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Justice Sotomayor
| 2,011 | 24 |
dissenting
|
Bruesewitz v. Wyeth LLC
|
https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/
|
drugs and manufacturers as it finds them. While its goal is to oversee inoculation with the best possible vaccine, it is limited to reviewing only those drugs submitted by various manufac turers, regardless of their flaws”). Although the FDA has authority under existing regulations to revoke a manufacturer’s biologics licenses, that authority can be exercised only where (as relevant here) “[t]he licensed product is not safe and effective for all of its intended uses.” 21 CFR (2010); see (defining “safety” as “relative freedom from harmful effect to persons affected, directly or indirectly, by a product when prudently administered, taking into consideration the character of the product in relation to the condition of the recipient at the time”). The regulation does not authorize the FDA to revoke a biologics license for a manufacturer’s failure to adopt an optimal vaccine design in light of existing science and technology. See Conk, Is There a Design Defect in the Restatement (Third) of Torts: Products Liability? 109 Yale L. J. 1087, 1128–1129 (1999–2000) (“The FDA does not claim to review products for optimal design FDA review thus asks less of drug manufacturers than the common law of products liability asks of other kinds of manufacturers”). At oral argument, counsel for amicus United States stated that the Centers for Disease Control and Prevention (CDC) routinely performs comparative analyses of vaccines that are already on the market. See Tr. of Oral Arg. 44–4; at 2–3 (describing CDC’s comparison of Sabin and Salk polio vaccines). Neither the United States nor any of the parties, however, has represented that CDC examines whether a safer alternative vaccine could have been designed given practical and scientific limits, the central inquiry in a state tort law action for design defect. CDC does not issue biologics licenses, moreover, and thus has no authority to require a manufacturer to adopt a different vaccine design. Cite as: 62 U. S. (2011) 23 SOTOMAYOR, J., dissenting 23) (noting that the FDA has “traditionally regarded state law as a complementary form of drug regulation” as “[s]tate tort suits uncover unknown drug hazards and provide incentives for drug manufacturers to disclose safety risks promptly”).20 The importance of the States’ traditional regulatory role is only underscored by the unique features of the vaccine market, in which there are “only one or two manufacturers for a majority of the vac cines listed on the routine childhood immunization sched ule.” Brief for Respondent The normal competitive forces that spur innovation and improvements to existing product lines in other markets thus operate with less force in the vaccine market, particularly for vaccines
|
Justice Sotomayor
| 2,011 | 24 |
dissenting
|
Bruesewitz v. Wyeth LLC
|
https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/
|
with less force in the vaccine market, particularly for vaccines that have already been released and marketed to the public. Absent a clear statutory mandate to the contrary, there is no reason to think that Congress intended in the vaccine context to eliminate the traditional incentive and deter rence functions served by state tort liability in favor of a federal regulatory scheme providing only carrots and no sticks.21 See Levine, U. S., at (slip op., at 18) (“The —————— 20 Indeed, we observed in Levine that the FDA is perpetually under staffed and underfunded, see U. S., at n. 11 (slip op., at 22, n. 11), and the agency has been criticized in the past for its slow re sponse in failing to withdraw or warn about potentially dangerous products, see, e.g., L. Leveton, H. Sox, & M. Soto, Institute of Medicine, HIV and the Blood Supply: An Analysis of Crisis Decisionmaking (199) (criticizing FDA response to transmission of AIDS through blood supply). These practical shortcomings reinforce the conclusion that “state law offers an additional, and important, layer of consumer protection that complements FDA regulation.” Levine, U. S., at (slip op., at 23). 21 The majority mischaracterizes my position as expressing a general “skeptic[ism] of preemption unless the congressional substitute oper ate[s] like the tort system.” Ante, at 16. Congress could, of course, adopt a regulatory regime that operates differently from state tort systems, and such a difference is not necessarily a reason to question Congress’ pre-emptive intent. In the specific context of the Vaccine Act, however, the relevant point is that this Court should not lightly assume 24 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law in a field of federal interest, and has nonetheless decided to stand by both concepts and to tolerate whatever tension there is between them.” (internal quotation marks and alteration omitted)). III In enacting the Vaccine Act, Congress established a carefully wrought federal scheme that balances the com peting interests of vaccine-injured persons and vaccine manufacturers. As the legislative history indicates, the Act addressed “two overriding concerns”: “(a) the inade quacy—from both the perspective of vaccine-injured per sons as well as vaccine manufacturers—of the current approach to compensating those who have been damaged by a vaccine; and (b) the instability and unpredictability of the childhood vaccine market.” Report 7. When viewed in the context of the Vaccine Act as a whole, is just one part of a broader statutory scheme that balances the need for compensating
|
Justice Sotomayor
| 2,011 | 24 |
dissenting
|
Bruesewitz v. Wyeth LLC
|
https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/
|
a broader statutory scheme that balances the need for compensating vaccine-injured children with added liability protections for vaccine manu facturers to ensure a stable childhood vaccine market. The principal innovation of the Act was the creation of the no-fault compensation program—a scheme funded entirely through an excise tax on vaccines.22 Through that —————— that Congress intended sub silentio to displace a longstanding species of state tort liability where, as here, Congress specifically included an express saving clause preserving state law, there is a long history of state-law regulation of vaccine design, and pre-emption of state law would leave an important regulatory function—i.e., ensuring optimal vaccine design—entirely unaddressed by the congressional substitute. 22 The majority’s suggestion that “vaccine manufacturers fund from their sales” the compensation program is misleading. Ante, at 1. Although the manufacturers nominally pay the tax, the amount of the tax is specifically included in the vaccine price charged to purchasers. See CDC Vaccine Price List (Feb. 1, 2011), http://www.cdc.gov/ Cite as: 62 U. S. (2011) 2 SOTOMAYOR, J., dissenting program, Congress relieved vaccine manufacturers of the burden of compensating victims of vaccine-related injuries in the vast majority of cases23—an extremely significant economic benefit that “functionally creat[es] a valuable insurance policy for vaccine-related injuries.” Reply Brief for Petitioners 10. The structure and legislative history, moreover, point clearly to Congress’ intention to divert would-be tort claimants into the compensation program, rather than eliminate a longstanding category of tradi tional tort claims. See Report 13 (“The Committee anticipates that the speed of the compensation program, the low transaction costs of the system, the no-fault na ture of the required findings, and the relative certainty and generosity of the system’s awards will divert a signifi cant number of potential plaintiffs from litigation”). In deed, although complete pre-emption of tort claims would have eliminated the principal source of the “unpredictabil ity” in the vaccine market, Congress specifically chose not to pre-empt state tort claims categorically. See 42 U.S. C. (providing as a “[g]eneral rule” that “State law shall apply to a civil action brought for damages for a vaccine-related injury or death”). That decision reflects Congress’ recognition that court actions are essential —————— vaccines/programs/vfc/cdc-vac-price-list.htm. Accordingly, the only way the vaccine manufacturers can be said to actually “fund” the compensa tion program is if the cost of the excise tax has an impact on the num ber of vaccines sold by the vaccine manufacturer. The majority points to no evidence that the excise tax—which ordinarily amounts to 7 cents per dose, 26 U.S. C. §41(b)—has any impact whatsoever on the demand for vaccines. 23
|
Justice Sotomayor
| 2,011 | 24 |
dissenting
|
Bruesewitz v. Wyeth LLC
|
https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/
|
§41(b)—has any impact whatsoever on the demand for vaccines. 23 See Brief for United States as Amicus Curiae 28 (“Department of Justice records indicate that 99.8% of successful Compensation Pro gram claimants have accepted their awards, foregoing any tort reme dies against vaccine manufacturers”); S. Plotkin, W. Orenstein, & P. Offit, Vaccines 1673 (noting that “[v]irtually all petitioners, even those who were not awarded compensation” under the compensation program, choose to accept the program’s determination). 26 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting because they provide injured persons with significant procedural tools—including, most importantly, civil dis covery—that are not available in administrative proceed ings under the compensation program. See 12(d)(2)(E), (d)(3). Congress thus clearly believed there was still an important function to be played by state tort law. Instead of eliminating design defect liability entirely, Congress enacted numerous measures to reduce manufac turers’ liability exposure, including a limited regulatory compliance presumption of adequate warnings, see elimination of claims based on failure to provide direct warnings to patients, a heightened standard for punitive damages, 23(d)(2), and, of course, immunity from damages for “un avoidable” side effects, Considered in light of the Vaccine Act as a whole, ’s exemption from liability for unavoidably unsafe vaccines is just one part of a broader statutory scheme that reflects Congress’ careful balance between providing adequate compensation for vaccine-injured children and conferring substantial benefits on vaccine manufacturers to ensure a stable and predictable childhood vaccine supply. The majority’s decision today disturbs that careful balance based on a bare policy preference that it is better “to leave complex epidemiological judgments about vaccine design to the FDA and the National Vaccine Program rather than juries.” Ante, at 1.24 To be sure, reasonable minds can disagree about the wisdom of having juries weigh the relative costs and benefits of a particular vac cine design. But whatever the merits of the majority’s —————— 24 JUSTICE BREYER’s separate concurrence is even more explicitly policy driven, reflecting his own preference for the “more expert judg ment” of federal agencies over the “less expert” judgment of juries. Ante, at Cite as: 62 U. S. (2011) 27 SOTOMAYOR, J., dissenting policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.2 By construing to —————— 2 Respondent notes that there are some000 petitions alleging a causal link between certain vaccines and autism spectrum disorders that are currently pending in an omnibus proceeding in the Court of Federal Claims (Vaccine Court). Brief for Respondent 6–7. Accord ing to respondent, a ruling that does not
|
Justice Sotomayor
| 2,011 | 24 |
dissenting
|
Bruesewitz v. Wyeth LLC
|
https://www.courtlistener.com/opinion/205203/bruesewitz-v-wyeth-llc/
|
6–7. Accord ing to respondent, a ruling that does not pre-empt design defect claims could unleash a “crushing wave” of tort litigation that would bankrupt vaccine manufacturers and deplete vaccine supply. This concern underlies many of the policy arguments in respondent’s brief and appears to underlie the majority and concurring opinions in this case. In the absence of any empirical data, however, the prospect of an onslaught of autism-related tort litigation by claim ants denied relief by the Vaccine Court seems wholly speculative. As an initial matter, the special masters in the autism cases have thus far uniformly rejected the alleged causal link between vaccines and autism. See Brief for American Academy of Pediatrics et al. as Amici Curiae 20–21, n. 4 (collecting cases). To be sure, those rulings do not necessar ily mean that no such causal link exists, cf. Brief for United States as Amicus Curiae 29 (noting that injuries have been added to the Vaccine Injury Table for existing vaccines), or that claimants will not ultimately be able to prove such a link in a state tort action, particularly with the added tool of civil discovery. But these rulings do highlight the sub stantial hurdles to recovery a claimant faces. See (“[A] petitioner to whom the Vaccine Court gives nothing may see no point in trying to overcome tort law’s yet more serious obstacles to recovery”). Trial courts, moreover, have considerable experience in efficiently handling and disposing of meritless products liability claims, and decades of tort litigation (in cluding for design defect) in the prescription-drug context have not led to shortages in prescription drugs. Despite the doomsday predictions of respondent and the various amici cited by the concurrence, ante, at 6–7, the possibility of a torrent of meritless lawsuits bankrupting manufac turers and causing vaccine shortages seems remote at best. More fundamentally, whatever the merits of these policy arguments, the issue in this case is what Congress has decided, and as to that question, the text, structure, and legislative history compel the conclusion that Congress intended to leave the courthouse doors open for children who have suffered severe injuries from defectively designed vaccines. The majority’s policy-driven decision to the contrary usurps Congress’ role and deprives such vaccine-injured children of a key remedy that Con gress intended them to have. 28 BRUESEWITZ v. WYETH LLC SOTOMAYOR, J., dissenting pre-empt all design defect claims against vaccine manu facturers for covered vaccines, the majority’s decision leaves a regulatory vacuum in which no one—neither the FDA nor any other federal agency, nor state and federal juries—ensures that vaccine manufacturers adequately take
|
Justice Stevens
| 1,991 | 16 |
concurring
|
Renne v. Geary
|
https://www.courtlistener.com/opinion/112627/renne-v-geary/
|
The dissenting opinions in this case illustrate why the Court should decline review of the merits of the case in its present posture. JUSTICE MARSHALL concludes that Article II, 6(b), of the California Constitution is invalid on its face because it is overbroad. JUSTICE WHITE, on the other hand, concludes that respondents' complaint may not be construed as including a facial overbreadth challenge, and that 6(b) is valid insofar as it is applied to petitioners' policy of refusing to include endorsements in candidates' campaign mailings. Given the very real possibility that the outcome of this litigation depends entirely on whether the complaint should be construed as making a facial challenge or an as-applied challengefor it is apparent that JUSTICE WHITE and JUSTICE MARSHALL may both be interpreting the merits of their respective First Amendment questions correctlyand given the difficulty of determining whether respondents' complaint against petitioners' policy of deleting party endorsements from candidates' statements may fairly be construed as including a facial overbreadth challenge, the Court is surely wise in refusing to address the merits on the present record. Two other prudential concerns weigh against deciding the merits of this case. First, I am not sure that respondents' challenge to petitioners' policy of deleting party endorsements is ripe for review. If such a challenge had been brought by a political party or a party central committee, and if the complaint had alleged that these organizations wanted to endorse, support, or oppose a candidate for nonpartisan office but were inhibited from doing so because of the constitutional provision, the case would unquestionably be ripe. Cf. Because I do not believe an individual member of a party or committee may sue on behalf of such an organization, see however, no such plaintiff presenting a ripe controversy is before us. Alternatively, if this action *326 had been brought by a candidate who had been endorsed by a political party and who sought to include that endorsement in his or her candidate's statement, we would also be confronted with a ripe controversy. Unlike such scenarios, however, the respondents in this case are voters. They claim, based on petitioners' representations, that 6(b) of the State Constitution forms the basis for petitioners' policy of deleting party endorsements from candidates' mailed statements. But there are at least two hurdles that these respondents must overcome before their claim would be ripe for judicial review. First, they must prove that political parties would endorse certain candidates if 6(b) were repealed or invalidated. See Virginia State Bd. of Arguably, respondents have met this hurdle by offering several affidavits of members
|
Justice Stevens
| 1,991 | 16 |
concurring
|
Renne v. Geary
|
https://www.courtlistener.com/opinion/112627/renne-v-geary/
|
have met this hurdle by offering several affidavits of members of party central committees stating that the committees plan to endorse candidates for nonpartisan office and to seek to have those endorsements publicized. See, e. g., App. 15. Second, respondents must prove that specific candidates for nonpartisan office would seek to mention the party endorsements in their statements if petitioners' policy of deleting such endorsements were declared invalid (moreover, to prove injury to their interest as informed voters, respondents would perhaps also have to allege that they would not otherwise know about the endorsements if the endorsements are not included in mailed candidates' statements). This latter hurdle has not, in my opinion, been met by respondents in such a way as to ensure that we are confronted by a definite and ripe controversy. Moreover, I am troubled by the redressability issues inherent in this case. Respondents' complaint has challenged 6(b) of the State Constitution, but it has not challenged the validity of 10012 of the California Elections Code. That section *327 plainly prohibits the inclusion of the party affiliation of candidates in nonpartisan elections, and unquestionably would provide an adequate basis for petitioners' challenged policy even if the constitutional prohibition against endorsements were invalidated. Even if we were to strike down 6(b) as overbroad, then, it is unclear whether respondents' alleged injury would be redressed. These three unsettled issuesinvolving whether a facial overbreadth challenge may be construed to have been made, whether respondents' challenge is ripe, and whether their injury is redressablecoalesce to convince me that review of the merits of respondents' challenge is best left for another day and another complaint. No substantial hardship would accrue from a dismissal of respondents' action without prejudice, and the courts would benefit from a more precise articulation of a current and definite controversy. I therefore join the Court's opinion and judgment ordering the lower courts to dismiss the action without prejudice.
|
Justice Stevens
| 1,981 | 16 |
dissenting
|
Schweiker v. Gray Panthers
|
https://www.courtlistener.com/opinion/110547/schweiker-v-gray-panthers/
|
The scope of the issue presented in this difficult case is confined to the situation in which a married applicant for Medicaid benefits is institutionalized. I believe that issue can be best understood by focusing our attention on an institutionalized applicant who is totally dependent for financial support on a spouse who is employed and who continues to live in what had been their joint home. Arguably the relevant statutory language[1] might authorize the eligibility determination *51 to be made in three ways: (1) none of the employed spouse's income should be deemed available to the institutionalized spouse unless it is actually contributed; (2) all of that income should be deemed available; (3) some, but not all, may be counted in determining the eligibility of the institutionalized spouse. Respondent persuaded the District Court that the first reading was required by the word "available" in subpart (B) of 1902 (a) (17), and by the legislative history's emphasis on preventing the States from assuming the "availability of *52 income which may not, in fact, be available."[2] For the reasons stated by the Court, I agree that this is not a correct reading of the statute.[3] The Court of Appeals decision, however, cannot be reversed on that basis. That court did not hold that deeming was never permissible; rather, it invalidated regulations which permitted virtually unlimited deeming. I am persuaded that the Court of Appeals was correct in its holding that the statute does place significant limits on the amount of income that may be deemed available to the institutionalized spouse. The Court of Appeals set aside the Secretary's regulations because in promulgating those regulations the Secretary had failed to consider all relevant factors as required by Citizens to Preserve Overton Relying on the same legislative history as did the District Court, the Court of Appeals reasoned that the statutory scheme contemplated that cohabiting spouses would support each other but that Congress intended a flexible approach to apply in situations in which the basic assumption of cohabitation could not be made.[4] The court thus held that the Secretary should *53 have taken into account the impact of institutionalization of one spouse on what previously constituted a single economic unit[5] and the potential disruption of the family caused by deeming.[6] In revising her regulations after the Court of Appeals' decision, then Secretary Harris specifically considered the factors *54 discussed by the Court of Appeals.[7] Although the Secretary was required by the Court of Appeals mandate to reconsider the regulation in light of the factors discussed by the court, the court's mandate did not specify
|
Justice Stevens
| 1,981 | 16 |
dissenting
|
Schweiker v. Gray Panthers
|
https://www.courtlistener.com/opinion/110547/schweiker-v-gray-panthers/
|
discussed by the court, the court's mandate did not specify the contents of the new regulations.[8] Nevertheless, the Secretary concluded that deeming in 209 (b) States should be limited in both "duration and amount."[9] She cogently explained her conclusion that "deeming has several adverse impacts on beneficiaries": "The institutionalized spouse may lose medicaid eligibility if the deemed amount is large enough to bring his or her income level over the State's standards. If the deemed amount is not actually contributed but the State's payments to the facility nevertheless are reduced by that amount, the individual may be asked to leave the *55 institution. With respect to the spouse in the community, the use of deeming may also be unfair. This occurs principally because, in section 1902 (f) States, the amounts that are protected for the noninstitutionalized spouse's maintenance may be set at 1972 levels. Those levels may be insufficient in light of the current cost of living. This may force the noninstitutionalized spouse either to refuse to pay the `deemed' amount (possibly resulting in the institutionalized spouse being required to leave the facility), or to try to live at levels that are inadequate for subsistence. "Moreover, when income is `deemed,' the spouse has less of an incentive actually to contribute the amount than if relative responsibility laws are used, because deeming has an adverse effect on the institutionalized individual, whereas relative responsibility laws affect the spouse in the community by requiring him or her to make support payments. These potentially severe impacts lead us to conclude that deeming should be limited in both duration and amount."[10] In my opinion, the Court of Appeals was correct in construing the statutory mandate that "only such income and *56 resources as are available to the applicant" may be taken into account in determining eligibility to require consideration of the impact of institutionalization of one spouse on what was previously a single economic unit. The Secretary's consideration of that factor led her to conclude that deeming "should be limited in both duration and amount." The regulations that had been in effect prior to the Court of Appeals decision permitted a State to deem, for an unlimited period, the wage earner's entire income except for an amount that might have been sufficient to supply basic living requirements in 1972. Because the wage earner and the institutionalized spouse were no longer living together and thereby sharing expenses, and because inflation in the intervening years increased the amount of those expenses, the regulations allowed a State to deem more income than could realistically be considered "available."[11] This
|
Justice Marshall
| 1,973 | 15 |
second_dissenting
|
Michigan v. Payne
|
https://www.courtlistener.com/opinion/108794/michigan-v-payne/
|
The Court today holds that no limitations need be placed on resentencings that occurred before the date of decision in North I believe however, that the State has an obligation to present to the court reviewing the second conviction evidence from which that court can determine whether a new sentence, more severe than that imposed at a prior trial, resulted in part from the sentencing authority's desire to punish the defendant for successfully appealing his first conviction.[1] I therefore respectfully dissent. I This case raises the issue of retroactivity only because of the almost unbelievable sluggishness of the appellate process in Michigan. Payne's second sentence was imposed on August 30, 1967, nearly two years before Pearce was decided. However, the Michigan Court of Appeals did not decide Payne's appeal until July 28, 1969, one month after the decision in Pearce. The Michigan Supreme Court considered the case for two more years, finally deciding it on November 9, Had the appellate process in Michigan been at all expeditious, this Court might have used Payne's case as the vehicle to decide *60 that harsher sentences on reconviction could be justified only by objective evidence of post-sentencing conduct by the defendant, the rule adopted in Pearce. The only difference between Pearce's case and Payne's, then, is that the former moved up to this Court more quickly than the latter. Different treatment of two cases is justified under our Constitution only when the cases differ in some respect relevant to the different treatment.[2] And a difference in the speed with which a judicial system disposes of an appeal is not related in any way to the purposes served by the limitations that Pearce placed on resentencing. Thus, considerations of fairness rooted in the Constitution lead me to conclude that cases in the pipeline when a new constitutional rule is announced must be given the benefit of that rule. The rule adopted by the Court today is curious in another way. The Court appears to say that a defendant who failed to appeal his first conviction out of "a reasonably based fear of actual vindictiveness," ante, at 52 n. 5, is entitled to review of his conviction. Cf.[3] If his appeal is successful, his new trial will occur after the date of decision in Pearce. Thus, any new sentence will be *61 subject to the limitations imposed by Pearce. The rather strange result is that someone like Payne, who adhered to state procedural rules for vindicating his right to an error-free trial, may receive an enhanced sentence without limitation, while someone who did not adhere
|
Justice Marshall
| 1,973 | 15 |
second_dissenting
|
Michigan v. Payne
|
https://www.courtlistener.com/opinion/108794/michigan-v-payne/
|
enhanced sentence without limitation, while someone who did not adhere to those rules may not have his sentence increased unless the requirements of Pearce are met. I suppose that anomalies are occasionally inevitable, but I submit that we should consider very carefully any rule of retroactivity that has the effect of penalizing compliance with state procedural rules. II The Court applies the now-familiar three-pronged test to determine whether Pearce should be given retroactive effect, and it reaches the now-familiar result of nonretroactivity.[4] I believe that principled adjudication requires the Court to abandon the charade of carefully balancing countervailing considerations when deciding the question of retroactivity. Inspecting the cases dealing with retroactivity, I find that they appear to fall into three groups. In some cases, this Court has held that the trial court lacked jurisdiction in the traditional sense. See, e. g., ; Those holdings have been made fully retroactive. ; Cf. United In other cases the Court announced a rule that was central to the process of determining guilt or innocence, and whose application might well have led to the *62 acquittal of the defendant. See, e. g., ; In re Winship, Those holdings too have been given retroactive effect. ; Ivan V. v. New York, Cf. All other constitutional rules of criminal procedure have been given prospective effect only.[5] I confess that I have been unable to discover a principled basis for that threefold classification, but it does appear to be the factor operating in our cases. And I see little point in forcing lower courts to flounder without substantial guidance in the morass of our cases, by informing them that they are to apply a balancing test, when in fact it invariably occurs that the balancing test results in holdings of nonretroactivity. Furthermore, it demeans this Court to pretend to consider a variety of factors if, no matter how those factors are arrayed, the result is predetermined. An open-minded examination of this Court's cases on retroactivity compels the conclusion that the Court divides cases into several classes, and it is the classification, not the three-pronged test, that determines the result. Our time would be better spent, I think, in attempting to delineate the basis for those classifications, and to derive them from some constitutional principles, rather than in "applying" a balancing test. Indeed, it might have been thought that *63 had begun the task of rationalizing our cases, but apparently that is not so. III The holding of Pearce is a simple one: the Due Process Clause requires States to adopt procedures designed to minimize the possibility that
|
Justice Marshall
| 1,973 | 15 |
second_dissenting
|
Michigan v. Payne
|
https://www.courtlistener.com/opinion/108794/michigan-v-payne/
|
States to adopt procedures designed to minimize the possibility that a new sentence after a successful appeal will be based in part on vindictiveness for the defendant's having taken the appeal. The Court agrees that "this basic due process protection is available equally to defendants resentenced before and after the date of decision in that case." Ante, at 50, 51. The question then is what procedures are required to insure that that protection has been afforded defendants resentenced before Pearce was decided. This question, like many of those involving retroactivity, relates to the integrity of the judicial process, not to the limitations placed by the Constitution on police behavior. One can agree that the precise requirements of Pearce are inappropriate for retrospective application, largely because they are procedurally ill-adapted to the problem, yet disagree with the Court that the States need do nothing at all to convince a reviewing court that vindictiveness played no part in the resentencing. See e. g., The issue need not be framed as the "retroactivity" of Pearce. The problem, as I see it, is to devise procedures that will permit reviewing courts to determine whether the requirements of the Due Process Clause have been met. In Pearce we concluded that it would be enough for a judge, on resentencing a defendant, to state his reasons for imposing a more severe sentence. If the more severe sentence was based upon objective information, placed on the record, concerning the conduct of the *64 defendant after the first sentencing, the more severe sentence was permissible. Such a rule, although not absolutely guaranteeing that vindictiveness will play no part,[6] nonetheless substantially reduces the possibility that it will, without significantly interfering with the judge's lawful discretion. A rather similar procedure would accomplish the same result for defendants resentenced before Pearce was decided. If a defendant did receive a harsher sentence after a successful appeal, and he seeks to have it reduced to the original sentence, the State should be required to present evidence that the new sentence was based on post-sentence conduct. In the absence of such evidence, the sentence must be reduced.[7] The Court suggests that such a procedure would "occasion windfall benefits for some defendants who have suffered no constitutional deprivation." Ante, at 53. That assertion must be considered more closely. As the Court notes, there is little evidence that more severe sentences are often imposed. It cites an informal survey suggesting that 12% of reconvicted defendants receive higher sentences. Ante, at 56 n. 13. Even if that estimate is only half as large as the actual figure
|
Justice Marshall
| 1,973 | 15 |
second_dissenting
|
Michigan v. Payne
|
https://www.courtlistener.com/opinion/108794/michigan-v-payne/
|
estimate is only half as large as the actual figure for pre-Pearce cases, still there are clearly very few defendants who have received harsher sentences. With respect *65 to many of them, it will not be difficult to produce evidence supporting the new sentence. As in and the sentencing judge might indicate by affidavit or order the grounds for his sentencing decision. If memories have faded, the State might show that a presentence report considered by the judge recited post-sentence conduct by the defendant that would justify the harsher sentence. Thus, I do not think that it can fairly be said that the requirements I would impose would in fact result in windfall benefits to "innumerable" defendants, ante, at 55; they would accrue to those few defendants who were convicted, successfully appealed, were reconvicted, and received harsher sentences so long ago that the State cannot produce evidence from which a reviewing court could find that vindictiveness played no part in the sentencing decision.[8] And the "windfall benefits" would impair no substantial state interest in incarcerating those few offenders. Unlike the suppression of probative evidence that might severely limit the State's ability to secure a conviction of a person who undoubtedly committed an offense, here the remedy is simply the reduction of sentence. North The sentence to be served would be one that had already been found appropriate by one *66 judge, and would therefore satisfy the various interests advanced by incarceration.[9] For these reasons, I dissent. MR. JUSTICE STEWART joins Part III of this opinion.
|
Justice White
| 1,970 | 6 |
concurring
|
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler
|
https://www.courtlistener.com/opinion/108146/greenbelt-cooperative-publishing-assn-inc-v-bresler/
|
I concur in the judgment of reversal and join the opinion of the Court insofar as it rests reversal on the erroneous definition of malice contained in the instructions given to the jury. I do not, however, join the remainder of the Court's opinion. Respondent Bresler charged that he had been libeled by at least four statements published in petitioners' newspaper: (1) a statement that Bresler's conduct amounted to "a slight case of blackmail," accompanied by the use of the word "blackmail" as a column subheading; (2) a charge that Bresler had engaged in an "unethical trade"; (3) an allegation that Bresler had been guilty of "skulduggery," a word used by the newspaper to characterize statements made by others about Bresler; and (4) a statement that Bresler had had legal proceedings "started against him for failure to make construction corrections in accordance with county standards." Petitioners contended that the use of the word blackmail had not been intended in the criminal sense and was not libelous and that in any event the newspaper had not made its publications with malice, that is, with knowledge *19 that any of the statements were false or with reckless disregard of the falsity of any of them. In instructing the jury the trial court defined libel as: "the publication of words, pictures or symbols which imputes to a person a crime or a disgraceful or dishonest or immoral conduct or is otherwise injurious to the private character or credit of the person in the minds of a considerable and respectable class in the community. "[T]he burden is upon the plaintiff to establish by a preponderance of the evidence that the publication imputed to him a crime, or disgraceful, dishonest or immoral conduct or was otherwise injurious to his private character or credit" App. E. 189. With respect to the dispute over the sense with which the charge of blackmail had been used the court told the jury: "[I]f you are unable to conclude from the preponderance of the evidence that the publication bears a meaning ascribed to it by the plaintiff, or if you find that the evidence is equally balanced on that issue, then your verdict must be for the defendant. "In considering the publication complained of, you must consider the publication as a whole the Court would say in this case we are talking about serious, [sic] number of publicationsand determine the meaning of the publication and how it would be understood by ordinary readers from the entire context thereof with the other facts and circumstances shown by the evidence. "Where a
|
Justice White
| 1,970 | 6 |
concurring
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Greenbelt Cooperative Publishing Assn., Inc. v. Bresler
|
https://www.courtlistener.com/opinion/108146/greenbelt-cooperative-publishing-assn-inc-v-bresler/
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other facts and circumstances shown by the evidence. "Where a publication is susceptible of two meanings one of those which would be libelous and the *20 other not, it is up to you to say which of the two meanings would be attributable to it, by those to whom it is addressed or by whom it may be read. In reaching your decision you can consider all the circumstances surrounding the publication, which includes all of the evidence which has been admitted." at E. 189-190. The court also defined the crime of blackmail and told the jury that in this sense the defendant newspaper did not claim that the allegations were true. Petitioners took exception to none of the foregoing instructions although in their motion for judgment n. o. v. or for a new trial, error was claimed in not instructing the jury that the failure to plead truth meant only that the defendants did not adopt the meaning of the words alleged by the plaintiff. See App. E. 10-11. The jury returned a verdict for plaintiff, and judgment was entered on the verdict for both compensatory and punitive damages. The Court of Appeals of Maryland affirmed. The court held that aside from federal constitutional protections urged by petitioners, the jury's verdict and subsequent judgment thereon were supported by the evidence. With respect to the blackmail charge the court said: "In the instant case the word `blackmail' was used as a sub-heading without qualification. The charge of blackmail was stated in the News Review issue of October 14, 1965, and was again repeated in the next week in the issue of October 21. The appellants argue that the word `blackmail' was used in a noncriminal sense, but the intended meaning was for the jury to determine. American Stores v. The jury found against the appellants. *21 "The charging of Mr. Bresler with having committed blackmail could be found by the jury (as it was) to charge him with the commission of a crime." The court also dealt with the other publications: "In addition to the publications that Mr. Bresler had committed blackmail, there were publications that he had engaged in `An unethical trade,' had been guilty of `skulduggery,' had had legal proceedings `started against him for failure to make construction corrections in accordance with county standards.' These allegations were injurious to Mr. Bresler in his business as a contractor and were libelous per se." As for the issue of malice, the Court of Appeals noted that the newspaper knew the blackmail charge was false in the criminal sense. With reference
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Justice White
| 1,970 | 6 |
concurring
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Greenbelt Cooperative Publishing Assn., Inc. v. Bresler
|
https://www.courtlistener.com/opinion/108146/greenbelt-cooperative-publishing-assn-inc-v-bresler/
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blackmail charge was false in the criminal sense. With reference to the charge of "skulduggery" the court pointed out that the newspaper had not quoted another source in using that word; rather, it was the publishers' own characterization of the events. "There is little doubt that the word `skulduggery' was intended to indicate dishonest conduct on the part of Bresler and to hold him up to ridicule and contempt. The jury could properly conclude that the reports of the hearing were not accurately reported and were, also, published with a knowledge of their falsity or with serious doubt of their truthfulness." The court also held that the allegations that homeowners had started legal proceedings against Bresler in regard to construction defects in their homes built by him had been made with reckless disregard for the truth. In reversing the Maryland Court of Appeals, the Court does not deny that the Constitution would permit recovery *22 for charging the crime of blackmail, or even for falsely accusing one of "blackmail" in a noncriminal but derogatory sense "injurious to the private character or credit of the person." The Court does not deny that the jury was told it had the authority to decide in what sense a word was used or understood, nor does the Court question the conclusion of the Court of Appeals that the jury had found that the word had been used and understood in the criminal sense. What the Court does hold on the cold record is that the trial judge, the jury, and the Maryland Court of Appeals were quite wrong in concluding that "ordinary readers" could have understood that a crime had been charged. If this conclusion rests on the proposition that there was no evidence to support a judgment that the charge of blackmail would be understood by the average reader to import criminal conduct, I cannot agree. The very fact that the word is conceded to have a double meaning in normal usage is itself some evidence; and without challenging the reading of the jury's verdict by the Maryland Court of Appeals, I cannot join the majority claim of superior insight with respect to how the word "blackmail" would be understood by the ordinary reader in Greenbelt, Maryland. Although the Court does not so hold, arguably the newspaper should not be liable if it had no intention of charging a crime and had a good-faith, nonreckless belief that it was not doing so. Should New York Times be extended to preclude liability for injury to reputation caused by employing words of double meaning, one
|
Justice White
| 1,970 | 6 |
concurring
|
Greenbelt Cooperative Publishing Assn., Inc. v. Bresler
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https://www.courtlistener.com/opinion/108146/greenbelt-cooperative-publishing-assn-inc-v-bresler/
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to reputation caused by employing words of double meaning, one of which is libelous, whenever the publisher claims in good faith to have intended the innocent meaning? I think not. The New York Times case was an effort to effectuate the policies of the First Amendment by recognizing the difficulties of ascertaining *23 the truth of allegations about a public official whom the newspaper is investigating with an eye to publication. Absent protection for the nonreckless publication of "facts" that subsequently prove to be false, the danger is that legitimate news and communication will be suppressed. But it is quite a different thing, not involving the same danger of self-censorship, to immunize professional communicators from liability for their use of ambiguous language and their failure to guard against the possibility that words known to carry two meanings, one of which imputes commission of a crime, might seriously damage the object of their comment in the eyes of the average reader. I see no reason why the members of a skilled calling should not be held to the standard of their craft and assume the risk of being misunderstoodif they areby the ordinary reader of their publications. If it is thought that the First Amendment requires more protection for the media in this respect in accurately reporting events and statements occurring at official meetings, it would be preferable directly to carve out a wider privilege for such reporting. I agree with the Court that there was error in the instructions concerning malice. The error, however, is irrelevant to the "blackmail" phase of this case as I view it: if one assumes that the jury found that the crime of blackmail was charged, "malice" is conceded, since the defendants admittedly knew such a charge was false. Nevertheless, the jury returned a general verdict; it might have found that the blackmail statement did not impute a crime, but that the other damaging statements published by the newspaper were libelous. Indeed, this was the most likely course for the jury to have taken if the Court is correct that there was so little reason for *24 basing liability on the blackmail allegation. Given this possibility, the error in the instructions requires reversal of the judgment. MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS joins, concurs in the judgment of the Court for the reasons set out in MR. JUSTICE BLACK's concurring opinion in New York Times in his concurring and dissenting opinion in Curtis Publishing and in MR. JUSTICE DOUGLAS' concurring opinion in
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
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https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
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We granted the Government's petition for certiorari to decide whether the area near a barn, located approximately 50 yards from a fence surrounding a ranch house, is, for Fourth Amendment purposes, within the curtilage of the house. The Court of Appeals for the Fifth Circuit held that the barn lay within the house's curtilage, and that the District Court should have suppressed certain evidence obtained as a result of law enforcement officials' intrusion onto the area immediately surrounding the barn. We conclude that the barn and the area around it lay outside the curtilage of the house, and accordingly reverse the judgment of the Court of Appeals. I Respondent Ronald Dale Dunn and a codefendant, Robert Lyle Carpenter, were convicted by a jury of conspiring to manufacture phenylacetone and amphetamine, and to possess amphetamine with intent to distribute, in violation of 21 U.S. C. 846. Respondent was also convicted of manufacturing these two controlled substances and possessing amphetamine with intent to distribute. The events giving rise to respondent's apprehension and conviction began in 1980 when agents from the Drug Enforcement Administration (DEA) discovered that Carpenter had purchased large quantities of chemicals and equipment used in the manufacture of amphetamine and phenylacetone. DEA agents obtained warrants from a Texas state judge authorizing installation of miniature electronic transmitter tracking devices, or "beepers," in an electric hot plate stirrer, a drum of acetic anhydride, and a container holding phenylacetic acid, a precursor to phenylacetone. All of these items had been ordered by *297 Carpenter. On September 3, 1980, Carpenter took possession of the electric hot plate stirrer, but the agents lost the signal from the "beeper" a few days later. The agents were able to track the "beeper" in the container of chemicals, however, from October 27, 1980, until November 5, 1980, on which date Carpenter's pickup truck, which was carrying the container, arrived at respondent's ranch. Aerial photographs of the ranch property showed Carpenter's truck backed up to a barn behind the ranch house. The agents also began receiving transmission signals from the "beeper" in the hot plate stirrer that they had lost in early September and determined that the stirrer was on respondent's ranch property. Respondent's ranch comprised approximately 198 acres and was completely encircled by a perimeter fence. The property also contained several interior fences, constructed mainly of posts and multiple strands of barbed wire. The ranch residence was situated 1/2 mile from a public road. A fence encircled the residence and a nearby small greenhouse. Two barns were located approximately 50 yards from this fence. The front of the
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
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https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
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approximately 50 yards from this fence. The front of the larger of the two barns was enclosed by a wooden fence and had an open overhang. Locked, waist-high gates barred entry into the barn proper, and netting material stretched from the ceiling to the top of the wooden gates. On the evening of November 5, 1980, law enforcement officials made a warrantless entry onto respondent's ranch property. A DEA agent accompanied by an officer from the Houston Police Department crossed over the perimeter fence and one interior fence. Standing approximately midway between the residence and the barns, the DEA agent smelled what he believed to be phenylacetic acid, the odor coming from the direction of the barns. The officers approached the smaller of the barns crossing over a barbed wire fence and, looking into the barn, observed only empty boxes. The officers then proceeded to the larger barn, crossing another *298 barbed wire fence as well as a wooden fence that enclosed the front portion of the barn. The officers walked under the barn's overhang to the locked wooden gates and, shining a flashlight through the netting on top of the gates, peered into the barn. They observed what the DEA agent thought to be a phenylacetone laboratory. The officers did not enter the barn.[1] At this point the officers departed from respondent's property, but entered it twice more on November 6 to confirm the presence of the phenylacetone laboratory. On November 6, 1980, at 8:30 p.m., a Federal Magistrate issued a warrant authorizing a search of respondent's ranch. DEA agents and state law enforcement officials executed the warrant on November 8, 1980.[2] The officers arrested respondent *299 and seized chemicals and equipment, as well as bags of amphetamines they discovered in a closet in the ranch house. The District Court denied respondent's motion to suppress all evidence seized pursuant to the warrant and respondent and Carpenter were convicted. In a decision rendered in 1982, the Court of Appeals reversed respondent's conviction. United The court concluded that the search warrant had been issued based on information obtained during the officers' unlawful warrantless entry onto respondent's ranch property and, therefore, all evidence seized pursuant to the warrant should have been suppressed. Underpinning this conclusion was the court's reasoning that "the barn in question was within the curtilage of the residence and was within the protective ambit of the fourth amendment." We granted the Government's petition for certiorari, vacated the judgment of the Court of Appeals, and remanded the case for further consideration in light of On remand, the Court
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
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https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
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for further consideration in light of On remand, the Court of Appeals reaffirmed its judgment that the evidence seized pursuant to the warrant should have been suppressed, but altered the legal basis supporting this conclusion: the large barn was not within the curtilage of the house, but by standing outside the barn and peering into the structure, the officers nonetheless violated respondent's "reasonable expectation of privacy in his barn and its contents." The Government again filed a petition for certiorari. On January 17, before this Court acted on the petition, the Court of Appeals recalled and vacated its judgment issued on remand, stating that it would enter a new judgment in due course. On February 4, the Court of Appeals reinstated the original opinion rendered in 1982, asserting that "[u]pon studied reflection, we now conclude and hold that the barn was inside the protected curtilage." The Government thereupon submitted a supplement to its petition for certiorari, revising the question presented *300 to whether the barn lay within the curtilage of the house. We granted the petition, and now reverse. II The curtilage concept originated at common law to extend to the area immediately surrounding a dwelling house the same protection under the law of burglary as was afforded the house The concept plays a part, however, in interpreting the reach of the Fourth Amendment. held that the Fourth Amendment's protection accorded "persons, houses, papers, and effects" did not extend to the open fields, the Court observing that the distinction between a person's house and open fields "is as old as the common law. 4 Bl. Comm. 223, 2, 226."[3] We reaffirmed the holding of Hester in There, we recognized that the Fourth Amendment protects the curtilage of a house and that the extent of the curtilage is determined by factors that bear upon whether an individual reasonably may expect that the area in question should be treated as the home We identified the central component of this inquiry as whether the area harbors the "intimate activity associated with the `sanctity of a man's home and the privacies of life.' " (quoting Boyd v. United (1)). *301 Drawing upon the Court's own cases and the cumulative experience of the lower courts that have grappled with the task of defining the extent of a home's curtilage, we believe that curtilage questions should be resolved with particular reference to four factors: the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
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https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
|
home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by. See (citing Care v. United (CA10), cert. denied, ; United v. Van Dyke, ).[4] We do not suggest that combining these factors produces a finely tuned formula that, when mechanically applied, yields a "correct" answer to all extent-of-curtilage questions. Rather, these factors are useful analytical tools only to the degree that, in any given case, they bear upon the centrally relevant consideration whether the area in question is so intimately tied to the home itself that it should be placed under the home's "umbrella" of Fourth Amendment protection. Applying these factors to respondent's barn and to the area immediately surrounding it, we have little difficulty in concluding that this area lay outside the curtilage of the ranch house. *302 First. The record discloses that the barn was located 50 yards from the fence surrounding the house and 60 yards from the house -883; 782 F. 2d, at 1228. Standing in isolation, this substantial distance supports no inference that the barn should be treated as an adjunct of the house. Second. It is also significant that respondent's barn did not lie within the area surrounding the house that was enclosed by a fence. We noted in that "for most homes, the boundaries of the curtilage will be clearly marked; and the conception defining the curtilage as the area around the home to which the activity of home life extends is a familiar one easily understood from our daily experience." n. 12. Viewing the physical layout of respondent's ranch in its entirety, see it is plain that the fence surrounding the residence serves to demark a specific area of land immediately adjacent to the house that is readily identifiable as part and parcel of the house. Conversely, the barn the front portion itself enclosed by a fence and the area immediately surrounding it, stands out as a distinct portion of respondent's ranch, quite separate from the residence. Third. It is especially significant that the law enforcement officials possessed objective data indicating that the barn was not being used for intimate activities of the home. The aerial photographs showed that the truck Carpenter had been driving that contained the container of phenylacetic acid was backed up to the barn, "apparently," in the words of the Court of Appeals, "for the unloading of its contents." When on respondent's property, the officers' suspicion was further directed toward the barn because of
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
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https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
|
officers' suspicion was further directed toward the barn because of "a very strong odor" of phenylacetic acid. App. 15. As the DEA agent approached the barn, he "could hear a motor running, like a pump motor of some sort" Furthermore, the officers detected an "extremely strong" odor of phenylacetic acid coming from a small crack in the *303 wall of the barn. Finally, as the officers were standing in front of the barn, immediately prior to looking into its interior through the netting material, "the smell was very, very strong [and the officers] could hear the motor running very loudly." When considered together, the above facts indicated to the officers that the use to which the barn was being put could not fairly be characterized as so associated with the activities and privacies of domestic life that the officers should have deemed the barn as part of respondent's home. Fourth. Respondent did little to protect the barn area from observation by those standing in the open fields. Nothing in the record suggests that the various interior fences on respondent's property had any function other than that of the typical ranch fence; the fences were designed and constructed to corral livestock, not to prevent persons from observing what lay inside the enclosed areas. III Respondent submits an alternative basis for affirming the judgment below, one that was presented to but ultimately not relied upon by the Court of Appeals. Respondent asserts that he possessed an expectation of privacy, independent from his home's curtilage, in the barn and its contents, because the barn is an essential part of his business. Brief for Respondent 9. Respondent overlooks the significance of We may accept, for the sake of argument, respondent's submission that his barn enjoyed Fourth Amendment protection and could not be entered and its contents seized without a warrant. But it does not follow on the record before us that the officers' conduct and the ensuing search and seizure violated the Constitution. reaffirmed the precept, established in Hester, that an open field is neither a "house" nor an "effect," and, therefore, "the government's intrusion upon the open fields is not one of those `unreasonable searches' *304 proscribed by the text of the Fourth Amendment." 466 U.S., 7. The Court expressly rejected the argument that the erection of fences on an open field at least of the variety involved in those cases and in the present case creates a constitutionally protected privacy interest. 2-183. "[T]he term `open fields' may include any unoccupied or undeveloped area outside of the curtilage. An open field
|
Justice White
| 1,987 | 6 |
majority
|
United States v. Dunn
|
https://www.courtlistener.com/opinion/111833/united-states-v-dunn/
|
or undeveloped area outside of the curtilage. An open field need be neither `open' nor a `field' as those terms are used in common speech." 0, n. 11. It follows that no constitutional violation occurred here when the officers crossed over respondent's ranch-style perimeter fence, and over several similarly constructed interior fences, prior to stopping at the locked front gate of the barn. As previously mentioned, the officers never entered the barn, nor did they enter any other structure on respondent's premises. Once at their vantage point, they merely stood, outside the curtilage of the house and in the open fields upon which the barn was constructed, and peered into the barn's open front. And, standing as they were in the open fields, the Constitution did not forbid them to observe the phenylacetone laboratory located in respondent's barn. This conclusion flows naturally from our previous decisions. Under and Hester, there is no constitutional difference between police observations conducted while in a public place and while standing in the open fields. Similarly, the fact that the objects observed by the officers lay within an area that we have assumed, but not decided, was protected by the Fourth Amendment does not affect our conclusion. Last Term, in we held that warrantless naked-eye aerial observation of a home's curtilage did not violate the Fourth Amendment. We based our holding on the premise that the Fourth Amendment "has never been extended to require law enforcement officers to shield their eyes when passing by a home on public thoroughfares." Importantly, we deemed it irrelevant that the police observation at issue *305 was directed specifically at the identification of marijuana plants growing on an area protected by the Fourth Amendment. Finally, the plurality opinion in notes that it is "beyond dispute" that the action of a police officer in shining his flashlight to illuminate the interior of a car, without probable cause to search the car, "trenched upon no right secured by the Fourth Amendment." The holding in United v. Lee, 274 U.S. 5, is of similar import. Here, the officers' use of the beam of a flashlight, directed through the essentially open front of respondent's barn, did not transform their observations into an unreasonable search within the meaning of Fourth Amendment. The officers lawfully viewed the interior of respondent's barn, and their observations were properly considered by the Magistrate in issuing a search warrant for respondent's premises. Accordingly, the judgment of the Court of Appeals is reversed. It is so ordered. JUSTICE SCALIA, concurring in part. I join JUSTICE WHITE's opinion with the exception of
|
per_curiam
| 1,970 | 200 |
per_curiam
|
Sigler v. Parker
|
https://www.courtlistener.com/opinion/108037/sigler-v-parker/
|
In 1956 respondent was found guilty in a Nebraska court of first-degree murder; he was sentenced to life imprisonment. After exhausting his post-conviction remedies under Nebraska law, respondent petitioned the United States District Court for the District of Nebraska for a writ of habeas corpus. After an evidentiary hearing, the District Court dismissed the petition. One of the issues presented to the District Court was the voluntariness of confessions used against respondent at his trial. Relying on the findings of the state court in a *483 1965 post-conviction proceeding, the District Court concluded that the confessions were voluntarily given and hence admissible. The Court of Appeals for the Eighth Circuit, without reaching the other issues before it, reversed on the ground that respondent's confessions were involuntary. The court first found that the opinion of the Nebraska Supreme Court affirming respondent's conviction indicated that the trial judge had not found the confessions voluntary before admitting them into evidence. The court then found that this violation of the procedural rule of had tainted all subsequent findings of voluntariness in the Nebraska courts and in the District Court. Since it seemed "unlikely that either party has any additional substantial evidence on the voluntariness issue," the Court of Appeals chose to evaluate the confessions itself rather than to remand the case to allow the State to make an untainted determination on the voluntariness question. After examining the record of the trial and the post-conviction proceedings, the court held that the confessions could on no view of the evidence be deemed voluntary. On the basis of this determination, the court directed that the writ of habeas corpus should be granted unless within a reasonable time respondent was given a new trial from which the confessions were excluded. We agree with the Court of Appeals that the record of proceedings in the trial court and the opinion of the Nebraska Supreme Court affirming respondent's conviction do not justify a conclusion that the trial judge made his own determination of voluntariness as required by See In addition, we accept the Court of Appeals' determination that all subsequent findings of voluntariness were made at least in part in reliance on the first, procedurally defective, determination of the *484 admissibility of the confessions.[*] However, as indicated in our opinion in the appropriate remedy when a federal court finds a error in a prior state proceeding is to allow the State a reasonable time to make an errorfree determination on the voluntariness of the confession at issue. Hence it was error for the Court of Appeals to pass judgment on
|
Justice Stevens
| 2,000 | 16 |
dissenting
|
Raygor v. Regents of Univ. of Minn.
|
https://www.courtlistener.com/opinion/118484/raygor-v-regents-of-univ-of-minn/
|
The federal interest in the fair and efficient administration of justice is both legitimate and important. To vindicate that interest federal rulemakers and judges have occasionally imposed burdens on the States and their judiciaries. Thus, for example, Congress may provide for the adjudication of federal claims in state courts, and may direct that state litigation be stayed during the pendency of bankruptcy proceedings, 11 U.S. C. 362(a). In appropriate cases federal judges may enjoin the prosecution of state judicial proceedings.[1] By virtue of the Supremacy Clause in Article VI of the Constitution, in all such cases the federal rules prevail "and the Judges in every *550 State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." The "supplemental jurisdiction" provisions of the Judicial Improvements Act of 1990, 28 U.S. C. 1367 (1994 ed.), impose a lesser burden on the States than each of these examples, and do so only in a relatively narrow category of cases those in which both federal- and state-law claims are so related "that they form part of the same case or controversy." Adopting a recommendation of the Federal Courts Committee, Congress in 1367(a) overruled our misguided decision in and expressly authorized federal courts to entertain such cases even when the state-law claim is against a party over whom there is no independent basis for federal jurisdiction.[2] Subsection (d) of 1367 responds to the risk that the plaintiff's state-law claim, even though timely when filed as a part of the federal lawsuit, may be dismissed after the state period of limitations has expired. To avoid the necessity of duplicate filings, it provides that the state statute shall be tolled while the claim is pending in federal court and for 30 days thereafter.[3] The impact of this provision on the defendant is minimal, because the timely filing in federal court provides it with the same notice as if a duplicate complaint had also been filed in state court. *551 The tolling of statutes of limitations is, of course, an ancient [4] and widespread practice.[5] Some federal tolling statutes apply only to federal limitations periods,[6] but others apply to state statutes as well.[7] All of these statutes are broadly worded, and none of them excludes any special category of defendants. The plain text of all these statutes, including *552 1367, applies to cases in which a State, or an arm of a State, is named as a defendant. Thus, as the Minnesota Court of Appeals correctly held, "the plain language of subsection (d) allows tolling of any claim dismissed
|
Justice Stevens
| 2,000 | 16 |
dissenting
|
Raygor v. Regents of Univ. of Minn.
|
https://www.courtlistener.com/opinion/118484/raygor-v-regents-of-univ-of-minn/
|
language of subsection (d) allows tolling of any claim dismissed by a federal district court, whether dismissed on Eleventh Amendment grounds or at the discretion of the federal district court under subsection (c)."[8] The Minnesota Supreme Court reversed, because it considered this Court's holding in to compel the view that 1367(d) was an invalid attempt by Congress to make the State of Minnesota subject to suit in state court without its consent.[9] Unlike the State in Alden, however, Minnesota has given its consent to be sued in its own courts for alleged violations of the MHRA within 45 days of receipt of a notice letter from the State Department of Human Rights. The question whether that timeliness condition may be tolled during the pendency of an action filed in federal court within the 45-day period is quite different from the question whether Congress can entirely abrogate the State's sovereign immunity defense. For the Court's Eleventh Amendment jurisprudence concerns the question whether an unconsenting sovereign may be sued, rather than when a consenting sovereign may be sued. The Court recognized this crucial distinction in a case in which the application of equitable tolling to a waiver of federal sovereign immunity was at issue. Although the Court required the Government's assent as to whether it may be sued to be "unequivocally expressed," it presumed the rule of equitable tolling applied once assent was established because tolling would "amoun[t] to little, if any, broadening of the congressional waiver." The Court *553 reached this holding despite the inclusion in the waiver provision of a limitations period shorter than the one for suits against private parties. The waiver at issue in this case is more unequivocally expressed than the one in Irwin. Minnesota has consented to suit under the MHRA by agreeing to be treated in the same manner as a private employer.[10] The 45-day limitations period is thus applicable to any suit under the MHRA, not only those against state entities. In light of such a clear consent to suit, unencumbered by any special limitations period, it is evident that tolling under 1367(d) similarly "amounts to little, if any, broadening of the [legislature's] waiver."[11]Ibid. Given the fact that the timely filing in Federal Court served the purposes of the 45-day period,[12] it *554 seems to me quite clear that the application of the tolling rule does not raise a serious constitutional issue.[13] It is true, of course, that the federal tolling provision, like any other federal statute that pre-empts state law, "affects the federal balance" even though it does not "constitut[e] an abrogation of
|
Justice Stevens
| 2,000 | 16 |
dissenting
|
Raygor v. Regents of Univ. of Minn.
|
https://www.courtlistener.com/opinion/118484/raygor-v-regents-of-univ-of-minn/
|
balance" even though it does not "constitut[e] an abrogation of state sovereign immunity." Ante, at 544. But that consequence is surely not sufficient to exclude state parties from the coverage of statutes of general applicability like the Bankruptcy Code, the Soldiers' and Sailors' Civil Relief Act of 1940, or any other federal statute whose general language creates a conflict with a pre-existing rule of state law.[14] In my judgment, the specific holding in represented a serious distortion of the federal balance intended by the Framers of our Constitution. If that case is now to provide the basis for a rule of construction that will exempt state parties from the coverage of federal statutes of general applicability, whether or not abrogation of Eleventh Amendment immunity is at stake, it will foster unintended and unjust consequences and impose serious burdens on an already-overworked Congress.[15] Indeed, that risk provides *555 an additional reason for reexamining that misguided decision at the earliest opportunity. Accordingly, I respectfully dissent.
|
Justice Burger
| 1,981 | 12 |
majority
|
Haig v. Agee
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https://www.courtlistener.com/opinion/110554/haig-v-agee/
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The question presented is whether the President, acting through the Secretary of has authority to revoke a passport on the ground that the holder's activities in foreign countries are causing or are likely to cause serious damage to the national security or foreign policy of the United s. *283 I A Philip Agee, an American citizen, currently resides in West Germany.[1] From 1957 to 1968, he was employed by the Central Intelligence Agency. He held key positions in the division of the Agency that is responsible for covert intelligence gathering in foreign countries. In the course of his duties at the Agency, Agee received training in clandestine operations, including the methods used to protect the identities of intelligence employees and sources of the United s overseas. He served in undercover assignments abroad and came to know many Government employees and other persons supplying information to the United s. The relationships of many of these people to our Government are highly confidential; many are still engaged in intelligence gathering. In 14, Agee called a press conference in London to announce his "campaign to fight the United s CIA wherever it is operating." He declared his intent "to expose CIA officers and agents and to take the measures necessary to drive them out of the countries where they are operating."[2]*284 Since 14, Agee has, by his own assertion, devoted consistent effort to that program, and he has traveled extensively in other countries in order to carry it out. To identify CIA personnel in a particular country, Agee goes to the target country and consults sources in local diplomatic circles whom he knows from his prior service in the United s Government. He recruits collaborators and trains them in clandestine techniques designed to expose the "cover" of CIA employees and sources. Agee and his collaborators have repeatedly and publicly identified individuals and organizations located in foreign countries as undercover CIA agents, employees, or sources.[3] The record reveals that the identifications divulge classified information,[4] violate Agee's express contract not to make any public statements about Agency matters without prior clearance by the Agency,[5] have prejudiced *285 the ability of the United s to obtain intelligence,[6] and have been followed by episodes of violence against the persons and organizations identified.[7] *286 In December 19, the Secretary of revoked Agee's passport and delivered an explanatory notice to Agee in West Germany. The notice states in part: "The Department's action is predicated upon a determination made by the Secretary under the provisions of [22 CFR] Section 51.70 (4) that your activities abroad are causing or are likely
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(4) that your activities abroad are causing or are likely to cause serious damage to the national security or the foreign policy of the United s. The reasons for the Secretary's determination are, in summary, as follows: Since the early 10's it has been your stated intention to conduct a continuous campaign to disrupt the intelligence operations of the United s. In carrying out that campaign you have travelled in various countries (including, among others, Mexico, the United Kingdom, Denmark, Jamaica, Cuba, and Germany), and your activities in those countries have caused serious damage to the national security and foreign policy of the United s. Your stated intention to continue such activities threatens additional damage of the same kind."[8] *287 The notice also advised Agee of his right to an administrative hearing[9] and offered to hold such a hearing in West Germany on 5 days' notice. Agee at once filed suit against the Secretary.[10] He alleged that the regulation invoked by the Secretary, (4) has not been authorized by Congress and is invalid; that the regulation is impermissibly overbroad; that the revocation prior to a hearing violated his Fifth Amendment right to procedural due process; and that the revocation violated a Fifth Amendment liberty interest in a right to travel and a First Amendment right to criticize Government policies. He sought declaratory and injunctive relief, and he moved for summary judgment on the question of the authority to promulgate the regulation and on the constitutional claims. For purposes of that motion, Agee conceded the Secretary's factual averments[11] and his claim that Agee's activities were causing or were likely to cause serious damage to the national security or foreign policy of the United s.[] The District Court held that the regulation exceeded the statutory powers of the Secretary under the Passport Act of 1926, 22 U.S. C. 211a,[13] granted summary *288 judgment for Agee, and ordered the Secretary to restore his passport. B A divided panel of the Court of Appeals affirmed. It held that the Secretary was required to show that Congress had authorized the regulation either by an express delegation or by implied approval of a "substantial and consistent" administrative practice, The court found no express statutory authority for the revocation. It perceived only one other case of actual passport revocation under the regulation since it was promulgated and only five other instances prior to that in which passports were actually denied "even arguably for national security or foreign policy reasons." 203 U. S. App. D. C., at -86. The Court of Appeals took note of the Secretary's reliance
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Haig v. Agee
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The Court of Appeals took note of the Secretary's reliance on "a series of s, regulations, proclamations, orders and advisory opinions dating back to 1856," but declined to consider those authorities, reasoning that "the criterion for establishing congressional assent by inaction is the actual imposition of sanctions and not the mere assertion of power." -87. The Court of Appeals held that its was not sufficient that "Agee's conduct may be considered by some to border on treason," since "[w]e are bound by the law as we find it." The court also regarded it as material that most of the Secretary's authorities dealt with powers of the Executive Branch "during time of war or national emergency"[14]*289 or with respect to persons "engaged in criminal conduct."[15] at We granted certiorari sub nom. and stayed the judgment of the Court of Appeals until our disposition of the case on the grant of certiorari.[16] II The principal question before us is whether the authorizes the action of the Secretary pursuant to the policy announced by the challenged regulation.[17] A 1 Although the historical background that we develop later *290 is important, we begin with the language of the See, e. g., Universities Research ; The Passport Act of 1926 provides in pertinent part: "The Secretary of may grant and issue passports, and cause passports to be granted, issued, and verified in foreign countries by diplomatic representatives of the United s under such rules as the President shall designated and prescribe for and on behalf of the United s, and no other person shall grant, issue, or verify such passports." 22 U.S. C. 211a (16 ed., Supp. IV). This language is unchanged since its original enactment in 1926.[18] The Passport Act does not in so many words confer upon the Secretary a power to revoke a passport. Nor, for that matter, does it expressly authorize denials of passport applications.[19] Neither, however, does any expressly limit those powers. It is beyond dispute that the Secretary has the power to deny a passport for reasons not specified in the s. For example, in the Court recognized congressional acquiescence in Executive policies of refusing passports to applicants "participating in illegal conduct, trying to escape the toils of the law, promoting passport frauds, or otherwise engaging in conduct which would violate the laws of the United s." at 7. In the Court held that "the weightiest *291 considerations of national security" authorized the Secretary to restrict travel to Cuba at the time of the Cuban missile Agee concedes that if the Secretary may deny a passport application for a
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Haig v. Agee
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if the Secretary may deny a passport application for a certain reason, he may revoke a passport on the same ground.[20] 2 Particularly in light of the "broad rule-making authority granted in the [1926] Act," U. S., at a consistent administrative construction of that must be followed by the courts "`unless there are compelling indications that it is wrong.'" E. I. du Pont de Nemours & quoting Red Lion Broadcasting ; see This is especially so in the areas of foreign policy and national security, where congressional silence is not to be equated with congressional disapproval.[21] In United the volatile nature of problems confronting the Executive in foreign policy and national defense was underscored: "In this vast external realm, with its important, complicated, delicate and manifold problems, the President alone has the power to speak or listen as a representative of the nation. As Marshall said in his great argument of March 7, 1800, in the House of Representatives, `The President is the sole organ of the nation in its external relations, and its sole representative with foreign nations.' " *292 Applying these considerations to statutory construction, the Court observed: "[B]ecause of the changeable and explosive nature of contemporary international relations, and the fact that the Executive is immediately privy to information which cannot be swiftly presented to, evaluated by, and acted upon by the legislature, Congressin giving the Executive authority over matters of foreign affairsmust of necessity paint with a brush broader than that it customarily wields in domestic areas." U. S., at 17 Matters intimately related to foreign policy and national security are rarely proper subjects for judicial intervention. In (19), the Court observed that matters relating "to the conduct of foreign relations are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference." ; accord, Chicago & Southern Air Lines, B 1 A passport is, in a sense, a letter of introduction in which the issuing sovereign vouches for the bearer and requests other sovereigns to aid the bearer. 3 G. Hackworth, Digest of International Law 268, p. 499 (1942). Very early, the Court observed: "[A passport] is a document, which, from its nature and object, is addressed to foreign powers; purporting only to be a request, that the bearer of it may pass safely and freely; and is to be considered rather in the character of a political document, by which the bearer is recognised, in foreign countries, as an American citizen; and *293 which, by usage and the law of nations, is received as evidence of
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and the law of nations, is received as evidence of the fact." With the enactment of travel control legislation making a passport generally a requirement for travel abroad,[22] a passport took on certain added characteristics. Most important for present purposes, the only means by which an American can lawfully leave the country or return to itabsent a Presidentially granted exceptionis with a passport. See 8 U.S. C. 1185 (16 ed., Supp. IV). As a travel control document, a passport is both proof of identity and proof of allegiance to the United s. Even under a travel control however, a passport remains in a sense a document by which the Government vouches for the bearer and for his conduct. The history of passport controls since the earliest days of the Republic shows congressional recognition of Executive authority to withhold passports on the basis of substantial reasons of national security and foreign Prior to 1856, when there was no on the subject, the common perception was that the issuance of a passport was committed to the sole discretion of the Executive and that the Executive would exercise this power in the interests of the national security and foreign policy of the United s.[23] This derived from the generally accepted view that foreign policy *294 was the province and responsibility of the Executive.[24] From the outset, Congress endorsed not only the underlying premise of Executive authority in the areas of foreign policy and national security, but also its specific application to the subject of passports. Early Congresses enacted s expressly recognizing the Executive authority with respect to passports.[25] The first Passport Act, adopted in 1856, provided that the Secretary of "shall be authorized to grant and issue passports under such rules as the President shall designate and prescribe for and on behalf of the United s" 23,[26] This broad and permissive language worked no change in the power of the Executive to issue passports; nor was it intended to do so. The Act was passed to centralize passport authority in the Federal Government[27] and specifically in the Secretary of[28] In all other respects, the 1856 Act "merely confirmed an authority already possessed and *295 exercised by the Secretary of This authority was ancillary to his broader authority to protect American citizens in foreign countries and was necessarily incident to his general authority to conduct the foreign affairs of the United s under the Chief Executive." Senate Committee on Government Operations, Reorganization of the Passport Functions of the Department of 86th Cong., 2d Sess., 13 (Comm. Print 1960). The President and the Secretary of
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Justice Burger
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13 (Comm. Print 1960). The President and the Secretary of consistently construed the 1856 Act to preserve their authority to withhold passports on national security and foreign policy grounds. Thus, as an emergency measure in 1861, the Secretary issued orders prohibiting persons from going abroad or entering the country without passports; denying passports to citizens who were subject to military service unless they were bonded; and absolutely denying passports to persons "on errands hostile and injurious to the peace of the country and dangerous to the Union." 3 J. Moore, A Digest of International Law 920 (1906); U. S. Dept. of The American Passport 49-54 (1898).[29] An 1869 opinion of Attorney General Hoar held that the granting of a passport was not "obligatory in any case." 13 Op. Atty. Gen. 89, 92. This was elaborated in 1901 in an opinion of Attorney General Knox, in which he stated: "Substantial reasons exist for the use by Congress of the word `may' in connection with authority to issue passports. Circumstances are conceivable which would make it most inexpedient for the public interests for this *296 country to grant a passport to a citizen of the United s." 23 Op. Atty. Gen. 509, 511. In 1903, President Theodore Roosevelt promulgated a rule providing that "[t]he Secretary of has the right in his discretion to refuse to issue a passport, and will exercise this right towards anyone who, he has reason to believe, desires a passport to further an unlawful or improper purpose."[30] Subsequent Executive Orders issued between 1907 and 1917 cast no doubt on this position.[31] This policy was enforced in peacetime years to deny passports to citizens whose conduct abroad was "likely to embarrass the United s"[32] or who were "disturbing, or endeavoring to disturb, the relations of this country with the representatives of foreign countries."[33] By enactment of the first travel control in 1918,[34]*2 Congress made clear its expectation that the Executive would curtail or prevent international travel by American citizens if it was contrary to the national security. The legislative history reveals that the principal reason for the 1918 was fear that "renegade Americans" would travel abroad and engage in "transference of important military information" to persons not entitled to it.[35] The 1918 left the power to make exceptions exclusively in the hands of the Executive, without articulating specific standards. Unless the Secretary had power to apply national security criteria in passport decisions, the purpose of the Travel Control Act would plainly have been frustrated. Against this background, and while the 1918 provisions were still in effect, Congress enacted the
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Justice Burger
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Haig v. Agee
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the 1918 provisions were still in effect, Congress enacted the Passport Act of 1926. The legislative history of the is sparse. However, Congress used language which is identical in pertinent part to that in the 1856 ( ), as amended,[36] and the legislative history clearly shows congressional awareness of the Executive [37] There is no evidence of any intent to repudiate the longstanding administrative construction.[38] Absent such evidence, we conclude that Congress, in *298 1926, adopted the longstanding administrative construction of the 1856 See The Executive construed the 1926 Act to work no change in prior practice and specifically interpreted it to authorize denial of a passport on grounds of national security or foreign Indeed, by an unbroken line of Executive Orders,[39] regulations,[40] instructions to consular officials.[41] and notices to passport holders,[42] the President and the Department of left no doubt that likelihood of damage to national security or foreign policy of the United s was the single most important criterion in passport decisions. The regulations are instructive. The 19 version authorized denial of passports to citizens engaged in activities which would violate laws designed to protect the security of the United s "[i]n order to promote the national interest by assuring that the conduct of foreign relations shall be free *299 from unlawful interference." (19). The 1956 amendment to this regulation provided that a passport should be denied to any person whose "activities abroad would: (a) Violate the laws of the United s; be prejudicial to the orderly conduct of foreign relations; or (c) otherwise be prejudicial to the interests of the United s." 22 CFR 51.136 This regulation remained in effect continuously until 1966. This history of administrative construction was repeatedly communicated to Congress, not only by routine promulgation of Executive Orders and regulations, but also by specific presentations, including 1957 and 1966 reports by the Department of explaining the 1956 regulation[43] and a 1960 Senate Staff Report which concluded that "the authority to issue or withhold passports has, by precedent and law, been vested in the Secretary of as a part of his responsibility to protect American citizens traveling abroad, and what he considered to be the best interests of the Nation."[44] In 1966, the Secretary of [45] promulgated the regulations at issue in this case. 22 CFR 51.70 (4), 51.71 (a) Closely paralleling the 1956 regulation, these provisions authorize revocation of a passport where "[t]he Secretary determines that the national's activities abroad are *300 causing or are likely to cause serious damage to the national security or the foreign policy of the United s."[46] 2 recognized
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Justice Burger
| 1,981 | 12 |
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Haig v. Agee
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or the foreign policy of the United s."[46] 2 recognized that congressional acquiescence may sometimes be found from nothing more than silence in the face of an administrative U.S., ; see ; Norwegian Nitrogen ; Here, however, the inference of congressional approval "is supported by more than mere congressional inaction." U. S., -. Twelve years after the promulgation of the regulations at issue and 22 years after promulgation of the similar 1956 regulation, Congress enacted the making it unlawful to travel abroad without a passport even in peacetime. 8 U.S. C. 1185 (16 ed., Supp. IV).[47] Simultaneously, Congress amended the Passport Act of 1926 to provide that "[u]nless authorized by law," in the absence of war, armed hostilities, or imminent danger to travelers, a passport may not be geographically restricted.[48] Title 8 U.S. C. 1185 (16 ed., Supp. IV) must be read in pari materia with the *301 Passport Act. -; see 2A C. Sands, Sutherland on Statutory Construction 51.03, p. 299 (4th ed. 13); cf.[49] The 18 amendments are weighty evidence of congressional approval of the Secretary's interpretation, particularly that in the 1966 regulations. Despite the longstanding and officially promulgated view that the Executive had the power to withhold passports for reasons of national security and foreign policy, Congress in 18, "though it once again enacted legislation relating to passports, left completely untouched the broad rule-making authority granted in the earlier Act." at ; accord,[50] 3 Agee argues that the only way the Executive can establish implicit congressional approval is by proof of longstanding and consistent enforcement of the claimed power: that is, by showing that many passports were revoked on national *302 security and foreign policy grounds. For this proposition, he relies on Kent, 357 U. S.,[51] A necessary premise for Agee's contention is that there were frequent occasions for revocation and that the claimed Executive power was exercised in only a few of those cases. However, if there were no occasionsor fewto call the Secretary's authority into play, the absence of frequent instances of enforcement is wholly irrelevant. The exercise of a power emerges only in relation to a factual situation, and the continued validity of the power is not diluted simply because there is no need to use it. The history is clear that there have been few situations involving substantial likelihood of serious damage to the national security or foreign policy of the United s as a result of a passport holder's activities abroad, and that in the cases which have arisen, the Secretary has consistently exercised his power to withhold passports. Perhaps the most
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consistently exercised his power to withhold passports. Perhaps the most notable example of enforcement of the administrative policy, which surely could not have escaped the attention of Congress, was the 1948 denial of a passport to a Member of Congress who sought to go abroad to support a movement in Greece to overthrow the existing government.[] Another example was the 1954 revocation of a passport held by a man who was supplying arms to groups abroad whose interests were contrary to positions taken by the United s.[] In 10, the Secretary revoked passports of two persons who sought to travel to the site of an international airplane hijacking.[54] See also Note, 61 Yale L. J. 170, 174- (19). *303 The Secretary has construed and applied his regulations consistently, and it would be anomalous to fault the Government because there were so few occasions to exercise the announced policy and practice. Although a pattern of actual enforcement is one indicator of Executive policy, it suffices that the Executive has "openly asserted" the power at issue. U. S., at 9; see Kent is not to the contrary. There, it was shown that the claimed governmental policy had not been enforced consistently. The Court stressed that "as respects Communists these are scattered rulings and not consistently of one pattern." 357 U.S., at 8. In other words, the Executive had allowed passports to some Communists, but sought to deny one to Kent. The Court had serious doubts as to whether there was in reality any definite policy in which Congress could have acquiesced. Here, by contrast, there is no basis for a claim that the Executive has failed to enforce the policy against others engaged in conduct likely to cause serious damage to our national security or foreign It would turn Kent on its head to say that simply because we have had only a few situations involving conduct such as that in this record, the Executive lacks the authority to deal with the problem when it is encountered.[] Agee also contends that the statements of Executive policy are entitled to diminished weight because many of them concern the powers of the Executive in wartime. However, the provides no support for this argument. History eloquently attests that grave problems of national security and foreign policy are by no means limited to times of formally declared war.[56] *304 Relying on the statement of the Court in Kent that "illegal conduct" and problems of allegiance were, "so far as relevant here, the only [grounds] which it could fairly be argued were adopted by Congress in light
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| 1,981 | 12 |
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Haig v. Agee
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could fairly be argued were adopted by Congress in light of prior administrative practice," Agee argues that this enumeration was exclusive and is controlling here. This is not correct. The Kent Court had no occasion to consider whether the Executive had the power to revoke the passport of an individual whose conduct is damaging the national security and foreign policy of the United s. Kent involved denials of passports solely on the basis of political beliefs entitled to First Amendment protection. See Although finding it unnecessary to reach the merits of that constitutional problem, the Kent Court emphasized the fact that "[w]e deal with beliefs, with associations, with ideological matters." In particular, the Court noted that the applicants were "being denied their freedom of movement solely because of their refusal to be subjected to inquiry into their beliefs and associations. They do not seek to escape the law nor to violate it. They may or may not be Communists. But assuming they are, the only law which Congress has passed expressly curtailing the movement of Communists across our borders has not yet become effective. It would therefore be strange to infer that pending the effectiveness of that law, the Secretary has been silently granted by Congress the larger, the more pervasive power to curtail in his discretion the free movement of citizens in order to satisfy himself about their beliefs or associations." *305 The protection accorded beliefs standing alone is very different from the protection accorded conduct. Thus, in the Court held that a which, like the policy at issue in Kent, denied passports to Communists solely on the basis of political beliefs unconstitutionally "establishes an irrebuttable presumption that individuals who are members of the specified organizations will, if given passports, engage in activities inimical to the security of the United s." The Court recognized that the legitimacy of the objective of safeguarding our national security is "obvious and unarguable." The Court explained that the at issue was not the least restrictive alternative available: "The prohibition against travel is supported only by a tenuous relationship between the bare fact of organizational membership and the activity Congress sought to proscribe." Beliefs and speech are only part of Agee's "campaign to fight the United s CIA." In that sense, this case contrasts markedly with the facts in Kent and Aptheker.[57] No presumptions, rebuttable or otherwise, are involved, for Agee's *306 conduct in foreign countries presents a serious danger to American officials abroad and serious danger to the national security.[58] We hold that the policy announced in the challenged regulations is "sufficiently substantial
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Justice Burger
| 1,981 | 12 |
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Haig v. Agee
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the policy announced in the challenged regulations is "sufficiently substantial and consistent" to compel the conclusion that Congress has approved it. See U. S., at III Agee also attacks the Secretary's action on three constitutional grounds: first, that the revocation of his passport impermissibly burdens his freedom to travel; second, that the action was intended to penalize his exercise of free speech and deter his criticism of Government policies and practices; and third, that failure to accord him a prerevocation hearing violated his Fifth Amendment right to procedural due process. In light of the express language of the passport regulations, which permits their application only in cases involving likelihood of "serious damage" to national security or foreign policy, these claims are without merit. Revocation of a passport undeniably curtails travel, but the freedom to travel abroad with a "letter of introduction" in the form of a passport issued by the sovereign is subordinate to national security and foreign policy considerations; as such, it is subject to reasonable governmental regulation. The Court has made it plain that the freedom to travel outside the United s must be distinguished from the right to travel within the United s. This was underscored in : "Aznavorian urges that the freedom of international travel is basically equivalent to the constitutional right to interstate travel, recognized by this Court for over 100 years. ; ; ; ; Passenger Cases, (Taney, C. J., dissenting). But this Court has often pointed out the crucial difference between the freedom to travel internationally and the right of interstate travel. "`The constitutional right of interstate travel is virtually unqualified, United s v. Guest, ; (11). By contrast the "right" of international travel has been considered to be no more than an aspect of the "liberty" protected by the Due Process Clause of the Fifth Amendment. As such this "right," the Court has held, can be regulated within the bounds of due process.' (Citations omitted.) 4 n. 6." It is "obvious and unarguable" that no governmental interest is more compelling than the security of the Nation. 378 U. S., ; accord 351 U.S. 6, ; see Protection of the foreign policy of the United s is a governmental interest of great importance, since foreign policy and national security considerations cannot neatly be compartmentalized. Measures to protect the secrecy of our Government's foreign intelligence operations plainly serve these interests. Thus, in Snepp v. United s, we held that "[t]he Government has a compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential
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Justice Burger
| 1,981 | 12 |
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Haig v. Agee
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our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." See also The Court in United properly emphasized: "[The President] has his confidential sources of information. He has his agents in the form of diplomatic, *308 consular and other officials. Secrecy in respect of information gathered by them may be highly necessary, and the premature disclosure of it productive of harmful results." Accord, Chicago & Southern Air Lines, 333 U. S., 1; The Federalist No. 64, pp. 392-393 (Mentor ed. 1961). Not only has Agee jeopardized the security of the United s, but he has also endangered the interests of countries other than the United s[59]thereby creating serious problems for American foreign relations and foreign Restricting Agee's foreign travel, although perhaps not certain to prevent all of Agee's harmful activities, is the only avenue open to the Government to limit these activities.[60] Assuming, arguendo, that First Amendment protections reach beyond our national boundaries, Agee's First Amendment claim has no foundation. The revocation of Agee's passport rests in part on the content of his speech: specifically, his repeated disclosures of intelligence operations and names of intelligence personnel. Long ago, however, this Court recognized that "[n]o one would question but that a government might prevent actual obstruction to its recruiting service or the publication of the sailing dates of transports or the number and location of troops." 283 U.S. 6, citing Z. Chafee, Freedom of Speech 10 (1920). Agee's disclosures, among other *309 things, have the declared purpose of obstructing intelligence operations and the recruiting of intelligence personnel. They are clearly not protected by the Constitution. The mere fact that Agee is also engaged in criticism of the Government does not render his conduct beyond the reach of the law. To the extent the revocation of his passport operates to inhibit Agee, "it is an inhibition of action," rather than of speech. U. S., at 16-17 Agee is as free to criticize the United s Government as he was when he held a passportalways subject, of course, to express limits on certain rights by virtue of his contract with the Government.[61] See Snepp v. United s, On this record, the Government is not required to hold a prerevocation In we held that federal employees who hold "sensitive" positions "where they could bring about any discernible adverse effects on the Nation's security" may be suspended without a presuspension 351 U.S., at -547. For the same reasons, when there is a substantial likelihood of "serious damage" to national security or foreign policy as a result
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Justice Scalia
| 1,997 | 9 |
majority
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Lambrix v. Singletary
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https://www.courtlistener.com/opinion/118109/lambrix-v-singletary/
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We granted certiorari in this case to consider whether a prisoner whose conviction became final before our decision in is foreclosed from relying on that decision in a federal habeas corpus proceeding because it announced a "new rule" as defined in I On February 5, 1983, Cary Michael Lambrix and his girlfriend, Frances met Clarence Moore and Aleisha Bryant at a local tavern. The two couples returned to Lambrix's trailer for dinner, where Lambrix killed Moore and Bryant in brutal fashion. Lambrix was convicted on two counts of first-degree murder. In the sentencing phase of trial, the jury rendered an advisory verdict recommending *521 that the trial court sentence Lambrix to death on both counts. The trial court, after finding five aggravating circumstances in connection with the murder of Moore, four aggravating circumstances in connection with the murder of Bryant, and no mitigating circumstances as to either murder, sentenced Lambrix to death on both counts. Lambrix's conviction and sentence were upheld on direct appeal by the Supreme Court. After the courts denied his repeated efforts to obtain collateral relief, ; ; Lambrix filed a petition for a writ of habeas corpus pursuant to 28 U.S. C. 2254 in the United s District Court for the Southern District of ; that court rejected all of his claims. While Lambrix's appeal was pending before the Court of Appeals for the Eleventh Circuit, this Court decided which held that if the sentencing judge in a "weighing" (i. e., a that requires specified aggravating circumstances to be weighed against any mitigating circumstances at the sentencing phase of a capital trial) is required to give deference to a jury's advisory sentencing recommendation, then neither the jury nor the judge is constitutionally permitted to weigh invalid aggravating circumstances. Since is such a and since one of Lambrix's claims was that his sentencing jury was improperly instructed on the "especially heinous, atrocious, or cruel" (HAC) aggravator, had obvious relevance to his habeas petition. Rather than address this issue in the first instance, however, the Eleventh Circuit held its proceedings in abeyance to permit Lambrix to present his claim to the state courts. The Supreme Court rejected Lambrix's claim without considering its merits on the ground that the claim was procedurally barred. That court explained that although Lambrix had properly preserved his objection at trial by requesting a limiting instruction on the HAC aggravator, he had failed to raise the issue on direct The Supreme Court also rejected Lambrix's claim that the procedural bar should be excused because his appellate counsel was ineffective in failing to raise the
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Justice Scalia
| 1,997 | 9 |
majority
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Lambrix v. Singletary
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his appellate counsel was ineffective in failing to raise the forfeited issue, explaining that this claim was itself procedurally barred and was, in any event, meritless. After the Supreme Court entered judgment against Lambrix, the Eleventh Circuit adjudicated his habeas petition. Without even acknowledging the procedural barwhich was expressly raised and argued by the the Court of Appeals proceeded to address the claim, and determined that announced a new rule which cannot be applied retroactively on federal habeas under We granted certiorari. II Before turning to the question presented in this case, we pause to consider the 's contention that Lambrix's claim is procedurally barred because he failed to contend that the jury was instructed with a vague HAC aggravator on his direct appeal to the Supreme Court. According to the the Supreme Court "has consistently required that an issue must have been objected to at trial and pursued on direct appeal in order to be reviewed in postconviction proceedings." Brief for Respondent 30, citing and (Fla.), cert. denied, In we reaffirmed that this Court "will not review a question of federal law decided by a state court if the decision of that court *523 rests on a state law ground that is independent of the federal question and adequate to support the judgment." See also We in fact lack jurisdiction to review such independently supported judgments on direct appeal: Since the state-law determination is sufficient to sustain the decree, any opinion of this Court on the federal question would be purely advisory. ; see also Sochor v. The "independent and adequate state ground" doctrine is not technically jurisdictional when a federal court considers a state prisoner's petition for habeas corpus pursuant to 28 U.S. C. 2254, since the federal court is not formally reviewing a judgment, but is determining whether the prisoner is "in custody in violation of the Constitution or laws or treaties of the United s." We have nonetheless held that the doctrine applies to bar consideration on federal habeas of federal claims that have been defaulted under state law. ; see also discussing and Ex parte Spencer, ; at Application of the "independent and adequate state ground" doctrine to federal habeas review is based upon equitable considerations of federalism and comity. It "ensures that the s' interest in correcting their own mistakes is respected in all federal habeas cases." "[A] habeas petitioner who has failed to meet the 's procedural requirements for presenting his federal claims has deprived the state courts of an opportunity to address those claims in the first instance." If the "independent
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address those claims in the first instance." If the "independent and adequate state ground" doctrine were not applied, a federal district court or court of appeals would be able to review claims that this Court would have been unable to consider on direct review. See *524 We have never had occasion to consider whether a federal court should resolve a 's contention that a petitioner's claim is procedurally barred before considering whether his claim is barred. Our opinions, howevermost particularly, certainly suggest that the proceduralbar issue should ordinarily be considered first. It was speculated at oral argument that the Court of Appeals may have resolved the issue without first considering procedural bar because our opinions have stated that the retroactivity decision is to be made as a "threshold matter." E. ; That simply means, however, that the issue should be addressed "before considering the merits of [a] claim." 510 U.S., at It does not mean that the inquiry is antecedent to consideration of the general prerequisites for federal habeas corpus which are unrelated to the merits of the particular claim such as the requirement that the petitioner be "in custody," see 28 U.S. C. 2254(a), or that the state-court judgment not be based on an independent and adequate state ground. Constitutional issues are generally to be avoided, and as even a cursory review of this Court's new-rule cases reveals (including our discussion in Part IV, infra ), the inquiry requires a detailed analysis of federal constitutional law. See, e. ; ; ; We are somewhat puzzled that the Eleventh Circuit, after having held proceedings in abeyance while petitioner brought his claim in state court, did not so much as mention the Supreme Court's determination that Lambrix's claim was procedurally barred. The of raised that point before both the District Court and the Court of Appeals, going so far as to reiterate it in a postjudgment *525 Motion for Clarification and/or Modification of Opinion before the Court of Appeals, reprinted at App. 176. A 's procedural rules are of vital importance to the orderly administration of its criminal courts; when a federal court permits them to be readily evaded, it undermines the criminal justice system. We do not mean to suggest that the procedural-bar issue must invariably be resolved first; only that it ordinarily should be. Judicial economy might counsel giving the question priority, for example, if it were easily resolvable against the habeas petitioner, whereas the procedural-bar issue involved complicated issues of state law. Cf. 28 U.S. C. 2254(b)(2) (permitting a federal court to deny a habeas petition on the
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a federal court to deny a habeas petition on the merits notwithstanding the applicant's failure to exhaust state remedies). Despite our puzzlement at the Court of Appeals' failure to resolve this case on the basis of procedural bar, we hesitate to resolve it on that basis ourselves. Lambrix asserts several reasons why his claim is not procedurally barred, which seem to us insubstantial but may not be so; as we have repeatedly recognized, the courts of appeals and district courts are more familiar than we with the procedural practices of the s in which they regularly sit, see, e. ; County Court of Ulster Rather than prolong this litigation by a remand, we proceed to decide the case on the grounds that the Court of Appeals used. III employs a three-stage sentencing procedure. First, the jury weighs statutorily specified aggravating circumstances against any mitigating circumstances, and renders an "advisory sentence" of either life imprisonment or death. Fla. Stat. 921.141(2) Second, the trial court weighs the aggravating and mitigating circumstances, and enters a sentence of life imprisonment or death; *526 if the latter, its findings must be set forth in writin 921.141(3). The jury's advisory sentence is entitled to "great weight" in the trial court's determination, but the court has an independent obligation to determine the appropriate punishment, Third, the Supreme Court automatically reviews all cases in which the defendant is sentenced to death. 921.141(4). Lambrix's jury, which was instructed on five aggravating circumstances, recommended that he be sentenced to death for each murder. The trial court found five aggravating circumstances as to Moore's murder and four as to Bryant's, including that each murder was "especially heinous and atrocious"; it found no mitigating circumstances as to either murder; it concluded that the aggravating circumstances outweighed the mitigating, and sentenced Lambrix to death on each count. App. 20-21. Although Lambrix failed to raise any claims concerning the sentencing procedure on direct appeal, the Supreme Court agreed with the trial court's findings as to the aggravating circumstances. Lambrix contends that the jury's consideration of the HAC aggravator violated the Eighth Amendment because the jury instructions concerning this circumstance failed to provide sufficient guidance to limit the jury's discretion. Like the Eleventh Circuit, see 72 F.3d, at we assume, arguendo, that this was so. Lambrix further contends (and this is at the heart of the present case) that the trial court's independent weighing did not cure this error. Prior to our opinion in the had contended that Lambrix was not entitled to relief because the sentencing judge properly found and weighed a narrowed HAC
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the sentencing judge properly found and weighed a narrowed HAC aggravator. In however, we established the principle that if a "weighing" requires the sentencing trial judge to give deference to a jury's advisory recommendation, neither the judge nor the jury is constitutionally permitted *527 to weigh invalid aggravating circumstances. Lambrix seeks the benefit of that principle; the contends that it constitutes a new rule under and thus cannot be relied on in a federal habeas corpus proceedin[1] In we held that, in general, "new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced." -311. To apply a federal court engages in a three-step process. First, it determines the date upon which the defendant's conviction became final. See Second, it must "`[s]urve[y] the legal landscape as it then existed,' ], and `determine whether a state court considering [the defendant's] claim at the time his conviction became final would have felt compelled by existing precedent to conclude that the rule [he] seeks was required by the Constitution,'" Finally, if the court determines that the habeas petitioner seeks the benefit of a new rule, the court must consider whether the relief sought falls within one of the two narrow exceptions to nonretroactivity. See IV Lambrix's conviction became final on November 24, when his time for filing a petition for certiorari expired. Thus, our first and principal task is to survey the legal landscape as of that date, to determine whether the rule later announced in was dictated by then-existing precedentwhether, that is, the unlawfulness of Lambrix's *528 conviction was apparent to all reasonable jurists. See, e. ; ; In we determined that the capital jury is, in an important respect, a cosentencer with the judge. As we explained: " has essentially split the weighing process in two. Initially, the jury weighs aggravating and mitigating circumstances, and the result of that weighing process is then in turn weighed within the trial court's process of weighing aggravating and mitigating circumstances." We then concluded that the jury's consideration of a vague aggravator tainted the trial court's sentence because the trial court gave deference to the jury verdict (and thus indirectly weighed the vague aggravator) in the course of weighing the aggravating and mitigating circumstances. We reasoned that this indirect weighing created the same risk of arbitrariness as the direct weighing of an invalid aggravating factor. [2] In our view, was not dictated by precedent, but announced a new rule which cannot be used as the basis for federal habeas corpus relief. It is
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as the basis for federal habeas corpus relief. It is significant that itself did not purport to rely upon any controlling precedent.[3]*529 The opinion cited only a single case, in support of its central conclusion that indirect weighing of an invalid aggravator "creates the same potential for arbitrariness" as direct weighing of an invalid aggravator. And it introduced that lone citation with a "cf."an introductory signal which shows authority that supports the point in dictum or by analogy, not one that "controls" or "dictates" the result. itself contains further evidence that set forth a new rule. considered the constitutionality of Alabama's death sentencing scheme, in which the jury was required to "fix the punishment at death" if it found the defendant guilty of an aggravated offense, whereupon the trial court would conduct a sentencing hearing at which it would determine a sentence of death or of life imprisonment. The defendant contended that because the jury's mandatory sentence would have been unconstitutional standing alone, see it was impermissible for the trial court to consider that verdict in determining its own sentence. We did not reach that contention because we concluded that under Alabama law the jury's verdict formed no part of the trial judge's sentencing calculus. at We noted, however, on the page of the opinion that cited, that the defendant's "argument conceivably might have merit if the judge actually were required to consider the jury's `sentence' as a recommendation as to the sentence the jury believed would be appropriate, cf. and if the judge were obligated to accord some deference to it." 472 U. S., at ; see also This highly tentative expression, far from showing that "dictate[s]" the result in see suggests just the opposite. Indeed, in the Chief Justice, who believed that Alabama's scheme did contemplate that the trial judge would consider the jury's "sentence," nonetheless held the scheme The Supreme Court decisions relied upon most heavily by petitioner are ; ; and In Godfrey, we held that Georgia's "outrageously or wantonly vile, horrible and inhuman" aggravator was impermissibly vague, reasoning that there was nothing in the words "outrageously or wantonly vile, horrible and inhuman" "that implies any inherent restraint on the arbitrary and capricious infliction of the death sentence," and concluded that these terms alone "gave the jury no guidance." -429 Similarly, in applied retroactively to February 1985 in we held that Oklahoma's HAC aggravator, which is identically worded to 's HAC aggravator, was impermissibly vague because the statute gave no more guidance than the vague aggravator at issue in Godfrey and the sentencing jury was not
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at issue in Godfrey and the sentencing jury was not given a limiting -364. Although Godfrey and support the proposition that vague aggravators must be sufficiently narrowed to avoid arbitrary imposition of the death penalty, these cases, and others, demonstrate that the failure to instruct the sentencing jury properly with respect to the aggravator does not automatically render a defendant's sentence un We have repeatedly indicated that a sentencing *531 jury's consideration of a vague aggravator can be cured by appellate review. Thus, in Godfrey itself, we were less concerned about the failure to instruct the jury properly than we were about the Georgia Supreme Court's failure to narrow the facially vague aggravator on Had the Georgia Supreme Court applied a narrowing construction of the aggravator, we would have rejected the Eighth Amendment challenge to Godfrey's death sentence, notwithstanding the failure to instruct the jury on that narrowing construction. Godfrey, Likewise in we stressed that the vague HAC aggravator had not been sufficiently limited on appeal by the Oklahoma Court of Criminal Appeals "to cure the unfettered discretion of the jury." We reached a similar conclusion in applied retroactively to February 1985 in considered the question whether the sentencer's weighing of a vague HAC aggravator rendered that sentence unconstitutional in a "weighing" The sentencing jury in as in was given a HAC instruction that was unconstitutionally vague. We held that "the Federal Constitution does not prevent a state appellate court from upholding a death sentence that is based in part on an invalid or improperly defined aggravating circumstance either by reweighing of the aggravating and mitigating evidence or by harmless-error review." ; see also The principles of the above-described cases do not dictate the result we ultimately reached in unlike Oklahoma, see had given its facially vague HAC aggravator a limiting construction sufficient to satisfy the Constitution. See v. -256 ; Thus, unlike the sentencing juries in and Godfrey, who were not instructed with a properly limited *532 aggravator, the sentencing trial judge in did find the HAC aggravator under a properly limited construction. See citing[4] A close examination of the death penalty scheme persuades us that a reasonable jurist considering Lambrix's sentence in could have reached a conclusion different from the one announced in 1992. There were at least three different, but somewhat related, approaches that would have suggested a different outcome: (1) The mere cabining of the trial court's discretion would avoid arbitrary imposition of the death penalty, and thus avoid unconstitutionality. In v. we upheld the death penalty scheme against the contention that it resulted in arbitrary
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penalty scheme against the contention that it resulted in arbitrary imposition of the death penalty, see because "trial judges are given specific and detailed guidance to assist them in deciding whether to impose a death penalty or imprisonment for life" and because the Supreme *533 Court reviewed sentences for consistency. ; -261 cert. denied,) From what was said in it would, as the en banc Eleventh Circuit noted, "sensibly follow that the judge's proper review of the sentence cures any risk of arbitrariness occasioned by the jury's consideration of an unconstitutionally vague aggravating circumstance." cert. denied, It could have been argued, of course, as Justice Stevens contends, see post, at 543 (dissenting opinion), that prior constitutional error by a sentencing-determining jury would make a difference, but both the conclusion and the premise of that argument were debatable: not only whether it would make a difference, but even (as the succeeding point demonstrates) whether there was any constitutional error by a sentencingdetermining jury. (2) There was no error for the trial judge to cure, since under law the trial court, not the jury, was the sentencer. In we concluded, in effect, that the jury was at least in part a cosentencer along with the trial court. That determination can fairly be traced to our opinion in Sochor v. decided just three weeks earlier, where we explained that under law the trial court "is at least a constituent part of `the sentencer,' " implying that the jury was that as well. That characterization is in considerable tension with our pre- view. In for example, after considering on which primarily relied, the Court determined that the trial court was the sentencer. E. ("[T]he actual *534 sentence is determined by the trial judge " ); (the trial court is "[t]he sentencing authority in "); ; We even distinguished the scheme from the Georgia scheme on the ground that "in the sentence is determined by the trial judge rather than by the jury." Some eight years later, just two years before petitioner's conviction became final, we continued to describe the judge as the sentencer. See Spaziano v. U.S. 447 ; see also Barclay v. ; (Although he now believes the jury is a cosentencer, at the time Lambrix's conviction became final Justice Stevens had explained that "the sentencing authority [is] the jury in Georgia, the judge in" ) It would not have been unreasonable to rely on what we had said in Spaziano, and Barclay that the trial court was the sentencerand to conclude that where the sentencer considered properly narrowed aggravators there was simply
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where the sentencer considered properly narrowed aggravators there was simply no error under Godfrey or The Supreme Court and the Eleventh Circuit held precisely that in 1989, see Smalley v. ; 883 F.2d ; and in 1985 the Eleventh Circuit foresaw the possibility of such a holding: "[Spaziano `s] reasoning calls into question whether any given error in such a merely `advisory' proceeding should be considered to be of constitutional magnitude." v. Wainwright, (3) The trial court's weighing of properly narrowed aggravators and mitigators was sufficiently independent of the jury to cure any error in the jury's consideration of a vague aggravator. Although the Supreme Court had interpreted its statutewhich provided that the judge was the sentencer, Fla. Stat. 921.141(3) and that the *535 jury rendered merely an "advisory sentence," 921.141(2)as requiring the trial judge to give "great weight" to a jury's advisory recommendation, that court nonetheless emphasized that the trial court must "independently weigh the evidence in aggravation and mitigation," and that "[u]nder no combination of circumstances can th[e] [jury's] recommendation usurp the judge's role by limiting his discretion." Eutzy v. cert. denied, In one case, the Supreme Court vacated a sentence because the trial court had given "undue weight to the jury's recommendation of death and did not make an independent judgment of whether or not the death penalty should be imposed." In Spaziano v. we acknowledged that the trial court conducts "its own weighing of the aggravating and mitigating circumstances," and that "[r]egardless of the jury's recommendation, the trial judge is required to conduct an independent review of the evidence and to make his own findings regarding aggravating and mitigating circumstances," ; see also 428 U. S.,[5] Given these precedents, it was reasonable *536 to think that the trial court's review would at least constitute the sort of "reweighing" that would satisfy see also In fact, given the view of some Members of this Court that appellate reweighing was inconsistent with the Eighth Amendment, see, e. ; it would have been reasonable to think that trial-court reweighing was preferable. As one Court of Appeals was prompted to note, " `s holding, which arguably points in the opposite direction from indicates that even in `s result would not have been dictated by precedent." That announced a new rule is strongly confirmed by our decision in Although decided after petitioner's conviction became final, is a particularly good proxy for what a reasonable jurist would have thought in given that the only relevant cases decided by this Court in the interim were and the holdings of both of which, we
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interim were and the holdings of both of which, we later *537 held, were compelled by the law in 1985, see In we rejected a claim that Arizona's HAC aggravator failed sufficiently to channel the sentencer's discretion. Summarizing Godfrey and we explained that "in neither case did the state appellate court, in reviewing the propriety of the death sentence, purport to affirm the death sentence by applying a limiting definition," and this, we said, "w[as] crucial to the conclusion we reached in " at This reasoning suggests that even following a weighing-state death sentence would satisfy the Eighth Amendment so long as the vague aggravator was narrowed at some point in the process. Additionally, in the course of our opinion, we characterized as follows: "[E]ven if a trial judge fails to apply the narrowing construction or applies an improper construction, the Constitution does not necessarily require that a state appellate court vacate a death sentence based on that factor. Rather, as we held in a state appellate court may itself determine whether the evidence supports the existence of the aggravating circumstance as properly defined or the court may eliminate consideration of the factor altogether and determine whether any remaining aggravating circumstances are sufficient to warrant the death penalty." at -654 Our use of the disjunctive suggests that as late as if a trial court determined that the defendant's conduct fell within the narrowed HAC aggravator, the sentence would satisfy the Eighth Amendment irrespective of whether the trial court reweighed the aggravating and mitigating factors.[6] The holdings in Clem- *538 ons, and Godfrey cannot be thought to suggest otherwise, because there was no indication in those cases that the state courts had found the facts of the crimes to fall within appropriately narrowed definitions of the aggravators. Before we had never invalidated a death sentence where a court found the challenged aggravator to be within the appellate court's narrowed definition of a facially vague aggravator. Most of Justice Stevens's dissent is devoted to making a forceful case that was a reasonable interpretation of prior lawperhaps even the most reasonable one. But the inquirywhich is applied to Supreme Court decisions that are, one must hope, usually the most reasonable interpretation of prior lawrequires more than that. It asks whether was dictated by precedenti. e., whether no other interpretation was reasonable. We think it plain from the above that a jurist considering all the relevant material (and not, like Justice Stevens's dissent, considering only the material that favors the result) could reasonably have reached a conclusion contrary to our holding in that case.
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reached a conclusion contrary to our holding in that case. Indeed, both before and after Lambrix's conviction became final, every court decision we are aware of did so. See, e. Smalley v. 546 So. 2d, at ; v. Wainwright, 756 F. 2d, at ; 883 F. 2d, at 1527; Sanchez-Velasco v. cert. denied, It has been suggested that was not a new rule because our decision was handed down as a per curiam without oral argument. See, e. n. 11 (Tjoflat, C. J., dissenting). Whatever *539 inference of established law a summary, per curiam disposition might normally carry is precluded by the peculiar circumstances surrounding the summary per curiam in Just three weeks prior to our issuance of we had decided a case that raised the identical issue, and in which that issue had been fully briefed and argued; we found ourselves without jurisdiction to decide the point, however, because the defendant had failed to preserve his objection in the state courts. See Sochor v. 534. It is obvious on the face of the matter that was only in the most technical sense an "unargued" case: We used that case, which was pending on petition for certiorari when Sochor was decided, as the vehicle for resolving a fully argued point without consuming additional resources. V Since we have determined that announced a new rule under there remains only the task of determining whether that new rule nonetheless falls within one of the two exceptions to our nonretroactivity doctrine. "The first exception permits the retroactive application of a new rule if the rule places a class of private conduct beyond the power of the to proscribe, see or addresses a `substantive categorical guarante[e] accorded by the Constitution,' such as a rule `prohibiting a certain category of punishment for a class of defendants because of their status or offense.' " (quoting 492 U. S., at 330). Plainly, this exception has no application to this case. "neither decriminalize[s] a class of conduct nor prohibit[s] the imposition of capital punishment on a particular class of persons." The second exception is for "`watershed rules of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceedin" (quoting *540 ). Lambrix does not contend that this exception applies to errors, and our opinion in -244, makes it quite clear that that is so. * * * For the reasons stated, the judgment of the Court of Appeals for the Eleventh Circuit is Affirmed.
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California v. Superior Court of Cal., San Bernardino Cty.
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At issue in this case are the limits imposed by federal law upon state court habeas corpus proceedings challenging an extradition warrant I Richard and Judith Smolin were divorced in California in 1978 Sole custody of their two children, Jennifer and Jamie, was awarded to Judith Smolin, subject to reasonable visitation rights for Richard Until November all the parties remained in San Bernardino County, California, and Richard apparently paid his child support and exercised his visitation rights without serious incident In August however, Judith married James Pope, and in November, Mr Pope's work required that the family relocate to Oregon When the Popes moved without informing Richard, the battle over the custody of the minor children began in earnest It is unnecessary to recite in detail all that ensued Richard alleged, and the California courts later found, that the Popes deliberately attempted to defeat Richard's visitation rights and to preclude him from forming a meaningful relationship with his children in the course of their succeeding relocations from Oregon to Texas to Louisiana On February 13, 1981, the Popes obtained a decree from a Texas court granting full faith and credit to the original California order awarding sole custody to Judith Richard was served but did not appear in the Texas proceeding Before the Texas decree was issued, however, Richard sought and obtained in California Superior Court modification of the underlying California decree, awarding joint custody to Richard and Judith Though properly served, the Popes did not appear in these *403 California proceedings; and, though served with the modification order, the Popes neither complied with its terms, nor notified the Texas court of its existence On January 9, 1981, Richard instituted an action in California Superior Court to find Judith in contempt and to again modify the custody decree to give him sole custody In February 1981, sole custody was granted to Richard by the California court, subject to reasonable visitation rights for Judith This order also was ignored by the Popes, apparently acting on the advice of counsel that the California courts no longer had jurisdiction over the matter Richard did not in fact obtain physical custody for over two years When he finally located the Popes in Louisiana, they began an adoption proceeding, later described by the California courts as "verging on the fraudulent," to sever Richard's legal tie to Jennifer and Jamie App 51 After securing a California warrant to obtain custody of the children on February 27, 1984, Richard and his father, Gerard Smolin, resorted to self-help On March 9, 1984, they picked up Jennifer and Jamie
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California v. Superior Court of Cal., San Bernardino Cty.
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On March 9, 1984, they picked up Jennifer and Jamie as they were waiting for their school bus in Slidell, Louisiana, and brought them back to California On April 11, 1984, the Popes submitted to the jurisdiction of the California Superior Court and instituted an action to modify the 1981 order granting Richard sole custody Those proceedings are apparently still pending before the California courts Meanwhile, the Popes raised the stakes by instituting a criminal action against Richard and Gerard Smolin in Louisiana On April 1984, after the Popes instituted modification proceedings in California, Judith Pope swore out an affidavit charging Richard and Gerard Smolin with kidnaping Jennifer and Jamie from her custody and asserting that they had acted "without authority to remove children from [her] custody" App B to Pet for Cert 6 On the basis of this affidavit, the Assistant District Attorney for the 22d Judicial District of Louisiana, William Alford, Jr, filed an information *404 charging Richard and Gerard Smolin each with two counts of violating La Rev Stat Ann 14:45 the Louisiana kidnaping statute On June 14, 1984, the Governor of Louisiana formally notified the Governor of California that Richard and Gerard Smolin were charged with "simple kidnaping" in Louisiana and demanded that they be delivered up for 716 P 2d, at 993-994 In early August 1984, the Smolins petitioned in the California Superior Court for a writ of habeas corpus to block the anticipated extradition warrants On August 17, 1984, the anticipated warrants issued and on August 24, 1984, the Superior Court orally granted a writ of habeas corpus after taking judicial notice of the various custody orders that had been issued The court concluded "that the findings in the family law case adequately demonstrate that, in fact, the process initiated by Mrs Pope in Louisiana and her declarations and affidavits were totally insufficient to establish any basis for rights of either herself personally or for the State of Louisiana" App C to Pet for Cert 5 California then sought a writ of mandate in the California Court of Appeal on the ground that the Superior Court had abused its discretion in blocking extradition The Court of Appeal reluctantly issued the writ: "Although we abhor Judy's apparent willingness to take advantage of our federal system to further this custody battle, and are sympathetic to [the Smolins'] position, we must conclude that their arguments are irrelevant to the only issue a court in the asylum state may properly address: are the documents on their face in order" App B to Pet for Cert 16 A divided
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California v. Superior Court of Cal., San Bernardino Cty.
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order" App B to Pet for Cert 16 A divided California Supreme Court reversed The majority interpreted the Superior Court's finding to be that the Smolins were not substantially charged with a crime It found that the California custody decrees were properly considered * by the Superior Court, and that its conclusion that the Smolins were not substantially charged was correct Under the full faith and credit provisions of the federal Parental Kidnaping Prevention Act of 28 US C 1738A, the majority determined that those decrees conclusively established that Richard Smolin was the lawful custodian of the children at the time that they were taken from Louisiana to California[*] Finally, the court found that, under Louisiana law, the lawful custodian cannot be guilty of kidnaping children in his custody We granted certiorari, to consider whether the Extradition Clause, Art IV, 2, cl 2, and the Extradition Act, 18 US C 3182, prevent the California Supreme Court from refusing to permit extradition on these grounds II The Federal Constitution places certain limits on the sovereign powers of the States, limits that are an essential part of the Framers' conception of national identity and Union One such limit is found in Art IV, 2, cl 2, the Extradition Clause: "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 *406 of the State from which he fled, be delivered up, to be removed to the State having Jurisdiction of the Crime" The obvious objective of the Extradition Clause is that no State should become a safe haven for the fugitives from a sister State's criminal justice system As this Court noted in its first opportunity to construe the Extradition Clause: "[T]he statesmen who framed the Constitution were fully sensible, that from the complex character of the Government, it must fail unless the States mutually supported each other and the General Government; and that nothing would be more likely to disturb its peace, and end in discord, than permitting an offender against the laws of a State, by passing over a mathematical line which divides it from another, to defy its process, and stand ready, under the protection of the State, to repeat the offense as soon as another opportunity offered" The Extradition Clause, however, does not specifically establish a procedure by which interstate extradition is to take place, and, accordingly, has never been considered to be self-executing See, e g, ; Early in our history, the lack of an established procedure led
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California v. Superior Court of Cal., San Bernardino Cty.
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https://www.courtlistener.com/opinion/111916/california-v-superior-court-of-cal-san-bernardino-cty/
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in our history, the lack of an established procedure led to a bitter dispute between the States of Virginia and Pennsylvania J Scott, Law of Interstate Rendition 5-7 In 1791, Pennsylvania demanded the extradition of three men charged with kidnaping a free black man and selling him into slavery Virginia refused to comply with Pennsylvania's demand The controversy was finally submitted to President Washington who, relying upon the advice of Attorney General Randolph, 9 National State Papers of the United States 1789-1817, pt II, pp 144-145 (E Carzo ed 1985), personally appeared before the Congress to obtain the enactment of a law to regulate the extradition process Congress *407 responded by enacting the Extradition Act of 1793, which provides in its current form: "Whenever the executive authority of any State or Territory demands any person as a fugitive from justice, of the executive authority of any State, District or Territory to which such person has fled, and produces a copy of an indictment found or an affidavit made before a magistrate of any State or Territory, charging the person demanded with having committed treason, felony or other crime, certified as authentic by the governor or chief magistrate of the State or Territory from whence the person so charged has fled, the executive authority of the State, District or Territory to which such person has fled shall cause him to be arrested and secured, and notify the executive authority making such demand, or the agent of such authority appointed to receive the fugitive, and shall cause the fugitive to be delivered to such agent when he shall appear" 18 US C 3182 This Court has held the Extradition Act of 1793 to be a proper exercise of Congress' powers under the Extradition Clause and Art IV, 1, to "prescribe the manner in which acts, records and proceedings shall be proved, and the effect thereof" ; By the express terms of federal law, therefore, the asylum State is bound to deliver up to the demanding State's agent a fugitive against whom a properly certified indictment or affidavit charging a crime is lodged The language, history, and subsequent construction of the Extradition Act make clear that Congress intended extradition to be a summary procedure As we have repeatedly held, extradition proceedings are "to be kept within narrow bounds"; they are "emphatically" not the appropriate time or place for entertaining defenses or determining the guilt or innocence of the charged party ; see also, e g, ; ; ; In re Strauss, Those inquiries are left to the professorial authorities and courts of the
|
Justice O'Connor
| 1,987 | 14 |
majority
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California v. Superior Court of Cal., San Bernardino Cty.
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https://www.courtlistener.com/opinion/111916/california-v-superior-court-of-cal-san-bernardino-cty/
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are left to the professorial authorities and courts of the demanding State, whose duty it is to justly enforce the demanding State's criminal law subject, of course, to the limitations imposed by the Constitution and laws of the United States Biddinger v Commissioner of at ; at The courts of asylum States may do no more than ascertain whether the requisites of the Extradition Act have been met As the Court held in the Act leaves only four issues open for consideration before the fugitive is delivered up: "(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" The parties argue at length about the propriety of the California courts taking judicial notice of their prior child custody decrees in this extradition proceeding But even if taking judicial notice of the decrees is otherwise proper, the question remains whether the decrees noticed were relevant to one of these four inquiries The Smolins do not dispute that the extradition documents are in order, that they are the persons named in the documents and that they meet the technical definition of a "fugitive" Their sole contention is that, in light of the earlier California custody decrees and the federal Parental Kidnaping Prevention Act of 28 US C 1738A, they have not been properly charged with a violation of Louisiana's kidnaping statute, La Rev Stat Ann 14:45 *409 Section 14:45A(4) prohibits the "intentional taking, enticing or decoying away and removing from the state, by any parent, of his or her child, from the custody of any person to whom custody has been awarded by any court of competent jurisdiction of any state, without the consent of the legal custodian, with intent to defeat the jurisdiction of the said court over the custody of the child" A properly certified Louisiana information charges the Smolins with violating this statute by kidnaping Jennifer and Jamie Smolin The information is based on the sworn affidavit of Judith Pope which asserts: " `On March 9, 1984, at approximately 7:20 a m, Richard Smolin and Gerard Smolin, kidnapped Jennifer Smolin, aged 10, and James C Smolin, aged 9, from the affiant's custody while said children were at a bus stop in St Tammany Parish, Louisiana "The affiant has custody of the said children by virtue of a Texas court order dated February 5, 1981, a copy of said order attached hereto and
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Justice O'Connor
| 1,987 | 14 |
majority
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California v. Superior Court of Cal., San Bernardino Cty.
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https://www.courtlistener.com/opinion/111916/california-v-superior-court-of-cal-san-bernardino-cty/
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5, 1981, a copy of said order attached hereto and made part hereof The information regarding the actual kidnapping was told to the affiant by witnesses Mason Galatas and Cheryl Galatas of 2028 Mallard Street, Slidell, Louisiana, and Jimmie Huessler of 2015 Dridle Street, Slidell, Louisiana Richard Smolin and Gerard Smolin were without authority to remove children from affiant's custody' " App B to Pet for Cert 5-6 The information is in proper form, and the Smolins do not dispute that the affidavit, and documents incorporated by reference therein, set forth facts that clearly satisfy each element of the crime of kidnaping as it is defined in La Rev Stat Ann 14:45A(4) If we accept as true every fact alleged, the Smolins are properly charged with kidnaping under Louisiana law In our view, this ends the inquiry into the issue whether or not a crime is charged for purposes of the Extradition Act *410 The Smolins argue, however, that more than a formal charge is required, citing the following language from : "It must appear, therefore, to the governor of the State to whom such a demand is presented, before he can lawfully comply with it, first, that the person demanded is substantially charged with a crime against the laws of the State from whose justice he is alleged to have fled, by an indictment or an affidavit, certified as authentic by the governor of the State making the demand "[This] is a question of law, and is always open upon the face of the papers to judicial inquiry, on an application for a discharge under a writ of habeas corpus" The Smolins claim that this language in spawned a widespread practice of permitting the fugitive, upon a petition for writ of habeas corpus in the asylum State's courts, to show that the demanding State's charging instrument is so insufficient that it cannot withstand some generalized version of a motion to dismiss or common-law demurrer Tr of Oral Arg 29-36 The cases the Smolins principally rely upon as support for this asserted practice are People ex rel Misc 2d 48, aff'd, and Application of (11) See Brief for Respondent 15-17 In however, the New York trial court actually granted extradition despite its apparent misgivings about the substantiality of the criminal charge 417 N Y S 2d, at 382 And, in the Washington Supreme Court relied on the fact that the indictment, on its face, did not charge a crime under California law Application of -924 Neither case, in our view, supports the broad proposition that the asylum State's courts may
|
Justice O'Connor
| 1,987 | 14 |
majority
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California v. Superior Court of Cal., San Bernardino Cty.
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https://www.courtlistener.com/opinion/111916/california-v-superior-court-of-cal-san-bernardino-cty/
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supports the broad proposition that the asylum State's courts may entertain motions to dismiss or demurrers to the indictment or information from the demanding State *411 To the contrary, our cases make clear that no such inquiry is permitted For example, in decided after this Court refused to grant relief from extradition over multiple objections to the sufficiency of the indictment The Pierce Court concluded that it was enough that "the indictment, whether good or bad, as a pleading, unmistakably describes every element of the crime of false swearing, as it is defined in the Texas Penal Code " It reasoned: "If more were required it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of States with whose jurisprudence and criminal procedure they can have only a general acquaintance Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the States and fruitful of miscarriages of justice The duty ought not be assumed unless it is plainly required by the Constitution, and, in our opinion, there is nothing in the letter or the spirit of that instrument which requires or permits its performance" Id, at Similarly, in Biddinger v Commissioner of the appellant argued that he had a seemingly valid statute of limitations defense based on the fact that more than three years, the limitations period, had elapsed since the date of the crime recited in the indictment and that he had been publicly and openly resident in the demanding State for that entire period The Court found that the question of limitations was properly considered only in the demanding State's courts Id, at ; see also 235 U S, at 439- This proceeding is neither the time nor place for the Smolins' arguments that Judith Pope's affidavit is fraudulent *412 and that the California custody decrees establish Richard as the lawful custodian under the full faith and credit provision of the federal Parental Kidnaping Prevention Act of There is nothing in the record to suggest that the Smolins are not entirely correct in all of this: that California had exclusive modification jurisdiction over the custody of Jennifer and Jamie; that, under the California decrees, Richard Smolin had lawful custody of the children when he brought them to California; and, that, accordingly, the Smolins did not violate La Rev Stat Ann 14:45A(4) as is charged Of course, the Parental Kidnaping Prevention Act of creates a uniform federal rule governing custody determinations, a rule to which the
|
Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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[*] I join the dissenting opinions of MR. JUSTICE REHNQUIST and write separately to emphasize several points. The Court's opinions in these two cases are profoundly disturbing. They appear to endorse a wholly new constitutional concept applicable to school cases. The opinions also seem remarkably *480 insensitive to the now widely accepted view that a quarter of a century after the federal judiciary should be limiting rather than expanding the extent to which courts are operating the public school systems of our country. In expressing these views, I recognize, of course, that my Brothers who have joined the Court's opinions are motivated by purposes and ideals that few would question. My dissent is based on a conviction that the Court's opinions condone the creation of bad constitutional law and will be even worse for public education an element of American life that is essential, especially for minority children. I MR. JUSTICE REHNQUIST'S dissents demonstrate that the Court's decisions mark a break with both precedent and principle. The Court indulges the courts below in their stringing together of a chain of "presumptions," not one of which is close enough to reality to be reasonable. See ante, at 472 (opinion of STEWART, J.). This chain leads inexorably to the remarkable conclusion that the absence of integration found to exist in a high percentage of the 241 schools in Columbus and Dayton was caused entirely by intentional violations of the Fourteenth Amendment by the school boards of these two cities. Although this conclusion is tainted on its face, is not supported by evidence in either case, and as a general matter seems incredible, the courts below accepted it as the necessary premise for requiring as a matter of constitutional law a systemwide remedy prescribing racial balance in each and every school. There are unintegrated schools in every major urban area in the country that contains a substantial minority population. This condition results primarily from familiar segregated housing patterns, whichin turnare caused by social, economic, and demographic forces for which no school board is responsible. These causes of the greater part of the school *481 segregation problem are not newly discovered. Nearly a decade ago, Professor Bickel wrote: "In most of the larger urban areas, demographic conditions are such that no policy that a court can order, and a school board, a city or even a state has the capability to put into effect, will in fact result in the foreseeable future in racially balanced public schools. Only a reordering of the environment involving economic and social policy on the broadest conceivable front might
|
Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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economic and social policy on the broadest conceivable front might have an appreciable impact." A. Bickel, The Supreme Court and the Idea of Progress 132, and n. 47 (1970).[1] Federal courts, including this Court today, continue to ignore these indisputable facts. Relying upon fictions and presumptions in school cases that are irreconcilable with principles of equal protection law applied in all other cases, see, e. g., Personnel Administrator of ; Arlington ; federal courts prescribe systemwide remedies without relation to the causes of the segregation found to exist, and implement their decrees by requiring extensive transportation of children of all school ages. The type of state-enforced segregation that Brown I properly condemned no longer exists in this country. This is not to say that school boardsparticularly in the great cities of the North, Midwest, and Westare taking all reasonable measures to provide integrated educational opportunities. As I indicated in my separate opinion in de facto segregation has existed on a large scale in many of these cities, *482 and often it is indistinguishable in effect from the type of de jure segregation outlawed by Brown. Where there is proof of intentional segregative action or inaction, the federal courts must act, but their remedies should not exceed the scope of the constitutional violation. Dayton Board of ; Austin Independent School ; Pasadena City Board of ; ; Systemwide remedies such as were ordered by the courts below, and today are approved by this Court, lack any principled basis when the absence of integration in all schools cannot reasonably be attributed to discriminatory conduct.[2] MR. JUSTICE REHNQUIST has dealt devastatingly with the *483 way in which the Court of Appeals endowed prior precedents with new and wondrous meanings. I can add little to what he has said. I therefore move to more general but, in my view, important considerations that the Court simply ignores. II Holding the school boards of these two cities responsible for all of the segregation in the Dayton and Columbus systems and prescribing fixed racial ratios in every school as the constitutionally required remedy necessarily implies a belief that the same school boardsunder court supervision will be capable of bringing about and maintaining the desired racial balance in each of these schools. The experience in city after city demonstrates that this is an illusion. The process of resegregation, stimulated by resentment against judicial coercion and concern as to the effect of court supervision of education, will follow today's decisions as surely as it has in other cities subjected to similar sweeping decrees. The orders affirmed today typify intrusions
|
Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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to similar sweeping decrees. The orders affirmed today typify intrusions on local and professional authorities that affect adversely the quality of education. They require an extensive reorganization of both school systems, including the reassignment of almost half of the 96,000 students in the Columbus system and the busing of some 15,000 students in Dayton. They also require reassignments of teachers and other staff personnel, reorganization of grade structures, and the closing of certain schools. The orders substantially dismantle and displace neighborhood schools in the face of compelling economic and educational reasons for preserving them. This wholesale substitution of judicial legislation for the judgments of elected officials and professional educators derogates the entire process of public education.[3] Moreover, it constitutes a serious interference *484 with the private decisions of parents as to how their children will be educated. These harmful consequences are the inevitable byproducts of a judicial approach that ignores other relevant factors in favor of an exclusive focus on racial balance in every school. These harmful consequences, moreover, in all likelihood will provoke responses that will defeat the integrative purpose of the courts' orders. Parents, unlike school officials, are not bound by these decrees and may frustrate them through the simple expedient of withdrawing their children from a public school system in which they have lost confidence. In spite of the substantial costs often involved in relocation of the family or in resort to private education,[4] experience demonstrates that many parents view these alternatives as preferable to submitting their children to court-run school systems. In the words of a leading authority: "An implication that should have been seen all along but can no longer be ignored is that a child's enrollment in a given public school is not determined by a governmental decision alone. It is a joint result of a governmental decision (the making of school assignments) and parental decisions, whether to remain in the same residential location, whether to send their child to a private school, or which school district to move into when moving into a metropolitan area. The fact that the child's enrollment is a result of two decisions operating jointly means that government policies must, to be effective, anticipate parental decisions and obtain the parents' active cooperation in implementing school policies." Coleman, *485 New Incentives for Desegregation, 7 Human Rights, No. 3, pp. 10, 13 (1978). At least where inner-city populations comprise a large proportion of racial minorities and surrounding suburbs remain white, conditions that exist in most large American cities, the demonstrated effect of compulsory integration is a substantial exodus of whites from
|
Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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of compulsory integration is a substantial exodus of whites from the system. See J. Coleman, S. Kelly, & J. Moore, Trends in School Segregation, 1968-1973, pp. 66, 76-77 (1975). It would be unfair and misleading to attribute this phenomenon to a racist response to integration per se. It is at least as likely that the exodus is in substantial part a natural reaction to the displacement of professional and local control that occurs when courts go into the business of restructuring and operating school systems. Nor will this resegregation be the only negative effect of court-coerced integration on minority children. Public schools depend on community support for their effectiveness. When substantial elements of the community are driven to abandon these schools, their quality tends to decline, sometimes markedly. Members of minority groups, who have relied especially on education as a means of advancing themselves, also are likely to react to this decline in quality by removing their children from public schools.[5] As a result, *486 public school enrollment increasingly will become limited to children from families that either lack the resources to choose alternatives or are indifferent to the quality of education. The net effect is an overall deterioration in public education, the one national resource that traditionally has made this country a land of opportunity for diverse ethnic and racial groups. See III If public education is not to suffer further, we must "return to a more balanced evaluation of the recognized interests of our society in achieving desegregation with other educational and societal interests a community may legitimately assert." The ultimate goal is to have quality school systems in which racial discrimination is neither practiced nor tolerated. It has been thought that ethnic and racial diversity in the classroom is a desirable component of sound education in our country of diverse populations, a view to which I subscribe. The question that courts in their single-minded pursuit of racial balance seem to ignore is how best to move toward this goal. For a decade or more after Brown I, the courts properly focused on dismantling segregated school systems as a means of eliminating state-imposed discrimination and furthering wholesome diversity in the schools.[6] Experience in recent *487 years, however, has case serious doubt upon the efficacy of far-reaching judicial remedies directed not against specific constitutional violations, but rather imposed on an entire school system on the fictional assumption that the existence of identifiable black or white schools is caused entirely by intentional segregative conduct, and is evidence of systemwide discrimination. In my view, some federal courtsnow led by this Courtare
|
Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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In my view, some federal courtsnow led by this Courtare pursuing a path away from rather than toward the desired goal. While these courts conscientiously view their judgments as mandated by the Constitution (a view that would have astonished constitutional scholars throughout most of our history), the fact is that restructuring and overseeing the operation of major public school systems as ordered in these casesfairly can be viewed as social engineering that hardly is appropriate for the federal judiciary. The time has come for a thoughtful re-examination of the proper limits of the role of courts in confronting the intractable problems of public education in our complex society. Proved discrimination by state or local authorities should never be tolerated, and it is a first responsibility of the judiciary to put an end to it where it has been proved. But many courts have continued also to impose wide-ranging decrees, and to retain ongoing supervision over school systems. Local and state legislative and administrative authorities have been supplanted or relegated to initiative-stifling roles as minions of the courts. Indeed, there is reason to believe that some legislative bodies have welcomed judicial activism with respect to a subject so inherently difficult and so politically sensitive that the prospect of others confronting it seems inviting. Federal courts no longer should encourage this deference by the appropriate authoritiesno matter how willing they may *488 be to defer. Courts are the branch least competent to provide long-range solutions acceptable to the public and most conducive to achieving both diversity in the classroom and quality education. School boards need not wait, and many have not waited, for innovative legislative guidance. The opinion of the Court in Swann, though often cited (as in this case) for views I think were never intended, identified some constructive actions always open to school authorities: "An optional majority-to-minority transfer provision has long been recognized as a useful part of every desegregation plan. Provision for optional transfer of those in the majority racial group of a particular school to other schools where they will be in the minority [or less in the majority] is an indispensable remedy for those students willing to transfer to other schools in order to lessen the impact on them of the state-imposed stigma of segregation. In order to be effective, such a transfer arrangement must grant the transferring student free transportation and space must be made available in the school to which he desires to move." -27. See also -241 Incentives can be employed to encourage these transfers, such as creation of magnet schools providing special educational
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Justice Powell
| 1,979 | 17 |
dissenting
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Columbus Bd. of Ed. v. Penick
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https://www.courtlistener.com/opinion/110141/columbus-bd-of-ed-v-penick/
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transfers, such as creation of magnet schools providing special educational benefits and state subsidization of those schools that expand their minority enrollments. See, e. g., Willie, Racial Balance or Quality Education?, in School Desegregation, Shadow and Substance 7 These and like plans, if adopted voluntarily by States, also could help counter the effects of racial imbalances between school districts that are beyond the reach of judicial correction. See ; cf. Coleman, 7 Human Rights, at 48-49.[7] *489 After all, and in spite of what many view as excessive government regulation, we are a free societyperhaps the most free of any in the world. Our people instinctively resent coercion, and perhaps most of all when it affects their children and the opportunities that only education affords them. It is now reasonably clear that the goal of diversity that we call integration, if it is to be lasting and conducive to quality education, must have the support of parents who so frequently have the option to choose where their children will attend school. Courts, of course, should confront discrimination wherever it is found to exist. But they should recognize limitations on judicial action inherent in our system and also the limits of effective judicial power. The primary and continuing responsibility for public education, including the bringing about and maintaining of desired diversity, must be left with school officials and public authorities. MR. JUSTICE REHNQUIST, with whom MR.
|
Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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The majority reads 106(a) of the Immigration and Nationality Act (INA), 8 U.S. C. 1105a(a) ( ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent. This Court, in considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court *407 of appeals "within 60 days after its entry." 28 U.S. C. 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order tolls the period for judicial review of the original order." That order can "be appealed to the courts. after the petition for reconsideration is denied." See In my view, we should interpret the INA as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the INA is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA 106(a)(1), 8 U.S. C. 1105a(a)(1) ( ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U.S. C. 2341 et seq., ] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA 106(a), 8 U.S. C. 1105a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of
|
Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA 106(a)(1), 8 U.S. C. 1105a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing 90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, 545(b), ) suggests any further exception in respect to tolling. Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working *408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence. The majority reaches a different conclusion because it believes that one subsection of the INA, 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that "whenever a petitioner seeks [(1)] review of [a final deportation] order any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S. C. 1105a(a)(6) ( ed., Supp. V). This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner. Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion
|
Justice Breyer
| 1,995 | 2 |
dissenting
|
Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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(2) a petition to review a denial of a motion to reconsider that order, properly together *409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful. I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly changesay, in the alien's home countryand on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR 3.8(a)) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on *. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together.) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews. The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition
|
Justice Breyer
| 1,995 | 2 |
dissenting
|
Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate. The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United (No. 15,6) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." ; cf. 28 U.S. C. 1367(c)(3) ( ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction). The precedential problem, in the majority's view, arises out of (1) a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "`self-destruc[t],' " despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100). Griggs, however, does not apply in the agency/court context. This Court explicitly
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Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Procedure, *4 Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same " as I believe the agency and the Court of Appeals have here. I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). ; see But see 1 ; That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." at (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when *413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court s that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR 3.8(a) See e. g., 10 CFR 2.734(a)(1) (1995) This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this
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Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context. The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argumentthat a tolling rule would deprive the consolidation subsection of meaningdepends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority. Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from under Federal Rule of Civil Procedure *414 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein). Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration
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Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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https://www.courtlistener.com/opinion/117922/stone-v-ins/
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tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling). The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigrationrelated *415 circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3) ( ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal. The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the INA as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3)), and then petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts. *416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an
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Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay. The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, 545(a), (creating INA 242B(d), 8 U.S. C. 52b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain *417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule. Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in
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Justice Breyer
| 1,995 | 2 |
dissenting
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Stone v. INS
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one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge that is pending when an appeal [to the BIA] is filed. shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge Such motion shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board" 29388 (proposed new 8 CFR 3.2(c)(4)). See (proposed new 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial *418 review and motions to reconsider or reopen a decision of the BIA. One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR 243.1 which, it says, interprets INA 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR 243.1 with the language at issue in Locomotive Engineers, 49 U.S. C. 10327(i) ("[A]n action of the [Interstate Commerce] Commission is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with (CA9 19) See, e. g., Thomas Jefferson 5 U.S. 504, For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule. I would reverse the of the Court of Appeals
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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https://www.courtlistener.com/opinion/118036/whren-v-united-states/
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In this case we decide whether the temporary detention of a motorist who the police have probable cause to believe has committed a civil traffic violation is inconsistent with the Fourth Amendment's prohibition against unreasonable seizures unless a reasonable officer would have been motivated to stop the car by a desire to enforce the traffic laws. I On the evening of June 10, 1993, plainclothes vice-squad officers of the District of Columbia Metropolitan Police Department were patrolling a "high drug area" of the city in an unmarked car. Their suspicions were aroused when they passed a dark Pathfinder truck with temporary license plates and youthful occupants waiting at a stop sign, the driver looking down into the lap of the passenger at his right. The truck remained stopped at the intersection for what seemed an unusually long timemore than 20 seconds. When the police car executed a U-turn in order to head back toward the truck, the Pathfinder turned suddenly to its right, without signaling, and sped off at an "unreasonable" speed. The policemen followed, and in a short while overtook the Pathfinder when it stopped behind other traffic at a red light. They pulled up alongside, and Officer Ephraim Soto stepped out and approached the driver's door, identifying himself as a police officer and directing the driver, petitioner Brown, to put the vehicle in park. When Soto drew up to the driver's *809 window, he immediately observed two large plastic bags of what appeared to be crack cocaine in petitioner Whren's hands. Petitioners were arrested, and quantities of several types of illegal drugs were retrieved from the vehicle. Petitioners were charged in a four-count indictment with violating various federal drug laws, including 21 U.S. C. 8(a) and 860(a). At a pretrial suppression hearing, they challenged the legality of the stop and the resulting seizure of the drugs. They argued that the stop had not been justified by probable cause to believe, or even reasonable suspicion, that petitioners were engaged in illegal drug-dealing activity; and that Officer Soto's asserted ground for approaching the vehicleto give the driver a warning concerning traffic violationswas pretextual. The District Court denied the suppression motion, concluding that "the facts of the stop were not controverted," and "[t]here was nothing to really demonstrate that the actions of the officers were contrary to a normal traffic stop." App. 5. Petitioners were convicted of the counts at issue here. The Court of Appeals affirmed the convictions, holding with respect to the suppression issue that, "regardless of whether a police officer subjectively believes that the occupants of an automobile
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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police officer subjectively believes that the occupants of an automobile may be engaging in some other illegal behavior, a traffic stop is permissible as long as a reasonable officer in the same circumstances could have stopped the car for the suspected traffic violation." We granted certiorari. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the *810 meaning of this provision. See ; United ; United An automobile stop is thus subject to the constitutional imperative that it not be "unreasonable" under the circumstances. As a general matter, the decision to stop an automobile is reasonable where the police have probable cause to believe that a traffic violation has occurred. See ; Petitioners accept that Officer Soto had probable cause to believe that various provisions of the District of Columbia traffic code had been violated. See 18 Dall. C. Mun. Regs. 2213. ("An operator shall give full time and attention to the operation of the vehicle"); 220.3 ("No person shall turn any vehicle without giving an appropriate signal"); 2200.3 ("No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions"). They argue, however, that "in the unique context of civil traffic regulations" probable cause is not enough. Since, they contend, the use of automobiles is so heavily and minutely regulated that total compliance with traffic and safety rules is nearly impossible, a police officer will almost invariably be able to catch any given motorist in a technical violation. This creates the temptation to use traffic stops as a means of investigating other law violations, as to which no probable cause or even articulable suspicion exists. Petitioners, who are both black, further contend that police officers might decide which motorists to stop based on decidedly impermissible factors, such as the race of the car's occupants. To avoid this danger, they say, the Fourth Amendment test for traffic stops should be, not the normal one (applied by the Court of Appeals) of whether probable cause existed to justify the stop; but rather, whether a police officer, acting reasonably, would have made the stop for the reason given. *811 A Petitioners contend that the standard they propose is consistent with our past cases' disapproval of police attempts to use valid bases of action against citizens as pretexts for pursuing
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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valid bases of action against citizens as pretexts for pursuing other investigatory agendas. We are reminded that in we stated that "an inventory search[1] must not be a ruse for a general rummaging in order to discover incriminating evidence"; that in 79 U.S. 367, in approving an inventory search, we apparently thought it significant that there had been "no showing that the police, who were following standardized procedures, acted in bad faith or for the sole purpose of investigation"; and that in New 82 U.S. 691, we observed, in upholding the constitutionality of a warrantless administrative inspection,[2] that the search did not appear to be "a `pretext' for obtaining evidence of violation of penal laws." But only an undiscerning reader would regard these cases as endorsing the principle that ulterior motives can invalidate police conduct that is justifiable on the basis of probable cause to believe that a violation of law has occurred. In each case we were addressing the validity of a search conducted in the absence of probable cause. Our quoted statements simply explain that the exemption from the need for probable cause (and warrant), which is accorded to searches made for the purpose of inventory or administrative *812 regulation, is not accorded to searches that are not made for those purposes. See at 371-; Petitioners also rely upon 9 U.S. 1 a case which, like this one, involved a traffic stop as the prelude to a plain-view sighting and arrest on charges wholly unrelated to the basis for the stop. Petitioners point to our statement that "[t]here was no evidence whatsoever that the officer's presence to issue a traffic citation was a pretext to confirm any other previous suspicion about the occupants" of the car. at n. That dictum at most demonstrates that the Court in Bannister found no need to inquire into the question now under discussion; not that it was certain of the answer. And it may demonstrate even less than that: If by "pretext" the Court meant that the officer really had not seen the car speeding, the statement would mean only that there was no reason to doubt probable cause for the traffic stop. It would, moreover, be anomalous, to say the least, to treat a statement in a footnote in the per curiam Bannister opinion as indicating a reversal of our prior law. Petitioners' difficulty is not simply a lack of affirmative support for their position. Not only have we never held, outside the context of inventory search or administrative inspection (discussed above), that an officer's motive invalidates objectively justifiable behavior under
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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above), that an officer's motive invalidates objectively justifiable behavior under the Fourth Amendment; but we have repeatedly held and asserted the contrary. In United 62 U.S. 579, 58, n. 3 we held that an otherwise valid warrantless boarding of a vessel by customs officials was not rendered invalid "because the customs officers were accompanied by a Louisiana state policeman, and were following an informant's tip that a vessel in the ship channel was thought to be carrying marihuana." We flatly dismissed the idea that an ulterior motive might serve to strip the agents of their legal justification. In United 1 U.S. 218 we held that *813 a traffic-violation arrest (of the sort here) would not be rendered invalid by the fact that it was "a mere pretext for a narcotics search," ; and that a lawful postarrest search of the person would not be rendered invalid by the fact that it was not motivated by the officer-safety concern that justifies such searches, see See also 1 U.S. 260, And in 36 U.S. 128, in rejecting the contention that wiretap evidence was subject to exclusion because the agents conducting the tap had failed to make any effort to comply with the statutory requirement that unauthorized acquisitions be minimized, we said that "[s]ubjective intent alone does not make otherwise lawful conduct illegal or unconstitutional." We described as having established that "the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action." 36 U.S., at 136, We think these cases foreclose any argument that the constitutional reasonableness of traffic stops depends on the actual motivations of the individual officers involved. We of course agree with petitioners that the Constitution prohibits selective enforcement of the law based on considerations such as race. But the constitutional basis for objecting to intentionally discriminatory application of laws is the Equal Protection Clause, not the Fourth Amendment. Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. B Recognizing that we have been unwilling to entertain Fourth Amendment challenges based on the actual motivations of individual officers, petitioners disavow any intention to make the individual officer's subjective good faith the touchstone of "reasonableness." They insist that the standard *81 they have put forwardwhether the officer's conduct deviated materially from usual police practices, so that a reasonable officer in the same circumstances would not have made the stop for the reasons givenis an "objective" one. But
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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the stop for the reasons givenis an "objective" one. But although framed in empirical terms, this approach is plainly and indisputably driven by subjective considerations. Its whole purpose is to prevent the police from doing under the guise of enforcing the traffic code what they would like to do for different reasons. Petitioners' proposed standard may not use the word "pretext," but it is designed to combat nothing other than the perceived "danger" of the pretextual stop, albeit only indirectly and over the run of cases. Instead of asking whether the individual officer had the proper state of mind, the petitioners would have us ask, in effect, whether (based on general police practices) it is plausible to believe that the officer had the proper state of mind. Why one would frame a test designed to combat pretext in such fashion that the court cannot take into account actual and admitted pretext is a curiosity that can only be explained by the fact that our cases have foreclosed the more sensible option. If those cases were based only upon the evidentiary difficulty of establishing subjective intent, petitioners' attempt to root out subjective vices through objective means might make sense. But they were not based only upon that, or indeed even principally upon that. Their principal basiswhich applies equally to attempts to reach subjective intent through ostensibly objective meansis simply that the Fourth Amendment's concern with "reasonableness" allows certain actions to be taken in certain circumstances, whatever the subjective intent. See, e. g., (footnotes omitted); at But even if our concern had been only an evidentiary one, *815 petitioners' proposal would by no means assuage it. Indeed, it seems to us somewhat easier to figure out the intent of an individual officer than to plumb the collective consciousness of law enforcement in order to determine whether a "reasonable officer" would have been moved to act upon the traffic violation. While police manuals and standard procedures may sometimes provide objective assistance, ordinarily one would be reduced to speculating about the hypothetical reaction of a hypothetical constablean exercise that might be called virtual subjectivity. Moreover, police enforcement practices, even if they could be practicably assessed by a judge, vary from place to place and from time to time. We cannot accept that the search and seizure protections of the Fourth Amendment are so variable, cf. ; United 0 U.S. 71, and can be made to turn upon such trivialities. The difficulty is illustrated by petitioners' arguments in this case. Their claim that a reasonable officer would not have made this stop is based largely
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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https://www.courtlistener.com/opinion/118036/whren-v-united-states/
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officer would not have made this stop is based largely on District of Columbia police regulations which permit plainclothes officers in unmarked vehicles to enforce traffic laws "only in the case of a violation that is so grave as to pose an immediate threat to the safety of others." Metropolitan Police Department, Washington, D. C., General Order 303.1, pt. 1, Objectives and Policies (A)(2)() (Apr. 30, 1992), reprinted as Addendum to Brief for Petitioners. This basis of invalidation would not apply in jurisdictions that had a different practice. And it would not have applied even in the District of Columbia, if Officer Soto had been wearing a uniform or patrolling in a marked police cruiser. Petitioners argue that our cases support insistence upon police adherence to standard practices as an objective means of rooting out pretext. They cite no holding to that effect, and dicta in only two cases. In the petitioner had been arrested by the Immigration and Naturalization Service (INS), on the basis of *816 an administrative warrant that, he claimed, had been issued on pretextual grounds in order to enable the Federal Bureau of Investigation (FBI) to search his room after his arrest. We regarded this as an allegation of "serious misconduct," but rejected Abel's claims on the ground that "[a] finding of bad faith is not open to us on th[e] record" in light of the findings below, including the finding that "`the proceedings taken by the [INS] differed in no respect from what would have been done in the case of an individual concerning whom [there was no pending FBI investigation],' " But it is a long leap from the proposition that following regular procedures is some evidence of lack of pretext to the proposition that failure to follow regular procedures proves (or is an operational substitute for) pretext. Abel, moreover, did not involve the assertion that pretext could invalidate a search or seizure for which there was probable causeand even what it said about pretext in other contexts is plainly inconsistent with the views we later stated in Scott, and Villamonte-Marquez. In the other case claimed to contain supportive dicta, United 1 U.S. 218 in approving a search incident to an arrest for driving without a license, we noted that the arrest was "not a departure from established police department practice." That was followed, however, by the statement that "[w]e leave for another day questions which would arise on facts different from these." This is not even a dictum that purports to provide an answer, but merely one that leaves the question open. III
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| 1,996 | 9 |
majority
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Whren v. United States
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answer, but merely one that leaves the question open. III In what would appear to be an elaboration on the "reasonable officer" test, petitioners argue that the balancing inherent in any Fourth Amendment inquiry requires us to weigh the governmental and individual interests implicated in a traffic stop such as we have here. That balancing, petitioners claim, does not support investigation of minor traffic infractions *817 by plainclothes police in unmarked vehicles; such investigation only minimally advances the government's interest in traffic safety, and may indeed retard it by producing motorist confusion and alarma view said to be supported by the Metropolitan Police Department's own regulations generally prohibiting this practice. And as for the Fourth Amendment interests of the individuals concerned, petitioners point out that our cases acknowledge that even ordinary traffic stops entail "a possibly unsettling show of authority"; that they at best "interfere with freedom of movement, are inconvenient, and consume time" and at worst "may create substantial anxiety," 0 U. S., at 657. That anxiety is likely to be even more pronounced when the stop is conducted by plainclothes officers in unmarked cars. It is of course true that in principle every Fourth Amendment case, since it turns upon a "reasonableness" determination, involves a balancing of all relevant factors. With rare exceptions not applicable here, however, the result of that balancing is not in doubt where the search or seizure is based upon probable cause. That is why petitioners must rely upon cases like to provide examples of actual "balancing" analysis. There, the police action in question was a random traffic stop for the purpose of checking a motorist's license and vehicle registration, a practice thatlike the practices at issue in the inventory search and administrative inspection cases upon which petitioners rely in making their "pretext" claiminvolves police intrusion without the probable cause that is its traditional justification. Our opinion in expressly distinguished the case from a stop based on precisely what is at issue here: "probable cause to believe that a driver is violating any one of the multitude of applicable traffic and equipment regulations." It noted approvingly that "[t]he foremost method of enforcing traffic and vehicle safety regulations is acting upon observed violations," which afford the "`quantum of individualized suspicion' " necessary to ensure that police *818 discretion is sufficiently constrained, at 65-655 (quoting United 28 U. S., at 560). What is true of is also true of other cases that engaged in detailed "balancing" to decide the constitutionality of automobile stops, such as which upheld checkpoint stops, see 28 U.S., at -562, and Brignoni-Ponce,
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Justice Scalia
| 1,996 | 9 |
majority
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Whren v. United States
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upheld checkpoint stops, see 28 U.S., at -562, and Brignoni-Ponce, which disallowed so-called "roving patrol" stops, see 22 U.S., at 882-88: The detailed "balancing" analysis was necessary because they involved seizures without probable cause. Where probable cause has existed, the only cases in which we have found it necessary actually to perform the "balancing" analysis involved searches or seizures conducted in an extraordinary manner, unusually harmful to an individual's privacy or even physical interestssuch as, for example, seizure by means of deadly force, see 71 U.S. 1 unannounced entry into a home, see 51 U.S. 927 entry into a home without a warrant, see 66 U.S. 70 (198), or physical penetration of the body, see 70 U.S. 753 The making of a traffic stop out of uniform does not remotely qualify as such an extreme practice, and so is governed by the usual rule that probable cause to believe the law has been broken "outbalances" private interest in avoiding police contact. Petitioners urge as an extraordinary factor in this case that the "multitude of applicable traffic and equipment regulations" is so large and so difficult to obey perfectly that virtually everyone is guilty of violation, permitting the police to single out almost whomever they wish for a stop. But we are aware of no principle that would allow us to decide at what point a code of law becomes so expansive and so commonly violated that infraction itself can no longer be the ordinary measure of the lawfulness of enforcement. And even if we could identify such exorbitant codes, we do not know by what standard (or what right) we would decide, as *819 petitioners would have us do, which particular provisions are sufficiently important to merit enforcement. For the run-of-the-mine case, which this surely is, we think there is no realistic alternative to the traditional commonlaw rule that probable cause justifies a search and seizure. * * * Here the District Court found that the officers had probable cause to believe that petitioners had violated the traffic code. That rendered the stop reasonable under the Fourth Amendment, the evidence thereby discovered admissible, and the upholding of the convictions by the Court of Appeals for the District of Columbia Circuit correct. The judgment is Affirmed.
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14 Penn Plaza LLC v. Pyett
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The question presented by this case is whether a provi sion in a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate claims arising under the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 9 U.S. C. et seq., is enforceable. The United States Court of Appeals for the Second Circuit held that this Court’s decision in forbids enforcement of such arbitration provisions. We disagree and reverse the judgment of the Court of Appeals. I Respondents are members of the Service Employees International Union, Local 3BJ (Union). Under the National Labor Relations Act (NLRA), as amended, the Union is the exclusive bargaining represen tative of employees within the building-services industry in New York City, which includes building cleaners, por ters, and doorpersons. See 9 U.S. C. In this role, the Union has exclusive authority to bargain on 14 PENN PLAZA LLC v. PYETT Opinion of the Court behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment.” Since the 1930’s, the Union has engaged in industry wide collective bargaining with the Realty Advisory Board on Labor Relations, (RAB), a multiemployer bargain ing association for the New York City real-estate industry. The agreement between the Union and the RAB is embod ied in their Collective Bargaining Agreement for Contrac tors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimina tion to binding arbitration under the CBA’s grievance and dispute resolution procedures: NO DISCRIMINATION. There shall be no dis crimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other character istic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Aicans with Disabilities Act, the Age Dis crimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code, or any other similar laws, rules, or regulations. All such claims shall be subject to the grievance and arbitration procedures (Articles V and VI) as the sole and exclusive remedy for violations. Arbitrators shall apply appropriate law in rendering decisions based upon claims of discrimination.” App. to Pet. for Cert. 48a.1 —————— 1 Article V establishes the grievance process, which applies to all claims regardless of whether they are subject to arbitration under the CBA. Article VI establishes the procedures for arbitration and postar bitration judicial review, and, in particular, provides that the arbitrator “shall decide all differences arising between the parties as to
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“shall decide all differences arising between the parties as to inter pretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate Cite as: 556 U. S. (009) 3 Opinion of the Court Petitioner 14 Penn Plaza LLC is a member of the RAB. It owns and operates the New York City office building where, prior to August respondents worked as night lobby watchmen and in other similar capacities. Respon dents were directly employed by petitioner Temco Service Industries, (Temco), a maintenance service and clean ing contractor. In August with the Union’s consent, 14 Penn Plaza engaged Spartan Security, a unionized security services contractor and affiliate of Temco, to provide licensed security guards to staff the lobby and entrances of its building. Because this rendered respon dents’ lobby services unnecessary, Temco reassigned them to jobs as night porters and light duty cleaners in other locations in the building. Respondents contend that these reassignments led to a loss in income, caused them emo tional distress, and were otherwise less desirable than their for positions. At respondents’ request, the Union filed grievances challenging the reassignments. The grievances alleged that petitioners: (1) violated the CBA’s ban on workplace discrimination by reassigning respondents on account of their age; () violated seniority rules by failing to promote one of the respondents to a handyman position; and (3) failed to equitably rotate overtime. After failing to obtain relief on any of these claims through the grievance proc ess, the Union requested arbitration under the CBA. After the initial arbitration hearing, the Union with drew the first set of respondents’ grievances—the age discrimination claims—from arbitration. Because it had consented to the contract for new security personnel at 14 Penn Plaza, the Union believed that it could not legiti mately object to respondents’ reassignments as discrimi natory. But the Union continued to arbitrate the seniority —————— before him under the terms of this Agreement.” App. to Pet. for Cert. 43a–47a. 4 14 PENN PLAZA LLC v. PYETT Opinion of the Court and overtime claims, and, after several hearings, the claims were denied. In May while the arbitration was ongoing but after the Union withdrew the age-discrimination claims, respondents filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their rights under the ADEA. Approximately one month later, the EEOC issued a Dismissal and Notice of Rights, which explained that the agency’s “ ‘review of the evidence fail[ed] to indicate that a violation ha[d] occurred,’ ” and notified each respondent of his right
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ha[d] occurred,’ ” and notified each respondent of his right to sue. (CA 007). Respondents thereafter filed suit against petitioners in the United States District Court for the Southern District of New York, alleging that their reassignment violated the ADEA and state and local laws prohibiting age discrimi nation. Petitioners filed a motion to compel arbitration of respondents’ claims pursuant to and of the Federal Arbitration Act (FAA), 9 U.S. C. §, 4.3 The District Court denied the motion because under Second Circuit precedent, “even a clear and unmistakable union —————— Respondents also filed a “hybrid” lawsuit against the Union and petitioners under 01 of the Labor Management Relations Act, 1947, 9 U.S. C. see also 164– 165 alleging that the Union breached its “duty of fair represen tation” under the NLRA by withdrawing support for the age discrimination claims during the arbitration and that petitioners breached the CBA by reassigning respondents. Respondents later voluntarily dismissed this suit with prejudice. 3 Petitioners also filed a motion to dismiss the complaint for failure to state a claim. The District Court denied the motion, holding that respondents had sufficiently alleged an ADEA claim by claiming that they “were over the age of 40, they were reassigned to positions which led to substantial losses in income, and their replacements were both younger and had less seniority at the building.” App. to Pet. for Cert. 0a Petitioners have not appealed that ruling. Cite as: 556 U. S. (009) 5 Opinion of the Court negotiated waiver of a right to litigate certain federal and state statutory claims in a judicial forum is unenforce able.” App. to Pet. for Cert. 1a. Respondents immedi ately appealed the ruling under of the FAA, which authorizes an interlocutory appeal of “an order refus ing a stay of any action under section 3 of this title” or “denying a petition under section 4 of this title to order arbitration to proceed.” 9 U.S. C. §(a)(1)(A)–(B). The Court of Appeals affirmed. According to the Court of Appeals, it could not compel arbitration of the dispute because which “remains good law,” held “that a collective bargaining agreement could not waive covered workers’ rights to a judicial forum for causes of action created by Congress.” n. 3 (citing –51). The Court of Appeals observed that the deci sion was in tension with this Court’s more recent decision in (19), which “held that an individual employee who had agreed individually to waive his right to a federal forum could be compelled to arbitrate a federal age discrimina tion claim.” 498 F.3d, at n. 3
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federal age discrimina tion claim.” 498 F.3d, at n. 3 (citing at 33–35; emphasis in original). The Court of Appeals also noted that this Court previously declined to resolve this tension in v. Universal Maritime Service 55 U.S. 70, 8 where the waiver at issue was not “clear and unmistakable.” 498 F.3d, at n. 3. The Court of Appeals attempted to reconcile Gardner- and by holding that arbitration provisions in a collective-bargaining agreement, “which purport to waive employees’ rights to a federal forum with respect to statutory claims, are unenforceable.” –94. As a result, an individual employee would be free to choose compulsory arbitration under but a labor union could not collectively bargain for arbitration on behalf of its members. We granted certiorari, 55 U.S. 6 14 PENN PLAZA LLC v. PYETT Opinion of the Court (008), to address the issue left unresolved in which continues to divide the Courts of Appeals,4 and now reverse. II A The NLRA governs federal labor-relations law. As permitted by that statute, respondents designated the Union as their “exclusive representativ[e] for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, or other conditions of em ployment.” 9 U.S. C. As the employees’ exclu sive bargaining representative, the Union “enjoys broad authority in the negotiation and administration of [the] collective bargaining contract.” Communications (internal quota tion marks omitted). But this broad authority “is accom panied by a responsibility of equal scope, the responsibility and duty of fair representation.” Humphrey v. Moore, 3 U.S. 335, 34 (1964). The employer has a corresponding duty under the NLRA to bargain in good faith “with the representatives of his employees” on wages, hours, and conditions of employment. 9 U.S. C. see also In this instance, the Union and the RAB, negotiating on behalf of 14 Penn Plaza, collectively bargained in good faith and agreed that employment-related discrimination claims, including claims brought under the ADEA, would be resolved in arbitration. This freely negotiated term between the Union and the RAB easily qualifies as a “conditio[n] of employment” that is subject to mandatory —————— 4 Compare, e.g., (CA 000) (per curiam); ; ; with, e.g., Eastern Associ ated Coal Cite as: 556 U. S. (009) 7 Opinion of the Court bargaining under See Litton Financial Printing Div., Litton Business Systems, v. NLRB, 501 U.S. 1, 199 (19) (“[A]rrangements for arbitration of dis putes are a term or condition of employment and a manda tory subject of bargaining”); (“[A]rbitration of labor disputes under collective bargaining agreements is part and parcel of the collective bargaining process itself”);
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is part and parcel of the collective bargaining process itself”); Textile (1957) (“Plainly the agreement to arbitrate grievance disputes is the quid pro quo for an agreement not to strike”). The decision to fashion a CBA to require arbitra tion of employment-discrimination claims is no different from the many other decisions made by parties in design ing grievance machinery.5 Respondents, however, contend that the arbitration clause here is outside the permissible scope of the collec tive-bargaining process because it affects the “employees’ individual, non-economic statutory rights.” Brief for Re spondents ; see also post, at 5–6 (SOUTER, J., dissent ing). We disagree. Parties generally favor arbitration —————— 5 JUSTICE SOUTER claims that this understanding is “impossible to square with our conclusion in [Alexander v.] [Co., 415 U.S. 36 ] that ‘Title VII stands on plainly different ground’ from ‘statutory rights related to collective activity’: ‘it concerns not majoritarian processes, but an individual’s right to equal employment opportunities.’ ” Post, at 5 (dissenting opinion) (quoting Gardner- ). As explained below, however, JUSTICE SOUTER repeats the key analytical mistake made in ’s dicta by equating the decision to arbitrate Title VII and ADEA claims to a decision to forgo these substantive guarantees against workplace discrimination. See infra, –17. The right to a judicial forum is not the nonwaivable “substantive” right protected by the ADEA. See infra, 4. Thus, although Title VII and ADEA rights may well stand on “different ground” than statutory rights that protect “majoritarian processes,” the voluntary decision to collectively bargain for arbitration does not deny those statutory antidiscrimination rights the full protection they are due. 8 14 PENN PLAZA LLC v. PYETT Opinion of the Court precisely because of the economics of dispute resolution. See Circuit City Stores, (001) (“Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning com cial contracts”). As in any contractual negotiation, a union may agree to the inclusion of an arbitration provision in a collective-bargaining agreement in return for other con cessions from the employer. Courts generally may not interfere in this bargained-for exchange. “Judicial nullifi cation of contractual concessions is contrary to what the Court has recognized as one of the fundamental poli cies of the National Labor Relations Act—freedom of contract.” (Stewart, J., concurring in part and dissenting in part) (internal quotation marks and brackets omitted). As a result, the CBA’s arbitration provision must be honored unless the ADEA itself removes this particular class of grievances from the NLRA’s broad
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removes this particular class of grievances from the NLRA’s broad sweep. See Mitsubishi Motors It does not. This Court has squarely held that the ADEA does not preclude arbitration of claims brought under the statute. See 500 U.S., –33. In the Court explained that “[a]lthough all statutory claims may not be appropriate for arbitration, ‘having made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” (quoting Mitsubishi Motors at ). And “if Congress intended the sub stantive protection afforded by the ADEA to include pro tection against waiver of the right to a judicial forum, that intention will be deducible from text or legislative history.” (internal quotation marks and brackets Cite as: 556 U. S. (009) 9 Opinion of the Court omitted). The Court determined that “nothing in the text of the ADEA or its legislative history explicitly precludes arbitration.” –7. The Court also concluded that arbitrating ADEA disputes would not undermine the statute’s “remedial and deterrent function.” (internal quotation marks omitted). In the end, the em ployee’s “generalized attacks” on “the adequacy of arbitra tion procedures” were “insufficient to preclude arbitration of statutory claims,” because there was no evi dence that “Congress, in enacting the ADEA, intended to preclude arbitration of claims under that Act,” The Court’s interpretation of the ADEA fully applies in the collective-bargaining context. Nothing in the law suggests a distinction between the status of arbi tration agreements signed by an individual employee and those agreed to by a union representative. This Court has required only that an agreement to arbitrate statutory antidiscrimination claims be “explicitly stated” in the collective-bargaining agreement. (internal quotation marks omitted). The CBA under review here meets that obligation. Respondents incor rectly counter that an individual employee must person ally “waive” a “[substantive] right” to proceed in court for a waiver to be “knowing and voluntary” under the ADEA. 9 U.S. C. As explained below, however, the agreement to arbitrate ADEA claims is not the waiver of a “substantive right” as that term is employed in the ADEA. ; see infra, –16. Indeed, if the “right” referred to in included the prospective waiver of the right to bring an ADEA claim in court, even a waiver signed by an individual employee would be inva lid as the statute also prevents individuals from “waiv[ing] rights or claims that may arise after the date the waiver is executed.” (C).6 —————— 6 Respondents’ contention that of the Civil Rights Act of 19,
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Respondents’ contention that of the Civil Rights Act of 19, 10 14 PENN PLAZA LLC v. PYETT Opinion of the Court Examination of the two federal statutes at issue in this case, therefore, yields a straightforward answer to the question presented: The NLRA provided the Union and the RAB with statutory authority to collectively bargain for arbitration of workplace discrimination claims, and Congress did not terminate that authority with respect to federal age-discrimination claims in the ADEA. Accord ingly, there is no legal basis for the Court to strike down the arbitration clause in this CBA, which was freely nego tiated by the Union and the RAB, and which clearly and unmistakably requires respondents to arbitrate the age discrimination claims at issue in this appeal. Congress —————— Pub. L. 10–166, note following 4 U.S. C. (000 ed.), precludes the enforcement of this arbitration agreement also is misplaced. See Brief for Respondents 31–3; see also post, at 8–9 (SOUTER, J., dissenting). Section 118 expresses Congress’ support for alternative dispute resolution: “Where appropriate and to the extent authorized by law, the use of alternative means of dispute resolution, including arbitration, is encouraged to resolve disputes arising under” the ADEA. note following 4 U. S C. Respondents argue that the legislative history actually signals Con gress’ intent to preclude arbitration waivers in the collective-bargaining context. In particular, respondents point to a House Report that, in spite of the statute’s plain language, interprets to support their position. See H. R. Rep. No. 10–40, pt. 1, p. 97 (19) ”). But the legislative history mischaracterizes the holding of Gardner- which does not prohibit collective bargaining for arbitration of ADEA claims. See infra, at 11–14. Moreover, reading the legislative history in the manner suggested by respondents would create a direct conflict with the statutory text, which encourages the use of arbitration for dispute resolution without imposing any constraints on collective bargaining. In such a contest, the text must prevail. See Ratzlaf v. United States, (“[W]e do not resort to legislative history to cloud a statutory text that is clear”). Cite as: 556 U. S. (009) 11 Opinion of the Court has chosen to allow arbitration of ADEA claims. The Judiciary must respect that choice. B The CBA’s arbitration provision is also fully enforceable under the line of cases. Respondents interpret and its progeny to hold that “a union cannot waive an employee’s right to a judicial forum under the federal antidiscrimination statutes” because “allowing the union to waive this right would substitute the union’s interests for the employee’s antidiscrimination rights.” Brief for Respondents 1. The “combination
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the employee’s antidiscrimination rights.” Brief for Respondents 1. The “combination of union control over the process and inherent conflict of interest with respect to discrimination claims,” they argue, “provided the foundation for the Court’s holding [in Gard ner-] that arbitration under a collective-bargaining agreement could not preclude an individual employee’s right to bring a lawsuit in court to vindicate a statutory discrimination claim.” We disagree. 1 The holding of is not as broad as re spondents suggest. The employee in that case was covered by a collective-bargaining agreement that prohibited “discrimination against any employee on account of race, color, religion, sex, national origin, or ancestry” and that guaranteed that “[n]o employee will be discharged except for just cause.” (internal quotation marks omitted). The agreement also included a “multistep griev ance procedure” that culminated in compulsory arbitration for any “differences aris[ing] between the Company and the Union as to the meaning and application of the provisions of this Agreement” and “any trouble aris[ing] in the plant.” at 40–41 (internal quotation marks omitted). The employee was discharged for allegedly producing too many defective parts while working for the respondent 1 14 PENN PLAZA LLC v. PYETT Opinion of the Court as a drill operator. He filed a grievance with his union claiming that he was “ ‘unjustly discharged’ ” in violation of the “ ‘just cause’ ” provision within the CBA. Then at the final prearbitration step of the grievance process, the employee added a claim that he was discharged because of his race. at 38–4. The arbitrator ultimately ruled that the employee had been “ ‘discharged for just cause,’ ” but “made no reference to [the] claim of racial discrimination.” After obtaining a right-to-sue letter from the EEOC, the em ployee filed a claim in Federal District Court, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964. The District Court issued a decision, affirmed by the Court of Appeals, which granted summary judgment to the employer because it concluded that “the claim of racial discrimination had been submitted to the arbitrator and resolved adversely to [the employee].” at 43. In the District Court’s view, “having voluntarily elected to pursue his grievance to final arbitration under the nondiscrimination clause of the collective-bargaining agreement,” the employee was “bound by the arbitral decision” and precluded from suing his employer on any other grounds, such as a statutory claim under Title VII. This Court reversed the judgment on the narrow ground that the arbitration was not preclusive because the collec tive-bargaining agreement did not cover statutory claims. As a
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collec tive-bargaining agreement did not cover statutory claims. As a result, the lower courts erred in relying on the “doc trine of election of remedies” to bar the employee’s Title VII claim. “That doctrine, which refers to situations where an individual pursues remedies that are legally or factually inconsistent” with each other, did not apply to the employee’s dual pursuit of arbitration and a Title VII discrimination claim in district court. The em ployee’s collective-bargaining agreement did not mandate arbitration of statutory antidiscrimination claims. at Cite as: 556 U. S. (009) 13 Opinion of the Court 49–50. “As the proctor of the bargain, the arbitrator’s task is to effectuate the intent of the parties.” Be cause the collective-bargaining agreement gave the arbi trator “authority to resolve only questions of contractual rights,” his decision could not prevent the employee from bringing the Title VII claim in federal court “regardless of whether certain contractual rights are similar to, or dupli cative of, the substantive rights secured by Title VII.” –54; see also The Court also explained that the employee had not waived his right to pursue his Title VII claim in federal court by participating in an arbitration that was premised on the same underlying facts as the Title VII claim. See Thus, whether the legal theory of preclusion advanced by the employer rested on “the doctrines of election of remedies” or was recast “as resting instead on the doctrine of equitable estoppel and on themes of res judicata and collateral estoppel,” n. 10 (internal quotation marks omitted), it could not prevail in light of the collective-bargaining agreement’s failure to address arbitration of Title VII claims. See (“[W]e hold that the federal policy favoring arbitration does not establish that an arbitrator’s resolution of a contractual claim is dispositive of a statutory claim under Title VII” (emphasis added)). The Court’s decisions following have not broadened its holding to make it applicable to the facts of this case. In the Court considered “whether an employee may bring an action in federal district court, alleging a violation of the minimum wage provisions of the Fair Labor Standards Act, after having unsuccessfully submitted a wage claim based on the same underlying facts to a joint grievance committee pursuant to the provisions of his union’s collective bargaining agreement.” at 79–730. The Court held 14 14 PENN PLAZA LLC v. PYETT Opinion of the Court that the unsuccessful arbitration did not preclude the federal lawsuit. Like the collective-bargaining agreement in the arbitration provision under review in did not expressly reference the statutory claim at issue. See n. 5.
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expressly reference the statutory claim at issue. See n. 5. The Court thus reiterated that an “arbitrator’s power is both derived from, and limited by, the collective-bargaining agreement” and “[h]is task is limited to construing the meaning of the collective-bargaining agreement so as to effectuate the collective intent of the parties.” was decided along similar lines. The question presented in that case was “whether a federal court may accord preclu sive effect to an unappealed arbitration award in a case brought under [4 U.S. C. at The Court declined to fashion such a rule, again explaining that “because an arbitrator’s authority derives solely from the contract, an arbitrator may not have authority to enforce when that provision is left unaddressed by the arbitration agreement. at Accordingly, as in both and Barren the Court’s decision in hinged on the scope of the collective-bargaining agreement and the arbitrator’s parallel mandate. The facts underlying and reveal the narrow scope of the legal rule arising from that trilogy of decisions. Summarizing those opin ions in this Court made clear that the Gardner- line of cases “did not involve the issue of the en forceability of an agreement to arbitrate statutory claims.” 500 U.S., Those decisions instead “involved the quite different issue whether arbitration of contract-based claims precluded subsequent judicial resolution of statu tory claims. Since the employees there had not agreed to arbitrate their statutory claims, and the labor arbitrators were not authorized to resolve such claims, the arbitration Cite as: 556 U. S. (009) 15 Opinion of the Court in those cases understandably was held not to preclude subsequent statutory actions.” ; see also 55 U.S., at 76; n. 17 and its progeny thus do not control the outcome where, as is the case here, the collec tive-bargaining agreement’s arbitration provision ex pressly covers both statutory and contractual discrimina tion claims.8 —————— 7 JUSTICE SOUTER’s reliance on v. Universal Maritime Service to support its view of is misplaced. See post, at 5, 7. identified the “tension” between the two lines of cases represented by and but found “it unnecessary to resolve the question of the validity of a union negotiated waiver, since it [was] apparent on the facts and argu ments presented that no such waiver [had] occurred.” 55 U.S., at 76–77. And although his dissent describes ’s characterization of as “raising a ‘seemingly absolute prohibition of union waiver of employees’ federal forum rights,’ ” post, at 7 (quoting ), it wrenches the statement out of context: “Although [the right to a judicial forum] is not a substantive right, see 500 U.S., and
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forum] is not a substantive right, see 500 U.S., and whether or not ’s seemingly absolute prohibition of union waiver of employees’ federal forum rights survives at least stands for the proposition that the right to a federal judicial forum is of sufficient importance to be pro tected against less-than-explicit union waiver in a CBA,” (emphasis added). therefore neither endorsed ’s broad language nor suggested a particular result in this case. 8 Because today’s decision does not contradict the holding of Gardner- we need not resolve the stare decisis concerns raised by the dissenting opinions. See post, at 4, 9 (opinion of SOUTER, J.); post, at – 4 (opinion of STEVENS, J.). But given the development of this Court’s arbitration jurisprudence in the intervening years, see infra, at 16–19, would appear to be a strong candidate for overruling if the dissents’ broad view of its holding, see post, at 6–7 (opinion of SOUTER, J.), were correct. See Patterson v. McLean Credit Union, 4 U.S. 164, 173 (explaining that it is appropriate to overrule a decision where there “has been [an] intervening development of the law” such that the earlier “decision [is] irreconcilable with competing legal doctrines and policies”). 16 14 PENN PLAZA LLC v. PYETT Opinion of the Court We recognize that apart from their narrow holdings, the line of cases included broad dicta that was highly critical of the use of arbitration for the vindica tion of statutory antidiscrimination rights. That skepti cism, however, rested on a misconceived view of arbitra tion that this Court has since abandoned. First, the Court in erroneously as sumed that an agreement to submit statutory discrimina tion claims to arbitration was tantamount to a waiver of those rights. See (“[T]here can be no prospective waiver of an employee’s rights under Title VII” (emphasis added)). For this reason, the Court stated, “the rights conferred [by Title VII] can form no part of the collective-bargaining process since waiver of these rights would defeat the paramount congressional purpose behind Title VII.” ; see also (“we have long recog nized that ‘the choice of forums inevitably affects the scope of the substantive right to be vindicated’ ” (quoting U. S. Bulk Carriers, 359–360 (1971) (Harlan, J., concurring))). The Court was correct in concluding that federal anti discrimination rights may not be prospectively waived, see 9 U.S. C. (C); see but it confused an agreement to arbitrate those statutory claims with a prospective waiver of the substantive right. The decision to resolve ADEA claims by way of arbitration instead of litigation does not waive the statutory right to
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instead of litigation does not waive the statutory right to be free from workplace age discrimination; it waives only the right to seek relief from a court in the first instance. See (“ ‘[B]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbi tral, rather than a judicial, forum’ ” (quoting Mitsubishi Motors 473 U.S., at )). This “Court has been quite specific in holding that arbitration agreements can Cite as: 556 U. S. (009) 17 Opinion of the Court be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.” Circuit City Stores, 53 U.S., at The suggestion in that the decision to arbitrate statutory discrimination claims was tantamount to a substantive waiver of those rights, therefore, reveals a distorted understanding of the compromise made when an employee agrees to compulsory arbitration. In this respect, is a direct descendant of the Court’s decision in which held that an agreement to arbitrate claims under the Securities Act of 1933 was unenforceable. See The Court subsequently overruled Wilko and, in so doing, characterized the decision as “pervaded by ‘the old judicial hostility to arbitration.’ ” Rodriguez de Quijas v. Shearson/Aican Express, 480 The Court added: “To the extent that Wilko rested on suspicion of arbitration as a method of weaken ing the protections afforded in the substantive law to would-be complainants, it has fallen far out of step with our current strong endorsement of the federal statutes favoring this method of resolving disputes.” ; see also Mitsubishi Motors at 66–67 (“[W]e are well past the time when judicial suspicion of the desir ability of arbitration and of the competence of arbitral tribunals inhibited the development of arbitration as an alternative means of dispute resolution”). The timeworn “mistrust of the arbitral process” harbored by the Court in thus weighs against reliance on anything more than its core holding. Shearson/Aican Express v. ; see also n. 5 (reiterating that Gardner- ’s view of arbitration “has been undermined by [the Court’s] recent arbitration decisions”). Indeed, in light of the “radical change, over two decades, in the Court’s re 18 14 PENN PLAZA LLC v. PYETT Opinion of the Court ceptivity to arbitration,” reliance on any judicial decision similarly littered with Wilko’s overt hostility to the enforcement of arbitration agree ments would be ill advised. 9 Second, mistakenly suggested that certain features of arbitration made it a forum “well suited to the resolution of contractual disputes,”
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a forum “well suited to the resolution of contractual disputes,” but “a compara tively inappropriate forum for the final resolution of rights created by Title VII.” 415 U.S., According to the —————— 9 JUSTICE STEVENS suggests that the Court is displacing its “earlier determination of the relevant provisions’ meaning” based on a “prefer ence for arbitration.” Post, at But his criticism lacks any basis. We are not revisiting a settled issue or disregarding an earlier determina tion; the Court is simply deciding the question identified in as unresolved. See at 5–6; see also infra, at 3–4. And, contrary to JUSTICE STEVENS’ accusation, it is the Court’s fidelity to the ADEA’s text—not an alleged preference for arbitration—that dictates the answer to the question presented. As explained, nothing in the text of Title VII or the ADEA precludes contractual arbitration, see at 8–9, and JUSTICE STEVENS has never suggested otherwise. Rather, he has always contended that permitting the “compulsory arbitration” of employment discrimination claims conflicts with his perception of “the congressional purpose animating the ADEA.” Gil ; see also (“Plainly, it would not comport with the congressional objectives behind a statute seeking to enforce civil rights protected by Title VII to allow the very forces that had practiced discrimination to contract away the right to enforce civil rights in the courts” (internal quotation marks omitted)). The Court did not adopt JUSTICE STEVENS’ personal view of the purposes underlying the ADEA, for good reason: That view is not embodied within the statute’s text. Accordingly, it is not the statutory text that JUSTICE STEVENS has sought to vindicate—it is instead his own “preference” for mandatory judicial review, which he disguises as a search for congressional purpose. This Court is not empowered to incorporate such a preference into the text of a federal statute. See infra, at 0–1. It is for this reason, and not because of a “policy favoring arbitration,” see post, at 1, 3 that the Court overturned And it is why we disavow the antiarbitration dicta of and its progeny today. Cite as: 556 U. S. (009) 19 Opinion of the Court Court, the “factfinding process in arbitration” is “not equivalent to judicial factfinding” and the “informality of arbitral procedure makes arbitration a less appropri ate forum for final resolution of Title VII issues than the federal courts.” The Court also questioned the competence of arbitrators to decide federal statutory claims. See (“[T]he specialized competence of arbitrators pertains primarily to the law of the shop, not the law of the land”); (“Al though an arbitrator may be competent to resolve many preliminary
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though an arbitrator may be competent to resolve many preliminary factual questions, such as whether the em ployee ‘punched in’ when he said he did, he may lack competence to decide the ultimate legal issue whether an employee’s right to a minimum wage or to overtime pay under the statute has been violated”). In the Court’s view, “the resolution of statutory or constitutional issues is a primary responsibility of courts, and judicial construction has proved especially necessary with respect to Title VII, whose broad language frequently can be given meaning only by reference to public law concepts.” Gardner- ; see also (“An arbitrator may not have the expertise required to resolve the complex legal questions that arise in actions”). These misconceptions have been corrected. For exam ple, the Court has “recognized that arbitral tribunals are readily capable of handling the factual and legal complexi ties of antitrust claims, notwithstanding the absence of judicial instruction and supervision” and that “there is no reason to assume at the outset that arbitrators will not follow the law.” ; Mitsubishi Motors (“We decline to indulge the presumption that the parties and arbitral body conducting a proceeding will be unable or unwilling to retain compe tent, conscientious, and impartial arbitrators”). An arbi trator’s capacity to resolve complex questions of fact and 0 14 PENN PLAZA LLC v. PYETT Opinion of the Court law extends with equal force to discrimination claims brought under the ADEA. Moreover, the recognition that arbitration procedures are more streamlined than federal litigation is not a basis for finding the forum somehow inadequate; the relative informality of arbitration is one of the chief reasons that parties select arbitration. Parties “trad[e] the procedures and opportunity for review of the courtroom for the simplicity, informality, and expedition of arbitration.” at In any event, “[i]t is unlikely that age discrimination claims require more extensive discovery than other claims that we have found to be arbitrable, such as RICO and antitrust claims.” At bottom, objections centered on the nature of arbitration do not offer a credible basis for dis crediting the choice of that forum to resolve statutory antidiscrimination claims.10 Third, the Court in raised in a footnote a “further concern” regarding “the union’s exclusive con trol over the manner and extent to which an individual grievance is presented.” n. 19. The Court suggested that in arbitration, as in the collective bargaining process, a union may subordinate the interests of an individual employee to the collective interests of all employees in the bargaining unit. ; see also McDon at (“The union’s interests and those of the
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also McDon at (“The union’s interests and those of the individual employee are not always identical or even compatible. As a result, the union may present the em ployee’s grievance less vigorously, or make different stra —————— 10 Moreover, an arbitrator’s decision as to whether a unionized em ployee has been discriminated against on the basis of age in violation of the ADEA remains subject to judicial review under the FAA. 9 U.S. C. “[A]lthough judicial scrutiny of arbitration awards necessarily is limited, such review is sufficient to ensure that arbitrators comply with the requirements of the statute.” Shearson/Aican Express v. Cite as: 556 U. S. (009) 1 Opinion of the Court tegic choices, than would the employee”); see also Barren ; post, at 8, n. 4 (SOUTER, J., dissenting). We cannot rely on this judicial policy concern as a source of authority for introducing a qualification into the ADEA that is not found in its text. Absent a constitu tional barrier, “it is not for us to substitute our view of policy for the legislation which has been passed by Con gress.” Florida Dept. of Revenue v. Piccadilly Cafeterias, 554 U. S. (008) (slip op., at 18) (internal quotation marks omitted). Congress is fully equipped “to identify any category of claims as to which agreements to arbitrate will be held unenforceable.” Mitsubishi Motors Until Congress amends the ADEA to meet the conflict-of-interest concern identified in the dicta, and seized on by respondents here, there is “no reason to color the lens through which the arbitration clause is read” simply because of an alleged conflict of interest between a union and its members. Mitsubishi Motors at This is a “battl[e] that should be fought among the political branches and the industry. Those parties should not seek to amend the statute by appeal to the Judicial Branch.” Barnhart v. Sigmon Coal Co., The conflict-of-interest argument also proves too much. Labor unions certainly balance the economic interests of some employees against the needs of the larger work force as they negotiate collective-bargain agreements and im plement them on a daily basis. But this attribute of or ganized labor does not justify singling out an arbitration provision for disfavored treatment. This “principle of majority rule” to which respondents object is in fact the central premise of the NLRA. Emporium Capwell Co. v. Western Addition Community Organization, 6 (19). “In establishing a regime of majority rule, Congress sought to secure to all members of the unit the benefits of their collective strength and bargaining power, 14 PENN PLAZA LLC v. PYETT Opinion of the
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power, 14 PENN PLAZA LLC v. PYETT Opinion of the Court in full awareness that the superior strength of some indi viduals or groups might be subordinated to the interest of the majority.” ; see also Ford Motor (“The complete satisfaction of all who are represented is hardly to be expected”); Pennsylvania R. Co. v. Rychlik, 35 U.S. 480, 498 (1957) (Frankfurter, J., concurring). It was Con gress’ verdict that the benefits of organized labor outweigh the sacrifice of individual liberty that this system neces sarily demands. Respondents’ argument that they were deprived of the right to pursue their ADEA claims in federal court by a labor union with a conflict of interest is therefore unsustainable; it amounts to a collateral attack on the NLRA. In any event, Congress has accounted for this conflict of interest in several ways. As indicated above, the NLRA has been interpreted to impose a “duty of fair representa tion” on labor unions, which a union breaches “when its conduct toward a member of the bargaining unit is arbi trary, discriminatory, or in bad faith.” This duty extends to “chal lenges leveled not only at a union’s contract administra tion and enforcement efforts but at its negotiation activi ties as well.” Thus, a union is subject to liability under the NLRA if it illegally discriminates against older workers in either the formation or governance of the collective-bargaining agree ment, such as by deciding not to pursue a grievance on behalf of one of its members for discriminatory reasons. See (describing the duty of fair representation as the “statutory obligation to serve the interests of all members without hostility or discrimination toward any, to exercise its discretion with complete good faith and honesty, and to avoid arbitrary conduct” (emphasis added)). Respondents in fact brought a fair representation suit against the Union based on its Cite as: 556 U. S. (009) 3 Opinion of the Court withdrawal of support for their age-discrimination claims. See n. Given this avenue that Congress has made available to redress a union’s violation of its duty to its members, it is particularly inappropriate to ask this Court to impose an artificial limitation on the collective bargaining process. In addition, a union is subject to liability under the ADEA if the union itself discriminates against its mem bers on the basis of age. See 9 U.S. C. §63(d); see also 1 B. Lindemann & P. Grossman, Employment Discrimina tion Law 15–1581 (4th ed. 007) (explaining that a labor union may be held jointly liable with an employer under federal antidiscrimination laws for discriminating
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liable with an employer under federal antidiscrimination laws for discriminating in the formation of a collective-bargaining agreement, knowingly acquiescing in the employer’s discrimination, or inducing the employer to discriminate); cf. 48 U.S. 656, Union members may also file age-discrimination claims with the EEOC and the National Labor Relations Board, which may then seek judicial intervention under this Court’s precedent. See EEOC v. Waffle House, 534 U.S. 79, 95–96 In sum, Congress has provided remedies for the situation where a labor union is less than vigorous in defense of its members’ claims of discrimination under the ADEA. III Finally, respondents offer a series of arguments con tending that the particular CBA at issue here does not clearly and unmistakably require them to arbitrate their ADEA claims. See Brief for Respondents –47. But respondents did not raise these contract-based arguments in the District Court or the Court of Appeals. To the contrary, respondents acknowledged on appeal that the CBA provision requiring arbitration of their federal anti discrimination statutory claims “is sufficiently explicit” in 4 14 PENN PLAZA LLC v. PYETT Opinion of the Court precluding their federal lawsuit. Brief for Plaintiffs- Appellees in No. 06–3047–cv(L) etc. (CA), p. 9. In light of respondents’ litigating position, both lower courts assumed that the CBA’s arbitration clause clearly applied to re spondents and proceeded to decide the question left unre solved in We granted review of the question presented on that understanding. “Without cross-petitioning for certiorari, a prevailing party may, of course, ‘defend its judgment on any ground properly raised below whether or not that ground was relied upon, rejected, or even considered by the District Court or the Court of Appeals.’ ” Granfinanciera, S. A. v. 49 U.S. 33, (quoting Washington v. Confederated Bands and Tribes of Yakima Nation, 439 U.S. 463, 476, n. 0 (1979)). But this Court will affirm on grounds that have “ ‘not been raised below “only in exceptional cases.” ’ ” ). This is not an “exceptional case.” As a result, we find that respondents’ alternative arguments for affirmance have been forfeited. See, e.g., Rita v. United States, 551 U.S. 360 (007); Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 We will not resurrect them on respon dents’ behalf. Respondents also argue that the CBA operates as a substantive waiver of their ADEA rights because it not only precludes a federal lawsuit, but also allows the Union to block arbitration of these claims. Brief for Respondents 8–30. Petitioners contest this characterization of the CBA, see Reply Brief for Petitioners 3–7, and offer record evidence suggesting that the
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for Petitioners 3–7, and offer record evidence suggesting that the Union has allowed respondents to continue with the arbitration even though the Union has declined to participate, see App. to Pet. for Cert. 4a. But not only does this question require resolu tion of contested factual allegations, it was not fully briefed to this or any court and is not fairly encompassed Cite as: 556 U. S. (009) 5 Opinion of the Court within the question presented, see this Court’s Rule 14.1(a). Thus, although a substantive waiver of federally protected civil rights will not be upheld, see Mitsubishi Motors and n. 19; 500 U.S., at 9, we are not positioned to resolve in the first instance whether the CBA allows the Union to prevent respondents from “effectively vindicating” their “federal statutory rights in the arbitral forum,” Green Tree Finan cial -Ala. v. Randolph, (000). Reso lution of this question at this juncture would be particu larly inappropriate in light of our hesitation to invalidate arbitration agreements on the basis of speculation. See at IV We hold that a collective-bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of fed eral law. The judgment of the Court of Appeals is re versed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 556 U. S. (009) 1 STEVENS, J., dissenting SUPREME COURT OF THE UNITED STATES No. 07–581 14 PENN PLAZA LLC, ET AL., PETITIONERS v. STEVEN PYETT ET AL.
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dissenting
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Tennessee Student Assistance Corporation v. Hood
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https://www.courtlistener.com/opinion/134741/tennessee-student-assistance-corporation-v-hood/
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We grated certiorari i this case to decide whether Cogress has the authority to abrogate state sovereig immuity uder the Bakruptcy Clause. Istead of aswerig this questio, the Court addresses a more difficult oe regardig the extet to which a bakruptcy court's exercise of its i rem jurisdictio could offed the sovereigty of a creditor-State. I recogize that, as the Court cocludes today, the i rem ature of bakruptcy proceedigs might affect the ability of a debtor to obtai, by motio, a bakruptcy court determiatio that affects a creditor-State's rights, but I would ot reach this difficult questio here. Eve if the Bakruptcy Court could have exercised its i rem jurisdictio to make a udue hardship determiatio by motio, I caot igore the fact that the determiatio i this case was sought pursuat to a adversary proceedig. Uder Federal Maritime the adversary proceedig here clearly costitutes a suit agaist the State for sovereig immuity purposes. I would thus reach the easier questio preseted ad coclude that Cogress lacks authority to abrogate state sovereig immuity uder the Bakruptcy Clause. I The Court avoids addressig respodet's pricipal argumet which was the basis for the Court of Appeals' decisio ad which this Court grated certiorari i order to address amely, that Cogress possesses the power uder the Bakruptcy Clause to abrogate a State's sovereig immuity from suit. Istead, the Court affirms the judgmet of the Court of Appeals based o respodet's alterative argumet, ate, at 445, that the Bakruptcy Court's decisio was "a appropriate exercise of [its] i rem jurisdictio," Brief for Respodet 35. Although respodet advaced this argumet i the proceedigs before the Bakruptcy Appellate Pael of the Sixth Circuit, Brief for Appellee i No. 00-62, p. 8, she declied to do so i the Court of Appeals. Ideed, before that court, respodet relied etirely o Cogress' ability to abrogate state sovereig immuity uder the Bakruptcy Clause rather tha o ay i rem theory because, uder her readig of "there is o i rem exceptio to a state's Eleveth Amedmet immuity" i bakruptcy. Brief for Appellee i No. 01-5769 (CA6), p. 24. Furthermore, respodet did ot raise the i rem argumet i her brief i oppositio before this Court. Uder this Court's Rule 15.2, we may deem this argumet waived. Caterpillar Ad, we should do so here both because the argumet is irrelevat to this case, ad because the i rem questio is both complex ad ucertai, see Baldwi v. Reese, ate, p. 27. *457 A I Federal Maritime Comm', South Carolia Maritime Services, Ic. (SCMS), filed a complait with
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dissenting
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Tennessee Student Assistance Corporation v. Hood
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South Carolia Maritime Services, Ic. (SCMS), filed a complait with the Federal Maritime Commissio (FMC), a idepedet agecy, allegig that a state-ru port had violated the Shippig Act of 1984, 46 U.S. C. App. 1701 et seq. We assumed without decidig that the FMC does ot exercise "judicial power," ad oetheless held that state sovereig immuity barred the adjudicatio of SCMS' complait. Federal Maritime Comm' tured o the "overwhelmig" similarities betwee FMC proceedigs ad civil litigatio i federal courts. For example, FMC's rules goverig pleadigs ad discovery are very similar to the aalogous Federal Rules of Civil Procedure. Moreover, we oted that "the role of the [admiistrative law judge], the impartial officer desigated to hear a case, is similar to that of a Article III judge." Based o these similarities, we held that, for purposes of state sovereig immuity, the adjudicatio before the FMC was idistiguishable from a adjudicatio i a Article III tribual. See Thus, Federal Maritime Comm' recogized that if the Framers would have foud it a "impermissible affrot to a State's digity to be required to aswer the complaits of private parties i federal courts," the Framers would have foud it equally impermissible to compel States to do so simply because the adjudicatio takes place i a Article I rather tha a Article III court. Although the Court igores Federal Maritime Comm' altogether, its reasoig applies to this case. The similarities betwee adversary proceedigs i bakruptcy ad federal civil litigatio are strikig. Ideed, the Federal Rules of Civil Procedure gover adversary proceedigs i substatial part. The proceedigs are commeced by the filig of a complait, Fed. Rule Bkrtcy. Proc. 7003; process is served, *4 Rule 7005; the opposig party is required to file a aswer, Rule 7007; ad the opposig party ca file couterclaims agaist the movat, Rule 7013. Federal Rule of Civil Procedure 8 applies to the parties' pleadigs. Fed. Rule Bkrtcy. Proc. 7008. Eve the form of the parties' pleadigs must comply with the federal rules for civil litigatio. Rule 7010. "Likewise, discovery i [adversary proceedigs] largely mirrors discovery i federal civil litigatio." Federal Maritime Comm', See Fed. Rules Bkrtcy. Proc. 7026-7037 (applyig Fed. Rules Civ. Proc. 26-37 to adversary proceedigs). Ad, whe a party fails to aswer or appear i a adversary proceedig, the Federal Rule goverig default judgmets applies. Fed. Rule Bkrtcy. Proc. 7055 (adoptig Fed. Rule Civ. Proc. 55). I spite of these similarities, the Court cocludes that, because the bakruptcy court's jurisdictio is premised o the res, the issuace of process i this case, as opposed to all others, does ot
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