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Justice Rehnquist
| 1,981 | 19 |
majority
|
United Parcel Service, Inc. v. Mitchell
|
https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
|
issued as a result of a full-scale arbitration proceeding. The effect of any grant of the relief sought would be to vacate the determination of the arbitrators." App. 129. Respondent appealed and the Court of Appeals for the Second Circuit reversed. That court held that the District Court should have applied New York's 6-year limitations period for actions alleging breach of N. Y. Civ. Prac. Law 213 (2) (McKinney 1972). It reasoned that respondent's action was analogous to a breach-of- action because the issues were whether the collective-bargaining agreement had been breached and whether the Union contributed to that breach by failure to discharge its duty of fair representation. The court further reasoned that a 6-year limitations period "provides for relatively rapid disposition of labor disputes without undermining an employee's ability to vindicate his rights through 301 actions." -398. *60 We granted UPS' petition for certiorari.[1] II Congress has not enacted a statute of limitations governing actions brought pursuant to 301 of the LMRA. As this Court pointed out in Auto "the timeliness of a 301 suit is to be determined, as a matter of federal law, by reference to the appropriate state statute of limitations."[2] Our present task is to determine which limitations period is "the most appropriate one provided by state law." Johnson v. Railway Express Agency, This depends upon an examination of the nature of the federal *61 claim and the federal policies involved. See Hoosier Although respondent did not style his suit as one to vacate the award of the Joint Panel, if he is successful the suit will have that direct effect. Respondent raises in his 301 action the same claim that was raised before the Joint Panel that he was discharged in violation of the collective-bargaining agreement. He seeks the same relief he sought before the Joint Panelreinstatement with full backpay. In sum, "it is clear that [he] was dissatisfied with and simply seeks to upset the arbitrator's decision that the company did not wrongfully discharge him." cert. pending, No. 80-890.[3] The Court of Appeals purported to rely on this Court's decision in but that decision strongly supports borrowing the limitations period for actions to vacate arbitration awards. As Hines makes clear, an employee may go behind a final and binding award under a collective-bargaining agreement and seek relief against his employer and union only when he demonstrates that his union's breach of its duty "seriously undermine[d] the integrity of the arbitral process." Hines rejected the suggestion that "erroneous arbitration decisions must stand" in the face of the union's breach of its duty, suggesting
|
Justice Rehnquist
| 1,981 | 19 |
majority
|
United Parcel Service, Inc. v. Mitchell
|
https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
|
the face of the union's breach of its duty, suggesting that the suits it sanctioned are aptly characterized as ones to vacate such arbitration decisions. Indeed the present *62 writer, though in dissent on the merits in Hines, characterized the action as one to "vacate an arbitration award." See also It is true that respondent's underlying claim against his employer is based on the collective-bargaining agreement, a It is not enough, however, for an employee such as respondent to prove that he was discharged in violation of the collective-bargaining agreement. "To prevail against either the company or the Union, petitioners must not only show that their discharge was contrary to the but must also carry the burden of demonstrating breach of duty by the Union. The grievance processes cannot be expected to be error-free." Hines, -571. Thus respondent's characterization of his action against the employer as one for "breach of " ignores the significance of the fact that it was brought in the District Court pursuant to 301 (a) of the LMRA and that the indispensable predicate for such an action is not a showing under traditional law that the discharge was a breach of the collective-bargaining agreement, but instead a demonstration that the Union breached its duty of fair representation. Since the conclusion of the Joint Panel was, under the collective-bargaining agreement, "binding on all parties," respondent was required in some way to show that the Union's duty to represent him fairly at the arbitration had been breached before he was entitled to reach the merits of his claim. This, in our view, makes the suit more analogous to an action to vacate an arbitration award than to a straight action.[4] *63 We think that the unfair representation claim made by an employee against his union, even though his employer may ultimately be called upon to respond in damages for it if he is successful, is more a creature of "labor law" as it has developed since the enactment of 301 than it is of general law. We said in Hoosier that one of the leading federal policies in this area is the "relatively rapid disposition of labor disputes." Cf. 29 U.S. C. 160 (b) (6-month period under NLRA). This policy was one of the reasons the Court in Hoosier chose the generally shorter period for actions based on an oral rather than that for actions upon a written and similar analysis supports our adoption of the shorter period for actions to vacate an arbitration award in this case.[5] It is important to bear in mind the observations made
|
Justice Rehnquist
| 1,981 | 19 |
majority
|
United Parcel Service, Inc. v. Mitchell
|
https://www.courtlistener.com/opinion/110459/united-parcel-service-inc-v-mitchell/
|
It is important to bear in mind the observations made in the Steelworkers Trilogy that "the grievance machinery under a collective bargaining agreement is at the very heart of the system of industrial self-government. The processing machinery is actually a vehicle by which meaning and content are given to the collective bargaining agreement." Although the present case involves a fairly mundane *64 and discrete wrongful-discharge complaint, the grievance and arbitration procedure often processes disputes involving interpretation of critical terms in the collective-bargaining agreement affecting the entire relationship between company and union. See, e. g., This system, with its heavy emphasis on grievance, arbitration, and the "law of the shop," could easily become unworkable if a decision which has given "meaning and content" to the terms of an agreement, and even affected subsequent modifications of the agreement, could suddenly be called into question as much as six years later. Obviously, if New York had adopted a specific 6-year statute of limitations for employee challenges to awards of a joint panel or similar body, we would be bound to apply that statute under the reasoning of Hoosier But in cases such as this, where generally state limitations periods were enacted prior to the enactment of 301 by Congress in 1947, we are necessarily committed by prior decisional law to choosing among statutes of limitations none of which fit hand in glove with an action under 301 (a) of the LMRA. Given the choices present here, and the undesirability of the results of the grievance and arbitral process being suspended in limbo for long periods, we think the District Court was correct when it chose the 90-day period imposed by New York for the bringing of an action to vacate an arbitration award. Accordingly, the judgment of the Court of Appeals is Reversed.
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
The McCarran-Ferguson Act, as amended, 15 U.S. C. 11-15, renders the federal antitrust laws inapplicable to the "business of insurance" to the extent such business is regulated by state law and is not subject to the "boycott" exception stated in 1 (b).[1] The single question presented by this case is whether the "business of insurance" *24 includes direct contractual arrangements ("provider agreements") between petitioner Blue Shield and third parties to provide benefits owed to the insurer's policyholders. The Court today holds that it does not. I disagree: Since (a) there is no challenge to the status of Blue Shield's drug-benefits policy as the "business of insurance," I conclude (b) that some provider agreements negotiated to carry out the policy obligations of the insurer to the insured should be considered part of such business, and (c) that the specific Pharmacy Agreements at issue in this case should be included in such part. Before considering this analysis, however, it is necessary to set forth the background of the enactment of the McCarran-Ferguson Act. I recognized that the legislative history of the McCarran-Ferguson Act sheds little light on the meaning of the words "business of insurance." See S. Rep. No. 20, 79th Cong., 1st Sess. (1945); H. R. Rep. No. 14, 79th Cong., 1st Sess. (1945). But while the legislative history is largely silent on the matter,[2] it does indicate that Congress deliberately chose *25 to phrase the exemption broadly. Congress had draft bills before it which would have limited the "business of insurance" to a narrow range of specified insurance company practices, but chose instead the more general language which ultimately became law.[] *26 The historical background of the statute's enactment, developed by the Court in provides the guide to congressional purpose: "The McCarran-Ferguson Act was passed in reaction to this Court's decision in United Prior to that decision, it had been assumed, in the language of the leading case, that `[i]ssuing a policy of insurance is not a transaction of commerce.' Consequently, regulation of insurance transactions was thought to rest exclusively with the States. In South-Eastern Underwriters, this Court held that insurance transactions were subject to federal regulation under the Commerce Clause, and that the antitrust laws, in particular, were applicable to them. Congress reacted quickly [, being] concerned about the inroads the Court's decision might make on the tradition of state regulation of insurance. The McCarran-Ferguson Act was the product of this concern. Its purpose was stated quite clearly in its first section; Congress declared that `the continued regulation and taxation by the several States of the business of insurance
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
taxation by the several States of the business of insurance is in the public interest.' (1945), 15 U.S. C. 11. As this Court said shortly afterward, `[o]bviously Congress' purpose was broadly to give support to the existing and future state systems for regulating and taxing the business of insurance.' Prudential Insurance "The Act was an attempt to turn back the clock, to assure that the activities of insurance companies in dealing with their policyholders would remain subject to state regulation." -. See also St. Paul Fire & Marine Ins. ; 90 Cong. Rec. 6524 (Cong. Walter) *27 ("[T]he legislation is designed to restore to the status quo the position the insurance business of this Nation occupied before the Supreme Court recently legislated [in South-Eastern Underwriters]"). Since continuation of state regulation as it existed before South-Eastern was Congress' goal,[4] evidence of what States *28 might reasonably have considered to be and regulated as insurance at the time the McCarran-Ferguson Act was passed in 1945 is clearly relevant to our decision. This does not mean that a transaction not viewed as insurance in 1945 cannot be so viewed today. "We realize that insurance is an evolving institution. Common knowledge tells us that the forms have greatly changed even in a generation. And we would not undertake to freeze the concep[t] of `insurance' into the mold [it] fitted when these Federal Acts were passed." It is thus logical to suppose that if elements common to the ordinary understanding of "insurance" are present, new forms of the business should constitute the "business of insurance" for purposes of the McCarran-Ferguson Act. The determination of the scope of the Act, therefore, involves both an analysis of the proximity between the challenged transactions and those well recognized as elements of "insurance," and an examination of the historical setting of the Act. On both counts, Blue Shield's Pharmacy Agreements constitute the "business of insurance." *29 II I start with common ground. Neither the Court, ante, at 20 n. 7, nor the parties challenge the fact that the drug-benefits policy offered by Blue Shield to its policyholdersas distinguished from the contract between Blue Shield and the pharmacies is the "business of insurance." Whatever the merits of scholastic argument over the technical definition of "insurance," the policy both transfers and distributes risk. The policyholder pays a sum certainthe premiumagainst the risk of the uncertain contingency of illness, and if the company has calculated correctly, the premiums of those who do not fall ill pay the costs of benefits above the premiums of those who do. See R. Mehr & E.
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
premiums of those who do. See R. Mehr & E. Cammack, Principles of Insurance 1-2 (6th ed. 1976). An important difference between Blue Shield's policy and other forms of health insurance is that Blue Shield "pays" the policyholder in goods and services (drugs and their dispensation), rather than in cash. Since we will not "freeze the concep[t] of `insurance' into the mold it fitted" when McCarran-Ferguson was passed, this difference cannot be a reason for holding that the drug-benefits policy falls outside the "business of insurance" even if our inquiry into the understandings of what constituted "insurance" in the 190's and 1940's were to suggest that a contrary view prevailed at that time.[5] Fortunately, logic and history yield the same result. It is true that the first health insurance policies provided only cash indemnities. However, although policies that specifically provided drug benefits were not available during the 190's and 1940's analogous policies providing hospital and medical servicesrather than cashwere available. The hospital service-benefit concept originated in Texas in *240 1929; medical services were first offered in 199. R. Eilers, Regulation of Blue Cross and Blue Shield Plans 15 (196) (hereinafter Eilers). In 1940, 4,500,000 people in 60 communities were covered by Blue Cross or related hospital-benefits plans. C. Rorem, Non-Profit Hospital Service Plans 1-2 (1940) (hereinafter Rorem I). During the 1940's, health insurance became a subject of collective bargaining, with unions demanding the service-benefit approach of Blue Cross and Blue Shield. S. Law, Blue Cross 11 (1974) (hereinafter Law). By 1945, the year the McCarran-Ferguson Act was enacted, over 20 million people were enrolled in service-benefit programs, with service-benefit plans comprising 61% of the total hospitalization insurance market. See Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, p. 17 ; Eilers 19; Law 11. Moreover, regulation of the service-benefit plans was a part of the system of state regulation of insurance that the McCarran-Ferguson Act was designed to preserve. Led by New York in 194, 24 States passed enabling Acts by 199 which, while relieving the plans of certain reserve requirements and tax obligations, specifically subjected service-benefit plans to the supervision and control of state departments of insurance.[6] See Rorem, Enabling Legislation for Non-Profit Hospital Service Plans, 6 Law & Contemp. Prob. 528, 51, 54 (199) (hereinafter Rorem II); N. Sinai, O. Anderson, & M. Dollar, Health Insurance in the United States *241 48-49 (hereinafter Sinai); Comment, Group Health Plans: Some Legal and Economic Aspects, 5 Yale L. J. 162, 174 (194). Another 16 States apparently limited the issuance
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
162, 174 (194). Another 16 States apparently limited the issuance of hospitalization insurance to stock and mutual insurance companies. Nine acted on the premise that the plans were not "insurance" and authorized operation under general corporation laws, exempt from reserve requirements. Rorem II, p. 52. By the time the McCarran-Ferguson Act was passed, 5 States had enabling legislation.[7] During this period, the National Association of Insurance Commissioners (NAIC), the organization of state insurance directors which played a major role in drafting the McCarran-Ferguson Act,[8] was also drafting model state enabling legislation to govern service-benefit health plans. Proceedings of the NAIC, 75th Sess., 226 ; 76th Sess., 250 (1945).[9] *242 Thus, when the McCarran-Ferguson Act became law, service-benefit plans similar to the Blue Shield plan at issue here were a widespread and well-recognized form of insurance, subject to regulation in most of the States. Congress itself treated these important programs as insurance. In 199, Congress adopted an enabling Act incorporating a hospitalization-benefits plan in the District of Columbia, with supervisory *24 authority placed in the hands of the Superintendent of Insurance. See H. R. 6266, 76th Cong., 1st Sess. (199); H. R. Rep. No. 47, 76th Cong., 1st Sess. (199); 84 Cong. Rec. 124 (199). And in hearings held the year after passage of the McCarran-Ferguson Act, the same Congress that approved that Act debated Blue Shield-type programs as alternatives to national health insurance, with participating Congressmen frequently referring to them as "insurance." Hearings before the Senate Committee on Education and Labor, A National Health Program, 79th Cong., 2d Sess., pt. 1, pp. 55, 8, 8, 172, pt. 2, p. 558[] The status of service-benefit policies as "insurance," both logically and historically, is therefore sufficiently established to make that the first premise in an analysis of the status of the Pharmacy Agreements at issue in this case. III The next question is whether at least some contracts with third parties to procure delivery of benefits to Blue Shield's insureds would also constitute the "business of insurance." Such contracts, like those between Blue Shield and the druggists in this case, are known as "provider agreements." The Court, adopting the view of the Solicitor General, today holds that no provider agreements can be considered part of the "business of insurance."[11] It contends that the "underwriting or spreading of risk [is] an indispensable characteristic of *244 insurance." ante, at 2,[] and that "[a]nother commonly understood aspect of the business of insurance relates to the contract between the insurer and the insured." Ante, at 215. Because provider agreements neither themselves spread risk, nor involve transactions
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
Because provider agreements neither themselves spread risk, nor involve transactions between insurers and insureds, the Court excludes them from the "business of insurance." The argument fails in light of this Court's prior decisions and the legislative history of the Act. The Court has held, for example, that the advertising of insurance, a unilateral act which does not involve underwriting, is within the scope of the McCarran-Ferguson Act. And the legislative history makes it abundantly clear that numerous horizontal agreements between insurance companies which do not technically involve the underwriting of risk were regarded by Congress as within the scope of the Act's exemption for the "business of insurance." For example, rate agreements among insurers, a conspicuous congressional illustration, see, e. g., 91 Cong. Rec. 1481, 1484 (1945) (remarks of Sens. Pepper and Ferguson), and the subject of the South-Eastern Underwriters case, see do not themselves spread risk. Indeed, the Court apparently concedes that arrangements among insurance companies respecting premiums and benefits would constitute the "business of insurance," despite their failure to fit within its formula. Ante, at 221 and 224-225, n. 2. But the Court's attempt to limit its concession to horizontal transactions still conflicts with the legislative history. Compelling evidence is the fact that Congress actually rejected a proposed bill to limit the exemption to agreements between *245 insurance companies. S. 79th Cong., 1st Sess. (1945). See n. Moreover, vertical relationships between insurance companies and independent sales agencies were a subject of the indictment in United 55 were the object of discussion in the House, 90 Cong. Rec. 658 (remarks of Cong. Celler), and were expressly included as part of the "business of insurance" in an early draft of the Act, at A4406 (NAIC bill, 4 (b) (5)). Again, the Court concedes that such transactions, between insurers and agents, might fall within the "business of insurance," despite the inconsistency with the Court's own theory. Ante, at 224-225, n. 2.[1] The Court's limitation also ignores the significance of pervasive state insurance regulationprevailing when the Act was passedof hospitalization-benefits plans whose "distinctive feature," Rorem I, p. 64; Proceedings of the NAIC, 75th Sess., 228 was the provider contract with the participating hospital to provide service when needed. The year prior to adoption of the Act the NAIC emphasized the relationship between provider agreements and service-benefit policies: "A hospital service plan is designed to provide service rather than to indemnify and this can only be guaranteed through contractual arrangements between plans and hospitals." The Association also proposed, in the year McCarran-Ferguson passed, a model state enabling Act requiring "full approval of contracts
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
a model state enabling Act requiring "full approval of contracts with hospitals by the insurance commissioner." Proceedings of the NAIC, 76th Sess., 250 *246 (1945). That proposal reflected well the actual contents of existing state enabling Acts which armed insurance commissioners with considerable authority to regulate provider agreements.[14] Congress itself authorized the service-benefit plan it incorporated in the District of Columbia "to enter into contracts with hospitals for the care and treatment of [its subscribers]." H. R. 6266, 76th Cong., 1st Sess. (199). In light of Congress' objective through the McCarran-Ferguson Act to insure the continuation of existing state regulation, the conclusion that at least some provider agreements were intended to be within the "business of insurance" is inescapable. Logic compels the same conclusion. Some kind of provider agreement becomes a necessity if a service-benefits insurer is to meet its obligations to the insureds. The policy before us in this case, for example, promises payment of benefits in drugs. Thus, some arrangement must be made to provide those drugs for subscribers.[15] Such an arrangement obtains *247 the very benefits promised in the policy; it does not simply relate to the general operation of the company. A provider contract in a service-benefit plan, therefore, is critical to "the type of policy which could be issued" as well as to its "reliability" and "enforcement." It thus comes within the terms of That case explained that the "business of insurance" involves not only the "relationship between insurer and insured," but also "other activities of insurance companies [that] relate so closely to their status as reliable insurers that they too must be placed in the same class." Thus, "[s]tatutes aimed at protecting or regulating [the insurer/insured] relationship, directly or indirectly, are laws regulating the `business of insurance.' " The Congress that passed McCarran-Ferguson was composed of neither insurance experts nor dictionary editors. Rather than use the technical term "underwriting" to express its meaning, Congress chose "the business of insurance," a common-sense term connoting not only risk underwriting, but contracts closely related thereto.[16] Since Congress knew of service-benefit policies, and viewed them as insurance, it would strain common sense to suppose Congress viewed contracts *248 necessary to effectuate those policies' commitments as being outside the business it sought to exempt from the antitrust laws. IV The remaining question is whether the provider agreement in this case constitutes the "business of insurance." Respondents contend that even if some contract between Blue Shield and the pharmacies is necessary, this one is not. Under the contract at issue, the druggist agrees to dispense drugs to Blue Shield's insureds
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
the druggist agrees to dispense drugs to Blue Shield's insureds for a $2 payment, and Blue Shield agrees to reimburse the druggist for the acquisition cost of each drug so dispensed. The pharmacy is thus limited to a $2 "markup." With support from the Court of respondents argue that only the first half of the bargain is necessary for Blue Shield to fulfill its policy obligations. Those are fulfilled when Blue Shield binds the pharmacy to dispense the requested drug for $2. The second half of the agreement, the amount Blue Shield reimburses the druggist, is assertedly irrelevant to the policyholder. As an alternative to the existing plan, the respondents and the Court of suggest that Blue Shield could simply pay the pharmacist his usual charge (minus the $2 paid by the policyholder). The present plan, which limits reimbursement to acquisition cost and freezes the markup at $2, is said to set a "fixed" price. From this premise respondents argue that such fixed-price plans are "anticompetitive," and therefore not the "business of insurance." Respondents' argument is directly contradicted by history. The service-benefit plans available when the McCarran-Ferguson Act was passed actually "fixed" more of the payment to their participating providers than does the plan here, which "fixes" only the markup. Those early plans usually paid established and equal amounts to their participating hospitals, rather than paying whatever each hospital charged. Rorem I, p. 64. Moreover, under the typical state enabling Act, those *249 payments were subject to the approval of the state department of insurance.[17] The 197 Pennsylvania statute, for example, provided that "all rates of payments to hospitals made by such [service-benefit plan] corporations and any and all contracts entered into by any such corporation with any hospital, shall, at all times, be subject to the prior approval of the Insurance Department." 197 Pa. Laws No. 78. Therefore, as insurer/provider fee agreements were part of the system of state regulation which the McCarran-Ferguson Act sought to preserve, there is no historical reason to exclude Blue Shield's Pharmacy Agreements from the ambit of the exemption; there is instead a good historical reason for including them. Nor does respondents' claim that the Pharmacy Agreements are "anticompetitive" exclude them from constituting the "business of insurance." The determination of whether Blue Shield's Pharmacy Agreements actually involve antitrust violations or are otherwise anticompetitive has been held in abeyance, pending final decision as to whether the agreements fall within the scope of the McCarran-Ferguson Act. But even if the agreements were anticompetitive, that alone could not be the basis for excluding them from the "business
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
not be the basis for excluding them from the "business of insurance." An antitrust exemption by its very nature must protect some transactions that are anticompetitive; an exemption that is extinguished by a finding that challenged activity violates the antitrust laws is no exemption at all. While this reason for excluding the Pharmacy Agreements from the circle of exempt provider agreements is unconvincing, there are substantial reasons, in addition to history, for including them within that circle. First, it is clear that the contractual arrangement utilized by Blue Shield affects its *250 costs, and thus affects both the setting of rates and the insurer's reliability. This is definitely a factor relevant to the determination of whether a transaction is within the "business of insurance." See See also Proctor v. State Farm Mutual Automobile Ins. 182 U. S. App. D. C. 264, True, that factor alone is not determinative, for as argued by the Court, innumerable agreements, including the lease on the insurance company's offices, affect cost. This contract, however, has more than a mere incidental connection to the policy and premium. It is a direct arrangement to provide the very goods and services whose purchase is the risk assumed in the insurance policy. It is therefore integral to the insurer's rate-setting process, as the correlation between rates and drug prices in a drug-benefits policy is necessarily high. Moreover, the ability of state insurance commissioners to regulate rates, an important concern of the Act, is measurably enhanced by their ability to control the formulas by which insurers reimburse providers.[18] The same is true of state efforts to ensure that plans are financially reliable. See Travelers Ins. 8 n. 9 (CA 197) This close nexus between the Pharmacy Agreements and both the rates and fiscal reliability of Blue Shield's plan speaks strongly for their inclusion within the "business of insurance." See generally Proctor v. State *251 Farm Mutual Automobile Ins. at 2-272, -270. Another reason, in addition to this nexus to basic insurance elements, also supports the conclusion that fixed-price provider agreements are the "business of insurance." Such agreements themselves perform an important insurance function. It may be true, as the Court contends, that conventional notions of insurance focus on the underwriting of risk. But they also include efforts to reduce the unpredictable aspects of the risks assumed. Traditional plans achieve this end by setting ceilings on cash payments or utilizing large deductibles. R. Mehr & E. Cammack, Principles of Insurance 222 (6th ed. 1976). Even if the insurer cannot know how often a policyholder might become ill, it can know the
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
|
often a policyholder might become ill, it can know the extent of its exposure in the event of illness. The actuarial uncertainty, therefore, is greatly reduced. A fixed-price provider agreement attempts to reach the same result by contracting in advance for a price, rather than agreeing to pay as the market fluctuates. The agreement on price at least minimizes the variance of the "payoff" variable, even if the probability of its occurrence remains an unknown. Indeed, if examined carefully, this function comes within the latter half of the definition of "underwriting" offered by the Solicitor General: "spread[ing] risk more widely or reduc[ing] the role of chance events." See n. Of course, the Pharmacy Agreements in this case do not totally control "the role of chance" in drug prices since acquisition costs may fluctuate even if "markup" is fixed, but they are at least an attempt to reduce the role of chance to manageable proportions.[19] Moreover, a service-benefit plan which "pay[s] the cost whatever it might be," as hypothesized by the Court of *252 556 F.2d, at 181, would run grave risks of bankruptcy. Since it would expose the insurer to unknown liability, it would measurably increase the probability that an incorrect assessment of exposure would occur. This could lead to a failure to cover actual losses with premiums. Respondents argue that this fiscal-reliability problem could be solved by placing a dollar limit on benefits. But such a plan would be almost indistinguishable from a cash-indemnity policy. It would not be the full-service-regardless-of-price plan for which the policyholders bargained.[20] The Pharmacy Agreements are thus "other activities of insurance companies relate[d] so closely to their status as reliable insurers that they too must be placed in the same class." V The process of deciding what is and is not the "business of insurance" is inherently a case-by-case problem. It is true that the conclusion advocated here carries with it line-drawing problems. That is necessarily so once the provider-agreement line is crossed by holding some to be within the "business." But that is a line which history and logic compel me to cross. I would hold that the concept of a provider agreement for benefits promised in the policy is within the "business of insurance" because some form of provider agreement is necessary to fulfill the obligations of a service-benefit policy. I would hold that these provider agreements, Blue Shield's Pharmacy Agreements, are protected because they (1) directly obtain the very benefits promised in the policy[21] and therefore *25 directly affect rates, cost, and insurer reliability, and (2) themselves constitute a critical element
|
Justice Brennan
| 1,979 | 13 |
dissenting
|
Group Life & Health Ins. Co. v. Royal Drug Co.
|
https://www.courtlistener.com/opinion/110027/group-life-health-ins-co-v-royal-drug-co/
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and insurer reliability, and (2) themselves constitute a critical element of risk "prediction."[22] The conclusion that these kinds of agreements are the "business of insurance" is that reached by every Court of except the Court of in this case.[2] I would not suggest, however, that all provider agreements come within the McCarran-Ferguson Act proviso. Given the facts found by the District Court upon summary judgment, this is not a case where the petitioner pharmacies themselves conspired to exclude others from the market, and either pressured Blue Shield to go along, or were voluntarily joined by the insurer. See also Government Brief 1 n. 6. Such an agreement among pharmacies, itself neither necessary nor related to the insurer's effort to satisfy its obligations to its policyholders, would be outside the "business of insurance." An insurance company cannot immunize an illegal conspiracy by joining it. Cf. 17 U.S. 41, 51-52 *254 (194). Moreover, since in this case the Blue Shield plan was offered to all San Antonio pharmacies and was in fact agreed to by at least I am not called upon to decide whether an exclusive arrangement with a single provider would be so tenuously related to providing policyholder benefits as to be beyond the exemption's protection. See generally Proctor v. State Farm Mutual Automobile Ins. 182 U. S. App. D. C., at 270 n. n.[24] Finally, the conclusion that Blue Shield's Pharmacy Agreements should be held within the "business of insurance"[25]*255 does not alone establish whether the agreements enjoy an exemption from the antitrust laws. To be entitled to an exemption, petitioners still would have to demonstrate that the transactions are in fact truly regulated by the State, 15 U.S. C. (b), and that they do not fall within the "boycott" exception of 15 U.S. C. 1 (b). The District Court held for petitioners on both issues. Neither issue was reached by the Court of however, in light of its holding that the contracts were not the "business of insurance." Accordingly, *256 I would reverse the judgment of the Court of and remand the case for further proceedings.[26]
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The issue before the Court is the scope of the authority of the Comptroller General of the United States to examine the records of a private contractor with whom the Government has entered into fixed-price[1] negotiated contracts. We conclude that, under the circumstances presented in this action, the Comptroller General may inspect the contractor's records of direct costs, but not records of indirect costs. I In 197 Merck & Co., Inc. (Merck), entered into three contracts with the Defense Supply Agency of the Department of Defense and one contract with the Veterans' Administration for the sale of pharmaceutical products to the Government. All four contracts were negotiated, rather than awarded after formal advertising.[2] The pharmaceutical products supplied *827 under each contract were standard commercial products sold by Merck in substantial quantities to the general public. App. 41a. The price term proposed by Merck for each contract was based on the catalog price at which Merck sold the item to the general public or was otherwise determined by adequate competition. Before the award of each of the contracts at the fixed price proposed by Merck, there was no actual negotiation of price, and the Government contracting officers did not request Merck to submit cost data in connection with any of the four contracts. As required by 10 U.S. C. 21(b) and 41 U.S. C. 254(c),[] each contract contained a standard access-to-records *828 clause granting the Comptroller General the right to examine any directly pertinent records involving transactions related to the contract. Relying on these clauses, in August 1974 the Comptroller General issued a formal demand to Merck for access to the following: "all books, documents, papers, and other records directly pertinent to the contracts, which include, but are not limited to (1) records of experienced costs including costs of direct materials, direct labor, overhead, and other pertinent corporate costs, (2) support for prices charged to the Government, and () such other information as may be necessary for use to review the reasonableness of the contract prices and the adequacy of the protection afforded the Government's interests." App. 18a.[4] *829 Merck refused to comply with the Comptroller General's request and commenced this action in the United States District Court for the District of Columbia, seeking a declaratory judgment that the Comptroller General's access demand exceeded his statutory authority.[5] The United States intervened and counterclaimed to enforce the Comptroller General's demand. The District Court granted partial summary judgment for each party. Rejecting Merck's argument that cost records are not "directly pertinent" to the fixed-price contracts that were the predicate of the General Accounting
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fixed-price contracts that were the predicate of the General Accounting Office (GAO) demand, the court permitted access to all records "directly pertaining to the pricing and cost of producing the items furnished by Merck under the contracts including manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant administration, production planning, warehousing, utilities and security), royalty expenses, *80 and delivery costs." App. to Pet. for Cert. in No. 81-127, p. 9a. The court barred access, however, to records "with respect to research and development, marketing and promotion, distribution, and administration (except to the extent such date may be included in the cost items listed above)." at 40a. In a brief per curiam opinion, the United States Court of Appeals for the District of Columbia Circuit affirmed. Merck & Both parties sought certiorari. In No. 81-127, the United States petitioned for review of the Court of Appeals' determination that records of Merck's indirect costs are not subject to examination by the Comptroller General. In No. 81-1472, Merck challenges the determination that records of its direct costs are "directly pertinent" to the contracts in question and are therefore subject to examination. Merck also contends that access to its cost records is barred because the Comptroller General's access demand was not made for a congressionally authorized purpose. We granted certiorari on the petitions of both parties, and now affirm. II As with any issue of statutory construction,[6] we " `must begin with the language of the statute itself.' " Bread Political Action quoting Dawson Chemical The focal point of controversy is the meaning of the statutory phrase "directly pertain to and involve transactions relating to the contract." See n. It is plain from the face of the provisions that these are words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract.[7] The legislative history of the access provisions underscores what the language reflects: the intention of Congress to limit to some degree the Comptroller General's access powers. As originally introduced, the bill now codified as 10 U.S. C. 21(b) and 41 U.S. C. 254(c) provided access to "pertinent" records "involving transactions related to" the contract. See 97 Cong. Rec. 171 (1951).[8] Representative *82 Hoffman opposed the original bill on the ground that it permitted "unnecessary snooping expeditions" and allowed the GAO to "go into everybody's business and look it over if they just wanted to take a look at it." at 17. He therefore
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to take a look at it." at 17. He therefore offered a floor amendment to insert the word "directly" before the word "pertinent," stating that the purpose of the amendment "is to limit the `snooping' that may be carried on under this bill." at 177. The sponsor of the original bill, Representative Hardy, did not oppose the amendment, and the amendment passed without debate or discussion. The passage of the Hoffman amendment clearly reveals that Congress did not want unrestricted "snooping" by the Comptroller General into the business records of a private contractor. The Government nevertheless attempts to discount the significance of Congress' addition of the word "directly." Based on the lack of opposition to the limiting amendment by the bill's sponsor and the lack of debate, the Government argues that the Hoffman modification did not significantly alter the scope of the Hardy bill. We cannot agree. The only explanation in the legislative history of the meaning and purpose of the amendment is that of Representative Hoffman. His statement, which, as the explanation of the sponsor of the language, is an "authoritative guide to the statute's construction," North Haven Board of Education v. *8 Bell, expressly indicates that the intent of the amendment was to curtail the scope of investigation authorized under the bill. Although, as the Government emphasizes, Representative Hoffman did not have the votes to defeat the bill in its entirety, he nevertheless had the votes to circumscribe the inquiry that the Comptroller General was authorized to undertake. Moreover, to accept the Government's contention that the amendment had no substantive effect would contradict the settled principle of statutory construction that we must give effect, if possible, to every word of the statute. Fidelity Federal Savings & Loan 16 Therefore, in our attempt to give meaning to the words "directly pertinent," we must be mindful of Congress' aim to protect contractors from broad-ranging governmental intrusion into their private business affairs. It does not follow, however, that our interpretation of the language added by the Hoffman amendment must be guided solely by that policy, for it is expressive of only one of the aims embraced by Congress in enacting the access-to-records provisions. The legislative history also reveals that Congress sought, in granting the GAO this access authority, to equip that agency with a tool to detect fraud, waste, inefficiency, and extravagance in Government contracting generally. Representative Hardy, the sponsor of the legislation, explained that the two major purposes of the bill were "to give the Comptroller General the proper tools to do the job the Congress has instructed him to
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to do the job the Congress has instructed him to do and to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 1198 (1951). With regard to the former purpose, it is clear that Congress envisioned use of the access authority as an adjunct to the Comptroller General's statutory responsibility to "investigate. all matters relating to the receipt, disbursement, and application of public funds" and to "make recommendations looking to greater economy or efficiency in public *84 expenditures." 1 U.S. C. 5(a). See also 1 U.S. C. 60, 65(a).[9] Obviously, broad access to cost records would enhance the GAO's ability to evaluate the reasonableness of the price charged the Government and to identify areas of waste and inefficiency in procurement. Because of the lack of debate or discussion of the Hoffman amendment, however, we do not have any indication in the legislative history, nor indeed in the language of the statute itself, of the scope of access authority left to the GAO after the restrictive words were added to the bill. In defining the degree of limitation, we thus traverse uncharted seas guided only by the two general statutory purposes reflected in the legislative history. Consequently, our task in construing the statutes as they apply in this action is to give effect to both of these congressional aims. The tension between these goals is apparent. For some industries and some types of contracts, including perhaps those at issue here, neither objective *85 can be achieved fully without sacrificing the other.[10] Given these dual, conflicting aims, we must balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs. *86 III A The Government contends that the Court of Appeals erred in holding that records of Merck's indirect costs[11] are not "directly pertinent" to the contracts in question. In so arguing, the Government maintains that Merck's indirect costs are directly pertinent to the fixed-price contracts because Merck uses payments made by the Government under these contracts to defray indirect expenses. Thus, the Government would have us define as "directly pertinent" the records of any costs defrayed from commingled general revenues that include Government payments under the contract. We cannot accept this interpretation of the statute, however, for it completely eviscerates the congressional goal of protecting the privacy of the contractor's business records. Under the Government's proposed definition, records of expenditures to purchase raw materials for the manufacture of an entirely different product than that sold under the Government contract or to
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product than that sold under the Government contract or to invest in the stock of another corporation would be subject to inspection by the Comptroller General. Hence, the Government's interpretation would permit far-ranging governmental scrutiny of a contractor's business records of nongovernmental transactions completely unrelated to either the contract underlying the access demand or the product procured under that contract. Indeed, carried to its logical extreme, the argument would dictate that few, if any, of a private contractor's business records would be immune from GAO scrutiny. In short, the Government's proposed definition of the statutory language admits of no doctrinal limitation, effectively reading the Hoffman limiting language and its "antisnooping" policy out of the statute. *87 B Nor are we persuaded by the Government's argument that the GAO's consistent and longstanding interpretation of its authority under the access-to-records statutes supports the view that indirect cost records are subject to examination under the fixed-price contracts in question here. Even if that interpretation could be characterized as consistent, it would not be entitled to deference, for, as we have above, it is inconsistent with the statutory language. See Southeastern Community 4 U.S. 97, Moreover, to characterize the GAO's current sweeping view of its access authority as "consistent" would be generous. There is significant evidence indicating that in the past the GAO itself has acknowledged a deficiency in its statutory authority to examine indirect cost records.[12] For example, *88 in a ruling of particular significance for the facts of this case, the Comptroller General determined in that the access provisions do not confer upon the GAO the right to examine records relating to a contractor's nongovernmental business, even when such review is necessary to determine whether a catalog-priced item was actually sold in substantial quantities to the general public. App. 162a-16a. Moreover, in late 1969, the GAO prepared a memorandum for Congress in connection with congressional consideration of a proposed grant of additional access authority to the GAO to pursue a study of contractor profits in the defense industry. In the memorandum, the GAO informed Congress that its authority under the 1951 access provisions did not extend to review of records of a contractor's nongovernmental business and that additional access authority was therefore necessary to conduct a profit study. 115 Cong. Rec. 20-21 (1969) (reprinting GAO Memorandum on the Adequacy of the Legal Authority of the Comptroller General to Conduct a Comprehensive Study of Profitability in Defense Contracting). Finally, a 1970 internal memorandum also reveals the GAO's belief that amendment of the 1951 access statutes would be necessary to give it the power
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access statutes would be necessary to give it the power to examine records of indirect costs. App. 160a-161a.[1] The only statements by the GAO directly supportive of its position here occur in testimony before a congressional Subcommittee *89 in 196 regarding the GAO's litigation of the scope of its access authority in Hewlett-Packard 85 F.2d 101 cert. denied, 90 U.S. 988[14] In light of the GAO's litigation posture during these hearings, as well as the contrary expressions of GAO opinion above, this testimony cannot provide persuasive evidence of the GAO's consistent interpretation or practice. IV To summarize, the Government has failed to offer a definition of "directly pertinent" that would give any effect to the limiting purpose of that language. In our view, the appropriate accommodation of the competing goals reflected in the legislative history counsels us to draw the line precisely *840 where both lower courts have drawn it. Thus, under the four fixed-price contracts in question, the Comptroller General should be permitted access to records of direct costs.[15] He should be barred, however, from inspecting records of costs incurred in the areas of research and development, marketing and promotion, distribution, and administration, except to the extent the contractor has allocated these costs as attributable to the particular contract.[16] Direct costs certainly pertain directly to even a fixed-price contract, for direct costs are, by definition, readily identifiable as attributable to the specific product supplied under the contract. Consequently, as a rational businessman, the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product. Because these costs therefore have a very direct influence on the price charged the Government, the GAO would need to *841 examine records of these costs to determine whether the contractor is making an excessively high profit or the Government is getting a "fair deal" under the contract. Presumably, indirect costs also influence in some manner the setting of a catalog price, although to what extent is unclear, given the somewhat arbitrary accounting allocations that must be made to determine what portion of indirect costs may be attributed to a specific product. Nevertheless, the degree of intrusion into the contractor's private business affairs occasioned by GAO scrutiny of indirect cost records is far greater, particularly where pure fixed-price contracts are involved. Such an inspection would entail exposure to the GAO of many of the contractor's nongovernmental transactions.[17] We therefore conclude that the appropriate balance of public and private interests in this situation weighs in favor of access to direct cost records but against
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in favor of access to direct cost records but against access to Merck's indirect cost records.[18] Our decision in this regard is *8 in accord with that of the majority of the Courts of Appeals to have considered this issue.[19] The Government objects strenuously that barring such access impermissibly constrains the GAO in its efforts to improve the procurement process. In an industry in which indirect costs represent such a large proportion of total costs,[20] access to records of those costs is critical to an understanding of the industry with which the Government is dealing and to an assessment of the fairness of the contract price and the advisability of continued adherence to the negotiated procurement methods employed under those contracts.[21] As we have already however, in adopting the Hoffman amendment, Congress was apparently willing to forgo the benefits that might be gained from permitting the GAO broad access to the contractor's business records in order to protect those contractors from far-reaching governmental scrutiny of their nongovernmental affairs. By inclusion of that language, Congress injected into the determination of which records are accessible considerations besides the Government's *84 need for the information. Thus, any impediment that our holding places in the path of the GAO's power to investigate fully Government contracts is one that Congress chose to adopt,[22] and any arguments that this situation should be changed must be addressed to Congress, not the courts.[2] V We address briefly Merck's contention that there is yet another independent ground upon which the Comptroller General should be denied access to any of its cost records. Merck argues that the GAO is not entitled to examine these records because the access demand was not made for a congressionally authorized purpose. Specifically, Merck contends that the access-to-records statutes do not permit the Comptroller General to request records for the purpose of either conducting an economic study of the pharmaceutical industry or securing information desired by individual Members of Congress. Much of what we have already said provides an answer to this contention. The legislative history reveals that Congress granted the GAO authority to examine directly pertinent records under individual procurement contracts in order to assess the reasonableness of the prices paid by the Government and to detect inefficiency and wastefulness. Given this authorized purpose, there is no reason to conclude that the GAO may not compile the information that it may lawfully *844 obtain, within the statutory limits outlined above, from an investigation of individual contracts in order to arrive at a picture of the pharmaceutical industry generally.[24] Moreover, the fact that two Senators
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the pharmaceutical industry generally.[24] Moreover, the fact that two Senators encouraged the GAO to use its lawful authority to the fullest extent possible is irrelevant. The GAO is an independent agency within the Legislative Branch that exists in large part to serve the needs of Congress. If the records sought by the GAO are within the scope of the access-to-records provisions, the fact that the Comptroller General's request had its origin in the requests of Congressmen or that the GAO reported the data to Congress does not vitiate its authority. VI Because of the GAO's mandate to detect fraud, waste, inefficiency, and extravagance through full audits of Government contracts, we cannot accept Merck's view that the only records directly pertinent to the four fixed-price contracts at issue are those necessary to verify that Merck actually had an established catalog price for the item procured, that it sold the items in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. On the other hand, given the policy of protecting the privacy of contractors' business records also expressed in the statutory language and legislative history, *845A neither can we accept the Government's contention that it must be permitted access to all of Merck's cost records. Accordingly, we affirm the judgment below. It is so ordered. *845B JUSTICE WHITE, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part. I join Part V of the Court's opinion, and I concur in the remainder to the extent it upholds the GAO's right to inspect Merck's "direct" cost records.[1] I dissent to the extent the Court refuses to allow the GAO access to any of Merck's "indirect" cost records. The statutory provisions at issue, 10 U.S. C. 21(b) and 41 U.S. C. 254(c), clearly were intended to allow the GAO the right to a reasonable degree of access to contractors' records needed to determine whether prices charged to the Government were excessive. Of course, this right was not intended to be unlimited; the Court correctly identifies a congressional intent to protect private contractors from "officious governmental intermeddling." Ante, at 85. *846 Unfortunately, for the conceded purpose of creating a bright-line test, ante, at 841, n. 18, the Court goes astray by adopting a rule that flatly bars the GAO from access to all indirect cost records pertaining to most fixed-price contracts, regardless of how urgent the need for them might be. The Court frankly admits that its rule may deny
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be. The Court frankly admits that its rule may deny the GAO access to cost records critical to an assessment of the fairness of the contract price, thereby impeding the GAO's ability to protect the public against wasteful Government expenditures. Ante, at 8-84. These undesirable consequences could be avoided, without sacrificing the contractors' right to be free from unwarranted GAO "snooping," by holding the Government to the burden of showing that requested records likely had a direct and substantial impact on the price charged to the Government and thus are "directly pertinent" to the contract. I In each of the four contracts involved here, the United States agreed to purchase certain pharmaceutical products from Merck at a fixed price. In each instance, Merck proposed a contract price based on its catalog or "market" price, and the Government contracting officer accepted the proposal without any "haggling" or other negotiation as to price. Each of the contracts contains the statutorily mandated provision allowing the GAO the right to inspect Merck's books and records that are "directly pertinent" to the contract. The GAO now seeks to examine those Merck records that indicate the cost to Merck of the goods sold to the Government. The GAO deems such an examination necessary to carry out its statutory duty to "investigate all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 1 U.S. C. 5(a). By inspecting Merck's cost records, the GAO hopes to be able to estimate whether the contract price paid by the Government *847 was a fair one. The GAO has confirmed by experience the common-sense observation that the mere "fact that a product is listed in a manufacturer's catalog and offered to any customer is no assurance that the standard catalog price is reasonable."[2] If the GAO's inspection were to reveal that Merck's prices were unreasonably high, the GAO presumably would recommend to the contracting agencies that they "negotiate prices more carefully or obtain greater competition in future similar procurements,"[] or that they take other action "looking to greater economy or efficiency," 1 U.S. C. 5(a), in future expenditures. The Court concludes, however, that, despite the inclusion of the access-to-records provision in the contracts, the GAO has no right to inspect any of Merck's indirect cost records to determine how much it cost Merck to produce the products sold to the Government. This holding exalts the contractors' privacy interest to such a degree that it displaces the GAO's right to inspect records unquestionably needed for an accurate
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GAO's right to inspect records unquestionably needed for an accurate determination of the fairness of the contract price. Congress did not intend this order of priority of interests. What Congress did intend was that contractors be spared the burden of unwarranted intrusions. Congress did not want the GAO to be irresponsibly "snooping" into records lacking relevance to the question whether the Government paid a fair price for the products it purchased. But Congress did not wish to deny the GAO access to records legitimately needed to detect waste, extravagance, and ineffective procurement. To the extent the GAO can prove that some or all of a contractor's indirect cost records fall into this latter category, the GAO's right of access should be sustained. *848 II I begin with the language of the statute. Jackson Transit 2 ; Touche Ross & The legislation at issue requires unadvertised Government contracts to include a clause allowing the GAO to examine any of the contractor's books, documents, papers, or records "that directly pertain to, and involve transactions relating to, the contract" 10 U.S. C. 21(b). See 41 U.S. C. 254(c). " `[I]t is hard to imagine anything more directly related to a contract than the cost of producing the items covered by it or the matters going into the makeup of the price.' " Eli Lilly & 91 (CA7), cert. denied, 49 U.S. 959 Accord, SmithKline cert. pending, Nos. 81-2, 81-2268; Hewlett-Packard 85 F.2d 101, cert. denied, 90 U.S. 988 The Court does not contend otherwise. Indeed, all the Court has to say about the literal statutory wording is that it requires "some close connection between the type of records sought and the particular contract." Ante, at 81. But there is, of course, no reason why the records of all indirect costs inherently lack the requisite "close connection." As the Court fully recognizes, ante, at 8-84, in some instances indirect costs have a critical bearing on the makeup of the contract price. The Government should at least be allowed an opportunity to prove that such is the case, and, to the extent it succeeds in this endeavor, the GAO should be allowed access. III Even if, contrary to my belief, the statutory language is somehow regarded as ambiguous, resort to the legislative history further refutes the Court's position. The legislative history of the access-to-records provisions is relatively brief and to the point. It demonstrates beyond doubt that Congress *849 authorized the GAO to examine all of a contractor's books legitimately needed to evaluate Government procurement techniques by ascertaining whether the Government had paid a reasonable
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techniques by ascertaining whether the Government had paid a reasonable price for the contractor's goods or services. Representative Hardy, the bill's sponsor, indicated that the bill was intended to improve the adequacy of Government procurement techniques in various ways. He expressly remarked: "The major purposes of this bill are twofold: One, to give the Comptroller General the proper tools to do the job the Congress has instructed him to do; and, two, to provide a deterrent to improprieties and wastefulness in the negotiation of contracts." 97 Cong. Rec. 1198 (1951). As Congress has instructed the GAO to "investigate all matters relating to the receipt, disbursement, and application of public funds," and to "make recommendations looking to greater economy or efficiency in public expenditures." 1 U.S. C. 5(a).[4] Representative Hardy early explained to his colleagues that normal procurement procedures called for competitive bidding but that procurement by negotiation was sometimes necessary. In the latter context, where there is no competitive bidding to "operat[e] as a brake on the price which a contractor can demand from the Government," Representative Hardy saw the need to establish "every reasonable safeguard against waste and extravagance in the spending" of Government funds. 97 Cong. Rec., at 1198. He felt that, no matter how "conscientious and honest" the Government representatives might be, the contractor's representatives would, in the great majority of cases, have a tremendous advantage *850 from the standpoint of both training and experience. Thus, there was "every chance in the world that the Government [would] come out on the short end of the deal," and Representative Hardy deemed it necessary to "at least enable the [GAO] to check the transaction, both from the Government records and the contractors' books." The debate continued two days later when Representative Hardy proposed an amendment that would have allowed agency heads the discretion to omit the access-to-records clause from contracts with foreign contractors, at 171, and Representative Harvey proposed an amendment that would have exempted "a manufacturer or processor who is a supplier of material to a primary contractor and who is not a subcontractor" from the scope of the bill's coverage. at 176. Both of these proposals were ultimately defeated, but, during the lively debate on the proposed amendments, several Members of Congress stated without contradiction that the bill would allow the GAO extremely broad authority to examine records. For example, Representative Harvey asked whether, if the bill became law, a subcontractor of a primary Government contractor "would be subject to having all of his books opened up for inspection by Government officials." at 172 Representative Hardy replied
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for inspection by Government officials." at 172 Representative Hardy replied that it would, unless the subcontractor only supplied some "casual item" in connection with the performance of the contract. Based on this understanding, Representative Harvey later argued that his limiting amendment was needed, because otherwise "every manufacturer. of goods that eventually find their way into defense production is going to have to supply all the answers to the GAO on everything he manufactures." at 176. "[E]very section of his books will have to come under the complete scrutiny of the GAO." In response, Representative Hardy did not dispute this characterization of the scope of the GAO's authority, but he nevertheless opposed the Harvey amendment, because it "would make it impossible *851 frequently to obtain information which would be vital in the study of a contract." Representative Hoffman, a strong opponent of the bill, several times during the debate observed that the "GAO under this bill can go into the books of [contractors] and ask and get from them anything and everything they want." at 17. He indicated his belief that the bill would allow the GAO "to snoop into [a contractor's] books and find out what [the goods or services] cos[t] or what will be a fair price or what profit we make." See also at 175, 177. Standing alone, of course, the statements of an opponent of the bill, such as Representative Hoffman, would not carry much weight,[5] but here, even though all comments pro and con were made in the midst of a free-wheeling debate, the proponent of the bill, Representative Hardy, in no way took issue with Representative Hoffman's view of the scope of the GAO's authority. Representative Hardy's essential response was that it was necessary to require contractors to afford the GAO this broad authority, and that Representative Hoffman's fears of excessive GAO "snooping" were groundless, because the GAO would have neither the inclination nor the manpower to examine the records of every individual supplier. at 176, 177. The original Hardy bill required the inclusion, in negotiated contracts, of a clause allowing the GAO the right to examine any records that were "pertinent" to the contract. At the very end of the debate, Representative Hoffman proposed the amendment that added the word "directly" before the word "pertinent." at 177. Representative Hoffman explained that he had discussed his amendment with Representative Hardy, the bill's sponsor, and that, although the amendment was "not all that it should be," it was the *852 most that Representative Hardy would agree to. [6] Representative Hoffman then stated that the purpose of
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to. [6] Representative Hoffman then stated that the purpose of his amendment was "to limit the `snooping' that may be carried on under this bill which we do not have the votes to defeat." At that point, Representative Hardy remarked that he had no objection to the amendment, and it was accepted without further discussion. [7] In light of Representative Hardy's consistent position throughout the debate, it cannot plausibly be argued that he agreed to the Hoffman amendment with the understanding that it effected a drastic reduction in the scope of the bill's coverage or purpose. As outlined above, Representative Hardy continuously spoke of the need to provide a mechanism to combat waste and extravagance in federal procurement, and he vigorously and successfully opposed the Harvey amendment, which would have significantly limited the bill's *85 scope. His acceptance of the addition of the word "directly" may have been largely a sop to the bill's opponents. The most that can be said is that Representative Hardy accepted the amendment to allay concerns that the legislation "would let the GAO go into everybody's business and look it over if they just wanted to take a look at it." at 17 The amendment gave assurance that the bill would not be used as a basis for inspection of books and records having no substantial connection with Government procurement. But the amendment definitely was not intended to bar the GAO's access to records legitimately needed to assess the reasonableness of prices charged to the Government, and thereby to protect the Government against waste, excessive prices, and ineffective procurement.[8] IV Despite the plain statutory language and legislative history, the Court refuses to uphold the GAO's right of access to all cost records that are essential to an accurate determination of whether the Government wasted money by entering into these contracts. Adopting the so-called "Bristol test,"[9] the Court affirms a judgment that limits the GAO's access to records pertaining to a contractor's "manufacturing costs (including raw and packaging materials, labor and fringe benefits, quality control and supervision), manufacturing overhead (including plant *854 administration, production planning, warehousing, utilities and security), royalty expenses, and delivery costs."[10] The Bristol test excludes "books, documents, papers, or records with respect to research and development, marketing and promotion, distribution and administration (except to the extent such data may be included in the cost items listed above)."[11] The Court describes this test, perhaps inaccurately,[12] as being based on a "direct costs v. indirect costs" or an "allocated costs v. unallocated costs" dichotomy. The courts that have adopted this test have no doubt been
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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courts that have adopted this test have no doubt been influenced by a need to come up with some form of reasonable limitation on the broad access demand the GAO has made. The GAO claims it has the right to examine records pertaining to every cost "defrayed from commingled general revenues that include the Government's payments under the contract." I agree that the GAO's demand is somewhat over-broad; the Court correctly observes, ante, at 86, that it would require Merck to allow inspection of cost records totally unrelated to the Government contracts, such as records of expenditures for raw materials used to manufacture products other than those sold to the Government under the contracts.[1] However, I am not convinced that the proper conclusion is to limit the GAO to the cost records allowable under the Bristol test. The Bristol court adopted its standard solely on the basis of the cost records that the contractor was willing to disclose *855 to the GAO. The court felt that the contractor's offer "reflected a responsible and reasonable effort to distinguish `directly pertinent' matter within the meaning of the access to records clause."[14] The court thus accepted the contractor's contention that the cost records it was not willing to disclose had "only the most general relation, if any, to the prices charged."[15] Although cost records having, at most, only an insubstantial relation to the price charged are not "directly pertinent" to the contract, it is apparent that many of the records deemed unexaminable under Bristol relate to costs that may have had a critical bearing on the prices charged, and that would be of central importance to a GAO inquiry into the fairness of these prices. In the pharmaceutical industry, it has been estimated that "direct" or "allocated" costs constitute only about nine percent of the sale price of individual products. The so-called "indirect" or "unallocated" costs primarily research and development, advertising and other promotion, general administrative expenses, and taxes and profit are much larger and economically more significant.[16] Yet, under the Bristol test, the GAO is denied access to all records in this category, thus making it impossible for the GAO to make an accurate assessment of the fairness of the prices and thus the adequacy of the Government's procurement technique.[17] *856 In my view, the correct rule in a case of this nature is that any books or records that bear directly on the question whether the Government paid a fair price for the goods or services it purchased are "directly pertinent" to the contract of purchase. Under this test,
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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"directly pertinent" to the contract of purchase. Under this test, for example, the cost records of an advertising campaign to promote only the particular products sold to the Government, or a research project designed specifically to develop or improve these products, would clearly be "directly pertinent."[18] On the other hand, *857 records of advertising campaigns and research projects involving only unrelated products would lack the requisite degree of pertinence. Of course, in many instances a commercial advertisement or a research project will be designed to promote or develop both products sold to the Government and other, unrelated products. With respect to cost records of efforts such as these, there might be some close questions as to whether such records are "directly pertinent" to the Government contracts. If, however, the GAO could bear the burden of proving that the records are of costs that likely had a direct and substantial impact on the price charged to the Government under the contract, I would allow the GAO access to the records. V The inquiry does not necessarily come to an end once the GAO establishes that it has a statutory and contractual right to inspect particular records. In addition to the statutory *858 "directly pertinent" limitation, the GAO's right of inspection is further circumscribed, and the contractors' right to privacy is further protected, by constitutional standards, such as the Fourth Amendment reasonableness requirement. Where, as here, the GAO wishes to see a contractor's records and the contractor declines to accede voluntarily to a GAO request, the GAO must issue an administrative subpoena. If the contractor refuses to comply with the subpoena, the GAO must apply to a district court for enforcement of the subpoena. 1 U.S. C. 54(c) (1976 ed., Supp. V).[19] Once in the district court, a contractor such as Merck has the benefit of all of this Court's jurisprudence limiting the bounds of an agency's right to demand the production of a private entity's records. Essentially, in assessing an agency's application for enforcement of an administrative subpoena, we have insisted that the agency's demand be reasonable. The general rule is that "when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unduly burdensome." See v. City of 87 U.S. 541, See United 8 U.S. 62, 652-65 ; Oklahoma Press Publishing 27 U.S. 186, ; 1 K. Davis, Administrative Law Treatise 4:15 This standard is a flexible one that takes into account the extent to *859 which
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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one that takes into account the extent to *859 which the public interest will be served if the subpoena is enforced. See v. City of In the present case, Merck has claimed that compliance with the GAO's demand would entail substantial expense and disruption of its operations. This claim is based on evidence that the proposed GAO inspection would require Merck to allow an entire team of GAO auditors to remain on site at Merck for over two years.[20] This, of course, is a matter for first-instance determination by the District Court, but, if the proposed GAO inspection would in fact cause such a high degree of interference with Merck's business, a credible argument could be made that compliance would be unreasonable and unduly burdensome and that the GAO's access should therefore be limited in some way. VI In view of the foregoing, I would remand these cases to the District Court, with instructions to uphold the GAO's request for access to Merck's "direct" and "indirect" cost records, but only to the extent that: (1) the records sought by GAO related to costs that likely had a direct and substantial impact on the prices charged to the Government under the contracts; and (2) the request is reasonable in scope and would not unduly burden Merck. To the extent the GAO's demand conforms to these statutory and constitutional standards, Merck should be required to allow the GAO's examination to proceed.[21] *860 JUSTICE BLACKMUN, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part. The question before us is the proper construction of the access-to-records clauses required by law to be inserted in various Government contracts. These clauses authorize the Comptroller General to inspect any records that "directly pertain to and involve transactions relating to" the contract into which the clause was inserted. 10 U.S. C. 21(b); see 41 U.S. C. 254(c) (permitting access to "directly pertinent" records "involving transactions related to" the contracts). The Court now holds that these clauses permit access to certain cost records, even when the contract is not cost-based and was negotiated without regard to costs. I cannot agree that cost records are "directly pertinent" to non-cost-based contracts. I therefore dissent insofar as the Court permits access to such records. The Court correctly begins its analysis by focusing on the language of the statute, noting that it contains "words of limitation designed to restrict the class of records to which access is permitted by requiring some close connection between the type of records sought and the particular contract." Ante, at 81. But after this nod
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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the particular contract." Ante, at 81. But after this nod in the direction of the statutory language, the Court, unaccountably in my estimation, fails to examine the type of records sought, the nature of the particular contract, and the closeness of the connection between them. Instead, the Court wanders off to explore the general "aims embraced by Congress in enacting the access-to-records provisions": protecting contractors from governmental *861 intrusion, and equipping the General Accounting Office with a tool to detect fraud and waste in Government contracting. Ante, at 8. Given the "tension" between these "dual, conflicting aims," the Court concludes that it must "balance the public interest served by full GAO investigations against the private interest in freedom from officious governmental intermeddling in the contractor's private business affairs." Ante, at 84-85. The Court then reaches what it deems an "appropriate accommodation of the competing goals reflected in the legislative history" by holding that the Comptroller General may inspect records of "direct costs," but is barred from inspecting other records except to the extent they are allocated to the particular contract. Ante, at 89-840. I agree that the legislative history reflects conflicting congressional goals, but it appears to me that the necessary "balancing" and "accommodation" of these goals has already been accomplished by Congress. Congress may well have intended to give the GAO a tool to detect fraud and waste and to improve the procurement process, but the particular tool it crafted was a limited one. It gave the Comptroller General access to a narrow category of records: those directly pertinent to the contracts between the Government and its contracting partner. The Court asserts that Merck's records of direct costs are directly pertinent to its contracts with the Government because such costs "are, by definition, readily identifiable as attributable to the specific product supplied under the contract." Ante, at 840 Records of indirect costs are not pertinent to Merck's contracts, the Court says, because such records are "completely unrelated to either the contract underlying the access demand or the product procured under that contract." Ante, at 86 But, as the Court obviously recognizes, there is a difference between records pertinent to the "contracts" by which the Government does its purchasing, and records pertinent to *862 "products" ultimately purchased under those contracts.[1] In interpreting the access-to-records statutes we must "presume that Congress chose its words with care," 65 and Congress chose to require pertinence to the specific "contract" at issue, not to the "product" procured. It is a fundamental canon of statutory construction that "unless otherwise defined, words will be interpreted as
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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construction that "unless otherwise defined, words will be interpreted as taking their ordinary, contemporary, common meaning." 444 U.S. 7, In its ordinary meaning, a "contract" is a legally enforceable bargain, formed by mutual consent and supported by consideration. Restatement (Second) of Contracts 17 ; 1 W. Jaeger, Williston on Contracts 18 (d ed. 1957). Particular goods and services may be the subject matter of a contract, but the "contract" itself is the agreement between the parties. Nothing in the legislative history suggests that Congress intended any other meaning by its choice of the word "contract."[2] The access-to-records statutes were intended to *86 permit inspection of cost records when the negotiation of a particular contract depended on representations about the contractor's costs, or when the contract price itself varied according to costs. See 97 Cong. Rec. 1198 (1951) (remarks of Rep. Hardy).[] There is, however, no indication that Congress *864 intended to permit such inspection when costs were not relevant to the contract's negotiation, its terms, or its performance. Apparently recognizing that cost records are not accessible to the Comptroller General unless they bear some relationship to the actual contracts at issue, the Court asserts that direct cost records are pertinent to non-cost-based contracts because "the contractor will have some regard for these costs in setting even a catalog price in order to avoid a loss on the product." The Court concludes that "these costs therefore have a very direct influence on the price charged the Government." Ante, at 840.[4] But the fact that costs may affect a seller's decision to offer a certain price does not make costs directly pertinent to the contract. A contract, after all, is a meeting of the minds. Many factors may affect one party's willingness to make an offer or the other party's willingness to accept it, but the vast majority of these factors are not mentioned in the bargaining process and play no part in the agreement ultimately reached. An unarticulated motive for one party's assent to a bargain is not pertinent, much less "directly pertinent," to the bargain itself. Pursuant to the contracts at issue here, Merck has promised to provide various pharmaceutical products and the Government has promised to pay a certain price. The Government's promise was based on Merck's standard catalog price for the products purchased. Information about Merck's production *865 costs was not requested, and neither the contract price nor its performance was tied to costs in any respect. Merck's costs were thus irrelevant to the bargain reached by the parties. Because the Government chose not to make costs an
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Justice O'Connor
| 1,983 | 14 |
majority
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Bowsher v. Merck & Co.
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parties. Because the Government chose not to make costs an issue during the negotiations, the terms of the contracts would have been the same whether Merck's costs represented 1 percent, 10 percent, or 100 percent of the price the Government agreed to pay. The conclusion seems inescapable that Merck's costs, and consequently its cost records, are not pertinent to the agreements it entered into with the Government.[5] If the Government is concerned that it may be paying too high a price for pharmaceutical products, it is always free to ask for cost data in connection with any contract it negotiates in the future. Cost records then would be pertinent, because representations about costs would form part of the basis for the bargain between the parties. In this case, however, costs were not relevant to the Government's decision to contract with Merck. Cost records do not become "directly pertinent" to these contracts simply because the Government now wants information that did not concern it at the time of contracting. I would hold that when the terms of a contract are not tied to costs and the contractor makes no representations about costs during its negotiations with the Government, cost records do not "directly pertain to and involve transactions relating to the contract" and are not subject to inspection by the Comptroller General. The only records "directly pertinent" to such a contract would be those necessary to verify the terms of the contract and the representations upon which *866 the contract was based. In this case, the Comptroller General's access would be limited to those records necessary to verify that Merck actually had an established catalog price for the products it sold, that it sold the products in substantial quantities to the general public at the catalog price, that it delivered the product specified, and that it received from the Government no more than the amount due under the contract. To the extent the Court concludes that the Comptroller General may obtain Merck's cost records as well, I dissent.
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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https://www.courtlistener.com/opinion/118178/bogan-v-scott-harris/
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It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities. In this case, petitioners argue that they, as local officials performing legislative functions, are entitled to the same protection. They further argue that their acts of introducing, voting for, and signing an ordinance eliminating the government office held by respondent constituted legislative activities. We agree on both counts and therefore reverse the judgment below. I Respondent Janet Scott-Harris was administrator of the Department of Health and Human Services (DHHS) for the city of Fall River, Massachusetts, from 1987 to 1991. In 1990, respondent received a complaint that Dorothy Biltcliffe, an employee serving temporarily under her supervision, had made repeated racial and ethnic slurs about her colleagues. After respondent prepared termination charges against Biltcliffe, Biltcliffe used her political connections to press her case with several state and local officials, including *47 petitioner Marilyn Roderick, the vice president of the Fall River City Council. The city council held a hearing on the charges against Biltcliffe and ultimately accepted a settlement proposal under which Biltcliffe would be suspended without pay for 60 days. Petitioner Daniel Bogan, the mayor of Fall River, thereafter substantially reduced the punishment. While the charges against Biltcliffe were pending, Mayor Bogan prepared his budget proposal for the 1992 fiscal year. Anticipating a 5 to 10 percent reduction in state aid, Bogan proposed freezing the salaries of all municipal employees and eliminating 135 city positions. As part of this package, Bogan called for the elimination of DHHS, of which respondent was the sole employee. The city council ordinance committee, which was chaired by Roderick, approved an ordinance eliminating DHHS. The city council thereafter adopted the ordinance by a vote of 6 to 2, with petitioner Roderick among those voting in favor. Bogan signed the ordinance into law. Respondent then filed suit under Rev. Stat. 1979, 42 U.S. C. 1983, against the city, Bogan, Roderick, and several other city officials. She alleged that the elimination of her position was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights in filing the complaint against Biltcliffe. The District Court denied Bogan's and Roderick's motions to dismiss on the ground of legislative immunity, and the case proceeded to trial. Scott-Harris v. City of Fall River, et al., Civ. 91-12057PBS (Mass., Jan. 27, 1995), App. to Pet. for Cert. 1. The jury returned a verdict in favor of all defendants on the racial discrimination charge, but found the city, Bogan, and Roderick liable on respondent's
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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but found the city, Bogan, and Roderick liable on respondent's First Amendment claim, concluding that respondent's constitutionally protected speech was a substantial or motivating factor in the elimination *48 of her position.[1] On a motion for judgment notwithstanding the verdict, the District Court again denied Bogan's and Roderick's claims of absolute legislative immunity, reasoning that "the ordinance amendment passed by the city council was an individually-targeted administrative act, rather than a neutral, legislative elimination of a position which incidentally resulted in the termination of plaintiff." The United States Court of Appeals for the First Circuit set aside the verdict against the city but affirmed the judgments against Roderick and Bogan.[2] Although the court concluded that petitioners have "absolute immunity from civil liability for damages arising out of their performance of legitimate legislative activities," it held that their challenged conduct was not "legislative," Relying on the jury's finding that "constitutionally sheltered speech was a substantial or motivating factor" underlying petitioners' conduct, the court reasoned that the conduct was administrative, rather than legislative, because Roderick and Bogan "relied on facts relating to a particular individual [respondent] in the decision-making calculus." We granted certiorari. II The principle that legislators are absolutely immune from liability for their legislative activities has long been recognized in Anglo-American law. This privilege "has taproots *49 in the Parliamentary struggles of the Sixteenth and Seventeenth Centuries" and was "taken as a matter of course by those who severed the Colonies from the Crown and founded our Nation." The Federal Constitution, the Constitutions of many of the newly independent States, and the common law thus protected legislators from liability for their legislative activities. See U. S. Const., Art. I, 6; at -375. Recognizing this venerable tradition, we have held that state and regional legislators are entitled to absolute immunity from liability under 1983 for their legislative activities. See ; Lake Country ;[3] see also (interpreting the federal Speech and Debate Clause, U. S. Const., Art. I, 6, to provide similar immunity to Members of Congress). We explained that legislators were entitled to absolute immunity from suit at common law and that Congress did not intend the general language of 1983 to "impinge on a tradition so well grounded in history and reason." Because the common law accorded local legislators the same absolute immunity it accorded legislators at other levels of government, and because the rationales for such immunity are fully applicable to local legislators, we now hold that local legislators are likewise absolutely immune from suit under 1983 for their legislative activities. The common law at the time 1983 was
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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legislative activities. The common law at the time 1983 was enacted deemed local legislators to be absolutely immune from suit for their legislative activities. New York's highest court, for example, held that municipal aldermen were immune from suit for *50 their discretionary decisions. The court explained that when a local legislator exercises discretionary powers, he "is exempt from all responsibility by action for the motives which influence him, and the manner in which such duties are performed. If corrupt, he may be impeached or indicted, but the law will not tolerate an action to redress the individual wrong which may have been done."[4] These principles, according to the court, were "too familiar and well settled to require illustration or authority." -600. Shortly after 1983 was enacted, the Mississippi Supreme Court reached a similar conclusion, holding that town aldermen could not be held liable under state law for their role in the adoption of an allegedly unlawful ordinance. The court explained that "[i]t certainly cannot be argued that the motives of the individual members of a legislative assembly, in voting for a particular law, can be inquired into, and its supporters be made personally liable, upon an allegation that they acted maliciously towards the person aggrieved by the passage of the law." The court thus concluded that "[w]henever the officers of a municipal corporation are vested with legislative powers, they hold and exercise them for the public good, and are clothed with *51 all the immunities of government, and are exempt from all liability for their mistaken use." Treatises of that era confirm that this was the pervasive view. A leading treatise on municipal corporations explained that "[w]here the officers of a municipal corporation are invested with legislative powers, they are exempt from individual liability for the passage of any ordinance within their authority, and their motives in reference thereto will not be inquired into." 1 J. Dillon, Law of Municipal Corporations 313, pp. 326-327 (emphasis in original). Thomas Cooley likewise noted in his influential treatise on the law of torts that the "rightful exemption" of legislators from liability was "very plain" and applied to members of "inferior legislative bodies, such as boards of supervisors, county commissioners, city councils, and the like." Cooley 376; see also J. Bishop, Commentaries on the Non-Contract Law 744 (1889) (noting that municipal legislators were immune for their legislative functions); Mechem 644-646 (same); 709, at 671 (same). Even the authorities cited by respondent are consistent with the view that local legislators were absolutely immune for their legislative, as distinct from ministerial, duties. In the few cases
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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legislative, as distinct from ministerial, duties. In the few cases in which liability did attach, the courts emphasized that the defendant officials lacked discretion, and the duties were thus ministerial. See, e. g., ; Respondent's heavy reliance on our decision in is misguided for this very reason. In that case, we held that local legislators could be held liable for violating a court order to levy a tax sufficient to pay a judgment, but only because the court order had created a ministerial duty. The treatises cited by respondent confirm that this distinction between legislative and ministerial duties was dispositive of the right to absolute immunity. See, e. g., Cooley 377 (stating that local legislators may be held liable only for their "ministerial" duties); Mechem 647 (same). Absolute immunity for local legislators under 1983 finds support not only in history, but also in reason. See 341 U. S., (stating that Congress did not intend for 1983 to "impinge on a tradition so well grounded in history and reason"). The rationales for according absolute immunity to federal, state, and regional legislators apply with equal force to local legislators. Regardless of the level of government, the exercise of legislative discretion should not be inhibited by judicial interference or distorted by the fear of personal liability. See ; see also U. S., 1-204 (federal legislators); ; Lake Country Furthermore, the time and energy required to defend against a lawsuit are of particular concern at the local level, where the part-time citizen-legislator remains commonplace. See (citing "the cost and inconvenience and distractions of a trial"). And the threat of liability may significantly deter service in local government, where prestige and pecuniary rewards may pale in comparison to the threat of civil liability. See *53 Moreover, certain deterrents to legislative abuse may be greater at the local level than at other levels of government. Municipalities themselves can be held liable for constitutional violations, whereas States and the Federal Government are often protected by sovereign immunity. Lake Country n. 29 ). And, of course, the ultimate check on legislative abusethe electoral processapplies with equal force at the local level, where legislators are often more closely responsible to the electorate. Cf. Any argument that the rationale for absolute immunity does not extend to local legislators is implicitly foreclosed by our opinion in Lake Country There, we held that members of an interstate regional planning agency were entitled to absolute legislative immunity. Bereft of any historical antecedent to the regional agency, we relied almost exclusively on `s description of the purposes of legislative immunity and the importance of
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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https://www.courtlistener.com/opinion/118178/bogan-v-scott-harris/
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of the purposes of legislative immunity and the importance of such immunity in advancing the "public good." Although we expressly noted that local legislators were not at issue in that case, see Lake Country n. 26, we considered the regional legislators at issue to be the functional equivalents of local legislators, noting that the regional agency was "comparable to a county or municipality" and that the function of the regional agency, regulation of land use, was "traditionally a function performed by local governments."[5] Thus, we now make explicit what was implicit *54 in our precedents: Local legislators are entitled to absolute immunity from 1983 liability for their legislative activities. III Absolute legislative immunity attaches to all actions taken "in the sphere of legitimate legislative activity." The Court of Appeals held that petitioners' conduct in this case was not legislative because their actions were specifically targeted at respondent. Relying on the jury's finding that respondent's constitutionally protected speech was a substantial or motivating factor behind petitioners' conduct, the court concluded that petitioners necessarily "relied on facts relating to a particular individual" and "devised an ordinance that targeted [respondent] and treated her differently from other managers employed by the City." 134 F.3d, Although the Court of Appeals did not suggest that intent or motive can overcome an immunity defense for activities that are, in fact, legislative, the court erroneously relied on petitioners' subjective intent in resolving the logically prior question of whether their acts were legislative. Whether an act is legislative turns on the nature of the act, rather than on the motive or intent of the official performing it. The privilege of absolute immunity "would be of little value if [legislators] could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or to the hazard of a judgment against them based upon a jury's speculation as to motives." Ten- *55 341 U. S., Furthermore, it simply is "not consonant with our scheme of government for a court to inquire into the motives of legislators." We therefore held that the defendant in had acted in a legislative capacity even though he allegedly singled out the plaintiff for investigation in order "to intimidate and silence plaintiff and deter and prevent him from effectively exercising his constitutional rights." This leaves us with the question whether, stripped of all considerations of intent and motive, petitioners' actions were legislative. We have little trouble concluding that they were. Most evidently, petitioner Roderick's acts of voting for an ordinance were, in form, quintessentially legislative. Petitioner Bogan's introduction of a
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Justice Thomas
| 1,998 | 1 |
majority
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Bogan v. Scott-Harris
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https://www.courtlistener.com/opinion/118178/bogan-v-scott-harris/
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were, in form, quintessentially legislative. Petitioner Bogan's introduction of a budget and signing into law an ordinance also were formally legislative, even though he was an executive official. We have recognized that officials outside the legislative branch are entitled to legislative immunity when they perform legislative functions, see Supreme Court of ; Bogan's actions were legislative because they were integral steps in the legislative process. Cf. ; -373 Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policy making decision implicating the budgetary priorities *56 of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed "in a field where legislators traditionally have power to act." Thus, petitioners' activities were undoubtedly legislative. * * * For the foregoing reasons, the judgment of the Court of Appeals is reversed.[6] It is so ordered.
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Justice Breyer
| 2,011 | 2 |
dissenting
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Sorrell v. IMS Health Inc.
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https://www.courtlistener.com/opinion/219616/sorrell-v-ims-health-inc/
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The Vermont statute before us adversely affects expres sion in one, and only one, way. It deprives pharmaceutical and data-mining companies of data, collected pursuant to the government’s regulatory mandate, that could help pharmaceutical companies create better sales messages. In my view, this effect on expression is inextricably related to a lawful governmental effort to regulate a commercial enterprise. The First Amendment does not require courts to apply a special “heightened” standard of review when reviewing such an effort. And, in any event, the statute meets the First Amendment standard this Court has previously applied when the government seeks to regulate commercial speech. For any or all of these reasons, the Court should uphold the statute as constitutional. I The Vermont statute before us says pharmacies and certain other entities “shall not [1] sell regulated records containing prescriber-identifiable information, nor [2] permit the use of [such] records for marketing or promoting a prescription drug, unless the prescriber consents.” Vt. Stat. Ann., Tit. 18, (Supp. 2010). 2 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting It also says that “[3] [p]harmaceutical manufacturers and pharmaceu tical marketers shall not use prescriber-identifiable information for marketing or promoting a prescription drug unless the prescriber consents.” For the most part, I shall focus upon the first and second of these prohibitions. In Part IV, I shall explain why the third prohibition makes no difference to the result. II In v. Wileman Brothers & Elliott, Inc., 521 U.S. 457 this Court considered the First Amend ment’s application to federal agricultural commodity mar keting regulations that required growers of fruit to make compulsory contributions to pay for collective adver tising. The Court reviewed the lawfulness of the regula tion’s negative impact on the growers’ freedom voluntarily to choose their own commercial messages “under the standard appropriate for the review of economic regula tion.” In this case I would ask whether Vermont’s regulatory provisions work harm to First Amendment interests that is disproportionate to their furtherance of legitimate regu latory objectives. And in doing so, I would give significant weight to legitimate commercial regulatory objectives—as this Court did in The far stricter, specially “heightened” First Amendment standards that the major ity would apply to this instance of commercial regulation are out of place here. Ante, at 1, 8, 9, 10, 11, 13, 14, 15. A Because many, perhaps most, activities of human beings living together in communities take place through speech, and because speech-related risks and offsetting justifica tions differ depending upon context, this Court has distin guished for First Amendment purposes among different Cite as: 564 U.
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Justice Breyer
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dissenting
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Sorrell v. IMS Health Inc.
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for First Amendment purposes among different Cite as: 564 U. S. (2011) 3 BREYER, J., dissenting contexts in which speech takes place. See, Snyder v. Phelps, 562 U. S. – (2011) (slip op., at 5–6). Thus, the First Amendment imposes tight constraints upon government efforts to restrict, “core” political speech, while imposing looser constraints when the gov ernment seeks to restrict, commercial speech, the speech of its own employees, or the regulation-related speech of a firm subject to a traditional regulatory pro gram. Compare (political speech), with Central Gas & Elec. v. Public Serv. Comm’n of N. Y., (commercial speech), (government employees), and (economic regulation). These test-related distinctions reflect the constitutional importance of maintaining a free marketplace of ideas, a marketplace that provides access to “social, political, esthetic, moral, and other ideas and experiences.” Red Lion Broadcasting ; see (Holmes, J., dissenting). Without such a marketplace, the public could not freely choose a government pledged to implement policies that reflect the people’s informed will. At the same time, our cases make clear that the First Amendment offers considerably less protection to the maintenance of a free marketplace for goods and services. See Florida (“We have always been careful to distinguish com mercial speech from speech at the First Amendment’s core”). And they also reflect the democratic importance of permitting an elected government to implement through effective programs policy choices for which the people’s elected representatives have voted. Thus this Court has recognized that commercial speech including advertising has an “informational function” and 4 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting is not “valueless in the marketplace of ideas.” Central ; 826 (1975). But at the same time it has applied a less than strict, “intermediate” First Amendment test when the government directly restricts commercial speech. Under that test, government laws and regulations may significantly restrict speech, as long as they also “directly advance” a “substantial” government interest that could not “be served as well by a more limited restriction.” Central Moreover, the Court has found that “sales practices” that are “misleading, decep tive, or aggressive” lack the protection of even this “inter mediate” standard. 44 Liquormart, ; see also Central ; Virginia Bd. of v. Virginia Citizens Consumer Council, Inc., 772 (1976). And the Court has emphasized the need, in applying an “intermediate” test, to maintain the “ ‘commonsense’ distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech.” (quoting Virginia Bd. of ; emphasis added). The Court has also normally applied a yet more lenient approach
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dissenting
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Court has also normally applied a yet more lenient approach to ordinary commercial or regulatory legislation that affects speech in less direct ways. In doing so, the Court has taken account of the need in this area of law to defer significantly to legislative judgment—as the Court has done in cases involving the Commerce Clause or the Due Process Clause. See at 475–476. “Our function” in such cases, Justice Brandeis said, “is only to determine the reasonableness of the legislature’s belief in the existence of evils and in the effectiveness of Cite as: 564 U. S. (2011) 5 BREYER, J., dissenting the remedy provided.” New State Ice Co. v. Liebmann, 285 U.S. 262, 286–287 (1932) (dissenting opinion); Williamson v. Lee Optical of Okla., Inc., (“It is enough that there is an evil at hand for correction, and that it might be thought that the particular legisla tive measure was a rational way to correct it”); United States v. Carolene Products Co., (“[R]egulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” if it rests “upon some rational basis within the knowledge and experience of the legislators”). To apply a strict First Amendment standard virtually as a matter of course when a court reviews ordinary economic regulatory programs (even if that program has a modest impact upon a firm’s ability to shape a commercial mes sage) would work at cross-purposes with this more basic constitutional approach. Since ordinary regulatory pro grams can affect speech, particularly commercial speech, in myriad ways, to apply a “heightened” First Amendment standard of review whenever such a program burdens speech would transfer from legislatures to judges the primary power to weigh ends and to choose means, threat ening to distort or undermine legitimate legislative ob jectives. See (“Doubts con cerning the policy judgments that underlie” a program requiring fruit growers to pay for advertising they dis agree with does not “justify reliance on the First Amend ment as a basis for reviewing economic regulations”). Cf. 560– 562 (2005) (applying less scrutiny when the compelled speech is made by the Government); United States v. United Inc., (applying greater scrutiny where compelled speech was not “ancil lary to a more comprehensive program restricting market ing autonomy”). To apply a “heightened” standard of review in such cases as a matter of course would risk what 6 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting then-Justice Rehnquist, dissenting in Central described as a “retur[n] to the bygone era of in which it was common practice for this Court to strike down economic regulations adopted by a State based
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dissenting
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Sorrell v. IMS Health Inc.
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to strike down economic regulations adopted by a State based on the Court’s own notions of the most appropriate means for the State to imple ment its considered policies.” B There are several reasons why the Court should review Vermont’s law “under the standard appropriate for the review of economic regulation,” not “under a heightened standard appropriate for the review of First Amendment issues.” 521 U.S., For one thing, Ver mont’s statute neither forbids nor requires anyone to say anything, to engage in any form of symbolic speech, or to endorse any particular point of view, whether ideological or related to the sale of a product. Cf. –470. (And I here assume that Central might otherwise apply. See Part III, infra.) For another thing, the same First Amendment stan dards that apply to Vermont here would apply to similar regulatory actions taken by other States or by the Federal Government acting, for example, through Food and Drug Administration (FDA) regulation. (And the Federal Gov ernment’s ability to pre-empt state laws that interfere with existing or contemplated federal forms of regulation is here irrelevant.) Further, the statute’s requirements form part of a tra ditional, comprehensive regulatory regime. Cf. United at The pharmaceutical drug industry has been heavily regulated at least since 1906. See Pure Food and Drugs Act, Longstanding statutes and regulations require pharmaceutical companies to engage in complex drug testing to ensure that their drugs Cite as: 564 U. S. (2011) 7 BREYER, J., dissenting are both “safe” and “effective.” 21 U.S. C. 355(d). Only then can the drugs be marketed, at which point drug companies are subject to the FDA’s exhaustive regulation of the content of drug labels and the manner in which drugs can be advertised and sold. 21 CFR pts. 201–203 (2010). Finally, Vermont’s statute is directed toward informa tion that exists only by virtue of government regulation. Under federal law, certain drugs can be dispensed only by a pharmacist operating under the orders of a medical practitioner. 21 U.S. C. Vermont regulates the qualifications, the fitness, and the practices of pharma cists themselves, and requires pharmacies to maintain a “patient record system” that, among other things, tracks who prescribed which drugs. Vt. Stat. Ann., Tit. 26, 2022(14) (Supp. 2010); Vt. Bd. of Admin. Rules ( Rules) 9.1, 9.24(e) (2009). But for these regulations, pharmacies would have no way to know who had told customers to buy which drugs (as is the case when a doctor tells a patient to take a daily dose of aspirin). Regulators will often find it necessary to create tailored restrictions on
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dissenting
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Sorrell v. IMS Health Inc.
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will often find it necessary to create tailored restrictions on the use of information subject to their regulatory jurisdiction. A car dealership that obtains credit scores for customers who want car loans can be prohibited from using credit data to search for new cus tomers. See 15 U.S. C. (2006 ed. and Supp. III); cf. Trans Union reh’g denied, Medical specialists who obtain medical records for their existing patients cannot purchase those records in order to identify new patients. See (a)(3) (2010). Or, speaking hypo thetically, a public utilities commission that directs local gas distributors to gather usage information for individual customers might permit the distributors to share the data with researchers (trying to lower energy costs) but forbid 8 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting sales of the data to appliance manufacturers seeking to sell gas stoves. Such regulatory actions are subject to judicial review, for compliance with applicable statutes. And they would normally be subject to review under the Adminis trative Procedure Act to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. (2006 ed.). In an appropriate case, such review might be informed by First Amendment considerations. But regulatory actions of the kind present here have not previously been thought to raise serious additional consti tutional concerns under the First Amendment. But cf. Trans Union (KENNEDY, J., dissenting from denial of certiorari) (questioning ban on use of consumer credit reports for target marketing). The ease with which one can point to actual or hypothet ical examples with potentially adverse speech-related effects at least roughly comparable to those at issue here indicates the danger of applying a “heightened” or “inter mediate” standard of First Amendment review where typical regulatory actions affect commercial speech (say, by withholding information that a commercial speaker might use to shape the content of a message). Thus, it is not surprising that, until today, this Court has never found that the First Amendment prohibits the government from restricting the use of information gath ered pursuant to a regulatory mandate—whether the information rests in government files or has remained in the hands of the private firms that gathered it. But cf. ante, at 11–14. Nor has this Court ever previously applied any form of “heightened” scrutiny in any even roughly similar case. See Los Angeles Police Dept. v. United Re porting Publishing (no height ened scrutiny); compare (“[C]ommercial speech can be subject to greater governmental regulation than non Cite as: 564 U. S. (2011) 9 BREYER, J., dissenting commercial speech” because of the government’s “interest in
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Justice Breyer
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dissenting
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J., dissenting commercial speech” because of the government’s “interest in preventing commercial harms”), with ante, at 9–10, 11, 17–18, 24 (suggesting that Discovery Network supports heightened scrutiny when regulations target commercial speech). C The Court (suggesting a standard yet stricter than Central ) says that we must give content-based restrictions that burden speech “heightened” scrutiny. It adds that “[c]ommercial speech is no exception.” Ante, at 10–11. And the Court then emphasizes that this is a case involving both “content-based” and “speaker-based” restrictions. See ante, at 8, 9, 10, 12, 14, 15, 16, 19, 20, 22, 24. But neither of these categories—“content-based” nor “speaker-based”—has ever before justified greater scrutiny when regulatory activity affects commercial speech. See, Capital Broadcasting Co. v. Mitchell, 333 F. Supp. 582 (DC 1971) (three-judge court), summarily aff’d sub nom. Capital Broadcasting (upholding ban on radio and television marketing of tobacco). And the absence of any such precedent is understandable. Regulatory programs necessarily draw distinctions on the basis of content. Virginia Bd. of 425 U.S., at 761, 762 (“If there is a kind of commercial speech that lacks all First Amendment protection, it must be dis tinguished by its content”). Electricity regulators, for example, oversee company statements, pronouncements, and proposals, but only about electricity. See, Vt. Pub. Serv. Bd. Rules 3.100 (1983), 4.200 (1986), 5.200 (2004). The Federal Reserve Board regulates the content of statements, advertising, loan proposals, and interest rate disclosures, but only when made by financial institu tions. See 12 CFR pts. 226, 230 (2011). And the FDA 10 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting oversees the form and content of labeling, advertising, and sales proposals of drugs, but not of furniture. See 21 CFR pts. 201–203. Given the ubiquity of content-based regula tory categories, why should the “content-based” nature of typical regulation require courts (other things being equal) to grant legislators and regulators less deference? Cf. Board of Trustees of State Univ. of N. Y. v. 492 U.S. 469, 481 (1989) (courts, in First Amendment area, should “provide the Legislative and Executive Branches needed leeway” when regulated industries are at issue). Nor, in the context of a regulatory program, is it un usual for particular rules to be “speaker-based,” affecting only a class of entities, namely, the regulated firms. An energy regulator, for example, might require the manu facturers of home appliances to publicize ways to reduce energy consumption, while exempting producers of indus trial equipment. See, 16 CFR pt. 305 (2011) (prescrib ing labeling requirements for certain home appliances); 704.808 (2010) (requiring utilities to provide consumers with information on conser vation). Or
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dissenting
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Sorrell v. IMS Health Inc.
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utilities to provide consumers with information on conser vation). Or a trade regulator might forbid a particular firm to make the true claim that its cosmetic product contains “cleansing grains that scrub away dirt and ex cess oil” unless it substantiates that claim with detailed backup testing, even though opponents of cosmetics use need not substantiate their claims. Morris, F. T. C. Or ders Data to Back Ad Claims, N. Y. Times, Nov. 3, 1973, p. 32; Boys’ Life, Oct. 1973, p. 64; see (1971). Or the FDA might control in detail just what a pharmaceutical firm can, and cannot, tell potential pur chasers about its products. Such a firm, for example, could not suggest to a potential purchaser (say, a doctor) that he or she might put a pharmaceutical drug to an “off label” use, even if the manufacturer, in good faith and with considerable evidence, believes the drug will help. All the while, a third party (say, a researcher) is free to Cite as: 564 U. S. (2011) 11 BREYER, J., dissenting tell the doctor not to use the drug for that purpose. See 21 CFR pt. 99; cf. Buckman (discussing effect of similar regulations in respect to medical devices); see also Pro posed Rule, Revised Effectiveness Determination; Sun screen Drug Products for Over-the-Counter Human Use, (2011) (proposing to prohibit market ing of sunscreens with sun protection factor (SPF) of greater than 50 due to insufficient data “to indicate that there is additional clinical benefit”). If the Court means to create constitutional barriers to regulatory rules that might affect the content of a com mercial message, it has embarked upon an unprecedented task—a task that threatens significant judicial interfer ence with widely accepted regulatory activity. Cf., 21 CFR pts. 201–203. Nor would it ease the task to limit its “heightened” scrutiny to regulations that only affect cer tain speakers. As the examples that I have set forth illustrate, many regulations affect only messages sent by a small class of regulated speakers, for example, electricity generators or natural gas pipelines. The Court also uses the words “aimed” and “targeted” when describing the relation of the statute to drug manu facturers. Ante, at 8, 9, 12, 16. But, for the reasons just set forth, to require “heightened” scrutiny on this basis is to require its application early and often when the State seeks to regulate industry. Any statutory initiative stems from a legislative agenda. See, Message to Congress, May 24, 1937, H. R. Doc. No. 255, 75th Cong., 1st Sess., 4 (request from President Franklin Roosevelt for legislation to ease
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dissenting
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Sorrell v. IMS Health Inc.
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4 (request from President Franklin Roosevelt for legislation to ease the plight of factory workers). Any administrative initiative stems from a regulatory agenda. See, Exec. Order No. 12866, (specifying how to identify regulatory priorities and requiring agen cies to prepare agendas). The related statutes, regula tions, programs, and initiatives almost always reflect a 12 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting point of view, for example, of the Congress and the ad ministration that enacted them and ultimately the voters. And they often aim at, and target, particular firms that engage in practices about the merits of which the Gov ernment and the firms may disagree. Section 2 of the Sherman Act, 15 U.S. C. for example, which limits the truthful, nonmisleading speech of firms that, due to their market power, can affect the competitive landscape, is directly aimed at, and targeted at, monopolists. In short, the case law in this area reflects the need to ensure that the First Amendment protects the “market place of ideas,” thereby facilitating the democratic creation of sound government policies without improperly hamper ing the ability of government to introduce an agenda, to implement its policies, and to favor them to the exclusion of contrary policies. To apply “heightened” scrutiny when the regulation of commercial activities (which often in volve speech) is at issue is unnecessarily to undercut the latter constitutional goal. The majority’s view of this case presents that risk. Moreover, given the sheer quantity of regulatory initia tives that touch upon commercial messages, the Court’s vision of its reviewing task threatens to return us to a happily bygone era when judges scrutinized legislation for its interference with economic liberty. History shows that the power was much abused and resulted in the constitu tionalization of economic theories preferred by individual jurists. See 75–76 (Holmes, J., dissenting). By inviting courts to scrutinize whether a State’s legitimate regulatory inter ests can be achieved in less restrictive ways whenever they touch (even indirectly) upon commercial speech, today’s majority risks repeating the mistakes of the past in a manner not anticipated by our precedents. See Cen tral ; cf. Railroad Comm’n of Tex. v. Rowan & Nichols Oil Co., Cite as: 564 U. S. (2011) 13 BREYER, J., dissenting (“A controversy like this always calls for fresh reminder that courts must not sub stitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted”). Nothing in Vermont’s statute undermines the ability of persons opposing the State’s policies to speak their mind or
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Justice Breyer
| 2,011 | 2 |
dissenting
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Sorrell v. IMS Health Inc.
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persons opposing the State’s policies to speak their mind or to pursue a different set of policy objectives through the democratic process. Whether Vermont’s regulatory statute “targets” drug companies (as opposed to affecting them unintentionally) must be beside the First Amendment point. This does not mean that economic regulation having some effect on speech is always lawful. Courts typically review the lawfulness of statutes for rationality and of regulations (if federal) to make certain they are not “arbi trary, capricious, [or] an abuse of discretion.” 5 U.S. C. And our valuable free-speech tradition may play an important role in such review. But courts do not normally view these matters as requiring “heightened” First Amendment scrutiny—and particularly not the un forgiving brand of “intermediate” scrutiny employed by the majority. Because the imposition of “heightened” scrutiny in such instances would significantly change the legislative/judicial balance, in a way that would signifi cantly weaken the legislature’s authority to regulate commerce and industry, I would not apply a “heightened” First Amendment standard of review in this case. III Turning to the constitutional merits, I believe Vermont’s statute survives application of Central ’s “interme diate” commercial speech standard as well as any more limited “economic regulation” test. 14 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting A The statute threatens only modest harm to commercial speech. I agree that it withholds from pharmaceutical companies information that would help those entities create a more effective selling message. But I cannot agree with the majority that the harm also involves unjus tified discrimination in that it permits “pharmacies” to “share prescriber-identifying information with anyone for any reason” (but marketing). Ante, at 17. Whatever the First Amendment relevance of such discrimination, there is no evidence that it exists in Vermont. The record con tains no evidence that prescriber-identifying data is widely disseminated. See App. 248, 255. Cf. v. Freeman, (“States adopt laws to address the problems that confront them. The First Amendment does not require States to regulate for problems that do not exist”); (“[T]he justification for the application of overbreadth analysis applies weakly, if at all, in the ordinary commercial context”). The absence of any such evidence likely reflects the presence of other legal rules that forbid widespread release of prescriber-identifying information. Vermont’s Rules, for example, define “unprofessional conduct” to include “[d]ivulging or revealing to unauthor ized persons patient or practitioner information or the nature of professional pharmacy services rendered.” Rule 20.1(i) ; see also Reply Brief for Petition ers 21. The statute reinforces this prohibition where pharmaceutical marketing is at issue. And the exceptions that it
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Justice Breyer
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dissenting
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Sorrell v. IMS Health Inc.
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pharmaceutical marketing is at issue. And the exceptions that it creates are narrow and concern common and often essential uses of prescription data. See Vt. Stat. Ann., Tit. 18, (pharmacy reimbursement, patient care management, health care research); (drug dispensing); (communications between pre scriber and pharmacy); (information to pa Cite as: 564 U. S. (2011) 15 BREYER, J., dissenting tients); (as otherwise provided by state or federal law). Cf. Trans Union ). Nor can the majority find record support for its claim that the statute helps “favored” speech and imposes a “burde[n]” upon “disfavored speech by disfavored speak ers.” Ante, at 19. The Court apparently means that the statute (1) prevents pharmaceutical companies from creat ing individualized messages that would help them sell their drugs more effectively, but (2) permits “counterde tailing” programs, which often promote generic drugs, to create such messages using prescriber-identifying data. I am willing to assume, for argument’s sake, that this con sequence would significantly increase the statute’s nega tive impact upon commercial speech. But cf. 21 CFR 202.1(e)(5)(ii) (FDA’s “fair balance” require ment); App. 193 (no similar FDA requirement for nondrug manufacturers). The record before us, however, contains no evidentiary basis for the conclusion that any such individualized counterdetailing is widespread, or exists at all, in Vermont. The majority points out, ante, at 4, that Act 80, of which was a part, also created an “evidence-based pre scription drug education program,” in which the Vermont Department of Health, the Department of Vermont Health Access, and the University of Vermont, among others, work together “to provide information and education on the therapeutic and cost-effective utilization of prescrip tion drugs” to health professionals responsible for pre scribing and dispensing prescription drugs, Vt. Stat. Ann., Tit. 18, See generally But that program does not make use of prescriber-identifying data. 16 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Reply Brief for Petitioners 11. The majority cites testimony by two witnesses in sup port of its statement that “States themselves may supply the prescriber-identifying information used in [counterde tailing] programs.” Ante, at 4. One witness explained that academic detailers in Pennsylvania work with state health officials to identify physicians serving patients whose health care is likewise state provided. App. 375. The other, an IMS Health officer, observed that Vermont has its own multipayer database containing prescriber identifying data, which could be used to talk to doctors about their prescription patterns and the lower costs associated with generics. But nothing in the record indicates that any “counterdetailing” of this kind has ever taken place in fact in Vermont. State-sponsored health care
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dissenting
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ever taken place in fact in Vermont. State-sponsored health care professionals sometimes meet with small groups of doctors to discuss best practices and generic drugs generally. See University of Vermont, College of Medicine, Office of Primary Care, Vermont Academic Detailing Program (July 2010), http://www.med.uvm.edu/ ahec/downloads/VTAD_overview_2010.07.08.pdf (all Inter net materials as visited June 21, 2011, and available in Clerk of Court’s case file). Nothing in Vermont’s statute prohibits brand-name manufacturers from undertaking a similar effort. The upshot is that the only commercial-speech-related harm that the record shows this statute to have brought about is the one I have previously described: The with holding of information collected through a regulatory program, thereby preventing companies from shaping a commercial message they believe maximally effective. The absence of precedent suggesting that this kind of harm is serious reinforces the conclusion that the harm here is modest at most. Cite as: 564 U. S. (2011) 17 BREYER, J., dissenting B The legitimate state interests that the statute serves are “substantial.” Central 447 U.S., Ver mont enacted its statute “to advance the state’s interest in protecting the pub lic health of Vermonters, protecting the privacy of prescribers and prescribing information, and to en sure costs are contained in the private health care sector, as well as for state purchasers of prescription drugs, through the promotion of less costly drugs and ensuring prescribers receive unbiased information.” (a). These objectives are important. And the interests they embody all are “neutral” in respect to speech. Cf. ante, at 24. The protection of public health falls within the tradi tional scope of a State’s police powers. Hillsborough County v. Automated Medical Laboratories, Inc., 471 U.S. 707, 719 (1985). The fact that the Court normally exempts the regulation of “misleading” and “deceptive” information even from the rigors of its “intermediate” commercial speech scrutiny testifies to the importance of securing “unbiased information,” see 44 Liquormart, 517 U.S., at ; Central at 563, as does the fact that the FDA sets forth as a federal regulatory goal the need to ensure a “fair balance” of information about marketed drugs, 21 CFR 202.1(e)(5)(ii). As major payers in the health care system, health care spending is also of crucial state interest. And this Court has affirmed the importance of maintaining “privacy” as an important public policy goal—even in respect to information already disclosed to the public for particular purposes (but not others). See Department of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749, 762–771 (1989); see also Solove, A Taxonomy of Pri 18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy,
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dissenting
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Sorrell v. IMS Health Inc.
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18 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting vacy, 520–522 (2006); cf. NASA v. Nelson, 562 U. S. – (2011) (slip op., at 8–9) (discussing privacy interests in nondisclosure). At the same time, the record evidence is sufficient to permit a legislature to conclude that the statute “directly advances” each of these objectives. The statute helps to focus sales discussions on an individual drug’s safety, effectiveness, and cost, perhaps compared to other drugs (including generics). These drug-related facts have every thing to do with general information that drug manufac turers likely possess. They have little, if anything, to do with the name or prior prescription practices of the par ticular doctor to whom a detailer is speaking. Shaping a detailing message based on an individual doctor’s prior prescription habits may help sell more of a particular manufacturer’s particular drugs. But it does so by divert ing attention from scientific research about a drug’s safety and effectiveness, as well as its cost. This diversion comes at the expense of public health and the State’s fiscal interests. Vermont compiled a substantial legislative record to corroborate this line of reasoning. See Testimony of Sean Flynn (Apr. 11, 2007), App. in No. 09–1913–cv(L) etc. (CA2), p. A–1156 (hereinafter CA2 App.) (use of data mining helps drug companies “to cover up information that is not in the best of light of their drug and to high light information that makes them look good”); Volker & Outterson, New Legislative Trends Threaten the Way Health Information Companies Operate, Pharmaceutical Pricing & Reimbursement 2007, at A–4235 (one for mer detailer considered prescriber-identifying data the “ ‘greatest tool in planning our approach to manipulating doctors’ ” (quoting Whitney, Big (Brother) Pharma: How Drug Reps Know Which Doctors to Target, New Republic, Aug. 29, 2006, http://www.tnr.com/article/84056/health care-eli-lilly-pfizer-ama); Testimony of Paul Harrington Cite as: 564 U. S. (2011) 19 BREYER, J., dissenting (May 3, 2007), at A–1437 (describing data mining practices as “secret and manipulative activities by the marketers”); Testimony of Julie Brill (May 3, 2007), at A–1445 (restrictions on data mining “ensur[e] that the FDA’s requirement of doctors receiving fair and balanced information actually occurs”); Written Statement of Jerry Avorn & Aaron Kesselheim, at A–4310 (citing studies that “indicate that more physician-specific detailing will lead to more prescriptions of brand-name agents, often with no additional patient benefit but at much higher cost to patients and to state-based insurance programs, which will continue to drive up the cost of health care”); at 4311 (“Making it more difficult for manufacturers to tailor their marketing strategies to the prescribing histories of individual
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dissenting
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tailor their marketing strategies to the prescribing histories of individual physicians would actually encourage detailers to present physicians with a more neutral description of the product”); see also Record in No. 1:07–cv–00188–jgm (D Vt.), Doc. 414, pp. 53–57, 64 (hereinafter Doc. 414) (summarizing record evidence). These conclusions required the legislature to make judgments about whether and how to ameliorate these problems. And it is the job of regulatory agencies and legislatures to make just these kinds of judgments. Ver mont’s attempts to ensure a “fair balance” of information is no different from the FDA’s similar requirement, see 21 CFR 202.1(e)(5)(ii). No one has yet sug gested that substantial portions of federal drug regulation are unconstitutional. Why then should we treat Vermont’s law differently? The record also adequately supports the State’s privacy objective. Regulatory rules in Vermont make clear that the confidentiality of an individual doctor’s prescribing practices remains the norm. See, Rule 8.7(c) (“Prescription and other patient health care infor mation shall be secure from access by the public, and the information shall be kept confidential”); Rule 20 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting 20.1(i) (forbidding disclosure of patient or prescriber in formation to “unauthorized persons” without consent). Exceptions to this norm are comparatively few. See, ; Vt. Stat. Ann., Tit. 18, (e); App. 248, 255 (indicating that prescriber identifying data is not widely disseminated). There is no indication that the State of Vermont, or others in the State, makes use of this information for counterdetailing efforts. See Pharmaceutical manufacturers and the data miners who sell information to those manufacturers would like to create (and did create) an additional exception, which means additional circulation of otherwise largely confi dential information. Vermont’s statute closes that door. At the same time, the statute permits doctors who wish to permit use of their prescribing practices to do so. §(c)–(d). For purposes of Central this would seem sufficiently to show that the statute serves a mean ingful interest in increasing the protection given to pre scriber privacy. See (in commercial speech area, First Amendment requires “a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is in proportion to the interest served” (internal quotation marks omitted)); see also United (The First Amendment does not “require that the Government make progress on every front before it can make progress on any front”); 504 U.S., at C The majority cannot point to any adequately supported, similarly effective “more limited restriction.” Central 447 U.S., It says that doctors “can, and often do, simply decline
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dissenting
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Sorrell v. IMS Health Inc.
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It says that doctors “can, and often do, simply decline to meet with detailers.” Ante, at 20. This fact, while true, is beside the point. Closing the Cite as: 564 U. S. (2011) 21 BREYER, J., dissenting office door entirely has no similar tendency to lower costs (by focusing greater attention upon the comparative ad vantages and disadvantages of generic drug alternatives). And it would not protect the confidentiality of information already released to, say, data miners. In any event, physi cians are unlikely to turn detailers away at the door, for those detailers, whether delivering a balanced or imbal anced message, are nonetheless providers of much useful information. See Manchanda & Honka, The Effects and Role of Direct-to-Physician Marketing in the Pharmaceuti cal Industry: An Integrative Review, 5 Yale J. Health Pol’y L. & Ethics 785, 793–797, 815–816 (2005); Ziegler, Lew, & Singer, The Accuracy of Drug Information from Pharma ceutical Sales Representatives, Forcing doctors to choose between targeted detailing and no detailing at all could therefore jeopardize the State’s interest in promoting public health. The majority also suggests that if the “statute provided that prescriber-identifying information could not be sold or disclosed except in narrow circumstances then the State might have a stronger position.” Ante, at 24–25; see also ante, at 17. But the disclosure-permitting exceptions here are quite narrow, and they serve useful, indeed essential purposes. See Compare Vt. Stat. Ann., Tit. 18, (e) with note following 42 U.S. C. p. 1190, and Regardless, this alterna tive is not “a more limited restriction,” Central for it would impose a greater, not a lesser, burden upon the dissemination of information. Respondents’ alternatives are no more helpful. Respon dents suggest that “Vermont can simply inform physicians that pharmaceutical companies use prescription his tory information to communicate with doctors.” Brief for 22 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting Respondent Pharmaceutical Research and Manufacturers of America 48. But how would that help serve the State’s basic purposes? It would not create the “fair balance” of information in pharmaceutical marketing that the State, like the FDA, seeks. Cf. (alternative must be “at least as effective in achieving the legitimate purpose that the statute was enacted to serve”). Respondents also suggest policies requiring use of generic drugs or educat ing doctors about their benefits. Brief for Respondent Pharmaceutical Research and Manufacturers of America 54–55. Such programs have been in effect for some time in Vermont or other States, without indication that they have prevented the imbalanced sales tactics at which Vermont’s statute takes aim. See, Written Statement of Jerry Avorn &
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Justice Breyer
| 2,011 | 2 |
dissenting
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Sorrell v. IMS Health Inc.
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https://www.courtlistener.com/opinion/219616/sorrell-v-ims-health-inc/
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statute takes aim. See, Written Statement of Jerry Avorn & Aaron Kesselheim, CA2 App. 4310; Doc. 414, at 60–61. And in any event, such laws do not help protect prescriber privacy. Vermont has thus developed a record that sufficiently shows that its statute meaningfully furthers substantial state interests. Neither the majority nor respondents suggests any equally effective “more limited” restriction. And the First Amendment harm that Vermont’s statute works is, at most, modest. I consequently conclude that, even if we apply an “intermediate” test such as that in Central this statute is constitutional. IV What about the statute’s third restriction, providing that “[p]harmaceutical manufacturers and pharmaceutical marketers” may not “use prescriber-identifiable informa tion for marketing or promoting a prescription drug unless the prescriber consents”? Vt. Stat. Ann., Tit. 18, In principle, I should not reach this question. That is because respondent pharmaceutical manufacturers, marketers, and data miners seek a de Cite as: 564 U. S. (2011) 23 BREYER, J., dissenting claratory judgment and injunction prohibiting the en forcement of this statute. See 28 U.S. C. App. 49– 128. And they have neither shown nor claimed that they could obtain significant amounts of “prescriber-identifiable information” if the first two prohibitions are valid. If, as I believe, the first two statutory prohibitions (related to selling and disclosing the information) are valid, then the dispute about the validity of the third provision is not “ ‘real and substantial’ ” or “ ‘definite and concrete.’ ” MedImmune, (2007) (quoting Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240–241 (1937)) (Article III does not permit courts to entertain such disputes). The Court, however, strikes down all three provisions, and so I add that I disagree with the majority as to the constitutionality of the third restriction as well—basically for the reasons I have already set out. The prohibition against pharmaceutical firms using this prescriber identifying information works no more than modest First Amendment harm; the prohibition is justified by the need to ensure unbiased sales presentations, prevent unneces sarily high drug costs, and protect the privacy of prescrib ing physicians. There is no obvious equally effective, more limited alternative. V In sum, I believe that the statute before us satisfies the “intermediate” standards this Court has applied to restric tions on commercial speech. A fortiori it satisfies less demanding standards that are more appropriately applied in this kind of commercial regulatory case—a case where the government seeks typical regulatory ends (lower drug prices, more balanced sales messages) through the use of ordinary regulatory means (limiting the commercial use of data gathered pursuant to a
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Justice Breyer
| 2,011 | 2 |
dissenting
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Sorrell v. IMS Health Inc.
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https://www.courtlistener.com/opinion/219616/sorrell-v-ims-health-inc/
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(limiting the commercial use of data gathered pursuant to a regulatory mandate). The speech-related consequences here are indirect, incidental, 24 SORRELL v. IMS HEALTH INC. BREYER, J., dissenting and entirely commercial. See at 6–9. The Court reaches its conclusion through the use of important First Amendment categories—“content-based,” “speaker-based,” and “neutral”—but without taking full account of the regulatory context, the nature of the speech effects, the values these First Amendment categories seek to promote, and prior precedent. See at 2–6, 9–13, 17. At best the Court opens a Pandora’s Box of First Amendment challenges to many ordinary regulatory practices that may only incidentally affect a commercial message. See, at 7–8, 9–11. At worst, it re awakens Lochner’s pre-New Deal threat of substituting judicial for democratic decisionmaking where ordinary economic regulation is at issue. See Central 447 U.S., at 589 Regardless, whether we apply an ordinary commercial speech standard or a less demanding standard, I believe Vermont’s law is consistent with the First Amendment. And with respect, I dissent
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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https://www.courtlistener.com/opinion/118401/seling-v-young/
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Washington State's Community Protection ct of 1990 authorizes the civil commitment of "sexually violent predators," persons who suffer from a mental abnormality or personality disorder that makes them likely to engage in predatory acts of sexual violence. et seq. Respondent, ndre Brigham is confined as a sexually violent predator at the Special Commitment Center (Center), for which petitioner is the superintendent. fter respondent's challenges to his commitment in state court proved largely unsuccessful, he instituted a habeas action under 28 U.S. C. 2254, seeking release from confinement. The Washington Supreme Court had already held that the ct is civil, In re and this Court held a similar commitment scheme for sexually violent predators in Kansas to be civil on its face, The Court of ppeals for the Ninth Circuit nevertheless concluded that respondent could challenge the statute as being punitive "as applied" to him in violation of the *254 Double Jeopardy and Ex Post Facto Clauses, and remanded the case to the District Court for an evidentiary hearing. I Washington State's Community Protection ct of 1990 (ct) was a response to citizens' concerns about laws and procedures regarding sexually violent offenders. One of the ct's provisions authorizes civil commitment of such offenders. et seq. The ct defines a sexually violent predator as someone who has been convicted of, or charged with, a crime of sexual violence and who suffers from a mental abnormality or personality disorder that makes the person likely to engage in predatory acts of sexual violence if not confined in a secure facility. 71.09.020(1) The statute reaches prisoners, juveniles, persons found incompetent to stand trial, persons found not guilty by reason of insanity, and persons at any time convicted of a sexually violent offense who have committed a recent overt act. 71.09.030. Generally, when it appears that a person who has committed a sexually violent offense is about to be released from confinement, the prosecuting attorney files a petition alleging that that person is a sexually violent predator. That filing triggers a process for charging and trying the person as a sexually violent predator, during which he is afforded a panoply of protections including counsel and experts (paid for by the State in cases of indigency), a probable cause hearing, and trial by judge or jury at the individual's option. 71.09.040-71.09.050. t trial, the State bears the burden to prove beyond a reasonable doubt that the person is a sexually violent predator. 71.09.060(1). Upon the finding that a person is a sexually violent predator, he is committed for control, care, and treatment to the custody of the
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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for control, care, and treatment to the custody of the department of social and health services. Once confined, the person has a right to adequate care *255 and individualized treatment. 71.09.080(2). The person is also entitled to an annual examination of his mental condition. 71.09.070. If that examination indicates that the individual's condition is so changed that he is not likely to engage in predatory acts of sexual violence, state officials must authorize the person to petition the court for conditional release or discharge. 71.09.090(1). The person is entitled to a hearing at which the State again bears the burden of proving beyond a reasonable doubt that he is not safe to be at large. The person may also independently petition the court for release. 71.09.090(2). t a show cause hearing, if the court finds probable cause to believe that the person is no longer dangerous, a full hearing will be held at which the State again bears the burden of proof. The ct also provides a procedure to petition for conditional release to a less restrictive alternative to confinement. 71.09.090. Before ordering conditional release, the court must find that the person will be treated by a state certified sexual offender treatment provider, that there is a specific course of treatment, that housing exists that will be sufficiently secure to protect the community, and that the person is willing to comply with the treatment and supervision requirements. 71.09.092. Conditional release is subject to annual review until the person is unconditionally released. 71.09.096, 71.09.098. B Respondent, ndre Brigham was convicted of six rapes over three decades. pp. to Pet. for Cert. 33a. was scheduled to be released from prison for his most recent conviction in October 1990. One day prior to his scheduled release, the State filed a petition to commit as a sexually violent predator. at 32a. t the commitment hearing, 's mental health experts testified that there is no mental disorder that makes a person likely to reoffend and that there is no way to predict accurately who will reoffend. The State called an expert *256 who testified, based upon a review of 's records, that suffered from a severe personality disorder not otherwise specified with primarily paranoid and antisocial features, and a severe paraphilia, which would be classified as either paraphilia sexual sadism or paraphilia not otherwise specified (rape). See generally merican Psychiatric ssociation, Diagnostic and Statistical Manual of Mental Disorders 522-523, 530, 532, 634, 645-646, 673 (4th ed. 1994). In the state expert's opinion, severe paraphilia constituted a mental abnormality under the ct. The State's expert concluded
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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a mental abnormality under the ct. The State's expert concluded that 's condition, in combination with the personality disorder, the span of time during which committed his crimes, his recidivism, his persistent denial, and his lack of empathy or remorse, made it more likely than not that he would commit further sexually violent acts. The victims of 's rapes also testified. The jury unanimously concluded that was a sexually violent predator. and another individual appealed their commitments in state court, arguing that the ct violated the Double Jeopardy, Ex Post Facto, Due Process, and Equal Protection Clauses of the Federal Constitution. In major respects, the Washington Supreme Court held that the ct is constitutional. In re To the extent the court concluded that the ct violated due process and equal protection principles, those rulings are reflected in subsequent amendments to the ct. See Part I, The Washington court reasoned that the claimants' double jeopardy and ex post facto claims hinged on whether the ct is civil or criminal in nature. Following this Court's precedents, the court examined the language of the ct, the legislative history, and the purpose and effect of the statutory scheme. The court found that the legislature clearly intended to create a civil scheme both in the statutory language and legislative history. The court then turned to *257 examine whether the actual impact of the ct is civil or criminal. The ct, the court concluded, is concerned with treating committed persons for a current mental abnormality, and protecting society from the sexually violent acts associated with that abnormality, rather than being concerned with criminal culpability. The court distinguished the goals of incapacitation and treatment from the goal of punishment. The court found that the Washington ct is designed to further legitimate goals of civil confinement and that the claimants had failed to provide proof to the contrary. -1000. The ct spawned several other challenges in state and federal court, two of which bear mention. Richard Turay, committed as a sexually violent predator, filed suit in Federal District Court against Center officials under Rev. Stat. 19, 42 U.S. C. 1983, alleging unconstitutional conditions of confinement and inadequate treatment at the Center. In 1994, a jury concluded that the Center had failed to provide constitutionally adequate mental health treatment. pp. 64-68. The court ordered officials at the Center to bring the institution up to constitutional standards, appointing a Special Master to monitor progress at the Center. The Center currently operates under an injunction. See also Brief for Petitioner 8-9. Turay also appealed his commitment as a sexually violent predator
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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Turay also appealed his commitment as a sexually violent predator in state court, claiming, among other things, that the conditions of confinement at the Center rendered the Washington ct punitive "as applied" to him in violation of the Double Jeopardy Clause. The Washington Supreme Court ruled that Turay's commitment was valid. In re Turay, The court explained that in it had concluded that the ct is The court also noted that this Court had recently held Kansas' Sexually Violent Predator ct, nearly identical to Washington's ct, *258 to be civil on its face. The Washington Supreme Court rejected Turay's theory of double jeopardy, reasoning that the double jeopardy claim must be resolved by asking whether the ct itself is ). The court concluded that Turay's proper remedy for constitutional violations in conditions of confinement at the Center was his 1983 action for damages and injunctive C That brings us to the action before this Court. In 1994, after unsuccessful challenges to his confinement in state court, filed ahabeas action under 28 U.S. C. 2254 against the superintendent of the Center. contended that the ct was unconstitutional and that his confinement was illegal. He sought immediate release. The District Court granted the writ, concluding that the ct violated substantive due process, that the ct was criminal rather than civil, and that it violated the double jeopardy and ex post facto guarantees of the Constitution. The superintendent appealed. While the appeal was pending, this Court decided which held that Kansas' Sexually Violent Predator ct, on its face, met substantive due process requirements, was nonpunitive, and thus did not violate the Double Jeopardy and Ex Post Facto Clauses. The Ninth Circuit Court of ppeals remanded 's case to the District Court for reconsideration in light of On remand, the District Court denied 's petition. appealed and the Ninth Circuit reversed and remanded in part and affirmed in part. The Ninth Circuit affirmed the District Court's ruling that 's confinement did not violate the substantive due process requirement that the State prove mental illness *259 and dangerousness to justify confinement. The Court of ppeals also left undisturbed the District Court's conclusion that the ct meets procedural due process and equal protection guarantees, and the District Court's rejection of 's challenges to his commitment proceedings. -877. did not seek a petition for a writ of certiorari to the Ninth Circuit for its decision affirming the District Court in these respects, and accordingly, those issues are not before this Court. The Ninth Circuit reversed the District Court's determination that because the Washington ct is civil, 's
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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Court's determination that because the Washington ct is civil, 's double jeopardy and ex post facto claims must fail. The "linchpin" of 's claims, the court reasoned, was whether the ct was punitive "as applied" to The court did not read this Court's decision in to preclude the possibility that the ct could be punitive as applied. The court reasoned that actual conditions of confinement could divest a facially valid statute of its civil label upon a showing by the clearest proof that the statutory scheme is punitive in effect. The Court of ppeals reviewed 's claims that conditions of confinement at the Center were punitive and did not comport with due process. alleged that for seven years, he had been subject to conditions more restrictive than those placed on true civil commitment detainees, and even state prisoners. The Center, located wholly within the perimeter of a larger Department of Corrections (DOC) facility, relied on the DOC for a host of essential services, including library services, medical care, food, and security. More recently, claimed, the role of the DOC had increased to include daily security "walk-throughs." contended that the conditions and restrictions at the Center were not reasonably related to a legitimate nonpunitive goal, as residents were abused, confined to their rooms, subjected to random searches of their rooms and units, and placed under excessive security. *260 also contended that conditions at the Center were incompatible with the ct's treatment purpose. The Center had a policy of videotaping therapy sessions and withholding privileges for refusal to submit to treatment. The Center residents were housed in units that, according to the Special Master in the Turay litigation, were clearly inappropriate for persons in a mental health treatment program. The Center still lacked certified sex offender treatment providers. Finally, there was no possibility of release. courtappointed resident advocate and psychologist concluded in his final report that because the Center had not fundamentally changed over so many years, he had come to suspect that the Center was designed and managed to punish and confine individuals for life without any hope of release to a less restrictive setting. 192 F.3d, See also mended Petition for Writ of Habeas Corpus, Supplemental Brief on Remand, and Motion to lter Judgment 4-5, 8-9, 11-12, 15, 20, 24-26, in No. C94-480C (WD Wash.), Record, Doc. Nos. 57, 155, and 167. The Ninth Circuit concluded that "[b]y alleging that [the Washington ct] is punitive as applied, alleged facts which, if proved, would entitle him to " 192 F.3d, The court remanded the case to the District Court for a
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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https://www.courtlistener.com/opinion/118401/seling-v-young/
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court remanded the case to the District Court for a hearing to determine whether the conditions at the Center rendered the ct punitive as applied to This Court granted the petition for a writ of certiorari, to resolve the conflict between the Ninth Circuit Court of ppeals and the Washington Supreme Court. Compare with In re Turay, II s the Washington Supreme Court held and the Ninth Circuit acknowledged, we proceed on the understanding that the Washington ct is civil in nature. The Washington ct is strikingly similar to a commitment scheme we reviewed *261 four Terms ago in In fact, Kansas patterned its ct after Washington's. See In re In we explained that the question whether an ct is civil or punitive in nature is initially one of statutory ). court must ascertain whether the legislature intended the statute to establish civil proceedings. court will reject the legislature's manifest intent only where a party challenging the ct provides the clearest proof that the statutory scheme is so punitive in either purpose or effect as to negate the State's intention. ). We concluded that the confined individual in that case had failed to satisfy his burden with respect to the Kansas ct. We noted several factors: The ct did not implicate retribution or deterrence; prior criminal convictions were used as evidence in the commitment proceedings, but were not a prerequisite to confinement; the ct required no finding of scienter to commit a person; the ct was not intended to function as a deterrent; and although the procedural safeguards were similar to those in the criminal context, they did not alter the character of the scheme. -365. We also examined the conditions of confinement provided by the ct. The Court was aware that sexually violent predators in Kansas were to be held in a segregated unit within the prison system. at We explained that the ct called for confinement in a secure facility because the persons confined were dangerous to the community. We noted, however, that conditions within the unit were essentially the same as conditions for other involuntarily committed persons in mental hospitals. Moreover, confinement under the ct was not necessarily indefinite in duration. Finally, we observed that in addition to protecting the public, the ct also provided treatment for sexually violent predators. *262 at 365-. We acknowledged that not all mental conditions were treatable. For those individuals with untreatable conditions, however, we explained that there was no federal constitutional bar to their civil confinement, because the State had an interest in protecting the public from dangerous individuals with treatable
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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https://www.courtlistener.com/opinion/118401/seling-v-young/
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interest in protecting the public from dangerous individuals with treatable as well as untreatable conditions. Our conclusion that the Kansas ct was "nonpunitive thus remove[d] an essential prerequisite for both ' double jeopardy and ex post facto claims." Since deciding this Court has reaffirmed the principle that determining the civil or punitive nature of an ct must begin with reference to its text and legislative history. Hudson v.United States, In Hudson, which involved a double jeopardy challenge to monetary penalties and occupational debarment, this Court expressly disapproved of evaluating the civil nature of an ct by reference to the effect that ct has on a single individual. Instead, courts must evaluate the question by reference to a variety of factors "`considered in relation to the statute on its face' "; the clearest proof is required to override legislative intent and conclude that an ct denominated civil is punitive in purpose or effect. ). With this in mind, we turn to the Court of ppeals' determination that respondent could raise an "as-applied" challenge to the ct on double jeopardy and ex post facto grounds and seek release from confinement. Respondent essentially claims that the conditions of his confinement at the Center are too restrictive, that the conditions are incompatible with treatment, and that the system is designed to result in indefinite confinement. Respondent's claims are in many respects like the claims presented to the Court in where we concluded that the conditions of confinement were largely explained by the State's goal to incapacitate, not to punish. -. Nevertheless, *263 we do not deny that some of respondent's allegations are serious. Nor do we express any view as to how his allegations would bear on a court determining in the first instance whether Washington's confinement scheme is Here, we evaluate respondent's allegations as presented in a double jeopardy and ex post facto challenge under the assumption that the ct is We hold that respondent cannot obtain release through an "as-applied" challenge to the Washington ct on double jeopardy and ex post facto grounds. We agree with petitioner that an "as-applied" analysis would prove unworkable. Such an analysis would never conclusively resolve whether a particular scheme is punitive and would thereby prevent a final determination of the scheme's validity under the Double Jeopardy and Ex Post Facto Clauses. Brief for Petitioner 30; Reply Brief for Petitioner 9. Unlike a fine, confinement is not a fixed event. s petitioner notes, it extends over time under conditions that are subject to change. The particular features of confinement may affect how a confinement scheme is evaluated
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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https://www.courtlistener.com/opinion/118401/seling-v-young/
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of confinement may affect how a confinement scheme is evaluated to determine whether it is civil rather than punitive, but it remains no less true that the query must be answered definitively. The civil nature of a confinement scheme cannot be altered based merely on vagaries in the implementation of the authorizing statute. Respondent contends that the Ninth Circuit's "as-applied" analysis comports with this Court's precedents. He points out that this Court has considered conditions of confinement in evaluating the validity of confinement schemes in the past. Brief for Respondent 11-16, 29 ; United ; llen v. ; ). ll of those cases, however, presented the question whether the ct at issue was punitive. Permitting respondent's as-applied challenge would invite an end run around the Washington Supreme Court's decision that the *264 ct is civil in circumstances where a direct attack on that decision is not before this Court. Justice Thomas, concurring in the judgment, takes issue with our view that the question before the Court concerns an as-applied challenge to a civil ct. He first contends that respondent's challenge is not a true "as-applied" challenge because respondent does not claim that the statute "`by its own terms' is unconstitutional as applied but rather that the statute is not being applied according to its terms at all." Post, at 271. We respectfully disagree. The ct requires "adequate care and individualized treatment," Wash. Rev. Code 71.09.080(2) but the ct is silent with respect to the confinement conditions required at the Center, and that is the source of many of respondent's complaints, see Justice Thomas next contends that we incorrectly assume that the ct is civil, instead of viewing the ct as "`otherwise civil,' or civil `on its face.' " Post, at 270 (emphasis added by Thomas, J.). However the Washington ct is described, our analysis in this case turns on the prior finding by the Washington Supreme Court that the ct is civil, and this Court's decision in that a nearly identical ct was Petitioner could not have claimed that the Washington ct is "otherwise" or "facially" civil without relying on those prior decisions. In dissent, Justice Stevens argues that we "incorrectly assum[e]" that the ct is "necessarily civil," post, at 275, but the case has reached this Court under that very assumption. The Court of ppeals recognized that the ct is civil, and treated respondent's claim as an individual, "as-applied" challenge to the ct. The Court of ppeals then remanded the case to the District Court for an evidentiary hearing to determine respondent's conditions of confinement. Contrary to the dissent's
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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to determine respondent's conditions of confinement. Contrary to the dissent's characterization of the case, the Court of ppeals did not purport to undermine the validity of the Washington ct as a civil confinement scheme. The court did not conclude that respondent's allegations, if substantiated, *265 would be sufficient to refute the Washington Supreme Court's conclusion that the ct is civil, and to require the release of all those confined under its authority. The Ninth Circuit addressed only respondent's individual case, and we do not decide claims that are not presented by the decision below. Matsushita Elec. Industrial We reject the Ninth Circuit's "asapplied" analysis for double jeopardy and ex post facto claims as fundamentally flawed. III Our decision today does not mean that respondent and others committed as sexually violent predators have no remedy for the alleged conditions and treatment regime at the Center. The text of the Washington ct states that those confined under its authority have the right to adequate care and individualized treatment. Wash. Rev. Code 71.09.080(2) ; Brief for Petitioner 14. s petitioner acknowledges, if the Center fails to fulfill its statutory duty, those confined may have a state law cause of action. Tr. of Oral rg. 6, 10-11, 52. It is for the Washington courts to determine whether the Center is operating in accordance with state law and provide a remedy. State courts, in addition to federal courts, remain competent to adjudicate and remedy challenges to civil confinement schemes arising under the Federal Constitution. s noted above, the Washington Supreme Court has already held that the Washington ct is civil in nature, designed to incapacitate and to treat. In re -1000. ccordingly, due process requires that the conditions and duration of confinement under the ct bear some reasonable relation to the purpose for which persons are committed. ; berg v. Romeo, ; Finally, we note that a 1983 action against the Center is pending in the Western District of Washington. See *266 at 257. The Center operates under an injunction that requires it to adopt and implement a plan for training and hiring competent sex offender therapists; to improve relations between residents and treatment providers; to implement a treatment program for residents containing elements required by prevailing professional standards; to develop individual treatment programs; and to provide a psychologist or psychiatrist expert in the diagnosis and treatment of sex offenders to supervise the staff. pp. 67. Special Master has assisted in bringing the Center into compliance with the injunction. In its most recent published opinion on the matter, the District Court noted some progress at
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Justice O'Connor
| 2,001 | 14 |
majority
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Seling v. Young
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on the matter, the District Court noted some progress at the Center in meeting the requirements of the injunction. -1155. This case gives us no occasion to consider how the civil nature of a confinement scheme relates to other constitutional challenges, such as due process, or to consider the extent to which a court may look to actual conditions of confinement and implementation of the statute to determine in the first instance whether a confinement scheme is civil in nature. Justice Scalia, concurring, contends that conditions of confinement are irrelevant to determining whether an ct is civil unless state courts have interpreted the ct as permitting those conditions. By contrast, Justice Stevens would consider conditions of confinement at any time in order to gain "full knowledge of the effects of the statute." Post, at 277. Whether a confinement scheme is punitive has been the threshold question for some constitutional challenges. See, e. g., ; United ; llen v. (Fifth mendment privilege against self-incrimination). Whatever these cases may suggest about the relevance of conditions of confinement, they do not endorse the approach of the dissent, which would render the inquiry into the "effects *267 of the statute," post, at 277, completely open ended. In one case, the Court refused to consider alleged confinement conditions because the parties had entered into a consent decree to improve conditions. Flores, The Court presumed that conditions were in compliance with the requirements of the consent decree. In another case, the Court found that anecdotal case histories and a statistical study were insufficient to render a regulatory confinement scheme punitive. In such cases, we have decided whether a confinement scheme is punitive notwithstanding the inherent difficulty in ascertaining current conditions and predicting future events. We have not squarely addressed the relevance of conditions of confinement to a first instance determination, and that question need not be resolved here. n ct, found to be civil, cannot be deemed punitive "as applied" to a single individual in violation of the Double Jeopardy and Ex Post Facto Clauses and provide cause for release. The judgment of the United States Court of ppeals for the Ninth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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The respondents were convicted of introducing spirituous beverages into Indian country, in violation of 18 U.S. C. 1154.[1] The Court of Appeals for the Tenth *546 Circuit reversed. We granted certiorari, in order to consider the Solicitor General's contentions that 18 U.S. C. 1154 is not unconstitutionally vague, that Congress has the constitutional authority to control the sale of alcoholic beverages by non-Indians on fee-patented land within the boundaries of an Indian reservation, and that Congress could validly make a delegation of this authority to a reservation's tribal council. We reverse the Court of Appeals. I The Wind River Reservation was established by treaty in 1868. Located in a rather arid portion of central Wyoming, at least some of its 2,300,000 acres have been described by Mr. Justice Cardozo as "fair and fertile," Shoshone It straddles the Wind River, with its remarkable canyon, and lies in a mile-high basin at the foot of the Wind River Mountains, whose rugged, glaciated peaks and ridges form a portion of the Continental Divide.[2] The reservation is occupied by the Shoshone and Arapahoe Tribes. Although these tribes were once "ancestral foes," ibid., they are today jointly known as the Wind River Tribes. As a result of various patents, substantial tracts of non-Indian-held land are scattered within the reservation's boundaries. *547 It was on such non-Indian land that respondents Martin and Margaret Mazurie operated their bar, which did business under the corporate name of the Blue Bull, Inc. Before 1953 federal law generally prohibited the introduction of alcoholic beverages into "Indian country." 18 U.S. C. 1154 (a). "Indian country" was defined by 18 U.S. C. 1151 to include non-Indian-held lands "within the limits of any Indian reservation."[3] In 1949, the term was given a narrower meaning, insofar as relevant to the liquor prohibition, so as to exclude both fee-patented lands within "non-Indian communities" and rights-of-way through reservations. Act of May 24, 1949, 18 U.S. C. 1154 (c), The quoted term is not defined, a fact which creates problems with which we shall shortly deal. In 1953 Congress passed local-option legislation allowing Indian tribes, with the approval of the Secretary of the Interior, to regulate the introduction of liquor into Indian country, so long as state law was not violated. Act of Aug. 15, 1953, 18 U.S. C. 1161.[4] The Wind River Tribes responded to this option by adopting an ordinance which permitted *548 liquor sales on the reservation if made in accordance with Wyoming law. When the Blue Bull originally opened, a liquor license had been issued to it by Fremont County. Wyo., and its
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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been issued to it by Fremont County. Wyo., and its operation was therefore consistent with that tribal ordinance. But in 1971 the Wind River Tribes adopted a new liquor ordinance, Ordinance No. 26.[5] That ordinance required that retail liquor outlets within Indian country obtain both tribal and state licenses. In 1972, the Mazuries applied for a tribal license, after warnings that they would be subject to criminal charges if they continued to operate without one. The tribes held a public hearing which Martin Mazurie and the Mazuries' lawyer attended. Witnesses protested grant of the license, complaining of singing and shooting at late hours, disturbances of elderly residents of a nearby housing development, and the permitting of Indian minors in the bar. The application was denied. Thereafter, the Mazuries closed the Blue Bull. Three weeks later they reopened it. It remained in operation for approximately a year, until federal officers seized its alcoholic beverages, and this criminal prosecution was initiated.[6] The case was tried to the District Court without a jury. Since most of the factual issues were disposed of by stipulations,[7] the testimony at trial primarily dealt with *549 whether the bar was within "Indian country." On the basis of testimony about the Blue Bull's location, and about the racial composition of residents of the surrounding area, the court concluded that the bar was so located. Holding that federal authority could reach non-Indians located on privately held land within a reservation's boundaries, the court entered judgments of conviction. Each respondent was fined $100. The Court of Appeals reversed the convictions. It concluded that the prosecution had not carried its burden of proving beyond a reasonable doubt that the bar was not excluded from Indian country by the 1154 (c) exception for "fee-patented lands in non-Indian communities."[8] This conclusion was tied directly to the more basic holding: "[T]he terminology of `non-Indian community' is not capable of sufficiently precise definition to serve as *550 an element of the crime herein considered The statute is thus fatally defective by reason of this indefinite and vague terminology." As a second basis for reversal, the court held that insofar as 18 U.S. C. 1161 authorized Indian tribes to adopt ordinances controlling the introduction by non-Indians of alcoholic beverages onto non-Indian land, it was an invalid congressional attempt to delegate authority. The Court of Appeals also suggested that Congress itself could not regulate the sale of alcohol by non-Indians on fee-patented non-Indian lands within Indian reservations. II It is well established that vagueness challenges to statutes which do not involve First Amendment freedoms must be examined
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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which do not involve First Amendment freedoms must be examined in the light of the facts of the case at hand. United In determining whether 1154 (c) is unconstitutionally vague as to respondents, we must therefore first consider the evidence as to the location of the Blue Bull.[9] *551 The evidence showed that the bar was located on the outskirts of Fort Washakie, Wyo., an unincorporated village bearing the name of the man who was chief of the Shoshones during their early years on the Wind River Reservation. Shoshone 299 U. S., at ; at 3-4. Fort Washakie is the location of the Wind River Agency of the Bureau of Indian Affairs, and of the Tribal Headquarters of the Wind River Tribes. One witness testified that the village was an "Indian community." App 49. The evidence also showed that of the 212 families living within a 20-square-mile area roughly centered on the Blue Bull, 170 were Indian families, 41 were non-Indians, and one was mixed. A large-scale United Geological Survey map was introduced to show the limits of this housing survey. It indicates that the survey included all settlements within the Fort Washakie area, and that the nearest not-included concentrations of housing were at Saint James Church and Ethete, some four miles beyond the boundaries of the survey and some six miles from Fort Washakie. The evidence also established that the state school serving Fort Washakie, and located about two and one-half miles from the Blue Bull, had a total enrollment of 243 students, 223 of whom were Indian. Other evidence bearing on whether the Blue Bull was located in a non-Indian community was Martin Mazurie's testimony that the bar served both Indians and non-Indians, and that: "We are kind of out there by ourselves, you know." App. 70. A transcript of the hearing on *552 the Mazuries' application to the tribes for a retail liquor license was also admitted at the trial. That transcript indicates that the Blue Bull was located near a public housing development populated largely if not entirely by Indians. Residents of this development complained that persons leaving the bar late at night, and for one reason or another having either no transportation or no destination, would wander into the development. There was no testimony that the Blue Bull was in a non-Indian community. The defense did obtain acknowledgments by prosecution witnesses that they could not precisely state the boundaries of the Fort Washakie Indian community. Otherwise, examination by the defense was directed at establishing that the term "Indian" was without precise meaning, and that the
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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the term "Indian" was without precise meaning, and that the State of Wyoming generally had jurisdiction over non-Indians and their lands within the reservation. We think that the foregoing evidence was sufficient to justify the District Court's implied conclusion that Fort Washakie and its surrounding settlements did not compose a non-Indian community. We do not read the opinion of the Court of Appeals as reaching a conclusion contrary to that which we have just stated. That court instead based its decision on the proposition that such proof did not go far enough, a view generated by its opinion of the requirements this statute must meet in order to avoid the vice of vagueness. The Court of Appeals was looking for proof beyond a reasonable doubt of precisely defined concepts of "Indian" and "community." We gather that it expected persons treated as "Indians" in the housing and school surveys to be proved to satisfy a specific statutory definition. Similarly, it apparently expected that proof concerning the "community" should have conformed to some specific statutory definition, presumably one keyed to a geographical area with precise boundaries. *553 We believe that the Court of Appeals erred by holding that the Constitution requires proof of such precisely defined concepts. The prosecution was required to do no more than prove that the Blue Bull was not located in a non-Indian community, where that term has a meaning sufficiently precise for a man of average intelligence to "reasonably understand that his contemplated conduct is proscribed." United -33. Given the nature of the Blue Bull's location and surrounding population, the statute was sufficient to advise the Mazuries that their bar was not excepted from tribal regulation by virtue of being located in a non-Indian community.[10] III The Court of Appeals expressed doubt that "the Government has the power to regulate a business on the land it granted in fee without restrictions." Because that court went on to hold that even if Congress did possess such power, it could not be delegated to an Indian tribe, that court did not find it necessary to *554 resolve the issue of congressional power. We do, however, reach the issue, because we hereinafter conclude that federal authority was properly delegated to the Indian tribes. We conclude that federal authority is adequate, even though the lands were held in fee by non-Indians, and even though the persons regulated were non-Indians. Article I, 8, of the Constitution gives Congress power "[t]o regulate Commerce with foreign Nations, and among the several and with the Indian Tribes." This Court has repeatedly held that this clause
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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Indian Tribes." This Court has repeatedly held that this clause affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.[11]United v. Holliday, ; United v. Forty-three Gallons of Whiskey, ; Ex parte Webb, ; Perrin v. United ; ; United v. Nice, Perrin v. United demonstrates the controlling principle. It dealt with the sale of intoxicating beverages within premises owned by non-Indians, on privately held land in an organized non-Indian municipality. The land originally had been included in the Yankton Sioux Indian Reservation, but had been ceded to the United The cession agreement, as ratified and confirmed by Congress, specified that alcoholic beverages would never be sold on the ceded land. The land *555 was subsequently opened to private non-Indian settlers. In upholding Perrin's conviction, this Court stated: "The power of Congress to prohibit the introduction of intoxicating liquors into an Indian reservation, wheresoever situate, and to prohibit traffic in such liquors with tribal Indians, whether upon or off a reservation and whether within or without the limits of a State, does not admit of any doubt. It arises in part from the clause in the Constitution investing Congress with authority `to regulate commerce with foreign nations, and among the several and with the Indian tribes,' and in part from the recognized relation of tribal Indians to the Federal Government." 232 U.S., at is a more recent indication of congressional authority over events occurring on non-Indian land within a reservation. The case concerned an Indian's challenge to a state burglary conviction. The Indian contended that because the offense took place within "Indian country," it was within the exclusive jurisdiction of the United by virtue of 18 U.S. C. 1153. This Court agreed, despite the fact that the crime occurred on land patented in fee to non-Indians. While the opinion did not address the constitutional issue, it did reject a variety of statutory arguments for excluding the crime's situs from 18 U.S. C. 1151's definition of "Indian country." Of significance for our purposes is the fact that Congress' authority to define "Indian country" so broadly, and to supersede state jurisdiction within the defined area, went both unchallenged by the parties and unquestioned by this Court. We hold that neither the Constitution nor our previous cases leave any room for doubt that Congress possesses *556 the authority to regulate the distribution of alcoholic beverages by establishments such as the Blue Bull. IV The Court of Appeals said, however, that even if
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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IV The Court of Appeals said, however, that even if Congress possessed authority to regulate the Blue Bull, it could not delegate such authority to the Indian tribes. The court reasoned as follows: "The tribal members are citizens of the United It is difficult to see how such an association of citizens could exercise any degree of governmental authority or sovereignty over other citizens who do not belong, and who cannot participate in any way in the tribal organization. The situation is in no way comparable to a city, county, or special district under state laws. There cannot be such a separate `nation' of United citizens within the boundaries of the United which has any authority, other than as landowners, over individuals who are excluded as members. "The purported delegation of authority to the tribal officials contained in 18 U.S. C. 1161 is therefore invalid. Congress cannot delegate its authority to a private, voluntary organization, which is obviously not a governmental agency, to regulate a business on privately owned lands, no matter where located. It is obvious that the authority of Congress under the Constitution to regulate commerce with Indian Tribes is broad, but it cannot encompass the relationships here concerned." This Court has recognized limits on the authority of Congress to delegate its legislative power. Panama Refining Those limitations are, however, less stringent in cases where the entity * exercising the delegated authority itself possesses independent authority over the subject matter. United v. Curtiss-Wright Export Thus it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory, ; they are "a separate people" possessing "the power of regulating their internal and social relations." United v. ; Cases such as and surely establish the proposition that Indian tribes within "Indian country" are a good deal more than "private, voluntary organizations," and they thus undermine the rationale of the Court of Appeals' decision. These same cases, in addition, make clear that when Congress delegated its authority to control the introduction of alcoholic beverages into Indian country, it did so to entities which possess a certain degree of independent authority over matters that affect the internal and social relations of tribal life. Clearly the distribution and use of intoxicants is just such a matter. We need not decide whether this independent authority is itself sufficient for the tribes to impose Ordinance No. 26. It is necessary only to state that the independent tribal authority is quite sufficient to protect Congress' decision to vest in tribal councils this portion
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Justice Rehnquist
| 1,975 | 19 |
majority
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United States v. Mazurie
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https://www.courtlistener.com/opinion/109134/united-states-v-mazurie/
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protect Congress' decision to vest in tribal councils this portion of its own authority "to regulate Commerce with the Indian tribes." Cf. United v. Curtiss-Wright Export The fact that the Mazuries could not become members of the tribe, and therefore could not participate in the tribal government, does not alter our conclusion. This claim, that because respondents are non-Indians Congress *558 could not subject them to the authority of the Tribal Council with respect to the sale of liquor,[12] is answered by this Court's opinion in In holding that the authority of tribal courts could extend over non-Indians, insofar as concerned their transactions on a reservation with Indians, we stated: "It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. The cases in this Court have consistently guarded the authority of Indian governments over their reservations. Congress recognized this authority in the Navajos in the Treaty of 1868, and has done so ever since. If this power is to be taken away from them, it is for Congress to do it. Lone" *559 For the foregoing reasons the judgment of the Court of Appeals must be reversed, and the convictions of respondents reinstated. Reversed.
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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0 * I agree with the Court that reducing the number of majority-minority districts within a State would not necessarily amount to retrogression barring preclearance under 5 of the Voting Rights Act of 1965. See ante, -482. The prudential objective of 5 is hardly betrayed if a State can show that a new districting shifts from supermajority districts, in which minorities can elect their candidates of choice by their own voting power, to coalition districts, in which minorities are in fact shown to have a similar opportunity when joined by predictably supportive nonminority voters. Cf. (explaining in the context of 2 that although "society's racial and ethnic cleavages sometimes necessitate majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice"). 1 Before a State shifts from majority-minority to coalition districts, however, the State bears the burden of proving that nonminority voters will reliably vote along with the minority. See, e. It must show not merely that minority voters in new districts may have some influence, but that minority voters will have effective influence translatable into probable election results comparable to what they enjoyed under the existing district scheme. And to demonstrate this, a State must do more than produce reports of minority voting age percentages; it must show that the probable voting behavior of nonminority voters will make coalitions with minorities a real prospect. See, e. Pildes, Is Voting-Rights Law Now at War With Itself? Social Science and Voting Rights in the 2000s, 80 N. C. L. Rev. 151, 1539 If the State's evidence fails to convince a factfinder that high racial polarization in voting is unlikely, or that high white crossover voting is likely, or that other political and demographic facts point to probable minority effectiveness, a reduction in supermajority districts must be treated as potentially and fatally retrogressive, the burden of persuasion always being on the State. 2 The District Court majority perfectly well understood all this and committed no error. Error enters this case here in this Court, whose majority unmoors 5 from any practical and administrable conception of minority influence that would rule out retrogression in a transition from majority-minority districts, and mistakes the significance of the evidence supporting the District Court's decision. II 3 The Court goes beyond recognizing the possibility of coalition districts as nonretrogressive alternatives to those with
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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possibility of coalition districts as nonretrogressive alternatives to those with majorities of minority voters when it redefines effective voting power in 5 analysis without the anchoring reference to electing a candidate of choice. It does this by alternatively suggesting that a potentially retrogressive redistricting could satisfy 5 if a sufficient number of so-called "influence districts," in addition to "coalitio[n] districts," were created, ante, at 483, 484, or if the new provided minority groups with an opportunity to elect a particularly powerful candidate, ante, at 483-484. On either alternative, the 5 requirement that voting changes be nonretrogressive is substantially diminished and left practically unadministrable. 4 * The Court holds that a State can carry its burden to show a nonretrogressive degree of minority "influence" by demonstrating that "`candidates elected without decisive minority support would be willing to take the minority's interests into account.'" Ante, at 482 ). But this cannot be right. 5 The history of 5 demonstrates that it addresses changes in state law intended to perpetuate the exclusion of minority voters from the exercise of political power. When this Court held that a State must show that any change in voting procedure is free of retrogression it meant that changes must not leave minority voters with less chance to be effective in electing preferred candidates than they were before the change. "[T]he purpose of 5 has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise." ; see, e. at - In addressing the burden to show no retrogression, therefore, "influence" must mean an opportunity to exercise power effectively. The Court, however, says that influence may be adequate to avoid retrogression from majority-minority districts when it consists not of decisive minority voting power but of sentiment on the part of politicians: influence may be sufficient when it reflects a willingness on the part of politicians to consider the interests of minority voters, even when they do not need the minority votes to be elected. The Court holds, in other words, that there would be no retrogression when the power of a voting majority of minority voters is eliminated, so long as elected politicians can be expected to give some consideration to minority interests. The power to elect a candidate of choice has been forgotten; voting power has been forgotten. It is very hard to see anything left of the standard of nonretrogression, and it is no surprise that the Court's cited precedential support for this reconception,
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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surprise that the Court's cited precedential support for this reconception, see ante, at 482, consists of a footnote from a dissenting opinion in and footnote dictum in a case from the Western District of Louisiana. 8 Indeed, to see the trouble ahead, one need only ask how on the Court's new understanding, state legislators or federal preclearance reviewers under 5 are supposed to identify or measure the degree of influence necessary to avoid the retrogression the Court nominally retains as the 5 touchstone. Is the test purely ad hominem, looking merely to the apparent sentiments of incumbents who might run in the new districts? Would it be enough for a State to show that an incumbent had previously promised to consider minority interests before voting on legislative measures? Whatever one looks to, however, how does one put a value on influence that falls short of decisive influence through coalition? Nondecisive influence is worth less than majority-minority control, but how much less? Would two influence districts offset the loss of one majority-minority district? Would it take three? Or four? The Court gives no guidance for measuring influence that falls short of the voting strength of a coalition member, let alone a majority of minority voters. Nor do I see how the Court could possibly give any such guidance. The Court's "influence" is simply not functional in the political and judicial worlds. B 9 Identical problems of comparability and administrability count at least as much against the Court's further gloss on nonretrogression, in its novel holding that a State may trade off minority voters' ability to elect a candidate of their choice against their ability to exert some undefined degree of influence over a candidate likely to occupy a position of official legislative power. See ante, at 483-484. The Court implies that one majority-minority district in which minority voters could elect a legislative leader could replace a larger number of majority-minority districts with ordinary candidates, without retrogression of overall minority voting strength. Under this approach to 5, a State may value minority votes in a district in which a potential committee chairman might be elected differently from minority votes in a district with ordinary candidates. 80 It is impossible to believe that Congress could ever have imagined 5 preclearance actually turning on any such distinctions. In any event, if the Court is going to allow a State to weigh minority votes by the ambitiousness of candidates the votes might be cast for, it is hard to see any stopping point. I suppose the Court would not go so far as to give
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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the Court would not go so far as to give extra points to an incumbent with the charisma to attract a legislative following, but would it value all committee chairmen equally? (The committee chairmen certainly would not.) And what about a legislator with a network of influence that has made him a proven dealmaker? Thus, again, the problem of measurement: is a shift from 10 majority-minority districts to 8 offset by a good chance that 1 of the 8 may elect a new Speaker of the House? 81 I do not fault the Court for having no answers to these questions, for there are no answers of any use under 5. The fault is more fundamental, and the very fact that the Court's interpretation of nonretrogression under 5 invites unanswerable questions points to the error of a 5 preclearance regime that defies reviewable administration. We are left with little hope of determining practically whether a districting shift to one party's overall political advantage can be expected to offset a loss of majority-minority voting power in particular districts; there will simply be greater opportunity to reduce minority voting strength in the guise of obtaining party advantage. 82 One is left to ask who will suffer most from the Court's new and unquantifiable standard. If it should turn out that an actual, serious burden of persuasion remains on the that rely on the new theory of influence should be guaranteed losers: nonretrogression cannot be demonstrated by districts with minority influence too amorphous for objective comparison. But that outcome is unlikely, and if in subsequent cases the Court allows the State's burden to be satisfied on the pretense that unquantifiable influence can be equated with majority-minority power, 5 will simply drop out as a safeguard against the "unremitting and ingenious defiance of the Constitution" that required the procedure of preclearance in the first place. South III 83 The District Court never reached the question the Court addresses, of what kind of influence districts (coalition or not) might demonstrate that a decrease in majority-minority districts was not retrogressive. It did not reach this question because it found that the State had not satisfied its burden of persuasion on an issue that should be crucial on any administrable theory:1 the State had not shown the possibility of actual coalitions in the affected districts that would allow any retreat from majority-minority districts without a retrogressive effect. This central evidentiary finding is invulnerable under the correct standard of review. 84 This Court's review of the District Court's factual findings is for clear error. See, e. ; Pleasant
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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factual findings is for clear error. See, e. ; Pleasant ; ; City of We have no business disturbing the District Court's ruling "simply because we would have decided the case differently," but only if based "on the entire evidence, [we are] left with the definite and firm conviction that a mistake has been committed." It is not, then, up to us to "decide whether Georgia's State Senate redistricting is retrogressive as compared to its previous, benchmark districting" Ante, at 466. Our sole responsibility is to see whether the District Court committed clear error in refusing to preclear the It did not. 85 * The District Court began with the acknowledgment (to which we would all assent) that the simple fact of a decrease in black voting age population (BVAP) in some districts is not alone dispositive about whether a proposed is retrogressive: "`Unpacking' African American districts may have positive or negative consequences for the statewide electoral strength of African American voters. To the extent that voting patterns suggest that minority voters are in a better position to join forces with other segments of the population to elect minority preferred candidates, a decrease in a district's BVAP may have little or no effect on minority voting strength." See ("[T]he Voting Rights Act allows states to adopt s that move minorities out of districts in which they formerly constituted a majority of the voting population, provided that racial divisions have healed to the point that numerical reductions will not necessarily translate into reductions in electoral power");2 8 The District Court recognized that the key to understanding the impact of drops in a district's BVAP on the minority group's "effective exercise of the electoral franchise," 425 U. S., at is the level of racial polarization. If racial elements consistently vote in separate blocs, decreasing the proportion of black voters will generally reduce the chance that the minority group's favored candidate will be elected; whereas in districts with low racial bloc voting or significant white crossover voting, a decrease in the black proportion may have no effect at all on the minority's opportunity to elect their candidate of choice. See, e. 195 F. Supp. 2d, ("[R]acial polarization is critically important because its presence or absence in the Senate Districts challenged by the United goes a long way to determining whether or not the decreases in BVAP and African American voter registration in those districts are likely to produce retrogressive effects"). 88 This indisputable recognition, that context determines the effect of decreasing minority numbers for purposes of the 5 enquiry, points to the nub
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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for purposes of the 5 enquiry, points to the nub of this case, and the District Court's decision boils down to a judgment about what the evidence showed about that context. The District Court found that the United had offered evidence of racial polarization in the contested districts,3 and it found that Georgia had failed to present anything relevant on that issue. Georgia, the District Court said, had "provided the court with no competent, comprehensive information regarding white crossover voting or of polarization in individual districts across the State." In particular, the District Court found it "impossible to extrapolate" anything about the level of racial polarization from the statistical submissions of Georgia's lone expert witness. And the panel majority took note that Georgia's expert "admitted on cross-examination" that his evidence simply did not address racial polarization: "the whole point of my analysis," the expert stated, "is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates." 89 Accordingly, the District Court explained that Georgia's expert: "made no attempt to address the central issue before the court: whether the State's proposal is retrogressive. He failed even to identify the decreases in BVAP that would occur under the proposed and certainly did not identify corresponding reductions in the electability of African American candidates of choice. The paucity of information in [the expert's] report thus leaves us unable to use his analysis to assess the expected change in African American voting strength statewide that will be brought by the proposed Senate" B 90 How is it, then, that the majority of this Court speaks of "Georgia's evidence that the Senate as a whole is not retrogressive," against which "the United did not introduce any evidence [in] rebut[tal]," ante, at 48? The answer is that the Court is not engaging in review for clear error. Instead, it is reweighing evidence de novo, discovering what it thinks the District Court overlooked, and drawing evidentiary conclusions the District Court supposedly did not see. The Court is mistaken on all points. 91 * Implicitly recognizing that evidence of voting behavior by majority voters is crucial to any showing of nonretrogression when minority numbers drop under a proposed the Court tries to find evidence to fill the record's gap. It says, for example, that "Georgia introduced evidence showing that approximately one-third of white voters would support a black candidate in [the contested] " Ante, at 4. In support of this claim, however, the majority focuses on testimony offered by Georgia's expert relating to crossover voting
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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on testimony offered by Georgia's expert relating to crossover voting in the pre-existing rather than proposed The District Court specifically noted that the expert did not calculate crossover voting under the proposed Indeed, in relying on this evidence the majority attributes a significance to it that Georgia's own expert disclaimed, as the District Court pointed out. See ("[I]t is impossible to extrapolate these voting patterns from Epstein's database. As Epstein admitted on cross-examination: the whole point of my analysis is not to look at polarization per se. The question is not whether or not blacks and whites in general vote for different candidates" ). 2 92 In another effort to revise the record, the Court faults the District Court, alleging that it "focused too narrowly on proposed Senate Districts 2, 12, and 26." Ante, at 485. In fact, however, it is Georgia that asked the District Court to consider only the contested districts, and the District Court explicitly refused to limit its review in any such fashion: "we reject the State's argument that this court's review is limited only to those districts challenged by the United and should not encompass the redistricting s in their entirety. [T]he court's review necessarily extends to the entire proposed" The District Court explained that it "is vested with the final authority to approve or disapprove the proposed change as a whole." "The question before us is whether the proposed Senate as a whole, has the `purpose or effect of denying or abridging the right to vote on account of race or color.'" ( 42 U.S. C. 193c). Though the majority asserts that "[t]he District Court ignored the evidence of numerous other districts showing an increase in black voting age population," ante, at 4, the District Court, in fact, specifically considered the parties' dispute over the statewide impact of the change in black voting age population. See, e. 3 93 In a further try to improve the record, the Court focuses on the testimony of certain lay witnesses, politicians presented by the State to support its claim that the Senate is not retrogressive. Georgia, indeed, relied heavily on the near unanimity of minority legislators' support for the But the District Court did not overlook this evidence; it simply found it inadequate to carry the State's burden of showing nonretrogression. The District Court majority explained that the "legislators' support is, in the end, far more probative of a lack of retrogressive purpose than of an absence of retrogressive effect." As against the politicians' testimony, the District Court had contrary "credible," evidence of retrogressive effect. This evidence
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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Court had contrary "credible," evidence of retrogressive effect. This evidence was the testimony of the expert witness presented by the United which "suggests the existence of highly racially polarized voting in the proposed districts," ib evidence of retrogressive effect to which Georgia offered "no competent" response, The District Court was clearly within bounds in finding that (1) Georgia's proposed decreased BVAP in the relevant districts, (2) the United offered evidence of significant racial polarization in those districts, and (3) Georgia offered no adequate response to this evidence. 94 The reasonableness of the District Court's treatment of the evidence is underscored in its concluding reflection that it was possible Georgia could have shown the to be nonretrogressive, but the evidence the State had actually offered simply failed to do that. "There are, without doubt, numerous other ways, given the limited evidence of racially polarized voting in State Senate and local elections, that Georgia could have met its burden of proof in this case. Yet, the court is limited to reviewing the evidence presented by the parties, and is compelled to hold that the State has not met its burden." "[T]he lack of positive racial polarization data was the gap at the center of the State's case [and] the evidence presented by [the] estimable [legislators] does not come close to filling that void." at 95 As must be plain, in overturning the District Court's thoughtful consideration of the evidence before it, the majority of this Court is simply rejecting the District Court's evidentiary finding in favor of its own. It is reweighing testimony and making judgments about the competence, interest, and character of witnesses. The Court is not conducting clear error review. 4 96 Next, the Court attempts to fill the holes in the State's evidence on retrogression by drawing inferences favorable to the State from undisputed statistics. See ante, at 48-489. This exercise comes no closer to demonstrating clear error than the others considered so far. 9 In the first place, the District Court has already explained the futility of the Court's effort. Knowing whether the number of majority BVAP districts increases, decreases, or stays the same under a proposed does not alone allow any firm conclusion that minorities will have a better, or worse, or unvarying opportunity to elect their candidates of choice. Any such inference must depend not only on trends in BVAP but on evidence of likely voter turnout among minority and majority groups, patterns of racial bloc voting, likelihood of white crossover voting, and so on.4 Indeed, the core holding of the Court today, with which I
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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the core holding of the Court today, with which I agree, that nonretrogression does not necessarily require maintenance of existing supermajority minority districts, turns on this very point; comparing the number of majority-minority districts under existing and proposed s does not alone reliably indicate whether the new is retrogressive. 98 Lack of contextual evidence is not, however, the only flaw in the Court's numerical arguments. Thus, in its first example, ante, at 48, the Court points out that under the proposed the number of districts with majority BVAP increases by one over the existing5 but the Court does not mention that the number of districts with BVAP over 55% decreases by four. See Record, Doc. No. 148, Pl. Exhs. 1D, 2C. Similarly, the Court points to an increase of two in districts with BVAP in the 30% to 50% range, along with a further increase of two in the 25% to 30% range. Ante, at 48. It fails to mention, however, that Georgia's own expert argued that 44.3% was the critical threshold for BVAP and the data on which the Court relies shows the number of districts with BVAP over 40% actually decreasing by one, see Record, Doc. No. 148, Pl. Exhs. 1D, 2C. My point is not that these figures conclusively demonstrate retrogression; I mean to say only that percentages tell us nothing in isolation, and that without contextual evidence the raw facts about population fail to get close to indicating that the State carried its burden to show no retrogression. They do not come close to showing clear error. 5 99 Nor could error, clear or otherwise, be shown by the Court's comparison of the proposed with the description of the State and its districts provided by the 1990 census. Ante, at 48-489. The 1990 census is irrelevant. We have the 2000 census, and precedent confirms in no uncertain terms that the issue for 5 purposes is not whether Georgia's proposed would have had a retrogressive effect 13 years ago: the question is whether the proposed would be retrogressive now. See, e. (Under 5 "the baseline is the status quo that is proposed to be changed"); (Under 5, "[t]he baseline for comparison is present by definition; it is the existing status"); City of ; Cf. 28 CFR 51.54(b)(2) (when determining if a change is retrogressive under 5 "[t]he Attorney General will make the comparison based on the conditions existing at the time of the submission"). The Court's assumption that a proper 5 analysis may proceed on the basis of obsolete data from a superseded census is thus as
|
Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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of obsolete data from a superseded census is thus as puzzling as it is unprecedented. It is also an invitation to perverse results, for if a State could carry its burden under 5 merely by showing no retrogression from the state of affairs 13 years ago, it could demand preclearance for a flatly diminishing minority voting strength under 5.6 6 The Court's final effort to demonstrate that Georgia's is nonretrogressive focuses on statistics about Georgia Democrats. Ante, at 489. The Court explains that almost all the districts in the proposed with a BVAP above 20% have a likely overall Democratic performance above 50%, and from this the Court concludes that "[t]hese statistics make it more likely as a matter of fact that black voters will constitute an effective voting bloc." But this is not so. The degree to which the statistics could support any judgment about the effect of black voting in State Senate elections is doubtful, and even on the Court's assumptions the statistics show no clear error by the District Court. 101 As for doubt about what the numbers have to do with State Senate elections, it is enough to know that the majority's figures are taken from a table describing Democratic voting in statewide, not local, elections. The Court offers no basis for assuming that voting for Democratic candidates in statewide elections correlates with voting behavior in local elections, and in fact, the record points to different, not identical, voting patterns. The District Court specifically noted that the United 's expert testified that "African American candidates consistently received less crossover voting in local election[s] than in statewide elections," and the court concluded that there is "compelling evidence that racial voting patterns in State Senate races can be expected to differ from racial voting patterns in statewide races," -. 102 But even if we assume the data on Democratic voting statewide can tell us something useful about Democratic voting in State Senate districts, the Court's argument does not hold up. It proceeds from the faulty premise that even with a low BVAP, if enough of the district is Democratic, the minority Democrats will necessarily have an effect on which candidates are elected. But if the proportion of nonminority Democrats is high enough, the minority group may well have no impact whatever on which Democratic candidate is selected to run and ultimately elected. In districts, say, with 20% minority voters (all of them Democrats) and 51% nonminority Democrats, the Democratic candidate has no obvious need to take the interests of the minority group into account; if everybody votes (or
|
Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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of the minority group into account; if everybody votes (or the proportion of stay-at-homes is constant throughout the electorate) the Democrat can win the general election without minority support. Even in a situation where a Democratic candidate needs a substantial fraction of minority voters to win (say the population is 25% minority and 30% nonminority Democrats), the Democratic candidate may still be able to ignore minority interests if there is such ideological polarization as between the major parties that the Republican candidate is entirely unresponsive to minority interests. In that situation, a minority bloc would presumably still prefer the Democrat, who would not need to adjust any political positions to get the minority vote. 103 All of this reasoning, of course, carries a whiff of the lamp. I do not know how Georgia's voters will actually behave if the percentage of something is x, or maybe y, any more than the Court does. We are arguing about numerical abstractions, and my sole point is that the Court's abstract arguments do not hold up. Much less do they prove the District Court wron IV 104 Section 5, after all, was not enacted to address abstractions. It was "to shift the advantage of time and inertia from the perpetrators of the evil to its victim," ( H. R. Rep. No. 94-196, pp. 5-58 (190)), and the State of Georgia was made subject to the requirement of preclearance because Congress "had reason to suppose" it might "try to evade the remedies for voting discrimination" and thus justifies 5's "uncommon exercise of congressional power." South 383 U. S., at -335. Section 5 can only be addressed, and the burden to prove no retrogression can only be carried, with evidence of how particular populations of voters will probably act in the circumstances in which they live. The State has the burden to convince on the basis of such evidence. The District Court considered such evidence: it received testimony, decided what it was worth, and concluded as the trier of fact that the State had failed to carry its burden. There was no error, and I respectfully dissent. Notes: 1 The District Court correctly recognized that the State bears the burden of proof in establishing that its proposed redistricting satisfied the standards of 5. See,e. ; see also (covered jurisdiction "bears the burden of proving that the change does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color" ); ;, ("In the specific context of 5 the covered jurisdiction has the
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Justice Souter
| 2,003 | 20 |
dissenting
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Georgia v. Ashcroft, Attorney General
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https://www.courtlistener.com/opinion/130158/georgia-v-ashcroft-attorney-general/
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the specific context of 5 the covered jurisdiction has the burden of persuasion"); cf. (Congress in passing 5 sought to "freez[e] election procedures in the covered areas unless the changes can be shown to be nondiscriminatory" ). 2 Indeed, the other s approved by the District Court, Georgia's State House congressionalib and the interim approved for the State Senate, all included decreases in BVAP in particular 3 The majority cites the District Court's comment that "`the United ' evidence was extremely limited in scope—focusing only on three contested districts in the State Senate'"Ante, at 44 ( 195 F. Supp. 2d, at 3). The District Court correctly did not require the United to prove that the was retrogressive. As the District Court explained: "[u]ltimately, the burden of proof in this matter lies with the State. We look to the State to explain why retrogression is not present, and to prove the absence of racially polarized voting that might diminish African American voting strength in light of several districts' decreased BVAPs." 4 The fact that the Court premises its analysis on BVAP alone is ironic given that the Court, incorrectly, chastises the District Court for committing the very error the Court now engages in, "fail[ing] to consider all the relevant factors."Ante, at 485. 5 Though the Court does not acknowledge it in its discussion of why "Georgia likely met its burden,"ante, at 48, even this claim was disputed. As the District Court explained: "[t]he number of Senate Districts with majorities of BVAP would, according to Georgia's calculations, increase from twelve to thirteen; according to the Attorney General's interpretation of the census data, the number would decrease from twelve to eleven." 6 For example, if a covered jurisdiction had two majority-minority districts in 1990, but rapidly changing demography had produced two more during the ensuing decade, a new redistricting setting the number of majority-minority districts at three would conclusively rule out retrogression on the Court's calculus. This would be the case even when voting behavior showed that nothing short of four majority-minority districts would preserve the status quo as of 2000 Even if the majority wanted to rely on these figures to make a claim about Democratic voting in statewide elections, the predictors' significance is utterly unclear. The majority pulls its figures from an exhibit titled, "Political Data Report," and a column labeled, "%OVER DEMVOTES," Pl. Exh. 2D. Seeante, at 489. The document provides no information regarding whether the numbers in the column reflect an average of past performance, a prediction for future performance, or something else altogether
|
Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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A group of labor union members who engaged in peaceful primary picketing within the confines of a privately owned shopping center were threatened by an agent of the owner with arrest for criminal trespass if they did not depart. The question presented is whether this threat violated the National Labor Relations Act, as amended, 29 U.S. C. 151 et seq. The National Labor Relations Board concluded that it did, 205 N. L. R. B. 628, and the Court of Appeals for the Fifth Circuit agreed. We granted certiorari because of the seemingly important questions of federal law presented. *509 I The petitioner, Scott Hudgens, is the owner of the North DeKalb Shopping Center, located in suburban Atlanta, Ga. The center consists of a single large building with an enclosed mall. Surrounding the building is a parking area which can accommodate 2,640 automobiles. The shopping center houses 60 retail stores leased to various businesses. One of the lessees is the Butler Shoe Most of the stores, including Butler's, can be entered only from the interior mall. In January 11, warehouse employees of the Butler Shoe went on strike to protest the company's failure to agree to demands made by their union in contract negotiations.[1] The strikers decided to picket not only Butler's warehouse but its nine retail stores in the Atlanta area as well, including the store in the North DeKalb Shopping Center. On January 22, 11, four of the striking warehouse employees entered the center's enclosed mall carrying placards which read: "Butler Shoe Warehouse on Strike, AFL-CIO, Local 315." The general manager of the shopping center informed the employees that they could not picket within the mall or on the parking lot and threatened them with arrest if they did not leave. The employees departed but returned a short time later and began picketing in an area of the mall immediately adjacent to the entrances of the Butler store. After the picketing had continued for approximately 30 minutes, the shopping center manager again informed the pickets that if they did not leave they would be arrested for trespassing. The pickets departed. The union subsequently filed with the Board an unfair labor practice charge against Hudgens, alleging interference with rights protected by 7 of the Act, 29 *510 U. S. C. 157.[2] Relying on this Court's decision in Food the Board entered a cease-and-desist order against Hudgens, reasoning that because the warehouse employees enjoyed a First Amendment right to picket on the shopping center property, the owner's threat of arrest violated 8 (a) (1) of the Act, 29 U.S. C. 158
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Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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8 (a) (1) of the Act, 29 U.S. C. 158 (a) (1).[3] Hudgens filed a petition for review in the Court of Appeals for the Fifth Circuit. Soon thereafter this Court decided Lloyd and Central Hardware and the Court of Appeals remanded the case to the Board for reconsideration in light of those two decisions. The Board, in turn, remanded to an Administrative Law Judge, who made findings of fact, recommendations, and conclusions to the effect that Hudgens had committed an unfair labor practice by excluding the pickets. *511 This result was ostensibly reached under the statutory criteria set forth in a case which held that union organizers who seek to solicit for union membership may intrude on an employer's private property if no alternative means exist for communicating with the employees. But the Administrative Law Judge's opinion also relied on this Court's constitutional decision in Logan for a "realistic view of the facts." The Board agreed with the findings and recommendations of the Administrative Law Judge, but departed somewhat from his reasoning. It concluded that the pickets were within the scope of Hudgens' invitation to members of the public to do business at the shopping center, and that it was, therefore, immaterial whether or not there existed an alternative means of communicating with the customers and employees of the Butler store.[4] Hudgens again petitioned for review in the Court of Appeals for the Fifth Circuit, and there the Board changed its tack and urged that the case was controlled not by Babcock & but by Republic Aviation a case which held that an employer commits an unfair labor practice if he enforces a no-solicitation rule against employees on his premises who are also union organizers, unless he can prove that the rule is necessitated by special circumstances. The Court of Appeals enforced the Board's cease-and-desist order but on the basis of yet another theory. While acknowledging that the source of the pickets' rights was 7 of the Act, the Court of Appeals held that the competing constitutional and property right considerations discussed in Lloyd "burde[n] the General Counsel with the duty to *512 prove that other locations less intrusive upon Hudgens' property rights than picketing inside the mall were either unavailable or ineffective," and that the Board's General Counsel had met that burden in this case. In this Court the petitioner Hudgens continues to urge that Babcock & is the controlling precedent, and that under the criteria of that case the judgment of the Court of Appeals should be reversed. The respondent union agrees that a statutory standard governs,
|
Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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reversed. The respondent union agrees that a statutory standard governs, but insists that, since the 7 activity here was not organizational as in Babcock but picketing in support of a lawful economic strike, an appropriate accommodation of the competing interests must lead to an affirmance of the Court of Appeals' judgment. The respondent Board now contends that the conflict between employee picketing rights and employer property rights in a case like this must be measured in accord with the commands of the First Amendment, pursuant to the Board's asserted understanding of Lloyd and that the judgment of the Court of Appeals should be affirmed on the basis of that standard. II As the above recital discloses, the history of this litigation has been a history of shifting positions on the part of the litigants, the Board, and the Court of Appeals. It has been a history, in short, of considerable confusion, engendered at least in part by decisions of this Court that intervened during the course of the litigation. In the present posture of the case the most basic question is whether the respective rights and liabilities of the parties are to be decided under the criteria of the National Labor Relations Act alone, under a First Amendment standard, or under some combination of the two. It is to that question, accordingly, that we now turn. *513 It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state. See Columbia Broadcasting System, Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself. This elementary proposition is little more than a truism. But even truisms are not always unexceptionably true, and an exception to this one was recognized almost 30 years ago in In Marsh, a Jehovah's Witness who had distributed literature without a license on a sidewalk in Chickasaw, Ala., was convicted of criminal trespass. Chickasaw was a so-called company town, wholly owned by the Gulf Shipbuilding It was described in the Court's opinion as follows: "Except for [ownership by a private corporation] it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant and a `business block' on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman. Merchants and
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Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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by the company, serves as the town's policeman. Merchants and service establishments have rented the stores and business places on the business block and the United States uses one of the places as a post office from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly *514 settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation." The Court pointed out that if the "title" to Chickasaw had "belonged not to a private but to a municipal corporation and had appellant been arrested for violating a municipal ordinance rather than a ruling by those appointed by the corporation to manage a company town it would have been clear that appellant's conviction must be reversed." Concluding that Gulf's "property interests" should not be allowed to lead to a different result in Chickasaw, which did "not function differently from any other town," the Court invoked the First and Fourteenth Amendments to reverse the appellant's conviction. It was the Marsh case that in 1968 provided the foundation for the Court's decision in Amalgamated Food Employees That case involved peaceful picketing within a large *515 shopping center near Altoona, Pa. One of the tenants of the shopping center was a retail store that employed a wholly nonunion staff. Members of a local union picketed the store, carrying signs proclaiming that it was nonunion and that its employees were not receiving union wages or other union benefits. The picketing took place on the shopping center's property in the immediate vicinity of the store. A Pennsylvania court issued an
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Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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immediate vicinity of the store. A Pennsylvania court issued an injunction that required all picketing to be confined to public areas outside the shopping center, and the Supreme Court of Pennsylvania affirmed the issuance of this injunction. This Court held that the doctrine of the Marsh case required reversal of that judgment. The Court's opinion pointed out that the First and Fourteenth Amendments would clearly have protected the picketing if it had taken place on a public sidewalk: "It is clear that if the shopping center premises were not privately owned but instead constituted the business area of a municipality, which they to a large extent resemble, petitioners could not be barred from exercising their First Amendment rights there on the sole ground that title to the property was in the municipality. ; ; ; The essence of those opinions is that streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely." The Court's opinion then reviewed the Marsh case in detail, emphasized the similarities between the business *516 block in Chickasaw, Ala., and the Logan shopping center, and unambiguously concluded: "The shopping center here is clearly the functional equivalent of the business district of Chickasaw involved in Marsh." Upon the basis of that conclusion, the Court held that the First and Fourteenth Amendments required reversal of the judgment of the Pennsylvania Supreme Court. There were three dissenting opinions in the Logan case, one of them by the author of the Court's opinion in Marsh, Mr. Justice Black. His disagreement with the Court's reasoning was total: "In affirming petitioners' contentions the majority opinion relies on and holds that respondents' property has been transformed to some type of public property. But Marsh was never intended to apply to this kind of situation. Marsh dealt with the very special situation of a company-owned town, complete with streets, alleys, sewers, stores, residences, and everything else that goes to make a town. I can find very little resemblance between the shopping center involved in this case and Chickasaw, There are no homes, there is no sewage disposal plant, there is not even a post office on this private property which the Court now considers the equivalent of a `town.' " -331 "The question is, Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i. e.,
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Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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taken on all the attributes of a town, i. e., `residential buildings, streets, a system of sewers, a sewage disposal plant and a "business block" on which business places are situated.' I *517 can find nothing in Marsh which indicates that if one of these features is present, e. g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it." "To hold that store owners are compelled by law to supply picketing areas for pickets to drive store customers away is to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country." -333. Four years later the Court had occasion to reconsider the Logan doctrine in Lloyd That case involved a shopping center covering some 50 acres in downtown Portland, Ore. On a November day in 1968 five young people entered the mall of the shopping center and distributed handbills protesting the then ongoing American military operations in Vietnam. Security guards told them to leave, and they did so, "to avoid arrest." They subsequently brought suit in a Federal District Court, seeking declaratory and injunctive relief. The trial court ruled in their favor, holding that the distribution of handbills on the shopping center's property was protected by the First and Fourteenth Amendments. The Court of Appeals for the Ninth Circuit affirmed the judgment, expressly relying on this Court's Marsh and Logan decisions. This Court reversed the judgment of the Court of Appeals. The Court in its Lloyd opinion did not say that it was overruling the Logan decision. Indeed, a substantial portion of the Court's opinion in Lloyd was devoted to pointing out the differences between the two cases, noting particularly that, in contrast to the hand-billing in Lloyd, the picketing in Logan had been *518 specifically directed to a store in the shopping center and the pickets had had no other reasonable opportunity to reach their intended audience. -567.[5] But the fact is that the reasoning of the Court's opinion in Lloyd cannot be squared with the reasoning of the Court's opinion in Logan It matters not that some Members of the Court may continue to believe that the Logan case was rightly decided.[6] Our institutional duty is to follow until changed the law as it now is, not as some Members of the Court might wish it to be. And in the performance of that duty we make clear now, if it was not clear before, that the rationale
|
Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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now, if it was not clear before, that the rationale of Logan did not survive the Court's decision in the Lloyd case.[7] Not only did the Lloyd opinion incorporate lengthy excerpts from two of the dissenting opinions in Logan -563, 565; the ultimate holding in Lloyd amounted to a total rejection of the holding in Logan : "The basic issue in this case is whether respondents, in the exercise of asserted First Amendment *519 rights, may distribute handbills on Lloyd's private property contrary to its wishes and contrary to a policy enforced against all handbilling. In addressing this issue, it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only." "Respondents contend that the property of a large shopping center is `open to the public,' serves the same purposes as a `business district' of a municipality, and therefore has been dedicated to certain types of public use. The argument is that such a center has sidewalks, streets, and parking areas which are functionally similar to facilities customarily provided by municipalities. It is then asserted that all members of the public, whether invited as customers or not, have the same right of free speech as they would have on the similar public facilities in the streets of a city or town. "The argument reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use. The closest decision in theory, involved the assumption by a private enterprise of all of the attributes of a state-created municipality and the exercise by that enterprise of semi-official municipal functions as a delegate of the State. In effect, the owner of the company town was performing the full spectrum of municipal powers and stood in the shoes of the State. In the instant case there is no comparable assumption or exercise of municipal functions or power." *520 "We hold that there has been no such dedication of Lloyd's privately owned and operated shopping center to public use as to entitle respondents to exercise therein the asserted First Amendment rights." If a large self-contained shopping center is the functional equivalent of a municipality, as Logan held, then the First and Fourteenth Amendments would not permit control of speech within such a center to depend upon the speech's content.[8] For while a municipality may constitutionally impose reasonable time, place, and manner regulations on the use of its streets and sidewalks for
|
Justice Stewart
| 1,976 | 18 |
majority
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Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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regulations on the use of its streets and sidewalks for First Amendment purposes, see ; and may even forbid altogether such use of some of its facilities, see ; what a municipality may not do under the First and Fourteenth Amendments is to discriminate in the regulation of expression on the basis of the content of that expression, "[A]bove all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content." Police Dept. of[9] It conversely follows, therefore, that if the respondents in the Lloyd case did not have a First Amendment right to enter that shopping center to distribute handbills concerning Vietnam, then the pickets in the present case did not have a First Amendment *521 right to enter this shopping center for the purpose of advertising their strike against the Butler Shoe We conclude, in short, that under the present state of the law the constitutional guarantee of free expression has no part to play in a case such as this. III From what has been said it follows that the rights and liabilities of the parties in this case are dependent exclusively upon the National Labor Relations Act. Under the Act the task of the Board, subject to review by the courts, is to resolve conflicts between 7 rights and private property rights, "and to seek a proper accommodation between the two." Central Hardware What is "a proper accommodation" in any situation may largely depend upon the content and the context of the 7 rights being asserted. The task of the Board and the reviewing courts under the Act, therefore, stands in conspicuous contrast to the duty of a court in applying the standards of the First Amendment, which requires "above all else" that expression must not be restricted by government "because of its message, its ideas, its subject matter, or its content." In the Central Hardware case, and earlier in the case of the Court considered the nature of the Board's task in this area under the Act. Accommodation between employees' 7 rights and employers' property rights, the Court said in Babcock & "must be obtained with as little destruction of one as is consistent with the maintenance of the other." Both Central Hardware and Babcock & involved organizational activity carried on by nonemployees on the employers' property.[10] The context of the 7 *522 activity in the present case was different in several respects which may or may not be relevant in striking the proper balance. First, it involved lawful economic strike
|
Justice Stewart
| 1,976 | 18 |
majority
|
Hudgens v. NLRB
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https://www.courtlistener.com/opinion/109390/hudgens-v-nlrb/
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striking the proper balance. First, it involved lawful economic strike activity rather than organizational activity. See Steel-workers v. ; Bus ; v. Erie Resistor Cf. Houston Insulation Contractors Assn. v. Second, the 7 activity here was carried on by Butler's employees (albeit not employees of its shopping center store), not by outsiders. See Third, the property interests impinged upon in this case were not those of the employer against whom the 7 activity was directed, but of another.[11] The Babcock & opinion established the basic objective under the Act: accommodation of 7 rights and private property rights "with as little destruction of one as is consistent with the maintenance of the other."[12] The locus of that accommodation, however, may fall at differing points along the spectrum depending on the nature and strength of the respective 7 rights and private property rights asserted in any given context. In each generic situation, the primary responsibility for making this accommodation must rest with the Board in the first instance. See v. Babcock & ; cf. v. Erie Resistor ; *523 v. Truckdrivers Union, "The responsibility to adapt the Act to changing patterns of industrial life is entrusted to the Board." v. Weingarten, Inc., For the reasons stated in this opinion, the judgment is vacated and the case is remanded to the Court of Appeals with directions to remand to the National Labor Relations Board, so that the case may be there considered under the statutory criteria of the National Labor Relations Act alone. It is so ordered. MR. JUSTICE STEVENS took no part in the consideration or decision of this case. MR.
|
Justice Stevens
| 1,999 | 16 |
concurring
|
Hunt v. Cromartie
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https://www.courtlistener.com/opinion/1087691/hunt-v-cromartie/
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The disputed issue of fact in this case is whether political considerations or racial considerations provide the "primary" explanation for the seemingly irregular configuration of North Carolina's Twelfth Congressional District. The Court concludes that evidence submitted to the District Court on behalf of the State made it inappropriate for that Court to grant appellees' motion for summary judgment. I agree with that conclusion, but write separately to emphasize the importance of two undisputed matters of fact that are firmly established by the historical record and confirmed by the record in this case. First, bizarre configuration is the traditional hallmark of the political gerrymander. This obvious proposition is supported by the work product of Elbridge Gerry, by the "swan" designed by New Jersey Republicans in 1982, see and by the Indiana plan reviewed in As we learned in a racial gerrymander may have an equally "uncouth" shape. See Thus, the shape of the congressional district at issue in this case provides strong evidence that either political or racial factors motivated its architects, but sheds no light on the question of which set of factors was more responsible for subordinating any of the State's "traditional" districting principles.[1] *556 Second, as the Presidential campaigns conducted by Strom Thurmond in 1948 and by George Wallace in 1968, and the Senate campaigns conducted more recently by Jesse Helms, have demonstrated, a great many registered Democrats in the South do not always vote for Democratic candidates in federal elections. The Congressional Quarterly recently recorded the fact that in North Carolina "Democratic voter registration edges no longer translat[e] into success in statewide or national races. In recent years, conservative white Democrats have gravitated toward Republican candidates." See Congressional Quarterly Inc., Congressional Districts in the 1990s, p. 549 (1993).[2] This voting pattern *557 has proved to be particularly pronounced in voting districts that contain more than about one-third African-American residents. See Pildes, The Politics of Race, There was no need for expert testimony to establish the proposition that "in North Carolina, party registration and party preference do not always correspond." Ante, at 551. Indeed, for me the most remarkable feature of the District Court's erroneous decision is that it relied entirely on data concerning the location of registered Democrats and ignored the more probative evidence of how the people who live near the borders of District 12 actually voted in recent elections. That evidence not only undermines and rebuts the inferences the District Court drew from the party registration data, but also provides strong affirmative evidence that is thoroughly consistent with the sworn testimony of the two members
|
Justice Stevens
| 1,999 | 16 |
concurring
|
Hunt v. Cromartie
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https://www.courtlistener.com/opinion/1087691/hunt-v-cromartie/
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thoroughly consistent with the sworn testimony of the two members of the state legislature who were most active in drawing the boundaries of District 12. The affidavits of those members, stating that district lines were drawn according to election results, not voter registration, are uncontradicted.[3] And almost all of the majority-Democrat registered precincts that the state legislature excluded from District 12 in favor of precincts with higher black populations produced significantly less dependable Democratic results and actually voted for one or more Republicans in recent elections. The record supports the conclusion that the most loyal Democrats living near the borders of District 12 "happen to be black Democrats," see ib and I have no doubt that the legislature was conscious of that fact when it enacted this apportionment plan. But everyone agrees that that fact is not sufficient to invalidate the district. Cf. ante, at 551-552. That fact would not even be enough, under this Court's decisions, to invalidate a governmental action, that, unlike the *558 action at issue here, actually has an adverse impact on a particular racial group. See, e. g., Personnel Administrator of ; ; ("No matter how closely tied or significantly correlated to race the explanation for [a governmental action] may be, the [action] does not implicate the Equal Protection Clause unless it is based on race"). Accordingly, appellees' evidence may include nothing more than (i) a bizarre shape, which is equally consistent with either political or racial motivation, (ii) registration data, which are virtually irrelevant when actual voting results were available and which point in a different direction, and (iii) knowledge of the racial composition of the district. Because we do not have before us the question whether the District Court erred in denying the State's motion for summary judgment, I need not decide whether that circumstantial evidence even raises an inference of improper motive. It is sufficient at this stage of the proceedings to join in the Court's judgment of reversal, which I do.
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Justice Stevens
| 2,003 | 16 |
concurring
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Inyo County, California v. Paiute-Shoshone Indians of the Bishop Community of the Bishop Colony
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https://www.courtlistener.com/opinion/127923/inyo-county-california-v-paiute-shoshone-indians-of-the-bishop-community/
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In my judgment a Native American tribe is a "person" who may sue under 42 U.S. C. 1983. The Tribe's complaint, however, does not state a cause of action under 1983 because the county's alleged infringement of the Tribe's sovereign prerogatives did not deprive the Tribe of "rights, privileges, or immunities secured by the Constitution and laws" within the meaning of 1983. At bottom, rather than relying on an Act of Congress or a provision of the Constitution, the Tribe's complaint rests on the judge-made doctrine of tribal immunity — a doctrine that "developed almost by accident." Kiowa Tribe of Because many applications of that doctrine are both anomalous and unjust, see I would not accord it the same status as the "laws" referenced in 1983. It is demeaning to Native American tribes to deny them the same access to a 1983 remedy that is available to any other person whose constitutional rights are violated by persons acting under color of state law. The text of 1983 — which provides that 1983 defendants are "person[s] who, under color of [State law,]" subject any "other person" to a deprivation of a federal right — adequately explains why a tribe is not a person subject to suit under 1983. For tribes generally do not act under color of state law. But that text sheds no light on the question whether the tribe is an "other person" who may bring a 1983 suit when the tribe is the victim of a constitutional violation. The ordinary meaning of the word "person" as used in federal statutes,1 as well as the specific remedial purpose of 1983, support the conclusion that a tribe should be able to invoke the protections of the statute if its constitutional rights are violated.2 In this case, however, the Tribe's allegations do not state a cause of action under 1983. The execution of the warrant challenged in this case would unquestionably have been lawful if the casino had been the property of an ordinary commercial corporation. See ante, at 711 ("There is in this case no allegation that the County lacked probable cause or that the warrant was otherwise defective"). Thus, the Tribe rests its case entirely on its claim that, as a sovereign, it should be accorded a special immunity that private casinos do not enjoy. See That sort of claim to special privileges, which is based entirely on the Tribe's sovereign status, is not one for which the 1983 remedy was enacted. Accordingly, while I agree with the Court that the judgment should be set aside, I do not
|
Justice Blackmun
| 1,993 | 11 |
majority
|
Daubert v. Merrell Dow Pharmaceuticals, Inc.
|
https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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In this case we are called upon to determine the standard for admitting expert scientific testimony in a federal trial. I Petitioners Jason Daubert and Eric Schuller are minor children born with serious birth defects. They and their parents sued respondent in California state court, alleging that the birth defects had been caused by the mothers' ingestion of Bendectin, a prescription antinausea drug marketed by respondent. Respondent removed the suits to federal court on diversity grounds. After extensive discovery, respondent moved for summary judgment, contending that Bendectin does not cause birth defects in humans and that petitioners would be unable to come forward with any admissible evidence that it does. In support of its motion, respondent submitted an affidavit of Steven H. Lamm, physician and epidemiologist, who is a well-credentialed expert on the risks from exposure to various chemical substances.[1] Doctor Lamm stated that he had reviewed all the literature on Bendectin and human birth defectsmore than 30 published studies involving over 130,000 patients. No study had found Bendectin to be a human teratogen (i. e., a substance capable of causing malformations in fetuses). On the basis of this review, Doctor Lamm concluded that maternal use of Bendectin during the first trimester of pregnancy has not been shown to be a risk factor for human birth defects. *583 Petitioners did not (and do not) contest this characterization of the published record regarding Bendectin. Instead, they responded to respondent's motion with the testimony of eight experts of their own, each of whom also possessed impressive credentials.[2] These experts had concluded that Bendectin can cause birth defects. Their conclusions were based upon "in vitro" (test tube) and "in vivo" (live) animal studies that found a link between Bendectin and malformations; pharmacological studies of the chemical structure of Bendectin that purported to show similarities between the structure of the drug and that of other substances known to cause birth defects; and the "reanalysis" of previously published epidemiological (human statistical) studies. The District Court granted respondent's motion for summary judgment. The court stated that scientific evidence is admissible only if the principle upon which it is based is "`sufficiently established to have general acceptance in the field to which it belongs.' " quoting United The court concluded that petitioners' evidence did not meet this standard. Given the vast body of epidemiological data concerning Bendectin, the court held, expert opinion which is not based on epidemiological evidence *584 is not admissible to establish Thus, the animal-cell studies, live-animal studies, and chemical-structure analyses on which petitioners had relied could not raise by themselves a reasonably disputable
|
Justice Blackmun
| 1,993 | 11 |
majority
|
Daubert v. Merrell Dow Pharmaceuticals, Inc.
|
https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
|
had relied could not raise by themselves a reasonably disputable jury issue regarding Petitioners' epidemiological analyses, based as they were on recalculations of data in previously published studies that had found no causal link between the drug and birth defects, were ruled to be inadmissible because they had not been published or subjected to peer The United States Court of Appeals for the Ninth Circuit affirmed. Citing the court stated that expert opinion based on a scientific technique is inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific -1130. The court declared that expert opinion based on a methodology that diverges "significantly from the procedures accepted by recognized authorities in the field cannot be shown to be `generally accepted as a reliable technique.' " quoting United The court emphasized that other Courts of Appeals considering the risks of Bendectin had refused to admit reanalyses of epidemiological studies that had been neither published nor subjected to peer 951 F.2d, -1131. Those courts had found unpublished reanalyses "particularly problematic in light of the massive weight of the original published studies supporting [respondent's] position, all of which had undergone full scrutiny from the scientific " Contending that reanalysis is generally accepted by the scientific community only when it is subjected to verification and scrutiny by others in the field, the Court of Appeals rejected petitioners' reanalyses as "unpublished, not subjected to the normal peer review process and generated solely for use in litigation." The *585 court concluded that petitioners' evidence provided an insufficient foundation to allow admission of expert testimony that Bendectin caused their injuries and, accordingly, that petitioners could not satisfy their burden of proving causation at trial. We granted certiorari, in light of sharp divisions among the courts regarding the proper standard for the admission of expert testimony. Compare, e. g., United (applying the "general acceptance" standard), cert. denied, with II A In the 70 years since its formulation in the Frye case, the "general acceptance" test has been the dominant standard for determining the admissibility of novel scientific evidence at trial. See E. Green & C. Nesson, Problems, Cases, and Materials on Evidence 649 (1983). Although under increasing attack of late, the rule continues to be followed by a majority of courts, including the Ninth Circuit.[3] The Frye test has its origin in a short and citation-free decision concerning the admissibility of evidence derived from a systolic blood pressure deception test, a crude precursor to the polygraph machine. In what has become a famous (perhaps infamous) passage, the then Court of Appeals for the District of
|
Justice Blackmun
| 1,993 | 11 |
majority
|
Daubert v. Merrell Dow Pharmaceuticals, Inc.
|
https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
|
passage, the then Court of Appeals for the District of Columbia described the device and its operation and declared: "Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages *586 is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while courts will go a long way in admitting expert testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduc- tion is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. " 54 Ohio App. D. C., at 47, 293 F., at Because the deception test had "not yet gained such standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony deduced from the discovery, development, and experiments thus far made," evidence of its results was ruled inadmissible. The merits of the Frye test have been much debated, and scholarship on its proper scope and application is legion.[4]*587 Petitioners' primary attack, however, is not on the content but on the continuing authority of the rule. They contend that the Frye test was superseded by the adoption of the Federal Rules of Evidence.[5] We agree. We interpret the legislatively enacted Federal Rules of Evidence as we would any statute. Beech Aircraft Rule 402 provides the baseline: "All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible." "Relevant evidence" is defined as that which has "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Rule 401. The Rules' basic standard of relevance thus is a liberal one. Frye, of course, predated the Rules by half a century. In United we considered the pertinence of background common law in interpreting the Rules of Evidence. We noted that the Rules occupy the field, but, quoting Professor Cleary, the Reporter, *588 explained that the common law nevertheless could serve as an aid to their application: "`In principle, under the Federal Rules no common law of evidence remains. "All relevant evidence is admissible, except as otherwise provided" In reality, of course, the body of common law knowledge continues to exist, though in the somewhat altered form of a source of guidance in the
|
Justice Blackmun
| 1,993 | 11 |
majority
|
Daubert v. Merrell Dow Pharmaceuticals, Inc.
|
https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
|
somewhat altered form of a source of guidance in the exercise of delegated powers.' " We found the common-law precept at issue in the Abel case entirely consistent with Rule 402's general requirement of admissibility, and considered it unlikely that the drafters had intended to change the rule. In on the other hand, the Court was unable to find a particular common-law doctrine in the Rules, and so held it superseded. Here there is a specific Rule that speaks to the contested issue. Rule 702, governing expert testimony, provides: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise." Nothing in the text of this Rule establishes "general acceptance" as an absolute prerequisite to admissibility. Nor does respondent present any clear indication that Rule 702 or the Rules as a whole were intended to incorporate a "general acceptance" standard. The drafting history makes no mention of Frye, and a rigid "general acceptance" requirement would be at odds with the "liberal thrust" of the Federal Rules and their "general approach of relaxing the traditional barriers to `opinion' testimony." Beech Aircraft (citing Rules 701 to 705). See also Weinstein, Rule 702 of the Federal Rules of Evidence is *589 Sound; It Should Not Be Amended, 138 F. R. D. 631 ("The Rules were designed to depend primarily upon lawyer-adversaries and sensible triers of fact to evaluate conflicts"). Given the Rules' permissive backdrop and their inclusion of a specific rule on expert testimony that does not mention "general acceptance," the assertion that the Rules somehow assimilated Frye is unconvincing. Frye made "general acceptance" the exclusive test for admitting expert scientific testimony. That austere standard, absent from, and incompatible with, the Federal Rules of Evidence, should not be applied in federal trials.[6] B That the Frye test was displaced by the Rules of Evidence does not mean, however, that the Rules themselves place no limits on the admissibility of purportedly scientific evidence.[7] Nor is the trial judge disabled from screening such evidence. To the contrary, under the Rules the trial judge must ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. The primary locus of this obligation is Rule 702, which clearly contemplates some degree of regulation of the subjects and theories about which an expert may testify. "If scientific, technical, or other specialized knowledge will assist the trier
|
Justice Blackmun
| 1,993 | 11 |
majority
|
Daubert v. Merrell Dow Pharmaceuticals, Inc.
|
https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
|
scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue" an expert "may testify thereto. " (Emphasis added.) The subject of an expert's testimony must *590 be "scientific knowledge."[8] The adjective "scientific" implies a grounding in the methods and procedures of science. Similarly, the word "knowledge" connotes more than subjective belief or unsupported speculation. The term "applies to any body of known facts or to any body of ideas inferred from such facts or accepted as truths on good grounds." Webster's Third New International Dictionary 1252 Of course, it would be unreasonable to conclude that the subject of scientific testimony must be "known" to a certainty; arguably, there are no certainties in science. See, e. g., Brief for Nicolaas Bloembergen et al. as Amici Curiae 9 ("Indeed, scientists do not assert that they know what is immutably `true'they are committed to searching for new, temporary, theories to explain, as best they can, phenomena"); Brief for American Association for the Advancement of Science et al. as Amici Curiae 7-8 ("Science is not an encyclopedic body of knowledge about the universe. Instead, it represents a process for proposing and refining theoretical explanations about the world that are subject to further testing and refinement" (emphasis in original)). But, in order to qualify as "scientific knowledge," an inference or assertion must be derived by the scientific method. Proposed testimony must be supported by appropriate validationi. e., "good grounds," based on what is known. In short, the requirement that an expert's testimony pertain to "scientific knowledge" establishes a standard of evidentiary reliability.[9] *591 Rule 702 further requires that the evidence or testimony "assist the trier of fact to understand the evidence or to determine a fact in issue." This condition goes primarily to relevance. "Expert testimony which does not relate to any issue in the case is not relevant and, ergo, non-helpful." 3 Weinstein & Berger ¶ 702[02], p. 702-18. See also United The consideration has been aptly described by Judge Becker as one of "fit." "Fit" is not always obvious, and scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes. See Starrs, Frye v. United States Restructured and Revitalized: A Proposal to Amend Federal Evidence Rule 702, The study of the phases of the moon, for example, may provide valid scientific "knowledge" about whether a certain night was dark, and if darkness is a fact in issue, the knowledge will assist the trier of fact. However (absent creditable grounds supporting such a link), evidence that the
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