian
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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modified the reservation. In 1892, when the Commissioner of Indian Affairs appointed the Yankton Commission, he charged its members to "negotiate with the [Tribe] for the cession of their surplus lands" and noted that the funds exchanged for the "relinquishment" of those lands would provide a future income for the Tribe. Instructions to the Yankton Indian Commission (July 27, 1892), reprinted in App. 98-99. The negotiations themselves confirm the understanding that by surrendering its interest in the unallotted lands, the Tribe would alter the reservation's character. Commissioner J. C. Adams informed members of the Tribe that once surplus lands were sold to the "Great Father," the Tribe would "assist in making the laws which will govern [members of the Tribe] as citizens of the State and nation." Council of the Yankton Indians (Oct. 8, 1892), transcribed in S. Exec. Doc. No. 27, at 48. In terms that strongly suggest a reconception of the reservation, Commissioner Cole admonished the Tribe: "This reservation alone proclaims the old time and the old conditions The tide of civilization is as resistless as the tide of the ocean, and you have no choice but to accept it and live according to its methods or be destroyed by it. To accept it requires the sale of these surplus lands and the opening of this reservation to white settlement. "You were a great and powerful people when your abilities and energies were directed in harmony with the conditions which surrounded you, but the wave of civilization which swept over you found you unprepared for the new conditions and you became weak. [Y]ou must accept the new life wholly. You must break down the barriers and invite the white man with all the elements of civilization, that your young men may have the same opportunities under the new conditions that your fathers *353 had under the old." Council of the Yankton Indians (Dec. 17, 1892), transcribed Cole's vivid language and entreaty to "break down the barriers" are reminiscent of the "picturesque" statement that Congress would "pull up the nails" holding down the outside boundary of the Uintah Reservation, which we viewed as evidence of diminishment in Moreover, the Commissioners' report of the negotiations signaled their understanding that the cession of the surplus lands dissolved tribal governance of the 1858 reservation. They observed that "now that [members of the Tribe] have been allotted their lands in severalty and have sold their surplus landthe last property bond which assisted to hold them together in their tribal interest and estatetheir tribal interests may be considered a thing of the past." Report,
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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interests may be considered a thing of the past." Report, at 19. And, in a March 1894 letter to the Chairman of the Senate Committee on Indian Affairs, several Yankton chiefs and members of the Tribe indicated that they concurred in such an interpretation of the agreement's impact. The letter urged congressional ratification of the agreement, explaining that the signatories "want[ed] the laws of the United States and the State that we live in to be recognized and observed," and that they did not view it as desirable to "keep up the tribal relation as the tribal relation on this reservation is an obstacle and hindrance to the advancement of civilization." S. Misc. Doc. No. 134, 53d Cong., 2d Sess., 1 (1894). The legislative history itself adds little because Congress considered the Siletz, Nez Perce, and Yankton surplus land sale agreements at the same time, but the few relevant references from the floor debates support a finding of diminishment. Some members noted that the cessions would restore the surplus lands to the "public domain," see 53 Cong. Rec. 6425 (1894) (remarks of Rep. McCrae); at 6 language that indicates congressional intent to diminish a reservation, see ; *354 That same phrase appears in the annual report of the Commissioner on Indian Affairs that was released in September 1894, just after congressional ratification of the agreement. See Annual Report of the Commissioner on Indian Affairs 26 (Sept. 14, 1894), excerpted in App. 450-452 (noting that under the Siletz, Nez Perce, and Yankton agreements, "some 880,000 acres of land will be restored to the public domain"). Finally, the Presidential Proclamation opening the lands to settlement declared that the Tribe had "ceded, sold, relinquished, and conveyed to the United States, all [its]claim, right, title, and interest in and to all the unallotted lands within the limits of the reservation set apart to said tribe by the first article [of the 1858 Treaty]." Presidential Proclamation (May 16, 1895), reprinted in App. 453. This Court has described substantially similar language as "an unambiguous, contemporaneous, statement by the Nation's Chief Executive, of a perceived disestablishment." -603. B Despite the apparent contemporaneous understanding that the 1894 Act diminished the reservation, in the years since, both Congress and the Executive Branch have described the reservation in contradictory terms and treated the region in an inconsistent manner. An 1896 statute, for example, refers to "homestead settlers upon the Yankton Indian Reservation," while in a Report included in the legislative history for that statute, the Commissioner of Indian Affairs discusses the "former" reservation, H. R. Rep. No. 100, 54th Cong.,
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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the "former" reservation, H. R. Rep. No. 100, 54th Cong., 1st Sess., 2 (1896). From the 1896 statutory reference to hearings on the Indian Gaming Regulatory Act nearly a century later, Congress has occasionally, though not invariably, referred to the "Yankton Sioux Reservation."[5]* We have often observed, however, that "the views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one." United 374 U.S. 1, Likewise, the scores of administrative documents and maps marshaled by the parties to support or contradict diminishment have limited interpretive value.[6] We need not linger over whether the many references to the Yankton Reservation in legislative *3 and administrative materials utilized a convenient geographical description or reflected a considered jurisdictional statement. The mixed record we are presented with "reveals no consistent, or even dominant, approach to the territory in question," and it "carries but little force" in light of the strong textual and contemporaneous evidence of diminishment. ; see also C "Where non-Indian settlers flooded into the opened portion of a reservation and the area has long since lost its Indian character, we have acknowledged that de facto, if not de jure, diminishment may have occurred." This final consideration is the least compelling for a simple reason: Every surplus land Act necessarily resulted in a surge of non-Indian settlement and degraded the "Indian character" of the reservation, yet we have repeatedly stated that not every surplus land Act diminished the affected reservation. See -469. The fact that the Yankton population in the region promptly and drastically declined after the 1894 Act does, however, provide "one additional clue as to what Congress expected," Today, fewer than 10 percent of the 1858 reservation lands are in Indian hands, non-Indians constitute over two-thirds of the population within the 1858 boundaries, and several municipalities inside those boundaries have been incorporated under South Dakota law. The opening of the tribal casino in 1991 apparently reversed the population trend; the tribal presence in the area has steadily increased in recent years, and the advent of gaming has stimulated the local economy. In addition, some acreage within the 1858 boundaries has reverted to tribal or trust land. See H. Hoover, Yankton Sioux Tribal Land History reprinted in App. 545-546. Nonetheless, the area remains "predominantly populated by non- *357 Indians with only a few surviving pockets of Indian allotments," and those demographics signify a diminished reservation. n. 12. The State's assumption of jurisdiction over the territory, almost immediately after the 1894 Act and continuing virtually unchallenged to the present day, further reinforces our holding. As the Court
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Justice O'Connor
| 1,998 | 14 |
majority
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South Dakota v. Yankton Sioux Tribe
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https://www.courtlistener.com/opinion/118166/south-dakota-v-yankton-sioux-tribe/
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the present day, further reinforces our holding. As the Court of Appeals acknowledged, South Dakota "has quite consistently exercised various forms of governmental authority over the opened lands," and the "tribe presented no evidence that it has attempted until recently to exercise civil, regulatory, or criminal jurisdiction over nontrust lands." at 14. Finally, the Yankton Constitution, drafted in 19 and amended in 1962, defines the Tribe's territory to include only those tribal lands within the 1858 boundaries "now owned" by the Tribe. Constitution and Bylaws of the Yankton Sioux Tribal Business and Claims Committee, Art. VI, 1. IV The allotment era has long since ended, and its guiding philosophy has been repudiated. Tribal communities struggled but endured, preserved their cultural roots, and remained, for the most part, near their historic lands. But despite the present-day understanding of a "governmentto-government relationship between the United States and each Indian tribe," see, e. g., 25 U.S. C. 3601, we must give effect to Congress' intent in passing the 1894 Act. Here, as in we believe that Congress spoke clearly, and although "[s]ome might wish [it] had spoken differently, we cannot remake history." The 1894 Act contains the most certain statutory language, evincing Congress' intent to diminish the Yankton Sioux Reservation by providing for total cession and fixed compensation. Contemporaneous historical evidence supports that conclusion, and nothing in the ambiguous subsequent treatment of the region substantially controverts our *358 reasoning. The conflicting understandings about the status of the reservation, together with the fact that the Tribe continues to own land in common, caution us, however, to limit our holding to the narrow question presented: whether unallotted, ceded lands were severed from the reservation. We need not determine whether Congress disestablished the reservation altogether in order to resolve this case, and accordingly decline to do so. Our holding in was similarly limited, as was the State Supreme Court's description of the Yankton reservation in Greger. See ; 559 N. W. 2d, at 867. * * * In sum, we hold that Congress diminished the Yankton Sioux Reservation in the 1894 Act, that the unallotted tracts no longer constitute Indian country, and thus that the State has primary jurisdiction over the waste site and other lands ceded under the Act. Accordingly, we reverse the judgment of the Court of Appeals for the Eighth Circuit and remand the case for further proceedings consistent with this opinion. It is so ordered.
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Justice Alito
| 2,019 | 8 |
dissenting
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Rehaif v. United States
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https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/
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The Court casually overturns the long-established in- terpretation of an important criminal statute, 18 U.S. C. an interpretation that has been adopted by every single Court of Appeals to address the question. That interpretation has been used in thousands of cases for more than 30 years. According to the majority, every one of those cases was flawed. So today’s decision is no minor matter. And is no minor provision. It probably does more to combat gun violence than any other federal law. It prohibits the possession of firearms by, among others, convicted felons, mentally ill persons found by a court to present a danger to the community, stalkers, harassers, perpetrators of domestic violence, and illegal aliens. Today’s decision will make it significantly harder to convict persons falling into some of these categories, and the decision will create a mountain of problems with re- spect to the thousands of prisoners currently serving terms for convictions. Applications for relief by federal prisoners sentenced under will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals whose cases fall outside the bounds of 2 REHAIF v. UNITED STATES ALITO, J., dissenting harmless-error review. See ante, at 11. If today’s decision were compelled by the text of or by some other clear indication of congressional intent, what the majority has done would be understandable. We must enforce the laws enacted by Congress even if we think that doing so will bring about unfortunate results. But that is not the situation in this case. There is no sound basis for today’s decision. Indeed, there was no good reason for us to take this case in the first place. No conflict existed in the decisions of the lower courts, and there is no evidence that the established interpretation of had worked any serious injustice. The push for us to grant review was based on the super- ficially appealing but ultimately fallacious argument that the text of dictates the interpretation that the majority now reaches. See Pet. for Cert. 8. Ironically, today’s decision, while casting aside the established inter- pretation of does not claim that the text of that provision is itself dispositive. Instead, what the majority relies on, in the end, is its own guess about congressional intent. And the intent that the majority attributes to Congress is one that Congress almost certainly did not harbor. I The majority provides a bowdlerized version of the facts of this case and thus obscures the triviality of this peti- tioner’s claim. The majority wants readers to have
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Justice Alito
| 2,019 | 8 |
dissenting
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Rehaif v. United States
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this peti- tioner’s claim. The majority wants readers to have in mind an entirely imaginary case, a heartless prosecution of “an alien who was brought into the United States un- lawfully as a small child and was therefore unaware of his unlawful status.” Ante, at 8. Such a defendant would indeed warrant sympathy, but that is not petitioner, and no one has called to our attention any real case like the one the majority conjures up. Here is what really happened. Petitioner, a citizen of Cite as: 588 U. S. (2019) 3 ALITO, J., dissenting the United Arab Emirates, entered this country on a visa that allowed him to stay here lawfully only so long as he remained a full-time student. (CA11 2018). He enrolled at the Florida Institute of Technology, but he withdrew from or failed all of his classes and was dismissed. Brief for Petitioner 4–5. After he was condi- tionally readmitted, he failed all but one of his courses. His enrollment was then terminated, and he did not ap- peal. The school sent him e-mails informing him that he was no longer enrolled and that, unless he was admitted elsewhere, his status as a lawful alien would be termi- 888 F.3d, at –1141. Petitioner’s response was to move to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. Brief for United States 4. A hotel employee told the FBI that peti- tioner claimed to have weapons in his room. Arrested and charged under for possession of a firearm by an illegal alien, petitioner claimed at trial that the Govern- ment had to prove beyond a reasonable doubt that he actually knew that his lawful status had been termi Following what was then the universal and long- established interpretation of the District Court rejected this argument, and a jury found him guilty. 888 F.3d, at 1141. The Eleventh Circuit affirmed. at Out of the more than 8,000 petitions for a writ of certiorari that we expected to receive this Term, we chose to grant this one to see if petitioner had been deprived of the right to have a jury decide whether, in his heart of hearts, he really knew that he could not lawfully remain in the United States on a student visa when he most certainly was no longer a student. 4 REHAIF v. UNITED
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certainly was no longer a student. 4 REHAIF v. UNITED STATES ALITO, J., dissenting II A Petitioner claims that the texts of and a com- panion provision, 18 U.S. C. dictate a decision in his favor, and I therefore begin with the text of those two provisions. Section 924(a)(2) provides in relevant part as follows: “Whoever knowingly violates subsection (g) of sec- tion 922 shall be fined as provided in this title, imprisoned for not more than 10 years, or both.” (Emphasis added.) Section 922(g), in turn, makes it unlawful for nine cate- gories of persons to engage in certain interstate- commerce-related conduct involving firearms. These categories consist of: (1) convicted felons; (2) fugitives from justice; (3) users of illegal drugs or addicts; (4) persons found to have very serious mental problems; (5) illegal aliens; (6) individuals who were dishonorably discharged from the Armed Forces; (7) persons who renounced U. S. citizenship; (8) stalkers, harassers, and abusers subject to restraining orders; and (9) persons convicted of a misde- meanor crime of domestic violence.1 Persons falling into —————— 1 Title 18 U.S. C. provides as follows: “It shall be unlawful for any person— “(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year; “(2) who is a fugitive from justice; “(3) who is an unlawful user of or addicted to any controlled sub- stance (as defined in section 102 of the Controlled Substances Act (21 U.S. C. “(4) who has been adjudicated as a mental defective or who has been committed to a mental institution; “(5) who, being an alien— “(A) is illegally or unlawfully in the United States; or “(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in Cite as: 588 U. S. (2019) 5 ALITO, J., dissenting these categories are forbidden, as relevant here, to “pos- sess in or affecting commerce, any firearm.” Petitioner argues that, when and are put together, they unambiguously show that a defendant must actually know that he falls into one of the nine enu- merated categories. But this purportedly textual argu- ment requires some moves that cannot be justified on the basis of the statutory text. Petitioner’s argument tries to hide those moves in the manner of a sleight-of-hand artist at a carnival. Petitioner begins by extracting the term “knowingly” from He then transplants it into the beginning of ignores the extraordinarily awkward prose that this surgery produces, and proclaims that because “know- ingly” appears at the beginning of
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dissenting
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proclaims that because “know- ingly” appears at the beginning of the enumeration of the —————— section 101(a)(26) of the Immigration and Nationality Act (8 U.S. C. “(6) who has been discharged from the Armed Forces under dishonor- able conditions; “(7) who, having been a citizen of the United States, has renounced his citizenship; “(8) who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or “(9) who has been convicted in any court of a misdemeanor crime of domestic violence, “to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.” 6 REHAIF v. UNITED STATES ALITO, J., dissenting elements of the offense, we must assume that it modifies the first of those elements, i.e., being a convicted felon, illegal alien, etc. To conclude otherwise, he con- tends, is to commit the sin of having the term “knowingly” leap over that element and then land conveniently in front of the second. Pet. for Cert. 8. But petitioner’s reading is guilty of the very sort of leaping that it condemns—and then some. It has “know- ingly” performed a jump of Olympian proportions, taking off from sailing backward over more than 9,000 words in the U. S. Code, and then landing—conveniently— at the beginning of the enumeration of the elements of the offense. Of course, there is no logical reason why this jump has to land at that particular point in That is petitioner’s first sleight of hand. But there is another. What petitioner and those who have pressed this leap- ing argument want to say is essentially this: Who- ever knowingly is an illegal alien and possesses a firearm shall be fined and/or imprisoned if his possession of the gun was in or affecting interstate
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Justice Alito
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dissenting
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his possession of the gun was in or affecting interstate commerce. If we had before us a provision that reads like that, there would be a strong textual argument that a defendant’s status as an illegal alien must actually be known to him. That is es- sentially what we held in But when the term “knowingly” is excised from and inserted at the beginning of what we get is something quite different: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States to possess in or affecting commerce, any firearm or ammunition Congress did not—and certainly would not—enact a statute that reads like that. To convert this garbled con- glomeration into intelligible prose, editing is obviously Cite as: 588 U. S. (2019) 7 ALITO, J., dissenting needed, and the editing process would compel the editor to make decisions with substantive implications that could hardly go unnoticed. Here is a way of amalgamating and that minimizes the changes in the language of the two provisions: Whoever knowingly It is unlawful for any per- son who, being an alien—is illegally or unlawfully in the United States and possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] The most natural reading of this version is that the de- fendant must know only that he is an alien, not that his presence in the country is illegal or unlawful. And under this version, it is not even clear that the alien’s possession of the firearm or ammunition must be knowing—even though everyone agrees that this is required. Here are two other possibilities that require more changes. The first is this: Whoever knowingly It is unlawful for any per- son who, being an alien who—is illegally or un- lawfully in the United States to possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] The second, which differs from the first only in that the clause “who is illegally or unlawfully in the United States” is set off by commas, is this: Whoever knowingly It is unlawful for any per- son who, being an alien, who—is illegally or un- lawfully in the United States, to possesses in or affecting commerce, any firearm or ammunition [commits a crime punishable by] A strict grammarian, noting that the clause “who is legally or unlawfully in the United States” is restrictive in the 8 REHAIF v. UNITED STATES ALITO, J., dissenting first of these versions and nonrestrictive in the second, might interpret the first to favor petitioner and the
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dissenting
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second, might interpret the first to favor petitioner and the second to favor the Government. And under both of these ver- sions, it is again unclear whether a defendant’s possession of the firearm or ammunition must be knowing. All of the versions discussed so far place the term “knowingly” at the beginning of our transformed version of but as noted, there is no reason why this term’s leap from must land at that point. So our new version of could just as logically read like this: Whoever It is unlawful for any person who, being an alien who—is illegally or unlawfully in the United States to knowingly possesses in or af- fecting commerce, any firearm or ammunition [commits a crime punishable by] That would make it clear that the long-established inter- pretation of is correct. What these possibilities show is that any attempt to combine the relevant language from with the language of necessarily entails significant choices that are not dictated by the text of those provisions. So the purportedly textualist argument that we were sold at the certiorari stage comes down to this: If § and 924(a)(2) are arbitrarily combined in the way that peti- tioner prefers, then, presto chango, they support petition- er’s interpretation. What a magic trick! B The truth behind the illusion is that the terms used in § and 922(g), when read in accordance with their use in ordinary speech, can easily be interpreted to treat the question of mens rea in at least four different ways. First, the language of § and 922(g) can be read to require that a defendant know that his conduct is a violation of In ordinary speech, to knowingly Cite as: 588 U. S. (2019) 9 ALITO, J., dissenting violate a rule may mean to violate a known rule. (“He was told it is forbidden to smoke in the restroom of a plane, but he knowingly did so.”) Neither petitioner nor the Gov- ernment suggests that this is the proper interpretation of § and 924(a)(2), but their reason is not based on the plain or ordinary meaning of the statutory text. Instead, it rests on an inference about congressional intent that, in turn, is based on a drafting convention, namely, that where Congress wants to require proof that a criminal defendant knew his conduct was illegal, it specifies that the violation must be “willful.” In ordinary speech, “will- fulness” does not require or even suggest knowledge of illegality. See Webster’s Third New International Dic- tionary 2617 But we have construed the term as used in statutes to mean the
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dissenting
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construed the term as used in statutes to mean the “intentional violation of a known legal duty.” United 360 (1973). Thus, the pointed use of the term “knowingly,” as opposed to “willfully,” in provides a ground to infer that Congress did not mean to require knowledge of illegality. Second, a “knowing” violation could require knowledge of every element that makes up the offense. As applied to that would mean that the Government would have to prove that the defendant: (1) knew that he is an alien “illegally or unlawfully in the United States,” (2) knew that the thing he “possess[ed]” was “a firearm or ammunition,” and (3) knew that what he did was “in or affecting commerce.” But again, the parties (and the majority) disclaim this reading because, they contend, the mens rea requirement does not apply to the interstate- commerce element of the offense. To reach this conclu- sion, however, neither the parties nor the majority relies on the text. How could they? If positioning the term “knowingly” at the beginning of a list of elements (or incorporating it through a separate provision) means that it applies to every element, then it would have to apply to 10 REHAIF v. UNITED STATES ALITO, J., dissenting the interstate-commerce element just like the others. Once again, the conclusion that “knowingly” does not apply to the interstate-commerce element is not based on any rule of English usage but on yet another inference about congressional intent: that the question whether a defendant knew that his act of possessing a gun or ammu- nition was “in or affecting commerce” is simply not the sort of question that Congress wanted a jury to decide. The conclusion is sound, see, e.g., Luna Torres v. Lynch, 578 U. S. (2016) (slip op., at 15). But the inference that this is not what Congress intended is in no way com- pelled by the text of which simply includes the jurisdictional element among the other elements of the crime with no textual indication that Congress meant for it to be treated differently.2 Third, a “knowing” violation could require knowledge of both the conduct and status elements of the offense (but not the jurisdictional element). This is the reading that petitioner advocates and that the majority adopts. Yet again, this interpretation is not based on the text of the provisions but on two other factors: the inference about congressional intent just discussed and the assumption that Congress, had it incorporated the term “knowingly” into would have placed it at the beginning of that provision. As I have explained, there is
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Justice Alito
| 2,019 | 8 |
dissenting
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beginning of that provision. As I have explained, there is no textual basis for that assumption. Fourth, a “knowing” violation could require knowledge of the conduct element—the possession of a firearm or ammunition—but not the others. Putting aside the ques- —————— 2 Indeed, the jurisdictional element is listed before the firearm ele- ment of the offense, to which everyone agrees the mens rea requirement applies. The text alone does not explain why the word “knowingly” would “leapfro[g]” over the middle element, which is perhaps why the majority does not adopt the novel “grammatical gravity” canon. United (Gorsuch, J., concurring); see also Tr. of Oral Arg. 32. Cite as: 588 U. S. (2019) 11 ALITO, J., dissenting tion of the jurisdictional element, that is how one would naturally read if Congress had incorporated the knowledge requirement into after the status ele- ment and just before the conduct element. Of course, Congress did not do that—but neither did it place “know- ingly” at the beginning of the list of elements. As these competing alternatives show, the statutory text alone does not tell us with any degree of certainty the particular elements of to which the term “know- ingly” applies. And once it is recognized that the statutory text does not specify the mens rea applicable to ’s status element, there is no reason to assume that what Congress wanted was either a very high mens rea re- quirement (actual knowledge) or no mens rea at all. See infra, at 22. However, if we limit ourselves to those op- tions, as the parties and the majority assume we must, the latter is more likely. C 1 That is so for at least six reasons. First, in no prior case have we inferred that Congress intended to impose a mens rea requirement on an element that concerns the defend- ant’s own status. Nor has petitioner pointed to any stat- ute with text that plainly evinces such a congressional intent. Instead, in instances in which Congress has ex- pressly incorporated a mens rea requirement into a provi- sion with an element involving the defendant’s status, it has placed the mens rea requirement after the status element. For example, 18 U.S. C. punishes any “person having custody or control of a minor who know- ingly permits such minor to engage in sexually explicit conduct for the purpose of producing any visual depiction of such conduct.” To show a violation, the Government need not prove that the defendant knew that the person under his custody or control was a minor. Even where the 12 REHAIF v. UNITED
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Justice Alito
| 2,019 | 8 |
dissenting
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was a minor. Even where the 12 REHAIF v. UNITED STATES ALITO, J., dissenting issue of a defendant’s status is open and shut, Congress has taken pains to place the mens rea requirement so that it clearly does not apply to the status element. Thus, 18 U.S. C. punishes an “officer, employee, contrac- tor, or consultant of the United States [who] knowingly removes [classified] documents or materials without au- thority.” And 21 U.S. C. prohibits “any person at least eighteen years of age [from] knowingly and inten- tionally receiv[ing] a controlled substance from a per- son under 18 years of age.” So what the majority has done in this case is groundbreaking. Second, there are sound reasons for treating ’s status element like its jurisdictional element. The parties agree that federal criminal statutes presumptively do not require proof that an accused knew that his conduct satis- fied a jurisdictional element, and our cases support this proposition. See Luna Torres, 578 U. S. ; United States v. Yermian, ; United We have never provided a compre- hensive explanation of the basis for this presumption, but our decision in Feola, which concerned the offense of as- saulting a federal officer in violation of 18 U.S. C. is instructive. Agreeing with the interpretation that had been adopted with “practical unanimity” by the courts of Feola held that an accused need not be shown to have been aware of his victim’s status. We inferred that this is what the statute means because requiring proof of knowledge would undermine the statute’s dual objectives of protecting federal officers and preventing the obstruc- tion of law A similar consideration appears to provide the basis for the conclusion that a defendant need not know that his possession of a gun is “in or affecting commerce.” Whether or not conduct satisfies that requirement in- volves a complicated legal question; requiring proof of such knowledge would threaten to effectively exempt almost Cite as: 588 U. S. (2019) 13 ALITO, J., dissenting everyone but students of constitutional law from the stat- ute’s reach; and that would obviously defeat the statute’s objectives. The reason for the rule exempting knowledge of jurisdic- tional elements supports the conclusion that knowledge of ’s status element is also not required. Whether a defendant falls into one of the categories often involves complicated legal issues, and demanding proof that a defendant understood those issues would seriously undermine the statute’s goals. Take the category defined in (4), which applies to a person who has been “adjudicated as a mental defective,” a term that is defined by regulation to
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dissenting
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mental defective,” a term that is defined by regulation to mean “(a) A determination by a court, board, commission, or other lawful authority that a person, as a result of marked subnormal intelligence, or mental illness, in- competency, condition, or disease: “(1) Is a danger to himself or to others; or “(2) Lacks the mental capacity to contract or manage his own affairs.” (a) (2019). Congress thought that persons who fall into this category lack the intellectual capacity to possess firearms safely. Is it likely that Congress wanted to apply only to those individuals who nevertheless have the capacity to know that they fall within the complicated definition set out in the regulation? If a person has been found by a court to present a “danger to others” due to mental illness or incompetency, should he escape the reach of because he does not know that a court has so found? Or consider the category defined by (8), which applies to a person “who is subject to a court order that— “(A) was issued after a hearing of which such person received actual notice, and at which such person had 14 REHAIF v. UNITED STATES ALITO, J., dissenting an opportunity to participate; “(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and “(C)(i) includes a finding that such person repre- sents a credible threat to the physical safety of such intimate partner or child; or “(ii) by its terms explicitly prohibits the use, at- tempted use, or threatened use of physical force against such intimate partner or child that would rea- sonably be expected to cause bodily injury” Under this reticulated provision, does the majority’s inter- pretation require proof beyond a reasonable doubt that the defendant knew, when he possessed the gun or ammuni- tion, (1) that his restraining order had been issued after a hearing, (2) that he had received actual notice of the hear- ing, (3) that he had been given an opportunity to partici- pate at the hearing, (4) that the order covered harassing, stalking, or threatening, (5) that the person protected by the order qualified as his “intimate partner,” and (6) that the order explicitly prohibited the “use, attempted use, or threatened use of physical force”? Did Congress want a person who terrorized an intimate partner to escape con- viction under by convincing a jury that he was so blinded
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Justice Alito
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dissenting
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under by convincing a jury that he was so blinded by alcohol, drugs, or sheer rage that he did not actually know some of these facts when he acquired a gun? What about the category defined by (9), which covers a person “who has been convicted in any court of a misdemeanor crime of domestic violence”? Did Congress want this provision to apply only to those abusers who actually know that an offense for which they were con- victed falls within the complicated definition of a “crime of Cite as: 588 U. S. (2019) 15 ALITO, J., dissenting domestic violence”? The Members of this Court have been unable to agree on the meaning of that concept. Is it limited to offenses that have an element requiring proof that the abuser had a domestic relationship with the victim? In United the majority said no, but THE CHIEF JUSTICE and Justice Scalia disagreed. Can a conviction qualify if the offense required only recklessness? In Voisine v. United States, 579 U. S. (2016), the Court said yes, but JUSTICE THOMAS and JUSTICE SOTOMAYOR dissented. Does this provision apply if only slight force is required for convic- tion by the misdemeanor provision under which the de- fendant was convicted? Again, the Members of the Court have disagreed. Compare United States v. Castleman, 572 U.S. 157, 162 (2014) (opinion of the Court), with at 175 (opinion of Scalia, J.). If the Justices of this Court, after briefing, argument, and careful study, disagree about the meaning of a “crime of domestic violence,” would the majority nevertheless require the Government to prove at trial that the defendant himself actually knew that his abuse conviction qualified? Can this be what Congress had in mind when it added this category in to combat domestic violence? Serious problems will also result from requiring proof that an alien actually knew—not should have known or even strongly suspected but actually knew—that his con- tinued presence in the country was illegal. Consider a variation on the facts of the present case. An alien admit- ted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student. Does that take
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Justice Alito
| 2,019 | 8 |
dissenting
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that he is not still a student. Does that take him 16 REHAIF v. UNITED STATES ALITO, J., dissenting outside (8)? Is it likely that this is what Congress wanted? That is most doubtful. Congress enacted ’s status- based restrictions because of its judgment that specific classes of people are “potentially irresponsible and dan- gerous” and therefore should be prohibited from owning or possessing firearms and ammunition. It is highly unlikely that Congress wanted defendants to be able to escape liability under this provision by deliberately failing to verify their status. Third, while the majority’s interpretation would frus- trate Congress’s public safety objectives in cases involving some of the status categories, in prosecutions under the most frequently invoked category, possession by a convicted felon, the majority’s interpretation will pro- duce perverse results. A felony conviction is almost al- ways followed by imprisonment, parole or its equivalent, or at least a fine. Juries will rarely doubt that a defendant convicted of a felony has forgotten that experience, and therefore requiring the prosecution to prove that the defendant knew that he had a prior felony conviction will do little for defendants. But if the prosecution must prove such knowledge to the satisfaction of a jury, then under our decision in Old it is questionable whether a defendant, by offering to stipulate that he has a prior conviction, can prevent the prosecution from offering evidence about the nature of that offense. And the admission of that information may work to a defendant’s detriment. Old Chief recognized that a party is generally entitled to admit evidence to prove a necessary fact even if the oppos- ing party offers to stipulate to that fact, at 186–190, but the Court held that a defendant’s offer to stipulate to the fact that he had a prior felony conviction precluded the prosecution from offering evidence about the Cite as: 588 U. S. (2019) 17 ALITO, J., dissenting identity of that offense. This holding appears to rest on the understanding that requires proof of status but not of knowledge. See (suggesting that a prosecutor would be entitled to seek admission of evidence of the nature of a prior felony if offered to prove knowledge). So if a defendant’s knowledge is now neces- sary, the logic of Old Chief is undermined. Fourth, the majority’s interpretation of would lead to an anomaly that Congress is unlikely to have intended. Another provision of prohibits firearms sellers from selling to persons who fall within a category, but this provision does not require proof that the seller had actual knowledge of the purchaser’s status.
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Justice Alito
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dissenting
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that the seller had actual knowledge of the purchaser’s status. It is enough if the seller had “reason- able cause” to know that a purchaser fell into a prohibited category. A person who falls into one of the cate- gories is more likely to understand his own status than is a person who sells this individual a gun. Accordingly, it is hard to see why an individual who may fall into one of the categories should have less obligation to verify his own situation than does the person who sells him a gun. Yet that is where the majority’s interpretation leads. Fifth, the legal landscape at the time of ’s enact- ment weighs strongly against the majority’s reading. Long before Congress added the term “knowingly” to federal law prohibited certain categories of people from possessing firearms. See Federal Firearms Act, ; Act of Oct. 3, 1961, Pub. L. 87–342, 75 Stat. 757; Omnibus Crime Control and Safe Street Act of 1968, Pub. L. 90–351, ; Gun Control Act of 1968, Pub. L. 90–618, note following 18 U.S. C. These predecessors of did not ex- pressly include any mens rea requirement, but courts generally interpreted them to require proof that a defend- ant acted knowingly in receiving, transporting, or pos- sessing a firearm. The courts did not, however, require 18 REHAIF v. UNITED STATES ALITO, J., dissenting proof that a defendant knew that he fell within one of the covered categories or that his conduct satisfied the stat- utes’ interstate-commerce requirement. See, e.g., United ; United ; United ; United 723–724 (CA8 1973); United 873–8743 During this same period, many States adopted similar laws,4 and no State’s courts interpreted such a law to require knowledge of the defendant’s status. See, e.g., 55 Cal. Rptr. 546, 549 (19). 144–145, ; ; State v. Heald, 382 A.2d 290, 297 (Me. 1978); 49 (Okla. Crim. App. 1977). All this case law formed part of the relevant backdrop of which we assume Congress was aware when it enacted ’s mens rea requirement in 1986. See Firearms Owners’ Protection Act, note following 18 U.S. C. “We normally assume that, when Congress enacts statutes, it is aware of relevant judicial precedent.” (inter- nal quotation marks omitted). Where all the Federal Courts of Appeals and all the state courts of last resort to have interpreted statutes prohibiting certain classes of —————— 3 The majority highlights a single case where the Sixth Circuit did require knowledge that the defendant was under indictment, out of a concern about secret indictments. Ante, at 10 ). But Congress addressed this concern separately
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Justice Alito
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dissenting
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Ante, at 10 ). But Congress addressed this concern separately when it enacted the mens rea requirement. It moved the provision involving indictments to its own statutory subsec- tion, and punished only willful violations, see (D). 4 See Brief for Everytown for Gun Safety as Amicus Curiae 6–8. Cite as: 588 U. S. (2019) 19 ALITO, J., dissenting persons from possessing firearms agreed that knowledge of status was not required, it is fair to expect Congress to legislate more clearly than it has done here if it seeks to deviate from those holdings. Adding the mens rea provi- sion in “clarif[ied]” that knowledge is the re- quired mens rea with respect to a defendant’s conduct, ante, at 10, but it did not indicate any disagreement with the established consensus that already applied that mens rea to ’s conduct element but not to the element of the defendant’s status.5 Finally, the judgment of the courts of should count for something. In Feola, the Court cited the “practi- cal unanimity” of the courts of ; see also Luna Torres, 578 U. S., at (slip op., at 15– 16), and here, even after Congress added the mens rea requirement, all the courts of to address the ques- tion have held that it does not apply to the defendant’s status.6 In addition, the decisions of the highest courts of —————— 5 Contrary to the majority’s suggestion, ante, at 10, the addition of the mens rea requirement does serve a purpose under this interpretation: It codifies the holdings of the lower courts that knowledge is required for the conduct element. If Congress had left off the list of offenses requiring knowledge in some may have invoked expressio unius to argue that a violation of required no mens rea at all. Cf. A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 107 6 See United ; United 5 F.3d 588, ; United 62 F.3d ; United States v. Rose, 587 F.3d 695, 705–706, and n. 9 ; United States v. Dancy, ; United States v. Lane, ; United States v. Thomas, 615 F. 3d 895, 899 (CA8 2010); United (CA8 1999); United ; United ; United States v. Capps, ; United 1 ; United 20 REHAIF v. UNITED STATES ALITO, J., dissenting States with laws similar to have continued to unanimously interpret those provisions in the same way.7 2 Petitioner contends that all the Courts of Appeals to address the question now before us have gone astray because they have not given proper weight to the pre- sumption that a mens rea requirement
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Justice Alito
| 2,019 | 8 |
dissenting
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Rehaif v. United States
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https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/
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weight to the pre- sumption that a mens rea requirement applies to every element of an offense that results in the criminalization of otherwise innocent conduct. See Elonis v. United States, 575 U. S. (2015); United ; Morissette v. United States, 342 U.S. 246 (1952). This concern, which also animates much of the majority’s analysis, is overstated. The majority does not claim that the Constitution re- quires proof of mens rea for every status element or every element that has the effect of criminalizing what would otherwise be lawful conduct. Nor does it suggest that the presumption it invokes is irrebuttable for any other rea- son. That would be a radical conclusion because it has long been accepted that some status elements do not require knowledge. Laws that aim to protect minors, for example, often do not require proof that an offender had actual knowledge of the age of a minor who is the victim of a crime. “ ‘The majority rule in the United States is that a defendant’s knowledge of the age of a victim is not an essential element of statutory rape. A defendant’s good faith or reasonable belief that the victim is over the age of consent is simply no defense.’ ” United (citation omitted). Similarly, 18 U.S. C. makes it a crime, punishable by up to 15 years’ imprisonment, knowingly to engage in a sexual act with a person who is between the —————— 7 See Brief for Everytown for Gun Safety as Amicus Curiae 11–19 (collecting cases). Cite as: 588 U. S. (2019) 21 ALITO, J., dissenting ages of 12 and 16 and is less than four years younger than the accused. This statute expressly provides that knowledge of the victim’s age need not be proved. I do not understand the majority to suggest that these laws, which dispense with proof of knowledge for public safety purposes, are invalid. Not only is there no blanket rule requiring proof of mens rea with respect to every element that distinguishes be- tween lawful and unlawful conduct, but petitioner exag- gerates in suggesting that the so-called jurisdictional elements in federal criminal statutes comply with this “rule” because they do no more than provide a hook for prosecuting a crime in federal court. These elements often do more than that. They sometimes transform lawful conduct into criminal conduct: In a State that chooses to legalize marijuana, possession is wrongful only if the defendant is on federal property. Cf. –74.400 (2018). Jurisdictional elements may also drastically in- crease the punishment for a wrongful act. For example, the statute at
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Justice Alito
| 2,019 | 8 |
dissenting
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Rehaif v. United States
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https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/
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punishment for a wrongful act. For example, the statute at issue in Feola, which criminalizes assault on a federal officer, doubles the possible prison sentence that would have been applicable to simple assault. Compare 18 U.S. C. and Just like a status element, a jurisdictional element can make the difference between some penalty and no penalty, or between significantly greater and lesser penalties. Since a legislative body may enact a valid criminal statute with a strict-liability element, the dispositive question is whether it has done so or, in other words, whether the presumption that petitioner invokes is rebut- ted. This rebuttal can be done by the statutory text or other persuasive factors. See (applying presumption “[a]bsent indication of contrary purpose in the language or legisla- tive history”); X-Citement –72 (dis- cussing statutory context in reaching conclusion); Flores- 22 REHAIF v. UNITED STATES ALITO, J., dissenting 556 U.S., at ; at 0 (ALITO, J., concur- ring in part and concurring in judgment). And here, for the reasons discussed above, is best interpreted not to require proof that a defendant knew that he fell within one of the covered categories. I add one last point about what can be inferred regard- ing Congress’s intent. Once it becomes clear that statu- tory text alone does not answer the question that we face and we are left to infer Congress’s intent based on other indicators, there is no reason why we must or should infer that Congress wanted the same mens rea to apply to all the elements of the offense. As we said in Staples v. United States, “different elements of the same offense can require different mental states.” And if Congress wanted to require proof of some mens rea with respect to the categories in there is absolutely no reason to suppose that it wanted to impose one of the highest degrees of mens rea—actual knowledge. Why not require reason to know or recklessness or negli- gence? To this question, neither petitioner nor the major- ity has any answer. D Because the context resolves the interpretive question, neither the canon of constitutional avoidance nor the rule of lenity can be invoked to dictate the result that the majority reaches. As to the canon, we have never held that the Due Process Clause requires mens rea for all elements of all offenses, and we have upheld the constitu- tionality of some strict-liability offenses in the past. See United ; United States v. Dotterweich, ; United States v. Balint, ; United In any event, if the avoidance of a serious constitutional question required us
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Justice Alito
| 2,019 | 8 |
dissenting
|
Rehaif v. United States
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https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/
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if the avoidance of a serious constitutional question required us to infer that some mens rea applies to ’s status element, that Cite as: 588 U. S. (2019) 23 ALITO, J., dissenting would hardly justify bypassing lower levels of mens rea and going all the way to actual knowledge. As for the rule of lenity, we resort to it “only if, after seizing everything from which aid can be derived, we can make no more than a guess as to what Congress intended.” (alterations and internal quotation marks omitted). And what I have just said about the constitutional avoidance canon applies equally to lenity: It cannot possibly justify requiring actual knowledge. III Although the majority presents its decision as modest, its practical effects will be far reaching and cannot be ignored. Tens of thousands of prisoners are currently serving sentences for violating 18 U.S. C.8 It is true that many pleaded guilty, and for most direct review is over. Nevertheless, every one of those prisoners will be able to seek relief by one route or another. Those for whom direct review has not ended will likely be entitled to a new trial. Others may move to have their convictions vacated under 28 U.S. C. and those within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies. 618–619 If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the dis- trict courts, in a great many cases, may be required to hold a hearing, order that the prisoner be brought to court —————— 8 The U. S. Sentencing Commission reports that in fiscal year 2017 there were 6,032 offenders convicted under 18 U.S. C. with an average sentence of 64 months, https:// www.ussc.gov / sites / default / files / pdf / research - and - publications / quick - facts / Felon_in_Possession_ FY17.pdf (as last visited June 19, 2019). 24 REHAIF v. UNITED STATES ALITO, J., dissenting from a distant place of confinement, and make a credibil- ity determination as to the prisoner’s subjective mental state at the time of the crime, which may have occurred years in the past. See United States v. Garth, 188 F.3d 99, 109 (CA3 1999); United 384–385 (CA5 1999); United States v. Hellbusch, 147 F.3d 782, 784 ; United States v. Benboe, 157 F.3d 1181, 1184 This will create a substantial burden on lower
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Justice Alito
| 2,019 | 8 |
dissenting
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Rehaif v. United States
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https://www.courtlistener.com/opinion/4632240/rehaif-v-united-states/
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1181, 1184 This will create a substantial burden on lower courts, who are once again left to clean up the mess the Court leaves in its wake as it moves on to the next statute in need of “fixing.” Cf. Mathis v. United States, 579 U. S. – (2016) (ALITO, J., dissenting) (slip op., at 5–6). Nor is there any reason to think that the Court’s reason- ing here will necessarily be limited to The Court goes out of its way to point out that it is not taking a position on the applicability of mens rea requirements in other status-based offenses, even where the statute lists the status before the mens rea. Ante, at 7. * * * The majority today opens the gates to a flood of litiga- tion that is sure to burden the lower courts with claims for relief in a host of cases where there is no basis for doubt- ing the defendant’s knowledge. The majority’s interpreta- tion of is not required by the statutory text, and there is no reason to suppose that it represents what Congress intended. I respectfully dissent
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per_curiam
| 1,981 | 200 |
per_curiam
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Pacileo v. Walker
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https://www.courtlistener.com/opinion/110359/pacileo-v-walker/
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The United States Constitution provides that "[a] person charged in any State with Treason, Felony or other Crime, who shall flee from Justice, and be found in another State, shall on Demand of the executive Authority of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime." Art. IV, 2, cl. 2. In this case, there is no dispute as to the facts necessary to resolve the legal question presented. In 1975, respondent James Dean Walker escaped from the Arkansas Department of Corrections and remained at large until he was apprehended in California in 1979. In December 1979, the Governor of Arkansas requested the arrest and rendition of respondent, alleging that respondent was a fugitive from *87 justice. In February 1980, the Governor of California honored the request of the Governor of Arkansas and duly issued a warrant of arrest and rendition. This warrant was then served upon respondent by the Sheriff of El Dorado County, Cal. Respondent thereafter challenged the Governor's issuance of the warrant in both state and federal courts. He was unsuccessful until he reached the Supreme Court of California, which, on April 9, 1980, issued a writ of habeas corpus directing the Superior Court of El Dorado County to "conduct hearings to determine if the penitentiary in which Arkansas seeks to confine petitioner is presently operated in conformance with the Eighth Amendment of the United States Constitution and thereafter to decide the petition on its merits." Petitioner Sheriff contends that Art. IV, 2, cl. 2, and its implementing statute, 18 U.S. C. 3182, do not give the courts of the "asylum" or "sending" State authority to inquire into the prison conditions of the "demanding" State. We agree. In our most recent pronouncement on the subject, we stated that "[i]nterstate extradition was intended to be a summary and mandatory executive proceeding derived from the language of Art. IV, 2, cl. 2, of the Constitution." We further stated: "A governor's grant of extradition is prima facie evidence that the constitutional and statutory requirements have been met. Once the governor has granted extradition, a court considering release on habeas corpus can do no more than decide (a) whether the extradition documents on their face are in order; (b) whether the petitioner has been charged with a crime in the demanding state; (c) whether the petitioner is the person named in the request for extradition; and (d) whether the petitioner is a fugitive. These are historic facts readily verifiable." *88 In this Court held that a fugitive from Alabama could
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per_curiam
| 1,981 | 200 |
per_curiam
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Pacileo v. Walker
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https://www.courtlistener.com/opinion/110359/pacileo-v-walker/
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In this Court held that a fugitive from Alabama could not raise in the federal courts of Ohio, the asylum State, the constitutionality of his confinement in Alabama. We stated: "Considerations fundamental to our federal system require that the prisoner test the claimed unconstitutionality of his treatment by Alabama in the courts of that State. Respondent should be required to initiate his suit in the courts of Alabama, where all parties may be heard, where all pertinent testimony will be readily available, and where suitable relief, if any is necessary, may be fashioned." We think that the Supreme Court of California ignored the teachings of these cases when it directed one of its own trial courts of general jurisdiction to conduct an inquiry into the present conditions of the Arkansas penal system. Once the Governor of California issued the warrant for arrest and rendition in response to the request of the Governor of Arkansas, claims as to constitutional defects in the Arkansas penal system should be heard in the courts of Arkansas, not those of California. "To allow plenary review in the asylum state of issues that can be fully litigated in the charging state would defeat the plain purposes of the summary and mandatory procedures authorized by Art. IV, 2." The petition for certiorari is granted, the judgment of the Supreme Court of California is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Reversed and remanded.
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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This case involves the assertion by a government em ployer of the right, in circumstances to be described, to read text messages sent and received on a pager the em ployer owned and issued to an employee. The employee contends that the privacy of the messages is protected by the ban on “unreasonable searches and seizures” found in the Fourth Amendment to the United States Constitution, made applicable to the States by the Due Process Clause of the Fourteenth Amendment. Mapp v. Ohio, 367 U.S. 6 (1961). Though the case touches issues of far- reaching significance, the Court concludes it can be re solved by settled principles determining when a search is reasonable. I A The City of Ontario (City) is a political subdivision of the State of California. The case arose out of incidents in 2001 and 2002 when respondent Jeff Quon was employed by the Ontario Police Department (OPD). He was a police ser 2 ONTARIO v. QUON Opinion of the Court geant and member of OPD’s Special Weapons and Tactics (SWAT) Team. The City, OPD, and OPD’s Chief, Lloyd Scharf, are petitioners here. As will be discussed, two respondents share the last name Quon. In this opinion “Quon” refers to Jeff Quon, for the relevant events mostly revolve around him. In October 2001, the City acquired 20 alphanumeric pagers capable of sending and receiving text messages. Arch Wireless Operating Company provided wireless service for the pagers. Under the City’s service contract with Arch Wireless, each pager was allotted a limited number of characters sent or received each month. Usage in excess of that amount would result in an additional fee. The City issued pagers to Quon and other SWAT Team members in order to help the SWAT Team mobilize and respond to emergency situations. Before acquiring the pagers, the City announced a “Computer Usage, Internet and E-Mail Policy” (Computer Policy) that applied to all employees. Among other provi sions, it specified that the City “reserves the right to moni tor and log all network activity including e-mail and Internet use, with or without notice. Users should have no expectation of privacy or confidentiality when using these resources.” App. to Pet. for Cert. 152a. In March 2000, Quon signed a statement acknowledging that he had read and understood the Computer Policy. The Computer Policy did not apply, on its face, to text messaging. Text messages share similarities with e-mails, but the two differ in an important way. In this case, for instance, an e-mail sent on a City computer was transmit ted through the City’s own data servers,
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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computer was transmit ted through the City’s own data servers, but a text mes sage sent on one of the City’s pagers was transmitted using wireless radio frequencies from an individual pager to a receiving station owned by Arch Wireless. It was routed through Arch Wireless’ computer network, where it remained until the recipient’s pager or cellular telephone Cite as: 560 U. S. (2010) 3 Opinion of the Court was ready to receive the message, at which point Arch Wireless transmitted the message from the transmitting station nearest to the recipient. After delivery, Arch Wireless retained a copy on its computer servers. The message did not pass through computers owned by the City. Although the Computer Policy did not cover text mes sages by its explicit terms, the City made clear to employ ees, including Quon, that the City would treat text mes sages the same way as it treated e-mails. At an April 18, 2002, staff meeting at which Quon was present, Lieuten ant Steven Duke, the OPD officer responsible for the City’s contract with Arch Wireless, told officers that messages sent on the pagers “are considered e-mail messages. This means that [text] messages would fall under the City’s policy as public information and [would be] eligible for auditing.” App. 30. Duke’s comments were put in writing in a memorandum sent on April 29, 2002, by Chief Scharf to Quon and other City personnel. Within the first or second billing cycle after the pagers were distributed, Quon exceeded his monthly text message character allotment. Duke told Quon about the overage, and reminded him that messages sent on the pagers were “considered e-mail and could be audited.” Duke said, however, that “it was not his intent to audit [an] employee’s text messages to see if the overage [was] due to work related transmissions.” Duke suggested that Quon could reimburse the City for the overage fee rather than have Duke audit the messages. Quon wrote a check to the City for the overage. Duke offered the same ar rangement to other employees who incurred overage fees. Over the next few months, Quon exceeded his character limit three or four times. Each time he reimbursed the City. Quon and another officer again incurred overage fees for their pager usage in August 2002. At a meeting in October, Duke told Scharf that he had become “ ‘tired of 4 ONTARIO v. QUON Opinion of the Court being a bill collector.’ ” Scharf decided to de termine whether the existing character limit was too low—that is, whether officers such as Quon were having to
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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low—that is, whether officers such as Quon were having to pay fees for sending work-related messages—or if the overages were for personal messages. Scharf told Duke to request transcripts of text messages sent in August and September by Quon and the other employee who had exceeded the character allowance. At Duke’s request, an administrative assistant em ployed by OPD contacted Arch Wireless. After verifying that the City was the subscriber on the accounts, Arch Wireless provided the desired transcripts. Duke reviewed the transcripts and discovered that many of the messages sent and received on Quon’s pager were not work related, and some were sexually explicit. Duke reported his find ings to Scharf, who, along with Quon’s immediate supervi sor, reviewed the transcripts himself. After his review, Scharf referred the matter to OPD’s internal affairs divi sion for an investigation into whether Quon was violating OPD rules by pursuing personal matters while on duty. The officer in charge of the internal affairs review was Sergeant Patrick McMahon. Before conducting a review, McMahon used Quon’s work schedule to redact the tran scripts in order to eliminate any messages Quon sent while off duty. He then reviewed the content of the mes sages Quon sent during work hours. McMahon’s report noted that Quon sent or received 456 messages during work hours in the month of August 2002, of which no more than 57 were work related; he sent as many as 80 mes sages during a single day at work; and on an average workday, Quon sent or received 28 messages, of which only 3 were related to police business. The report con cluded that Quon had violated OPD rules. Quon was allegedly disciplined. Cite as: 560 U. S. (2010) 5 Opinion of the Court B Raising claims under Rev. Stat. 42 U.S. C. 18 U.S. C. et seq., popularly known as the Stored Communications Act (SCA); and California law, Quon filed suit against petitioners in the United States District Court for the Central District of California. Arch Wireless and an individual not relevant here were also named as defendants. Quon was joined in his suit by another plaintiff who is not a party before this Court and by the other respondents, each of whom exchanged text messages with Quon during August and September 2002: Jerilyn Quon, Jeff Quon’s then-wife, from whom he was separated; April Florio, an OPD employee with whom Jeff Quon was romantically involved; and Steve Trujillo, an other member of the OPD SWAT Team. Among the alle gations in the complaint was that petitioners violated respondents’ Fourth Amendment rights
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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the complaint was that petitioners violated respondents’ Fourth Amendment rights and the SCA by obtaining and reviewing the transcript of Jeff Quon’s pager messages and that Arch Wireless had violated the SCA by turning over the transcript to the City. The parties filed cross-motions for summary judgment. The District Court granted Arch Wireless’ motion for summary judgment on the SCA claim but denied petition ers’ motion for summary judgment on the Fourth Amend ment claims. 445 F. Supp. 2d 1116 (CD Cal. 2006). Relying on the plural ity opinion in (1987), the District Court determined that Quon had a reasonable expectation of privacy in the content of his text messages. Whether the audit of the text messages was nonetheless reasonable, the District Court concluded, turned on Chief Scharf’s intent: “[I]f the purpose for the audit was to determine if Quon was using his pager to ‘play games’ and ‘waste time,’ then the audit was not constitutionally reasonable”; but if the audit’s purpose “was to determine the efficacy of the existing character 6 ONTARIO v. QUON Opinion of the Court limits to ensure that officers were not paying hidden work related costs, no constitutional violation occurred.” The District Court held a jury trial to determine the purpose of the audit. The jury concluded that Scharf ordered the audit to determine the efficacy of the charac ter limits. The District Court accordingly held that peti tioners did not violate the Fourth Amendment. It entered judgment in their favor. The United States Court of Appeals for the Ninth Cir cuit reversed in part. The panel agreed with the District Court that Jeff Quon had a rea sonable expectation of privacy in his text messages but disagreed with the District Court about whether the search was reasonable. Even though the search was conducted for “a legitimate work-related rationale,” the Court of Appeals concluded, it “was not reasonable in scope.” The panel disagreed with the District Court’s observation that “there were no less-intrusive means” that Chief Scharf could have used “to verify the efficacy of the 25,000 character limit without intruding on [respondents’] Fourth Amendment rights.” – 909. The opinion pointed to a “host of simple ways” that the chief could have used instead of the audit, such as warning Quon at the beginning of the month that his future messages would be audited, or asking Quon himself to redact the transcript of his messages. The Court of Appeals further concluded that Arch Wireless had violated the SCA by turning over the transcript to the City. The Ninth Circuit denied a petition for rehearing en
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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City. The Ninth Circuit denied a petition for rehearing en banc. (2009). Judge Ikuta, joined by six other Circuit Judges, dissented. at 774–779. Judge Wardlaw concurred in the denial of rehearing, defending the panel’s opinion against the dissent. at 769–774. Cite as: 560 U. S. (2010) 7 Opinion of the Court This Court granted the petition for certiorari filed by the City, OPD, and Chief Scharf challenging the Court of Appeals’ holding that they violated the Fourth Amend ment. 558 U. S. (2009). The petition for certiorari filed by Arch Wireless challenging the Ninth Circuit’s ruling that Arch Wireless violated the SCA was denied. USA Mobility Wireless, Inc. v. Quon, 558 U. S. (2009). II The Fourth Amendment states: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated” It is well settled that the Fourth Amend ment’s protection extends beyond the sphere of criminal investigations. “The Amendment guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the Government,” without regard to whether the government actor is investigating crime or performing another function. The Fourth Amend ment applies as well when the Government acts in its capacity as an employer. Treasury The Court discussed this principle in O’. There a physician employed by a state hospital alleged that hospi tal officials investigating workplace misconduct had vio lated his Fourth Amendment rights by searching his office and seizing personal items from his desk and filing cabi net. All Members of the Court agreed with the general principle that “[i]ndividuals do not lose Fourth Amend ment rights merely because they work for the government instead of a private employer.” (plurality opinion); see also (SCALIA, J., concurring in judgment); A major 8 ONTARIO v. QUON Opinion of the Court ity of the Court further agreed that “ ‘special needs, beyond the normal need for law enforcement,’ ” make the warrant and probable-cause requirement impracticable for gov ernment employers. (Blackmun, J., concurring in judgment); (opinion of SCALIA, J.) (quoting same). The O’ Court did disagree on the proper analyti cal framework for Fourth Amendment claims against government employers. A four-Justice plurality concluded that the correct analysis has two steps. First, because “some government offices may be so open to fellow em ployees or the public that no expectation of privacy is reasonable,” a court must consider “[t]he opera tional realities of the workplace” in order to determine whether an employee’s Fourth Amendment rights are implicated, On this view, “the question whether an
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Justice Kennedy
| 2,010 | 4 |
majority
|
Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
|
rights are implicated, On this view, “the question whether an employee has a reasonable expectation of privacy must be addressed on a case-by-case basis.” at 718. Next, where an employee has a legitimate privacy expectation, an employer’s intrusion on that expectation “for noninvestigatory, work-related purposes, as well as for investigations of work-related misconduct, should be judged by the standard of reasonableness under all the circumstances.” –726. JUSTICE SCALIA, concurring in the judgment, outlined a different approach. His opinion would have dispensed with an inquiry into “operational realities” and would conclude “that the offices of government employees are covered by Fourth Amendment protections as a general matter.” But he would also have held “that government searches to retrieve work-related materials or to investigate violations of workplace rules—searches of the sort that are regarded as reasonable and normal in the private-employer context—do not violate the Fourth Amendment.” Cite as: 560 U. S. (2010) 9 Opinion of the Court Later, in the Von decision, the Court explained that “operational realities” could diminish an employee’s privacy expectations, and that this diminution could be taken into consideration when assessing the reasonable ness of a workplace In the two decades since O’, however, the threshold test for determining the scope of an employee’s Fourth Amend ment rights has not been clarified further. Here, though they disagree on whether Quon had a reasonable expecta tion of privacy, both petitioners and respondents start from the premise that the O’ plurality controls. See Brief for Petitioners 22–28; Brief for Respondents 25– 32. It is not necessary to resolve whether that premise is correct. The case can be decided by determining that the search was reasonable even assuming Quon had a reason able expectation of privacy. The two O’ ap proaches—the plurality’s and JUSTICE SCALIA’s—therefore lead to the same result here. III A Before turning to the reasonableness of the search, it is instructive to note the parties’ disagreement over whether Quon had a reasonable expectation of privacy. The record does establish that OPD, at the outset, made it clear that pager messages were not considered private. The City’s Computer Policy stated that “[u]sers should have no ex pectation of privacy or confidentiality when using” City computers. App. to Pet. for Cert. 152a. Chief Scharf’s memo and Duke’s statements made clear that this official policy extended to text messaging. The disagreement, at least as respondents see the case, is over whether Duke’s later statements overrode the official policy. Respondents contend that because Duke told Quon that an audit would be unnecessary if Quon paid for the overage, Quon rea sonably
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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unnecessary if Quon paid for the overage, Quon rea sonably could expect that the contents of his messages 10 ONTARIO v. QUON Opinion of the Court would remain private. At this point, were we to assume that inquiry into “op erational realities” were called for, compare O’, 480 U.S., with at 730–731 (opinion of SCALIA, J.); see also –738 (Blackmun, J., dissenting), it would be necessary to ask whether Duke’s statements could be taken as announcing a change in OPD policy, and if so, whether he had, in fact or ap pearance, the authority to make such a change and to guarantee the privacy of text messaging. It would also be necessary to consider whether a review of messages sent on police pagers, particularly those sent while officers are on duty, might be justified for other reasons, including performance evaluations, litigation concerning the lawful ness of police actions, and perhaps compliance with state open records laws. See Brief for Petitioners 35–40 ). These matters would all bear on the legiti macy of an employee’s privacy expectation. The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., overruled by In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See at 360–361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence coun sels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. Cite as: 560 U. S. (2010) 11 Opinion of the Court Rapid changes in the dynamics of communication and information transmission are evident not just in the tech nology itself but in what society accepts as proper behav ior. As one amici brief notes, many employers expect or at least tolerate personal use of such equipment by employ ees because it often increases worker efficiency. See Brief for Electronic Frontier Foundation et al. 16–20. Another amicus points out that the law is beginning to respond to these developments, as some States have recently passed statutes requiring employers to notify employees when monitoring their electronic communications. See Brief for New York Intellectual Property Law Association 22 (citing Del. Code Ann., Tit. 19,
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Justice Kennedy
| 2,010 | 4 |
majority
|
Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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Property Law Association 22 (citing Del. Code Ann., Tit. 19, (2005); Conn. Gen. Stat. Ann. (West 2003)). At present, it is uncertain how workplace norms, and the law’s treatment of them, will evolve. Even if the Court were certain that the O’ plural ity’s approach were the right one, the Court would have difficulty predicting how employees’ privacy expectations will be shaped by those changes or the degree to which society will be prepared to recognize those expectations as reasonable. See Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or nec essary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own. And employer policies concerning commu nications will of course shape the reasonable expectations of their employees, especially to the extent that such policies are clearly communicated. A broad holding concerning employees’ privacy expecta tions vis-à-vis employer-provided technological equipment 12 ONTARIO v. QUON Opinion of the Court might have implications for future cases that cannot be predicted. It is preferable to dispose of this case on nar rower grounds. For present purposes we assume several propositions arguendo: First, Quon had a reasonable expectation of privacy in the text messages sent on the pager provided to him by the City; second, petitioners’ review of the transcript constituted a search within the meaning of the Fourth Amendment; and third, the princi ples applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s pri vacy in the electronic sphere. B Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing the transcripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, The Court has held that the “ ‘special needs’ ” of the workplace justify one such exception. O’, 480 U.S., ; (SCALIA, J., concurring in judgment); Von 489 U.S., at 666–667. Under the approach of the O’ plurality, when conducted for a “noninvestigatory, work-related purpos[e]” or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “ ‘justified at its inception’
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Justice Kennedy
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majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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is reasonable if it is “ ‘justified at its inception’ ” and if “ ‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’ ” the cir cumstances giving rise to the 480 U.S., – 726. The search here satisfied the standard of the O’ plurality and was reasonable under that ap Cite as: 560 U. S. (2010) 13 Opinion of the Court proach. The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related pur pose.” As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was suffi cient to meet the City’s needs. This was, as the Ninth Circuit noted, a “legitimate work-related rationale.” 529 F.3d, The City and OPD had a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications. As for the scope of the search, reviewing the transcripts was reasonable because it was an efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use. The review was also not “ ‘excessively intrusive.’ ” O’, at 726 Although Quon had gone over his monthly allotment a number of times, OPD requested transcripts for only the months of August and September 2002. While it may have been reasonable as well for OPD to review transcripts of all the months in which Quon exceeded his allowance, it was certainly reasonable for OPD to review messages for just two months in order to obtain a large enough sample to decide whether the char acter limits were efficacious. And it is worth noting that during his internal affairs investigation, McMahon re dacted all messages Quon sent while off duty, a measure which reduced the intrusiveness of any further review of the transcripts. Furthermore, and again on the assumption that Quon had a reasonable expectation of privacy in the contents of his messages, the extent of an expectation is relevant to assessing whether the search was too intrusive. See Von 14 ONTARIO v. QUON Opinion of the Court ; cf. School Dist. Even if he could as sume some level of privacy would inhere in his messages, it would not have been reasonable for Quon to conclude that his messages were in all circumstances immune from scrutiny. Quon was told that his
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Justice Kennedy
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majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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all circumstances immune from scrutiny. Quon was told that his messages were subject to auditing. As a law enforcement officer, he would or should have known that his actions were likely to come under legal scrutiny, and that this might entail an analysis of his on-the-job communications. Under the circumstances, a reasonable employee would be aware that sound manage ment principles might require the audit of messages to determine whether the pager was being appropriately used. Given that the City issued the pagers to Quon and other SWAT Team members in order to help them more quickly respond to crises—and given that Quon had re ceived no assurances of privacy—Quon could have antici pated that it might be necessary for the City to audit pager messages to assess the SWAT Team’s performance in particular emergency situations. From OPD’s perspective, the fact that Quon likely had only a limited privacy expectation, with boundaries that we need not here explore, lessened the risk that the review would intrude on highly private details of Quon’s life. OPD’s audit of messages on Quon’s employer-provided pager was not nearly as intrusive as a search of his per sonal e-mail account or pager, or a wiretap on his home phone line, would have been. That the search did reveal intimate details of Quon’s life does not make it unreason able, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters. The search was permissible in its scope. The Court of Appeals erred in finding the search unrea sonable. It pointed to a “host of simple ways to verify the efficacy of the 25,000 character limit without intruding on [respondents’] Fourth Amendment rights.” 529 F. 3d, Cite as: 560 U. S. (2010) 15 Opinion of the Court The panel suggested that Scharf “could have warned Quon that for the month of September he was forbidden from using his pager for personal communica tions, and that the contents of all his messages would be reviewed to ensure the pager was used only for work related purposes during that time frame. Alternatively, if [OPD] wanted to review past usage, it could have asked Quon to count the characters himself, or asked him to redact personal messages and grant permission to [OPD] to review the redacted transcript.” This approach was inconsistent with controlling prece dents. This Court has “repeatedly refused to declare that only the ‘least intrusive’ search practicable can be reason able under the Fourth Amendment.” at 663; see also, e.g., Board of Ed. of Independent School Dist. No. 92
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Justice Kennedy
| 2,010 | 4 |
majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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e.g., Board of Ed. of Independent School Dist. No. 92 of Pottawatomie (2002); That rationale “could raise insuperable barriers to the exercise of virtually all search-and-seizure powers,” United (1976), because “judges engaged in post hoc evaluations of government conduct can almost always imagine some alternative means by which the objectives of the govern ment might have been accomplished,” Skinner, 489 U.S., at 629, n. 9 (internal quotation marks and brackets omit ted). The analytic errors of the Court of Appeals in this case illustrate the necessity of this principle. Even assum ing there were ways that OPD could have performed the search that would have been less intrusive, it does not follow that the search as conducted was unreasonable. Respondents argue that the search was per se unrea sonable in light of the Court of Appeals’ conclusion that Arch Wireless violated the SCA by giving the City the transcripts of Quon’s text messages. The merits of the SCA claim are not before us. But even if the Court of Appeals was correct to conclude that the SCA forbade 16 ONTARIO v. QUON Opinion of the Court Arch Wireless from turning over the transcripts, it does not follow that petitioners’ actions were unreasonable. Respondents point to no authority for the proposition that the existence of statutory protection renders a search per se unreasonable under the Fourth Amendment. And the precedents counsel otherwise. See Virginia v. Moore, 553 U.S. 164, 168 (search incident to an arrest that was illegal under state law was reasonable); California v. Greenwood, (rejecting argument that if state law forbade police search of individual’s gar bage the search would violate the Fourth Amendment). Furthermore, respondents do not maintain that any OPD employee either violated the law him- or herself or knew or should have known that Arch Wireless, by turning over the transcript, would have violated the law. The other wise reasonable search by OPD is not rendered unreason able by the assumption that Arch Wireless violated the SCA by turning over the transcripts. Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’ 480 U.S., For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intru sive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of JUSTICE SCALIA’s concurrence. The search was reasonable, and the Court of Appeals erred
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Justice Kennedy
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majority
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Ontario v. Quon
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https://www.courtlistener.com/opinion/148797/ontario-v-quon/
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The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not vio late Quon’s Fourth Amendment rights. C Finally, the Court must consider whether the search violated the Fourth Amendment rights of Jerilyn Quon, Florio, and Trujillo, the respondents who sent text mes Cite as: 560 U. S. (2010) 17 Opinion of the Court sages to Jeff Quon. Petitioners and respondents disagree whether a sender of a text message can have a reasonable expectation of privacy in a message he knowingly sends to someone’s employer-provided pager. It is not necessary to resolve this question in order to dispose of the case, how ever. Respondents argue that because “the search was unreasonable as to Sergeant Quon, it was also unreason able as to his correspondents.” Brief for Respondents 60 (some capitalization omitted; boldface deleted). They make no corollary argument that the search, if reasonable as to Quon, could nonetheless be unreasonable as to Quon’s correspondents. See at 65–66. In light of this litigating position and the Court’s conclusion that the search was reasonable as to Jeff Quon, it necessarily follows that these other respondents cannot prevail. * * * Because the search was reasonable, petitioners did not violate respondents’ Fourth Amendment rights, and the court below erred by concluding otherwise. The judgment of the Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consis tent with this opinion. It is so ordered. Cite as: 560 U. S. (2010) 1 STEVENS, J., concurring SUPREME COURT OF THE UNITED STATES No. 08–1332 CITY OF ONTARIO, CALIFORNIA, ET AL., PETITIONERS v. JEFF QUON ET AL.
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Justice Powell
| 1,974 | 17 |
majority
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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On May 2, petitioner filed a class action on behalf of himself and all other odd-lot[1] traders on the New York Sck Exchange (the Exchange). The complaint charged respondents with violations of the antitrust and securities laws and demanded damages for petitioner and his class. Eight years have elapsed, but there has been no trial on the merits of these claims. Both the parties and the courts are still wrestling with the complex questions surrounding petitioner's attempt maintain his suit as a class action under Fed. Rule Civ. Proc. 23. We granted certiorari resolve some of these difficulties. *160 I Petitioner brought this class action in the United States District Court for the Southern District of New York. Originally, he sued on behalf of all buyers and sellers of odd lots on the Exchange, but subsequently the class was limited those who traded in odd lots during the period from May 1, 1962, through June 30, 52 F. R. D. 253, 261 Throughout this period odd-lot trading was not part of the Exchange's regular auction market but was handled exclusively by special odd-lot dealers, who bought and sold for their own accounts as principals. Respondent brokerage firms Carlisle & Jacquelin and DeCoppet & Doremus gether handled 99% of the Exchange's odd-lot business. S. E. C., Report of Special Study of Securities Markets, H. R. Doc. No. 95, pt. 2, 88th Cong., 1st Sess., 172 (1963). They were compensated by the odd-lot differential, a surcharge imposed on the odd-lot invesr in addition the standard brokerage commission applicable round-lot transactions. For the period in question the differential was 1/8 of a point (12 1/2¢) per share on scks trading below $40 per share and 1/4 of a point (25¢) per share on scks trading at or above $40 per share.[2] Petitioner charged that respondent brokerage firms had monopolized odd-lot trading and set the differential at an excessive level in violation of 1 and 2 of the Sherman Act, 15 U.S. C. 1 and 2, and he demanded treble damages for the amount of the overcharge. Petitioner also demanded unspecified money damages from the Exchange for its alleged failure regulate the differential for the protection of invesrs in violation of 6 and 19 of the Securities Exchange Act of 1934, 15 U.S. C. 78f and 78s. Finally, he requested atrneys' *161 fees and injunctive prohibition of future excessive charges. A critical fact in this litigation is that petitioner's individual stake in the damages award he seeks is only $70. No competent atrney would undertake this complex antitrust action recover so inconsequential an amount.
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Justice Powell
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majority
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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undertake this complex antitrust action recover so inconsequential an amount. Economic reality dictates that petitioner's suit proceed as a class action or not at all. Opposing counsel have therefore engaged in prolonged combat over the various requirements of Rule 23. The result has been an exceedingly complicated series of decisions by both the District Court and the Court of Appeals for the Second Circuit. To understand the labyrinthian hisry of this litigation, a preliminary overview of the decisions may prove useful. In the beginning, the District Court determined that petitioner's suit was not maintainable as a class action. On appeal, the Court of Appeals issued two decisions known popularly as Eisen I and Eisen II. The first held that the District Court's decision was a final order and thus appealable. In the second the Court of Appeals intimated that petitioner's suit could satisfy the requirements of Rule 23, but it remanded the case permit the District Court consider the matter further. After conducting several evidentiary hearings on remand, the District Court decided that the suit could be maintained as a class action and entered orders intended fulfill the notice requirements of Rule 23. Once again, the case was appealed. The Court of Appeals then issued its decision in Eisen III and ended the trilogy by denying class action status petitioner's suit. We now review these developments in more detail. Eisen I As we have seen, petitioner began this action in May In September of that year the District Court *162 dismissed the suit as a class action. 41 F. R. D. 147. Following denial of his motion for interlocury review under 28 U.S. C. 1292 (b), petitioner ok an appeal as of right under 1291. Respondents then moved dismiss on the ground that the order appealed from was not final. In Eisen I, the Court of Appeals held that the denial of class action status in this case was appealable as a final order under 1291. cert. denied, This was so because, as a practical matter, the dismissal of the class action aspect of petitioner's suit was a "death knell" for the entire action. The court thought this consequence rendered the order dismissing the class action appealable under Eisen II Nearly 18 months later the Court of Appeals reversed the dismissal of the class action in a decision known as Eisen II. In reaching this result the court underok an exhaustive but ultimately inconclusive analysis of Rule 23. Subdivision (a) of the Rule sets forth four prerequisites the maintenance of any suit as a class action: "(1) the class is
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Justice Powell
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majority
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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any suit as a class action: "(1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common the class, (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class." The District Court had experienced little difficulty in finding that petitioner satisfied the first three prerequisites but had concluded that petitioner might not "fairly and adequately protect the interests of the class" as required by Rule 23 (a) (4). The Court of Appeals indicated its disagreement with the *163 reasoning behind the latter conclusion and directed the District Court reconsider the point. In addition meeting the four conjunctive requirements of 23 (a), a class action must also qualify under one of the three subdivisions of 23 (b).[3] Petitioner argued that the suit was maintainable as a class action under all three subdivisions. The Court of Appeals held the first two subdivisions inapplicable this suit[4] and *164 therefore turned its attention the third subdivision, (b) (3). That subdivision requires a court determine whether "questions of law or fact common the members of the class predominate over any questions affecting only individual members" and whether "a class action is superior other available methods for the fair and efficient adjudication of the controversy." More specifically, it identifies four facrs relevant these inquiries. After a detailed review of these provisions, the Court of Appeals concluded that the only potential barrier maintenance of this suit as a class action was the Rule 23 (b) (3) (D) directive that a court evaluate "the difficulties likely be encountered in the management of a class action." Commonly referred as "manageability," this consideration encompasses the whole range of practical problems that may render the class action format inappropriate for a particular suit. With reference this litigation, the Court of Appeals noted that the difficulties of distributing any ultimate recovery the class members would be formidable, though not necessarily insuperable, and commented that it was "reluctant permit actions proceed where they are not likely benefit anyone but the lawyers who bring them." The Court therefore directed the District Court conduct "a further inquiry in order consider the mechanics involved in the administration of the present action." *165 Finally, the Court of Appeals turned the most imposing obstacle this class actionthe notice requirement of Rule 23 (c) (2). The District Court had held that both the Rule and the Due Process Clause of the Fifth Amendment required
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Justice Powell
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majority
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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and the Due Process Clause of the Fifth Amendment required individual notice all class members who could be identified. 41 F. R. D., at 151. Petitioner objected that mailed notice the entire class would be prohibitively expensive and argued that some form of publication notice would suffice. The Court of Appeals declined settle this issue, nothing that "[o]n the record before us we cannot arrive at any rational and satisfacry conclusion on the propriety of resorting some form of publication as a means of giving the necessary notice all members of the class on behalf of whom the action is stated be commenced and maintained." The outcome of Eisen II was a remand for an evidentiary hearing on the questions of notice, manageability, adequacy of representation, and "any other matters which the District Court may consider pertinent and proper." And in a ruling that aroused later controversy, the Court of Appeals expressly purported retain appellate jurisdiction while the case was heard on remand. Eisen III After it held the evidentiary hearing on remand, which gether with affidavits and stipulations provided the basis for extensive findings of fact, the District Court issued an opinion and order holding the suit maintainable as a class action. 52 F. R. D. 253 The court first noted that petitioner satisfied the criteria identified by the Court of Appeals for determining adequacy of representation under Rule 23 (a) (4). Then it turned the more difficult question of manageability. Under this general rubric the court dealt with problems of the computation *166 of damages, the mechanics of administering this suit as a class action, and the distribution of any eventual recovery. The last-named problem had most troubled the Court of Appeals, prompting its remark that if "class members are not likely ever share in an eventual judgment, we would probably not permit the class action continue." The District Court attempted resolve this difficulty by embracing the idea of a "fluid class" recovery whereby damages would be distributed future odd-lot traders rather than the specific class members who were actually injured. The court suggested that "a fund equivalent the amount of unclaimed damages might be established and the odd-lot differential reduced in an amount determined reasonable by the court until such time as the fund is depleted." 52 F. R. D., at 265. The need resort this expedient of recovery by the "next best class" arose from the prohibitively high cost of computing and awarding multitudinous small damages claims on an individual basis. Finally, the District Court ok up the problem of notice. The court found that the
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Justice Powell
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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up the problem of notice. The court found that the prospective class included some six million individuals, institutions, and intermediaries of various sorts; that with reasonable effort some two million of these odd-lot invesrs could be identified by name and address;[5] and that the names and addresses of an additional 250,000 persons who had participated in special investment programs involving *167 odd-lot trading[6] could also be identified with reasonable effort. Using the then current first-class postage rate of six cents, the court determined that stuffing and mailing each individual notice form would cost 10 cents. Thus individual notice all identifiable class members would cost $225,000,[7] and additional expense would be incurred for suitable publication notice designed reach the other four million class members. The District Court concluded, however, that neither Rule 23 (c) (2) nor the Due Process Clause required so substantial an expenditure at the outset of this litigation. Instead, it proposed a notification scheme consisting of four elements: (1) individual notice all member firms of the Exchange and commercial banks with large trust departments; (2) individual notice the approximately 2,000 identifiable class members with 10 or more odd-lot transactions during the relevant period; (3) individual notice an additional 5,000 class members selected at random; and (4) prominent publication notice in the Wall Street Journal and in other newspapers in New York and California. The court calculated that this package would cost approximately $21,720. The only issue not resolved by the District Court in its first opinion on remand from Eisen II was who should bear the cost of notice. Because petitioner understandably declined pay $21,720 in order litigate an action *168 involving an individual stake of only $70, this question presented something of a dilemma: "If the expense of notice is placed upon [petitioner], it would be the end of a possibly meririous suit, frustrating both the policy behind private antitrust actions and the admonition that the new Rule 23 is be given a liberal rather than a restrictive interpretation, Eisen II at 563. On the other hand, if costs were arbitrarily placed upon [respondents] at this point, the result might be the imposition of an unfair burden founded upon a groundless claim. In addition the probability of encouraging frivolous class actions, such a step might also result in [respondents'] passing on their cusmers, including many of the class members in this case, the expenses of defending these actions." 52 F. R. D., at 269. Analogizing the laws of preliminary injunctions, the court decided impose the notice cost on respondents if petitioner could show a strong likelihood of
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Justice Powell
| 1,974 | 17 |
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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on respondents if petitioner could show a strong likelihood of success on the merits, and it scheduled a preliminary hearing on the merits facilitate this determination. After this hearing the District Court issued an opinion and order ruling that petitioner was "more than likely" prevail at trial and that respondents should bear 90% of the cost of notice, or $19,548. 54 F. R. D. 565, 567 (1972). Relying on the purported retention of jurisdiction by the Court of Appeals after Eisen II, respondents on May 1, 1972, obtained an order directing the clerk of the District Court certify and transmit the record for appellate review. Subsequently, respondents also filed a notice of appeal under 28 U.S. C. 1291. Petitioner's motion dismiss on the ground that the appeal had not been taken from a final order was denied by the Court of Appeals on June 29, 1972. *169 On May 1, 1973, the Court of Appeals issued Eisen III. The majority disapproved the District Court's partial reliance on publication notice, holding that Rule 23 (c) (2) required individual notice all identifiable class members. The majority further ruled that the District Court had no authority conduct a preliminary hearing on the merits for the purpose of allocating costs and that the entire expense of notice necessarily fell on petitioner as representative plaintiff. Finally, the Court of Appeals rejected the expedient of a fluid-class recovery and concluded that the proposed class action was unmanageable under Rule 23 (b) (3) (D). For all of these reasons the Court of Appeals ordered the suit dismissed as a class action. One judge concurred in the result solely on the ground that the District Court had erred in imposing 90% of the notice costs on respondents. Petitioner's requests for rehearing and rehearing en banc were denied. Thus, after six and one-half years and three published decisions, the Court of Appeals endorsed the conclusion reached by the District Court in its original order in that petitioner's suit could not proceed as a class action. In its procedural hisry, at least, this litigation has lived up Judge Lumbard's characterization of it as a "Frankenstein monster posing as a class action." Eisen II, 391 F. 2d, at 572. II At the outset we must decide whether the Court of Appeals in Eisen III had jurisdiction review the District Court's orders permitting the suit proceed as a class action and allocating the cost of notice. Petitioner contends that it did not. Respondents counter by asserting two independent bases for appellate jurisdiction: first, that the orders in question constituted a "final" *170
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Justice Powell
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Eisen v. Carlisle & Jacquelin
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first, that the orders in question constituted a "final" *170 decision within the meaning of 28 U.S. C. 1291[8] and were therefore appealable as of right under that section; and, second, that the Court of Appeals in Eisen II expressly retained jurisdiction pending further development of a factual record on remand and that consequently no new jurisdictional basis was required for the decision in Eisen III. Because we agree with the first ground asserted by respondents, we have no occasion consider the second. Restricting appellate review "final decisions" prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy. While the application of 1291 in most cases is plain enough, determining the finality of a particular judicial order may pose a close question. No verbal formula yet devised can explain prior finality decisions with unerring accuracy or provide an utterly reliable guide for the future.[9] We know, of course, that 1291 does not *171 limit appellate review "those final judgments which terminate an action" but rather that the requirement of finality is be given a "practical rather than a technical construction." at The inquiry requires some evaluation of the competing considerations underlying all questions of finality"the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other." Dickinson v. Petroleum Conversion We find the instant case controlled by our decision in There the Court considered the applicability in a federal diversity action of a forum state statute making the plaintiff in a sckholder's derivative action liable for litigation expenses, if ultimately unsuccessful, and entitling the corporation demand security in advance for their payment. The trial court ruled the statute inapplicable, and the corporation sought immediate appellate review over the sckholder's objection that the order appealed from was not final. This Court held the order appealable on two grounds. First, the District Court's finding was not "tentative, informal or incomplete," 337 U.S., at but settled conclusively the corporation's claim that it was entitled by state law require the shareholder post security for costs. Second, the decision did not constitute merely a "step ward final disposition of the merits of the case" Rather, it concerned a collateral matter that could not be reviewed effectively on appeal from the final judgment. The Court summarized its conclusion in this way: "This decision appears fall in that small class which finally determine claims of right separable from, and collateral rights asserted in the action, *172 o important be denied review and o independent of
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Justice Powell
| 1,974 | 17 |
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Eisen v. Carlisle & Jacquelin
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https://www.courtlistener.com/opinion/109050/eisen-v-carlisle-jacquelin/
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*172 o important be denied review and o independent of the cause itself require that appellate consideration be deferred until the whole case is adjudicated." Analysis of the instant case reveals that the District Court's order imposing 90% of the notice costs on respondents likewise falls within "that small class." It conclusively rejected respondents' contention that they could not lawfully be required bear the expense of notice the members of petitioner's proposed class. Moreover, it involved a collateral matter unrelated the merits of petitioner's claims. Like the order in Cohen, the District Court's judgment on the allocation of notice costs was "a final disposition of a claimed right which is not an ingredient of the cause of action and does not require consideration with it," at -547, and it was similarly appealable as a "final decision" under 1291. In our view the Court of Appeals therefore had jurisdiction review fully the District Court's resolution of the class action notice problems in this case, for that court's allocation of 90% of the notice costs respondents was but one aspect of its effort construe the requirements of Rule 23 (c) (2) in a way that would permit petitioner's suit proceed as a class action.[10] III Turning the merits of the case, we find that the District Court's resolution of the notice problems was *173 erroneous in two respects. First, it failed comply with the notice requirements of Rule 23 (c) (2), and second, it imposed part of the cost of notice on respondents. A Rule 23 (c) (2) provides that, in any class action maintained under subdivision (b) (3), each class member shall be advised that he has the right exclude himself from the action on request or enter an appearance through counsel, and further that the judgment, whether favorable or not, will bind all class members not requesting exclusion. To this end, the court is required direct class members "the best notice practicable under the circumstances, including individual notice all members who can be identified through reasonable effort."[11] We think the import of this language is unmistakable. Individual notice must be sent all class members whose names and addresses may be ascertained through reasonable effort. The Advisory Committee's Note Rule 23 reinforces this conclusion. See 28 U.S. C. App., p. 7765. The Advisory Committee described subdivision (c) (2) as "not merely discretionary" and added that the "mandary notice pursuant subdivision (c) (2) is designed fulfill requirements of due process which the class action procedure is of course subject." The *174 Committee explicated its incorporation of due process standards by citation and
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Eisen v. Carlisle & Jacquelin
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explicated its incorporation of due process standards by citation and like cases. In Mullane the Court addressed the constitutional sufficiency of publication notice rather than mailed individual notice known beneficiaries of a common trust fund as part of a judicial settlement of accounts. The Court observed that notice and an opportunity be heard were fundamental requisites of the constitutional guarantee of procedural due process. It further stated that notice must be "reasonably calculated, under all the circumstances, apprise interested parties of the pendency of the action and afford them an opportunity present their objections." The Court continued: "But when notice is a person's due, process which is a mere gesture is not due process. The means employed must be such as one desirous of actually informing the absentee might reasonably adopt accomplish it. The reasonableness and hence the constitutional validity of any chosen method may be defended on the ground that it is in itself reasonably certain inform those affected." The Court then held that publication notice could not satisfy due process where the names and addresses of the beneficiaries were known.[12] In such cases, "the reasons *175 disappear for resort means less likely than the mails apprise them of [an action's] pendency." In decided prior the promulgation of amended Rule 23, the Court explained that Mullane required rejection of notice by publication where the name and address of the affected person were available. The Court stated that the "general rule" is that "notice by publication is not enough with respect a person whose name and address are known or very easily ascertainable" The Court also noted that notice by publication had long been recognized as a poor substitute for actual notice and that its justification was " `difficult at best.' " Viewed in this context, the express language and intent of Rule 23 (c) (2) leave no doubt that individual notice must be provided those class members who are identifiable through reasonable effort. In the present case, the names and addresses of 2,250,000 class members are easily ascertainable, and there is nothing show that individual notice cannot be mailed each. For these class members, individual notice is clearly the "best notice practicable" within the meaning of Rule 23 (c) (2) and our prior decisions. Petitioner contends, however, that we should dispense with the requirement of individual notice in this case, and he advances two reasons for our doing so. First, the prohibitively high cost of providing individual notice 2,250,000 class members would end this suit as a class action and effectively frustrate petitioner's attempt vindicate the policies underlying the
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and effectively frustrate petitioner's attempt vindicate the policies underlying the antitrust and securities *176 laws. Second, petitioner contends that individual notice is unnecessary in this case, because no prospective class member has a large enough stake in the matter justify separate litigation of his individual claim. Hence, class members lack any incentive opt out of the class action even if notified. The short answer these arguments is that individual notice identifiable class members is not a discretionary consideration be waived in a particular case. It is, rather, an unambiguous requirement of Rule 23. As the Advisory Committee's Note explained, the Rule was intended insure that the judgment, whether favorable or not, would bind all class members who did not request exclusion from the suit. 28 U.S. C. App., pp. 7765, 7768. Accordingly, each class member who can be identified through reasonable effort must be notified that he may request exclusion from the action and thereby preserve his opportunity press his claim separately or that he may remain in the class and perhaps participate in the management of the action. There is nothing in Rule 23 suggest that the notice requirements can be tailored fit the pocketbooks of particular plaintiffs.[13] Petitioner further contends that adequate representation, rather than notice, is the uchsne of due process in a class action and therefore satisfies Rule 23. We think this view has little commend it. To begin with, Rule 23 speaks notice as well as adequacy of representation and requires that both be provided. Moreover, petitioner's argument proves o much, for it *177 quickly leads the conclusion that no notice at all, published or otherwise, would be required in the present case. This cannot be so, for quite apart from what due process may require, the command of Rule 23 is clearly the contrary. We therefore conclude that Rule 23 (c) (2) requires that individual notice be sent all class members who can be identified with reasonable effort.[14] B We also agree with the Court of Appeals that petitioner must bear the cost of notice the members of his class. The District Court reached the contrary conclusion and imposed 90% of the notice cost on respondents. This decision was predicated on the court's finding, made after a preliminary hearing on the merits of the case, that petitioner was "more than likely" prevail on his claims. Apparently, that court interpreted Rule 23 authorize such a hearing as part of the determination whether a suit may be maintained as a class action. We disagree. We find nothing in either the language or hisry of Rule 23
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nothing in either the language or hisry of Rule 23 that gives a court any authority conduct a preliminary inquiry in the merits of a suit in order determine whether it may be maintained as a class action. Indeed, such a procedure contravenes the Rule by allowing a representative plaintiff secure the benefits of a class action without first satisfying the requirements for it. He is thereby allowed obtain a determination on the merits of the claims advanced on *178 behalf of the class without any assurance that a class action may be maintained. This procedure is directly contrary the command of subdivision (c) (1) that the court determine whether a suit denominated a class action may be maintained as such "[a]s soon as practicable after the commencement of [the] action" In short, we agree with Judge Wisdom's conclusion in where the court rejected a preliminary inquiry in the merits of a proposed class action: "In determining the propriety of a class action, the question is not whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 are met." Additionally, we might note that a preliminary determination of the merits may result in substantial prejudice a defendant, since of necessity it is not accompanied by the traditional rules and procedures applicable civil trials. The court's tentative findings, made in the absence of established safeguards, may color the subsequent proceedings and place an unfair burden on the defendant. In the absence of any support under Rule 23, petitioner's effort impose the cost of notice on respondents must fail. The usual rule is that a plaintiff must initially bear the cost of notice the class. The exceptions cited by the District Court related situations where a fiduciary duty pre-existed between the plaintiff and defendant, as in a shareholder derivative suit.[15] Where, as here, the relationship between the parties is truly adversary, *179 the plaintiff must pay for the cost of notice as part of the ordinary burden of financing his own suit. Petitioner has consistently maintained, however, that he will not bear the cost of notice under subdivision (c) (2) members of the class as defined in his original complaint. See ; 52 F. R. D., at 269. We therefore remand the cause with instructions dismiss the class action as so defined.[16] The judgment of the Court of Appeals is vacated and the cause remanded for proceedings consistent with this opinion. It is so ordered. MR. JUSTICE DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL
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DOUGLAS, with whom MR. JUSTICE BRENNAN and MR. JUSTICE MARSHALL concur, dissenting in part. While I am in general agreement with the phases of this case uched on by the Court, I add a few words because its opinion does not fully explore the issues which will be dispositive of this case on remand the District Court. Federal Rule Civ. Proc. 23 (c) (4) provides: "When appropriate (A) an action may be brought or maintained as a class action with respect particular issues, or (B) a class may be divided in subclasses and each subclass treated as a class, and the provisions of this rule shall then be construed and applied accordingly." *180 As Judge Oakes, speaking for himself and Judge Timbers, said below: "The plaintiff class might, for example, be divided in much smaller subclasses of odd lot buyers for particular periods, and one subclass treated as a test case, with the other subclasses held in abeyance. Individual notice at what would probably be a reasonable cost could then be given all members of the particular small subclass who can be easily identified." (dissenting from denial of rehearing en banc). Or a subclass might include those on monthly investment plans, or payroll deduction plans run by brokerage houses.[1] The possibilities, though not infinite, are numerous. *181 The power create a subclass is clear and unambiguous. Who should be included and how large it should be are questions that only the District Court should resolve. Notice each member of the subclass would be essential under Rule 23 (c) (2); and under Rule 23 (c) (2) (A) any notified member may opt out. There would remain the question whether the subclass suit is manageable. But since the subclass could be chosen in light of the non-manageability of the size of the class whose claims are presently before us, there is no apparent difficulty in that sense. The statute of limitations, it is argued, has run or is about run on many of these classes. We held in American Pipe & Construction that the start of a class action prior the running of the statute protects all members of the class. Whether that rule should obtain for the benefit of other members who could have been included in the subclass bringing suit, but for the manageability issue, is a question we have not decided.[2] Moreover, if the subclass sues and wins or *182 sues and loses, questions covering the rights of members of the larger class who are not parties would be raised. These are questions we have not answered.[3] But the
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raised. These are questions we have not answered.[3] But the fact that unresolved questions of law would remain is not an insurmountable obstacle, and Rule 23 (c) (4) (B) expressly authorizes subclasses sue in lieu of a full class. Rule 23 (c) (4) (B) may have had, as a forerunner, the proposal stated by Judge Weinstein in 1960: "When there is a question of law or fact common persons of a numerous class whose joinder is impracticable, one or more of them whose claims or defenses are representative of the claims or defenses of all and who will fairly and adequately protect the interests of all may sue or be sued on behalf of all."[4] In explanation he added: "Such a rule would provide six requirements for a class action: (1) a class, (2) numerous members, *183 (3) common question of law or fact, (4) impracticability of joinder, (5) representative claim or defense, (6) fair and adequate protection of absentees. "Almost any `bond of association' in an event or status out of which a legal dispute arose is sufficient constitute a class. The class must be numerous but need not be so large that, in itself, this facr makes it impracticable bring them all before the court. A number of members sufficient satisfy present Section 195 [of the New York Civil Practice Act] would satisfy the proposed rule. Size, modesty of monetary interest, inability locate members and difficulty of obtaining jurisdiction should all be considered in determining impracticability of joinder."[5] The Court permits Eisen redefine his class either by amending his complaint pursuant Fed. Rule Civ. Proc. 15, or by proceeding under Rule 23 (c) (4). While Eisen may of course proceed by amending his complaint define a subclass, it is clear that he need not do so.[6] Definition of the subclass would properly be accomplished by order of the District Court, as permitted by Rules 23 (c) (4) and 23 (c) (1), without amendment of the complaint as filed. While the complaint alleges that *184 Eisen sues on his behalf and on behalf of all purchasers and sellers of odd lots, it adds, "Plaintiff will fairly insure the adequate representation of all such persons." Problems of manageability covered by Rule 23 (b) (3) (D) arise only after issues are joined and the District Court is engaged in shaping up the litigation for a trial on the merits. If it finds that a subclass would be more appropriate, no new action need be started nor any amended complaint filed. Rule 23 (c) (1) provides: "As soon as practicable after the
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23 (c) (1) provides: "As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is be so maintained. An order under this subdivision may be conditional, and may be altered or amended before the decision on the merits." It is as plain as words can make it that the court which decides that a full class action can be maintained can alter or amend its order "before the decision on the merits." One permissible way in which the court's order may be changed is have it "altered" as provided in Rule 23 (c) (1) by reducing the larger class a subclass as provided in the same subsectionRule 23 (c) (4) (B). The prerequisites of a class cause of action are described in Rule 23 (a). In the instant case that hurdle has been passed and we are at the stage of notice requirements and manageability. Not an iota of change is made in the cause of action by restricting it a subclass. The purpose of Rule 23 is provide flexibility in the management of class actions, with the trial court taking an active role in the conduct of the litigation. See Dolgow v. 43 F. R. D. 472, 481-482 (EDNY); Green v. Wolf (CA2), cert. denied, Lower federal courts have recognized their discretion define those subclasses proper prosecute an action without being bound by the plaintiff's *185 complaint. See, e. g., Dolgow v. ; Philadelphia Elec. Co. v. Anaconda American Brass Co., 43 F. R. D. 452, 462-463 (ED Pa.). See generally 7A C. Wright & A. Miller, Federal Practice and Procedure 1790, p. 187; 3B J. Moore, Federal Practice ¶ 23.65. And, as Rule 23 (c) (1) clearly indicates, the courts retain both the power and the duty realign classes during the conduct of an action when appropriate. See, e. g., (CA5), cert. denied, ; 323 F. Supp. 12, (ND Miss.); Ostapowicz v. Johnson Bronze Co., 54 F. R. D. 465, 466 (WD Pa.); Baxter v. Savannah Sugar Refining 46 F. R. D. 56, 60 (SD Ga.). That discretion can be fully retained only if the full-class complaint is preserved when a subclass is defined prosecute the action. The bounds of the subclass can then be narrowed or widened by order of the District Court as provided in Rule 23 (c) (1), without need amend the complaint and without the constraints which might exist if the complaint had earlier been amended pursuant Rule 15 include only the subclass. I agree with Professor Chafee that a class
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the subclass. I agree with Professor Chafee that a class action serves not only the convenience of the parties but also prompt, efficient judicial administration.[7] I think in our society that is growing in complexity there are bound be innumerable people in common disasters, calamities, or ventures who would go begging for justice without the class action but who could with all regard due process be protected by it. Some of these are consumers whose claims may seem de minimis but who alone have no practical recourse for either remuneration or injunctive relief. Some may be environmentalists who have no phographic development plant about be ruined because of *186 air pollution by radiation but who suffer perceptibly by smoke, noxious gases, or radiation. Or the unnamed individual may be only a ratepayer being excessively charged by a utility, or a homeowner whose assessment is slowly rising beyond his ability pay. The class action is one of the few legal remedies the small claimant has against those who command the status quo.[8] I would strengthen his hand with the view of creating a system of law that dispenses justice the lowly as well as those liberally endowed with power and wealth.
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Lawrence v. Texas
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Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and in its more transcendent dimensions. I The question before the Court is the validity of a Texas statute making it a crime for two persons of the same sex to engage in certain intimate sexual conduct. In Houston, Texas, officers of the Harris County Police Department were dispatched to a private residence in response to a reported weapons disturbance. They entered an apartment where one of the petitioners, John Geddes Lawrence, *563 resided. The right of the police to enter does not seem to have been questioned. The officers observed Lawrence and another man, Tyron Garner, engaging in a sexual act. The two petitioners were arrested, held in custody overnight, and charged and convicted before a Justice of the Peace. The complaints described their crime as "deviate sexual intercourse, namely anal sex, with a member of the same sex (man)." App. to Pet. for Cert. 127a, 139a. The applicable state law is (a) It provides: "A person commits an offense if he engages in deviate sexual intercourse with another individual of the same sex." The statute defines "[d]eviate sexual intercourse" as follows: "(A) any contact between any part of the genitals of one person and the mouth or anus of another person; or "(B) the penetration of the genitals or the anus of another person with an object." 21.01(1). The petitioners exercised their right to a trial de novo in Harris County Criminal Court. They challenged the statute as a violation of the Equal Protection Clause of the Fourteenth Amendment and of a like provision of the Texas Constitution. Tex. Const., Art. 1, 3a. Those contentions were rejected. The petitioners, having entered a plea of nolo contendere, were each fined $200 and assessed court costs of $141.25. App. to Pet. for Cert. 107a-110a. The Court of Appeals for the Texas Fourteenth District considered the petitioners' federal constitutional arguments under both the Equal Protection and Due Process Clauses of the Fourteenth Amendment. After hearing the case en banc the court, in a divided opinion, rejected the constitutional arguments and affirmed the convictions. The majority opinion indicates that the
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and affirmed the convictions. The majority opinion indicates that the Court of Appeals considered our decision in to be controlling on the federal due process aspect of the case. Bowers then being authoritative, this was proper. *564 We granted certiorari, to consider three questions: 1. Whether petitioners' criminal convictions under the Texas "Homosexual Conduct" lawwhich criminalizes sexual intimacy by same-sex couples, but not identical behavior by different-sex couplesviolate the Fourteenth Amendment guarantee of equal protection of the 2. Whether petitioners' criminal convictions for adult consensual sexual intimacy in the home violate their vital interests in liberty and privacy protected by the Due Process Clause of the Fourteenth Amendment. 3. Whether should be overruled? See Pet. for Cert. i. The petitioners were adults at the time of the alleged offense. Their conduct was in private and consensual. II We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution. For this inquiry we deem it necessary to reconsider the Court's holding in Bowers. There are broad statements of the substantive reach of liberty under the Due Process Clause in earlier cases, including and ; but the most pertinent beginning point is our decision in In Griswold the Court invalidated a state law prohibiting the use of drugs or devices of contraception and counseling or aiding and abetting the use of contraceptives. The Court described the protected interest as a right to privacy and *565 placed emphasis on the marriage relation and the protected space of the marital bedroom. After Griswold it was established that the right to make certain decisions regarding sexual conduct extends beyond the marital relationship. In the Court invalidated a law prohibiting the distribution of contraceptives to unmarried persons. The case was decided under the Equal Protection Clause, ; but with respect to unmarried persons, the Court went on to state the fundamental proposition that the law impaired the exercise of their personal rights, It quoted from the statement of the Court of Appeals finding the law to be in conflict with fundamental human rights, and it followed with this statement of its own: "It is true that in Griswold the right of privacy in question inhered in the marital relationship. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or
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affecting a person as the decision whether to bear or beget a child." The opinions in Griswold and Eisenstadt were part of the background for the decision in As is well known, the case involved a challenge to the Texas law prohibiting abortions, but the laws of other States were affected as well. Although the Court held the woman's rights were not absolute, her right to elect an abortion did have real and substantial protection as an exercise of her liberty under the Due Process Clause. The Court cited cases that protect spatial freedom and cases that go well beyond it. Roe recognized the right of a woman to make certain fundamental decisions affecting her destiny and confirmed once more that the protection of liberty under the Due Process Clause has a substantive dimension of fundamental significance in defining the rights of the person. *566 In the Court confronted a New York law forbidding sale or distribution of contraceptive devices to persons under 16 years of age. Although there was no single opinion for the Court, the law was invalidated. Both Eisenstadt and Carey, as well as the holding and rationale in Roe, confirmed that the reasoning of Griswold could not be confined to the protection of rights of married adults. This was the state of the law with respect to some of the most relevant cases when the Court considered The facts in Bowers had some similarities to the instant case. A police officer, whose right to enter seems not to have been in question, observed in his own bedroom, engaging in intimate sexual conduct with another adult male. The conduct was in violation of a Georgia statute making it a criminal offense to engage in sodomy. One difference between the two cases is that the Georgia statute prohibited the conduct whether or not the participants were of the same sex, while the Texas statute, as we have seen, applies only to participants of the same sex. was not prosecuted, but he brought an action in federal court to declare the state statute invalid. He alleged he was a practicing homosexual and that the criminal prohibition violated rights guaranteed to him by the Constitution. The Court, in an opinion by Justice White, sustained the Georgia law. Chief Justice Burger and Justice Powell joined the opinion of the Court and filed separate, concurring opinions. Four Justices dissented. ; The Court began its substantive discussion in Bowers as follows: "The issue presented is whether the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy and hence invalidates the
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upon homosexuals to engage in sodomy and hence invalidates the laws of the many States that still make such conduct illegal and have done so *567 for a very long time." That statement, we now conclude, discloses the Court's own failure to appreciate the extent of the liberty at stake. To say that the issue in Bowers was simply the right to engage in certain sexual conduct demeans the claim the individual put forward, just as it would demean a married couple were it to be said marriage is simply about the right to have sexual inter The laws involved in Bowers and here are, to be sure, statutes that purport to do no more than prohibit a particular sexual act. Their penalties and purposes, though, have more far-reaching consequences, touching upon the most private human conduct, sexual behavior, and in the most private of places, the home. The statutes do seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals. This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice. Having misapprehended the claim of liberty there presented to it, and thus stating the claim to be whether there is a fundamental right to engage in consensual sodomy, the Bowers Court said: "Proscriptions against that conduct have ancient roots." In academic writings, and in many of the scholarly amicus briefs filed to assist the Court in this case, there are fundamental criticisms of the historical premises relied upon by the majority and concurring opinions *568 in Bowers. Brief for Cato Institute as Amicus Curiae 16-17; Brief for American Civil Liberties Union et al. as Amici Curiae 15-21; Brief for Professors of History et al. as Amici Curiae 3-10. We need not enter this debate in the attempt to reach a definitive historical judgment, but the following considerations counsel against adopting the definitive conclusions upon
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the following considerations counsel against adopting the definitive conclusions upon which Bowers placed such reliance. At the outset it should be noted that there is no longstanding history in this country of laws directed at homosexual conduct as a distinct matter. Beginning in colonial times there were prohibitions of sodomy derived from the English criminal laws passed in the first instance by the Reformation Parliament of 1533. The English prohibition was understood to include relations between men and women as well as relations between men and men. See, e. g., King v. Wiseman, 92 Eng. Rep. 774, 775 (K. B. 1718) (interpreting "mankind" in Act of 1533 as including women and girls). Nineteenth-century commentators similarly read American sodomy, buggery, and crime-against-nature statutes as criminalizing certain relations between men and women and between men and men. See, e. g., 2 J. Bishop, Criminal Law 1028 (1858); 2 J. Criminal Law 47-50 (5th Am. ed. 1847); R. Desty, A Compendium of American Criminal Law 143 (1882); J. May, The Law of Crimes 203 (2d ed. 1893). The absence of legal prohibitions focusing on homosexual conduct may be explained in part by noting that according to some scholars the concept of the homosexual as a distinct category of person did not emerge until the late 19th century. See, e. g., J. Katz, The Invention of Heterosexuality 10 (1995); J. D'Emilio & E. Freedman, Intimate Matters: A History of Sexuality in America 121 ("The modern terms homosexuality and heterosexuality do not apply to an era that had not yet articulated these distinctions"). Thus early American sodomy laws were not directed at homosexuals as such but instead sought to prohibit nonprocreative sexual activity more generally. This does not suggest approval of *569 homosexual conduct. It does tend to show that this particular form of conduct was not thought of as a separate category from like conduct between heterosexual persons. Laws prohibiting sodomy do not seem to have been enforced against consenting adults acting in private. A substantial number of sodomy prosecutions and convictions for which there are surviving records were for predatory acts against those who could not or did not consent, as in the case of a minor or the victim of an assault. As to these, one purpose for the prohibitions was to ensure there would be no lack of coverage if a predator committed a sexual assault that did not constitute rape as defined by the criminal law. Thus the model sodomy indictments presented in a 19th-century treatise, see 2 addressed the predatory acts of an adult man against a minor girl
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predatory acts of an adult man against a minor girl or minor boy. Instead of targeting relations between consenting adults in private, 19th-century sodomy prosecutions typically involved relations between men and minor girls or minor boys, relations between adults involving force, relations between adults implicating disparity in status, or relations between men and animals. To the extent that there were any prosecutions for the acts in question, 19th-century evidence rules imposed a burden that would make a conviction more difficult to obtain even taking into account the problems always inherent in prosecuting consensual acts committed in private. Under then-prevailing standards, a man could not be convicted of sodomy based upon testimony of a consenting partner, because the partner was considered an accomplice. A partner's testimony, however, was admissible if he or she had not consented to the act or was a minor, and therefore incapable of consent. See, e. g., F. Wharton, Criminal Law 443 (2d ed. 1852); 1 F. Wharton, Criminal Law 512 (8th ed. 1880). The rule may explain in part the infrequency of these prosecutions. In all events that infrequency makes it difficult to say that society approved of a rigorous and systematic *570 punishment of the consensual acts committed in private and by adults. The longstanding criminal prohibition of homosexual sodomy upon which the Bowers decision placed such reliance is as consistent with a general condemnation of nonprocreative sex as it is with an established tradition of prosecuting acts because of their homosexual character. The policy of punishing consenting adults for private acts was not much discussed in the early legal literature. We can infer that one reason for this was the very private nature of the conduct. Despite the absence of prosecutions, there may have been periods in which there was public criticism of homosexuals as such and an insistence that the criminal laws be enforced to discourage their practices. But far from possessing "ancient roots," Bowers, 478 U. S., American laws targeting same-sex couples did not develop until the last third of the 20th century. The reported decisions concerning the prosecution of consensual, homosexual sodomy between adults for the years 1880-1995 are not always clear in the details, but a significant number involved conduct in a public place. See Brief for American Civil Liberties Union et al. as Amici Curiae 14-15, and n. 18. It was not until the 1970's that any State singled out same-sex relations for criminal prosecution, and only nine States have done so. See 1977 Ark. Gen. Acts no. ; 1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p.
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1983 Kan. Sess. Laws p. 652; 1974 Ky. Acts p. 847; 1977 Mo. Laws p. 687; 1973 Mont. Laws p. 1339; 1977 Nev. Stats. p. 1632; 1989 Tenn. Pub. Acts ch. 591; 1973 Tex. Gen. Laws ch. 399; see also Post-Bowers even some of these States did not adhere to the policy of suppressing homosexual conduct. Over the course of the last decades, States with same-sex prohibitions have moved toward abolishing them. See, e. g., ; ; ; ; see also 1993 Nev. Stats. p. 518 (repealing Nev. Rev. Stat. 201.193). In summary, the historical grounds relied upon in Bowers are more complex than the majority opinion and the concurring opinion by Chief Justice Burger indicate. Their historical premises are not without doubt and, at the very least, are overstated. It must be acknowledged, of course, that the Court in Bowers was making the broader point that for centuries there have been powerful voices to condemn homosexual conduct as immoral. The condemnation has been shaped by religious beliefs, conceptions of right and acceptable behavior, and respect for the traditional family. For many persons these are not trivial concerns but profound and deep convictions accepted as ethical and moral principles to which they aspire and which thus determine the course of their lives. These considerations do not answer the question before us, however. The issue is whether the majority may use the power of the State to enforce these views on the whole society through operation of the criminal law. "Our obligation is to define the liberty of all, not to mandate our own moral code." Planned Parenthood of Southeastern Chief Justice Burger joined the opinion for the Court in Bowers and further explained his views as follows: "Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilization. Condemnation of those practices is firmly rooted in Judeao-Christian moral and ethical standards." As with Justice White's assumptions about history, scholarship casts some doubt on the sweeping nature of the statement by Chief Justice Burger as it pertains to private homosexual conduct between consenting adults. See, e. g., Eskridge, and Historiography, In all events we think that our laws and traditions in the past half century are of *572 most relevance here. These references show an emerging awareness that liberty gives substantial protection to adult persons in deciding how to conduct their private lives in matters pertaining to sex. "[H]istory and tradition are the starting point but not in all cases the ending point of the substantive due process inquiry." County of This emerging
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https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
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of the substantive due process inquiry." County of This emerging recognition should have been apparent when Bowers was decided. In 1955 the American Law Institute promulgated the Model Penal Code and made clear that it did not recommend or provide for "criminal penalties for consensual sexual relations conducted in private." ALI, Model Penal Code 213.2, Comment 2, p. 372 (1980). It justified its decision on three grounds: (1) The prohibitions undermined respect for the law by penalizing conduct many people engaged in; (2) the statutes regulated private conduct not harmful to others; and (3) the laws were arbitrarily enforced and thus invited the danger of blackmail. ALI, Model Penal Code, Commentary 277-280 (Tent. Draft No. 4, 1955). In 1961 Illinois changed its laws to conform to the Model Penal Code. Other States soon followed. Brief for Cato Institute as Amicus Curiae 15-16. In Bowers the Court referred to the fact that before 1961 all 50 States had outlawed sodomy, and that at the time of the Court's decision States and the District of Columbia had sodomy 478 U.S., -193. Justice Powell pointed out that these prohibitions often were being ignored, however. Georgia, for instance, had not sought to enforce its law for decades. The sweeping references by Chief Justice Burger to the history of Western civilization and to Judeo-Christian moral and ethical standards did not take account of other authorities pointing in an opposite direction. A committee advising the British Parliament recommended in 1957 repeal of laws *573 punishing homosexual conduct. The Wolfenden Report: Report of the Committee on Homosexual Offenses and Prostitution (1963). Parliament enacted the substance of those recommendations 10 years later. Sexual Offences Act 1967, 1. Of even more importance, almost five years before Bowers was decided the European Court of Human Rights considered a case with parallels to Bowers and to today's case. An adult male resident in Northern Ireland alleged he was a practicing homosexual who desired to engage in consensual homosexual conduct. The laws of Northern Ireland forbade him that right. He alleged that he had been questioned, his home had been searched, and he feared criminal prosecution. The court held that the laws proscribing the conduct were invalid under the European Convention on Human Rights. Dudgeon v. United Kingdom, 45 Eur. Ct. H. R. (1981) ¶ 52. Authoritative in all countries that are members of the Council of Europe (21 nations then, 45 nations now), the decision is at odds with the premise in Bowers that the claim put forward was insubstantial in our Western civilization. In our own constitutional system the deficiencies
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Justice Kennedy
| 2,003 | 4 |
majority
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Lawrence v. Texas
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https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
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our Western civilization. In our own constitutional system the deficiencies in Bowers became even more apparent in the years following its announcement. The 25 States with laws prohibiting the relevant conduct referenced in the Bowers decision are reduced now to 13, of which 4 enforce their laws only against homosexual conduct. In those States where sodomy is still proscribed, whether for same-sex or heterosexual conduct, there is a pattern of nonenforcement with respect to consenting adults acting in private. The State of Texas admitted in 1994 that as of that date it had not prosecuted anyone under those circumstances. Two principal cases decided after Bowers cast its holding into even more doubt. In Planned Parenthood of Southeastern the Court reaffirmed the substantive force of the liberty protected by the Due Process Clause. The decision again confirmed *574 that our laws and tradition afford constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. In explaining the respect the Constitution demands for the autonomy of the person in making these choices, we stated as follows: "These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State." Persons in a homosexual relationship may seek autonomy for these purposes, just as heterosexual persons do. The decision in Bowers would deny them this right. The second post-Bowers case of principal relevance is There the Court struck down class-based legislation directed at homosexuals as a violation of the Equal Protection Clause. Romer invalidated an amendment to Colorado's Constitution which named as a solitary class persons who were homosexuals, lesbians, or bisexual either by "orientation, conduct, practices or relationships," and deprived them of protection under state antidiscrimination We concluded that the provision was "born of animosity toward the class of persons affected" and further that it had no rational relation to a legitimate governmental purpose. As an alternative argument in this case, counsel for the petitioners and some amici contend that Romer provides the basis for declaring the Texas statute invalid under the Equal Protection Clause. That is a tenable argument, but we conclude *575 the instant case requires us to address whether Bowers itself has continuing validity. Were we to hold
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Justice Kennedy
| 2,003 | 4 |
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Lawrence v. Texas
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https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
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whether Bowers itself has continuing validity. Were we to hold the statute invalid under the Equal Protection Clause some might question whether a prohibition would be valid if drawn differently, say, to prohibit the conduct both between same-sex and different-sex participants. Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons. The stigma this criminal statute imposes, moreover, is not trivial. The offense, to be sure, is but a class C misdemeanor, a minor offense in the Texas legal system. Still, it remains a criminal offense with all that imports for the dignity of the persons charged. The petitioners will bear on their record the history of their criminal convictions. Just this Term we rejected various challenges to state laws requiring the registration of sex offenders. ; Connecticut Dept. of Public We are advised that if Texas convicted an adult for private, consensual homosexual conduct under the statute here in question the convicted person would come within the registration laws of at least four States were he or she to be subject to their jurisdiction. Pet. for Cert. 13, and n. 12 ; La. Code Crim. Proc. Ann. 15:540-15:549 *576 ; Miss. Code Ann. 45-33-21 to 45-33-57 ; S. C. Code Ann. 23-3-400 to 23-3-490 ). This underscores the consequential nature of the punishment and the state-sponsored condemnation attendant to the criminal prohibition. Furthermore, the Texas criminal conviction carries with it the other collateral consequences always following a conviction, such as notations on job application forms, to mention but one example. The foundations of Bowers have sustained serious erosion from our recent decisions in and Romer. When our precedent has been thus weakened, criticism from other sources is of greater significance. In the United States criticism of Bowers has been substantial and continuing, disapproving of its reasoning in all respects, not just as to its historical assumptions.
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Justice Kennedy
| 2,003 | 4 |
majority
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Lawrence v. Texas
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https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
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in all respects, not just as to its historical assumptions. See, e. g., C. Fried, Order and Law: Arguing the Reagan RevolutionA Firsthand Account 81-84 ; R. Posner, Sex and Reason 341-350 The courts of five different States have declined to follow it in interpreting provisions in their own state constitutions parallel to the Due Process Clause of the Fourteenth Amendment, see ; ; ; ; To the extent Bowers relied on values we share with a wider civilization, it should be noted that the reasoning and holding in Bowers have been rejected elsewhere. The European Court of Human Rights has followed not Bowers but its own decision in Dudgeon v. United Kingdom. See P. G. & J. H. v. United Kingdom, App. No. 00044787/98, ¶ 56 ; Modinos v. Cyprus, 259 Eur. Ct. H. R. (1993); Norris v. Ireland, 142 Eur. Ct. H. R. (1988). Other nations, too, have taken action consistent with an affirmation of the protected right of homosexual adults to engage in intimate, consensual conduct. See Brief for Mary *577 Robinson et al. as Amici Curiae 11-12. The right the petitioners seek in this case has been accepted as an integral part of human freedom in many other countries. There has been no showing that in this country the governmental interest in circumscribing personal choice is somehow more legitimate or urgent. The doctrine of stare decisis is essential to the respect accorded to the judgments of the Court and to the stability of the law. It is not, however, an inexorable command. In we noted that when a court is asked to overrule a precedent recognizing a constitutional liberty interest, individual or societal reliance on the existence of that liberty cautions with particular strength against reversing -856; see also The holding in Bowers, however, has not induced detrimental reliance comparable to some instances where recognized individual rights are involved. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Bowers itself causes uncertainty, for the precedents before and after its issuance contradict its central holding. The rationale of Bowers does not withstand careful analysis. In his dissenting opinion in Bowers Justice Stevens came to these conclusions: "Our prior cases make two propositions abundantly clear. First, the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice; neither history nor tradition could save a law prohibiting miscegenation from constitutional *578
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Justice Kennedy
| 2,003 | 4 |
majority
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Lawrence v. Texas
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https://www.courtlistener.com/opinion/130160/lawrence-v-texas/
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tradition could save a law prohibiting miscegenation from constitutional *578 attack. Second, individual decisions by married persons, concerning the intimacies of their physical relationship, even when not intended to produce offspring, are a form of `liberty' protected by the Due Process Clause of the Fourteenth Amendment. Moreover, this protection extends to intimate choices by unmarried as well as married persons." JUSTICE STEVENS' analysis, in our view, should have been controlling in Bowers and should control here. Bowers was not correct when it was decided, and it is not correct today. It ought not to remain binding precedent. should be and now is overruled. The present case does not involve minors. It does not involve persons who might be injured or coerced or who are situated in relationships where consent might not easily be refused. It does not involve public conduct or prostitution. It does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter. The case does involve two adults who, with full and mutual consent from each other, engaged in sexual practices common to a homosexual lifestyle. The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. "It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter." The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual. Had those who drew and ratified the Due Process Clauses of the Fifth Amendment or the Fourteenth Amendment known the components of liberty in its manifold possibilities, they might have been more specific. They did not presume *579 to have this insight. They knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom. The judgment of the Court of Appeals for the Texas Fourteenth District is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. JUSTICE O'CONNOR, concurring in the judgment.
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Justice Stevens
| 2,002 | 16 |
majority
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EEOC v. Waffle House, Inc.
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https://www.courtlistener.com/opinion/118475/eeoc-v-waffle-house-inc/
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The question presented is whether an agreement between an employer and an employee to arbitrate employmentrelated disputes bars the Equal Employment Opportunity Commission (EEOC) from pursuing victim-specific judicial relief, such as backpay, reinstatement, and damages, in an enforcement action alleging that the employer has violated Title I of the Americans with Disabilities Act of (ADA), 42 U.S. C. 12101 et seq. (1994 ed. and Supp. V). I In his application for employment with respondent, Eric Baker agreed that "any dispute or claim" concerning his employment would be "settled by binding arbitration."[1] As a *283 condition of employment, all prospective Waffle House employees are required to sign an application containing a similar mandatory arbitration agreement. See App. 56. Baker began working as a grill operator at one of respondent's restaurants on August 10, 1994. Sixteen days later he suffered a seizure at work and soon thereafter was discharged. Baker did not initiate arbitration proceedings, nor has he in the seven years since his termination, but he did file a timely charge of discrimination with the EEOC alleging that his discharge violated the ADA. After an investigation and an unsuccessful attempt to conciliate, the EEOC filed an enforcement action against respondent in the Federal District Court for the District of South Carolina,[2] pursuant to 107(a) of the ADA, 42 U.S. C. 12117(a) (1994 ed.), and 102 of the Civil Rights Act of 1991, as added, 42 U.S. C. 1981a (1994 ed.). Baker is not a party to the case. The EEOC's complaint alleged that respondent engaged in employment practices that violated the ADA, including its discharge of Baker "because of his disability," and that its violation was intentional, and "done with malice or with reckless indifference to [his] federally protected rights." The complaint requested the court to grant injunctive relief to "eradicate the effects of [respondent's] past and present unlawful employment practices," *284 to order specific relief designed to make Baker whole, including backpay, reinstatement, and compensatory damages, and to award punitive damages for malicious and reckless conduct. App. 38-40. Respondent filed a petition under the Federal Arbitration Act (FAA), 9 U.S. C. 1 et seq., to stay the EEOC's suit and compel arbitration, or to dismiss the action. Based on a factual determination that Baker's actual employment contract had not included the arbitration provision, the District Court denied the motion. The Court of Appeals granted an interlocutory appeal and held that a valid, enforceable arbitration agreement between Baker and respondent did exist. The court then proceeded to consider "what effect, if any, the binding arbitration agreement between Baker and Waffle House
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Justice Stevens
| 2,002 | 16 |
majority
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EEOC v. Waffle House, Inc.
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https://www.courtlistener.com/opinion/118475/eeoc-v-waffle-house-inc/
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any, the binding arbitration agreement between Baker and Waffle House has on the EEOC, which filed this action in its own name both in the public interest and on behalf of Baker." After reviewing the relevant statutes and the language of the contract, the court concluded that the agreement did not foreclose the enforcement action because the EEOC was not a party to the contract, and it has independent statutory authority to bring suit in any federal district court where venue is proper. -812. Nevertheless, the court held that the EEOC was precluded from seeking victim-specific relief in court because the policy goals expressed in the FAA required giving some effect to Baker's arbitration agreement. The majority explained: "When the EEOC seeks `make-whole' relief for a charging party, the federal policy favoring enforcement of private arbitration agreements outweighs the EEOC's right to proceed in federal court because in that circumstance, the EEOC's public interest is minimal, as the EEOC seeks primarily to vindicate private, rather than public, interests. On the other hand, when the EEOC is pursuing large-scale injunctive relief, the balance tips in favor of EEOC enforcement efforts in federal court *285 because the public interest dominates the EEOC's action."[3] Therefore, according to the Court of Appeals, when an employee has signed a mandatory arbitration agreement, the EEOC's remedies in an enforcement action are limited to injunctive relief. Several Courts of Appeals have considered this issue and reached conflicting conclusions. Compare with ; Merrill Lynch, Pierce, Fenner & Smith, (CA8), cert. denied, We granted the EEOC's petition for certiorari to resolve this conflict, and now reverse. II Congress has directed the EEOC to exercise the same enforcement powers, remedies, and procedures that are set forth in Title VII of the Civil Rights Act of 1964 when it is enforcing the ADA's prohibitions against employment discrimination on the basis of disability. 42 U.S. C. 12117(a) (1994 ed.).[4] Accordingly, the provisions of Title VII defining *286 the EEOC's authority provide the starting point for our analysis. When Title VII was enacted in 1964, it authorized private actions by individual employees and public actions by the Attorney General in cases involving a "pattern or practice" of discrimination. 42 U.S. C. 2000e6(a) (1994 ed.). The EEOC, however, merely had the authority to investigate and, if possible, to conciliate charges of discrimination. See General Co. of In 1972, Congress amended Title VII to authorize the EEOC to bring its own enforcement actions; indeed, we have observed that the 1972 amendments created a system in which the EEOC was intended "to bear the primary burden
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