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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
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https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
upon by the parties in defining the limits of the fund and demonstrating its inadequacy.[26] When a district *849 court, as here, certifies for class action settlement only, the moment of certification requires "heightene[d] attention," 521 U. S., to the justifications for binding the class members. This is so because certification of a mandatory settlement class, however provisional technically, effectively concludes the proceeding save for the final fairness hearing. And, as we held in a fairness hearing under Rule 23(e) is no substitute for rigorous adherence to those provisions of the Rule "designed to protect absentees," ib among them subdivision (b)(1)(B).[27] Thus, in an action such as this the settling parties must present not only their agreement, but evidence on which the district court may ascertain the limit and the insufficiency of the fund, with support in findings of fact following a proceeding in which the evidence is subject to challenge, see In re Bendect in Products Liability Litigation, ; see also In re Temple, ; In re Dennis Greenman Securities Litigation, We have already alluded to the difficulties facing limited fund treatment of huge numbers of actions for unliquidated damages arising from mass torts, the first such hurdle being a computation of the total claims. It is simply not a matter of adding up the liquidated amounts, as in the models of limited fund actions. Although we might assume, arguendo, that prior judicial experience with asbestos claims would allow a court to make a sufficiently reliable determination of the probable total, the District Court here apparently thought otherwise, concluding that "there is no way to predict Fibreboard's future asbestos liability with any certainty." 162 F. R. D., at 528. Nothing turns on this conclusion, however, since there was no adequate demonstration of the second element required for limited fund treatment, the upper limit of the fund itself, without which no showing of insufficiency is possible. The "fund" in this case comprised both the general assets of Fibreboard and the insurance assets provided by the two policies, see 90 F.3d, As to Fibreboard's assets exclusive of the contested insurance, the District Court and the Fifth Circuit concluded that Fibreboard had a then-current sale value of $235 million that could be devoted to the limited fund. While that estimate may have been conservative,[28] at least the District Court heard evidence *851 and made an independent finding at some point in the proceedings. The same, however, cannot be said for the value of the disputed insurance. The insurance assets would obviously be "limited" in the traditional sense if the total of demonstrable
|
Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
"limited" in the traditional sense if the total of demonstrable claims would render the insurers insolvent, or if the policies provided aggregate limits falling short of that total; calculation might be difficult, but the way to demonstrate the limit would be clear. Neither possibility is presented in this case, however. Instead, any limit of the insurance asset here had to be a product of potentially unlimited policy coverage discounted by the risk that Fibreboard would ultimately lose the coverage dispute litigation. This sense of limit as a value discounted by risk is of course a step removed from the historical model, but even on the assumption that it would suffice for limited fund treatment, there was no adequate finding of fact to support its application here. Instead of undertaking an independent evaluation of potential insurance funds, the District Court (and, later, the Court of Appeals), simply accepted the $2 billion Trilateral Settlement Agreement figure as representing the maximum amount the insurance companies could be required to pay tort victims, concluding that "[w]here insurance coverage is disputed, it is appropriate to value the insurance asset at a settlement value." App. to Pet. for Cert. 492a.[29] *852 Settlement value is not always acceptable, however. One may take a settlement amount as good evidence of the maximum available if one can assume that parties of equal knowledge and negotiating skill agreed upon the figure through arms-length bargaining, unhindered by any considerations tugging against the interests of the parties ostensibly represented in the negotiation. But no such assumption may be indulged in this case, or probably in any class action settlement with the potential for gigantic fees.[30] In this case, certainly, any assumption that plaintiffs' counsel could be of a mind to do their simple best in bargaining for the benefit of the settlement class is patently at odds with the fact that at least some of the same lawyers representing plaintiffs and the class had also negotiated the separate settlement of 45,000 pending claims, -970, 971, the full payment of which was contingent on a successful Global Settlement Agreement or the successful resolution of the insurance coverage dispute (either by litigation or by agreement, as eventually occurred in the Trilateral Settlement Agreement), ; App. 119a-120a. Class counsel thus had great incentive to reach any agreement in the global settlement negotiations that they thought might survive a Rule 23(e) fairness hearing, rather than the best possible arrangement for the substantially unidentified global settlement class. Cf. Cramton, Individualized Justice, Mass *853 Torts, and "Settlement Class Actions": An Introduction, The resulting incentive to favor the known
|
Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
Actions": An Introduction, The resulting incentive to favor the known plaintiffs in the earlier settlement was, indeed, an egregious example of the conflict noted in resulting from divergent interests of the presently injured and future claimants. See -627 We do not, of course, know exactly what an independent valuation of the limit of the insurance assets would have shown. It might have revealed that even on the assumption that Fibreboard's coverage claim was sound, there would be insufficient assets to pay claims, considered with reference to their probable timing; if Fibreboard's own assets would not have been enough to pay the insurance shortfall plus any claims in excess of policy limits, the projected insolvency of the insurers and Fibreboard would have indicated a truly limited fund. (Nothing in the record, however, suggests that this would have been a supportable finding.) Or an independent valuation might have revealed assets of insufficient value to pay all projected claims if the assets were discounted by the prospects that the insurers would win the coverage cases. Or the court's independent valuation might have shown, discount or no discount, the probability of enough assets to pay all projected claims, precluding certification of any mandatory class on a limited fund rationale. Throughout this litigation the courts have accepted the assumption that the third possibility was out of the question, and they may have been right. But objecting and unidentified class members alike are entitled to have the issue settled by specific evidentiary findings independent of the agreement of defendants and conflicted class counsel. *854 B The explanation of need for independent determination of the fund has necessarily anticipated our application of the requirement of equity among members of the class. There are two issues, the inclusiveness of the class and the fairness of distributions to those within it. On each, this certification for settlement fell short. The definition of the class excludes myriad claimants with causes of action, or foreseeable causes of action, arising from exposure to Fibreboard asbestos. While the class includes those with present claims never filed, present claims withdrawn without prejudice, and future claimants, it fails to include those who had previously settled with Fibreboard while retaining the right to sue again "upon development of an asbestos related malignancy," plaintiffs with claims pending against Fibreboard at the time of the initial announcement of the Global Settlement Agreement, and the plaintiffs in the "inventory" claims settled as a supposedly necessary step in reaching the global settlement, see The number of those outside the class who settled with a reservation of rights may be uncertain,
|
Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
who settled with a reservation of rights may be uncertain, but there is no such uncertainty about the significance of the settlement's exclusion of the 45,000 inventory plaintiffs and the plaintiffs in the unsettled present cases, estimated by the Guardian Ad Litem at more than 53,000 as of August 27, see App. in No. 95-635 (CA5), 6 Record, Tab 55, p. 72 (Report of the Guardian Ad Litem). It is a fair question how far a natural class may be depleted by prior dispositions of claims and still qualify as a mandatory limited fund class, but there can be no question that such a mandatory settlement class will not qualify when in the very negotiations aimed at a class settlement, class counsel agree to exclude what could turn out to be as much as a third of the claimants that negotiators thought might eventually be involved, a substantial number of whom class counsel represent, see App. to Pet. for Cert. *855 321a (noting that the parties negotiating the global settlement agreed to use a negotiating benchmark of 186,000 future claims against Fibreboard). Might such class exclusions be forgiven if it were shown that the class members with present claims and the outsiders ended up with comparable benefits? The question is academic here. On the record before us, we cannot speculate on how the unsettled claims would fare if the global settlement were approved, or under the trilateral settlement. As for the settled inventory claims, their plaintiffs appeared to have obtained better terms than the class members. They received an immediate payment of 50 percent of a settlement higher than the historical average, and would get the remainder if the global settlement were sustained (or the coverage litigation resolved, as it turned out to be by the Trilateral Settlement Agreement); the class members, by contrast, would be assured of a 3-year payout for claims settled, whereas the unsettled faced a prospect of mediation followed by arbitration as prior conditions of instituting suit, which would even then be subject to a recovery limit, a slower payout, and the limitations of the trust's spendthrift protection. See Finally, as discussed below, even ostensible parity between settling nonclass plaintiffs and class members would be insufficient to overcome the failure to provide the structural protection of independent representation as for subclasses with conflicting interests. On the second element of equity within the class, the fairness of the distribution of the fund among class members, the settlement certification is likewise deficient. Fair treatment in the older cases was characteristically assured by straightforward pro rata distribution of the
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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
was characteristically assured by straightforward pro rata distribution of the limited fund. See While equity in such a simple sense is unattainable in a settlement covering present claims not specifically proven and claims not even due to arise, if at all, until some future time, at the least such a settlement must *856 seek equity by providing for procedures to resolve the difficult issues of treating such differently situated claimants with fairness as among themselves. First, it is obvious after that a class divided between holders of present and future claims (some of the latter involving no physical injury and attributable to claimants not yet born) requires division into homogeneous subclasses under Rule 23(c)(4)(B), with separate representation to eliminate conflicting interests of counsel. See ; cf. 5 J. Moore, T. Chorvat, D. Feinberg, R. Marmer, & J. Solovy, Moore's Federal Practice 23.25[5][e], p. 23-149 (an attorney who represents another class against the same defendant may not serve as class counsel).[31] As we said in "for the currently injured, the critical goal is generous immediate payments," but "[t]hat goal tugs against the interest of exposure-only plaintiffs in ensuring an ample, inflationprotected fund for the future." No such procedure was employed here, and the conflict was as contrary to the equitable obligation entailed by the limited fund *857 rationale as it was to the requirements of structural protection applicable to all class actions under Rule 23(a)(4). Second, the class included those exposed to Fibreboard's asbestos products both before and after 1959. The date is significant, for that year saw the expiration of Fibreboard's insurance policy with Continental, the one that provided the bulk of the insurance funds for the settlement. Pre-1959 claimants accordingly had more valuable claims than post1959 claimants, see -1013 the consequence being a second instance of disparate interests within the certified class. While at some point there must be an end to reclassification with separate counsel, these two instances of conflict are well within the requirement of structural protection recognized in It is no answer to say, as the Fifth Circuit said on remand, that these conflicts may be ignored because the settlement makes no disparate allocation of resources as between the conflicting classes. See 134 F.3d, at The settlement decides that the claims of the immediately injured deserve no provisions more favorable than the more speculative claims of those projected to have future injuries, and that liability subject to indemnification is no different from liability with no indemnification. The very decision to treat them all the same is itself an allocation decision with results almost certainly different
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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
is itself an allocation decision with results almost certainly different from the results that those with immediate injuries or claims of indemnified liability would have chosen. Nor does it answer the settlement's failures to provide structural protections in the service of equity to argue that the certified class members' common interest in securing contested insurance funds for the payment of claims was so weighty as to diminish the deficiencies beneath recognition here. See Brief for Respondent Class Representatives Ahearn et al. 31 (discussing this issue in the context of the Rule 23(a)(4) adequacy of representation requirement); *858 at 35-36 ; In re "Agent Orange" Product Liability Litigation, ). This argument is simply a variation of the position put forward by the proponents of the settlement in who tried to discount the comparable failure in that case to provide separate representatives for subclasses with conflicting interests, see Brief for Petitioners in Products, O. T. No. 96-270, p. 48 (arguing that "achieving a global settlement" was "an overriding concern that all plaintiffs [held] in common"); see also The current position is just as unavailing as its predecessor in There we gave the argument no weight, see -628, observing that "[t]he benefits asbestos-exposed persons might gain from the establishment of a grand-scale compensation scheme is a matter fit for legislative consideration," but the determination whether "proposed classes are sufficiently cohesive to warrant adjudication" must focus on "questions that preexist any settlement,"[32] Here, just as in the earlier case, the proponents of the settlement are trying to rewrite Rule 23; each ignores the fact that Rule 23 requires protections under subdivisions (a) and (b) against inequity and potential inequity at the precertification stage, quite independently of the required determination at postcertification fairness review under subdivision (e) that any settlement is fair in an overriding sense. A fairness hearing under subdivision (e) can no more swallow the preceding protective requirements *859 of Rule 23 in a subdivision (b)(1)(B) action than in one under subdivision (b)(3).[33] C A third contested feature of this settlement certification that departs markedly from the limited fund antecedents is the ultimate provision for a fund smaller than the assets understood by the Court of Appeals to be available for payment of the mandatory class members' claims; most notably, Fibreboard was allowed to retain virtually its entire net worth. Given our treatment of the two preceding deficiencies of the certification, there is of course no need to decide whether this feature of the agreement would alone be fatal to the Global Settlement Agreement. To ignore it entirely, however, would be so misleading
|
Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
Agreement. To ignore it entirely, however, would be so misleading that we have decided simply to identify the issue it raises, without purporting to resolve it at this time. Fibreboard listed its supposed entire net worth as a component of the total (and allegedly inadequate) assets available for claimants, but subsequently retained all but $500,000 *860 of that equity for itself.[34] On the face of it, the arrangement seems irreconcilable with the justification of necessity in denying any opportunity for withdrawal of class members whose jury trial rights will be compromised, whose damages will be capped, and whose payments will be delayed. With Fibreboard retaining nearly all its net worth, it hardly appears that such a regime is the best that can be provided for class members. Given the nature of a limited fund and the need to apply its criteria at the certification stage, it is not enough for a District Court to say that it "need not ensure that a defendant designate a particular source of its assets to satisfy the class' claims; [but only that] the amount recovered by the class [be] fair." Ahearn, 162 F. R. D., The District Court in this case seems to have had a further point in mind, however. One great advantage of class action treatment of mass tort cases is the opportunity to save the enormous transaction costs of piecemeal litigation, an advantage to which the settlement's proponents have referred in this case.[35] Although the District Court made no specific *861 finding about the transaction cost saving likely from this class settlement, estimating the amount in the "hundreds of millions," it did conclude that the amount would exceed Fibreboard's net worth as the Court valued it, If a settlement thus saves transaction costs that would never have gone into a class member's pocket in the absence of settlement, may a credit for some of the savings be recognized in a mandatory class action as an incentive to settlement? It is at least a legitimate question, which we leave for another day. V Our decision rests on a different basis from the ground of Justice Breyer's dissent, just as there was a difference in approach between majority and dissenters in The nub of our position is that we are bound to follow Rule 23 as we understood it upon its adoption, and that we are not free to alter it except through the process prescribed by Congress in the Rules Enabling Act. Although, as the dissent notes, post, at 882, the revised text adopted in 1966 was understood (somewhat cautiously) to authorize
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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
text adopted in 1966 was understood (somewhat cautiously) to authorize the courts to provide for class treatment of mass tort litigation, it was also *862 the Court's understanding that the Rule's growing edge for that purpose would be the opt-out class authorized by subdivision (b)(3), not the mandatory class under subdivision (b)(1)(B), see While we have not ruled out the possibility under the present Rule of a mandatory class to deal with mass tort litigation on a limited fund rationale, we are not free to dispense with the safeguards that have protected mandatory class members under that theory traditionally. Apart from its effect on the requirements of subdivision (a) as explained and held binding in the dissent would move the standards for mandatory actions in the direction of opt-out class requirements by according weight to this "unusual limited fund[`s] witching hour," post, at in exercising discretion over class certification. It is on this belief (that we should sustain the allowances made by the District Court in consideration of the exigencies of this settlement proceeding) that the dissent addresses each of the criteria for limited fund treatment (demonstrably insufficient fund, intraclass equity, and dedication of the entire fund, see post, at 873-883). As to the calculation of the fund, the dissent believes an independent valuation by the District Court may be dispensed with here in favor of the figure agreed upon by the settling parties. The dissent discounts the conflicts on the part of class counsel who negotiated the Global Settlement Agreement by arguing that the "relevant" settlement negotiation, and hence the relevant benchmark for judging the actual value of the insurance amount, was the negotiation between Fibreboard and the insurers that produced the Trilateral Settlement Agreement. See post, at 876. This argument, however, minimizes two facts: (1) that Fibreboard and the insurers made this separate, backup agreement only at the insistence of class counsel as a condition for reaching the Global Settlement Agreement; (2) even more important, that "[t]he Insurers were adamant that they would not agree *863 to pay any more in the context of a backup agreement than in a global agreement," a principle "Fibreboard acceded to" on the day the Global Settlement Agreement was announced "as the price of permitting an agreement to be reached with respect to a global settlement," Ahearn, 162 F. R. D., at 516. Under these circumstances the reliability of the Trilateral Settlement Agreement's figure is inadequate as an independent benchmark that might excuse the want of any independent judicial determination that the Global Settlement Agreement's fund was the maximum possible. In any
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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
Global Settlement Agreement's fund was the maximum possible. In any event, the dissent says, it is not crucial whether a $30 claim has to settle for $15 or $20. But it is crucial. Conflict-free counsel, as required by Rule 23(a) and might have negotiated a $20 figure, and a limited fund rationale for mandatory class treatment of a settlement-only action requires assurance that claimants are receiving the maximum fund, not a potentially significant fraction less. With respect to the requirement of intraclass equity, the dissent argues that conflicts both within this certified class and between the class as certified and those excluded from it may be mitigated because separate counsel were simply not to be had in the short time that a settlement agreement was possible before the argument (or likely decision) in the coverage case. But this is to say that when the clock is about to strike midnight, a court considering class certification may lower the structural requirements of Rule 23(a) as declared in and the parallel equity requirements necessary to justify mandatory class treatment on a limited fund theory. Finally, the dissent would excuse Fibreboard's retention of virtually all its net worth, and the loss to members of the certified class of some 13 percent of the fund putatively available to them, on the ground that the settlement made more money available than any other effort would likely have done. But even if we could be certain that this evaluation were true, this is to reargue : the settlement's fairness *864 under Rule 23(e) does not dispense with the requirements of Rules 23(a) and (b). We believe that if an allowance for exigency can make a substantial difference in the level of Rule 23 scrutiny, the economic temptations at work on counsel in class actions will guarantee enough exigencies to take the law back before and unsettle the line between mandatory class actions under subdivision (b)(1)(B) and opt-out actions under subdivision (b)(3). VI In sum, the applicability of Rule 23(b)(1)(B) to a fund and plan purporting to liquidate actual and potential tort claims is subject to question, and its purported application in this case was in any event improper. The Advisory Committee did not envision mandatory class actions in cases like this one, and both the Rules Enabling Act and the policy of avoiding serious constitutional issues counsel against leniency in recognizing mandatory limited fund actions in circumstances markedly different from the traditional paradigm. Assuming, arguendo, that a mandatory, limited fund rationale could under some circumstances be applied to a settlement class of tort claimants, it would
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Justice Souter
| 1,999 | 20 |
majority
|
Ortiz v. Fibreboard Corp.
|
https://www.courtlistener.com/opinion/118319/ortiz-v-fibreboard-corp/
|
applied to a settlement class of tort claimants, it would be essential that the fund be shown to be limited independently of the agreement of the parties to the action, and equally essential under Rules 23(a) and (b)(1)(B) that the class include all those with claims unsatisfied at the time of the settlement negotiations, with intraclass conflicts addressed by recognizing independently represented subclasses. In this case, the limit of the fund was determined by treating the settlement agreement as dispositive, an error magnified by the representation of class members by counsel also representing excluded plaintiffs, whose settlements would be funded fully upon settlement of the class action on any terms that could survive final fairness review. Those separate settlements, together with other exclusions from the claimant class, precluded adequate structural protection by subclass treatment, which was not even *865 afforded to the conflicting elements within the class as certified. The judgment of the Court of Appeals, accordingly, is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
|
Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
|
https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
|
[] South Carolina invokes the Court's original jurisdiction[1] and asks leave to file a complaint against Donald T. Regan, the Secretary of the Treasury of the United States. The State seeks an injunction and other relief, on the ground that 103(j)(1) of the Internal Revenue Code of 1954, 26 U.S. C. 103(j)(1) (1982 ed.), as added by 310(b)(1) of the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Stat. 596, is constitutionally invalid as violative of the Tenth Amendment and the doctrine of intergovernmental tax immunity. The Secretary objects to the motion on the ground that the Anti-Injunction Act, 26 U.S. C. 7421(a), bars this action[2] and, alternatively, that the Court should exercise its discretion to deny leave to file. We are not persuaded that either is a ground for denying the motion, and therefore grant the motion for leave to file the complaint. I Section 103(a) of the Internal Revenue Code (IRC) exempts from a taxpayer's gross income the interest earned on the obligations of any State.[3] In 1982, however, as part of *371 TEFRA, Congress amended 103 to restrict the types of bonds that qualify for the tax exemption granted by that section. Specifically, 310(b)(1) of TEFRA added a new provision, 103(j)(1), to the Code. Section 103(j)(1) requires that certain obligations, termed "registration-required obligation[s]," be issued in registered,[4] rather than bearer, form to qualify for the 103(a) exemption.[5] For purposes of 103 (j)(1), registration-required obligations are defined broadly to include most publicly issued obligations with maturities greater than one year.[6] If an obligation that is registration-required is issued in bearer, rather than registered, form, then 103(j)(1) provides that the interest on that obligation is taxable. Because the imposition of a tax on bearer bonds would require a State to pay its bondholders a higher rate of interest on such bonds, South Carolina argues that the practical effect of 103(j)(1) is to require it to issue its obligations in registered form. For that reason, South Carolina argues that the *372 section destroys its freedom to issue obligations in the form that it chooses. Viewing its borrowing power as essential to the maintenance of its separate and independent existence, South Carolina contends that the condition imposed by 103 (j)(1) on the exercise of that power violates the Tenth Amendment. In addition, relying on South Carolina argues that Congress may not tax the interest earned on the obligations of a State. Because 103(j)(1) imposes a tax on the interest earned on state obligations issued in bearer form, the State argues that the section is unconstitutional. Accordingly, South Carolina asks that
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Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
|
https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
|
that the section is unconstitutional. Accordingly, South Carolina asks that its motion to file the complaint be granted and that this Court award declaratory, injunctive, and other appropriate relief.[7] The Secretary does not address the merits of the State's constitutional claims. Rather, he argues that we may not grant the motion to file because this action is barred by the Anti-Injunction The Act provides, in pertinent part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed."[8] Characterizing this action as a suit to "restrai[n] the assessment or collection of" a tax, the Secretary contends that this suit is barred by the statute. The Secretary argues that establishes the single judicially created exception to the Act and that this action does not fall within that exception. We need not address *373 whether this case falls within the Williams exception for we hold that the Act was not intended to bar an action where, as here, Congress has not provided the plaintiff with an alternative legal way to challenge the validity of a tax.[9] II When enacted in 1867, the forerunner of the current Anti-Injunction Act provided that "no suit for the purpose of restraining the assessment or collection of tax shall be maintained in any court." Act of Mar. 2, 1867, 10,[10] Although the Act apparently has no recorded legislative history, Bob the circumstances of its enactment strongly suggest that Congress intended the Act to bar a suit only in situations in which Congress had provided the aggrieved party with an alternative legal avenue by which to contest the legality of a particular tax. The Act originated as an amendment to a statute that provided that "[n]o suit shall be maintained in any court for the recovery of any tax alleged to have been erroneously or illegally assessed or collected, until appeal shall have been duly made to the commissioner of internal revenue and a decision of said commissioner shall be had thereon, unless such suit shall be brought within six months from the time of said decision" Internal Revenue Act of July 13, 1866, 19, The Anti-Injunction Act amended this statute by adding the prohibition against injunctions. Act of Mar. 2, 1867, 10, 14 *. The Act, therefore, prohibited injunctions in the context of a statutory scheme that provided an alternative remedy. As we explained in "[t]he remedy of a suit to recover back the tax after it is paid is
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Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
|
https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
|
to recover back the tax after it is paid is provided by statute, and a suit to restrain its collection is forbidden." This is cogent evidence that the 1867 amendment was merely intended to require taxpayers to litigate their claims in a designated proceeding. The Secretary argues that, regardless of whether other remedies are available, a plaintiff may only sue to restrain the collection of taxes if it satisfies the narrow exception to the Act enunciated in Williams Williams did not, however, ever address, let alone decide, the question whether the Act applies when Congress has provided no alternative remedy. Indeed, as we shall see, a careful reading of Williams and its progeny supports our conclusion that the Act was not intended to apply in the absence of such a remedy. Williams was a taxpayer's suit to enjoin the District Director of the Internal Revenue Service from collecting allegedly past-due social security and unemployment taxes. The Court concluded that the Anti-Injunction Act would not apply if the taxpayer (1) was certain to succeed on the merits, and (2) could demonstrate that collection would cause him irreparable -7. Finding that the first condition had not been met, the Court concluded that the Act barred the suit. Significantly, however, Congress had provided the plaintiff in Williams with the alternative remedy of a suit for a refund. In each of this Court's subsequent cases that have applied the Williams rule, the plaintiff had the option of paying the tax and bringing a suit for a refund. Moreover, these cases make clear that the Court in Williams and its progeny did not intend to decide whether the Act would apply to an aggrieved party who could not bring a suit for a refund. *375 For example, in Bob the taxpayer sought to prevent the Service from revoking its tax-exempt status under IRC 501(c)(3). Because the suit would have restrained the collection of income taxes from the taxpayer and its contributors, as well as the collection of federal social security and unemployment taxes from the taxpayer, the Court concluded that the suit was an action to restrain "the assessment or collection of any tax" within the meaning of the Anti-Injunction 416 U.S., 38-739. Applying the Williams test, the Court found that the Act barred the suit because the taxpayer failed to demonstrate that it was certain to succeed on the 416 U.S., 49. In rejecting the taxpayer's challenge to the Act on due process grounds, however, the Court relied on the availability of a refund suit, noting that "our conclusion might well be different" if
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Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
|
https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
|
suit, noting that "our conclusion might well be different" if the aggrieved party had no access to judicial review. 46. Similarly, the Court left open the question whether the Due Process Clause would be satisfied if an organization had to rely on a "friendly donor" to obtain judicial review of the Service's revocation of its tax exemption. 47, n. 21.[11] In addition, in decided the same day as Bob the Court considered a taxpayer's action to require the Service to reinstate its tax-exempt status.[12] The Court applied the Williams test and held that the action was barred *376 by the Finally, in United the taxpayers sought to enjoin the Government from requiring that a portion of their wages be withheld. The taxpayers argued that the withholding provisions violated their First Amendment right to bear witness to their religious beliefs. The Court again applied the Williams rule and found that the suit was barred by the Anti-Injunction In both of these cases, the taxpayers argued that the Williams test was irrelevant and the Act inapplicable because they did not have adequate alternative remedies. In rejecting this argument, the Court expressly relied on the availability of refund 416 U.S., 61; This emphasis on alternative remedies would have been irrelevant had the Court meant to decide that the Act applied in the absence of such remedies. We therefore turn to that question. The analysis in Williams and its progeny of the purposes of the Act provides significant support for our holding today. Williams expressly stated that the Act was intended to protect tax revenues from judicial interference "and to require that the legal right to the disputed sums be determined in a suit for refund." 370 U. S., Similarly, the Court concluded that the Act was also designed as "protection of the collector from litigation pending a suit for refund," -8 The Court's concerns with protecting the expeditious collection of revenue and protecting the collector from litigation were expressed in the context of a procedure that afforded the taxpayer the remedy of a refund suit.[13] Nor is our conclusion inconsistent with the 1966 amendment to the Anti-Injunction In 1966, in 110(c) of the Federal Tax Lien Act, Stat. 4, Congress amended the Anti-Injunction Act to read, in pertinent *377 part, that "no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed." The central focus of the added phrase, "by any person, whether or not such person
|
Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
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https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
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added phrase, "by any person, whether or not such person is the person against whom such tax was assessed," was on third parties whose property rights competed with federal tax liens. Bob 416 U. S., 32, n. 6. Prior to the adoption of the Tax Lien Act, such parties were often unable to protect their property interests. ; H. R. Rep. No. 1884, 89th Cong., 2d Sess., 27-28 (1966).[14] Section 110(a) of the Tax Lien Act gave such third parties a right of action against the United States.[15] The amendment to the Anti-Injunction Act was primarily designed to insure that the right of action granted by 110(a) of the Federal Tax Lien Act was 416 U.S., 32, n. 6. The language added to the Anti-Injunction Act by the 1966 amendment is, therefore, largely irrelevant to the issue before us today.[16] *378 In sum, the Anti-Injunction Act's purpose and the circumstances of its enactment indicate that Congress did not intend the Act to apply to actions brought by aggrieved parties for whom it has not provided an alternative remedy.[17] In this *379 case, if the plaintiff South Carolina issues bearer bonds, its bondholders will, by virtue of 103(j)(1), be liable for the tax on the interest earned on those bonds. South Carolina will *380 incur no tax liability. Under these circumstances, the State will be unable to utilize any statutory procedure to contest the constitutionality of 103(j)(1). Accordingly, the Act cannot bar this action. The Secretary suggests that the State may obtain judicial review of its claims by issuing bearer bonds and urging a purchaser of those bonds to bring a suit contesting the legality of 103(j)(1). But the nature of this proposed remedy only buttresses our conclusion that the Act was not intended to apply to this kind of action. First, instances in which a third party may raise the constitutional rights of another are the exception rather than the rule. More important, to make use of this remedy the State "must first be able to find [an individual] willing to subject himself to the rigors of litigation against the Service, and then must rely on [him] to present the relevant arguments on [its] behalf." Bob 416 U. S., 47, n. 21. Because it is by no means certain that the State would be able to convince a taxpayer to raise its claims,[18] reliance on the remedy suggested by the Secretary would create *381 the risk that the Anti-Injunction Act would entirely deprive the State of any opportunity to obtain review of its claims. For these reasons, we should not
|
Justice Brennan
| 1,984 | 13 |
majority
|
South Carolina v. Regan
|
https://www.courtlistener.com/opinion/111104/south-carolina-v-regan/
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review of its claims. For these reasons, we should not lightly attribute to Congress an intent to require plaintiff to find a third party to contest its claims. Here, the indicia of congressional intent the Act's purposes and the circumstances of its enactment demonstrate that Congress did not intend the Act to apply where an aggrieved party would be required to depend on the mere possibility of persuading a third party to assert his claims. Rather, the Act was intended to apply only when Congress has provided an alternative avenue for an aggrieved party to litigate its claims on its own behalf.[19] Because Congress did not prescribe an alternative remedy for the plaintiff in this case, the Act does not bar this suit. III The Secretary argues that if we conclude that the Anti-Injunction Act is not a bar to this suit, we should in any event exercise our discretion to deny leave to file. He notes that the Court's jurisdiction over this suit is not exclusive and that the Court exercises its "original jurisdiction sparingly and [is] particularly reluctant to take jurisdiction of a suit where the *382A plaintiff has another adequate forum in which to settle his claim." United The State has, however, alleged that the application of 103(j)(1) will "materially interfere with and infringe upon the authority of South Carolina to borrow funds." Motion for Leave to File Complaint 16; see Additionally, 24 States have jointly submitted an amicus brief urging this Court to grant the motion to file. Unquestionably, the manner in which a State may exercise its borrowing power is a question that is of vital importance to all 50 States. Under these circumstances, we believe that it is appropriate for us to exercise our discretion in favor of hearing this case. At present, however, the record is not sufficiently developed to permit us to address the We shall therefore appoint a Special Master to develop the record. Accordingly, plaintiff's motion for leave to file a complaint is granted and a Special Master will be appointed. It is so ordered. *382B JUSTICE BLACKMUN, concurring in the judgment.
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
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https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
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The Court in this case reaches out to decide an important constitutional question even though that question is presented in the context of an abstract dispute over a hypothetical ruling of the trial court. For me, the facts present too remote and speculative an injury to federally protected rights to support the exercise of jurisdiction by this Court. Indeed, *464 examination of the record reveals for me that the Court decides today a question different from the one the trial court considered. This demonstrates how far afield we range when we cut loose from the requirement that only concrete disputes may be decided by this Court. Because I believe the Court is without authority to engage in this type of abstract adjudication of constitutional rights in a factual vacuum, I dissent. Prior to trial, and again at the close of the State's evidence, respondent Portash attempted to obtain an advance evidentiary ruling from the trial court. Though the precise nature of the ruling respondent sought is a matter of dispute, it related generally to whether and to what extent the State would be permitted to use, during cross-examination of respondent and in the rebuttal phase of its own case, information supplied by respondent under the statutory grant of immunity. When respondent failed to obtain a ruling he considered satisfactory, he refrained from testifying in his own behalf. Accordingly, he did not take the stand at the trial. He was not cross-examined. He gave no answer determined by the trial court to be materially inconsistent with any prior immunized statement on a relevant issue. The State did not seek to impeach him through use of immunized testimony. And the trial court did not rule that the State could do so in response to an inconsistent answer, or that the State could otherwise make use of immunized testimony at trial. In short, because of his failure to take the stand, respondent was never incriminated through the use of the testimony he previously had supplied under the immunity grant. Even so, the Court takes jurisdiction over this dispute and decides the merits of respondent's claim that it would have constituted a violation of his right under the Fifth and Fourteenth Amendments to be free from compelled self-incrimination had the State used immunized testimony to impeach him, assuming, of course, that he would have taken the stand, *465 that he would have given materially inconsistent answers to relevant questions, and that the State would have chosen to impeach him with prior immunized testimony. The Court justifies this assertion of jurisdiction, over the State's objection
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
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https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
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Court justifies this assertion of jurisdiction, over the State's objection that the dispute is only hypothetical, by announcing that the New Jersey courts decided the issue and held it to be properly presented on appeal. Citing cases such as and ante, at 455, the Court holds that New Jersey's determination that the federal issue properly has been presented is sufficient to allow this Court to decide the issue, notwithstanding respondent's failure to take the stand. "[T]here is nothing in federal law to prohibit New Jersey from following such a procedure," the Court holds, "or, so long as the `case or controversy' requirement of Art. III is met, to foreclose our consideration of the substantive constitutional issue now that the New Jersey courts have decided it." But the State's objection, as I understand it, goes not to whether the federal issue properly was presented in the state courts, but to whether, in light of respondent's failure to testify, the alleged claim is too remote and speculative to support jurisdiction here. As such, resolution of the State's objection turns not on the determination that the New Jersey courts recognized the federal issue as properly presented, but on the determination that there is indeed a federal issue in the case. And this latter determination depends upon whether, as a matter of federal law, there is a sufficiently concrete controversy over the scope of a federal right to support the exercise of jurisdiction by this Court. The Court tacitly recognizes this, I take it, by conceding, ante, at 455-456, that the "case or controversy" requirement of Art. III must be met and by its citation of For in Brooks, the dissenters argued that since the defendant had not taken the stand, his right *466 to be free from compelled self-incrimination had not been infringed, and therefore the defendant had not presented the Court with any federal issue "bearing on the privilege against self-incrimination." The Court answered that argument by saying that the Tennessee statute in issue imposed a burden on the right to remain silent by penalizing a defendant who asserted that right at the start of his case, and "that penalty constitute[d] the infringement of the right." at 611 n. 6. Thus, in Brooks, the Court found that there was a federal issue presented even though the defendant had not taken the stand, since it was the exercise of the right not to testify that the State burdened. As in Brooks, the Court here must believe that there was some infringement of a federal right sufficient to establish a concrete controversy capable of
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
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https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
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federal right sufficient to establish a concrete controversy capable of supporting its jurisdiction. But, unlike in Brooks, the Court takes care to omit any mention of what federal right was infringed by the hypothetical "ruling" of the trial court. It simply says that New Jersey recognized the issue as having been presented, intimates that the case is within Art. III's case-or-controversy requirement, and proceeds to the merits. What federal right it is that the "ruling" of the trial court infringed is not easy to ascertain. It would not appear that the right to remain silent, at issue in Brooks, was burdened, since respondent asserted that right without suffering any penalty for doing so. Nor did the hypothetical ruling compel respondent to incriminate himself to impeachment by use to take the stand and subject himself to impeachment by use of the immunized testimony. Respondent argues that it was his right to testify in his own behalf that the trial court infringed by threatening him with the possibility that, if he were to testify and if he were to give materially inconsistent answers to relevant questions, the court would permit the State to impeach respondent with his immunized testimony, if the State could do so. This threat, respondent now argues, deterred him from taking the stand in his own behalf, and *467 thereby constituted an unconstitutional infringement of his right to testify. Brief for Respondent 13. This appears to be the theory that the Appellate Division proceeded upon, see 151 N. J. Super. 200, 204, 209, and it appears to be the most plausible reasoning upon which one could conclude that this case involves an actual, and not hypothetical, invasion of federal rights. As such, the Court today sub silentio decides as a matter of federal law that the hypothetical ruling by a state court that it would permit impeachment with immunized testimony in certain circumstances not yet come to pass creates a sufficient infringement on the right to testify as to create a controversy capable of being adjudicated here. But this claimed burden on the right to testify is too speculative to support the exercise of jurisdiction by this Court over the ultimate dispute concerning the use of immunized testimony. On this record, we cannot tell whether respondent would have taken the stand even had he obtained the ruling he sought from the trial court. The decision by a criminal defendant to testify is often the most important decision he faces in the trial, and it seldom turns on the resolution of one factor among many. Even had respondent taken the
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
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https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
|
of one factor among many. Even had respondent taken the stand, there is no assurance he would have given inconsistent answers to questions. Indeed, respondent vigorously has argued, in this Court and in the state courts, that he would not have testified in any manner inconsistently with his immunized testimony. Moreover, even had inconsistent answers been given, the trial court would have had to determine whether the answers were offered in response to relevant and material questions before it would have permitted impeachment. And even then, there is no certainty that the State actually would have sought to use immunized materials to impeach respondent. In these circumstances, I would hold the dispute as to the use of the immunized testimony to be too remote and speculative to enable this Court to adjudicate it. Cf. Laird By finding sufficient controversy to exist in this case to reach the federal issue, the Court exercises jurisdiction over an abstract dispute of no concrete significance, and as a result renders an advisory opinion, informing respondent what the State would have been permitted to do or not do had respondent ever taken the stand. I find this adjudication of an abstract dispute not only to be beyond the jurisdiction of the Court but to be unwise as well. At a minimum, as our Brother POWELL notes, ante, at 462, a requirement that such a claim be adjudicated on appeal only when presented by a defendant who has taken the stand prevents a defendant from manufacturing constitutional challenges when he has no intention of taking the stand and testifying in his own behalf. More fundamentally, such disembodied decisionmaking removes disputes from the factual and often legal context that sharpens issues, highlights problem areas of special concern, and, above all, gives a reviewing court some notion of the practical reach of its pronouncements. Indeed, my examination of the record in this case makes me suspect that in adjudicating an abstract and academic legal question the Court has affirmed the reversal of respondent's conviction on the basis of an issue not even argued by respondent at the trial level in his attempt to obtain an advance ruling from the trial court. It is clear to me that the possible use of immunized testimony to impeach respondent was not at all respondent's concern before the trial court. At the pretrial hearing respondent's counsel conceded that if respondent gave materially inconsistent answers, he could be impeached with the grand jury testimony or prosecuted for perjury. App. 144a. Rather, respondent was attempting to obtain an advance ruling from the trial court
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
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https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
|
attempting to obtain an advance ruling from the trial court that the State could not rely on information gathered from respondent's immunized testimony in formulating questions for respondent's on cross-examination. His argument to the trial court was that unless the State could show that it discovered the information *469 that formed the basis of its questions from a source independent of his immunized testimony, the Fifth Amendment prohibited the State from asking those questions. And it was in reliance on the trial court's ruling that it would not decide in advance on this requestbut would wait until each question was asked to consider this objectionthat respondent refused to take the stand. The record at almost every point supports this interpretation of what it was that respondent sought from the trial court. For example, in the course of conceding that respondent properly would be subject to impeachment with the grand jury testimony if he gave answers at trial materially inconsistent with that testimony, respondent's counsel stated that he "merely want[ed] a ruling from the Court that, unless the door is opened, that they are not permitted to use any of [the immunized testimony] by way of cross examination, by way of rebuttal, or by way of cross examination of any of our witnesses, with the one limitation, that I think is inherent, is that except in the event of perjury" (emphasis added). App. 146a. See at 143a-148a. Similarly, when counsel renewed this argument at the close of the State's evidence, the record reveals that his concern was not with impeachment, but with the use of the immunized testimony as a basis for asking questions. Thus, counsel argued that what the immunity statute proscribed was "use [of] the fruits of his testimony to cross examine him in his testimony." at 203a.[1] *470 Concededly, in the passage the Court quotes, ante, at 454-455, the trial court stated that if respondent gave materially inconsistent answers, it would permit impeachment with the immunized testimony. But an examination of the entire discussion from which that quotation is lifted makes it clear that respondent was not seeking a ruling as to impeachment for inconsistent statements, but a limitation on the scope of cross-examination. Thus, just before the quoted exchange, respondent's counsel assured the trial court that "the direct examination will in no way be inconsistent with his grand jury [immunized] testimony," App. 220a, but that the problem concerned the use of "consistent grand jury testimony which is incriminating to convict the man on the stand." And immediately after the passage upon which the Court relies, respondent waved
|
Justice Blackmun
| 1,979 | 11 |
dissenting
|
New Jersey v. Portash
|
https://www.courtlistener.com/opinion/110038/new-jersey-v-portash/
|
after the passage upon which the Court relies, respondent waved off the impeachment issue and stated that the problem that concerned him was the use by the State of information obtained from the immunized testimony to force respondent to give answers on the stand that would incriminate him.[2] The trial court refused to rule in advance on this attempt to limit cross-examination, and it was this refusal that respondent claimed prompted his refusal to testify. at 243a. Before the Appellate Division, however, the dispute was transmuted into one over the ability of the State to impeach respondent with the immunized testimony. It was on that issue that the conviction was reversed. And it is on *471 that issue that this Court affirms that reversal. Thus, because the Court reaches out to decide a theoretical legal question presented in an abstract setting, it permits respondent to obtain a favorable ruling from this Court on an issue of federal law that he did not assert in the trial court, and that did not form the basis for his refusing to testify in that court. And I assume respondent will be free at a new trial to renew his original argument, that the State is forbidden to use what it learned from the immunized testimony in formulating questions on cross-examination. This illustrates, I think, the problems the Court will encounter in every case in which it abandons the requirement that such an issue be presented for resolution only in the context of a concrete dispute about its actual operation at trial. If this case presented simply the question whether state law had viewed the federal issue as properly presented, I could understand better the Court's desire to reach the federal issue. But though a State may decide whether a federal issue actually present in the case properly was brought to the attention of its own courts for adjudication, e. g., it never should transform an abstract dispute about a federal constitutional right into a case or controversy capable of being adjudicated in this Court simply by deciding that federal issue. Otherwise, a State, by ruling on a purely hypothetical legal question in the context of reviewing a criminal conviction, could confer Art. III jurisdiction on this Court where the facts do not support the existence of a case or controversy. I would require that respondent take the stand and actually assert the rights he seeks to vindicate in the context of an actual attempt by the State to use the immunized testimony. Because the Court does not require this, I dissent.
|
Justice Ginsburg
| 2,020 | 5 |
majority
|
United States v. Sineneng-Smith
|
https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
|
This case concerns 8 U.S. C. which makes it a federal felony to “encourag[e] or induc[e] an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” The crime carries an enhanced penalty if “done for the purpose of commercial advantage or private financial gain.” Respondent Evelyn Sineneng-Smith operated an immi- gration consulting firm in San Jose, California. She was indicted for multiple violations of and (B)(i). Her clients, most of them from the Philippines, worked without authorization in the home health care industry in the United Between 2001 and 2008, Sineneng-Smith assisted her clients in applying for a “labor certification” that once allowed certain aliens to adjust their —————— 1 For violations of 8 U.S. C. the prison term is “not more than 5 years,” if “the offense was done for private financial gain,” the prison term is “not more than 10 years,” 2 UNITED STATES v. SINENENG-SMITH Opinion of the Court status to that of lawful permanent resident permitted to live and work in the United There was a hindrance to the efficacy of Sineneng- Smith’s advice and assistance. To qualify for the labor- certification dispensation she promoted to her clients, an alien had to be in the United States on December 21, 2000, and apply for certification before April 30, 2001. Sineneng-Smith knew her clients did not meet the application-filing deadline; hence, their applica- tions could not put them on a path to lawful residence.2 Nevertheless, she charged each client $5,900 to file an ap- plication with the Department of Labor and another $900 to file with the U. S. Citizenship and Immigration Services. For her services in this regard, she collected more than $3.3 million from her unwitting clients. In the District Court, Sineneng-Smith urged unsuccess- fully, inter alia, that the above-cited provisions, properly construed, did not cover her conduct, and if they did, they violated the Petition and Free Speech Clauses of the First as applied. See Motion to Dismiss in No. 10– cr–414 (ND Cal.), pp. 7–13, 20–25; Motion for Judgt. of Ac- quittal in No. 10–cr–414 (ND Cal.), pp. 14–19, 20–25. She was convicted on two counts under and (B)(i), and on other counts (filing false tax returns and mail fraud) she does not now contest. Throughout the District Court proceedings and on appeal, she was represented by competent counsel. On appeal from the convictions to the Ninth Circuit, both on brief and at oral argument, Sineneng- —————— 2
|
Justice Ginsburg
| 2,020 | 5 |
majority
|
United States v. Sineneng-Smith
|
https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
|
both on brief and at oral argument, Sineneng- —————— 2 Sineneng-Smith argued that labor-certification applications were often approved despite expiration of the statutory dispensation, and that an approved application, when submitted as part of a petition for adjust- ment of status, would place her clients in line should Congress reactivate the dispensation. See Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), p. 16. Cite as: 590 U. S. (0) 3 Opinion of the Court Smith essentially repeated the arguments she earlier pre- sented to the District Court. See Brief for Appellant in No. 15–10614 (CA9), pp. 11–28. The case was then moved by the appeals panel onto a different track. Instead of ad- judicating the case presented by the parties, the appeals court named three amici and invited them to brief and ar- gue issues framed by the panel, including a question Sineneng-Smith herself never raised earlier: “[W]hether the statute of conviction is overbroad under the First” App. 122–124. In the ensuing do over of the appeal, counsel for the parties were assigned a secondary role. The Ninth Circuit ultimately concluded, in accord with the invited amici’s arguments, that is unconstitutionally overbroad. The Government petitioned for our review because the judgment of the Court of Appeals invalidated a federal stat- ute. Pet. for Cert. 24. We granted the petition. 588 U. S. (2019). As developed more completely hereinafter, we now hold that the appeals panel departed so drastically from the principle of party presentation as to constitute an abuse of discretion. We therefore vacate the Ninth Circuit’s judg- ment and remand the case for an adjudication of the appeal attuned to the case shaped by the parties rather than the case designed by the appeals panel. I In our adversarial system of adjudication, we follow the principle of party presentation. As this Court stated in “in both civil and criminal cases, in the first instance and on appeal we rely on the parties to frame the issues for decision and assign to courts the role of neutral arbiter of matters the parties present.” In criminal cases, depar- tures from the party presentation principle have usually oc- curred “to protect a pro se litigant’s rights.” ; 4 UNITED STATES v. SINENENG-SMITH Opinion of the Court see, e.g., 381–383 (2003) (affirming courts’ authority to recast pro se litigants’ motions to “avoid an unnecessary dismissal” or “inappropri- ately stringent application of formal labeling requirements, or to create a better correspondence between the substance of a pro se motion’s claim and its underlying legal basis” (ci- tation omitted)). But as a general
|
Justice Ginsburg
| 2,020 | 5 |
majority
|
United States v. Sineneng-Smith
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https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
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underlying legal basis” (ci- tation omitted)). But as a general rule, our system “is de- signed around the premise that [parties represented by competent counsel] know what is best for them, and are re- sponsible for advancing the facts and argument entitling them to relief.” (Scalia, J., concurring in part and concurring in judgment).3 In short: “[C]ourts are essentially passive instruments of government.” United 1301 (CA8 1987) (Arnold, J., concurring in denial of reh’g en banc)). They “do not, or should not, sally forth each day looking for wrongs to right. [They] wait for cases to come to [them], and when [cases arise, courts] normally decide only questions presented by the parties.” The party presentation principle is supple, not ironclad. There are no doubt circumstances in which a modest initi- ating role for a court is appropriate. See, e.g., Day v. McDonough, (federal court had “authority, on its own initiative,” to correct a party’s “evi- dent miscalculation of the elapsed time under a statute [of limitations]” absent “intelligent waiver”).4 But this case scarcely fits that bill. To explain why that is so, we turn —————— 3 See Kaplan, Civil Procedure—Reflections on the Comparison of Sys- tems, 9 Buffalo L. Rev. 409, 431–432 (1960) (U. S. system “exploits the free-wheeling energies of counsel and places them in adversary confron- tation before a detached judge”; “German system puts its trust in a judge of paternalistic bent acting in cooperation with counsel of somewhat muted adversary zeal”). 4 In an addendum to this opinion, we list cases in which this Court has called for supplemental briefing or appointed amicus curiae in recent years. None of them bear any resemblance to the redirection ordered by the Ninth Circuit panel in this case. Cite as: 590 U. S. (0) 5 Opinion of the Court first to the proceedings in the District Court. In July 2010, a grand jury returned a multicount indict- ment against Sineneng-Smith, including three counts of violating three counts of mail fraud in violation of 18 U.S. C. and two counts of willfully subscribing to a false tax return in violation of 26 U.S. C. Sineneng-Smith pleaded guilty to the tax-fraud counts, App. to Pet. for Cert. 78a–79a, and did not pursue on appeal the two mail-fraud counts on which she was ultimately convicted. We therefore concentrate this description on her defenses against the charges. Before trial, Sineneng-Smith moved to dismiss the counts. Motion to Dismiss in No. 10–cr–414 (ND Cal.). She asserted first that the conduct with which she was charged—advising and assisting aliens about labor certifi- cations—is not proscribed by
|
Justice Ginsburg
| 2,020 | 5 |
majority
|
United States v. Sineneng-Smith
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https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
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and assisting aliens about labor certifi- cations—is not proscribed by and (B)(i). Being hired to file lawful applications on behalf of aliens already residing in the United States, she maintained, did not “encourage” or “induce” them to remain in this country. at 7–13. Next, she urged, alternatively, that clause (iv) is unconstitutionally vague and therefore did not provide fair notice that her conduct was prohibited, at 13–18, or should rank as a content-based restraint on her speech, at 22–24. She further asserted that she has a right safe- guarded to her by the Petition and Free Speech Clauses of the First to file applications on her clients’ be- half. at 20–25. Nowhere did she so much as hint that the statute is infirm, not because her own conduct is pro- tected, but because it trenches on the First sheltered expression of others. The District Court denied the motion to dismiss, holding that Sineneng-Smith could “encourag[e]” nonciti- zens to remain in the country, within the meaning of “[b]y suggesting to [them] that the appli- cations she would make on their behalf, in exchange for their payments, would allow them to eventually obtain 6 UNITED STATES v. SINENENG-SMITH Opinion of the Court legal permanent residency in the United ” App. to Pet. for Cert. 73a. The court also rejected Sineneng-Smith’s constitutional arguments, reasoning that she was prose- cuted, not for filing clients’ applications, but for falsely rep- resenting to noncitizens that her efforts, for which she col- lected sizable fees, would enable them to gain lawful status. at 75a. After a 12-day trial, the jury found Sineneng-Smith guilty on the three counts charged in the indictment, along with the three mail-fraud counts. App. 118–121. Sineneng- Smith then moved for a judgment of acquittal. She re- newed, “almost verbatim,” the arguments made in her mo- tion to dismiss, App. to Pet. for Cert. 65a, and the District Court rejected those arguments “[f ]or the same reasons as the court expressed in its order denying Sineneng-Smith’s motion to dismiss,” She simultaneously urged that the evidence did not support the verdicts. Motion for Judgt. of Acquittal in No. 10–cr–414 (ND Cal.), at 1–14. The District Court found the evidence sufficient as to two of the three counts and two of the three mail-fraud counts. App. to Pet. for Cert. 67a.5 Sineneng-Smith’s appeal to the Ninth Circuit from the District Court’s convictions commenced unremarka- bly. On brief and at oral argument, she reasserted the self- regarding arguments twice rehearsed, initially in her mo- tion to dismiss, and later in her motion for acquittal. Brief for Appellant
|
Justice Ginsburg
| 2,020 | 5 |
majority
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United States v. Sineneng-Smith
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https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
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and later in her motion for acquittal. Brief for Appellant in No. 15–10614 (CA9), at 9–27, 35–41; Recording of Oral Arg. (Apr. 18, 2017), at 37:00–:40; see With the appeal poised for decision based upon the parties’ presentations, the appeals panel intervened. It ordered further briefing, App. 122–124, but not from the —————— 5 The court sentenced Sineneng-Smith to 18 months on each of the re- maining counts; three years of supervised release on the and mail- fraud counts; and one year of supervised release on the filing of false tax returns count, all to run concurrently. She was also ordered to pay $43,550 in restitution, a $15,000 fine, and a $600 special assessment. Cite as: 590 U. S. (0) 7 Opinion of the Court parties. Instead, it named three organizations—“the Fed- eral Defender Organizations of the Ninth Circuit (as a group)[,] the Immigrant Defense Project[,] and the National Immigration Project of the National Lawyers Guild”—and invited them to file amicus briefs on three issues: “1. Whether the statute of conviction is overbroad or likely overbroad under the First and if so, whether any permissible limiting construction would cure the First problem? “2. Whether the statute of conviction is void for vagueness or likely void for vagueness, either under the First or the Fifth and if so, whether any permissible limiting construction would cure the constitutional vagueness problem? “3. Whether the statute of conviction contains an implicit mens rea element which the Court should enunciate. If so: (a) what should that mens rea element be; and (b) would such a mens rea element cure any se- rious constitutional problems the Court might deter- mine existed?” Counsel for the parties were permitted, but “not re- quired,” to file supplemental briefs “limited to responding to any and all amicus/amici briefs.” (emphasis added). Invited amici and amici not specifically invited to file were free to “brief such further issues as they, respec- tively, believe the law, and the record calls for.” The panel gave invited amici 20 minutes for argument, and al- located only 10 minutes to Sineneng-Smith’s counsel. Rear- gument Order in No. 15–10614 (CA9), Doc. No. 92. Of the three specified areas of inquiry, the panel reached only the first, holding that was facially overbroad under the First –, and was not susceptible to a permissible limiting construction, True, in the redone appeal, Sineneng-Smith’s counsel 8 UNITED STATES v. SINENENG-SMITH Opinion of the Court adopted without elaboration counsel for amici’s over- breadth arguments. See Supplemental Brief for Appellant in No. 15–10614 (CA9), p. 1. How could she do otherwise? Understandably, she
|
Justice Ginsburg
| 2,020 | 5 |
majority
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United States v. Sineneng-Smith
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https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
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(CA9), p. 1. How could she do otherwise? Understandably, she rode with an argument suggested by the panel. In the panel’s adjudication, her own arguments, differently directed, fell by the wayside, for they did not mesh with the panel’s overbreadth theory of the case. II No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that might cover a wide swath of protected speech, including political advocacy, legal ad- vice, even a grandmother’s plea to her alien grandchild to remain in the United –484.6 Nev- ermind that Sineneng-Smith’s counsel had presented a con- trary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First ] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’ ” United 553 U.S. 285, 293 ). As earlier observed, see a court is not hide- bound by the precise arguments of counsel, but the Ninth Circuit’s radical transformation of this case goes well be- yond the pale. —————— 6 The Solicitor General maintained that the statute does not reach pro- tected speech. Brief for United States 32. In the Government’s view, should be construed to prohibit only speech facilitating or soliciting illegal activity, thus falling within the exception to the First for speech integral to criminal conduct. at 22–26, 31 ). Cite as: 590 U. S. (0) 9 Opinion of the Court * * * For the reasons stated, we vacate the Ninth Circuit’s judgment and remand the case for reconsideration shorn of the overbreadth inquiry interjected by the appellate panel and bearing a fair resemblance to the case shaped by the parties. It is so ordered. 10 UNITED STATES v. SINENENG-SMITH Opinion Addendum of the Court to opinion of the Court Addendum of cases, 2015–0, in which this Court called for supplemental briefing or appointed amicus curiae This Court has sought supplemental briefing: to deter- mine whether a case presented a controversy suitable for the Court’s review, Trump v. Mazars USA, LLP, post, p. (ordering briefing on application of political question doc- trine and related justiciability principles); Frank v. Gaos, 586 U. S. (ordering briefing on Article III stand- ing); (same); Docket Entry in Gloucester County School Bd. v. G. G., O. T. 2016, No. 16–273 (Feb. 23, 2017) (ordering briefing on intervening Department of Education and De- partment of Justice guidance document); Kingdomware Technologies, (or- dering briefing on mootness); to determine whether
|
Justice Ginsburg
| 2,020 | 5 |
majority
|
United States v. Sineneng-Smith
|
https://www.courtlistener.com/opinion/4752098/united-states-v-sineneng-smith/
|
Kingdomware Technologies, (or- dering briefing on mootness); to determine whether the case could be resolved on a basis narrower than the question pre- sented, Zubik v. Burwell, 578 U. S. (ordering briefing on whether the plaintiffs could obtain relief with- out entirely invalidating challenged federal regulations); and to clarify an issue or argument the parties raised, Google LLC v. Oracle America, Inc., post, p. (ordering further briefing on the parties’ dispute over the standard of review applicable to the question presented); Babb v. Wilkie, 589 U. S. (0) (ordering briefing on an asser- tion counsel made for the first time at oral argument about alternative remedies available to the plaintiff ); Sharp v. Murphy, reported sub nom. Carpenter v. Murphy, 586 U. S. (ordering briefing on the implications of the par- ties’ statutory interpretations). In rare instances, we have ordered briefing on a constitu- tional issue implicated, but not directly presented, by the question on which we granted certiorari. See Jennings v. Rodriguez, 580 U. S. (in a case about availability of a bond hearing under a statute mandating detention of Cite as: 590 U. S. (0) 11 Opinion Addendum of the Court to opinion of the Court certain noncitizens, briefing ordered on whether the Con- stitution requires such a hearing); (in a case involving interpre- tation of the Armed Career Criminal Act’s residual clause, briefing ordered on whether that clause is unconstitution- ally vague). But in both cases, the parties had raised the relevant constitutional challenge in lower courts; the ques- tion was not interjected into the case for the first time by an appellate forum. In Jennings, moreover, the parties’ statutory arguments turned expressly on the constitutional issue. Jennings v. Rodriguez, 583 U. S. And in Johnson, although this Court had interpreted the Act’s re- sidual clause four times in the preceding nine years, there still remained “pervasive disagreement” in the lower courts about its application. Johnson v. United States, 576 U.S. 591, 601 We have appointed amicus curiae: to present argument in support of the judgment below when a prevailing party has declined to defend the lower court’s decision or an as- pect of it, Seila Law LLC v. Consumer Financial Protection Bureau, 589 U. S. (2019); Holguin-Hernandez v. United States, 588 U. S. (2019); Culbertson v. Berryhill, 584 U. S. ; Lucia v. SEC, 583 U. S. ; Beckles v. United States, 579 U. S. ; ; McLane Co. v. EEOC, 580 U. S. ; ; Reyes Mata v. Lynch, reported sub nom. Reyes Mata v. Holder, ; and to address the Court’s jurisdiction to decide
|
Justice Scalia
| 2,000 | 9 |
concurring
|
Crosby v. National Foreign Trade Council
|
https://www.courtlistener.com/opinion/118379/crosby-v-national-foreign-trade-council/
|
It is perfectly obvious on the face of this statute that Congress, with the concurrence of the President, intended to "provid[e] the President with flexibility in implementing its Burma sanctions policy." Ante, at 375, n. 9. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[s]tatements by the sponsors of the federal Act" show that they shared this intent, and that a statement in a letter from a State Department officer shows that flexibility had "the explicit support of the *389 Executive," ante, at 375, n. 9. This excursus is especially pointless since the immediately succeeding footnote must rely upon the statute itself (devoid of any support in statements by "sponsors" or the "Executive") to refute the quite telling argument that the statements were addressed only to flexibility in administering the sanctions of the federal Act, and said nothing at all about state sanctions. See ante, at 376, n. 10. It is perfectly obvious on the face of the statute that Congress expected the President to use his discretionary authority over sanctions to "move the Burmese regime in the democratic direction," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that "[t]he sponsors of the federal Act" shared this expectation, ante, at 377, n. 12. It is perfectly obvious on the face of the statute that Congress's Burma policy was a "calibrated" one, which "limit[ed] economic pressure against the Burmese Government to a specific range," ante, at 377. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) proposition that bills imposing greater sanctions were introduced but not adopted, ante, at 378, n. 13, and to the (even less surprising) proposition that the sponsors of the legislation made clear that its "limits were deliberate," And I would feel this way even if I shared the Court's naïve assumption that the failure of a bill to make it out of committee, or to be adopted when reported to the floor, is the same as a congressional "reject[ion]" of what the bill contained, Curiously, the Court later recognizes, in rejecting the argument that Congress's failure to enact express pre-emption implies approval of the state Act, that "the silence of Congress [may be] ambiguous." Ante, at 388. Would that the Court had come to this conclusion before it relied (several times) upon the implications of Congress's failure to enact legislation, see ante, at 376, n. 11, 378, n. 13, 385, n. 23. *390 It is perfectly obvious on the face of the statute
|
Justice Scalia
| 2,000 | 9 |
concurring
|
Crosby v. National Foreign Trade Council
|
https://www.courtlistener.com/opinion/118379/crosby-v-national-foreign-trade-council/
|
It is perfectly obvious on the face of the statute that Congress intended the President to develop a "multilateral strategy" in cooperation with other countries. In fact, the statute says that in so many words, see 570(c), -166. I therefore see no point in devoting two footnotes to the interesting (albeit unsurprising) proposition that three Senators also favored a multilateral approach, ante, at 380, n. 15, 382, n. 17. It is perfectly obvious from the record, as the Court discusses, ante, at 382-385, that the inflexibility produced by the Massachusetts statute has in fact caused difficulties with our allies and has in fact impeded a "multilateral strategy." And as the Court later says in another context, "the existence of conflict cognizable under the Supremacy Clause does not depend on express congressional recognition that federal and state law may conflict," ante, at 388. I therefore see no point in devoting a footnote to the interesting (albeit unsurprising) fact that the "congressional sponsors" of the Act and "the Executive" actually predicted that inflexibility would have the effect of causing difficulties with our allies and impeding a "multilateral strategy," ante, at 385, n. 23. Of course even if all of the Court's invocations of legislative history were not utterly irrelevant, I would still object to them, since neither the statements of individual Members of Congress (ordinarily addressed to a virtually empty floor),[*] nor Executive statements and letters addressed to congressional committees, nor the nonenactment of other proposed legislation, is a reliable indication of what a majority of both Houses of Congress intended when they voted for the statute before us. The only reliable indication of that intentthe only thing we know for sure can be attributed *391 to all of themis the words of the bill that they voted to make law. In a way, using unreliable legislative history to confirm what the statute plainly says anyway (or what the record plainly shows) is less objectionable since, after all, it has absolutely no effect upon the outcome. But in a way, this utter lack of necessity makes it even worsecalling to mind St. Augustine's enormous remorse at stealing pears when he was not even hungry, and just for the devil of it ("not seeking aught through the shame, but the shame itself!"). The Confessions, Book 2, ¶ 9, in 18 Great Books of the Western World 10-11 (1952) (E. Pusey transl. 1952). In any case, the portion of the Court's opinion that I consider irrelevant is quite extensive, comprising, in total, about one-tenth of the opinion's size and (since it is in footnote
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
This presents two unrelated questions Appellant challenges his Kentucky conviction for disorderly conduct on the ground that the conviction and the State's statute are repugnant to the First and Fourteenth Amendments He also challenges the constitutionality of the enhanced penalty he received under Kentucky's two-tier system for adjudicating certain criminal s, whereby a person charged with a misdemeanor may be tried first in an inferior court and, if dissatisfied with the outcome, may have a trial de novo in a court of general *106 criminal jurisdiction but must run the risk, if convicted, of receiving a greater punishment Appellant Colten and 15 to 20 other college students gathered at the Blue Grass Airport outside Lexington, Kentucky, to show their support for a state gubernatorial candidate and to demonstrate their lack of regard for Mrs Richard Nixon, then about to leave Lexington from the airport after a public appearance in the city When the demonstration had ended, the students got into their automobiles and formed a procession of six to 10 cars along the airport access road to the main highway A state policeman, observing that one of the first cars in the entourage carried an expired Louisiana license plate, directed the driver, one Mendez, to pull off the road He complied Appellant Colten, followed by other motorists in the procession, also pulled off the highway, and Colten approached the officer to find out what was the matter The policeman explained that the Mendez car bore an expired plate and that a traffic summons would be issued Colten made some effort to enter into a conversation about the summons His theory was that Mendez may have received an extension of time in which to obtain new plates In order to avoid Colten and to complete the issuance of the summons, the policeman took Mendez to the patrol car Meanwhile, other students had left their cars and additional policemen, having completed their duties at the airport and having noticed the roadside scene, stopped their cars in the traffic lane abreast of the students' vehicles At least one officer took responsibility for directing traffic, although testimony differed as to the need for doing so Testimony also differed as to the number of policemen and students present, how many students left their cars and how many were at one time or another standing in the roadway A state police captain asked on four or five occasions that the group disperse At least five times *107 police asked Colten to leave[1] A state trooper made two requests, remarking at least once: "Now, this is none
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
two requests, remarking at least once: "Now, this is none of your affair get back in your car and please move on and clear the road" In response to at least one of these requests Colten replied that he wished to make a transportation arrangement for his friend Mendez and the occupants of the Mendez car, which he understood was to be towed away Another officer asked three times that Colten depart and when Colten failed to move away he was arrested for violating Kentucky's disorderly conduct statute, Ky Rev Stat 437016 The arresting officer testified that Colten's response to the order had been to say that he intended to stay and see what might happen Colten disputed this He testified that he expressed a willingness to leave but wanted first to make a transportation arrangement At trial he added that he feared violence on the part of the police[2] The complaint and warrant charging disorderly conduct, which carries a maximum penalty of six months in jail and a fine of $500, were addressed to the Quarterly *108 Court of Fayette County, where Colten was tried, convicted, and fined $10 Exercising his right to a trial de novo in a court of general jurisdiction, Colten "appealed," as the Kentucky rules style this recourse, Ky Rule Crim Proc 1202, to the Criminal Division of the Fayette Circuit Court By consent, trial was to the court and Colten was convicted of disorderly conduct and this time fined $50 The Kentucky Court of Appeals affirmed It rejected Colten's constitutional challenges to the statute and his claim that the punishment imposed was impermissible, under North We noted probable jurisdiction I Colten was convicted of violating Ky Rev Stat 437016 (1) (f) which states: "(1) A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he: "(f) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse " The Kentucky Court of Appeals interpreted the statute in the following way: "As reasonably construed, the statute does not prohibit the lawful exercise of any constitutional right We think that the plain meaning of the statute, in requiring that the proscribed conduct be done `with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof,' is that the specified intent must be the predominant intent Predominance can be determined either (1) from the fact that no bona fide intent to exercise a constitutional *109 right appears to have existed
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
to exercise a constitutional *109 right appears to have existed or (2) from the fact that the interest to be advanced by the particular exercise of a constitutional right is insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise" The evidence warranted a finding, the Kentucky court concluded, that at the time of his arrest, "Colten was not undertaking to exercise any constitutionally protected freedom" Rather, he "appears to have had no purpose other than to cause inconvenience and annoyance So the statute as applied here did not chill or stifle the exercise of any constitutional right" Based on our own examination of the record, we perceive no justification for setting aside the conclusion of the state court that when arrested appellant was not engaged in activity protected by the First Amendment Colten insists that in seeking to arrange transportation for Mendez and in observing the issuance of a traffic citation he was disseminating and receiving information But this is a strained, near-frivolous contention and we have little doubt that Colten's conduct in refusing to move on after being directed to do so was not, without more, protected by the First Amendment Nor can we believe that Colten, although he was not trespassing or disobeying any traffic regulation himself, could not be required to move on He had no constitutional right to observe the issuance of a traffic ticket or to engage the issuing officer in conversation at that time The State has a legitimate interest in enforcing its traffic laws and its officers were entitled to enforce them free from possible interference or interruption from bystanders, even those claiming a third-party interest in the transaction Here the police had cause for apprehension that a roadside strip, crowded with persons and automobiles, might expose the entourage, passing motorists, and police to the risk of accident We cannot disagree with the finding *110 below that the order to disperse was suited to the occasion We thus see nothing unconstitutional in the manner in which the statute was applied II Neither are we convinced that the statute is either impermissibly vague or broad We perceive no violation of "[t]he underlying principle that no man shall be held criminally responsible for conduct which he could not reasonably understand to be proscribed" United ; cf Here the statute authorized conviction for refusing to disperse with the intent of causing inconvenience, annoyance, or alarm Any person who stands in a group of persons along a highway where the police are investigating a traffic violation and seeks to engage the attention of
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
a traffic violation and seeks to engage the attention of an officer issuing a summons should understand that he could be convicted under subdivision (f) of Kentucky's statute if he fails to obey an order to move on The root of the vagueness doctrine is a rough idea of fairness It is not a principle designed to convert into a constitutional dilemma the practical difficulties in drawing criminal statutes both general enough to take into account a variety of human conduct and sufficiently specific to provide fair warning that certain kinds of conduct are prohibited We agree with the Kentucky court when it said: "We believe that citizens who desire to obey the statute will have no difficulty in understanding it " 467 S W 2d, Colten also argues that the Kentucky statute is overbroad He relies on where the Court held unconstitutional a breach-of-peace statute construed to forbid causing agitation or *111 disquiet coupled with refusing to move-on when ordered to do so The Court invalidated the statute on the ground that it permitted conviction where the mere expression of unpopular views prompted the order that is disobeyed Colten argues that the Kentucky statute must be stricken down for the same reason As the Kentucky statute was construed by the state court, however, a crime is committed only where there is no bona fide intention to exercise a constitutional rightin which event, by definition, the statute infringes no protected speech or conductor where the interest so clearly outweighs the collective interest sought to be asserted that the latter must be deemed insubstantial The court hypothesized, for example, that one could be convicted for disorderly conduct if at a symphony concert he arose and began lecturing to the audience on leghorn chickens In so confining the reach of its statute, the Kentucky court avoided the shortcomings of the statute invalidated in the Cox Individuals may not be convicted under the Kentucky statute merely for expressing unpopular or annoying ideas The statute comes into operation only when the individual's interest in expression, judged in the light of all relevant factors, is "minuscule" compared to a particular public interest in preventing that expression or conduct at that time and place As we understand this appellant's own conduct was not immune under the First Amendment and neither is his conviction vulnerable on the ground that the statute threatens constitutionally protected conduct of others[3] *112 III Kentucky, like many other States,[4] has a two-tier system for adjudicating less serious criminal s In Kentucky, at the option of the arresting officer, those crimes classified under
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
the option of the arresting officer, those crimes classified under state law as misdemeanors[5] may be charged and tried in a so-called inferior court,[6] where, as in the normal trial setting, a defendant may choose to have a trial or to plead guilty If convicted after trial or on a guilty plea, however, he has a right to a trial de novo in a court of general criminal jurisdiction, so *113 long as he applies within the statutory time[7] The right to a new trial is absolute A defendant need not allege error in the inferior court proceeding If he seeks a new trial, the Kentucky statutory scheme contemplates that the slate be wiped clean Ky Rule Crim Proc 1206 Prosecution and defense begin anew By the same token neither the judge nor jury that determines guilt or fixes a penalty in the trial de novo is in any way bound by the inferior court's findings or judgment The is to be regarded exactly as if it had been brought there in the first instance A convicted defendant may seek review in the state appellate courts in the same manner as a person tried initially in the general criminal court Ky Rev Stat 23032 However, a defendant convicted after a trial or plea in an inferior court may not seek ordinary appellate review of the inferior court's ruling His recourse is the trial de novo While by definition two-tier systems throughout the States have in common the trial de novo feature,[8] there are differences in the kind of trial available in the inferior courts of first instance, whether known as county, municipal, police, or justice of the peace courts, or are otherwise referred to Depending upon the jurisdiction and offense charged, many such systems provide as complete protection for a criminal defendant's constitutional rights as do courts empowered to try more serious crimes Others, however, lack some of the safeguards provided in more serious criminal s Although appellant here was entitled to a six-man jury, cf which he waived, some *114 States do not provide for trial by jury,[9] even in instances where the authorized punishment would entitle the accused to such tribunal Cf US 145 Some, including Kentucky, do not record proceedings[10] and the judges may not be trained for their positions either by experience or schooling[11] Two justifications are asserted for such tribunals: first, in this day of increasing burdens on state judiciaries, these courts are designed, in the interest of both the defendant and the State, to provide speedier and less costly adjudications than may be possible
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
provide speedier and less costly adjudications than may be possible in the criminal courts of general jurisdiction where the full range of constitutional guarantees is available; second, if the defendant is not satisfied with the results of his first trial he has the unconditional right to a new trial in a superior court, unprejudiced by the proceedings or the outcome in the inferior courts Colten, however, considers the Kentucky system to be infirm because the judge in a trial de novo is empowered to sentence anew and is not bound to stay within the limits of the sentence imposed by the inferior court He bases his attack both on the Due Process Clause, as interpreted in North and on the Fifth Amendment's Double Jeopardy Clause The *115 issues appellant raises have produced a division among the state courts that have considered them[12] as well as a conflict among the federal circuits[13] Colten rightly reads Pearce to forbid, following a successful appeal and reconviction, the imposition of a greater punishment than was imposed after the first trial, absent specified findings that have not been made here He insists that the Pearce rule is applicable here and that there is no relevant difference between the Pearce model and the Kentucky two-tier trial de novo system Both, he asserts, involve reconviction and resentencing, both provide the convicted defendant with the right to "appeal" and in botheven though under the Kentucky scheme the "appeal" is in reality a trial de novoa penalty for the same crime is fixed twice, with the same potential for an increased penalty upon a successful "appeal" *116 But Pearce did not turn simply on the fact of conviction, appeal, reversal, reconviction, and a greater sentence The court was there concerned with two defendants who, after their convictions had been set aside on appeal, were reconvicted for the same offenses and sentenced to longer prison terms In one the term was increased from 10 to 25 years Positing that a more severe penalty after reconviction would violate due process of law if imposed as purposeful punishment for having successfully appealed, the court concluded that such untoward sentences occurred with sufficient frequency to warrant the imposition of a prophylactic rule to ensure "that vindictiveness against a defendant for having successfully attacked his first conviction [would] play no part in the sentence he receives after a new trial " and to ensure that the apprehension of such vindictiveness does not "deter a defendant's exercise of the right to appeal or collaterally attack his first conviction " Our view of the Kentucky two-tier
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
his first conviction " Our view of the Kentucky two-tier system of administering criminal justice, however, does not lead us to believe, and there is nothing in the record or presented in the briefs to show, that the hazard of being penalized for seeking a new trial, which underlay the holding of Pearce, also inheres in the de novo trial arrangement Nor are we convinced that defendants convicted in Kentucky's inferior courts would be deterred from seeking a second trial out of fear of judicial vindictiveness The possibility of vindictiveness, found to exist in Pearce, is not inherent in the Kentucky two-tier system We note first the obvious: that the court which conducted Colten's trial and imposed the final sentence was not the court with whose work Colten was sufficiently dissatisfied to seek a different result on appeal; and it *117 is not the court that is asked to do over what it thought it had already done correctly Nor is the de novo court even asked to find error in another court's work Rather, the Kentucky court in which Colten had the unrestricted right to have a new trial was merely asked to accord the same trial, under the same rules and procedures, available to defendants whose s are begun in that court in the first instance It would also appear that, however understandably a court of general jurisdiction might feel that the defendant who has had a due process trial ought to be satisfied with it, the de novo court in the two-tier system is much more likely to reflect the attitude of the Kentucky Court of Appeals in this when it stated that "the inferior courts are not designed or equipped to conduct error-free trials, or to insure full recognition of constitutional freedoms They are courts of convenience, to provide speedy and inexpensive means of disposition of charges of minor offenses" 467 S W 2d, at 379 We see no reason, and none is offered, to assume that the de novo court will deal any more strictly with those who insist on a trial in the superior court after conviction in the Quarterly Court than it would with those defendants whose s are filed originally in the superior court and who choose to put the State to its proof in a trial subject to constitutional guarantees It may often be that the superior court will impose a punishment more severe than that received from the inferior court But it no more follows that such a sentence is a vindictive penalty for seeking a superior court trial than
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
a vindictive penalty for seeking a superior court trial than that the inferior court imposed a lenient penalty The trial de novo represents a completely fresh determination of guilt or innocence It is not an appeal on the record As far as we know, the record from the lower court is not before the superior court and is irrelevant *118 to its proceedings In all likelihood, the trial de novo court is not even informed of the sentence imposed in the inferior court and can hardly be said to have "enhanced" the sentence[14] In Kentucky, disorderly conduct is punishable by six months in jail and a fine of $500 The inferior court fined Colten $10, the trial de novo court $50 We have no basis for concluding that the latter court did anything other than invoke the normal processes of a criminal trial and then sentence in accordance with the normal standards applied in that court to s tried there in the first instance We cannot conclude, on the basis of the present record or our understanding, that the prophylactic rule announced in Pearce is appropriate in the context of the system by which Kentucky administers criminal justice in the less serious criminal s It is suggested, however, that the sentencing strictures imposed by Pearce are essential in order to minimize an asserted unfairness to criminal defendants who must endure a trial in an inferior court with less-than-adequate protections in order to secure a trial comporting completely with constitutional guarantees We are not persuaded, however, that the Kentucky arrangement for dealing with the less serious offenses disadvantages defendants any more or any less than trials conducted in a court of general jurisdiction in the first instance, as long as the latter are always available Proceedings in the inferior courts are simple and speedy, and, if the results in Colten's are any evidence, the penalty is not characteristically severe Such proceedings offer a defendant the opportunity to learn about the prosecution's and, if he chooses, he need not reveal his own He may *119 also plead guilty without a trial and promptly secure a de novo trial in a court of general criminal jurisdiction He cannot, and will not, face the realistic threat of a prison sentence in the inferior court without having the help of counsel, whose advice will also be available in determining whether to seek a new trial, with the slate wiped clean, or to accept the penalty imposed by the inferior court The State has no such options Should it not prevail in the lower court, the
|
Justice White
| 1,972 | 6 |
majority
|
Colten v. Kentucky
|
https://www.courtlistener.com/opinion/108569/colten-v-kentucky/
|
options Should it not prevail in the lower court, the is terminated, whereas the defendant has the choice of beginning anew In reality his choices are to accept the decision of the judge and the sentence imposed in the inferior court or to reject what in effect is no more than an offer in settlement of his and seek the judgment of judge or jury in the superior court, with sentence to be determined by the full record made in that court We cannot say that the Kentucky trial de novo system, as such, is unconstitutional or that it presents hazards warranting the restraints called for in North particularly since such restraints might, to the detriment of both defendant and State, diminish the likelihood that inferior courts would impose lenient sentences whose effect would be to limit the discretion of a superior court judge or jury if the defendant is retried and found guilty Colten's alternative contention is that the Double Jeopardy Clause prohibits the imposition of an enhanced penalty upon reconviction The Pearce Court rejected the same contention in the context of that 395 US, at 719-720 Colten urges that his claim is stronger because the Kentucky system forces a defendant to expose himself to jeopardy as a price for securing a trial that comports with the Constitution That was, of course, the situation in Pearce, where reversal of the first conviction was for constitutional error The contention also ignores that a defendant can bypass the inferior court simply by pleading guilty and erasing immediately *120 thereafter any consequence that would otherwise follow from tendering the plea The judgment of the Kentucky Court of Appeals is Affirmed MR
|
Justice Rehnquist
| 1,974 | 19 |
majority
|
Parker v. Levy
|
https://www.courtlistener.com/opinion/109077/parker-v-levy/
|
Appellee Howard Levy, a physician, was a captain in the Army stationed at Fort Jackson, South Carolina. *36 He had entered the Army under the so-called "Berry Plan,"[1] under which he agreed to serve for two years in the Armed Forces if permitted first to complete his medical training. From the time he entered on active duty in July 1965 until his trial by court-martial, he was assigned as Chief of the Dermatological Service of the United States Army Hospital at Fort Jackson. On June 2, 196, appellee was convicted by a general court-martial of violations of Arts. 90, 133, and 134 of the Uniform Code of Military Justice, and sentenced to dismissal from the service, forfeiture of all pay and allowances, and confinement for three years at hard labor. The facts upon which his conviction rests are virtually undisputed. The evidence admitted at his court-martial trial showed that one of the functions of the hospital to which appellee was assigned was that of training Special Forces aide men. As Chief of the Dermatological Service, appellee was to conduct a clinic for those aide men. In the late summer of 1966, it came to the attention of the hospital commander that the dermatology training of the students was unsatisfactory. After investigating the program and determining that appellee had totally neglected his duties, the commander called appellee to his office and personally handed him a written order to conduct the training. Appellee read the order, said that he understood it, but declared that he would not obey it because of his medical ethics. Appellee persisted in his refusal to obey the order, and later reviews of the program established that the training was still not being carried out. During the same period of time, appellee made several public statements to enlisted personnel at the post, of which the following is representative: "The United States is wrong in being involved in *3 the Viet Nam War. I would refuse to go to Viet Nam if ordered to do so. I don't see why any colored soldier would go to Viet Nam: they should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States, and they are sacrificed and discriminated against in Viet Nam by being given all the hazardous duty and they are suffering the majority of casualties. If I were a colored soldier I would refuse to go to Viet Nam and if I were a colored soldier and were sent I would refuse to
|
Justice Rehnquist
| 1,974 | 19 |
majority
|
Parker v. Levy
|
https://www.courtlistener.com/opinion/109077/parker-v-levy/
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a colored soldier and were sent I would refuse to fight. Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children." Appellee's military superiors originally contemplated nonjudicial proceedings against him under Art. 15 of the Uniform Code of Military Justice, 10 U.S. C. 815, but later determined that court-martial proceedings were appropriate. The specification under Art. 90 alleged that appellee willfully disobeyed the hospital commandant's order to establish the training program, in violation of that article, which punishes anyone subject to the Uniform Code of Military Justice who "willfully disobeys a lawful command of his superior commissioned officer."[2] Statements to enlisted personnel were *38 listed as specifications under the charges of violating Arts. 133 and 134 of the Code. Article 133 provides for the punishment of "conduct unbecoming an officer and a gentleman,"[3] while Art. 134 proscribes, inter alia, "all disorders and neglects to the prejudice of good order and discipline in the armed forces."[4] The specification under Art. 134 alleged that appellee "did, at Fort Jackson, South Carolina, with design to promote disloyalty and disaffection among the troops, publicly utter [certain] statements to divers enlisted personnel at divers times"[5] The specification under *39 Art. 133 alleged that appellee did "while in the performance of his duties at the United States Army Hospital wrongfully and dishonorably" make statements variously described as intemperate, defamatory, provoking, disloyal, contemptuous, and disrespectful to Special Forces personnel and to enlisted personnel who were patients or under his supervision.[6] *40 Appellee was convicted by the court-martial, and his conviction was sustained on his appeals within the military.[] After he had exhausted this avenue of relief, he sought federal habeas corpus in the United States District Court for the Middle District of Pennsylvania, challenging his court-martial conviction on a number of grounds. The District Court, on the basis of the voluminous record of the military proceedings and the argument of counsel, denied relief. It held that the "various articles of the Uniform Code of Military Justice are not unconstitutional for vagueness," citing several decisions *41 of the United States Court of Military Appeals.[8] The court rejected the balance of appellee's claims without addressing them individually, noting that the military tribunals had given fair consideration to them and that the role of the federal courts in reviewing court-martial proceedings was a limited one. The Court of Appeals reversed, holding in a lengthy opinion that Arts. 133 and 134 are void for vagueness. The court found little difficulty in concluding that "as measured by contemporary standards of vagueness applicable to statutes and
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measured by contemporary standards of vagueness applicable to statutes and ordinances governing civilians," the general articles "do not pass constitutional muster." It relied on such cases as ; ; ; and The Court of Appeals did not rule that appellee was punished for doing things he could not reasonably have known constituted conduct proscribed by Art. 133 or 134. Indeed, it recognized that his conduct fell within one of the examples of Art. 134 violations contained in the Manual for Courts-Martial, promulgated by the President by Executive Order.[9] Nonetheless, relying chiefly on the Court found the possibility that Arts. 133 and 134 would be applied to future conduct of others as to which there was insufficient warning, or which was within the area of protected First Amendment expression, was enough to give *42 appellee standing to challenge both articles on their face. While it acknowledged that different standards might in some circumstances be applicable in considering vagueness challenges to provisions which govern the conduct of members of the Armed Forces, the Court saw in the case of Arts. 133 and 134 no "countervailing military considerations which justify the twisting of established standards of due process in order to hold inviolate these articles, so clearly repugnant under current constitutional values." Turning finally to appellee's conviction under Art. 90, the Court held that the joint consideration of Art. 90 charges with the charges under Arts. 133 and 134 gave rise to a "reasonable possibility" that appellee's right to a fair trial was prejudiced, so that a new trial was required. Appellants appealed to this Court pursuant to 28 U.S. C. 1252. We set the case for oral argument, and postponed consideration of the question of our jurisdiction to the hearing on the merits.[10] *43 I This Court has long recognized that the military is, by necessity, a specialized society separate from civilian society. We have also recognized that the military has, again by necessity, developed laws and traditions of its own during its long history. The differences between the military and civilian communities result from the fact that "it is the primary business of armies and navies to fight or be ready to fight wars should the occasion arise." United States ex rel. In In re the Court observed: *44 "An army is not a deliberative body. It is the executive arm. Its law is that of obedience. No question can be left open as to the right to command in the officer, or the duty of obedience in the soldier." More recently we noted that "[t]he military constitutes a specialized community
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recently we noted that "[t]he military constitutes a specialized community governed by a separate discipline from that of the civilian," and that "the rights of men in the armed forces must perforce be conditioned to meet certain overriding demands of discipline and duty" We have also recognized that a military officer holds a particular position of responsibility and command in the Armed Forces: "The President's commission recites that `reposing special trust and confidence in the patriotism, valor, fidelity and abilities' of the appointee he is named to the specified rank during the pleasure of the President." Just as military society has been a society apart from civilian society, so "[m]ilitary law is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment." at And to maintain the discipline essential to perform its mission effectively, the military has developed what "may not unfitly be called the customary military law" or "general usage of the military service." As the opinion in demonstrates, the Court has approved the enforcement of those military customs and usages by courts-martial from the early days of this Nation: ". Courts Martial, when duly organized, are bound to execute their duties, and regulate their modes of proceeding, in the absence of positive enactments. *45 Upon any other principle, Courts Martial would be left without any adequate means to exercise the authority confided to them: for there could scarcely be framed a positive code to provide for the infinite variety of incidents applicable to them." at -36. An examination of the British antecedents of our military law shows that the military law of Britain had long contained the forebears of Arts. 133 and 134 in remarkably similar language. The Articles of the Earl of Essex (1642) provided that "[a]ll other faults, disorders and offenses, not mentioned in these Articles, shall be punished according to the general customs and laws of war." One of the British Articles of War of 65 made punishable "all Disorders or Neglects to the Prejudice of good Order and Military Discipline" that were not mentioned in the other articles.[11] Another of those articles provided: "Whatsoever Commissioned Officer shall be convicted before a General Court-martial, of behaving in a scandalous infamous Manner, such as is unbecoming the Character of an Officer and a Gentleman, shall be discharged from Our Service."[12] In 5 the Continental Congress adopted this last article, along with 68 others for the governance of its army.[13] The following year it was resolved by the Congress that "the committee on spies be directed to revise the rules
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"the committee on spies be directed to revise the rules and articles of war; this being a committee of five, consisting of John Adams, Thomas Jefferson, John *46 Rutledge, James and R. R. Livingston"[14] The article was included in the new set of articles prepared by the Committee, which Congress adopted on September 20, 6.[15] After being once more re-enacted without change in text in 86, it was revised and expanded in 1806, omitting the terms "scandalous" and "infamous," so as to read: "Any commissioned officer convicted before a general court-martial of conduct unbecoming an officer and a gentleman, shall be dismissed [from] the service."[16] From 1806, it remained basically unchanged through numerous congressional re-enactments until it was enacted as Art. 133 of the Uniform Code of Military Justice in 1951. The British article punishing "all Disorders and Neglects." was also adopted by the Continental Congress in 5 and re-enacted in 6.[] Except for a revision in 1916, which added the clause punishing "all conduct of a nature to bring discredit upon the military service,"[18] substantially the same language was preserved throughout the various re-enactments of this article too, until in 1951 it was enacted as Art. 134 of the Uniform Code of Military Justice. Decisions of this Court during the last century have recognized that the longstanding customs and usages *4 of the services impart accepted meaning to the seemingly imprecise standards of Arts. 133 and 134. In this Court upheld the Navy's general article, which provided that "[a]ll crimes committed by persons belonging to the navy, which are not specified in the foregoing articles, shall be punished according to the laws and customs in such cases at sea." The Court reasoned: "[W]hen offences and crimes are not given in terms or by definition, the want of it may be supplied by a comprehensive enactment, such as the 32d article of the rules for the government of the navy, which means that courts martial have jurisdiction of such crimes as are not specified, but which have been recognized to be crimes and offences by the usages in the navy of all nations, and that they shall be punished according to the laws and customs of the sea. Notwithstanding the apparent indeterminateness of such a provision, it is not liable to abuse; for what those crimes are, and how they are to be punished, is well known by practical men in the navy and army, and by those who have studied the law of courts martial, and the offences of which the different courts martial have cognizance." In this Court
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which the different courts martial have cognizance." In this Court refused to issue a writ of prohibition against Smith's court-martial trial on charges of "[s]candalous conduct tending to the destruction of good morals" and "[c]ulpable inefficiency in the performance of duty." The Court again recognized the role of "the usages and customs of war" and "old practice in the army" in the interpretation of military law by military tribunals. at 8-9. In United the Court considered a court-martial conviction under what is *48 now Art. 133, rejecting Captain Fletcher's claim that the court-martial could not properly have held that his refusal to pay a just debt was "conduct unbecoming an officer and a gentleman." The Court of Claims decision which the Court affirmed in Fletcher stressed the military's "higher code termed honor, which holds its society to stricter accountability"[19] and with which those trained only in civilian law are unfamiliar. In the Court affirmed another Court of Claims decision, this time refusing to disturb a court-martial conviction for conduct "to the prejudice of good order and military discipline" in violation of the Articles of War. The Court recognized the role of "unwritten law or usage" in giving meaning to the language of what is now Art. 134. In rejecting Swaim's argument that the evidence failed to establish an offense under the article, the Court said: "[T]his is the very matter that falls within the province of courts-martial, and in respect to which their conclusions cannot be controlled or reviewed by the civil courts. As was said in 116 U.S. 8, `of questions not depending upon the construction of the statutes, but upon unwritten military law or usage, within the jurisdiction of courts-martial, military or naval officers, from their training and experience in the service, are more competent judges than the courts of common law.' " The Court of Claims had observed that cases involving "conduct to the prejudice of good order and military discipline," as opposed to conduct unbecoming an officer, "are still further beyond the bounds of ordinary judicial judgment, for they are not measurable by our innate *49 sense of right and wrong, of honor and dishonor, but must be gauged by an actual knowledge and experience of military life, its usages and duties."[20] II The differences noted by this settled line of authority, first between the military community and the civilian community, and second between military law and civilian law, continue in the present day under the Uniform Code of Military Justice. That Code cannot be equated to a civilian criminal code. It, and the various versions
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to a civilian criminal code. It, and the various versions of the Articles of War which have preceded it, regulate aspects of the conduct of members of the military which in the civilian sphere are left unregulated. While a civilian criminal code carves out a relatively small segment of potential conduct and declares it criminal, the Uniform Code of Military Justice essays more varied regulation of a much larger segment of the activities of the more tightly knit military community. In civilian life there is no legal sanctioncivil or criminalfor failure to behave as an officer and a gentleman; in the military world, Art. 133 imposes such a sanction on a commissioned officer. The Code likewise imposes other sanctions for conduct that in civilian life is not subject to criminal penalties: disrespect toward superior commissioned officers, Art. 89, 10 U.S. C. 889; cruelty toward, or oppression or maltreatment of subordinates, Art. 93, 10 U.S. C. 893; negligent damaging, destruction, or wrongful disposition of military property of the United States, Art. 108, 10 U.S. C. 908; improper hazarding of a vessel, Art. 110, 10 U.S. C. 910; drunkenness on duty, Art. 112, 10 U.S. C. 912; and malingering, Art. 115, 10 U.S. C. 915. But the other side of the coin is that the penalties provided in the Code vary from death and substantial *50 penal confinement at one extreme to forms of administrative discipline which are below the threshold of what would normally be considered a criminal sanction at the other. Though all of the offenses described in the Code are punishable "as a court-martial may direct," and the accused may demand a trial by court-martial,[21] Art. 15 of the Code also provides for the imposition of nonjudicial "disciplinary punishments" for minor offenses without the intervention of a court-martial. 10 U.S. C. 815. The punishments imposable under that article are of a limited nature. With respect to officers, punishment may encompass suspension of duty, arrest in quarters for not more than 30 days, restriction for not more than 60 days, and forfeiture of pay for a limited period of time. In the case of enlisted men, such punishment may additionally include, among other things, reduction to the next inferior pay grade, extra fatigue duty, and correctional custody for not more than seven consecutive days. Thus, while legal proceedings actually brought before a court-martial are prosecuted in the name of the Government, and the accused has the right to demand that he be proceeded against in this manner before any sanctions may be imposed upon him, a range of minor sanctions
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may be imposed upon him, a range of minor sanctions for lesser infractions are often imposed administratively. Forfeiture of pay, reduction in rank, and even dismissal from the service bring to mind the law of labor-management relations as much as the civilian criminal law. In short, the Uniform Code of Military Justice regulates a far broader range of the conduct of military personnel than a typical state criminal code regulates of the conduct of civilians; but at the same time the enforcement of that Code in the area of minor offenses *51 is often by sanctions which are more akin to administrative or civil sanctions than to civilian criminal ones. The availability of these lesser sanctions is not surprising in view of the different relationship of the Government to members of the military. It is not only that of lawgiver to citizen, but also that of employer to employee. Indeed, unlike the civilian situation, the Government is often employer, landlord, provisioner, and lawgiver rolled into one. That relationship also reflects the different purposes of the two communities. As we observed in In re 13 U. S., at the military "is the executive arm" whose "law is that of obedience." While members of the military community enjoy many of the same rights and bear many of the same burdens as do members of the civilian community, within the military community there is simply not the same autonomy as there is in the larger civilian community. The military establishment is subject to the control of the civilian Commander in Chief and the civilian departmental heads under him, and its function is to carry out the policies made by those civilian superiors. Perhaps because of the broader sweep of the Uniform Code, the military makes an effort to advise its personnel of the contents of the Uniform Code, rather than depending on the ancient doctrine that everyone is presumed to know the law. Article 13 of the Uniform Code, 10 U.S. C. 93, requires that the provisions of the Code be "carefully explained to each enlisted member at the time of his entrance on active duty, or within six days thereafter" and that they be "explained again after he has completed six months of active duty" Thus the numerically largest component of the services, the enlisted personnel, who might be expected to be a good deal less familiar with the Uniform Code than commissioned officers, are required by its terms *52 to receive instructions in its provisions. Article 13 further provides that a complete text of the Code and of the regulations prescribed
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complete text of the Code and of the regulations prescribed by the President "shall be made available to any person on active duty, upon his request, for his personal examination." With these very significant differences between military law and civilian law and between the military community and the civilian community in mind, we turn to appellee's challenges to the constitutionality of Arts. 133 and 134. III Appellee urges that both Art. 133 and Art. 134 (the general article) are "void for vagueness" under the Due Process Clause of the Fifth Amendment and overbroad in violation of the First Amendment. We have recently said of the vagueness doctrine: "The doctrine incorporates notions of fair notice or warning. Moreover, it requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in order to prevent `arbitrary and discriminatory enforcement.' Where a statute's literal scope, unaided by a narrowing state court interpretation, is capable of reaching expression sheltered by the First Amendment, the doctrine demands a greater degree of specificity than in other contexts." Each of these articles has been construed by the United States Court of Military Appeals or by other military authorities in such a manner as to at least partially narrow its otherwise broad scope. The United States Court of Military Appeals has stated that Art. 134 must be judged "not in vacuo, but in the context in which the years have placed it," United States v. Frantz, 2 U.S. C. M. A. 161, 163, *53 C. M. R. 3, 39 Article 134 does not make "every irregular, mischievous, or improper act a court-martial offense," United States v. Sadinsky, 14 U.S. C. M. A. 563, 565, 34 Cow. M. R. 343, 345 (1964), but its reach is limited to conduct that is " `directly and palpably as distinguished from indirectly and remotelyprejudicial to good order and discipline.' " ; United States v. Holiday, 4 U.S. C. M. A. 454, 456, 16 Cow. M. R. 28, 30 It applies only to calls for active opposition to the military policy of the United States, United States v. Priest, 21 U.S. C. M. A. 564, 45 Cow. M. R. 338 and does not reach all "[d]isagreement with, or objection to, a policy of the Government." United States v. Harvey, 19 U.S. C. M. A. 539, 544, 42 Cow. M. R. 141, 146 The Manual for Courts-Martial restates these limitations on the scope of Art. 134.[22] It goes on to say that "[c]ertain disloyal statements by military personnel" may be punishable under Art. 134. "Examples are utterances designed to promote
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punishable under Art. 134. "Examples are utterances designed to promote disloyalty or disaffection among troops, as praising the enemy, attacking the war aims of the United States, or denouncing our form of government."[23] Extensive additional interpretative materials are contained in the portions of the Manual devoted to Art. 134, which describe more than sixty illustrative offenses. The Court of Military Appeals has likewise limited the scope of Art. 133. Quoting from W. Winthrop, Military Law and Precedents 11-12 (2d ed. 1920), that court has stated: " ` ". To constitute therefore the conduct here denounced, the act which forms the basis of the charge must have a double significance and effect. *54 Though it need not amount to a crime, it must offend so seriously against law, justice, morality or decorum as to expose to disgrace, socially or as a man, the offender, and at the same time must be of such a nature or committed under such circumstances as to bring dishonor or disrepute upon the military profession which he represents." ' " United States v. Howe, U.S. C. M. A. 165, -8, 3 Cow. M. R. 429, 441-442 (196). The effect of these constructions of Arts. 133 and 134 by the Court of Military Appeals and by other military authorities has been twofold: It has narrowed the very broad reach of the literal language of the articles, and at the same time has supplied considerable specificity by way of examples of the conduct which they cover. It would be idle to pretend that there are not areas within the general confines of the articles' language which have been left vague despite these narrowing constructions. But even though sizable areas of uncertainty as to the coverage of the articles may remain after their official interpretation by authoritative military sources, further content may be supplied even in these areas by less formalized custom and usage. And there also cannot be the slightest doubt under the military precedents that there is a substantial range of conduct to which both articles clearly apply without vagueness or imprecision. It is within that range that appellee's conduct squarely falls, as the Court of Appeals recognized: "Neither are we unmindful that the Manual for Courts-Martial offers as an example of an offense under Article 134, `praising the enemy, attacking the war aims of the United States, or denouncing our form of government.' With the possible exception of the statement that `Special Forces personnel are liars *55 and thieves and killers of peasants and murderers of women and children,' it would appear that each statement for
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women and children,' it would appear that each statement for which [Levy] was court-martialed could fall within the example given in the Manual." 48 F.2d, at The Court of Appeals went on to hold, however, that even though Levy's own conduct was clearly prohibited, the void-for-vagueness doctrine conferred standing upon him to challenge the imprecision of the language of the articles as they might be applied to hypothetical situations outside the considerable area within which their applicability was similarly clear. We disagree with the Court of Appeals both in its approach to this question and in its resolution of it. This Court has on more than one occasion invalidated statutes under the Due Process Clause of the Fifth or Fourteenth Amendment because they contained no standard whatever by which criminality could be ascertained, and the doctrine of these cases has subsequently acquired the shorthand description of "void for vagueness." ; (18). In these cases, the criminal provision is vague "not in the sense that it requires a person to conform his conduct to an imprecise but comprehensible normative standard, but rather in the sense that no standard of conduct is specified at all." But the Court of Appeals found in this case, and we agree, that Arts. 133 and 134 are subject to no such sweeping condemnation. Levy had fair notice from the language of each article that the particular conduct which he engaged in was punishable. This is a case, then, of the type adverted to in in which the statutes "by their terms or as authoritatively *56 construed apply without question to certain activities, but whose application to other behavior is uncertain." The result of the Court of Appeals' conclusion that Levy had standing to challenge the vagueness of these articles as they might be hypothetically applied to the conduct of others, even though he was squarely within their prohibitions, may stem from a blending of the doctrine of vagueness with the doctrine of overbreadth, but we do not believe it is supported by prior decisions of this Court. We have noted in that more precision in drafting may be required because of the vagueness doctrine in the case of regulation of expression. For the reasons which differentiate military society from civilian society, we think Congress is permitted to legislate both with greater breadth and with greater flexibility when prescribing the rules by which the former shall be governed than it is when prescribing rules for the latter. But each of these differentiations relates to how strict a test of vagueness shall be applied in judging a particular
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test of vagueness shall be applied in judging a particular criminal statute. None of them suggests that one who has received fair warning of the criminality of his own conduct from the statute in question is nonetheless entitled to attack it because the language would not give similar fair warning with respect to other conduct which might be within its broad and literal ambit. One to whose conduct a statute clearly applies may not successfully challenge it for vagueness. Because of the factors differentiating military society from civilian society, we hold that the proper standard of review for a vagueness challenge to the articles of the Code is the standard which applies to criminal statutes regulating economic affairs. Clearly, that standard is *5 met here, for as the Court stated in United : "The strong presumptive validity that attaches to an Act of Congress has led this Court to hold many times that statutes are not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within their language. E. g., and United (1). Indeed, we have consistently sought an interpretation which supports the constitutionality of legislation. E. g., United 4 ; ; see (15). "Void for vagueness simply means that criminal responsibility should not attach where one could not reasonably understand that his contemplated conduct is proscribed. United 34 U.S. 612, 6 In determining the sufficiency of the notice a statute must of necessity be examined in the light of the conduct with which a defendant is charged. (15)." Since appellee could have had no reasonable doubt that his public statements urging Negro enlisted men not to go to Vietnam if ordered to do so were both "unbecoming an officer and a gentleman," and "to the prejudice of good order and discipline in the armed forces," in violation of the provisions of Arts. 133 and 134, respectively, his challenge to them as unconstitutionally vague under the Due Process Clause of the Fifth Amendment must fail. We likewise reject appellee's contention that Arts. 133 and 134 are facially invalid because of their "overbreadth." *58 In -521, the Court said: "It matters not that the words appellee used might have been constitutionally prohibited under a narrowly and precisely drawn statute. At least when statutes regulate or proscribe speech and when `no readily apparent construction suggests itself as a vehicle for rehabilitating the statutes in a single prosecution,' 380 U.S. 49, the transcendent value to all society of constitutionally protected expression is deemed to justify allowing `attacks on overly broad statutes with no requirement that the
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`attacks on overly broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity'." While the members of the military are not excluded from the protection granted by the First Amendment, the different character of the military community and of the military mission requires a different application of those protections. The fundamental necessity for obedience, and the consequent necessity for imposition of discipline, may render permissible within the military that which would be constitutionally impermissible outside it. Doctrines of First Amendment overbreadth asserted in support of challenges to imprecise language like that contained in Arts. 133 and 134 are not exempt from the operation of these principles. The United States Court of Military Appeals has sensibly expounded the reason for this different application of First Amendment doctrines in its opinion in United States v. Priest, 21 U.S. C. M. A., at 50, 45 Cow. M. R., at 344: "In the armed forces some restrictions exist for reasons that have no counterpart in the civilian *59 community. Disrespectful and contemptuous speech, even advocacy of violent change, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. ]. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only hazarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected. United States v. Gray, [20 U.S. C. M. A. 63, 42 Cow. M. R. 255 (190)]." In we said that "[e]mbedded in the traditional rules governing constitutional adjudication is the principle that a person to whom a statute may constitutionally be applied will not be heard to challenge that statute on the ground that it may conceivably be applied unconstitutionally to others, in other situations not before the Court." We further commented in that case that "[i]n the past, the Court has recognized some limited exceptions to these principles, but only because of the most `weighty countervailing policies.' " One of those exceptions "has been carved out in the area of the First Amendment." In the First Amendment context attacks have been permitted "on overly broad statutes with no requirement that the person making the
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broad statutes with no requirement that the person making the attack demonstrate that his own conduct could not be regulated by a statute drawn with the requisite narrow specificity," 380 U.S. 49, *60 This Court has, however, repeatedly expressed its reluctance to strike down a statute on its face where there were a substantial number of situations to which it might be validly applied. Thus, even if there are marginal applications in which a statute would infringe on First Amendment values, facial invalidation is inappropriate if the "remainder of the statute covers a whole range of easily identifiable and constitutionally proscribable conduct" And the Court recognized in that "where conduct and not merely speech is involved" the overbreadth must "not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." Here, as the Manual makes clear, both Art. 133 and Art. 134 do prohibit a "whole range of easily identifiable and constitutionally proscribable conduct." Both and Letter Carriers involved basically noncriminal sanctions imposed on federal and state employees who were otherwise civilians. The Uniform Code of Military Justice applies a series of sanctions, varying from severe criminal penalties to administratively imposed minor sanctions, upon members of the military. However, for the reasons dictating a different application of First Amendment principles in the military context described above, we think that the " `weighty countervailing policies,' " which permit the extension of standing in First Amendment cases involving civilian society, must be accorded a good deal less weight in the military context. There is a wide range of the conduct of military personnel to which Arts. 133 and 134 may be applied without infringement of the First Amendment. While there may lurk at the fringes of the articles, even in the light of their narrowing construction by the United *61 States Court of Military Appeals, some possibility that conduct which would be ultimately held to be protected by the First Amendment could be included within their prohibition, we deem this insufficient to invalidate either of them at the behest of appellee. His conduct, that of a commissioned officer publicly urging enlisted personnel to refuse to obey orders which might send them into combat, was unprotected under the most expansive notions of the First Amendment. Articles 133 and 134 may constitutionally prohibit that conduct, and a sufficiently large number of similar or related types of conduct so as to preclude their invalidation for overbreadth. IV Appellee urges that should we disagree with the Court of Appeals as to the constitutionality of Arts. 133 and 134, we should
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to the constitutionality of Arts. 133 and 134, we should nonetheless affirm its judgment by invalidating his conviction under Art. 90. He contends that to carry out the hospital commandant's order to train aide men in dermatology would have constituted participation in a war crime, and that the commandant gave the order in question, knowing that it would be disobeyed, for the sole purpose of increasing the punishment which could be imposed upon appellee. The Court of Appeals observed that each of these defenses was recognized under the Uniform Code of Military Justice, but had been resolved against appellee on a factual basis by the court-martial which convicted him. The court went on to say that: "In isolation, these factual determinations adverse to appellant under an admittedly valid article are not of constitutional significance and resultantly, are beyond our scope of review." 48 F.2d, at 9. See We agree with the Court of Appeals. * Appellee in his brief here mounts a number of alternative attacks on the sentence imposed by the court-martial, attacks which were not treated by the Court of Appeals in its opinion in this case. To the extent that these points were properly presented to the District Court and preserved on appeal to the Court of Appeals, and to the extent that they are open on federal habeas corpus review of court-martial convictions under we believe they should be addressed by the Court of Appeals in the first instance. Reversed. MR. JUSTICE MARSHALL took no part in the consideration or decision of this case. MR.
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Kusper v. Pontikes
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https://www.courtlistener.com/opinion/108881/kusper-v-pontikes/
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Under 7-43 (d) of the Illinois Election Code, a person is prohibited from voting in the primary election of a political party if he has voted in the primary of any other party within the preceding 23 months.[1] Appellee, Harriet G. Pontikes, is a qualified Chicago voter who voted in a Republican primary in February 1971;[2] she wanted to vote in a March 1972 Democratic primary, but was barred from doing so by this 23-month *53 rule.[3] She filed a complaint for declaratory and injunctive relief in the United States District Court for the Northern District of Illinois, alleging that 7-43 (d) unconstitutionally abridged her freedom to associate with the political party of her choice by depriving her of the opportunity to vote in the Democratic primary. A statutory three-judge court was convened,[4] and held, one judge dissenting, that the 23-month rule is unconstitutional.[5] We noted probable jurisdiction of this appeal from that judgment.[6] I At the outset, we are met by the appellants'[7] argument that the District Court should have abstained from adjudicating the constitutionality of the 23-month rule. They base this argument upon that portion of 7-43 (d) which provides that: "[P]articipation by a primary elector in a primary of a political party which, under the provisions of Section 7-2 of this Article, is a political party within *54 a city, village or incorporated town or town only and entitled hereunder to make nominations of candidates for city, village or incorporated town or town offices only, and for no other office or offices, shall not disqualify such primary elector from participating in other primaries of his party" Ill. Rev. Stat., c. 46, 7-43 (d). The appellants note that the February 1971 Republican primary election in which Mrs. Pontikes voted involved only nominations for the offices of mayor, city clerk, and city treasurer of the city of Chicago. They claim that the state courts might interpret this 1971 primary to have been one of a "political party within a city only," and thus outside the purview of the 23-month rule. As we stated in Lake Carriers' 509: "Abstention is a `judge-made doctrine first fashioned in 1941 in Railroad justifying `the delay and expense to which application of the abstention doctrine inevitably gives rise.'"[8] The paradigm of the "special circumstances" that make abstention appropriate is a case where the challenged state statute is susceptible of a construction by the state judiciary that would avoid or modify the necessity of reaching a federal constitutional question. ; Abstention in such *55 circumstances not only serves to minimize federal-state friction, but also avoids
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Kusper v. Pontikes
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not only serves to minimize federal-state friction, but also avoids premature and perhaps unnecessary constitutional adjudication. But the doctrine of abstention "contemplates that deference to state court adjudication only be made where the issue of state law is uncertain." Where, on the other hand, it cannot be fairly concluded that the underlying state statute is susceptible of an interpretation that might avoid the necessity for constitutional adjudication, abstention would amount to shirking the solemn responsibility of the federal courts to "guard, enforce, and protect every right granted or secured by the Constitution of the United States," We think that the Illinois statute involved in this case is not fairly susceptible of a reading that would avoid the necessity of constitutional adjudication. The appellants' argumentthat the February 1971 Chicago Republican primary might be considered that of a "political party within a city only"is foreclosed by the decision of the Illinois Supreme Court in That decision made it clear that the kind of "local" primaries that are outside the scope of 7-43 (d) are simply those of " `purely city political part[ies]' " those parties entitled, under 7-2 of the Illinois Election Code, to make nominations for city offices only.[9] *56 Since both the Democratic and Republican parties are, of course, entitled in Illinois to make nominations not only for city offices, but for congressional, state, and county offices as well, the Faherty court held that they were not within the statutory definition of "city" parties. It follows then, that despite the fact that the February 1971 Republican primary in which the appellee voted involved only nominations for offices within the city of Chicago, Mrs. Pontikes was still clearly barred by the 23-month rule from voting in the March 1972 Democratic primary.[10] The District Court was thus wholly justified in declining to abstain from deciding the constitutional validity of the 23-month rule, and it is to that issue that we now turn. II There can no longer be any doubt that freedom to associate with others for the common advancement of political beliefs and ideas is a form of "orderly group *57 activity" protected by the First and Fourteenth ; ; The right to associate with the political party of one's choice is an integral part of this basic constitutional freedom. Cf. United To be sure, administration of the electoral process is a matter that the Constitution largely entrusts to the States.[11] But, in exercising their powers of supervision over elections and in setting qualifications for voters, the States may not infringe upon basic constitutional protections. See, e. g., 405 U.S. 3;
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Kusper v. Pontikes
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upon basic constitutional protections. See, e. g., 405 U.S. 3; ; As the Court made clear in unduly restrictive state election laws may so impinge upon freedom of association as to run afoul of the First and Fourteenth 393 U.S., at And see ; There can be little doubt that 7-43 (d) substantially restricts an Illinois voter's freedom to change his political party affiliation. One who wishes to change his party registration must wait almost two years before his choice will be given effect. Moreover, he is forced to forgo participation in any primary elections occurring within the statutory 23-month hiatus. The effect of the Illinois statute is thus to "lock" the voter into his pre-existing party affiliation for a substantial period of time following participation in any primary election, and each succeeding primary vote extends this period of confinement. *58 The 23-month rule does not, of course, deprive those in the appellee's position of all opportunities to associate with the political party of their choice. But neither did the state attempts to compel disclosure of NAACP membership lists in and work a total restriction upon the freedom of the organization's members to associate with each other. Rather, the Court found in those cases that the statutes under attack constituted a "substantial restraint"[12] and a "significant interference"[13] with the exercise of the constitutionally protected right of free association. The same is true of 7-43 (d). While the Illinois statute did not absolutely preclude Mrs. Pontikes from associating with the Democratic party, it did absolutely preclude her from voting in that party's 1972 primary election. Under our political system, a basic function of a political party is to select the candidates for public office to be offered to the voters at general elections. A prime objective of most voters in associating themselves with a particular party must surely be to gain a voice in that selection process. By preventing the appellee from participating at all in Democratic primary elections during the statutory period, the Illinois statute deprived her of any voice in choosing the party's candidates, and thus substantially abridged her ability to associate effectively with the party of her choice. III As our past decisions have made clear, a significant encroachment upon associational freedom cannot be justified upon a mere showing of a legitimate state interest. ; For even when *59 pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty. "Precision of regulation must be the touchstone in an area so closely touching our most precious freedoms." If the State has open to
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Kusper v. Pontikes
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our most precious freedoms." If the State has open to it a less drastic way of satisfying its legitimate interests, it may not choose a legislative scheme that broadly stifles the exercise of fundamental personal liberties. The appellants here urge that the 23-month rule serves the purpose of preventing "raiding"the practice whereby voters in sympathy with one party vote in another's primary in order to distort that primary's results. It is said that our decision in Rosario v. efeller, recognized the state interest in inhibiting "raiding," and upheld the constitutional validity of legislation restricting a voter's freedom to change parties, enacted as a means of serving that interest. It is true, of course, that the Court found no constitutional infirmity in the New York delayed-enrollment statute[14] under review in Rosario. That law required a voter to enroll in the party of his choice at least days before a general election in order to be eligible to vote in the next party primary, and thus prevented a change in party affiliation during the approximately 11 months between the deadline and the primary election.[15] It is also true that the Court recognized in Rosario that a State may have a legitimate interest in seeking to curtail "raiding," since that practice may *60 affect the integrity of the electoral process. But it does not follow from Rosario that the Illinois statutory procedures also pass muster under the Fourteenth Amendment, for the Illinois Election Code differs from the New York delayed-enrollment law in a number of important respects. The New York statute at issue in Rosario did not prevent voters from participating in the party primary of their choice; it merely imposed a time limit on enrollment. Under the New York law, a person who wanted to vote in a different party primary every year was not precluded from doing so; he had only to meet the requirement of declaring his party allegiance days before the preceding general election. The New York law did not have the consequence of "locking" a voter into an unwanted party affiliation from one election to the next; any such confinement was merely the result of the elector's voluntary failure to take timely measures to enroll. The Court therefore concluded that the New York delayed-enrollment law did not prevent voters "from associating with the political party of their choice." And see at 758 and n. 8. The basic difference in the Illinois law is obvious. Since the appellee here voted in the 1971 Republican primary, the state law absolutely precluded her from participating in the 1972 Democratic primary. Unlike
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Kusper v. Pontikes
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precluded her from participating in the 1972 Democratic primary. Unlike the petitioners in Rosario, whose disenfranchisement was caused by their own failure to take timely measures to enroll, there was no action that Mrs. Pontikes could have taken to make herself eligible to vote in the 1972 Democratic primary.[16] The Illinois law, unlike that of *61 New York, thus "locks" voters into a pre-existing party affiliation from one primary to the next, and the only way to break the "lock" is to forgo voting in any primary for a period of almost two years. In other words, while the Court held in Rosario that the New York delayed-enrollment scheme did not prevent voters from exercising their constitutional freedom to associate with the political party of their choice, the Illinois 23-month rule clearly does just that. It follows that the legitimate interest of Illinois in preventing "raiding" cannot justify the device it has chosen to effect its goal. For that device conspicuously infringes upon basic constitutional liberty. Far from supporting the validity of the Illinois legislation, the Court's decision in Rosario suggests that the asserted state interest can be attained by "less drastic means," which do not unnecessarily burden the exercise of constitutionally protected activity. We conclude, therefore, that 7-43 (d) of the Illinois Election Code unconstitutionally infringes upon the right of free political association protected by the First and Fourteenth The judgment of the District Court is accordingly Affirmed. THE CHIEF JUSTICE concurs in the result. MR.
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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This Court has struggled for nearly a decade to define the proper accommodation between the law of defamation and the freedoms of speech and press protected by the First Amendment. With this decision we return to that effort. We granted certiorari to reconsider the extent of a publisher's constitutional privilege against liability for defamation of a private citizen. I In a Chicago policeman named Nuccio shot and killed a youth named Nelson. The state authorities prosecuted Nuccio for the homicide and ultimately obtained a conviction for murder in the second degree. The Nelson family retained petitioner Elmer Gertz, a reputable attorney, to represent them in civil litigation against Nuccio. Respondent publishes American Opinion, a monthly outlet for the views of the John Birch Society. Early in the 1960's the magazine began to warn of a nationwide conspiracy to discredit local law enforcement agencies and create in their stead a national police force capable of supporting a Communist dictatorship. As part of the continuing effort to alert the public to this assumed danger, the managing editor of American Opinion commissioned an article on the murder trial of Officer Nuccio. For this purpose he engaged a regular contributor to the magazine. In March respondent published the resulting article under the title "FRAME-UP: Richard *326 Nuccio And The War On Police." The article purports to demonstrate that the testimony against Nuccio at his criminal trial was false and that his prosecution was part of the Communist campaign against the police. In his capacity as counsel for the Nelson family in the civil litigation, petitioner attended the coroner's inquest into the boy's death and initiated actions for damages, but he neither discussed Officer Nuccio with the press nor played any part in the criminal proceeding. Notwithstanding petitioner's remote connection with the prosecution of Nuccio, respondent's magazine portrayed him as an architect of the "frame-up." According to the article, the police file on petitioner took "a big, Irish cop to lift." The article stated that petitioner had been an official of the "Marxist League for Industrial Democracy, originally known as the Intercollegiate Socialist Society, which has advocated the violent seizure of our government." It labeled Gertz a "Leninist" and a "Communist-fronter." It also stated that Gertz had been an officer of the National Lawyers Guild, described as a Communist organization that "probably did more than any other outfit to plan the Communist attack on the Chicago police during the Democratic Convention." These statements contained serious inaccuracies. The implication that petitioner had a criminal record was false. Petitioner had been a member and officer of the
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Gertz v. Robert Welch, Inc.
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false. Petitioner had been a member and officer of the National Lawyers Guild some 15 years earlier, but there was no evidence that he or that organization had taken any part in planning the demonstrations in Chicago. There was also no basis for the charge that petitioner was a "Leninist" or a "Communist-fronter." And he had never been a member of the "Marxist League for Industrial Democracy" or the "Intercollegiate Socialist Society." *327 The managing editor of American Opinion made no effort to verify or substantiate the charges against petitioner. Instead, he appended an editorial introduction stating that the author had "conducted extensive research into the Richard Nuccio Case." And he included in the article a photograph of petitioner and wrote the caption that appeared under it: "Elmer Gertz of Red Guild harrasses Nuccio." Respondent placed the issue of American Opinion containing the article on sale at newsstands throughout the country and distributed reprints of the article on the streets of Chicago. Petitioner filed a diversity action for libel in the United States District Court for the Northern District of Illinois. He claimed that the falsehoods published by respondent injured his reputation as a lawyer and a citizen. Before filing an answer, respondent moved to dismiss the complaint for failure to state a claim upon which relief could be granted, apparently on the ground that petitioner failed to allege special damages. But the court ruled that statements contained in the article constituted libel per se under Illinois law and that consequently petitioner need not plead special damages. After answering the complaint, respondent filed a pretrial motion for summary judgment, claiming a constitutional privilege against liability for defamation.[1] It asserted that petitioner was a public official or a public figure and that the article concerned an issue of public interest and concern. For these reasons, respondent argued, it was entitled to invoke the privilege enunciated in New York Times Under this rule respondent would escape liability unless *328 petitioner could prove publication of defamatory falsehood "with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." Respondent claimed that petitioner could not make such a showing and submitted a supporting affidavit by the magazine's managing editor. The editor denied any knowledge of the falsity of the statements concerning petitioner and stated that he had relied on the author's reputation and on his prior experience with the accuracy and authenticity of the author's contributions to American Opinion. The District Court denied respondent's motion for summary judgment in a memorandum opinion of September
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Gertz v. Robert Welch, Inc.
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motion for summary judgment in a memorandum opinion of September 16, 1970. The court did not dispute respondent's claim to the protection of the New York Times standard. Rather, it concluded that petitioner might overcome the constitutional privilege by making a factual showing sufficient to prove publication of defamatory falsehood in reckless disregard of the truth. During the course of the trial, however, it became clear that the trial court had not accepted all of respondent's asserted grounds for applying the New York Times rule to this case. It thought that respondent's claim to the protection of the constitutional privilege depended on the contention that petitioner was either a public official under the New York Times decision or a public figure under Curtis Publishing apparently discounting the argument that a privilege would arise from the presence of a public issue. After all the evidence had been presented but before submission of the case to the jury, the court ruled in effect that petitioner was neither a public official nor a public figure. It added that, if he were, the resulting application of the New York Times standard would require a directed verdict for respondent. Because some statements in the article constituted libel per se *329 under Illinois law, the court submitted the case to the jury under instructions that withdrew from its consideration all issues save the measure of damages. The jury awarded $50,000 to petitioner. Following the jury verdict and on further reflection, the District Court concluded that the New York Times standard should govern this case even though petitioner was not a public official or public figure. It accepted respondent's contention that that privilege protected discussion of any public issue without regard to the status of a person defamed therein. Accordingly, the court entered judgment for respondent notwithstanding the jury's verdict.[2] This conclusion anticipated the reasoning *330 of a plurality of this Court in Petitioner appealed to contest the applicability of the New York Times standard to this case. Although the Court of Appeals for the Seventh Circuit doubted the correctness of the District Court's determination that petitioner was not a public figure, it did not overturn that finding.[3] It agreed with the District Court that respondent could assert the constitutional privilege because the article concerned a matter of public interest, citing this Court's intervening decision in The Court of Appeals read Rosenbloom to require application of the New York Times standard to any publication or broadcast about an issue of significant public interest, without regard to the position, fame, or anonymity of the person defamed, and it
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Gertz v. Robert Welch, Inc.
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position, fame, or anonymity of the person defamed, and it concluded that respondent's statements *331 concerned such an issue.[4] After reviewing the record, the Court of Appeals endorsed the District Court's conclusion that petitioner had failed to show by clear and *332 convincing evidence that respondent had acted with "actual malice" as defined by New York Times. There was no evidence that the managing editor of American Opinion knew of the falsity of the accusations made in the article. In fact, he knew nothing about petitioner except what he learned from the article. The court correctly noted that mere proof of failure to investigate, without more, cannot establish reckless disregard for the truth. Rather, the publisher must act with a " `high degree of awareness of probable falsity.' " St. ; accord, Beckley Newspapers ; The evidence in this case did not reveal that respondent had cause for such an awareness. The Court of Appeals therefore affirmed, For the reasons stated below, we reverse. II The principal issue in this case is whether a newspaper or broadcaster that publishes defamatory falsehoods about an individual who is neither a public official nor a public figure may claim a constitutional privilege against liability for the injury inflicted by those statements. The Court considered this question on the rather different set of facts presented in Rosenbloom, a distributor of nudist magazines, was arrested for selling allegedly obscene material while making *333 a delivery to a retail dealer. The police obtained a warrant and seized his entire inventory of 3,000 books and magazines. He sought and obtained an injunction prohibiting further police interference with his business. He then sued a local radio station for failing to note in two of its newscasts that the 3,000 items seized were only "reportedly" or "allegedly" obscene and for broadcasting references to "the smut literature racket" and to "girliebook peddlers" in its coverage of the court proceeding for injunctive relief. He obtained a judgment against the radio station, but the Court of Appeals for the Third Circuit held the New York Times privilege applicable to the broadcast and reversed. This Court affirmed the decision below, but no majority could agree on a controlling rationale. The eight Justices[5] who participated in Rosenbloom announced their views in five separate opinions, none of which commanded more than three votes. The several statements not only reveal disagreement about the appropriate result in that case, they also reflect divergent traditions of thought about the general problem of reconciling the law of defamation with the First Amendment. One approach has been to extend the
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Gertz v. Robert Welch, Inc.
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the First Amendment. One approach has been to extend the New York Times test to an expanding variety of situations. Another has been to vary the level of constitutional privilege for defamatory falsehood with the status of the person defamed. And a third view would grant to the press and broadcast media absolute immunity from liability for defamation. To place our holding in the proper context, we preface our discussion of this case with a review of the several Rosenbloom opinions and their antecedents. In affirming the trial court's judgment in the instant case, the Court of Appeals relied on MR. JUSTICE BRENNAN'S *334 conclusion for the Rosenbloom plurality that "all discussion and communication involving matters of public or general concern," warrant the protection from liability for defamation accorded by the rule originally enunciated in New York Times There this Court defined a constitutional privilege intended to free criticism of public officials from the restraints imposed by the common law of defamation. The Times ran a political advertisement endorsing civil rights demonstrations by black students in Alabama and impliedly condemning the performance of local law-enforcement officials. A police commissioner established in state court that certain misstatements in the advertisement referred to him and that they constituted libel per se under Alabama law. This showing left the Times with the single defense of truth, for under Alabama law neither good faith nor reasonable care would protect the newspaper from liability. This Court concluded that a "rule compelling the critic of official conduct to guarantee the truth of all his factual assertions" would deter protected speech, and announced the constitutional privilege designed to counter that effect: "The constitutional guarantees require, we think, a federal rule that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with `actual malice'that is, with knowledge that it was false or with reckless disregard of whether it was false or not." -280.[6] *335 Three years after New York Times, a majority of the Court agreed to extend the constitutional privilege to defamatory criticism of "public figures." This extension *336 was announced in Curtis Publishing and its companion, Associated The first case involved the Saturday Evening Post's charge that Coach Wally of the University of Georgia had conspired with Coach "Bear" Bryant of the University of Alabama to fix a football game between their respective schools. Walker involved an erroneous Associated Press account of former Major General Edwin Walker's participation in a University of Mississippi campus riot. Because was paid by a private
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Gertz v. Robert Welch, Inc.
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of Mississippi campus riot. Because was paid by a private alumni association and Walker had resigned from the Army, neither could be classified as a "public official" under New York Times. Although Mr. Justice Harlan announced the result in both cases, a majority of the Court agreed with Mr. Chief Justice Warren's conclusion that the New York Times test should apply to criticism of "public figures" as well as "public officials."[7] The Court extended the constitutional *337 privilege announced in that case to protect defamatory criticism of nonpublic persons who "are nevertheless intimately involved in the resolution of important public questions or, by reason of their fame, shape events in areas of concern to society at large." In his opinion for the plurality in MR. JUSTICE BRENNAN took the New York Times privilege one step further. He concluded that its protection should extend to defamatory falsehoods relating to private persons if the statements concerned matters of general or public interest. He abjured the suggested distinction between public officials and public figures on the one hand and private individuals on the other. He focused instead on society's interest in learning about certain issues: "If a matter is a subject of public or general interest, it cannot suddenly become less so merely because a private individual is involved, or because in some sense the individual did not `voluntarily' choose to become involved." Thus, under the plurality opinion, a private citizen involuntarily associated with a matter of general interest has no recourse for injury to his reputation unless he can satisfy the demanding requirements of the New York Times test. Two Members of the Court concurred in the result in Rosenbloom but departed from the reasoning of the plurality. Mr. Justice Black restated his view, long shared by MR. JUSTICE DOUGLAS, that the First Amendment cloaks the news media with an absolute and indefeasible immunity from liability for defamation. MR JUSTICE WHITE concurred on a narrower ground. He concluded that "the First Amendment gives the press and the broadcast media a privilege to report and comment upon the official actions of public *338 servants in full detail, with no requirement that the reputation or the privacy of an individual involved in or affected by the official action be spared from public view." He therefore declined to reach the broader questions addressed by the other Justices. Mr. Justice Harlan dissented. Although he had joined the opinion of the Court in New York Times, in Curtis Publishing Co. he had contested the extension of the privilege to public figures. There he had argued that a
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privilege to public figures. There he had argued that a public figure who held no governmental office should be allowed to recover damages for defamation "on a showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers." In his Curtis Publishing Co. opinion Mr. Justice Harlan had distinguished New York Times primarily on the ground that defamation actions by public officials "lay close to seditious libel" Recovery of damages by one who held no public office, however, could not "be viewed as a vindication of governmental policy." Additionally, he had intimated that, because most public officials enjoyed absolute immunity from liability for their own defamatory utterances under they lacked a strong claim to the protection of the courts. In Rosenbloom Mr. Justice Harlan modified these views. He acquiesced in the application of the privilege to defamation of public figures but argued that a different rule should obtain where defamatory falsehood harmed a private individual. He noted that a private person has less likelihood "of securing access to channels of communication sufficient to rebut falsehoods concerning him" than do public officials and public figures, and has not voluntarily placed himself in the *339 public spotlight. Mr. Justice Harlan concluded that the States could constitutionally allow private individuals to recover damages for defamation on the basis of any standard of care except liability without fault. MR. JUSTICE MARSHALL dissented in Rosenbloom in an opinion joined by MR. JUSTICE STEWART. He thought that the plurality's "public or general interest" test for determining the applicability of the New York Times privilege would involve the courts in the dangerous business of deciding "what information is relevant to self-government." He also contended that the plurality's position inadequately served "society's interest in protecting private individuals from being thrust into the public eye by the distorting light of defamation." MR. JUSTICE MARSHALL therefore reached the conclusion, also reached by Mr. Justice Harlan, that the States should be "essentially free to continue the evolution of the common law of defamation and to articulate whatever fault standard best suits the State's need," so long as the States did not impose liability without fault. The principal point of disagreement among the three dissenters concerned punitive damages. Whereas Mr. Justice Harlan thought that the States could allow punitive damages in amounts bearing "a reasonable and purposeful relationship to the actual harm done" MR. JUSTICE MARSHALL concluded that the size and unpredictability of jury awards of exemplary damages unnecessarily exacerbated the problems of media self-censorship and that such damages should therefore
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problems of media self-censorship and that such damages should therefore be forbidden. III We begin with the common ground. Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but *340 on the competition of other ideas.[8] But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in "uninhibited, robust, and wide-open" debate on public issues. New York Times They belong to that category of utterances which "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Although the erroneous statement of fact is not worthy of constitutional protection, it is nevertheless inevitable in free debate. As James Madison pointed out in the Report on the Virginia Resolutions of 1798: "Some degree of abuse is inseparable from the proper use of every thing; and in no instance is this more true than in that of the press." 4 J. Elliot, Debates on the Federal Constitution of 1787, p. 571 (1876). And punishment of error runs the risk of inducing a cautious and restrictive exercise of the constitutionally guaranteed freedoms of speech and press. Our decisions recognize that a rule of strict liability that compels a publisher or broadcaster to guarantee the accuracy of his factual assertions may lead to intolerable self-censorship. Allowing the media to avoid liability only by proving the truth of all injurious statements does not accord adequate protection to First Amendment liberties. As the Court stated in New York Times : "Allowance of the defense of truth, *341 with the burden of proving it on the defendant, does not mean that only false speech will be deterred." The First Amendment requires that we protect some falsehood in order to protect speech that matters. The need to avoid self-censorship by the news media is, however, not the only societal value at issue. If it were, this Court would have embraced long ago the view that publishers and broadcasters enjoy an unconditional and indefeasible immunity from liability for defamation. See New York Times ; ; Curtis Publishing Such a rule would, indeed, obviate the fear that the prospect of civil liability for injurious falsehood might dissuade a timorous press from the effective exercise of First Amendment freedoms. Yet absolute protection for the communications
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of First Amendment freedoms. Yet absolute protection for the communications media requires a total sacrifice of the competing value served by the law of defamation. The legitimate state interest underlying the law of libel is the compensation of individuals for the harm inflicted on them by defamatory falsehood. We would not lightly require the State to abandon this purpose, for, as MR. JUSTICE STEWART has reminded us, the individual's right to the protection of his own good name "reflects no more than our basic concept of the essential dignity and worth of every human beinga concept at the root of any decent system of ordered liberty. The protection of private personality, like the protection of life itself, is left primarily to the individual States under the Ninth and Tenth Amendments. But this does not mean that the right is entitled to any less recognition by this Court as a basic of our constitutional system." *342 Some tension necessarily exists between the need for a vigorous and uninhibited press and the legitimate interest in redressing wrongful injury. As Mr. Justice Harlan stated, "some antithesis between freedom of speech and press and libel actions persists, for libel remains premised on the content of speech and limits the freedom of the publisher to express certain sentiments, at least without guaranteeing legal proof of their substantial accuracy." Curtis Publishing In our continuing effort to define the proper accommodation between these competing concerns, we have been especially anxious to assure to the freedoms of speech and press that "breathing space" essential to their fruitful exercise. To that end this Court has extended a measure of strategic protection to defamatory falsehood. The New York Times standard defines the level of constitutional protection appropriate to the context of defamation of a public person. Those who, by reason of the notoriety of their achievements or the vigor and success with which they seek the public's attention, are properly classed as public figures and those who hold governmental office may recover for injury to reputation only on clear and convincing proof that the defamatory falsehood was made with knowledge of its falsity or with reckless disregard for the truth. This standard administers an extremely powerful antidote to the inducement to media self-censorship of the common-law rule of strict liability for libel and slander. And it exacts a correspondingly high price from the victims of defamatory falsehood. Plainly many deserving plaintiffs, including some intentionally subjected to injury, will be unable to surmount the barrier of the New York Times test. Despite this *343 substantial abridgment of the state law right
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Despite this *343 substantial abridgment of the state law right to compensation for wrongful hurt to one's reputation, the Court has concluded that the protection of the New York Times privilege should be available to publishers and broadcasters of defamatory falsehood concerning public officials and public figures. New York Times Curtis Publishing We think that these decisions are correct, but we do not find their holdings justified solely by reference to the interest of the press and broadcast media in immunity from liability. Rather, we believe that the New York Times rule states an accommodation between this concern and the limited state interest present in the context of libel actions brought by public persons. For the reasons stated below, we conclude that the state interest in compensating injury to the reputation of private individuals requires that a different rule should obtain with respect to them. Theoretically, of course, the balance between the needs of the press and the individual's claim to compensation for wrongful injury might be struck on a case-by-case basis. As Mr. Justice Harlan hypothesized, "it might seem, purely as an abstract matter, that the most utilitarian approach would be to scrutinize carefully every jury verdict in every libel case, in order to ascertain whether the final judgment leaves fully protected whatever First Amendment values transcend the legitimate state interest in protecting the particular plaintiff who prevailed." But this approach would lead to unpredictable results and uncertain expectations, and it could render our duty to supervise the lower courts unmanageable. Because an ad hoc resolution of the competing interests at stake in each particular case is not feasible, we must lay down broad rules of general *344 application. Such rules necessarily treat alike various cases involving differences as well as similarities. Thus it is often true that not all of the considerations which justify adoption of a given rule will obtain in each particular case decided under its authority. With that caveat we have no difficulty in distinguishing among defamation plaintiffs. The first remedy of any victim of defamation is self-helpusing available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation. Public officials and public figures usually enjoy significantly greater access to the channels of effective communication and hence have a more realistic opportunity to counteract false statements than private individuals normally enjoy.[9] Private individuals are therefore more vulnerable to injury, and the state interest in protecting them is correspondingly greater. More important than the likelihood that private individuals will lack effective opportunities for rebuttal, there is a compelling
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Justice Powell
| 1,974 | 17 |
majority
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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will lack effective opportunities for rebuttal, there is a compelling normative consideration underlying the distinction between public and private defamation plaintiffs. An individual who decides to seek governmental office must accept certain necessary consequences of that involvement in public affairs. He runs the risk of closer public scrutiny than might otherwise be the case. And society's interest in the officers of government is not strictly limited to the formal discharge of official duties. As the Court pointed out in the public's interest extends to "anything *345 which might touch on an official's fitness for office Few personal attributes are more germane to fitness for office than dishonesty, malfeasance, or improper motivation, even though these characteristics may also affect the official's private character." Those classed as public figures stand in a similar position. Hypothetically, it may be possible for someone to become a public figure through no purposeful action of his own, but the instances of truly involuntary public figures must be exceedingly rare. For the most part those who attain this status have assumed roles of especial prominence in the affairs of society. Some occupy positions of such persuasive power and influence that they are deemed public figures for all purposes. More commonly, those classed as public figures have thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved. In either event, they invite attention and comment. Even if the foregoing generalities do not obtain in every instance, the communications media are entitled to act on the assumption that public officials and public figures have voluntarily exposed themselves to increased risk of injury from defamatory falsehood concerning them. No such assumption is justified with respect to a private individual. He has not accepted public office or assumed an "influential role in ordering society." Curtis Publishing 388 U. S., He has relinquished no part of his interest in the protection of his own good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory falsehood. Thus, private individuals are not only more vulnerable to injury than public officials and public figures; they are also more deserving of recovery. For these reasons we conclude that the States should retain substantial latitude in their efforts to enforce a *346 legal remedy for defamatory falsehood injurious to the reputation of a private individual. The extension of the New York Times test proposed by the Rosenbloom plurality would abridge this legitimate state interest to a degree that we find unacceptable. And it would occasion the additional difficulty
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Justice Powell
| 1,974 | 17 |
majority
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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we find unacceptable. And it would occasion the additional difficulty of forcing state and federal judges to decide on an ad hoc basis which publications address issues of "general or public interest" and which do notto determine, in the words of MR. JUSTICE MARSHALL, "what information is relevant to self-government." 403 U. S., We doubt the wisdom of committing this task to the conscience of judges. Nor does the Constitution require us to draw so thin a line between the drastic alternatives of the New York Times privilege and the common law of strict liability for defamatory error. The "public or general interest" test for determining the applicability of the New York Times standard to private defamation actions inadequately serves both of the competing values at stake. On the one hand, a private individual whose reputation is injured by defamatory falsehood that does concern an issue of public or general interest has no recourse unless he can meet the rigorous requirements of New York Times. This is true despite the factors that distinguish the state interest in compensating private individuals from the analogous interest involved in the context of public persons. On the other hand, a publisher or broadcaster of a defamatory error which a court deems unrelated to an issue of public or general interest may be held liable in damages even if it took every reasonable precaution to ensure the accuracy of its assertions. And liability may far exceed compensation for any actual injury to the plaintiff, for the jury may be permitted to presume damages without proof of loss and even to award punitive damages. *347 We hold that, so long as they do not impose liability without fault, the States may define for themselves the appropriate standard of liability for a publisher or broadcaster of defamatory falsehood injurious to a private individual.[10] This approach provides a more equitable *348 boundary between the competing concerns involved here. It recognizes the strength of the legitimate state interest in compensating private individuals for wrongful injury to reputation, yet shields the press and broadcast media from the rigors of strict liability for defamation. At least this conclusion obtains where, as here, the substance of the defamatory statement "makes substantial danger to reputation apparent."[11] This phrase places in perspective the conclusion we announce today. Our inquiry would involve considerations somewhat different from those discussed above if a State purported to condition civil liability on a factual misstatement whose content did not warn a reasonably prudent editor or broadcaster of its defamatory potential. Cf. Time, v. Hill, Such a case is not
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Justice Powell
| 1,974 | 17 |
majority
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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potential. Cf. Time, v. Hill, Such a case is not now before us, and we intimate no view as to its proper resolution. IV Our accommodation of the competing values at stake in defamation suits by private individuals allows the States to impose liability on the publisher or broadcaster of defamatory falsehood on a less demanding showing than that required by New York Times. This conclusion is not based on a belief that the considerations which prompted the adoption of the New York Times privilege for defamation of public officials and its extension to public figures are wholly inapplicable to the context of private individuals. Rather, we endorse this approach in recognition of the strong and legitimate state interest in compensating private individuals for injury to reputation. *349 But this countervailing state interest extends no further than compensation for actual injury. For the reasons stated below, we hold that the States may not permit recovery of presumed or punitive damages, at least when liability is not based on a showing of knowledge of falsity or reckless disregard for the truth. The common law of defamation is an oddity of tort law, for it allows recovery of purportedly compensatory damages without evidence of actual loss. Under the traditional rules pertaining to actions for libel, the existence of injury is presumed from the fact of publication. Juries may award substantial sums as compensation for supposed damage to reputation without any proof that such harm actually occurred. The largely uncontrolled discretion of juries to award damages where there is no loss unnecessarily compounds the potential of any system of liability for defamatory falsehood to inhibit the vigorous exercise of First Amendment freedoms. Additionally, the doctrine of presumed damages invites juries to punish unpopular opinion rather than to compensate individuals for injury sustained by the publication of a false fact. More to the point, the States have no substantial interest in securing for plaintiffs such as this petitioner gratuitous awards of money damages far in excess of any actual injury. We would not, of course, invalidate state law simply because we doubt its wisdom, but here we are attempting to reconcile state law with a competing interest grounded in the constitutional command of the First Amendment. It is therefore appropriate to require that state remedies for defamatory falsehood reach no farther than is necessary to protect the legitimate interest involved. It is necessary to restrict defamation plaintiffs who do not prove knowledge of falsity or reckless disregard for the truth to compensation for actual injury. We *350 need not define "actual injury," as trial
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Justice Powell
| 1,974 | 17 |
majority
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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injury. We *350 need not define "actual injury," as trial courts have wide experience in framing appropriate jury instructions in tort actions. Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering. Of course, juries must be limited by appropriate instructions, and all awards must be supported by competent evidence concerning the injury, although there need be no evidence which assigns an actual dollar value to the injury. We also find no justification for allowing awards of punitive damages against publishers and broadcasters held liable under state-defined standards of liability for defamation. In most jurisdictions jury discretion over the amounts awarded is limited only by the gentle rule that they not be excessive. Consequently, juries assess punitive damages in wholly unpredictable amounts bearing no necessary relation to the actual harm caused. And they remain free to use their discretion selectively to punish expressions of unpopular views. Like the doctrine of presumed damages, jury discretion to award punitive damages unnecessarily exacerbates the danger of media self-censorship, but, unlike the former rule, punitive damages are wholly irrelevant to the state interest that justifies a negligence standard for private defamation actions. They are not compensation for injury. Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence. In short, the private defamation plaintiff who established liability under a less demanding standard than that stated by New York Times may recover only such damages as are sufficient to compensate him for actual injury. *351 V Notwithstanding our refusal to extend the New York Times privilege to defamation of private individuals, respondent contends that we should affirm the judgment below on the ground that petitioner is either a public official or a public figure. There is little basis for the former assertion. Several years prior to the present incident, petitioner had served briefly on housing committees appointed by the mayor of Chicago, but at the time of publication he had never held any remunerative governmental position. Respondent admits this but argues that petitioner's appearance at the coroner's inquest rendered him a "de facto public official." Our cases recognize no such concept. Respondent's suggestion would sweep all lawyers under the New York Times rule as officers of the court and distort the plain meaning of the "public official" category beyond all recognition. We decline to follow it. Respondent's characterization of petitioner as a public figure raises
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Justice Powell
| 1,974 | 17 |
majority
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Gertz v. Robert Welch, Inc.
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https://www.courtlistener.com/opinion/109091/gertz-v-robert-welch-inc/
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it. Respondent's characterization of petitioner as a public figure raises a different question. That designation may rest on either of two alternative bases. In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly, an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. Petitioner has long been active in community and professional affairs. He has served as an officer of local civic groups and of various professional organizations, and he has published several books and articles on legal subjects. Although petitioner was consequently well known in some circles, he had achieved no general fame *352 or notoriety in the community. None of the prospective jurors called at the trial had ever heard of petitioner prior to this litigation, and respondent offered no proof that this response was atypical of the local population. We would not lightly assume that a citizen's participation in community and professional affairs rendered him a public figure for all purposes. Absent clear evidence of general fame or notoriety in the community, and pervasive involvement in the affairs of society, an individual should not be deemed a public personality for all aspects of his life. It is preferable to reduce the public-figure question to a more meaningful context by looking to the nature and extent of an individual's participation in the particular controversy giving rise to the defamation. In this context it is plain that petitioner was not a public figure. He played a minimal role at the coroner's inquest, and his participation related solely to his representation of a private client. He took no part in the criminal prosecution of Officer Nuccio. Moreover, he never discussed either the criminal or civil litigation with the press and was never quoted as having done so. He plainly did not thrust himself into the vortex of this public issue, nor did he engage the public's attention in an attempt to influence its outcome. We are persuaded that the trial court did not err in refusing to characterize petitioner as a public figure for the purpose of this litigation. We therefore conclude that the New York Times standard is inapplicable to this case and that the trial court erred in entering judgment for respondent. Because the jury was allowed to impose liability without fault and was permitted to presume damages without proof of injury,
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Justice Brennan
| 1,978 | 13 |
dissenting
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Moorman Mfg. Co. v. Bair
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https://www.courtlistener.com/opinion/109900/moorman-mfg-co-v-bair/
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I agree with the Court that, for purposes of constitutional review, there is no distinction between a corporate income tax and a gross-receipts tax. I do not agree, however, that Iowa's single-factor sales apportionment formula meets the Commerce Clause requirement that a State's taxation of interstate business must be "fairly apportioned to the commerce carried on within the taxing state." Western Live As I have previously explained: "[Where a sale] exhibits significant contacts with more than one State it is the commercial activity within the State, and not the sales volume, which determines the State's power to tax, and by which the tax must be apportioned. While the ratio of in-state to out-of-state sales is often taken into account as one factor among others in apportioning a firm's total net income, see, e. g., the description of the `Massachusetts Formula' in Note. it nevertheless remains true that *282 if commercial activity in more than one State results in a sale in one of them, that State may not claim as all its own the gross receipts to which the activity within its borders has contributed only a part. Such a tax must be apportioned to reflect the business activity within the taxing State." General Motors I would therefore reverse. MR.
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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This case presents a challenge to the constitutionality of 4-1. of New York's Estates, Powers, and Trusts Law,[1] which requires illegitimate children who would inherit from their fathers by intestate succession to provide a particular form of proof of paternity. Legitimate children are not subject to the same requirement. I Appellant Robert claims to be the illegitimate son of Mario who died intestate on January 7, 1973, in the State of New York. Appellant's mother, who died in 1968, never was married to Mario. After Mario's widow, Rosamond was appointed administratrix of her husband's estate, appellant petitioned the Surrogate's Court for Westchester County for a compulsory accounting, claiming that he and his sister Maureen were entitled to inherit from Mario as his children. Rosamond opposed the petition. She argued that even if Robert and Maureen were Mario's children, they were not lawful distributees of the estate because they had failed to comply with 4-1.,[] which provides in part: "An illegitimate child is the legitimate child of his *6 father so that he and his issue inherit from his father if a court of competent jurisdiction has, during the lifetime of the father, made an order of filiation declaring paternity in a proceeding instituted during the pregnancy of the mother or within two years from the birth of the child." Appellant conceded that he had not obtained an order of filiation during his putative father's lifetime. He contended, however, that 4-1., by imposing this requirement, discriminated against him on the basis of his illegitimate birth in violation of the Equal Protection Clause of the Fourteenth Amendment.[3] Appellant tendered certain evidence of his relationship with Mario including a notarized document *63 in which in consenting to appellant's marriage, referred to him as "my son," and several affidavits by persons who stated that had acknowledged openly and often that Robert and Maureen were his children. The Surrogate's Court noted that 4-1. had previously, and unsuccessfully, been attacked under the Equal Protection Clause. After reviewing recent decisions of this Court concerning discrimination against illegitimate children, particularly and three New York decisions affirming the constitutionality of the statute, In re Belton, ; In re ; In re Crawford, the court ruled that appellant was properly excluded as a distributee of 's estate and therefore lacked status to petition for a compulsory accounting. On direct appeal the New York Court of Appeals affirmed. In re It understood Labine to require the State to show no more than that "there is a rational basis for the means chosen by the Legislature for the accomplishment of a permissible
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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chosen by the Legislature for the accomplishment of a permissible State objective." After discussing the problems of proof peculiar to establishing paternity, as opposed to maternity, the court concluded that the State was constitutionally entitled to require a judicial decree during the father's lifetime as the exclusive form of proof of paternity. Appellant appealed the Court of Appeals' decision to this Court. While that case was pending here, we decided Because the issues in these two cases were similar in some respects, we vacated and remanded to permit further consideration in light of *64 On remand,[4] the New York Court of Appeals, with two judges dissenting, adhered to its former disposition. In re It acknowledged that contemplated a standard of judicial review demanding more than "a mere finding of some remote rational relationship between the statute and a legitimate State purpose," though less than strictest scrutiny. Finding 4-1. to be "significantly and determinatively different" from the statute overturned in the court ruled that the New York law was sufficiently related to the State's interest in " `the orderly settlement of estates and the dependability of titles to property passing under intestacy laws,' " -483, quoting to meet the requirements of equal protection. Appellant again sought review here, and we noted probable jurisdiction. We now affirm. II We begin our analysis with At issue in that case was the constitutionality of an Illinois statute providing that a child born out of wedlock could inherit from his intestate father only if the father had "acknowledged" the child and the child had been legitimated by the intermarriage of the parents. The appellant in was a child born out of wedlock whose father had neither acknowledged her nor married her mother. He had, however, been found to be her father in a judicial decree ordering him to contribute to her support. When the father died intestate, the child was excluded as a distributee because the statutory requirements for inheritance had not been met. We concluded that the Illinois statute discriminated against *65 illegitimate children in a manner prohibited by the Equal Protection Clause. Although, as decided in and reaffirmed in classifications based on illegitimacy are not subject to "strict scrutiny," they nevertheless are invalid under the Fourteenth Amendment if they are not substantially related to permissible state interests. Upon examination, we found that the Illinois law failed that test. Two state interests were proposed which the statute was said to foster: the encouragement of legitimate family relationships and the maintenance of an accurate and efficient method of disposing of an intestate decedent's property. Granting
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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efficient method of disposing of an intestate decedent's property. Granting that the State was appropriately concerned with the integrity of the family unit, we viewed the statute as bearing "only the most attenuated relationship to the asserted goal." We again rejected the argument that "persons will shun illicit relations because the offspring may not one day reap the benefits" that would accrue to them were they legitimate. The statute therefore was not defensible as an incentive to enter legitimate family relationships. Illinois' interest in safeguarding the orderly disposition of property at death was more relevant to the statutory classification. We recognized that devising "an appropriate legal framework" in the furtherance of that interest "is a matter particularly within the competence of the individual States." An important aspect of that framework is a response to the often difficult problem of proving the paternity of illegitimate children and the related danger of spurious claims against intestate estates. See infra, -71. These difficulties, we said, "might justify a more demanding standard for illegitimate children claiming under their fathers' estates than that required either for illegitimate children claiming under their mothers' estates or for legitimate children generally." *66 The Illinois statute, however, was constitutionally flawed because, by insisting upon not only an acknowledgment by the father, but also the marriage of the parents, it excluded "at least some significant categories of illegitimate children of intestate men [whose] inheritance rights can be recognized without jeopardizing the orderly settlement of estates or the dependability of titles to property passing under intestacy laws." We concluded that the Equal Protection Clause required that a statute placing exceptional burdens on illegitimate children in the furtherance of proper state objectives must be more " `carefully tuned to alternative considerations.' " quoting than was true of the broad disqualification in the Illinois law. III The New York statute, enacted in 1965, was intended to soften the rigors of previous law which permitted illegitimate children to inherit only from their mothers. See infra, at 69. By lifting the absolute bar to paternal inheritance, 4-1. tended to achieve its desired effect. As in however, the question before us is whether the remaining statutory obstacles to inheritance by illegitimate children can be squared with the Equal Protection Clause. A At the outset we observe that 4-1. is different in important respects from the statutory provision overturned in The Illinois statute required, in addition to the father's acknowledgment of paternity, the legitimation of the child through the intermarriage of the parents as an absolute precondition to inheritance. This combination of requirements eliminated "the possibility of
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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to inheritance. This combination of requirements eliminated "the possibility of a middle ground between the extremes of complete exclusion and case-by-case determination of paternity." 430 U. S., -771. As *67 illustrated by the facts in even a judicial declaration of paternity was insufficient to permit inheritance. Under 4-1., by contrast, the marital status of the parents is irrelevant. The single requirement at issue here is an evidentiary onethat the paternity of the father be declared in a judicial proceeding sometime before his death.[5] The child need not have been legitimated in order to inherit from his father. Had the appellant in been governed by 4-1., she would have been a distributee of her father's estate. See In re n. n. A related difference between the two provisions pertains to the state interests said to be served by them. The Illinois law was defended, in part, as a means of encouraging legitimate family relationships. No such justification has been offered in support of 4-1. The Court of Appeals disclaimed that the purpose of the statute, "even in small part, *68 was to discourage illegitimacy, to mold human conduct or to set societal norms." In re 371 N.E.d, at 483. The absence in 4-1. of any requirement that the parents intermarry or otherwise legitimate a child born out of wedlock and our review of the legislative history of the statute, infra, at 69-71, confirm this view. Our inquiry, therefore, is focused narrowly. We are asked to decide whether the discrete procedural demands that 4-1. places on illegitimate children bear an evident and substantial relation to the particular state interests this statute is designed to serve. B The primary state goal underlying the challenged aspects of 4-1. is to provide for the just and orderly disposition of property at death.[6] We long have recognized that this is an area with which the States have an interest of considerable magnitude. ; 406 U. S., at 1; ; see also ; This interest is directly implicated in paternal inheritance by illegitimate children because of the peculiar problems of proof that are involved. Establishing maternity is seldom difficult. As one New York Surrogate's Court has observed: "[T]he birth of the child is a recorded or registered event usually taking place in the presence of others. In most cases the child remains with the mother and for a time is necessarily reared by her. That the child is the child of a particular woman is rarely difficult to prove." In re Ortiz, 60 Misc. d *69 756, 761, 303 N. Y. S. d 806, 81 (1969). Proof
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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761, 303 N. Y. S. d 806, 81 (1969). Proof of paternity, by contrast, frequently is difficult when the father is not part of a formal family unit. "The putative father often goes his way unconscious of the birth of a child. Even if conscious, he is very often totally unconcerned because of the absence of any ties to the mother. Indeed the mother may not know who is responsible for her pregnancy." ; accord, In re 85 Misc. d 855, 381 N. Y. S. d 573, 576-577 ; In re 68 Misc. d, at 443, 36 N. Y. S. d, at 650; cf. 77. Thus, a number of problems arise that counsel against treating illegitimate children identically to all other heirs of an intestate father. These were the subject of a comprehensive study by the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates. This group, known as the Bennett Commission,[7] consisted of individuals experienced in the practical problems of estate administration. In re 381 N. Y. S. d, at 575. The Commission issued its report and recommendations to the legislature in 1965. See Fourth Report of the Temporary State Commission on the Modernization, Revision and Simplification of the Law of Estates, Legis. Doc. No. 19 (1965) (hereinafter Commission Report). The statute now codified as 4-1. was included. Although the overarching purpose of the proposed statute was "to alleviate the plight of the illegitimate child," Commission Report 37, the Bennett Commission considered it necessary to impose the strictures of 4-1. in order to mitigate serious difficulties in the administration of the estates of * both testate and intestate decedents. The Commission's perception of some of these difficulties was described by Surrogate Sobel, a member of "the busiest [surrogate's] court in the State measured by the number of intestate estates which traffic daily through this court," In re 381 N. Y. S. d, at 574, and a participant in some of the Commission's deliberations: "An illegitimate, if made an unconditional distributee in intestacy, must be served with process in the estate of his parent or if he is a distributee in the estate of the kindred of a parent. And, in probating the will of his parent (though not named a beneficiary) or in probating the will of any person who makes a class disposition to `issue' of such parent, the illegitimate must be served with process. How does one cite and serve an illegitimate of whose existence neither family nor personal representative may be aware? And of greatest concern, how achieve finality of decree
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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aware? And of greatest concern, how achieve finality of decree in any estate when there always exists the possibility however remote of a secret illegitimate lurking in the buried past of a parent or an ancestor of a class of beneficiaries? Finality in decree is essential in the Surrogates' Courts since title to real property passes under such decree. Our procedural statutes and the Due Process Clause mandate notice and opportunity to be heard to all necessary parties. Given the right to intestate succession, all illegitimates must be served with process. This would be no real problem with respect to those few estates where there are `known' illegitimates. But it presents an almost insuperable burden as regards `unknown' illegitimates. The point made in the [Bennett] commission discussions was that instead of affecting only a few estates, procedural problems would be created for manysome members suggested a majority of estates." 85 Misc. d, at 859, 381 N. Y. S. d, at 575-576. *71 Cf. In re Leventritt, 9 Misc. d 598, 601-60, 400 N. Y. S. d 98, 300-301 Even where an individual claiming to be the illegitimate child of a deceased man makes himself known, the difficulties facing an estate are likely to persist. Because of the particular problems of proof, spurious claims may be difficult to expose. The Bennett Commission therefore sought to protect "innocent adults and those rightfully interested in their estates from fraudulent claims of heirship and harassing litigation instituted by those seeking to establish themselves as illegitimate heirs." Commission Report 65. C As the State's interests are substantial, we now consider the means adopted by New York to further these interests. In order to avoid the problems described above, the Commission recommended a requirement designed to ensure the accurate resolution of claims of paternity and to minimize the potential for disruption of estate administration. Accuracy is enhanced by placing paternity disputes in a judicial forum during the lifetime of the father. As the New York Court of Appeals observed in its first opinion in this case, the "availability [of the putative father] should be a substantial factor contributing to the reliability of the fact-finding process." In re 38 N.Y. d, at 8, 340 N.E.d, at 74. In addition, requiring that the order be issued during the father's lifetime permits a man to defend his reputation against "unjust accusations in paternity claims," which was a secondary purpose of 4-1. Commission Report 66. The administration of an estate will be facilitated, and the possibility of delay and uncertainty minimized, where the entitlement of an illegitimate child to notice
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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minimized, where the entitlement of an illegitimate child to notice and participation is a matter of judicial record before the administration commences. Fraudulent assertions of paternity will be much less likely to succeed, or even to arise, where the proof is put *7 before a court of law at a time when the putative father is available to respond, rather than first brought to light when the distribution of the assets of an estate is in the offing.[8] Appellant contends that 4-1., like the statute at issue in excludes "significant categories of illegitimate children" who could be allowed to inherit "without jeopardizing the orderly settlement" of their intestate fathers' estates. 430 U. S., He urges that those in his position "known" illegitimate children who, despite the absence of an order of filiation obtained during their fathers' lifetimes, can present convincing proof of paternitycannot rationally be denied inheritance as they pose none of the risks 4-1. was intended to minimize.[9] We do not question that there will be some illegitimate children who would be able to establish their relationship to *73 their deceased fathers without serious disruption of the administration of estates and that, as applied to such individuals, 4-1. appears to operate unfairly. But few statutory classifications are entirely free from the criticism that they sometimes produce inequitable results. Our inquiry under the Equal Protection Clause does not focus on the abstract "fairness" of a state law, but on whether the statute's relation to the state interests it is intended to promote is so tenuous that it lacks the rationality contemplated by the Fourteenth Amendment. The Illinois statute in was constitutionally unacceptable because it effected a total statutory disinheritance of children born out of wedlock who were not legitimated by the subsequent marriage of their parents. The reach of the statute was far in excess of its justifiable purposes. Section 4-1. does not share this defect. Inheritance is barred only where there has been a failure to secure evidence of paternity during the father's lifetime in the manner prescribed by the State. This is not a requirement that inevitably disqualifies an unnecessarily large number of children born out of wedlock. The New York courts have interpreted 4-1. liberally and in such a way as to enhance its utility to both father and child without sacrificing its strength as a procedural prophylactic. For example, a father of illegitimate children who is willing to acknowledge paternity can waive his defenses in a paternity proceeding, e. g., In re Thomas, 87 Misc. d 1033, 387 N. Y. S. d 16 or even institute
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Justice Powell
| 1,978 | 17 |
majority
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Lalli v. Lalli
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https://www.courtlistener.com/opinion/109958/lalli-v-lalli/
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1033, 387 N. Y. S. d 16 or even institute such a proceeding himself.[10] N. Y. Family Court Act 5 ; In re 85 Misc. d, at 863, 381 N. Y. S. d, at 578. In addition, the courts have excused "technical" failures by illegitimate children to comply with *74 the statute in order to prevent unnecessary injustice. E. g., In re Niles, 53 A.D. d 983, 385 N. Y. S. d 876 appeal denied, 40 N.Y. d 809, 39 N. Y. S. d 107 ; In re Kennedy, 89 Misc. d 551, 39 N. Y. S. d 365, 367 As the history of 4-1. clearly illustrates, the New York Legislature desired to "grant to illegitimates in so far as practicable rights of inheritance on a par with those enjoyed by legitimate children," Commission Report 65 (emphasis added), while protecting the important state interests we have described. Section 4-1. represents a carefully considered legislative judgment as to how this balance best could be achieved. Even if, as MR. JUSTICE BRENNAN believes, 4-1. could have been written somewhat more equitably, it is not the function of a court "to hypothesize independently on the desirability or feasibility of any possible alternative[s]" to the statutory scheme formulated by New York. 47 U. S., at 515. "These matters of practical judgment and empirical calculation are for [the State]. In the end, the precise accuracy of [the State's] calculations is not a matter of specialized judicial competence; and we have no basis to question their detail beyond the evident consistency and substantiality."[11] *75 We conclude that the requirement imposed by 4-1. on illegitimate children who would inherit from their fathers is substantially related to the important state interests the statute *76 is intended to promote. We therefore find no violation of the Equal Protection Clause. The judgment of the New York Court of Appeals is Affirmed. For the reasons stated in his dissent in MR. JUSTICE REHNQUIST concurs in the judgment of affirmance. MR.
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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In 1947 Congress responded to the labor unrest caused by jurisdictional disputes by adding 8 (b) (4) (D) to the National Labor Relations Act, which made it an unfair labor practice for a labor organization to induce the employees of any employer to strike in the hopes of forcing an employer to assign particular work to employees in a particular labor organization.[1] In the belief *431 that resolution of jurisdictional disputes was more important to industrial peace than the imposition of unfair labor practice sanctions. Congress at the same time enacted 10 (k), 29 U.S. C. 160 (k),[2] to induce unions to settle their differences without awaiting unfair labor practice proceedings and enforcement of Board orders by courts of appeals. One year earlier Congress had responded to the many expressed concerns for fairness and regularity in the administrative process summarized in Wong Yang by enacting the Administrative Procedure Act (Act).[3] Section 5 of that Act, now 5 U.S. C. 554, establishes requirements governing certain agency proceedings that come within the Act's definition of "adjudication." We granted certiorari to the Court of Appeals for the Seventh Circuit in this *432 case, to review its conclusion that 5 U.S. C. 554 applied to a 10 (k) proceeding conducted by the Board. Another Court of Appeals had decided a short time earlier that such a Board proceeding was not subject to 554, The case now before us arose out of a jurisdictional dispute between respondent Local 134 of the International Brotherhood of Electrical Workers (IBEW) (hereafter respondent) and the Communications Workers of America (CWA) over whose members would perform certain telephone installation work in Cook County, Ill. Petitioner International Telephone & Telegraph Corp., which had a nationwide collective-bargaining agreement with the CWA, had established a communications equipment and systems division to sell and install private telephone systems.[4] In 1970 petitioner entered into a contract with the village of Elk Grove, Ill., for the installation and sale of a switching system and related telephone and circuitry work. Since employees of the Illinois Bell Telephone who were members of respondent, had already run trunklines from the local operating telephone system to the Administrative Office of the village, petitioner's contract covered only the remaining two stages necessary to complete installation of the system. First the telephone cable had to be routed from the telephone room in the basement to the telephone instruments in particular rooms and offices by a process known as "pulling cable"; petitioner subcontracted this work to the C. A. Riley Electric Construction *4 whose employees are represented by respondent. Second, by a process
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| 1,975 | 19 |
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International Telephone & Telegraph Corp. v. Electrical Workers
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whose employees are represented by respondent. Second, by a process known as "terminating the cable," the cable would be connected to the telephone instruments. Petitioner planned to have its own technicians, who were represented by the CWA, perform this work. C. A. Riley had hoped to perform the terminating work and inquired of petitioner's supervisor whether that was possible. The supervisor informed Riley of petitioner's plan to have its own employees do the work, and Riley told the supervisor that petitioner's representatives had better meet with the business agent of respondent. On two occasions petitioner's representatives met with the union business agent, who told them that respondent installed all telephone equipment in Cook County and that CWA members would install no telephone equipment in Cook County. On the second occasion the respondent's business agent was quite explicit: "We'd better get that work or there will be trouble."[5] When CWA employees appeared at the jobsite on December 3, 1970, to begin their portion of the work. all of respondent's members left their jobs.[6] That afternoon *434 a representative of the village of Elk Grove met with petitioner's regional sales manager, and they agreed to pull petitioner's employees off the job temporarily. Representatives of respondent were informed, and all Local 134 employees thereafter returned to work.[7] On December 3, 1970, petitioner filed a charge alleging that respondent had violated 8 (b) (4) (D) of the National Labor Relations Act, 29 U.S. C. 158 (b) (4) (D). The Board's Regional Director found reasonable cause to believe that the charge had merit and proceeded in accordance with the language of 10 (k): "Whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph (4) (D) of section 158 (b) of this title, the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen, unless, within ten days after notice that such charge has been filed, the parties to such dispute submit to the Board satisfactory evidence that they have adjusted, or agreed upon methods for the voluntary adjustment of, the dispute. Upon compliance by the parties to the dispute with the decision of the Board or upon such voluntary adjustment of the dispute, such charge shall be dismissed." 29 U.S. C. 160 (k). Respondent was notified that a hearing would be conducted by a hearing officer[8] upon the dispute alleged in *435 the charge, and the hearing was held on March 15, and 17, 1971, with Stephen S. Schulson, an attorney in the regional office,
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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with Stephen S. Schulson, an attorney in the regional office, presiding. All parties appeared at the hearing and were given full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. In accordance with NLRB regulations, the record was transmitted to the Board for decision without any recommendation from the hearing officer.[9] The Board received briefs from petitioner, respondent, and the CWA, and concluded that employees represented by the CWA were entitled to perform the work in dispute. 191 N. L. R. B. 828 On August 30, 1971, respondent notified the Regional Director that it would not comply with the Board's 10 (k) determination. The Regional Director, on behalf of the Board's General Counsel, then issued a complaint upon the 8 (b) (4) (D) unfair labor practice charge that had been held in abeyance pending the attempt to resolve the dispute pursuant to the 10 (k) proceeding. At the hearing before a trial examiner, the General Counsel was represented by the same attorney who had presided over the compilation of testimony for *436 the Board in the 10 (k) proceeding. The trial examiner concluded that respondent had violated 8 (b) (4) (D) and he recommended that it be ordered to cease its unlawful conduct; exceptions were filed with the Board[10] which it overruled in ordering respondent to cease and desist from its unlawful conduct. 197 N. L. R. B. 879 (1972). Respondent filed a petition to review and set aside the Board's order in the Court of Appeals for the Seventh Circuit, and the Board filed a cross-application for enforcement of its order.[11] The Court of Appeals found respondent's conduct to be "the very activity 8 (b) (4) (D) was intended to prohibit," but refused to enforce the Board's order because it decided that the Board had not complied with the Act, 5 U.S. C. 554.[] The court was under the impression that the *437 parties had "admitted that 554 applies to 10 (k) hearings," and regarded the participation by Schulson in both proceedings as a violation of 5 U.S. C. *438 554 (d), which prohibits commingling prosecutorial and adjudicatory functions. See n. Even though the Board had argued that the 10 (k) proceeding "was without binding effect on anyone" so that "it was not improper for the same person to perform the functions of hearing officer and subsequently prosecute an unfair labor practice charge based upon the evidence adduced at that hearing," the Court of Appeals relied upon this Court's opinion in to support its conclusion that "the hearing officer's rulings at
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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to support its conclusion that "the hearing officer's rulings at the 10 (k) hearing largely determine what evidence the Board will have to consider at the Unfair Labor Practice Hearing" -867. With that perspective, the Court of Appeals found the attorney's participation to be "plainly inconsistent with both the spirit and the letter of the Act." I To determine whether 554 governs proceedings conducted under 10 (k) of the National Labor Relations Act necessitates some understanding of both statutory provisions which, as noted above, were enacted within a year of each other. The Administrative Procedure Act was aptly described in Wong Yang as "a new, basic and comprehensive regulation of procedures in many agencies," The Court there *439 further observed that the Act "contains many compromises and generalities and, no doubt, some ambiguities." Because it was designed to regulate administrative proceedings throughout a wide spectrum of agency activities, its language is necessarily abstract in many places. The more we may know about the particular agency proceedings to which the Act is sought to be applied, the better we will be able to apply it. The events leading up to the enactment of 8 (b) (4) (D) and 10 (k) have been recounted by this Court in and Plasterers' and need not here be reviewed in detail. Congress made the judgment "that it is more important to industrial peace that jurisdictional disputes be settled permanently than it is that unfair labor practice sanctions for jurisdictional strikes be imposed upon unions." Voluntary and therefore prompt resolution of such jurisdictional disputes is encouraged both by the 10-day grace period following notice of the filing of an unfair labor practice charge, and by the dismissal of such a charge if the union complies with the Board's adverse 10 (k) determination. 29 CFR 101.36. To effectuate the congressional objective of prompt resolution of jurisdictional disputes, almost from the date of the enactment of 10 (k), the Board has applied procedures to proceedings under that section that are quite different from those of a proceeding under 8 (b) (4) (D). The 10 (k) hearing is described in the Board's regulations: "If the parties have not adjusted the dispute or agreed upon methods of voluntary adjustment, a hearing, usually open to the public, is held before a hearing officer. The hearing is nonadversary in character, and the primary interest of the hearing officer is to insure that the record contains as full a *440 statement of the pertinent facts as may be necessary for a determination of the issues by the Board. All parties are afforded full
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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the issues by the Board. All parties are afforded full opportunity to present their respective positions and to produce evidence in support of their contentions. The parties are permitted to argue orally on the record before the hearing officer. At the close of the hearing, the case is transmitted to the Board for decision. The hearing officer prepares an analysis of the issues and the evidence, but makes no recommendations in regard to resolution of the dispute." 29 CFR 101.34. Streamlined procedures were both designed and justified because "the decision in the proceedings under Section 10 (k) is a preliminary administrative determination made for the purpose of attempting to resolve a dispute within the meaning of that section; the unfair labor practice itself is litigated at a subsequent hearing before a Trial Examiner in the event the dispute remains unresolved." National of Marine Cooks & Stewards (Irwin-Lyons Lumber ), 83 N. L. R. B. 341 (1949).[13] *441 The Board concluded from this analysis of the nature of the 10 (k) proceeding that the provisions of the Act governing adjudications were not applicable. While an agency's interpretation of the Act may not be entitled to the same weight as the agency's interpretation of its own substantive mandate, see United its characterization of its own proceeding is entitled to weight, and that characterization may in turn have relevance in determining the applicability of the Act. II The question which we must decide here is whether the 10 (k) determination is an "adjudication" governed by the Act, 5 U.S. C. 554. The Court of Appeals did not consider in any detail whether 554 governs 10 (k) proceedings since it was under the impression that the parties had conceded the general applicability of this *442 section to such Petitioner and the Board contend that the Court of Appeals was mistaken with respect to any such concession, and state that they argued both in their principal briefs and in their petitions for rehearing that 554 was not applicable. Respondent acknowledges that no such concession was made,[14] and we therefore address the issue on its merits. If one were to start with the proposition that all administrative action falls into one of two categories, rulemaking or adjudication, the 10 (k) determination certainly is closer to the latter than to the former. But such light as we have on the intention of Congress when it enacted the Act does not indicate that this is a sound starting point. Knowledgeable authorities in this field observed shortly after passage of the Act that "certain types of agency action are
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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of the Act that "certain types of agency action are neither rule making nor adjudication." Ginnane, "Rule Making," "Adjudication" and Exemptions Under the Administrative Procedure Act, ; Netterville, The Administrative Procedure Act: A Study in Interpretation, ; cf. Attorney General's Manual on the Administrative Procedure Act 40 Section 554 applies "in every case of adjudication required by statute to be determined on the record after opportunity for an agency hearing,"[15] and 5 *443 U. S. C. 551 (7), defines "adjudication" as "agency process for the formulation of an order"; "order" is in turn defined as "the whole or a part of a final disposition of an agency in a matter other than rule making but including licensing," 5 U.S. C. 551 (6). While one might argue that an intermediate proceeding within an agency is necessarily a "part" of a "final order," we think a sounder interpretation of the language Congress used is that the phrase "whole or a part" refers to components of that which is itself the final disposition required by the definition of "order" in 551 (6). Intermediate proceedings within an agency may be subject to the provisions of 554, however, by virtue of the fact that they are "agency process for the formulation of an order" rather than because their product is a "part" of the final disposition. Thus if the Board's 10 (k) determination is itself a "final disposition" of a Board proceeding or is "agency process for the formulation" of an order in a resulting 8 (b) (4) (D) proceeding, then the 10 (k) proceeding is governed by 5 U.S. C. 554. In a tautological sense, of course, the Board's determination in a 10 (k) proceeding is a "final disposition" of that proceeding, but we think that when Congress defined "order" in terms of a "final disposition," it required that "final disposition" to have some determinate consequences for the party to the proceeding. The Board does not order anybody to do anything at the conclusion of a 10 (k) proceeding. As the Attorney General's Manual on the Administrative Procedure Act 40 observed: "[I]nvestigatory proceedings, no matter how formal, which do not lead to the issuance of an order containing the element of final disposition as required by the definition, do not constitute adjudication." This *444 Court noted in Plasterers' 404 U. S., at 6, that "the 10 (k) decision standing alone, binds no one." We conclude, therefore, that the 10 (k) determination is not itself a "final disposition" within the meaning of "order" and "adjudication" in 5 U.S. C. 551 (6), (7). Respondent's principal argument
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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in 5 U.S. C. 551 (6), (7). Respondent's principal argument for affirmance of this case rests on the contention that although the 10 (k) determination may not itself be a "final disposition," and therefore an "order," it is "agency process for the formulation" of the ultimate 8 (b) (4) (D) order that the Board may issue. There are undoubtedly important practical consequences in the 8 (b) (4) (D) proceeding that result from the Board's determination in the 10 (k) proceeding. These were described in the following language in Plasterers' at 6-7: "[T]he impact of the 10 (k) decision is felt in the 8 (b) (4) (D) hearing because for all practical purposes the Board's award determines who will prevail in the unfair labor practice proceeding. If the picketing union persists in its conduct despite a 10 (k) decision against it, a 8 (b) (4) (D) complaint issues and the union will likely be found guilty of an unfair labor practice and be ordered to cease and desist. On the other hand, if that union wins the 10 (k) decision and the employer does not comply, the employer's 8 (b) (4) (D) case evaporates and the charges he filed against the picketing union will be dismissed. Neither the employer nor the employees to whom he has assigned the work are legally bound to observe the 10 (k) decision, but both will lose their 8 (b) (4) (D) protection against the picketing which may, as it did here, shut down the job. The employer will be under intense pressure, practically, to conform to the Board's decision. This is the design of the Act; Congress provided no other *445 way to implement the Board's 10 (k) decision." (Footnote omitted.) But we do not think that such practical consequences alone make the 10 (k) proceeding related to the 8 (b) (4) (D) proceeding in a manner that would make the former "agency process" for the formulation of the order in the latter. The prototype of an intermediate proceeding that is "agency process for the formulation of an order," is a hearing before an administrative law judge who makes findings of fact and conclusions of law, initially decides the case, and whose recommended decision "becomes the decision of the agency unless there is an appeal to, or review on motion of, the agency." 5 U.S. C. 557 (b). All of the parties to this case, for instance, agree that the 8 (b) (4) (D) unfair labor practice hearing before the trial examiner (now administrative law judge) was subject to 554 since it was "agency process
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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https://www.courtlistener.com/opinion/109129/international-telephone-telegraph-corp-v-electrical-workers/
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judge) was subject to 554 since it was "agency process for the formulation of an order." The relationship between the 10 (k) proceeding and the 8 (b) (4) (D) proceeding, however, is quite distinct from the relationship between the hearing before an administrative law judge and ultimate review of his findings and recommendations by the agency. The 10 (k) proceeding has a life of its own from the time that testimony is taken in the field by a hearing officer until the time the Board, with the record of the testimony before it but with no proposed findings or conclusions or recommendations from the hearing officer, reaches its own determination. The Board's attention in the 10 (k) proceeding is not directed to ascertaining whether there is substantial evidence to show that a union has engaged in forbidden conduct with a forbidden objective. Those inquiries are left for the 8 (b) (4) (D) proceeding.[16]*446 Indeed, the Board's 10 (k) determination is not unlike an advisory opinion, since the matter may well end there. If the Board determines that employees of the charged union are entitled to the work, the 8 (b) (4) (D) charge against it will be dismissed. 29 CFR 102.91. If the Board determination is adverse to the charged union and the union accedes, the 8 (b) (4) (D) charge will be dismissed and the General Counsel will not issue a complaint. Only if the union indicates that it will not comply with the Board's determination are further proceedings necessitated, and those proceedings will be under 8 (b) (4) (D), not 10 (k). As this Court observed in Plasterers' 404 U. S., at 2 n. 10: "The 10 (k) determination is not binding as such even on the striking union. If that union continues to picket despite an adverse 10 (k) decision, the Board must prove the union guilty of a 8 (b) (4) (D) violation before a cease-and-desist order can issue. The findings and conclusions in a 10 (k) proceeding are not res judicata on the unfair labor practice issue in the later 8 (b) (4) (D) determination. International Typographical 5 N. L. R. B. 759, 761 (1959). Both parties may put *447 in new evidence at the 8 (b) (4) (D) stage, although often, as in the present cases, the parties agree to stipulate the record of the 10 (k) hearing as a basis for the Board's determination of the unfair labor practice. Finally, to exercise its powers under 10 (k), the Board need only find that there is reasonable cause to believe that a 8 (b)
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Justice Rehnquist
| 1,975 | 19 |
majority
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International Telephone & Telegraph Corp. v. Electrical Workers
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there is reasonable cause to believe that a 8 (b) (4) (D) violation has occurred, while in the 8 (b) (4) (D) proceeding itself the Board must find by a preponderance of the evidence that the picketing union has violated 8 (b) (4) (D). International Typographical at 761 n. 5 (1959)." In each case it is the agency itself, the National Labor Relations Board, which makes the ultimate determination. The same issues will generally be relevant, the record of the earlier proceeding will be admitted in the later one. 29 CFR 102.92, and the Board's ruling on the merits of those issues which are common to the two proceedings is likely to be the same in the one as in the other. But the proceedings are nonetheless separate; the same tribunal finally determines each of them. Were we to adopt respondent's position that merely because a 10 (k) determination has a significant practical effect on the 8 (b) (4) (D) proceeding, it was therefore "agency process for the formulation" of the 8 (b) (4) (D) order, we might well sweep under the definition of that term numerous ancillary agency proceedings that are distinct from the adjudications on which they have an effect, and which the language of the Act does not appear to have been designed to reach. We therefore decline to adopt that position. We accordingly conclude that a 10 (k) determination is neither itself a final disposition under the definitional section of the Act, nor is it "agency process for the formulation of an order" within the meaning of that section. Proceedings under *448 10 (k) are therefore not governed by the Act, 5 U.S. C. 554. Although the Board's 10 (k) proceedings need not be conducted pursuant to the Act, 5 U.S. C. 554, the agency remains "free under the Act to accord litigants appearing before it more procedural rights than the Act requires," Florida East Coast R. 410 U. S., at[17] The Board's procedures are, of course, constrained by the Due Process Clause of the Fifth Amendment, but respondent has raised no contention that attorney Schulson's participation in both proceedings approached a constitutional violation.[18] The judgment is reversed and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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Today the Court holds that a state prisoner under sentence of death may invoke a federal district court's jurisdiction to obtain appointed counsel under 21 U.S. C. 848(q) (4)(B) and to obtain a stay of execution under 28 U.S. C. 2251 simply by filing a motion for appointment of counsel. In my view, the Court's conclusion is at odds with the terms of both statutory provisions. Each statute allows a federal district court to take action (appointing counsel under 848(q)(4)(B) or granting a stay under 2251) only after a habeas proceeding has been commenced. As Justice O'Connor points out, such a proceeding is initiated under the habeas corpus statute, 28 U.S. C. 2241 et seq., only with the filing of an application for a writ of habeas corpus. I therefore agree with Justice O'Connor that a district court lacks jurisdiction to grant a stay under 2251 until such an application has been filed. See ante, at 860-863 (concurring in judgment in part and dissenting in part). But because 848(q)(4)(B), like 2251, conditions a court's power to act upon the existence of a habeas proceeding, I would also hold that a district court cannot appoint counsel until an application for habeas relief has been filed. I therefore respectfully dissent. I In its attempt to discern Congress' intent regarding the point at which 848(q)(4)(B) makes counsel available, the Court spends a good deal of time considering how, as a "practical matter," the provision of counsel can be made meaningful. *865 See ante, at 855. See also ante, at 860 (O'Connor, J., concurring in judgment in part and dissenting in part). But here, as in any case of statutory interpretation, our primary guide to Congress' intent should be the text of the statute. The relevant terms of 848(q)(4)(B) state that an indigent prisoner shall be entitled to an attorney and "investigative, expert, or other reasonably necessary services" only "[i]n any post conviction proceeding under section 2254 seeking to vacate or set aside a death sentence." The clear import of the provision is that an indigent prisoner is not entitled to an attorney or to other services under the section until a "post conviction proceeding under section 2254" existsthat is, not until after such a proceeding has been commenced in district court. The Court appears to acknowledge that a 2254 proceeding must be initiated before counsel can be appointed under 848(q)(4)(B), but asserts that "[n]either the federal habeas corpus statute nor the rules governing habeas corpus proceedings define a `post conviction proceeding' under 2254 or expressly state how such a proceeding shall be commenced."
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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or expressly state how such a proceeding shall be commenced." Ante, at 854. It is difficult to imagine, however, how the federal habeas statute could be more "express" on the matter. As Justice O'Connor explains in detail, the statute makes clear that a "proceeding" is commenced only with the filing of an application for a writ of habeas corpus. See ante, at 862-863 (concurring in judgment in part and dissenting in part).[1] Section 2254(d), for example, provides that the well-known presumption of correctness of state court findings of fact attaches "[i]n any proceeding instituted *866 in a Federal court by an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court." 28 U.S. C. 2254(d) See also 2241(d) (power to grant the writ is not triggered except by "application for a writ of habeas corpus"). Cf. 1914 (equating the filing of an "application for a writ of habeas corpus" with the "instituting" of a "proceeding" for purposes of setting filing fees).[2] By providing that death-sentenced prisoners may obtain counsel "[i]n any post conviction proceeding under section 2254," Congress referred to a well-known form of action with established contours. We should therefore assume that Congress intended to incorporate into 848(q)(4)(B) the settled understanding of what constitutes a "proceeding under section 2254" in the habeas statute. Cf. Indeed, the similarity between the language in 848(q)(4)(B) and 2254(d) suggests that Congress used the phrase "[i]n any post conviction proceeding under section 2254" in the former provision as a shorthand form of the language "[i]n any proceeding instituted in a Federal court by an application for a writ of habeas corpus" contained in the latter. In short, the terms of 848(q)(4)(B) indicate that Congress intended that legal assistance be made available under the provision only after a habeas proceeding has been commenced by the filing of an application for habeas relief. *867 The Court rejects this interpretation. Rather than turning to the habeas statute for guidance in determining when a "proceeding under section 2254" commences, the Court bases its examination of the question primarily on what it perceives to be the time at which legal assistance would be most useful to a death-sentenced prisoner. See ante, at 855-856. From this analysis, the Court concludes that a "`post conviction proceeding' within the meaning of 848(q)(4)(B) is commenced by the filing of a death row defendant's [preapplication] motion requesting the appointment of counsel." Ante, at 856. The only textual provision the Court cites in support of that conclusion is 21 U.S. C. 848(q)(9), which states: "Upon
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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that conclusion is 21 U.S. C. 848(q)(9), which states: "Upon a finding in ex parte proceedings that investigative, expert or other services are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or sentence, the court shall authorize the defendant's attorneys to obtain such services on behalf of the defendant and shall order the payment of fees and expenses therefore" At bottom, the Court's textual argument amounts to the following: because investigative, expert, and other services described in 848(q)(9) "may be critical in the preapplication phase of a habeas corpus proceeding," ante, at 855, and because 848(q)(9) provides that those services are to be obtained by the defendant's attorneys, an attorney must be appointed "before the need for such technical assistance arises"that is, prior to the filing of an application for habeas relief. Thus, the sole textual source upon which the Court relies is the statement that "the defendant's attorneys" are "authorize[d]" to obtain services on the defendant's behalf. In my view, such an oblique reference to "the defendant's attorneys" is a remarkably thin reed upon which to rest Congress' supposed intention to "establis[h] a right to preapplication legal assistance for capital defendants in federal *868 habeas corpus proceedings." Indeed, had Congress intended to establish such a "right," it surely would have done so in 848(q)(4)(B), which provides for appointment of counsel, rather than in 848(q)(9), which sets forth the mechanics of how "investigative, expert or other services" are to be obtained. Moreover, 848(q)(9) simply does not address the issue of when "investigative, expert or other services" are to be made available to a death-sentenced prisoner. The Court asserts that such services "may be critical" in the preapplication period. Yet the issue of when these services are to be available, like the question of when a prisoner is entitled to counsel, is expressly addressed not in 848(q)(9), but in 848(q)(4). See 848(q)(4)(A) (indigent defendant "charged with a [federal] crime which may be punishable by death" may obtain "representation [and] investigative, expert, or other reasonably necessary services" both "before judgment" and "after the entry of a judgment imposing a sentence of death but before the execution of that judgment"); see also 848(q)(4)(B) (indigent prisoner "seeking to vacate or set aside [his] death sentence" may obtain "representation [and] investigative, expert, or other reasonably necessary services" "[i]n any post conviction proceeding under section 2254 or 2255"). And for purposes of this case, 848(q)(4)(B) resolves the issue: Such services are to be made available only after a "post conviction proceeding under 2254" has been commenced. As for
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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"post conviction proceeding under 2254" has been commenced. As for the policy concerns rehearsed by the Court, I agree that legal assistance prior to the filing of a federal habeas petition can be very valuable to a prisoner. See ante, at 855-856. That such assistance is valuable, however, does not compel the conclusion that Congress intended the Federal Government to pay for it under 848(q). As the Ninth Circuit has aptly observed: "Section 848(q) is a funding statute. It provides for the appointment of attorneys and the furnishing of investigative services for [federal] defendants or habeas corpus petitioners seeking to vacate or set aside a *869 death sentence." It might well be a wise and generous policy for the Government to provide prisoners appointed counsel prior to the filing of a habeas petition, but that is not a policy declared by Congress in the terms of 848(q)(4)(B). Implicit in the Court's analysis is the assumption that it would be unthinkable for Congress to grant an entitlement to appointed counsel, but to have that entitlement attach only upon the filing of a habeas petition. The Court suggests that its interpretation is required because it is "the only one that gives meaning to the statute as a practical matter." Ante, at 855 Any other interpretation, according to the Court, would "requir[e] an indigent capital petitioner to proceed without counsel in order to obtain counsel." Ante, at 856. Yet under the interpretation of 848(q)(4)(B) I have outlined above, Congress has not required death-sentenced prisoners to proceed without counsel during the preapplication period; rather, it has merely concluded that such prisoners would proceed without counsel funded under 848(q)(4)(B). Moreover, leaving prisoners without counsel appointed under 848(q)(4)(B) during the preapplication period would be fully reasonable. Congress was no doubt aware that alternative sources of funding for preapplication legal assistance exist for death-sentenced prisoners. Petitioner, for example, is represented by the Texas Resource Center, which has been "designated a Community Defender Organization in accordance with 18 U.S. C. 3006A for the purpose of providing representation, assistance, information, and other related services to eligible persons and appointed attorneys in connection with" federal habeas corpus cases arising from capital convictions. Brief for Petitioner 4, n. 3 (internal quotation marks and citation omitted). The center, which is "funded primarily by a grant from the Administrative Office of the United States Courts," at 5, n. 4, became involved in petitioner's case soon after his conviction was affirmed *870 by the Texas Court of Criminal Appeals. Thus, although petitioner did not have preapplication assistance of counsel made available to him under
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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have preapplication assistance of counsel made available to him under 848(q)(4)(B), he still could benefit from federally funded legal assistance. In addition, it seems likely that Congress expected that the States would also shoulder some of the burden of providing preapplication legal assistance to indigent death-sentenced prisoners. Cf. Defendants under a state-imposed sentence of death must exhaust state remedies by presenting their claims in state court prior to coming to federal court. See 28 U.S. C. 2254(b). See also Given this exhaustion requirement, it would have been logical for Congress, in drafting 848(q)(4)(B), to assume that by the time a death-sentenced prisoner reaches federal court, "possible claims and their factual bases" will already have been "researched and identified." Ante, at 855. Indeed, if the claims have not been identified and presented to state courts, a prisoner cannot proceed on federal habeas. See ("This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims"). Thus, it would not have been unreasonable for Congress to require prisoners to meet the ordinary requirement for invoking a federal court's habeas jurisdictionnamely, the filing of an adequate application for habeas corpus reliefprior to obtaining an attorney under 848(q)(4)(B). II Had the Court ended its analysis with the ruling that an indigent death-sentenced prisoner is entitled to counsel under 848(q)(4)(B) prior to filing an application for habeas relief, today's decision would have an impact on federal coffers, but would not expand the power of the federal courts *871 to interfere with States' legitimate interests in enforcing the judgments of their criminal justice systems. The Court, however, does not stop with its decision on availability of counsel; rather, it goes on to hold that upon a motion for appointment of counsel, a death-sentenced prisoner is also able to obtain a stay of his execution in order to permit counsel "to research and present [his] habeas claims." Ante, at 858. The Court reaches its decision through the sheerest form of bootstrapping. After reasoning that "a proceeding under section 2254" for purposes of 848(q)(4)(B) commences with the filing of a motion for appointment of counsel, the Court imports that meaning of "proceeding" into 28 U.S. C. 2251, which provides that a federal judge "before whom a habeas corpus proceeding is pending " may "stay any proceeding against the person detained in any State court" The Court thus concludes that "once a capital defendant invokes his right to appointed counsel, a federal court also has jurisdiction under 2251 to enter
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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a federal court also has jurisdiction under 2251 to enter a stay of execution." Ante, at 858. I agree with the Court that the "language of [ 848(q)(4)(B) and 2251] indicates that the sections refer to the same proceeding." But the method the Court employs to impart meaning to the term "proceeding" in the two provisions is simply backwards. Section 848(q)(4)(B) was enacted as part of the Anti-Drug Abuse Act of 1988, Stat. 4393, long after the enactment of the habeas statute. As noted above, in using the terms "post conviction proceeding under section 2254" in 848(q)(4)(B), Congress was referring to a form of action whose contours were well established under the habeas statute. As a matter of basic statutory construction, then, we should look to the habeas statute to inform our construction of 848(q)(4)(B), not vice versa. The reason the Court pursues a different approach is clear: There is no basis in the habeas statute for reading "habeas corpus proceeding" in 2251 to mean an action commenced *872 by the filing of a motion for appointment of counsel. Thus, to avoid the conclusion that a "proceeding" in 2251 is commenced by the filing of an application for habeas relief, the Court is forced to hold that by enacting 848(q), Congress amended the habeas statute sub silentio. Cf. ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part).[3] In effect, the Court determines that Congress, in providing death-sentenced prisoners with federally funded counsel in 848(q)(4)(B), intended to expand the jurisdiction of the federal courts to stay state proceedings under the habeas statute. Yet 848(q)(4)(B) in no way suggests a connection between the availability of counsel and the stay power; indeed, the provision does not even mention the term "stay." A proper interpretation of the provisions at issue here, however, avoids the dubious assumption that Congress intended to effect such an amendment of the habeas statute by implication. Correctly interpreted, both 848(q)(4)(B) and 2251 refer to a "proceeding" that begins with the filing of an application for habeas relief, after which a federal court has jurisdiction to enter a stay and to appoint counsel. In reaching its expansive interpretation of 2251, the Court ignores the fact that the habeas statute provides federal courts with exceptional powers. Federal habeas review "disturbs the State's significant interest in repose for concluded litigation, denies society the right to punish some admitted offenders, and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority." *873 (internal quotation marks and citation omitted). See also ante, at 863 (O'Connor,
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Justice Thomas
| 1,994 | 1 |
dissenting
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McFarland v. Scott
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https://www.courtlistener.com/opinion/117873/mcfarland-v-scott/
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marks and citation omitted). See also ante, at 863 (O'Connor, J., concurring in judgment in part and dissenting in part). We should not lightly assume that Congress intended to expand federal courts' habeas power; this is particularly true regarding their power directly to interfere with state proceedings through granting stays. Moreover, as Justice O'Connor observes, in expanding the federal courts' power to grant stays, the Court's decision "conflicts with the sound principle underlying our precedents that federal habeas review exists only to review errors of constitutional dimension." Ante, at 861 (concurring in judgment in part and dissenting in part). Under the Court's interpretation of 2251, a prisoner may obtain a stay of execution without presenting a single claim to a federal court. Indeed, under the Court's reading of the statute, a federal district court determining whether to enter a stay will no longer have to evaluate whether a prisoner has presented a potentially meritorious constitutional claim. Rather, the court's task will be to determine whether a "capital defendant" who comes to federal court shortly before his scheduled execution has been "dilatory" in pursuing his "right to counsel." Ante, at 858. If he has not been "dilatory," the district court presumably must enter a stay to preserve his "right to counsel" and his "right for that counsel meaningfully to research and present [his] habeas claims." In my view, simply by providing for the appointment of counsel in habeas cases, Congress did not intend to achieve such an extraordinary result. * * * Because petitioner had not filed an application for habeas relief prior to filing his motion for stay of execution and for appointment of counsel, the courts below correctly determined that they lacked jurisdiction to consider his motion. I respectfully dissent.
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