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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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(absent creditable grounds supporting such a link), evidence that the moon was full on a certain night will not assist the trier of fact in determining whether an individual was unusually likely to have behaved irrationally on that night. Rule 702's "helpfulness" *592 standard requires a valid scientific connection to the pertinent inquiry as a precondition to admissibility. That these requirements are embodied in Rule 702 is not surprising. Unlike an ordinary witness, see Rule 701, an expert is permitted wide latitude to offer opinions, including those that are not based on firsthand knowledge or observation. See Rules 702 and 703. Presumably, this relaxation of the usual requirement of firsthand knowledgea rule which represents "a `most pervasive manifestation' of the common law insistence upon `the most reliable sources of information,' " Advisory Committee's Notes on Fed. Rule Evid. 602, 28 U.S. C. App., p. 755 (citation omitted)is premised on an assumption that the expert's opinion will have a reliable basis in the knowledge and experience of his discipline. C Faced with a proffer of expert scientific testimony, then, the trial judge must determine at the outset, pursuant to Rule 104(a),[10] whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue.[11] This entails a preliminary assessment of whether the reasoning or methodology *593 underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this Many factors will bear on the inquiry, and we do not presume to set out a definitive checklist or test. But some general observations are appropriate. Ordinarily, a key question to be answered in determining whether a theory or technique is scientific knowledge that will assist the trier of fact will be whether it can be (and has been) tested. "Scientific methodology today is based on generating hypotheses and testing them to see if they can be falsified; indeed, this methodology is what distinguishes science from other fields of human inquiry." Green 645. See also C. Hempel, Philosophy of Natural Science 49 (1966) ("[T]he statements constituting a scientific explanation must be capable of empirical test"); K. Popper, Conjectures and Refutations: The Growth of Scientific Knowledge 37 ("[T]he criterion of the scientific status of a theory is its falsifiability, or refutability, or testability") (emphasis deleted). Another pertinent consideration is whether the theory or technique has been subjected to peer review and publication. Publication (which is but one element
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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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peer review and publication. Publication (which is but one element of peer review) is not a sine qua non of admissibility; it does not necessarily correlate with reliability, see S. Jasanoff, The Fifth Branch: Science Advisors as Policymakers -76 and in some instances well-grounded but innovative theories will not have been published, see Horrobin, The Philosophical Basis of Peer Review and the Suppression of Innovation, Some propositions, moreover, are too particular, too new, or of too limited interest to be published. But submission to the scrutiny of the scientific community is a component of "good science," in part because it increases the likelihood that substantive flaws in methodology will be detected. See J. Ziman, Reliable Knowledge: An Exploration *594 of the Grounds for Belief in Science 130-133 ; Relman & Angell, How Good Is Peer Review?, The fact of publication (or lack thereof) in a peer reviewed journal thus will be a relevant, though not dispositive, consideration in assessing the scientific validity of a particular technique or methodology on which an opinion is premised. Additionally, in the case of a particular scientific technique, the court ordinarily should consider the known or potential rate of error, see, e. g., United and the existence and maintenance of standards controlling the technique's operation, see United cert. denied, Finally, "general acceptance" can yet have a bearing on the inquiry. A "reliability assessment does not require, although it does permit, explicit identification of a relevant scientific community and an express determination of a particular degree of acceptance within that " United 753 F. 2d, at 1238. See also 3 Weinstein & Berger ¶ 702[03], pp. 702-41 to 702-42. Widespread acceptance can be an important factor in ruling particular evidence admissible, and "a known technique which has been able to attract only minimal support within the community," Downing, 753 F. 2d, at 1238, may properly be viewed with skepticism. The inquiry envisioned by Rule 702 is, we emphasize, a flexible one.[12] Its overarching subject is the scientific validityand *595 thus the evidentiary relevance and reliabilityof the principles that underlie a proposed submission. The focus, of course, must be solely on principles and methodology, not on the conclusions that they generate. Throughout, a judge assessing a proffer of expert scientific testimony under Rule 702 should also be mindful of other applicable rules. Rule 703 provides that expert opinions based on otherwise inadmissible hearsay are to be admitted only if the facts or data are "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject." Rule 706 allows
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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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forming opinions or inferences upon the subject." Rule 706 allows the court at its discretion to procure the assistance of an expert of its own choosing. Finally, Rule 403 permits the exclusion of relevant evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury" Judge Weinstein has explained: "Expert evidence can be both powerful and quite misleading because of the difficulty in evaluating it. Because of this risk, the judge in weighing possible prejudice against probative force under Rule 403 of the present rules exercises more control over experts than over lay witnesses." Weinstein, 138 F. R. D., at 632. III We conclude by briefly addressing what appear to be two underlying concerns of the parties and amici in this case. Respondent expresses apprehension that abandonment of "general acceptance" as the exclusive requirement for admission will result in a "free-for-all" in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions. *596 In this regard respondent seems to us to be overly pessimistic about the capabilities of the jury and of the adversary system generally. Vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence. See Additionally, in the event the trial court concludes that the scintilla of evidence presented supporting a position is insufficient to allow a reasonable juror to conclude that the position more likely than not is true, the court remains free to direct a judgment, Fed. Rule Civ. Proc. 50(a), and likewise to grant summary judgment, Fed. Rule Civ. Proc. 56. Cf., e. g., (CA6) (holding that scientific evidence that provided foundation for expert testimony, viewed in the light most favorable to plaintiffs, was not sufficient to allow a jury to find it more probable than not that defendant caused plaintiff's injury), cert. denied, ; modified, cert. denied, ; Green 680-681. These conventional devices, rather than wholesale exclusion under an uncompromising "general acceptance" test, are the appropriate safeguards where the basis of scientific testimony meets the standards of Rule 702. Petitioners and, to a greater extent, their amici exhibit a different concern. They suggest that recognition of a screening role for the judge that allows for the exclusion of "invalid" evidence will sanction a stifling and repressive scientific orthodoxy and will be inimical to the search for truth. See, e. g., Brief for Ronald Bayer et al. as Amici Curiae. It is true that open debate is an essential part of both legal and scientific analyses. Yet
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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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an essential part of both legal and scientific analyses. Yet there are important differences between the quest for truth in the courtroom and the quest *597 for truth in the laboratory. Scientific conclusions are subject to perpetual revision. Law, on the other hand, must resolve disputes finally and quickly. The scientific project is advanced by broad and wide-ranging consideration of a multitude of hypotheses, for those that are incorrect will eventually be shown to be so, and that in itself is an advance. Conjectures that are probably wrong are of little use, however, in the project of reaching a quick, final, and binding legal judgmentoften of great consequenceabout a particular set of events in the past. We recognize that, in practice, a gatekeeping role for the judge, no matter how flexible, inevitably on occasion will prevent the jury from learning of authentic insights and innovations. That, nevertheless, is the balance that is struck by Rules of Evidence designed not for the exhaustive search for cosmic understanding but for the particularized resolution of legal disputes.[13] IV To summarize: "General acceptance" is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence especially Rule 702do assign to the trial judge the task of ensuring that an expert's testimony both rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically valid principles will satisfy those demands. The inquiries of the District Court and the Court of Appeals focused almost exclusively on "general acceptance," as gauged by publication and the decisions of other courts. Accordingly, *598 the judgment of the Court of Appeals is vacated, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Chief Justice Rehnquist, with whom Justice Stevens joins, concurring in part and dissenting in part. The petition for certiorari in this case presents two questions: first, whether the rule of remains good law after the enactment of the Federal Rules of Evidence; and second, if Frye remains valid, whether it requires expert scientific testimony to have been subjected to a peer review process in order to be admissible. The Court concludes, correctly in my view, that the Frye rule did not survive the enactment of the Federal Rules of Evidence, and I therefore join Parts I and IIA of its opinion. The second question presented in the petition for certiorari necessarily is mooted by this holding, but the Court nonetheless proceeds to construe Rules 702 and 703 very much in the abstract, and then
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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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702 and 703 very much in the abstract, and then offers some "general observations." Ante, at 593. "General observations" by this Court customarily carry great weight with lower federal courts, but the ones offered here suffer from the flaw common to most such observationsthey are not applied to deciding whether particular testimony was or was not admissible, and therefore they tend to be not only general, but vague and abstract. This is particularly unfortunate in a case such as this, where the ultimate legal question depends on an appreciation of one or more bodies of knowledge not judicially noticeable, and subject to different interpretations in the briefs of the parties and their amici. Twenty-two amicus briefs have been filed in the case, and indeed the Court's opinion contains no fewer than 37 citations to amicus briefs and other secondary sources. *599 The various briefs filed in this case are markedly different from typical briefs, in that large parts of them do not deal with decided cases or statutory languagethe sort of material we customarily interpret. Instead, they deal with definitions of scientific knowledge, scientific method, scientific validity, and peer reviewin short, matters far afield from the expertise of judges. This is not to say that such materials are not useful or even necessary in deciding how Rule 702 should be applied; but it is to say that the unusual subject matter should cause us to proceed with great caution in deciding more than we have to, because our reach can so easily exceed our grasp. But even if it were desirable to make "general observations" not necessary to decide the questions presented, I cannot subscribe to some of the observations made by the Court. In Part IIB, the Court concludes that reliability and relevancy are the touchstones of the admissibility of expert testimony. Ante, at 590-592. Federal Rule of Evidence 402 provides, as the Court points out, that "[e]vidence which is not relevant is not admissible." But there is no similar reference in the Rule to "reliability." The Court constructs its argument by parsing the language "[i]f 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" Fed. Rule Evid. 702. It stresses that the subject of the expert's testimony must be "scientific knowledge," and points out that "scientific" "implies a grounding in the methods and procedures of science" and that the word "knowledge" "connotes more than subjective belief or unsupported speculation." Ante, at 590. From this it concludes that "scientific knowledge"
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Justice Blackmun
| 1,993 | 11 |
majority
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Daubert v. Merrell Dow Pharmaceuticals, Inc.
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https://www.courtlistener.com/opinion/112903/daubert-v-merrell-dow-pharmaceuticals-inc/
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Ante, at 590. From this it concludes that "scientific knowledge" must be "derived by the scientific method." Proposed testimony, we are told, must be supported by "appropriate validation." Indeed, in footnote 9, the Court decides that "[i]n a case involving scientific evidence, evidentiary *600 reliability will be based upon scientific validity. " Ante, at 591, n. 9 (emphasis in original). Questions arise simply from reading this part of the Court's opinion, and countless more questions will surely arise when hundreds of district judges try to apply its teaching to particular offers of expert testimony. Does all of this dicta apply to an expert seeking to testify on the basis of "technical or other specialized knowledge"the other types of expert knowledge to which Rule 702 appliesor are the "general observations" limited only to "scientific knowledge"? What is the difference between scientific knowledge and technical knowledge; does Rule 702 actually contemplate that the phrase "scientific, technical, or other specialized knowledge" be broken down into numerous subspecies of expertise, or did its authors simply pick general descriptive language covering the sort of expert testimony which courts have customarily received? The Court speaks of its confidence that federal judges can make a "preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue." Ante, at 592-593. The Court then states that a "key question" to be answered in deciding whether something is "scientific knowledge" "will be whether it can be (and has been) tested." Ante, at 593. Following this sentence are three quotations from treatises, which not only speak of empirical testing, but one of which states that the "`criterion of the scientific status of a theory is its falsifiability, or refutability, or testability.' " I defer to no one in my confidence in federal judges; but I am at a loss to know what is meant when it is said that the scientific status of a theory depends on its "falsifiability," and I suspect some of them will be, too. I do not doubt that Rule 702 confides to the judge some gatekeeping responsibility in deciding questions of the admissibility of proffered expert testimony. But I do not think *601 it imposes on them either the obligation or the authority to become amateur scientists in order to perform that role. I think the Court would be far better advised in this case to decide only the questions presented, and to leave the further development of this important area of the law to future cases.
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Justice Blackmun
| 1,989 | 11 |
majority
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Quinn v. Millsap
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https://www.courtlistener.com/opinion/112294/quinn-v-millsap/
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The Constitution of the State of provides that the governments of the city of St. Louis and St. Louis County may be reorganized by a vote of the electorate of the city and county upon a plan of reorganization drafted by a "board of freeholders." Appellants contend that this provision violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it requires that every member of this official board own real property. The Supreme Court of without disputing appellants' premise that ownership of real property is a prerequisite for appointment to the board of freeholders, ruled that "the Equal Protection Clause has no relevancy here" because the board "exercises no general governmental powers." This ruling reflects a significant misreading of our precedents, and, accordingly, we reverse. n 7, pursuant to Art. V, 30, of the Constitution,[] a sufficient number of voters signed petitions "to *97 establish a board of St. Louis area property owners (freeholders)" to consider the reorganization of "governmental structures and responsibilities" for the city and county. App. 20, 30. As a result, under 30, the city's mayor and the county executive were required each to appoint nine members to this board, and the Governor was required to appoint one.[2] After the mayor had chosen nine individuals based on several criteria, including a history of community service and demonstrated leadership ability, he was informed by the city's counsel that ownership of real property was a prerequisite for board membership. One of the persons selected by the mayor, the Reverend Paul C. Reinert,[3] did not own real property. He was removed from the mayor's list and replaced with an appointee who satisfied the real-property requirement. The county executive similarly was told by the county's counsel that real property ownership was a necessary condition for board membership. The Governor also considered * real property ownership as a necessary qualification. Thus, all 9 members appointed to the board of freeholders in 7 owned real property, as was inevitable given the prevailing belief that 30 required this result. n November 7, appellants Robert J. Quinn, Jr., and Patricia J. Kampsen filed in the United States District Court for the Western District of a class-action complaint on behalf of all voters who did not own real property. Appellants claimed that 30 violated the Equal Protection Clause of the Fourteenth Amendment on its face, insofar as it required ownership of real property in order to serve on the board that was to consider proposals for reorganizing the St. Louis city and county governments. Appellants also claimed that 30 violated
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Justice Blackmun
| 1,989 | 11 |
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Quinn v. Millsap
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https://www.courtlistener.com/opinion/112294/quinn-v-millsap/
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city and county governments. Appellants also claimed that 30 violated the Equal Protection Clause as applied, because in this instance "appointment to the board [of freeholders] was actually limited to those who were ascertained to be owners of real property." Relying on this Court's decisions in and appellants asserted that the requirement that members of the board own real property whether contained within 30 itself or resulting from a misinterpretation of that provision is not rationally related to any legitimate state purpose. Appellants' federal-court complaint, as amended, named as defendants the mayor, the county executive, the Governor, and the members of the board of freeholders, as well as the State of itself. These defendants, all appellees here, in turn sued appellants in a Circuit Court for a declaratory judgment that 30 does not violate the Federal Constitution. Appellants counterclaimed in the state court, raising the same claims they presented in their federal-court complaint. *99 Once the property qualification issue became embroiled in litigation, the official view of 30 changed. Whereas the mayor, the county executive, and the Governor all had assumed during the appointment process that ownership of real property was a prerequisite for board membership, they (together with the other appellees) have argued in court that the use of the term "freeholder" in 30 contrary to its generally accepted meaning does not entail a condition of property ownership. Because 30(a) states that "a board of freeholders" shall consist of "nine electors of the city and nine electors of the county and one elector of some other county," appellees contend that the only qualification necessary for appointment to a board of freeholders is that one be an "elector" of a relevant jurisdiction. Based on their contention that the meaning of "freeholder" in 30 is an unsettled question of state law, appellees urged the Federal District Court to from adjudicating the merits of appellants' complaint while the state-court proceeding was pending. The District Court refused to -432, finding appellees' interpretation of the term "freeholder" to be "strained at best," and contrary both to the generally recognized meaning of the term and to its use in decisional law. Reaching the merits of appellants' constitutional claim, the court agreed with appellants that and Chappelle required the conclusion that 30 (construed to contain a property requirement) violates the Equal Protection 68 F. Supp., at -436. The Federal Court of Appeals, after a preliminary order, see reversed, holding that the District Court should have ed. App. to Juris. Statement 6; Thereafter, in an unpublished memorandum, the State Circuit Court adopted appellees'
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Justice Blackmun
| 1,989 | 11 |
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Quinn v. Millsap
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https://www.courtlistener.com/opinion/112294/quinn-v-millsap/
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in an unpublished memorandum, the State Circuit Court adopted appellees' interpretation of 30. Although in property law the term "freeholder" means someone *00 with a fee or similar estate in land, the court reasoned that in "public law" the phrase "board of freeholders" was equivalent to "board of commissioners." App. to Juris. Statement 7-8. Additionally, the court suggested that, notwithstanding and Chappelle, 30 might not violate the Equal Protection Clause even if it imposes a real-property-ownership requirement. Speculating about a possible rational basis for this, the court suggested that land ownership might enhance the work of the board because one of the issues it faces is whether to change the boundaries between the city and the county. App. to Juris. Statement 9. The court's discussion of the Equal Protection Clause remained tentative, however, and the court did not specifically explain the constitutionality of 30 as applied to the present board of freeholders. Nonetheless, in an order accompanying its memorandum, the state court entered a declaratory judgment that 30 is valid both on its face and as applied to the present[4] The Supreme Court affirmed this judgment, but relied exclusively on its interpretation of the Equal Protection The court did not address the argument that 30 does not impose a property-ownership requirement, except to say: "We recognize membership on the Board of Freeholders was restricted to owners of real property." 757 S.W.2d, at The court continued: "However, we hold that the composition of the Board of Freeholders does not violate the Equal Protection Clause because the Board of Freeholders does not exercise general governmental powers." Thus, the Supreme Court rejected both the facial and as-applied challenges to 30 based on its belief that the Equal Protection Clause was inapplicable to the board of freeholders. *0 Contesting the Supreme Court's interpretation of the Equal Protection Clause, appellants filed the appeal now before us, and we noted probable jurisdiction.[5] Appellees dispute this Court's power to hear the appeal, offering four separate arguments in an attempt to avoid a decision on the merits. First, in an effort to rely on the adequate and independent state ground doctrine, see Fox Film appellees would persuade us that the Supreme Court actually accepted their interpretation of 30. They point to the following passage from that court's opinion: "Following certification of the petitions, section 30 required both the mayor of St. Louis and the county supervisor of St. Louis County to appoint nine `electors' to the Board. n addition the Governor of was required to appoint one elector to the Board." This passage, in the introductory section of
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Justice Blackmun
| 1,989 | 11 |
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Quinn v. Millsap
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https://www.courtlistener.com/opinion/112294/quinn-v-millsap/
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to the Board." This passage, in the introductory section of the opinion, simply repeats the language of 30 itself. See n. t cannot reasonably be considered as a holding that "freeholder" means no more than "elector" and that ownership of real property is not a prerequisite for sitting on the board of freeholders. We are not convinced that the Supreme Court interpreted 30 as urged by appellees. Rather, as explained in Part the judgment of the Supreme Court rests solely on its belief that "the Equal Protection Clause has no relevancy" to this 757 S.W.2d, at n these circumstances, there can be no dispute about our power to consider the federal issue decided by the state court: "Where the state court does not decide *02 against a petitioner or appellant upon an independent state ground, but deeming the federal question to be before it, actually entertains and decides that question adversely to the federal right asserted, this Court has jurisdiction to review the judgment if, as here, it is a final judgment." ndiana ex rel. (938). "That the [state] court might have, but did not, invoke state law does not foreclose jurisdiction here."[6] Appellees' remaining three jurisdictional arguments are rather surprising given the fact that it was they who brought this declaratory judgment action against appellants. Appellees argue that the validity of 30 under the Equal Protection Clause is a nonjusticiable political question, although they filed this lawsuit seeking a judicial determination of 30's validity under the Federal Constitution. See App. 6. n any event, their political question argument that the Guarantee Clause[7] precludes review of the equal protection issue was expressly rejected in 369 U.S. 86, (962). Next, appellees argue that appellants lack Article standing to bring this appeal, although appellees stated in their petition for a declaratory judgment that a "controversy" exists between "adverse" parties involving "legally protectable interests." App. 5. While appellees now might wish to repudiate this view, we have no doubt that the appeal "retains *03 the essentials of an adversary proceeding, involving a real, not a hypothetical, controversy," Nashville, C. & St. L. R. (933), and therefore qualifies as a "Cas[e]" for the purposes of Article 2. See also ASARCO nc. v. Kadish, ndeed, in we specifically held that a person who does not own real property has Article standing to challenge under the Equal Protection Clause a state-law requirement that one own real property in order to serve on a particular government 396 U.S., at 36-362, n. 23. Given appellants necessarily have standing to appeal the Supreme Court's determination that, even
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Justice Blackmun
| 1,989 | 11 |
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Quinn v. Millsap
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https://www.courtlistener.com/opinion/112294/quinn-v-millsap/
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have standing to appeal the Supreme Court's determination that, even if law requires that members of the board of freeholders own real property, the Equal Protection Clause is inapplicable.[8] Finally, appellees contend that an adjudication of appellants' appeal would interfere with the power of executive officials to make discretionary appointments, although, again, they filed this state-court action seeking a declaration of the legal validity of 30 and the present board of freeholders. n any event, the argument is frivolous. Appellees rely on dicta in two cases, in which this Court suggested that federal district courts might lack the authority to order executive officials to make discretionary appointments in a particular way. See Mayor of 45 U.S. 605, 65 (974); Carter v. Jury Comm'n of *04 Greene County, Whatever the limits of a federal court's power to remedy violations of the Equal Protection Clause, however, those limits are plainly irrelevant when this Court is asked to review a state-court judgment that no violation of the Equal Protection Clause has occurred or, as here, that the Equal Protection Clause is inapplicable to the state action in question. When a state supreme court denies the existence of a federal right and rests its decision on that basis, this Court unquestionably has jurisdiction to review the federal issue decided by the state court. To suggest otherwise would contradict principles laid down in the Judiciary Act of 789, Stat. 73, 85, and settled since Wheat. 304 (86). Satisfied of our jurisdiction over this appeal, we turn to the merits. A n the Court applied the Equal Protection Clause to a requirement that members of a local school board own real property and held the requirement unconstitutional because it was not rationally related to any legitimate state -364. Subsequently, we applied the holding in to strike down a requirement of local-property ownership for membership on a local airport commission. summarily rev'g 329 So. 2d 80 (La. App. 976). Here, the Supreme Court held that " does not control because dealt with a unit of local government which had general governmental powers." 757 S.W. 2d., at 594. The Supreme Court, instead, turned to our decisions in 45 U.S. 355 (), Land 40 U.S. 79 (973), and Associated Enterprises, nc. v. Watershed mprovement Dist., 40 U.S. 743 (973), believing those decisions to support its conclusion that "the Equal Protection Clause has no *05 relevancy here." 757 S.W. 2d, at They do not support that conclusion. n each of these cases, the Court sustained the constitutionality of a water-district voting scheme based on land ownership. But the Court did
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Justice Blackmun
| 1,989 | 11 |
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Quinn v. Millsap
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voting scheme based on land ownership. But the Court did not reach that result by ruling, as the Supreme Court held here, that the Equal Protection Clause was irrelevant because of the kind of functions performed by the water-district officials. On the contrary, the Court expressly applied equal protection analysis and concluded that the voting qualifications at issue passed constitutional scrutiny. 45 U. S., at 37; 40 U. S., at 730-73; 40 U. S., at 744. Precisely because the water-district cases applied equal protection analysis, they cannot stand for the proposition that the Equal Protection Clause is inapplicable "when the local unit of government in question [has no] general governmental powers." 757 S.W. 2d, at Thus, the Supreme Court erred in thinking that the three water-district cases allowed it to avoid an application of the Equal Protection n holding the board of freeholders exempt from the constraints of the Equal Protection Clause, the Supreme Court also relied on the fact that the "Board of Freeholders serves only to recommend a plan of reorganization to the voters of St. Louis City and St. Louis County" and does not enact any laws of its own. But this fact cannot immunize the board of freeholders from equal protection scrutiny. As this Court in explained, the Equal Protection Clause protects the "right to be considered for public service without the burden of invidiously discriminatory disqualifications." Membership on the board of freeholders is a form of public service, even if the board only recommends a proposal to the electorate and does not enact laws directly. Thus, the Equal Protection Clause protects appellants' right to be considered for appointment to the board without the burden of "invidiously discriminatory disqualifications." *06 The rationale of the Supreme Court's contrary decision would render the Equal Protection Clause inapplicable even to a requirement that all members of the board be white males. This result, and the reasoning that leads to it, are obviously untenable. Thus, we conclude that it is incorrect to say, as that court did, that the Equal Protection Clause does not apply to the board of freeholders because the electorate votes on its proposals and it "does not exercise general governmental powers." 757 S.W. 2d, at The board in this case like the school board in and the airport commission in Chappelle is subject to the constraints of the Equal Protection B The question, of course, remains whether the land-ownership requirement in this particular case passes or fails equal protection scrutiny. We could remand this question to the Supreme Court, but there is no good
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| 1,989 | 11 |
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Quinn v. Millsap
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question to the Supreme Court, but there is no good reason to delay the resolution of this issue any further. The parties have briefed and argued the issue throughout this litigation, first in federal court, then in state court, and now in this Court. Cf. (3); 470-47, n. 4 (). ndeed, there already has been an adjudication of the merits of this issue by the United States District Court. 68 F. Supp., at -436.[9] Moreover, the resolution of this issue *07 is straightforward: it is a form of invidious discrimination to require land ownership of all appointees to a body authorized to propose reorganization of local government. We need apply no more than the rationality review articulated in to reach this conclusion.[0] n their brief, appellees offer two justifications for a real-property requirement in this First, they contend that owners of real estate have a "first-hand knowledge of the value of good schools, sewer systems and the other problems and amenities of urban life." Brief for Appellees 4 Second, they assert that a real-property owner "has a tangible stake in the long term future of his area." These two arguments, however, were precisely the ones that this Court rejected in itself. *08 As to the first, the Court explained that an ability to understand the issues concerning one's community does not depend on ownership of real property. "t cannot be seriously urged that a citizen in all other respects qualified to sit on a school board must also own real property if he is to participate responsibly in educational decisions." -364. Similarly indefensible is the proposition that someone otherwise qualified to sit on the board that proposes a reorganization of St. Louis government must be removed from consideration just because he does not own real property. The Court in also squarely rejected appellees' second argument by recognizing that persons can be attached to their community without owning real property. "However reasonable the assumption that those who own realty do possess such an attachment, [the State] may not rationally presume that that quality is necessarily wanting in all citizens of the county whose estates are less than freehold." Thus, plainly forecloses 's reliance on this justification for a land-ownership requirement.[] At oral argument, counsel for appellees adopted the suggestion of the State Circuit Court that a land-ownership requirement might be justifiable in this case because the board of freeholders considers issues that may relate to land. Tr. of Oral Arg. 39.[2] Of course, the airport commission in Chappelle may have made decisions affecting real estate in its vicinity. Nonetheless, we held
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| 1,989 | 11 |
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Quinn v. Millsap
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decisions affecting real estate in its vicinity. Nonetheless, we held in Chappelle that excluding from service on the airport commission anyone who did not own local property was unconstitutional under Thus, the mere fact that the board of freeholders considers *09 land-use issues cannot suffice to sustain a land-ownership requirement in this Moreover, the board of freeholders here is unlike any of the governmental bodies at issue in the three water-district cases. Whereas it was rational for the States in those cases to limit voting rights to landowners, 45 U. S., at 37, the "constitutionally relevant fact" there was "that all water delivered by [those districts was] distributed according to land ownership," The purpose of the board of freeholders, however, is not so directly linked with land ownership. Cf. (emphasizing "the peculiarly narrow function of [the] local government body" in and its "special relationship" to the class of landowners). Even if the board of freeholders considers land-use issues, the scope of its mandate is far more encompassing: it has the power to draft and submit a plan to reorganize the entire governmental structure of St. Louis city and county. The work of the board of freeholders thus affects all citizens of the city and county, regardless of land ownership. Consequently, cannot entirely exclude from eligibility for appointment to this board all persons who do not own real property, regardless of their other qualifications and their demonstrated commitment to their community. n sum, we cannot agree with appellees that under the Equal Protection Clause, as previously construed by this Court, landowners alone may be eligible for appointment to a body empowered to propose a wholesale revision of local government. "Whatever objectives" may wish "to obtain by [a] `freeholder' requirement must be secured, in this instance at least, by means more finely tailored to achieve the desired goal." 396 U. S., Accordingly, a land-ownership requirement is unconstitutional here, just as it was in and in Chappelle. The judgment of the Supreme Court is reversed. t is so ordered.
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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The Court today holds that the amended version of Article 38.07 of the Texas Code of Criminal Procedure reduces the amount of proof necessary to support a sexual assault conviction, and that its retroactive application therefore violates the Ex Post Facto Clause. In so holding, the Court misreads both the Texas statute and our precedents concerning the Ex Post Facto Clause. Article 38.07 is not, as the Court would have it, most accurately characterized as a "sufficiency of the evidence rule"; it is in its essence an evidentiary provision dictating the circumstances under which the jury may credit victim testimony in sexual offense prosecutions. The amended version of Article 38.07 does nothing more than accord to certain victims of sexual offenses full testimonial stature, giving them the same undiminished competency to testify that Texas extends to witnesses generally in the State's judicial proceedings. Our precedents make clear that such a witness competency rule validly may be applied to offenses committed before its enactment. I therefore dissent. *554 * * * Petitioner Scott Leslie Carmell began sexually abusing his stepdaughter, "K. M.," in the spring of 1991, when K. M. was 13 years old. He continued to do so through March 1995. The specific question before the Court concerns Carmell's sexual assault on K. M. in June 1992, when K. M. was 14.[1] K. M. did not inform anyone about that assault or about any of Carmell's other sexual advances toward her until sometime around March 1995, when she told a friend and then her mother, Eleanor Alexander. Alexander went to the police, and Carmell was arrested and charged in a 15-count indictment. Under Article 38.07 of the Texas Code of Criminal Procedure as it stood at the time of the assault, a conviction for sexual assault was supportable on the uncorroborated testimony of the victim if the victim was younger than 14 years old at the time of the offense. If the victim was 14 years old or older, however, the victim's testimony could support a conviction only if that testimony was corroborated by other evidence. One form of corroboration, specifically described in Article 38.07 itself, was known as "outcry": The victim's testimony could support a conviction if he or she had informed another person, other than the defendant, about the offense within six months of its occurrence. Tex. Code Crim. Proc. Ann., Art. 38.07 Article 38.07 was amended in 1993. Under the new version, which was in effect at the time of Carmell's trial, the victim's uncorroborated testimony can support a conviction as long as the victim was under
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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support a conviction as long as the victim was under 18 years of age at the time of the offense. Tex. Code Crim. Proc. Ann., Art. 38.07 (Vernon Supp. 2000). The corroboration requirement continues *555 in force for victims aged 18 or older, with a modified definition of outcry not material here. Thus, under the version of Article 38.07 in effect at the time of Carmell's trial but not the version in effect at the time of the offense, his conviction was supportable by the uncorroborated testimony of K. M. The new version of Article 38.07 was applied at Carmell's trial, and he was convicted.[2] Carmell argues that the application of the new version of Article 38.07 to his trial violated the Ex Post Facto Clause, U. S. Const., Art. I, 10, cl. 1. I A proper understanding of Article 38.07 of the Texas Code of Criminal Procedure is central to this case. Accordingly, I turn first to the effect and purpose of that statute. The effect of Article 38.07 in sexual offense prosecutions is plain. If the victim is of a certain age, the jury, in assessing whether the prosecution has met its burden of demonstrating guilt beyond a reasonable doubt, must give no weight to her testimony unless that testimony is corroborated, either by other evidence going directly to guilt or by "outcry."[3] For victims (such as K. M.) who were between the ages of 14 and *556 18 at the time of the offense, the 1993 amendment repealed this corroboration requirement. The amended version of Article 38.07 thus permits sexual assault victims between 14 and 18 to have their testimony considered by the jury in the same manner and with the same effect as that of witnesses generally in Texas prosecutions. This sort of corroboration requirementstill embodied in Article 38.07 for victims aged 18 or olderis a common, if increasingly outmoded, rule of evidence. Its purpose is to rein in the admissibility of testimony the legislature has deemed insufficiently credible standing alone. Texas' requirement of corroboration or outcry, like similar provisions in other jurisdictions, is premised on a legislative judgment that accusations made by sexual assault victims above a certain age are not independently trustworthy. See ; cf., e. g., (evidence of outcry "rebuts an implied charge of recent fabrication, which springs from some jurors' assumptions that sexual offense victims are generally lying and that the victim's failure to report the crime promptly is inconsistent with the victim's current statement that the assault occurred"). Legislatures in many States, including Texas, have enacted similar evidentiary provisions requiring corroboration
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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States, including Texas, have enacted similar evidentiary provisions requiring corroboration for the testimony of other categories of witnesses, particularly accomplices. See, e. g., Tex. Code Crim. Proc. Ann., Art. 38.14 (Vernon Supp. 2000) ("A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed").Such provisionsgenerally on the wane but still in force in several Statesare, like Article 38.07, designed to ensure the credibility of the relevant witness. See, e. g., ; ; I make no judgment here as to the propriety of the Texas Legislature's decision to view the testimony of certain sexual assault victims in the same light as that of accomplices. Ex post facto analysis does not depend on an assessment of a statute's wisdom. For current purposes it suffices to note that Article 38.07's corroboration requirement rests on the same rationale that underpins accomplice corroboration requirements: the notion that a particular witness, because of his or her role in the events at issue, might not give trustworthy testimony. See ; Hernandez v.State, (Article 38.07's corroboration requirement "was meant to deal only with testimony of a victim of a sexual offense who, for one reason or another, was held to be an `accomplice witness' and, perforce, whose testimony must be corroborated."). The history of Article 38.07 bears out the view that its focus has always been on the competency and credibility of the victim as witness. The origins of the statute could be traced to the fact that in Texas, "for many years a seduced female was an incompetent witness as a matter of law." Holladay, 709 S. W. 2d, at 200. See, e. g., ; see also Hernandez, 651 S. W. 2d, at -752 (tracing the current Article 38.07 to the earlier seduction victim competency rule). In 1891, this common-law disability was lifted by statute and replaced by a corroboration requirement: "In prosecutions for seduction the female alleged to have been seduced shall be permitted to testify; but no conviction shall be had upon the testimony of the said female, unless the same is corroborated by other evidence tending to connect the defendant with the offense charged." Tex. Rev. Crim. Stat., Tit. 8, ch. 7, Art. 789 (1911). The application of this statute to offenses committed before its enactment was upheld by the Texas courts on the authority of See The corroboration requirement for seduction prosecutions, recodified in 5 at Tex. Code Crim. Proc. Ann., Art. 38.07, remained in effect until 1973, when the entire 1925 Penal Code (including the offense of seduction)
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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the entire 1925 Penal Code (including the offense of seduction) was repealed. In 1975, Article 38.07 was enacted substantially in its present form. As revised, the article covered all sexual offenses in Chapter 21 of the Texas Penal Code; however, it contained no express exemption from the corroboration requirement for the testimony of the youngest victims. Tex. Code Crim. Proc. Ann., Art. 38.07 The exemption for victims under the age of 14 was added in 1983, and extended in 1993 to cover those under the age of 18, as already described. As initially proposed, the 1993 change would have eliminated the corroboration/outcry requirement altogether. House Research Organization, Texas House of Representatives, Daily Floor Report 13 Lodging of Petitioner. Supporters of the proposal maintained that "[v]ictims in sexual assault cases are no more likely to fantasize or misconstrue the truth than the victims of most other crimes, which do not require corroboration of testimony or previous `outcry.' Juries can decide if a witness is credible. Most states no longer require this type of corroboration; *559 neither should Texas." The historical development of Article 38.07 reveals a progressive alleviation of restrictions on the competency of victim testimony, not a legislative emphasis on the quantum of evidence needed to convict. The version of Article 38.07 applied at Carmell's trial was thus, in both effect and purpose, an evidentiary rule governing the weight that may be given to the testimony of sexual assault victims who had attained the age of 14. The Court's efforts to paint it as something more than that are detached from the statute's moorings and are consequently unpersuasive. To begin with, it is beyond doubt that Article 38.07 does not establish an element of the offense. See To convict a defendant of sexual assault in Texas today as before 1993, the prosecution need not introduce the victim's testimony at all, much less any corroboration of that testimony. The Court is therefore less than correct in asserting that "[u]nder the law in effect at the time the acts were committed, the prosecution's case was legally insufficient and petitioner was entitled to a judgment of acquittal, unless the State could produce both the victim's testimony and corroborative evidence." Ante, at 530. Under both the old and new versions of the statute, a conviction could be sustained on the testimony of a single third-party witness, on purely circumstantial evidence, or in any number of other waysso long as the admissible evidence presented is sufficient to prove all of the elements of the offense beyond a reasonable doubt.[4] And under either version of Article
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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beyond a reasonable doubt.[4] And under either version of Article 38.07, of course, *560 the accused could be convicted, like any other defendant, on the basis of a guilty plea or a voluntary confession. Article 38.07, in other words, does not define "sexual assault proven by corroborated victim testimony" as a distinct offense from "sexual assault." Rather, the measure operates only to restrict the State's method of proving its case.[5] And it does so without affecting in any way the burden of persuasion that the prosecution must satisfy to support a conviction. Under both the old and new versions of the statute, the applicable standard is proof beyond a reasonable doubt. The amendment in 1993 that repealed the corroboration requirement for victims between the ages of 14 and 18 did nothing to change that standard. The Court recognizes that Article 38.07 does not affect the applicable burden of persuasion, see ante, at 539, but several times it asserts that the amended version of the statute "changed the quantum of evidence necessary to sustain a conviction," ante, at 530 See also ante, at 531 (amended law "permitted petitioner to be convicted with less than the previously required quantum of evidence"); ante, at 532-533 (amended law "[r]educ[es] the quantum of evidence necessary to meet the burden of proof" (emphases added)). If by the word "quantum" the Court means to refer to the burden of persuasion, these statements are simply incorrect and contradict the Court's own acknowledgment. And if, as appears more likely, "quantum" refers to some required quantity or amount of proof, the Court is also wrong. The partial repeal of Article 38.07's corroboration requirement did not change the quantity of proof necessary to convict in every case, for the simple reason that Texas has never required the prosecution to introduce any particular *561 number of witnesses or items of proof to support a sexual assault conviction.[6] The Court also declares several times that the amended version of Article 38.07 "subverts the presumption of innocence." See ante, at 532; see also ante, at 533, nn. 22, 23, 546. The phrase comes from in which the Court struck down a series of post-Civil War amendments to the Missouri Constitution that imposed penalties on persons unable or unwilling to swear an oath that they had not aided the Confederacy. The amendments, the Court said in Cummings, "subvert the presumptions of innocence" because "[t]hey assume that the parties are guilty [and] call upon [them] to establish their innocence" by swearing the oath. Nothing of the kind is involved here. Article 38.07 did not impose a
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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kind is involved here. Article 38.07 did not impose a presumption of guilt on Carmell and then saddle him with the task of overcoming it. The burden of persuasion remained at all times with the State. See Tex. Code Crim. Proc. Ann., Art. 38.03 (Vernon Supp. 2000). Carmell's presumption of innocence is thus untouched by the current Article 38.07's recognition of K. M.'s full testimonial stature. The Court places perhaps its greatest weight on the "sufficiency of the evidence" label, see ante, at 547-552, but the label will not stick. As just noted, Article 38.07 has never dictated what it takes in all cases, quantitatively or qualitatively, for evidence to be sufficient to convict. To the contrary, under both the old and new versions of the statute the *562 prosecution's admissible evidence will be sufficient to support a conviction if a rational factfinder presented with that evidence could find the defendant guilty beyond a reasonable doubt. The 1993 repeal of the corroboration requirement for victims between the ages of 14 and 18 did not lower that "sufficiency of the evidence" hurdle; it simply expanded the range of methods the State could use to surmount it. To be sure, one might descriptively say in an individual case that the uncorroborated testimony of the victim would be "sufficient" to convict under the new version of Article 38.07 and "insufficient" under the old. But that cannot be enough to invalidate a statute as ex post facto. If it were, then all evidentiary rules that work to the defendant's detriment would be unconstitutional as applied to offenses committed before their enactmentan outcome our cases decisively reject. See infra, at 570-571 and which upheld the retroactive application of evidentiary rules governing the authentication of documents and the competency of felons to testify, respectively). A defendant whose conviction turned, for example, on an item of hearsay evidence considered inadmissible at the time of the offense but made admissible by a later enacted statute might accurately describe the new statute as one that permits conviction on less evidence than was "sufficient" under prior law. But our precedents establish that such a defendant has no valid ex post facto claim. See infra, at 570-571. Neither does Carmell. The Court attempts to distinguish Article 38.07 from garden-variety evidentiary rules by asserting that the latter "are ordinarily evenhanded, in the sense that they may benefit either the State or the defendant in any given case." Ante, at 533, n. 23. The truth of this assertion is not at all clear. Evidence is never admissible in its own right; it must
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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Evidence is never admissible in its own right; it must be admitted for some purpose. Rules of admissibility typically take that basic fact into account, often restricting the *563 use of evidence in a way that systematically disadvantages one side. Consider, for example, a rule providing that evidence of a rape victim's sexual relations with persons other than the accused is admissible to prove consent, or a rule providing that evidence of a sexual assault defendant's prior sexual offenses is inadmissible to show a propensity to commit that type of crime. A statute repealing either of the above rules would "always run in the prosecution's favor [by] mak[ing] it easier to convict the accused." Ante, at 546.[7] Yet no one (until today) has suggested that such a statute would be ex post facto as applied to offenses committed before its enactment. The Court resists the conclusion that Article 38.07 functions as a rule of witness competency by asserting that "[b]oth before and after the amendment, the victim's testimony was competent evidence." Ante, at 544. In all but the most technical sense that blanket statement is dubious. If the victim was 14 years old or older at the time of the offense (18 or older under the amended statute) and her testimony is unbolstered by corroboration or outcry, the jury may not credit that testimony in determining whether the State has met its burden of proof. Such a victim is of course not literally forbidden from testifying, but that cannot make the difference for Ex Post Facto Clause purposes between a sufficiency of the evidence rule and a witness competency rule. Evidence to which the jury is not permitted to assign weight is, in reality, incompetent evidence. *564 Perhaps the Court has been misdirected by the wording of Article 38.07, which speaks in both its old and new versions of evidence upon which a "conviction is supportable." See ante, at 547. That sounds like a "sufficiency of the evidence rule," until one realizes that any evidence admissible in a criminal casei. e., any evidence that a jury is entitled to consider in determining whether the prosecution has met its burden of persuasionis at least potentially evidence upon which a "conviction is supportable." Conversely, as I have just said, evidence to which the jury may give no weight in making that determination is effectively inadmissible.[8] In short, no matter how it is phrased, the corroboration requirement of Article 38.07 is functionally identical to a conditional rule of witness competency. If the former version of Article 38.07 had provided instead that "the testimony
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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version of Article 38.07 had provided instead that "the testimony of the victim shall be inadmissible to prove the defendant's guilt unless corroborated," it would produce the *565 same results as the actual statute in every case. Not "in certain instances," ante, at 551, or "in some situations," ante, at 550, but in every case.[9] Recognizing this equivalency, the Texas Court of Criminal Appeals has noted that the Texas accomplice corroboration rule is "a mere rule of evidence" even though "statutorily worded as a sufficiency standard."[10] In sum, the function and purpose of the corroboration requirement embedded in the former version of Article 38.07 was to ensure the credibility of the victim's testimony, not otherwise to impede the defendant's conviction. Our precedents, I explain next, make clear that the retroactive repeal *566 of such an evidentiary rule does not violate the Ex Post Facto Clause. II The Ex Post Facto Clause, this Court has said repeatedly, furthers two important purposes. First, it serves "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed."[11] Second, it "restricts governmental power by restraining arbitrary and potentially vindictive legislation." ; see also ; The latter purpose has much to do with the separation of powers; like its textual and conceptual neighbor the Bill of Attainder Clause, the Ex Post Facto Clause aims to ensure that legislatures do not meddle with the judiciary's task of adjudicating guilt and innocence in individual cases. 450 U. S., n. 10. The Court does not even attempt to justify its extension of the Clause in terms of these two fundamental purposes. That is understandable, for today's decision serves neither purpose. The first purpose (fair warning and reliance), vital as it is, cannot tenably be relied upon by Carmell. He had ample notice that the conduct in which he engaged was illegal. He certainly cannot claim to have relied in any way on the preamendment version of Article 38.07: He tendered *567 no reason to anticipate that K. M. would not report the assault within the outcry period, nor any cause to expect that corroborating evidence would not turn up sooner or later. Nor is the Clause's second purpose relevant here, for there is no indication that the Texas Legislature intended to single out this defendant or any class of defendants for vindictive or arbitrary treatment. Instead, the amendment of Article 38.07 simply brought the rules governing certain victim testimony in sexual offense prosecutions into conformity with Texas law governing witness testimony generally. In holding the new Article
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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law governing witness testimony generally. In holding the new Article 38.07 unconstitutional as applied to Carmell, the Court relies heavily on the fourth of ex post facto statutes enumerated by Justice Chase in his opinion in : "Every law that alters the legal rules of evidence, and receives less, or different, testimony, than the law required at the time of the commission of the offence, in order to convict the offender. " Justice Chase's formulation was dictum, of course, because Calder involved a civil statute and the Court held that the statute was not ex post facto for that reason alone. Moreover, Justices Paterson and Iredell in their own seriatim opinions gave no hint that they considered rules of evidence to fall within the scope of the Clause. See ; Still, this Court has come to view Justice Chase's categorical enumeration as an authoritative gloss on the Ex Post Facto Clause's reach. Just a decade ago in for instance, this Court reiterated that "the prohibition which may not be evaded is the one defined by the Calder categories." If those words are placed in the context of the full text of the opinion, however, a strong case can be made that pared the number of Calder categories down to three, eliminating altogether the fourth on which the Court today so heavily relies. As long ago as 1925, in the Court cataloged ex post *568 facto laws without mentioning Chase's fourth at all. And in the Court cited with apparent approval Beazell `s omission of the fourth n. 3, declaring that "[t]he Beazell formulation is faithful to our best knowledge of the original understanding of the Ex Post Facto Clause: Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." concluded by reciting in the plainest terms the prohibitions laid down by the Ex Post Facto Clause: A statute may not "punish as a crime an act previously committed, which was innocent when done; nor make more burdensome the punishment for a crime, after its commission; nor deprive one charged with crime of any defense available according to law at the time when the act was committed." This recitation conforms to Calder `s first three categories, but not the fourth; changes in evidentiary rules are nowhere mentioned.[12] The majority asserts that the Court has repeatedly endorsed Justice Chase's formulation, "including, in particular, the fourth" and it offers an impressive-looking string citation in support of the claim. Ante, 5. Yet all of those cases simply quoted or paraphrased Chase's enumeration, a mechanical task that naturally entailed
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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or paraphrased Chase's enumeration, a mechanical task that naturally entailed a recitation of the fourth Not one of them depended on that for the judgment the Court reached.[13] Neither *569 did Justice Washington's opinion in which is quoted extensively by the Court, ante, at 532. In fact, the Court has never until today relied on the fourth Calder to invalidate the application of a statute under the Ex Post Facto Clause. It is true that the Court has on two occasions struck down as ex post facto the retroactive application of rules governing the functioning of the criminal trial processbut both decisions have since been overruled. In the Court held that Missouri was forbidden to apply retroactively a state constitutional amendment providing that a plea of guilty to second-degree murder would not automatically serve on retrial as an acquittal of the charge of first-degree murder. And in the Court held that a change in state law reducing the number of petit jurors in criminal trials from 12 to 8 was ex post facto because it deprived the defendant of "a substantial right involved in his liberty." The Court in overruled both Kring and concluding that neither decision was "consistent with the understanding of the term `ex post facto law' at the time the Constitution was adopted." 50, 51-52. The Court today offers a different reading of It concludes that overruled Kring and because those cases improperly construed the Ex Post Facto Clause to cover all "substantial protections," and that the fourth Calder consequently remains intact. *570 That is a plausible reading of and I might well be prepared to accept it, were the issue presented here. But it is not. For purposes of this case, it does not matter whether eliminated the fourth Calder or left it undisturbed. For even if the fourth remains viable, our precedents make clear that it cannot be stretched to fit the statutory change at issue here. Those precedents decisions that fully acknowledged the fourth Calder firmly establish that retroactively applied changes in rules concerning the admissibility of evidence and the competency of witnesses do not raise Ex Post Facto Clause concerns. In this Court upheld against ex post facto attack the retroactive application of a statute that permitted the introduction of previously inadmissible evidence to demonstrate the authenticity of disputed writings. The new statute, the Court reasoned, "did nothing more than remove an obstacle arising out of a rule of evidence that withdrew from the consideration of the jury testimony which, in the opinion of the legislature, tended to elucidate the ultimate, essential fact
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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of the legislature, tended to elucidate the ultimate, essential fact to be established, namely, the guilt of the accused." The case most similar to the one before us is In that case, a statute in effect at the time of the offense but repealed by the time of trial provided that felons were incompetent to testify. The defendant, whose conviction for capital murder had been based in large part on the testimony of a felon, claimed that the application of the new law to his trial was ex post facto. The Court rejected the defendant's claim, adopting reasoning applicable to the instant case: "Statutes which simply enlarge the class of persons who may be competent to testify in criminal cases are not ex post facto in their application to prosecutions for crimes committed prior to their passage; for they do *571 not attach criminality to any act previously done, and which was innocent when done; nor aggravate any crime theretofore committed; nor provide a greater punishment therefor than was prescribed at the time of its commission; nor do they alter the degree, or lessen the amount or measure, of the proof which was made necessary to conviction when the crime was committed." As the quoted passage shows, the Court in rejected the defendant's Ex Post Facto Clause claim while retaining Calder `s fourth The same outcome should obtain today, for cannot meaningfully be distinguished from the instant case. The Court asserts that "Article 38.07 plainly fits" the fourth Calder because "[r]equiring only the victim's testimony to convict, rather than the victim's testimony plus other corroborating evidence is surely `less testimony required to convict' in any straightforward sense of those words." Ante, at 530. Yet to declare Article 38.07 ex post facto on that basis is to overrule without saying so. For if the amended version of Article 38.07 requires "less testimony to convict," then so do countless evidentiary rules, including the felon competency rule whose retroactive application we upheld in In both this case and a conviction based on evidence previously deemed inadmissible was sustained pursuant to a broadened rule regarding the competency of testimonial evidence. The mere fact that the new version of Article 38.07 makes some convictions easier to obtain cannot be enough to preclude its retroactive application. "Even though it may work to the disadvantage of a defendant, a procedural change is not ex post facto." In short, the Court's expansive new reading of the Ex Post Facto Clause cannot be squared with this Court's prior decisions. Rather than embrace such an unprecedented approach, I would advance
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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Rather than embrace such an unprecedented approach, I would advance a "commonsense understanding of *572 Calder `s fourth" ante, at 530, one that comports with our precedents and with the underlying purposes of the Ex Post Facto Clause: Laws that reduce the burden of persuasion the prosecution must satisfy to win a conviction may not be applied to offenses committed before their enactment. To be sure, this reading would leave the fourth with considerably less independent effect than it would have had in Justice Chase's day, given our intervening decisions establishing the "beyond a reasonable doubt" standard as a constitutional minimum under the Due Process Clause. See, e. g., In re Winship, ; But it is not a reading that necessarily renders the meaningless even today. Imagine, for example, a statute requiring the prosecution to prove a particular sentencing enhancement factorleadership role in the offense, say, or obstruction of justicebeyond a reasonable doubt. A new statute providing that the factor could be established by a mere preponderance of the evidence might rank as ex post facto if applied to offenses committed before its enactment. The same might be said of a statute retroactively increasing the defendant's burden of persuasion as to an affirmative defense. Burdens of persuasion are qualitative tests of sufficiency. Calder `s fourth however, encompasses quantitative sufficiency rules as well, for Justice Chase did speak of a law that "receives less testimony, than the law required at the time of the commission of the offence." 3 Dall., at Cf. ("Any statutory alteration of the legal rules of evidence which would authorize conviction upon less proof, in amount or degree, than was required when the offence was committed" might be ex post facto. ). Quantitative sufficiency rules are rare in modern Anglo-American law, but some do exist. Criminal statutes sometimes limit the prosecution to a particular form of proof, for example, the testimony of two witnesses to the same overt act. In modern Anglo- *573 American law, such instances have been almost exclusively confined to two contexts: perjury, see and treason, see U. S. Const., Art. III, 3, cl. 1 ("No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court."). See generally Wigmore, Required Numbers of Witnesses; A Brief History of the Numerical System in England, 100 (1901). The treason statute in effect at the time of John Fenwick's conspiracy, like the Treason Clause of our Constitution, embodied just such a quantitative sufficiency rule: As long as the accused traitor put the prosecution to
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Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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As long as the accused traitor put the prosecution to its proof by pleading not guilty, the sworn testimony of two witnesses was necessary to support a conviction. The Court describes at great length the attainder of Fenwick, which served as a cautionary model for Justice Chase's explication of the fourth in Calder. See ante, 6-530.[14] This excursion into post-Restoration English history is diverting, but the Court's statement that "the circumstances of petitioner's case parallel those of Fenwick's case 300 years earlier," ante, at 530, simply will not wash. The preamendment version of Article 38.07 is nothing like the two-witness rule on which Fenwick vainly relied.[15] First, the preamendment version of Article 38.07, unlike a two-witness rule, did not apply indifferently to all who testify. Rather, it branded a particular class of witnesses *574 sexual assault victims aged 14 or olderas less competent than others to speak in court. Second, as I have already described, the Texas statute did not restrict the State to one prescribed form of proof. Both before and after the 1993 amendment, introduction of the victim's corroborated testimony was neither required nor necessarily sufficient to sustain a conviction. Prosecutors' compliance with both the old and new versions of Article 38.07 thus "says absolutely nothing about whether they have introduced a quantum of evidence sufficient to convict the offender." Ante, at 547, 551-552.[16] On the contrary, the only sufficiency rule applicable in Texas sexual offense prosecutions has always been a qualitative one: The State's evidence must be sufficient to prove every element of the offense beyond a reasonable doubt. That should not be surprising. It makes little sense in our modern legal system to conceive of standards of proof in quantitative terms. In a civil case, the winner is the party that produces better evidence, not the party that produces more evidence. Similarly, in a criminal trial the prosecution need not introduce any fixed amount of evidence, so long as the evidence it does introduce could persuade a rational factfinder beyond a reasonable doubt. "Our system of justice rests on the general assumption that the truth is not to be determined merely by the number of witnesses on each side of a controversy. In gauging the truth of conflicting evidence, a jury has no simple formulation of weights and measures on which to rely. The touchstone is always credibility; the ultimate measure of testimonial worth is quality and not *575 quantity." If the Court wishes to rely on the fourth Calder to render Texas' altered evidentiary rule prospective only, it should do so forthrightly by overruling and
|
Justice Ginsburg
| 2,000 | 5 |
dissenting
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Carmell v. Texas
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https://www.courtlistener.com/opinion/118361/carmell-v-texas/
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prospective only, it should do so forthrightly by overruling and rather than by attempting to portray Article 38.07 as a quantitative sufficiency rule indistinguishable from the two-witness requirement that figured in John Fenwick's case. * * * In sum, it is well settled (or was until today) that retroactive changes to rules concerning the admissibility of evidence and the competency of witnesses to testify cannot be ex post facto. Because Article 38.07 is in both function and purpose a rule of admissibility, Beazell, and dictate that its retroactive application does not violate the Ex Post Facto Clause. That conclusion comports perfectly with the dual purposes that underlie the Clause: ensuring fair notice so that individuals can rely on the laws in force at the time they engage in conduct, and sustaining the separation of powers while preventing the passage of vindictive legislation. The Court today thus not only brings about an "undefined enlargement of the Ex Post Facto Clause," 497 U. S., that conflicts with established precedent, it also fails to advance the Clause's fundamental purposes. For these reasons, I dissent.
|
Justice O'Connor
| 1,991 | 14 |
concurring
|
Payne v. Tennessee
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https://www.courtlistener.com/opinion/112643/payne-v-tennessee/
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In my view, a State may legitimately determine that victim impact evidence is relevant to a capital sentencing proceeding. A State may decide that the jury, before determining whether a convicted murderer should receive the death penalty, should know the full extent of the harm caused by the crime, including its impact on the victim's family and community. A State may decide also that the jury should see "a quick glimpse of the life petitioner chose to extinguish," to remind the jury that the person whose life was taken was a unique human being. Given that victim impact evidence is potentially relevant, nothing in the Eighth Amendment commands that States treat it differently than other kinds of relevant evidence. "The Eighth Amendment stands as a shield against those practices and punishments which are either inherently cruel or which so offend the moral consensus of this society as to be deemed `cruel and unusual.'" South Certainly there is no strong societal consensus that a jury may not take into account the loss suffered by a victim's family or that a murder victim must remain a faceless stranger at the penalty phase of a capital trial. Just the opposite is true. Most States have enacted legislation enabling judges and juries to consider victim impact evidence. Ante, at The possibility that this evidence may in some cases be unduly inflammatory does not justify a prophylactic, constitutionally based rule that this evidence may never be admitted. Trial courts routinely exclude evidence that is unduly inflammatory; where inflammatory evidence is improperly admitted, appellate courts carefully review the record to determine whether the error was prejudicial. We do not hold today that victim impact evidence must be admitted, or even that it should be admitted. We hold merely that if a State decides to permit consideration of this evidence, "the Eighth Amendment erects no per se bar." Ante, at 827. If, in a particular case, a witness' testimony or a prosecutor's remark so infects the sentencing proceeding as to render it fundamentally unfair, the defendant may seek appropriate relief under the Due Process Clause of the Fourteenth Amendment. That line was not crossed in this case. The State called as a witness Mary Zvolanek, Nicholas' grandmother. Her testimony was brief. She explained that Nicholas cried for his mother and baby sister and could not understand why they *832 did not come home. I do not doubt that the jurors were moved by this testimony who would not have been? But surely this brief statement did not inflame their passions more than did the facts of
|
Justice O'Connor
| 1,991 | 14 |
concurring
|
Payne v. Tennessee
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https://www.courtlistener.com/opinion/112643/payne-v-tennessee/
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not inflame their passions more than did the facts of the crime: Charisse Christopher was stabbed 41 times with a butcher knife and bled to death; her 2-year-old daughter Lacie was killed by repeated thrusts of that same knife; and 3-year-old Nicholas, despite stab wounds that penetrated completely through his body from front to back, survived only to witness the brutal murders of his mother and baby sister. In light of the jury's unavoidable familiarity with the facts of Payne's vicious attack, I cannot conclude that the additional information provided by Mary Zvolanek's testimony deprived petitioner of due process. Nor did the prosecutor's comments about Charisse and Lacie in the closing argument violate the Constitution. The jury had earlier seen a videotape of the murder scene that included the slashed and bloody corpses of Charisse and Lacie. In arguing that Payne deserved the death penalty, the prosecutor sought to remind the jury that Charisse and Lacie were more than just lifeless bodies on a videotape, that they were unique human beings. The prosecutor remarked that Charisse would never again sing a lullaby to her son and that Lacie would never attend a high school prom. In my view, these statements were permissible. "Murder is the ultimate act of depersonalization." Brief for Justice For All Political Committee et al. as Amici Curiae 3. It transforms a living person with hopes, dreams, and fears into a corpse, thereby taking away all that is special and unique about the person. The Constitution does not preclude a State from deciding to give some of that back. I agree with the Court that and were wrongly decided. The Eighth Amendment does not prohibit a State from choosing to admit evidence concerning a murder victim's personal characteristics or the impact of the crime on the victim's family *833 and community. Booth also addressed another kind of victim impact evidence opinions of the victim's family about the crime, the defendant, and the appropriate sentence. As the Court notes in today's decision, we do not reach this issue as no evidence of this kind was introduced at petitioner's trial. Ante, at 830, n. 2. Nor do we express an opinion as to other aspects of the prosecutor's conduct. As to the victim impact evidence that was introduced, its admission did not violate the Constitution. Accordingly, I join the Court's opinion.
|
Justice Scalia
| 2,012 | 9 |
dissenting
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Vartelas v. Holder
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https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
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As part of the Illegal Immigration Reform and Immi- grant Responsibility Act of 1996 (IIRIRA), Congress re- quired that lawful permanent residents who have commit- ted certain crimes seek formal “admission” when they return to the United States from abroad. 8 U.S. C. This case presents a straightforward question of statutory interpretation: Does that statute apply to lawful permanent residents who, like Vartelas, committed one of the specified offenses before 1996, but traveled abroad after 1996? Under the proper approach to determining a statute’s temporal application, the answer is yes. I The text of does not contain a clear statement answering the question presented here. So the Court is correct that this case is governed by our longstanding interpretive principle that, in the absence of a contrary indication, a statute will not be construed to have retroactive application. See, e.g., The operative provision of this text—the provision that specifies the act that it prohibits or prescribes—says that lawful perma- 2 VARTELAS v. HOLDER SCALIA, J., dissenting nent residents convicted of offenses similar to Vartelas’s must seek formal “admission” before they return to the United States from abroad. Since Vartelas returned to the United States after the statute’s effective date, the appli- cation of that text to his reentry does not give the statute a retroactive effect. In determining whether a statute applies retroactively, we should concern ourselves with the statute’s actual operation on regulated parties, not with retroactivity as an abstract concept or as a substitute for fairness concerns. It is impossible to decide whether a statute’s application is retrospective or prospective without first identifying a reference point—a moment in time to which the statute’s effective date is either subsequent or antecedent. (Other- wise, the obvious question—retroactive in reference to what?—remains unanswered.) In my view, the identity of that reference point turns on the activity a statute is intended to regulate. For any given regulated party, the reference point (or “retroactivity event”) is the moment at which the party does what the statute forbids or fails to do what it requires. See 362– 363 (1999) (SCALIA, J., concurring in part and concurring in judgment); (SCALIA, J., concur- ring in judgments). With an identified reference point, the retroactivity analysis is simple. If a person has engaged in the primary regulated activity before the statute’s effective date, then the statute’s application would be retroactive. But if a person engages in the primary regulated activity after the statute’s effective date, then the statute’s appli- cation is prospective only. In the latter case, the interpre- tive presumption against retroactivity does not bar the statute’s
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Justice Scalia
| 2,012 | 9 |
dissenting
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Vartelas v. Holder
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https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
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interpre- tive presumption against retroactivity does not bar the statute’s application. Under that commonsense approach, this is a relatively easy case. Although the class of aliens affected by is defined with respect to past crimes, the regulated activity is reentry into the United States. By Cite as: 566 U. S. (2012) 3 SCALIA, J., dissenting its terms, the statute is all about controlling admission at the border. It specifies six criteria to identify lawful per- manent residents who are subject to formal “admission” procedures, most of which relate to the circumstances of departure, the trip itself, or reentry. The titles of the statutory sections containing confirm its focus on admission, rather than crime: The provision is located within Title III of IIRIRA (“Inspection, Apprehen- sion, Detention, Adjudication, and Removal of Inadmissi- ble and Deportable Aliens”), under Subtitle A (“Revision of Procedures for Removal of Aliens”), and (“Treating Persons Present in the United States Without Authori- zation as Not Admitted”). –575. And the specific subsection of IIRIRA at issue ((a), entitled “ ‘Admission’ Defined”) is an amendment to the definition of “entry” in the general “Definitions” section of the Immi- gration and Nationality Act (INA). See ante, at 2–3. The original provision told border officials how to regulate admission—not how to punish crime—and the amendment does as well. Section 1101(a)(13)(C)(v) thus has no retroactive effect on Vartelas because the reference point here—Vartelas’s readmission to the United States after a trip abroad— occurred years after the statute’s effective date. Although Vartelas cannot change the fact of his prior conviction, he could have avoided entirely the consequences of by simply remaining in the United States or, having left, remaining in Greece. That had no effect on Vartelas until he per- formed a post-enactment activity is a clear indication that the statute’s application is purely prospective. See 46 (2006) (no retroactive effect where the statute in question did “not operate on a completed preenactment act” and instead turned on “a failure to take timely action that would have avoided application of the new law 4 VARTELAS v. HOLDER SCALIA, J., dissenting altogether”). II The Court avoids this conclusion by insisting that “[p]ast misconduct, not present travel, is the wrongful activity Congress targeted” in Ante, at 11. That assertion does not, however, have any basis in the statute’s text or structure, and the Court does not pretend otherwise. Instead, the Court simply asserts that Vartelas’s “lawful foreign travel” surely could not be the “reason for the ‘new disability’ imposed on him.” (emphasis added). But the reason for a prohibition has nothing to do with whether
|
Justice Scalia
| 2,012 | 9 |
dissenting
|
Vartelas v. Holder
|
https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
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reason for a prohibition has nothing to do with whether the prohibition is being ap- plied to a past rather than a future act. It may be relevant to other legal inquiries—for example, to whether a legisla- tive act violates one of the Ex Post Facto Clauses in Article I, see, e.g., or one of the Due Process Clauses in the Fifth and Fourteenth Amendments, see, e.g., or the Takings Clause in the Fifth Amendment, see, e.g., Kelo v. New London, 545 U.S. 469, 477–483 (2005), or the Obligation of Contracts Clause in Article I, see, e.g., United States Trust Co. of N. But it has no direct bearing upon whether the statute is retroactive.* The Court’s failure to differentiate between the statutory- interpretation question (whether giving certain effect to a provision would make it retroactive and hence presump- —————— * I say no direct bearing because if the prospective application of a statute would raise constitutional doubts because of its effect on pre- enactment conduct, that would be a reason to presume a legislative intent not to apply it unless the conduct in question is post- enactment—that is, to consider it retroactive when the conduct in question is pre-enactment. See 380– 381 (2005). That is not an issue here. If the statute had expressly made the new “admission” rule applicable to those aliens with prior convictions, its constitutionality would not be in doubt. Cite as: 566 U. S. (2012) 5 SCALIA, J., dissenting tively unintended) and the validity question (whether giving certain effect to a provision is unlawful) is on full display in its attempts to distinguish from similar statutes. Take, for example, the Court’s dis- cussion of the Racketeer Influenced and Corrupt Organ- izations Act (RICO). That Act, which targets “patterns of racketeering,” expressly defines those “patterns” to include some pre-enactment conduct. See 18 U.S. C. Courts interpreting RICO therefore need not consider the presumption against retroactivity; instead, the cases cited by the majority consider whether RICO violates the Ex Post Facto Clause. See United States v. Brown, ; United States v. Campanale, (per curiam). The Government recognized this distinction and cited RICO to make a point about the Ex Post Facto Clause rather than the presumption against retroactivity, Brief for Respondent 17–18; the Court evidently does not. The Court’s confident assertion that Congress surely would not have meant this statute to apply to Vartelas, whose foreign travel and subsequent return to the United States were innocent events, ante, at 11, 14, simply begs the question presented in this case. Ignorance, of course, is no excuse (ignorantia legis
|
Justice Scalia
| 2,012 | 9 |
dissenting
|
Vartelas v. Holder
|
https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
|
this case. Ignorance, of course, is no excuse (ignorantia legis neminem excusat); and his return was entirely lawful only if the statute before us did not render it unlawful. Since IIRIRA’s effective date in 1996, lawful permanent residents who have committed crimes of moral turpitude are forbidden to leave the United States and return without formally seeking “ad- mission.” See As a result, Vartelas’s numerous trips abroad and “uneventful” reentries into the United States after the passage of IIRIRA, see ante, at 5, were lawful only if does not apply to him—which is, of course, precisely the matter in dispute here. The Court’s circular reasoning betrays its underlying 6 VARTELAS v. HOLDER SCALIA, J., dissenting concern: Because the Court believes that reentry after a brief trip abroad should be lawful, it will decline to apply a statute that clearly provides otherwise for certain criminal aliens.) The Court’s test for retroac- tivity—asking whether the statute creates a “new disabil- ity” in “respect to past events”—invites this focus on fair- ness. Understandably so, since it is derived from a Justice Story opinion interpreting a provision of the New Hamp- shire Constitution that forbade retroactive laws—a provi- sion comparable to the Federal Constitution’s ex post facto prohibition and bearing no relation to the presumption against retroactivity. What is unfair or irrational (and hence should be forbidden) has nothing to do with whether applying a statute to a particular act is prospective (and thus presumptively intended) or retroactive (and thus presumptively unintended). On the latter question, the “new disability in respect to past events” test provides no meaningful guidance. I can imagine countless laws that, like (C)(v), impose “new disabilities” related to “past events” and yet do not operate retroactively. For example, a stat- ute making persons convicted of drug crimes ineligible for student loans. See, e.g., 20 U.S. C. Or laws prohibiting those convicted of sex crimes from working in certain jobs that involve repeated contact with minors. See, e.g., Cal. Penal Code Ann. §0.95(c) (West Supp. 2012). Or laws prohibiting those previously committed for mental instability from purchasing guns. See, e.g., 18 U.S. C. §2(g)(4). The Court concedes that it would not consider the last two laws inapplicable to pre-enactment convictions or commitments. Ante, at 12, n. 7. The Court does not deny that these statutes impose a “new disability in respect to past events,” but it distinguishes them based on the reason for their enactment: These statutes “address Cite as: 566 U. S. (2012) 7 SCALIA, J., dissenting dangers that arise postenactment.” Ante, at 13, n. 7. So much for the
|
Justice Scalia
| 2,012 | 9 |
dissenting
|
Vartelas v. Holder
|
https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
|
postenactment.” Ante, at 13, n. 7. So much for the new-disability-in-respect-to-past-events test; it has now become a new-disability-not-designed-to-guard- against-future-danger test. But why is guarding against future danger the only reason Congress may wish to regu- late future action in light of past events? It obviously is not. So the Court must invent yet another doctrine to address my first example, the law making persons convicted of drug crimes ineligible for student loans. According to the Court, that statute differs from because it “has a prospective thrust.” Ante, at 13, n. 7. I cannot imagine what that means, other than that the statute regulates post-enactment con- duct. But, of course, so does Rather than reconciling any of these distinctions with Justice Story’s formulation of retroactivity, the Court leaves to lower courts the unenviable task of identifying new- disabilities-not-designed-to-guard-against-future-danger- and-also-lacking-a-prospective-thrust. And anyway, is there any doubt that is intended to guard against the “dangers that arise postenactment” from having aliens in our midst who have shown themselves to have proclivity for crime? Must that be rejected as its purpose simply because Congress has not sought to achieve it by all possible means—by ferreting out such dangerous aliens and going through the expen- sive and lengthy process of deporting them? At least some of the post-enactment danger can readily be eliminated by forcing lawful permanent residents who have committed certain crimes to undergo formal “admission” procedures at our borders. Indeed, by limiting criminal aliens’ oppor- tunities to travel and then return to the United States, may encourage self-deportation. But all this is irrelevant. The positing of legislative “purpose” is always a slippery enterprise compared to the simple determination of whether a statute regulates a future 8 VARTELAS v. HOLDER SCALIA, J., dissenting event—and it is that, rather than the Court’s pronounce- ment of some forward-looking reason, which governs whether a statute has retroactive effect. Finally, I cannot avoid observing that even if the Court’s concern about the fairness or rationality of applying to Vartelas were relevant to the statu- tory interpretation question, that concern is greatly exag- gerated. In disregard of a federal statute, convicted crimi- nal Vartelas repeatedly traveled to and from Greece without ever seeking formal admission at this country’s borders. When he was finally unlucky enough to be ap- prehended, and sought discretionary relief from removal under former of the INA, 8 U.S. C. (1994 ed.), the Immigration Judge denying his application found that Vartelas had made frequent trips to Greece and had remained there for long periods of time, that he was “a serious tax evader,” that he had
|
Justice Scalia
| 2,012 | 9 |
dissenting
|
Vartelas v. Holder
|
https://www.courtlistener.com/opinion/626207/vartelas-v-holder/
|
that he was “a serious tax evader,” that he had offered testimony that was “close to incredible,” and that he had not shown hard- ship to himself or his estranged wife and children should he be removed. See ; Brief for Respondent 5 (internal quotation marks omitted). In decrying the “harsh penalty” imposed by this statute on Vartelas, the Court ignores those inconvenient facts. Ante, at 9. But never mind. Under any sensible approach to the presumption against retroactivity, these factual subtleties should be irrelevant to the temporal application of * * * This case raises a plain-vanilla question of statutory interpretation, not broader questions about frustrated expectations or fairness. Our approach to answering that question should be similarly straightforward: We should determine what relevant activity the statute regulates (here, reentry); absent a clear statement otherwise, only such relevant activity which occurs after the statute’s Cite as: 566 U. S. (2012) 9 SCALIA, J., dissenting effective date should be covered (here, post-1996 re- entries). If, as so construed, the statute is unfair or irra- tional enough to violate the Constitution, that is another matter entirely, and one not presented here. Our inter- pretive presumption against retroactivity, however, is just that—a tool to ascertain what the statute means, not a license to rewrite the statute in a way the Court considers more desirable. I respectfully dissent
|
Justice Rehnquist
| 1,973 | 19 |
majority
|
Robinson v. Neil
|
https://www.courtlistener.com/opinion/108660/robinson-v-neil/
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In 1962 petitioner was tried and convicted in the Chattanooga municipal court of three counts of assault and battery in violation of a city ordinance. He was fined $50 and costs on each count. He was later indicated by the grand jury of Hamilton County, Tennessee, which, out of the same circumstances giving rise to the municipal trial, charged him with three offenses of assault with intent to commit murder in violation of state law. The petitioner pleaded guilty to the state charges and received consecutive sentences of three to 10 years for two offenses and three to five years for the third offense. He is presently in the custody of the respondent warden of the Tennessee State Penitentiary. *506 In 1966 the petitioner unsuccessfully sought habeas corpus relief in state courts on the ground that the second convictions for state offenses violated his federal constitutional guarantee against twice being placed in jeopardy for the same offense. In federal courts denied a similar request for habeas corpus relief. aff'd, In 1970 the petitioner renewed his claims for habeas relief, basing his arguments on this Court's intervening decisions in and Holding that Waller was to be accorded retrospective effect, the District Court granted the petitioner habeas corpus relief. The Sixth Circuit reversed ) and we granted certiorari to decide the retroactivity of The Fifth Amendment's guarantee that no person be twice put in jeopardy for the same offense was first held binding on the States in Our subsequent decision in held that the scope of this guarantee precluded the recognition of the "dual sovereignty" doctrine with respect to separate state and municipal prosecutions. Waller involved the theft of a mural from the City Hall of St. Petersburg, The petitioner there was first tried and convicted of violating city ordinances with respect to the destruction of city property and breach of the peace. Subsequently, he was convicted of grand larceny in violation of state law involving the same theft. The Court stated: "the courts were in error to the extent of holding that " `even if a person has been tried in a municipal court for the identical offense with which he is charged *507 in a state court, this would not be a bar to the prosecution of such person in the proper state court.' " Prior to this Court's 1965 decision in there would have been less doubt concerning the retroactivity of the Waller holding. For, until that time, both the common law and our own decisions recognized a general rule of retrospective effect for the constitutional decisions of this
|
Justice Rehnquist
| 1,973 | 19 |
majority
|
Robinson v. Neil
|
https://www.courtlistener.com/opinion/108660/robinson-v-neil/
|
rule of retrospective effect for the constitutional decisions of this Court, e. g., subject to limited exceptions of a nature such as those stated in Chicot County Drainage In Linkletter, the Court, declaring that it was charting new ground ( and n. 13), held that with respect to new constitutional interpretations involving criminal rights "the Constitution neither prohibits nor requires retrospective " Linkletter and succeeding cases established a set of factors for determining which constitutional rules were to be accorded retrospective and which prospective effect only.[*] The District Court and the Sixth Circuit in this case applied the factors enunciated by these cases to the Waller holding. The Sixth Circuit held, contrary to the conclusion of the District Court, that Waller is not to be applied retroactively. We do not believe that this case readily lends itself to the analysis established in Linkletter. Certainly, there is nothing in Linkletter or those cases following it to indicate that all rules and constitutional interpretations arising under the first eight Amendments must be subjected to the analysis there enunciated. Linkletter itself announced an exception to the general rule of retroactivity *508 in a decision announcing that the exclusionary rule of would be given prospective effect only. Linkletter, and the other cases relied upon by the Sixth Circuit, dealt with those constitutional interpretations bearing on the use of evidence or on a particular mode of trial. Those procedural rights and methods of conducting trials, however, do not encompass all of the rights found in the first eight Amendments. Guarantees that do not relate to these procedural rules cannot, for retroactivity purposes, be lumped conveniently together in terms of analysis. For the purpose and effect of the various constitutional guarantees vary sufficiently among themselves so as to affect the necessity for prospective rather than retrospective application. Linkletter indicated, for instance, that only those procedural rules affecting "the very integrity of the fact-finding process" would be given retrospective In terms of some nonprocedural guarantees, this test is simply not appropriate. In for example, this Court held that in the situation there presented imposition of the death penalty was not constitutionally permissible. Yet, while this holding does not affect the integrity of the factfinding process, we have not hesitated to apply it retrospectively without regard to whether the rule meets the Linkletter criteria. E. g., The prohibition against being placed in double jeopardy is likewise not readily susceptible of analysis under the Linkletter line of cases. Although the Court has not handed down a fully reasoned opinion on the retroactivity of it has indicated that it is
|
Justice Rehnquist
| 1,973 | 19 |
majority
|
Robinson v. Neil
|
https://www.courtlistener.com/opinion/108660/robinson-v-neil/
|
on the retroactivity of it has indicated that it is retroactive without examination of the Linkletter criteria. North ; These *509 decisions do not directly control the question of whether Waller should be given retrospective effect but they bear upon its disposition. The guarantee against double jeopardy is significantly different from procedural guarantees held in the Linkletter line of cases to have prospective effect only. While this guarantee, like the others, is a constitutional right of the criminal defendant, its practical result is to prevent a trial from taking place at all, rather than to prescribe procedural rules that govern the conduct of a trial. A number of the constitutional rules applied prospectively only under the Linkletter cases were found not to affect the basic fairness of the earlier trial, but to have been directed instead to collateral purposes such as the deterrence of unlawful police conduct, In Waller, however, the Court's ruling was squarely directed to the prevention of the second trial's taking place at all, even though it might have been conducted with a scrupulous regard for all of the constitutional procedural rights of the defendant. We would not suggest that the distinction that we draw is an ironclad one that will invariably result in the easy classification of cases in one category or the other. The element of reliance embodied in the Linkletter analysis will not be wholly absent in the case of constitutional decisions not related to trial procedure, as indeed this case when contrasted with Furman illustrates. In our mandate was tailored so as to deny to the State only the authority to impose a punishment that we held unconstitutional, without the necessity of a redetermination of the factual question of whether the offense had in fact been committed. Thus, the prejudice to the State resulting from the necessity of an entirely new trial because of procedures newly found to be constitutionally defective, with the *510 attendant difficulties of again assembling witnesses whose memories would of necessity be dimmer for the second trial than for the first, was not present. That which was constitutionally invalid could be isolated and excised without requiring the State to begin the entire factfinding process anew. The application of Waller retrospectively may, on the other hand, result in a form of prejudice to the State because, in reliance upon the "dual sovereignty" analogy, the municipal prosecution may have occurred first and the sentence already have been served prior to the commencement of the state prosecution. If the offense involved was a serious one under state law, as it apparently was
|
Justice Rehnquist
| 1,973 | 19 |
majority
|
Robinson v. Neil
|
https://www.courtlistener.com/opinion/108660/robinson-v-neil/
|
a serious one under state law, as it apparently was in this case, the defendant may have been unintentionally accorded a relatively painless form of immunity from the state prosecution. But the Court's opinion in Waller makes clear that the analogy between state and municipal prosecutions, and federal and state prosecutions permitted in had never been sanctioned by this Court and was not analytically sound. Since the issue did not assume federal constitutional proportions until after held the Double Jeopardy Clause applicable to the States, this Court had not earlier had occasion to squarely pass on the issue. But its decision in Waller cannot be said to have marked a departure from past decisions of this Court. Therefore, while Waller-type cases may involve a form of practical prejudice to the State over and above the refusal to permit the trial that the Constitution bars, the justifiability of the State's reliance on lower court decisions supporting the dual sovereignty analogy was a good deal more dubious than the justification for reliance that has been given weight in our Linkletter line of cases. We intimate no view as to what weight should be accorded *511 to reliance by the State that was justifiable under the Linkletter test in determining retroactivity of a nonprocedural constitutional decision such as Waller. We hold, therefore, that our decision in is to be accorded full retroactive We refrain from an outright reversal of the judgment below, however, because statements of counsel at oral argument raised the issue of whether the state and municipal prosecutions were actually for the same offense. We therefore vacate the judgment of the Court of Appeals and remand the case so that respondent may have an opportunity to present this issue there or in the District Court. It is so ordered. MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL concur. Although I otherwise join the opinion of the Court, I would reverse the judgment of the Court of Appeals outright. I adhere to my view that, regardless of the similarity of the offenses, the Double Jeopardy Clause of the Fifth Amendment, which is applicable to the States through the Fourteenth Amendment, requires the prosecution, except in most limited circumstances not present here, "to join at one trial all the charges against a defendant that grow out of a single criminal act, occurrence, episode, or transaction." ; see Grubb v. Oklahoma, post, p. 1017 ; ; Under this "same transaction" test, all charges against petitioner should have been brought in a single prosecution.
|
Justice Breyer
| 2,010 | 2 |
majority
|
Merck & Co. v. Reynolds
|
https://www.courtlistener.com/opinion/145292/merck-co-v-reynolds/
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This case concerns the timeliness of a complaint filed in a private securities fraud action. The complaint was timely if filed no more than two years after the plaintiffs “discover[ed] the facts constituting the violation.” 28 U.S. C. Construing this limitations statute for the first time, we hold that a cause of action accrues (1) when the plaintiff did in fact discover, or (2) when a rea sonably diligent plaintiff would have discovered, “the facts constituting the violation”—whichever comes first. We also hold that the “facts constituting the violation” include the fact of scienter, “a mental state embracing intent to deceive, manipulate, or defraud,” & v. Hochfelder, pplying this standard, we affirm the Court of ppeals’ determination that the complaint filed here was timely. I The action before us involves a claim by a group of inves tors (the plaintiffs, respondents here) that Merck & Co. and others (the petitioners here, hereinafter Merck) know ingly misrepresented the risks of heart attacks accompany 2 MERCK & CO. v. REYNOLDS Opinion of the Court ing the use of Merck’s pain-killing drug, Vioxx (leading to economic losses when the risks later became apparent). The plaintiffs brought an action for securities fraud under of the Securities Exchange ct of 134. See 48 Stat. 81, as amended, 15 U.S. C. SEC Rule 10b–5, 17 CFR (200); Dura Pharmaceuticals, Inc. v. Broudo, The applicable statute of limitations provides that a “private right of action” that, like the present action, “involves a claim of fraud, deceit, manipulation, or con trivance in contravention of a regulatory requirement concerning the securities laws may be brought not later than the earlier of— “(1) 2 years after the discovery of the facts constituting the violation; or “(2) 5 years after such violation.” 28 U.S. C. The complaint in this case was filed on November 6, 2003, and no one doubts that it was filed within five years of the alleged violation. Therefore, the critical date for timeliness purposes is November 6, —two years before this complaint was filed. Merck claims that before this date the plaintiffs had (or should have) discovered the “facts constituting the violation.” If so, by the time the plaintiffs filed their complaint, the 2-year statutory period in had run. The plaintiffs reply that they had not, and could not have, discovered by the critical date those “facts,” particularly not the facts related to scienter, and that their complaint was therefore timely. We first set out the relevant pre-November facts, as we have gleaned them from the briefs, the record, and the opinions below. 1. 10’s. In the
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the record, and the opinions below. 1. 10’s. In the mid-10’s Merck developed Vioxx. In 1 the Food and Drug dministration (FD) approved it for prescription use. Vioxx suppresses pain by inhibiting Cite as: 55 U. S. (0) 3 Opinion of the Court the body’s production of an enzyme called COX–2 (cyclooxy- genase-2). COX–2 is associated with pain and inflamma- tion. Unlike some other anti-inflammatory drugs in its class like aspirin, ibuprofen, and naproxen, Vioxx does not inhibit production of a second enzyme called COX–1 (cyclooxygenase-1). COX–1 plays a part in the functioning of the gastrointestinal tract and also in platelet aggregation (associated with blood clots). pp. 50–51. 2. March Merck announced the results of a study, called the “VIGOR” study. at 21–24. The study compared Vioxx with another painkiller, naproxen. The study showed that persons taking Vioxx suffered fewer gastrointestinal side effects (as Merck had hoped). But the study also revealed that approximately 4 out of every 1,000 participants who took Vioxx suffered heart attacks, compared to only 1 per 1,000 participants who took naproxen. ; see Bombardier et al., Com- parison of Upper Gastrointestinal Toxicity of Rofecoxib and Naproxen in Patients with Rheumatoid rthritis, 343 New England J. Medicine 1520, 1523, 1526–1527 Merck’s press release acknowledged VIGOR’s adverse cardiovascular data. But Merck said that these data were “consistent with naproxen’s ability to block platelet aggre- gation.” pp. 21. Merck noted that, since “Vioxx, like all COX–2 selective medicines, does not block platelet aggre- gation[, it] would not be expected to have similar effects.” nd Merck added that “safety data from all other completed and ongoing clinical trials showed no indica- tion of a difference in the incidence of thromboembolic events between Vioxx” and either a placebo or comparable drugs. This theory—that VIGOR’s troubling cardiovascular findings might be due to the absence of a benefit conferred by naproxen rather than due to a harm caused by Vioxx— later became known as the “naproxen hypothesis.” In advancing that hypothesis, Merck acknowledged that the 4 MERCK & CO. v. REYNOLDS Opinion of the Court naproxen benefit “had not been observed previously.” at 21. Journalists and stock market analysts reported all of the above—the positive gastrointestinal results, the troubling cardiovascular finding, the naproxen hypothesis, and the fact that the naproxen hypothesis was unproved. See at 355–31, 508–557. 3. February to ugust Public debate about the naproxen hypothesis continued. In February the FD’s rthritis dvisory Committee convened to consider Merck’s request that the Vioxx label be changed to reflect VIGOR’s positive gastrointestinal findings. The VIGOR cardiovascular findings were also discussed. at 32– 35,
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The VIGOR cardiovascular findings were also discussed. at 32– 35, 558–577. In May a group of plaintiffs filed a products-liability lawsuit against Merck, claiming that “Merck’s own research” had demonstrated that “users of Vioxx were four times as likely to suffer heart attacks as compared to other less expensive, medications.” at 86. In ugust the Journal of the merican Medical ssociation wrote that the available data raised a “cau tionary flag” and strongly urged that “a trial specifically assessing cardiovascular risk” be done. at 331–332; Mukherjee, Nissen, & Topol, Risk of Cardiovascular Events ssociated with Selective Cox-2 Inhibitors, 286 JM 54 t about the same time, Bloomberg News quoted a Merck scientist who claimed that Merck had “additional data” that were “very, very reassuring,” and Merck issued a press release stating that it stood “behind the overall and cardiovascular safety profile of Vioxx.” pp. 434, 120 (emphasis deleted; internal quota tion marks omitted). 4. September and October The FD sent Merck a warning letter released to the public on September 21, It said that, in respect to cardiovascular risks, Merck’s Vioxx marketing was “false, lacking in fair bal ance, or otherwise misleading.” t the same time, the FD acknowledged that the naproxen hypothesis Cite as: 55 U. S. (0) 5 Opinion of the Court was a “possible explanation” of the VIGOR results. at 340. But it found that Merck’s “promotional campaign selectively present[ed]” that hypothesis without adequately acknowledging “another reasonable explanation,” namely, “that Vioxx may have pro-thrombotic [i.e., adverse cardio vascular] properties.” The FD ordered Merck to send healthcare providers a corrective letter. fter the FD letter was released, more products liability lawsuits were filed. See at 885–56. Merck’s share price fell by 6.6% over several days. See By October 1, the price rebounded. See On October the New York Times said that Merck had reexam ined its own data and “found no evidence that Vioxx in creased the risk of heart attacks.” pp. 504. It quoted the president of Merck Research Laboratories as positing “ ‘two possible interpretations’ ”: “ ‘Naproxen lowers the heart attack rate, or Vioxx raises it.’ ” Stock ana lysts, while reporting the warning letter, also noted that the FD had not denied that the naproxen hypothesis remained an unproven but possible explanation. See at 614, 626, 628. B We next set forth three important events that occurred after the critical date. 1. October 2003. The Wall Street Journal published the results of a Merck-funded Vioxx study conducted at Bos ton’s Brigham and Women’s Hospital. fter examining the medical records of more than 50,000 Medicare
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fter examining the medical records of more than 50,000 Medicare pa tients, researchers found that those given Vioxx for 30-to 0 days were 37% more likely to have suffered a heart attack than those given either a different painkiller or no painkiller at all. at 164–165. (That is to say, if pa tients given a different painkiller or given no painkiller at all suffered 10 heart attacks, then the same number of patients given Vioxx would suffer 13 or 14 heart attacks.) 6 MERCK & CO. v. REYNOLDS Opinion of the Court Merck defended Vioxx and pointed to the study’s limita tions. at 165–167. 2. September 30, 2004. Merck withdrew Vioxx from the market. It said that a new study had found “an increased risk of confirmed cardiovascular events beginning after 18 months of continuous therapy.” (internal quo tation marks omitted). Merck representative publicly described the results as “totally unexpected.” Merck’s shares fell by 27% the same day. 3. November 1, 2004. The Wall Street Journal published an article stating that “internal Merck e-mails and mar keting materials as well as interviews with outside scien tists show that the company fought forcefully for years to keep safety concerns from destroying the drug’s commer cial prospects.” at 18–10. The article said that an early e-mail from Merck’s head of research had said that the VIGOR “results showed that the cardiovascular events ‘are clearly there,’ ” that it was “ ‘a shame but a low incidence,’ ” and that it “ ‘is mechanism based as we wor ried it was.’ ” It also said that Merck had given its salespeople instructions to “ ‘DODGE’ ” questions about Vioxx’s cardiovascular effects. C The plaintiffs filed their complaint on November 6, 2003. s subsequently amended, the complaint alleged that Merck had defrauded investors by promoting the naproxen hypothesis, knowing the hypothesis was false. It said, for example, that Merck “knew, at least as early as 16, of the serious safety issues with Vioxx,” and that a “18 internal Merck clinical trial revealed that serious cardiovascular events occurred six times more frequently in patients given Vioxx than in patients given a different arthritis drug or placebo.” 58–5 (emphasis and capitalization deleted). Merck, believing that the plaintiffs knew or should have Cite as: 55 U. S. (0) 7 Opinion of the Court known the “facts constituting the violation” at least two years earlier, moved to dismiss the complaint, saying it was filed too late. The District Court granted the motion. The court held that the VIGOR study, the FD warning letter, and Merck’s response should have
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study, the FD warning letter, and Merck’s response should have alerted the plaintiffs to a “possibility that Merck had knowingly misrepresented material facts” no later than October thus placing the plaintiffs on “inquiry notice” to look further. In re Merck & Co. Securities, Derivative & “ERIS” Litigation, Finding that the plaintiffs had failed to “show that they exercised reasonable due diligence but nevertheless were unable to discover their injuries,” the court took October as the date that the limitations period began to run and therefore found the complaint untimely. The Court of ppeals for the Third Circuit reversed. majority held that the pre-November events, while constituting “storm warnings,” did not suggest much by way of scienter, and consequently did not put the plaintiffs on “inquiry notice,” requiring them to investigate further. In re Merck & Co. Securities, Derivative & “ERIS” Litiga tion, dissenting judge consid ered the pre-November events sufficient to start the 2-year clock running. Merck sought review in this Court, pointing to dis agreements among the Courts of ppeals. Compare Theo (limita tions period begins to run when information puts plaintiffs on “inquiry notice” of the need for investigation), with (same; but if plaintiff does investigate, period runs “from the date such inquiry should have revealed the fraud” (internal quotation marks omitted)), and New England Health Employees Pension Fund v. & LLP, 336 F.3d 45, 501 (C6 2003) (limitations period always begins to 8 MERCK & CO. v. REYNOLDS Opinion of the Court run only when a reasonably diligent plaintiff, after being put on “inquiry notice,” should have discovered facts con stituting violation (internal quotation marks omitted)). We granted Merck’s petition. II Before turning to Merck’s arguments, we consider a more basic matter. The parties and the Solicitor General agree that ’s word “discovery” refers not only to a plaintiff’s actual discovery of certain facts, but also to the facts that a reasonably diligent plaintiff would have discovered. We agree. But because the statute’s language does not make this interpretation obvious, and because we cannot answer the question presented without considering whether the parties are right about this matter, we set forth the reasons for our agreement in some detail. We recognize that one might read the statutory words “after the discovery of the facts constituting the violation” as referring to the time a plaintiff actually discovered the relevant facts. But in the statute of limitations context, the word “discovery” is often used as a term of art in con nection with the “discovery rule,” a doctrine that delays accrual of a cause of action until the plaintiff
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delays accrual of a cause of action until the plaintiff has “discov ered” it. The rule arose in fraud cases as an exception to the general limitations rule that a cause of action accrues once a plaintiff has a “complete and present cause of ac tion,” Bay rea Laundry and Dry Cleaning Pension Trust ; inter nal quotation marks omitted). This Court long ago recog nized that something different was needed in the case of fraud, where a defendant’s deceptive conduct may prevent a plaintiff from even knowing that he or she has been defrauded. Otherwise, “the law which was designed to prevent fraud” could become “the means by which it is Cite as: 55 U. S. (0) Opinion of the Court made successful and secure.” Bailey v. Glover, 21 Wall. 342, 34 ccordingly, “where a plaintiff has been injured by fraud and remains in ignorance of it without any fault or want of diligence or care on his part, the bar of the statute does not begin to run until the fraud is discovered.” (146) (internal quotation marks omitted; emphasis added). nd for more than a century, courts have under stood that “[f]raud is deemed to be discovered when, in the exercise of reasonable diligence, it could have been discovered.” 2 H. Wood, Limitation of ctions p. 1402 (4th ed. 116); see at 1401–1403, and nn. 74– 84 (collecting cases and statutes); see, e.g., Holmberg, at ; (The rule “regard[s] the cause of action as having accrued at the time the fraud was or should have been discovered”). More recently, both state and federal courts have ap plied forms of the “discovery rule” to claims other than fraud. See 2 C. Corman, Limitation of ctions 11.1.2.3, pp. 136–142, and nn. 6–13, 18–23 (11 and Supp.) (hereinafter Corman) ; see, e.g., United Legisla tures have codified the discovery rule in various contexts. 2 Corman at 170–171, and nn. 1– (collecting stat utes); see, e.g., 28 U.S. C. (actions to quiet title against the United States). In doing so, legislators have written the word “discovery” directly into the statute. nd when they have done so, state and federal courts have typically interpreted the word to refer not only to actual discovery, but also to the hypothetical discovery of facts a reasonably diligent plaintiff would know. See, e.g., Pea 217–220, (106); ; 640–642, 10 MERCK & CO. v. REYNOLDS Opinion of the Court 821 (124); (C5 15); 657 P.2d 604, 606 ; ; J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers
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Shearson, Inc., 76 F.3d 1245, (C1 16). Thus, treatise writers now describe “the discovery rule” as allowing a claim “to accrue when the litigant first knows or with due diligence should know facts that will form the basis for an action.” 2 Corman at 134 ; see also ib n. 1 ; 37 m. Jur. 2d, Fraud and Deceit p. 354 ( and Supp. 200) (noting that the various formulations of “dis covery” all provide that “in addition to actual knowledge of the fraud, once a reasonably diligent party is in a position that they should have sufficient knowledge or information to have actually discovered the fraud, they are charged with discovery”); at 354–355, and nn. 2–11 (collecting cases). Like the parties, we believe that Congress intended courts to interpret the word “discovery” in similarly. Before Congress enacted that statute, this Court, having found in the federal securities laws the existence of an implied private action, determined its governing limitations period by looking to other limita tions periods in the federal securities laws. Pleva, Lipkind, Prupis & (11). Noting the existence of various formulations “differ[ing] slightly in terminology,” the Court chose the language in 15 U.S. C. the statutory provision that governs securities price manipulation claims. 501 U.S., at 364, n. nd in doing so, the Court said that private actions “must be commenced within one year after the discovery of the facts constituting the viola tion and within three years after such violation.” at 364 (The Court listed among the vari Cite as: 55 U. S. (0) 11 Opinion of the Court ous formulations the one in 15 U.S. C. on which the concurrence relies. See post, at 2–4 (SCLI, J., concurring in part and concurring in judgment); and n. 7 Some of those courts noted that other limitations provi sions in the federal securities laws explicitly provide that the period begins to run “ ‘after the discovery of the untrue statement or after such discovery should have been made by [the] exercise of reasonable diligence,’ ” whereas the formulation adopted by the Court in from 15 U.S. C. does not. (quoting emphasis added in ); see at 364, n. But, courts reasoned, because the term “discov ery” in respect to statutes of limitations for fraud has long been understood to include discoveries a reasonably dili gent plaintiff would make, the omission of an explicit provision to that effect did not matter. at 721; accord, New England Health – 500. In when Congress enacted the present limitations statute, it repeated ’s critical language. The statute says that an action
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repeated ’s critical language. The statute says that an action based on fraud “may be brought not later than the earlier of 2 years after the discovery of the facts constituting the violation” (or “5 years after such violation”). of the Sarbanes-Oxley ct, codified at 28 U.S. C. (This statutory provision does not make the linguistic distinc 12 MERCK & CO. v. REYNOLDS Opinion of the Court tion that the concurrence finds in a different statute, and upon which its argument rests. Cf. 2 U.S. C. (statute in which Congress provided that an action be brought “three years after the earliest date on which the plaintiff had actual knowledge of the breach or violation” ).) Not surprisingly, the Courts of ppeals unanimously have continued to inter pret the word “discovery” in this statute as including not only facts a particular plaintiff knows, but also the facts any reasonably diligent plaintiff would know. See, e.g., Staehr v. Hartford Financial Servs. Group, Inc., 547 F.3d 406, 411 ; Sudo Properties, We normally assume that, when Congress enacts stat utes, it is aware of relevant judicial precedent. See, e.g., 116–117, and n. 13 ; Given the history and precedent surrounding the use of the word “discovery” in the limitations context generally as well as in this provision in particular, the reasons for making this as sumption are particularly strong here. We consequently hold that “discovery” as used in this statute encompasses not only those facts the plaintiff actually knew, but also those facts a reasonably diligent plaintiff would have known. nd we evaluate Merck’s claims accordingly. III We turn now to Merck’s arguments in favor of holding that petitioners’ claims accrued before November 6, First, Merck argues that the statute does not require “discovery” of scienter-related “facts.” See Brief for Peti tioners 1–28. We cannot agree, however, that facts about scienter are unnecessary. The statute says that the limitations period does not begin to run until “discovery of the facts constituting the Cite as: 55 U. S. (0) 13 Opinion of the Court violation.” 28 U.S. C. Scienter is assuredly a “fact.” In a action, scienter refers to “a mental state embracing intent to deceive, manipulate, or defraud.” & n. 12. nd the “ ‘state of a man’s mind is as much a fact as the state of his digestion.’ ” Postal Service Bd. of Gover (quoting Edging ton v. Fitzmaurice, [1885] 2 Ch. Div. 45, 483). nd this “fact” of scienter “constitut[es]” an important and necessary element of a “violation.” plaintiff cannot recover without proving that a defendant made a material misstatement
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recover without proving that a defendant made a material misstatement with an intent to deceive—not merely innocently or negligently. See Inc. v. Makor Issues & Rights, Ltd., ; & Indeed, Congress has enacted special heightened pleading requirements for the scienter element of fraud cases. See 15 U.S. C. (requiring plaintiffs to “state with particularity facts giving rise to a strong inference that the defendant acted with the required state of mind” ). s a result, unless a plaintiff can set forth facts in the complaint showing that it is “at least as likely as” not that the defendant acted with the relevant knowledge or intent, the claim will fail. It would therefore frustrate the very purpose of the discovery rule in this provision—which, after all, specifically applies only in cases “involv[ing] a claim of fraud, deceit, manipu lation, or contrivance,” —if the limitations period began to run regardless of whether a plaintiff had discov ered any facts suggesting scienter. So long as a defendant concealed for two years that he made a misstatement with an intent to deceive, the limitations period would expire before the plaintiff had actually “discover[ed]” the fraud. We consequently hold that facts showing scienter are among those that “constitut[e] the violation.” In so hold ing, we say nothing about other facts necessary to support 14 MERCK & CO. v. REYNOLDS Opinion of the Court a private action. Cf. Brief for United States as micus Curiae 12, n. 1 (suggesting that facts concerning a plaintiff’s reliance, loss, and loss causation are not among those that constitute “the violation” and therefore need not be “discover[ed]” for a claim to accrue). Second, Merck argues that, even if “discovery” requires facts related to scienter, facts that tend to show a materi ally false or misleading statement (or material omission) are ordinarily sufficient to show scienter as well. See Brief for Petitioners 22, 28–2. But we do not see how that is so. We recognize that certain statements are such that, to show them false is normally to show scienter as well. It is unlikely, for example, that someone would falsely say “I am not married” without being aware of the fact that his statement is false. Where is at issue, however, the relation of factual falsity and state of mind is more context specific. n incorrect prediction about a firm’s future earnings, by itself, does not automatically tell us whether the speaker deliberately lied or just made an innocent (and therefore nonactionable) error. Hence, the statute may require “discovery” of scienter-related facts beyond the facts that show a statement (or
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scienter-related facts beyond the facts that show a statement (or omission) to be materially false or misleading. Merck fears that this requirement will give life to stale claims or subject defen dants to liability for acts taken long ago. But Congress’ inclusion in the statute of an unqualified bar on actions instituted “5 years after such violation,” (2), giv ing defendants total repose after five years, should dimin ish that fear. Cf. (holding compa rable bar not subject to equitable tolling). Third, Merck says that the limitations period began to run prior to November because by that point the plaintiffs were on “inquiry notice.” Merck uses the term “inquiry notice” to refer to the point “at which a plaintiff possesses a quantum of information sufficiently suggestive of wrongdoing that he should conduct a further inquiry.” Cite as: 55 U. S. (0) 15 Opinion of the Court Brief for Petitioners 20. nd some, but not all, Courts of ppeals have used the term in roughly similar ways. See, e.g., (“[I]nquiry notice [is] “ ‘the term used for knowledge of facts that would lead a reasonable person to begin investigating the possibility that his legal rights had been infringed’ ”). Cf. 12 F.3d, at (“duty of inquiry” arises once “circumstances would suggest to an investor of ordinary intelligence the probability that she had been defrauded”); Fujisawa Pharmaceutical Co. v. Kapoor, (“The facts constituting [inquiry] notice must be sufficien[t] to incite the victim to investigate” and “to enable him to tie up any loose ends and complete the investigation in time to file a timely suit”); Great Rivers Cooperative of South eastern 86 (“Inquiry notice exists when the victim is aware of facts that would lead a reasonable person to investigate and consequently acquire actual knowledge of the defendant’s misrepresentations” ). If the term “inquiry notice” refers to the point where the facts would lead a reasonably diligent plaintiff to investi gate further, that point is not necessarily the point at which the plaintiff would already have discovered facts showing scienter or other “facts constituting the violation.” But the statute says that the plaintiff’s claim accrues only after the “discovery” of those latter facts. Nothing in the text sug gests that the limitations period can sometimes begin before “discovery” can take place. Merck points out that, as we have discussed, see at 8–, the court-created “discov ery rule” exception to ordinary statutes of limitations is not generally available to plaintiffs who fail to pursue their claims with reasonable diligence. But we are dealing here with a statute, not a court-created exception to a
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here with a statute, not a court-created exception to a statute. Because the statute contains no indication that the limita tions period should occur at some earlier moment before 16 MERCK & CO. v. REYNOLDS Opinion of the Court “discovery,” when a plaintiff would have begun investigat ing, we cannot accept Merck’s argument. s a fallback, Merck argues that even if the limitations period does generally begin at “discovery,” it should none theless run from the point of “inquiry notice” in one par ticular situation, namely, where the actual plaintiff fails to undertake an investigation once placed on “inquiry no tice.” In such circumstances, Merck contends, the actual plaintiff is not diligent, and the law should not “effectively excuse a plaintiff’s failure to conduct a further investiga tion” by placing that nondiligent plaintiff and a reasonably diligent plaintiff “in the same position.” Brief for Petition ers 48. We cannot accept this argument for essentially the same reason we reject “inquiry notice” as the standard gener ally: We cannot reconcile it with the statute, which simply provides that “discovery” is the event that triggers the 2 year limitations period—for all plaintiffs. Cf. United (“Laches within the term of the statute of limitations is no defense at law”). Furthermore, the statute does not place all plain tiffs “in the same position” no matter whether they inves tigate when investigation is warranted. The limitations period puts plaintiffs who fail to investigate once on “in quiry notice” at a disadvantage because it lapses two years after a reasonably diligent plaintiff would have discovered the necessary facts. plaintiff who fails entirely to inves tigate or delays investigating may well not have discov ered those facts by that time or, at least, may not have found sufficient facts by that time to be able to file a complaint that satisfies the applicable heightened plead ing standards. Cf. (“[] reasonably diligent investigation may consume as little as a few days or as much as a few years to get to the bottom of the matter”). Merck further contends that its proposed “inquiry no Cite as: 55 U. S. (0) 17 Opinion of the Court tice” standard is superior, because determining when a hypothetical reasonably diligent plaintiff would have “discover[ed]” the necessary facts is too complicated for judges to undertake. But courts applying the traditional discovery rule have long had to ask what a reasonably diligent plaintiff would have known and done in myriad circumstances. nd courts in at least five Circuits already ask this kind of question in securities fraud cases. See, e.g., 7 ; New England
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in securities fraud cases. See, e.g., 7 ; New England Health ; at 1, –10; 154 F.3d 111, 1 (C10 18); Marks v. CDW Computer Centers, Inc., 122 F.3d 363, 367–368 Merck has not shown this precedent to be unworkable. We consequently find that the “discovery” of facts that put a plaintiff on “inquiry notice” does not automatically begin the running of the limitations period. We conclude that the limitations period in begins to run once the plaintiff did discover or a reasona bly diligent plaintiff would have “discover[ed] the facts constituting the violation”—whichever comes first. In determining the time at which “discovery” of those “facts” occurred, terms such as “inquiry notice” and “storm warn ings” may be useful to the extent that they identify a time when the facts would have prompted a reasonably diligent plaintiff to begin investigating. But the limitations period does not begin to run until the plaintiff thereafter discov ers or a reasonably diligent plaintiff would have discov ered “the facts constituting the violation,” including sci enter—irrespective of whether the actual plaintiff undertook a reasonably diligent investigation. IV Finally, Merck argues that, even if all its other legal arguments fail, the record still shows that, before Novem 18 MERCK & CO. v. REYNOLDS Opinion of the Court ber 6, the plaintiffs had discovered or should have discovered “the facts constituting the violation.” In re spect to scienter Merck primarily relies upon (1) the FD’s September warning letter, which said that Merck had “ ‘minimized’ ” the VIGOR study’s “ ‘potentially serious cardiovascular findings’ ” and (2) pleadings filed in prod ucts-liability actions in September and October alleging that Merck had “ ‘omitted, suppressed, or con cealed material facts concerning the dangers and risks associated with Vioxx’ ” and “purposefully downplayed and/or understated the serious nature of the risks associ ated with Vioxx.” Brief for Petitioners 36–37 (quoting pp. 340, 83). The FD’s warning letter, however, shows little or nothing about the here-relevant scienter, i.e., whether Merck advanced the naproxen hypothesis with fraudulent intent. See Part I–(4), The FD itself described the pro-Vioxx naproxen hypothesis as a “possible explana tion” for the VIGOR results, faulting Merck only for failing sufficiently to publicize the alternative less favorable to Merck, that Vioxx might be harmful. pp. 340. The products-liability complaints’ statements about Merck’s knowledge show little more. See Part I–(3), Merck does not claim that these complaints con tained any specific information suggesting the fraud al leged here, i.e., that Merck knew the naproxen hypothesis was false even as it promoted it. nd, without providing any reason to
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as it promoted it. nd, without providing any reason to believe that the plaintiffs had special access to information about Merck’s state of mind, the complaints alleged only in general terms that Merck had concealed information about Vioxx and “purposefully downplayed and/or understated” the risks associated with Vioxx—the same charge made in the FD warning letter. pp. 83. In our view, neither these two circumstances nor any of the other pre-November circumstances that we have set forth in Part I–, whether viewed separately or Cite as: 55 U. S. (0) 1 Opinion of the Court together, reveal “facts” indicating scienter. Regardless of which, if any, of the events following November 6, constituted “discovery,” we need only conclude that prior to November 6, the plaintiffs did not discover, and Merck has not shown that a reasonably diligent plaintiff would have discovered, “the facts constituting the viola tion.” In light of our interpretation of the statute, our holdings in respect to scienter, and our application of those holdings to the circumstances of this case, we must, and we do, reach that conclusion. Thus, the plaintiffs’ suit is timely. We need not—and do not—pass upon the Court of ppeals’ suggestion that the November 2003 Brigham and Women’s study might have triggered the statute of limitations. The judgment of the Court of ppeals is ffirmed. Cite as: 55 U. S. (0) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STTES No. 08–05 MERCK & CO., INC., ET L., PETITIONERS v. RICHRD REYNOLDS ET L. ON WRIT OF CERTIORRI TO THE UNITED STTES COURT OF PPELS FOR THE THIRD CIRCUIT [pril 27, 0] JUSTICE STEVENS, concurring in part and concurring in the judgment. In my opinion the Court’s explanation of why the com plaint was timely filed is convincing and correct. nte, at 12–1. In this case there is no difference between the time when the plaintiffs actually discovered the factual basis for their claim and the time when reasonably diligent plaintiffs should have discovered those facts. For that reason, much of the discussion in Part II of the Court’s opinion, see ante, at 8–12, is not necessary to support the Court’s judgment. Until a case arises in which the differ ence between an actual discovery rule and a constructive discovery rule would affect the outcome, I would reserve decision on the merits of JUSTICE SCLI’s argument, post, at 1–7 (opinion concurring in part and concurring in judgment). With this reservation, I join the Court’s excel lent opinion. Cite as: 55 U. S. (0) 1 Opinion of SCLI, J. SUPREME COURT OF THE
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Mincey v. Arizona
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https://www.courtlistener.com/opinion/109905/mincey-v-arizona/
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On the afternoon of October 28, 1974, undercover police officer Barry Headricks of the Metropolitan Area Narcotics Squad knocked on the door of an apartment in Tucson, Ariz., occupied by the petitioner, Rufus Mincey. Earlier in the day, Officer Headricks had allegedly arranged to purchase a quantity of heroin from Mincey and had left, ostensibly to obtain money. On his return he was accompanied by nine other plainclothes policemen and a deputy county attorney. The door was opened by John Hodgman, one of three acquaintances of Mincey who were in the living room of the apartment. Officer Headricks slipped inside and moved quickly into the bedroom. Hodgman attempted to slam the door in order to keep the other officers from entering, but was pushed back against the wall. As the police entered the apartment, a rapid volley of shots was heard from the bedroom. Officer Headricks emerged and collapsed on the floor. When other officers entered the bedroom they found Mincey lying on the floor, wounded and semiconscious. Officer Headricks died a few hours later in the hospital. The petitioner was indicted for murder, assault,[1] and three *8 counts of narcotics offenses. He was tried at a single trial and convicted on all the charges. At his trial and on appeal, he contended that evidence used against him had been unlawfully seized from his apartment without a warrant and that statements used to impeach his credibility were inadmissible because they had not been made voluntarily. The Supreme Court reversed the murder and assault convictions on state-law grounds,[2] but affirmed the narcotics convictions. It held that the warrantless search of a homicide scene is permissible under the Fourth and Fourteenth Amendments and that Mincey's statements were voluntary. We granted certiorari to consider these substantial constitutional question. I The first question presented is whether the search of Mincey's apartment was constitutionally permissible. After the shooting, the narcotics agents, thinking that other persons in the apartment might have been injured, looked about quickly for other victims. They found a young woman wounded in the bedroom closet and Mincey apparently unconscious in the bedroom, as well as Mincey's three acquaintances (one of whom had been wounded in the head) in the living room. Emergency assistance was requested, and some medical aid was administered to Officer Headricks. But the agents refrained from further investigation, pursuant to a Tucson Police Department directive that police officers should not investigate incidents in which they are involved. They neither searched further nor seized any evidence; they merely guarded the suspects and the premises. Within 10 minutes, however, homicide detectives
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suspects and the premises. Within 10 minutes, however, homicide detectives who had *9 heard a radio report of the shooting arrived and took charge of the investigation. They supervised the removal of Officer Headricks and the suspects, trying to make sure that the scene was disturbed as little as possible, and then proceeded to gather evidence. Their search lasted four days,[3] during which period the entire apartment was searched, photographed, and diagrammed. The officers opened drawers, closets, and cupboards, and inspected their contents; they emptied clothing pockets; they dug bullet fragments out of the walls and floors; they pulled up sections of the carpet and removed them for examination. Every item in the apartment was closely examined and inventoried, and 0 to 300 objects were seized. In short, Mincey's apartment was subjected to an exhaustive and intrusive search. No warrant was ever obtained. The petitioner's pretrial motion to suppress the fruits of this search was denied after a hearing. Much of the evidence introduced against him at trial (including photographs and diagrams, bullets and shell casings, guns, narcotics, and narcotics paraphernalia) was the product of the four-day search of his apartment. On appeal, the Supreme Court reaffirmed previous decisions in which it had held that the warrantless search of the scene of a homicide is constitutionally permissible.[4] It stated its ruling as follows: "We hold a reasonable, warrantless search of the scene of a homicideor of a serious personal injury with likelihood of death where there is reason to suspect foul play *390 does not violate the Fourth Amendment to the United Constitution where the law enforcement officers were legally on the premises in the first instance. For the search to be reasonable, the purpose must be limited to determining the circumstances of death and the scope must not exceed that purpose. The search must begin within a reasonable period following the time when the officials first learn of the murder (or potential murder)." 566 P. 2d, at 283. Since the investigating homicide detectives knew that Officer Headricks was seriously injured, began the search promptly upon their arrival at the apartment, and searched only for evidence either establishing the circumstances of death or "relevant to motive and intent or knowledge (narcotics, e. g.)." the court found that the warrantless search of the petitioner's apartment had not violated the Fourth and Fourteenth Amendments. We cannot agree. The Fourth Amendment proscribes all unreasonable searches and seizures, and it is a cardinal principle that "searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the
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by judge or magistrate, are per se unreasonable under the Fourth Amendmentsubject only to a few specifically established and well-delineated exceptions." (footnotes omitted); see South (POWELL, J., concurring); ; ; ; 3 U.S. 699, The Supreme Court did not hold that the search of the petitioner's apartment fell within any of the exceptions to the warrant requirement previously recognized by this Court, but rather that the search of a homicide scene should be recognized as an additional exception. Several reasons are advanced by the State to meet its "burden *391. to show the existence of such an exceptional situation" as to justify creating a new exception to the warrant requirement. See at ; United 2 U.S. 48. 51. None of these reasons, however, persuades us of the validity of the generic exception delineated by the Supreme Court. The first contention is that the search of the petitioner's apartment did not invade any constitutionally protected right of privacy. See This argument appears to have two prongs. On the one hand, the State urges that by shooting Officer Headricks, Mincey forfeited any reasonable expectation of privacy in his apartment. We have recently rejected a similar waiver argument in ; it suffices here to say that this reasoning would impressibly convict the suspect even before the evidence against him was gathered.[5] On the other hand, the State contends that the police entry to arrest Mincey was so great an invasion of his privacy that the additional intrusion caused by the search was constitutionally irrelevant. But this claim is hardly tenable in light of the extensive nature of this search. It is one thing to say that one who is legally taken into police custody has a lessened right of privacy in his person. See United v. Edwards, ; United v. Robinson, It is quite another to argue that he has a lessened right of privacy in his entire house. Indeed this very argument was rejected when it was advanced to support the warrantless search of a dwelling where a search occurred as "incident" to the arrest of its occupant. 766 n. 12. *392 Thus, this search cannot be justified on the ground that no constitutionally protected right of privacy was invaded. The State's second argument in support of its categorical exception to the warrant requirement is that a possible homicide presents an emergency situation demanding immediate action. We do not question the right of the police to respond to emergency situations. Numerous state[6] and federal[7] cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches
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not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid. Similarly, when the police come upon the scene of a homicide they may make a prompt warrantless search of the area to see if there are other victims or if a killer is still on the premises. Cf. "The need to protect or preserve life or avoid serious injury is justification for what would be otherwise illegal absent an exigency or emergency." Wayne v. *393 United 115 U. S. App. D. C. 2, 241, 318 F.2d 5, (opinion of Burger, J.). And the police may seize any evidence that is in plain view during the course of their legitimate emergency activities. ; -466. But a warrantless search must be "strictly circumscribed by the exigencies which justify its initiation," -26, and it simply cannot be contended that this search was justified by any emergency threatening life or limb. All the persons in Mincey's apartment had been located before the investigating homicide officers arrived there and began their search. And a four-day search that included opening dresser drawers and ripping up carpets can hardly be rationalized in terms of the legitimate concerns that justify an emergency search. Third, the State points to the vital public interest in the prompt investigation of the extremely serious crime of murder. No one can doubt the importance of this goal. But the public interest in the investigation of other serious crimes is comparable. If the warrantless search of a homicide scene is reasonable, why not the warrantless search of the scene of a rape, a robbery, or a burglary? "No consideration relevant to the Fourth Amendment suggests any point of rational limitation" of such a doctrine. Moreover, the mere fact that law enforcement may be made more efficient can never by itself justify disregard of the Fourth Amendment. Cf. at The investigation of crime would always be simplified if warrants were unnecessary. But the Fourth Amendment reflects the view of those who wrote the Bill of Rights that the privacy of a person's home and property may not be totally sacrificed in the name of maximum simplicity in enforcement of the criminal law. See United v. Chadwick, 6-11. For this reason, warrants are *394 generally required to search a person's home or his person unless "the exigencies of the situation" make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment. McDonald v. United ; Johnson v. United See, e. g., ; ("hot pursuit"
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| 1,978 | 18 |
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; Johnson v. United See, e. g., ; ("hot pursuit" of fleeing suspect); Schmerber v. (imminent destruction of evidence); see Except for the fact that the offense under investigation was a homicide, there were no exigent circumstances in this case, as, indeed, the Supreme Court There was no indication that evidence would be lost, destroyed, or removed during the time required to obtain a search warrant. Indeed, the police guard at the apartment minimized that possibility. And there is no suggestion that a search warrant could not easily and conveniently have been obtained. We decline to hold that the seriousness of the offense under investigation itself creates exigent circumstances of the kind that under the Fourth Amendment justify a warrantless search. Finally, the State argues that the "murder scene exception" is constitutionally permissible because it is narrowly confined by the guidelines set forth in the decision of the Supreme Court, see[8] In light of the extensive search that took place in this case it may be questioned what protection the guidelines afford a person in whose home a homicide or assault occurs. Indeed, these so-called guidelines *395 are hardly so rigidly confining as the State seems to assert. They confer unbridled discretion upon the individual officer to interpret such terms as "reasonable search," "serious personal injury with likelihood of death where there is reason to suspect foul play," and "reasonable period." It is precisely this kind of judgmental assessment of the reasonableness and scope of a proposed search that the Fourth Amendment requires be made by a neutral and objective magistrate, not a police officer. See, e. g., United v. United District Court, ; ; ; Wong Sun v. United U.S. 471, -482. It may well be that the circumstances described by the Supreme Court would usually be constitutionally sufficient to warrant a search of substantial scope. But the Fourth Amendment requires that this judgment in each case be made in the first instance by a neutral magistrate. "The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime." Johnson v. United In sum, we hold that the "murder scene exception" created by the Supreme Court is inconsistent with the Fourth and Fourteenth Amendmentsthat the warrantless search of Mincey's apartment was not constitutionally permissible simply
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Justice Stewart
| 1,978 | 18 |
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warrantless search of Mincey's apartment was not constitutionally permissible simply because a homicide had recently occurred there."[9] *396 II Since there will presumably be a new trial in this case,[10] it is appropriate to consider the petitioner's contention that statements he made from a hospital bed were involuntary, and therefore could not constitutionally be used against him at his trial. Mincey was brought to the hospital after the shooting and taken immediately to the emergency room where he was examined and treated. He had sustained a wound in his hip, resulting in damage to the sciatic nerve and partial paralysis of his right leg. Tubes were inserted into his throat to help him breathe, and through his nose into his stomach to keep him from vomiting; a catheter was inserted into his bladder. He received various drugs, and a device was attached to his arm so that he could be fed intravenously. He was then taken to the intensive care unit. At about eight o'clock that evening, Detective Hust of the Tucson Police Department came to the intensive care unit to interrogate him. Mincey was unable to talk because of the tube in his mouth, and so he responded to Detective Hust's questions by writing answers on pieces of paper provided by the hospital.[11] Hust told Mincey he was under arrest for the murder of a police officer, gave him the warnings required by and began to ask questions about the events that had taken place in Mincey's apartment a few hours earlier. Although Mincey asked repeatedly that the interrogation stop until he could get a lawyer, Hust continued to question him until almost midnight. *397 After a pretrial hearing, see the trial court found that Mincey had responded to this interrogation voluntarily.[12] When Mincey took the witness stand at his trial his statements in response to Detective Hust's questions were used in an effort to impeach his testimony in several respects.[13] On appeal, the Supreme Court indicated its belief that because Detective Hust had failed to honor Mincey's request for a lawyer, the statements would have been inadmissible as part of the prosecution's case in chief. But, relying on and 4 U.S. 714, it held that since the trial court's finding of voluntariness was not "clear[ly] and manifest[ly]" erroneous the statements were properly used for purposes of 566 P. 2d, at 281. Statements made by a defendant in circumstances violating the strictures of are admissible for *398 impeachment if their "trustworthiness satisfies legal standards." ; But any criminal trial use against a defendant of his involuntary statement is a
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| 1,978 | 18 |
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use against a defendant of his involuntary statement is a denial of due process of law "even though there is ample evidence aside from the confession to support the conviction." ; ; ; Stroble v. 3 U.S. 181, ; see Chapman v. 23 and n. 8. If, therefore, Mincey's statements to Detective Hust were not "`the product of a rational intellect and a free will,'" quoting 8, his conviction cannot stand. In making this critical determination, we are not bound by the Supreme Court's holding that the statements were voluntary. Instead, this Court is under a duty to make an independent evaluation of the record. ; It is hard to imagine a situation less conducive to the exercise of "a rational intellect and a free will" than Mincey's. He had been seriously wounded just a few hours earlier, and had arrived at the hospital "depressed almost to the point of coma," according to his attending physician. Although he had received some treatment, his condition at the time of Hust's interrogation was still sufficiently serious that he was in the intensive care unit.[14] He complained to Hust that the pain in his leg was "unbearable." He was evidently confused and unable to think clearly about either the events of that afternoon or the circumstances of his interrogation, since some *399 of his written answers were on their face not entirely coherent.[15] Finally, while Mincey was being questioned he was lying on his back on a hospital bed, encumbered by tubes, needles, and breathing apparatus. He was, in short, "at the complete mercy" of Detective Hust, unable to escape or resist the thrust of Hust's interrogation. Cf. In this debilitated and helpless condition, Mincey clearly expressed his wish not to be interrogated. As soon as Hust's questions turned to the details of the afternoon's events, Mincey wrote: "This is all I can say without a lawyer." Hust nonetheless continued to question him, and a nurse who was present suggested it would be best if Mincey answered. Mincey gave unresponsive or uninformative answers to several more questions, and then said again that he did not want to talk without a lawyer. Hust ignored that request and another made immediately thereafter.[16] Indeed, throughout the interrogation *400 Mincey vainly asked Hust to desist. Moreover, he complained several times that he was confused or unable to think clearly, or that he could answer more accurately *401 the next day.[17] But despite Mincey's entreaties to be let alone, Hust ceased the interrogation only during intervals when Mincey lost consciousness or received medical treatment, and after each such
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| 1,978 | 18 |
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lost consciousness or received medical treatment, and after each such interruption returned relentlessly to his task. The statements at issue were thus the result of virtually continuous questioning of a seriously and painfully wounded man on the edge of consciousness. There were not present in this case some of the gross abuses that have led the Court in other cases to find confessions involuntary, such as beatings, see or "truth serums," see But "the blood of the accused is not the only hallmark of an unconstitutional inquisition." 361 U. S., at 6. Determination of whether a statement is involuntary "requires more than a mere color-matching of cases." It requires careful evaluation of all the circumstances of the interrogation.[18] It is apparent from the record in this case that Mincey's statements were not "the product of his free and rational choice." To the contrary, the undisputed evidence makes clear that Mincey wanted not to answer Detective Hust. But Mincey was weakened by pain and shock, isolated from family, friends, and legal counsel, and barely conscious, and his will was simply *402 overborne. Due process of law requires that statements obtained as these were cannot be used in any way against a defendant at his trial. III For the foregoing reasons, the judgment of the Supreme Court is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered. MR. JUSTICE MARSHALL, with whom MR.
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Justice Douglas
| 1,974 | 10 |
concurring
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Lehman v. Shaker Heights
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https://www.courtlistener.com/opinion/109090/lehman-v-shaker-heights/
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Petitioner, a candidate for state office, attempted to purchase space for paid political advertising on vehicles of the Shaker Heights Rapid Transit System, a system owned and operated by the city of Shaker Heights, Ohio. Metromedia, Inc., the exclusive advertising agent for the system, refused petitioner the space on the basis of a contract with the system prohibiting the acceptance of political advertisements. Petitioner unsuccessfully sought injunctive relief in the state courts to restrain the city and Metromedia from refusing his advertising. The petitioner contends that, by selling advertising space, the city has turned its buses into free speech forums and the city is now prohibited by the First Amendment, applicable to the States through the Fourteenth,[1] from refusing space for political advertisements. My Brother BRENNAN would find that "[a] forum for communication was voluntarily established when the city installed the physical facilities for the advertisements and, by contract with Metromedia, created the necessary administrative machinery for regulating access to that forum." Post, at 314. If the streetcar or bus were a forum for communication akin to that of streets or public parks, considerable problems would be presented. "The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all but it must not, in the guise of regulation, be abridged or denied." *306 But a streetcar or bus is plainly not a park or sidewalk or other meeting place for discussion, any more than is a highway. It is only a way to get to work or back home. The fact that it is owned and operated by the city does not without more make it a forum. Bus and streetcar placards are in the category of highway billboards which have long been used to display an array of commercial and political messages. But this particular form of communication has been significantly curtailed by state regulation adopted pursuant to the Highway Beautification Act of 1965, 23 U.S. C. 131, which conditions certain federal highway funds upon strict regulation of highway advertising. Ohio is among the States which have sought to protect the interests of their motorists[2] by enacting regulations pursuant to the Act. Ohio Rev. Code Ann. 5516.01 et seq. (Supp. 1973). The fact that land on which a billboard rests is municipal land does not curtail or enhance such regulatory schemes. If a bus is a forum it is more akin to a newspaper than to a park. Yet if a bus is treated as a newspaper, then, as we
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Justice Douglas
| 1,974 | 10 |
concurring
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Lehman v. Shaker Heights
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a bus is treated as a newspaper, then, as we hold this date, Miami Herald Publishing Co. v. Tornillo, ante, p. 241, the owner cannot be forced to include in his offerings news or other items which outsiders may desire but which the owner abhors. Newspaper cases are cited to support petitioner's claim. The First Amendment, however, draws no distinction between press privately owned, and press owned otherwise. And if we are to turn a bus or streetcar into either a newspaper or a park, we take great liberties with people *307 who because of necessity become commuters and at the same time captive viewers or listeners. In asking us to force the system to accept his message as a vindication of his constitutional rights, the petitioner overlooks the constitutional rights of the commuters. While petitioner clearly has a right to express his views to those who wish to listen, he has no right to force his message upon an audience incapable of declining to receive it. In my view the right of the commuters to be free from forced intrusions on their privacy precludes the city from transforming its vehicles of public transportation into forums for the dissemination of ideas upon this captive audience. Buses are not recreational vehicles used for Sunday chautauquas as a public park might be used on holidays for such a purpose; they are a practical necessity for millions in our urban centers. I have already stated this view in my dissent in Public Utilities involving the challenge by some passengers to the practice of broadcasting radio programs over loudspeakers in buses and streetcars: "One who tunes in on an offensive program at home can turn it off or tune in another station, as he wishes. One who hears disquieting or unpleasant programs in public places, such as restaurants, can get up and leave. But the man on the streetcar has no choice but to sit and listen, or perhaps to sit and to try not to listen." There is no difference when the message is visual, not auricular. In each the viewer or listener is captive. I agree with Mr. Justice Brandeis who, quoting from a Utah State Court decision,[3] said that the visual message in streetcars is no different, for " `[a]dvertisements of this sort are constantly before the eyes of observers *308 on the streets and in street cars to be seen without the exercise of choice or volition on their part. Other forms of advertising are ordinarily seen as a matter of choice on the part of the observer. In the
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Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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These two consolidated cases require us to decide whether the imposition of capital punishment on an individual for a *365 crime committed at or 17 years of age constitutes cruel and unusual punishment under the Eighth Amendment. I The first case, No. 87-5765, involves the shooting death of 20-year-old Barbel Poore in Jefferson County, Kentucky. Petitioner Kevin Stanford committed the murder on January 7, 1981, when he was approximately 17 years and 4 months of age. Stanford and his accomplice repeatedly raped and sodomized Poore during and after their commission of a robbery at a gas station where she worked as an attendant. They then drove her to a secluded area near the station, where Stanford shot her pointblank in the face and then in the back of her head. The proceeds from the robbery were roughly cartons of cigarettes, two gallons of fuel, and a small amount of cash. A corrections officer testified that petitioner explained the murder as follows: " `[H]e said, I had to shoot her, [she] lived next door to me and she would recognize me. I guess we could have tied her up or something or beat [her up] and tell her if she tells, we would kill her. Then after he said that he started laughing.' " After Stanford's arrest, a Kentucky juvenile court conducted hearings to determine whether he should be transferred for trial as an adult under That statute provided that juvenile court jurisdiction could be waived and an offender tried as an adult if he was either charged with a Class A felony or capital crime, or was over years of age and charged with a felony. Stressing the seriousness of petitioner's offenses and the unsuccessful attempts of the juvenile system to treat him for numerous instances of past delinquency, the juvenile court found certification for trial as an adult to be in the best interest of petitioner and the community. *366 Stanford was convicted of murder, first-degree sodomy, first-degree robbery, and receiving stolen property, and was sentenced to death and 45 years in prison. The Kentucky Supreme Court affirmed the death sentence, rejecting Stanford's "deman[d] that he has a constitutional right to treatment." Finding that the record clearly demonstrated that "there was no program or treatment appropriate for the appellant in the juvenile justice system," the court held that the juvenile court did not err in certifying petitioner for trial as an adult. The court also stated that petitioner's "age and the possibility that he might be rehabilitated were mitigating factors appropriately left to the consideration of the jury that
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Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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factors appropriately left to the consideration of the jury that tried him." The second case before us today, No. 87-6026, involves the stabbing death of Nancy Allen, a 26-year-old mother of two who was working behind the sales counter of the convenience store she and David Allen owned and operated in Avondale, Missouri. Petitioner Heath Wilkins committed the murder on July 27, 1985, when he was approximately years and 6 months of age. The record reflects that Wilkins' plan was to rob the store and murder "whoever was behind the counter" because "a dead person can't talk." While Wilkins' accomplice, Patrick Stevens, held Allen, Wilkins stabbed her, causing her to fall to the floor. When Stevens had trouble operating the cash register, Allen spoke up to assist him, leading Wilkins to stab her three more times in her chest. Two of these wounds penetrated the victim's heart. When Allen began to beg for her life, Wilkins stabbed her four more times in the neck, opening her carotid artery. After helping themselves to liquor, cigarettes, rolling papers, and approximately $450 in cash and checks, Wilkins and Stevens left Allen to die on the floor. Because he was roughly six months short of the age of majority for purposes of criminal prosecution, (1) Wilkins could not automatically be *367 tried as an adult under Missouri law. Before that could happen, the juvenile court was required to terminate juvenile court jurisdiction and certify Wilkins for trial as an adult under 211.071, which permits individuals between 14 and 17 years of age who have committed felonies to be tried as adults. Relying on the "viciousness, force and violence" of the alleged crime, petitioner's maturity, and the failure of the juvenile justice system to rehabilitate him after previous delinquent acts, the juvenile court made the necessary certification. Wilkins was charged with first-degree murder, armed criminal action, and carrying a concealed weapon. After the court found him competent, petitioner entered guilty pleas to all charges. A punishment hearing was held, at which both the State and petitioner himself urged imposition of the death sentence. Evidence at the hearing revealed that petitioner had been in and out of juvenile facilities since the age of eight for various acts of burglary, theft, and arson, had attempted to kill his mother by putting insecticide into Tylenol capsules, and had killed several animals in his neighborhood. Although psychiatric testimony indicated that Wilkins had "personality disorders," the witnesses agreed that Wilkins was aware of his actions and could distinguish right from wrong. Determining that the death penalty was appropriate, the trial
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| 1,989 | 9 |
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wrong. Determining that the death penalty was appropriate, the trial court entered the following order: "[T]he court finds beyond reasonable doubt that the following aggravating circumstances exist: "1. The murder in the first degree was committed while the defendant was engaged in the perpetration of the felony of robbery, and "2. The murder in the first degree involved depravity of mind and that as a result thereof, it was outrageously or wantonly vile, horrible or inhuman." App. in No. 87-6026, p. 77. *368 On mandatory review of Wilkins' death sentence, the Supreme Court of Missouri affirmed, rejecting the argument that the punishment violated the Eighth Amendment. We granted certiorari in these cases, and to decide whether the Eighth Amendment precludes the death penalty for individuals who commit crimes at or 17 years of age. II The thrust of both Wilkins' and Stanford's arguments is that imposition of the death penalty on those who were juveniles when they committed their crimes falls within the Eighth Amendment's prohibition against "cruel and unusual punishments." Wilkins would have us define juveniles as individuals years of age and under; Stanford would draw the line at 17. Neither petitioner asserts that his sentence constitutes one of "those modes or acts of punishment that had been considered cruel and unusual at the time that the Bill of Rights was adopted." Nor could they support such a contention. At that time, the common law set the rebuttable presumption of incapacity to commit any felony at the age of 14, and theoretically permitted capital punishment to be imposed on anyone over the age of 7. See 4 W. Blackstone, Commentaries *23-*24; 1 M. Hale, Pleas of the Crown 24-29 (1800). See also In re Gault, ; Streib, Death Penalty for Children: The American Experience with Capital Punishment for Crimes Committed While Under Age Eighteen, ; Kean, The History of the Criminal Liability of Children, 53 L. Q. Rev. 364, 369-370 (1937). In accordance with the standards of this common-law tradition, at least 281 offenders under the age of 18 have been executed in this country, and at least 126 under the age of 17. See V. Streib, Death Penalty for Juveniles 57 *369 Thus petitioners are left to argue that their punishment is contrary to the "evolving standards of decency that mark the progress of a maturing society," They are correct in asserting that this Court has "not confined the prohibition embodied in the Eighth Amendment to `barbarous' methods that were generally outlawed in the 18th century," but instead has interpreted the Amendment "in a flexible and dynamic manner."
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Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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has interpreted the Amendment "in a flexible and dynamic manner." In determining what standards have "evolved," however, we have looked not to our own conceptions of decency, but to those of modern American society as a whole.[1] As we have said, "Eighth Amendment judgments should not be, or appear to be, merely the subjective views of individual Justices; judgment should be informed by objective factors to the maximum possible extent." See also Penry v. Lynaugh, ante, at 331; ; -789 ; This approach is dictated both by the language of the Amendment which proscribes only those punishments that are both "cruel and unusual" and by the "deference we owe to the decisions *370 of the state legislatures under our federal system," III "[F]irst" among the " `objective indicia that reflect the public attitude toward a given sanction' " are statutes passed by society's elected representatives. quoting Of the 37 States whose laws permit capital punishment, 15 decline to impose it upon -year-old offenders and 12 decline to impose it on 17-year-old offenders.[2] This does *371 not establish the degree of national consensus this Court has previously thought sufficient to label a particular punishment cruel and unusual. In invalidating the death penalty for rape of an adult woman, we stressed that was the sole jurisdiction that authorized such a punishment. See In striking down capital punishment for participation in a robbery in which an accomplice takes a life, we emphasized that only eight jurisdictions authorized similar punishment. In finding that the Eighth Amendment precludes execution of the insane and thus requires an adequate hearing on the issue of sanity, we relied upon (in addition to the common-law rule) the fact that "no State in the Union" permitted such punishment. And in striking down a life sentence without parole under a recidivist statute, we stressed that "[i]t appears that [petitioner] was treated more severely than he would have been in any other State." Since a majority of the States that permit capital punishment authorize it for crimes committed at age or above,[3] petitioners' cases are more analogous to than Coker, Enmund, Ford, and Solem. In Tison, which upheld Arizona's imposition of the death penalty for major participation in a felony with reckless indifference to human life, we noted that only 11 of those jurisdictions *372 imposing capital punishment rejected its use in such circumstances. As we noted earlier, here the number is 15 for offenders under 17, and 12 for offenders under 18. We think the same conclusion as in Tison is required in these cases. Petitioners make much of
|
Justice Scalia
| 1,989 | 9 |
majority
|
Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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Tison is required in these cases. Petitioners make much of the recently enacted federal statute providing capital punishment for certain drug-related offenses, but limiting that punishment to offenders 18 and over. The Anti-Drug Abuse Act of 1988, Stat. 4390, 7001(l), 21 U.S. C. 848(l) (1988 ed.). That reliance is entirely misplaced. To begin with, the statute in question does not embody a judgment by the Federal Legislature that no murder is heinous enough to warrant the execution of such a youthful offender, but merely that the narrow class of offense it defines is not. The congressional judgment on the broader question, if apparent at all, is to be found in the law that permits - and 17-year-olds (after appropriate findings) to be tried and punished as adults for all federal offenses, including those bearing a capital penalty that is not limited to 18-year-olds.[4] See 18 U.S. C. 5032 (1982 ed., Supp. V). Moreover, even if it were true that no *373 federal statute permitted the execution of persons under 18, that would not remotely establish in the face of a substantial number of state statutes to the contrary a national consensus that such punishment is inhumane, any more than the absence of a federal lottery establishes a national consensus that lotteries are socially harmful. To be sure, the absence of a federal death penalty for - or 17-year-olds (if it existed) might be evidence that there is no national consensus in favor of such punishment. It is not the burden of Kentucky and Missouri, however, to establish a national consensus approving what their citizens have voted to do; rather, it is the "heavy burden" of petitioners, to establish a national consensus against it. As far as the primary and most reliable indication of consensus is concerned the pattern of enacted laws petitioners have failed to carry that burden. IV A Wilkins and Stanford argue, however, that even if the laws themselves do not establish a settled consensus, the application of the laws does. That contemporary society views capital punishment of - and 17-year-old offenders as inappropriate is demonstrated, they say, by the reluctance of juries to impose, and prosecutors to seek, such sentences. Petitioners are quite correct that a far smaller number of offenders under 18 than over 18 have been sentenced to death in this country. From 1982 through 1988, for example, out of 2,106 total death sentences, only 15 were imposed on individuals who were or under when they committed their crimes, and only 30 on individuals who were 17 at the time of
|
Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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30 on individuals who were 17 at the time of the crime. See Streib, Imposition of Death Sentences For Juvenile Offenses, January 1, 1982, Through April 1, 1989, p. 2 And it appears that actual executions for crimes committed under age 18 accounted for only about two percent of the total number of executions that occurred between 42 *374 and 1986. See Streib, Death Penalty for Juveniles, at 55, 57. As Wilkins points out, the last execution of a person who committed a crime under 17 years of age occurred in 1959. These statistics, however, carry little significance. Given the undisputed fact that a far smaller percentage of capital crimes are committed by persons under 18 than over 18, the discrepancy in treatment is much less than might seem. Granted, however, that a substantial discrepancy exists, that does not establish the requisite proposition that the death sentence for offenders under 18 is categorically unacceptable to prosecutors and juries. To the contrary, it is not only possible, but overwhelmingly probable, that the very considerations which induce petitioners and their supporters to believe that death should never be imposed on offenders under 18 cause prosecutors and juries to believe that it should rarely be imposed. B This last point suggests why there is also no relevance to the laws cited by petitioners and their amici which set 18 or more as the legal age for engaging in various activities, ranging from driving to drinking alcoholic beverages to voting. It is, to begin with, absurd to think that one must be mature enough to drive carefully, to drink responsibly, or to vote intelligently, in order to be mature enough to understand that murdering another human being is profoundly wrong, and to conform one's conduct to that most minimal of all civilized standards. But even if the requisite degrees of maturity were comparable, the age statutes in question would still not be relevant. They do not represent a social judgment that all persons under the designated ages are not responsible enough to drive, to drink, or to vote, but at most a judgment that the vast majority are not. These laws set the appropriate ages for the operation of a system that makes its determinations in gross, and that does not conduct individualized maturity tests for each driver, drinker, or voter. The *375 criminal justice system, however, does provide individualized testing. In the realm of capital punishment in particular, "individualized consideration [is] a constitutional requirement," (footnote omitted); see also and one of the individualized mitigating factors that sentencers must be permitted to consider is
|
Justice Scalia
| 1,989 | 9 |
majority
|
Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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mitigating factors that sentencers must be permitted to consider is the defendant's age, see 115-1 Twenty-nine States, including both Kentucky and Missouri, have codified this constitutional requirement in laws specifically designating the defendant's age as a mitigating factor in capital cases.[5] Moreover, the determinations required by juvenile transfer statutes to certify a juvenile for trial as an adult ensure individualized consideration of the maturity and moral responsibility of - and 17-year-old offenders before they are even held to stand trial as adults.[6] The application of this *376 particularized system to the petitioners can be declared constitutionally inadequate only if there is a consensus, not that 17 or 18 is the age at which most persons, or even almost all persons, achieve sufficient maturity to be held fully responsible for murder; but that 17 or 18 is the age before which no one can reasonably be held fully responsible. What displays society's views on this latter point are not the ages set forth in the generalized system of driving, drinking, and voting laws cited by petitioners and their amici, but the ages at *377 which the States permit their particularized capital punishment systems to be applied.[7] V Having failed to establish a consensus against capital punishment for - and 17-year-old offenders through state and federal statutes and the behavior of prosecutors and juries, petitioners seek to demonstrate it through other indicia, including public opinion polls, the views of interest groups, and the positions adopted by various professional associations. We decline the invitation to rest constitutional law upon such uncertain foundations. A revised national consensus so broad, so clear, and so enduring as to justify a permanent prohibition upon all units of democratic government must appear in the operative acts (laws and the application of laws) that the people have approved. We also reject petitioners' argument that we should invalidate capital punishment of - and 17-year-old offenders on the ground that it fails to serve the legitimate goals of penology. According to petitioners, it fails to deter because juveniles, possessing less developed cognitive skills than adults, are less likely to fear death; and it fails to exact just retribution because juveniles, being less mature and responsible, are also less morally blameworthy. In support of these claims, petitioners and their supporting amici marshal an array of *378 socioscientific evidence concerning the psychological and emotional development of - and 17-year-olds. If such evidence could conclusively establish the entire lack of deterrent effect and moral responsibility, resort to the Cruel and Unusual Punishments Clause would be unnecessary; the Equal Protection Clause of the Fourteenth Amendment
|
Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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be unnecessary; the Equal Protection Clause of the Fourteenth Amendment would invalidate these laws for lack of rational basis. See But as the adjective "socioscientific" suggests (and insofar as evaluation of moral responsibility is concerned perhaps the adjective "ethicoscientific" would be more apt), it is not demonstrable that no -year-old is "adequately responsible" or significantly deterred. It is rational, even if mistaken, to think the contrary. The battle must be fought, then, on the field of the Eighth Amendment; and in that struggle socioscientific, ethicoscientific, or even purely scientific evidence is not an available weapon. The punishment is either "cruel and unusual" (i. e., society has set its face against it) or it is not. The audience for these arguments, in other words, is not this Court but the citizenry of the United States. It is they, not we, who must be persuaded. For as we stated earlier, our job is to identify the "evolving standards of decency"; to determine, not what they should be, but what they are. We have no power under the Eighth Amendment to substitute our belief in the scientific evidence for the society's apparent skepticism. In short, we emphatically reject petitioner's suggestion that the issues in this case permit us to apply our "own informed judgment," Brief for Petitioner in No. 87-6026, p. 23, regarding the desirability of permitting the death penalty for crimes by - and 17-year-olds. We reject the dissent's contention that our approach, by "largely return[ing] the task of defining the contours of Eighth Amendment protection to political majorities," leaves " `[c]onstitutional doctrine [to] be formulated by the acts of those institutions which the Constitution is supposed to limit,' " post, at 391, 392 (citation omitted). When this Court *379 cast loose from the historical moorings consisting of the original application of the Eighth Amendment, it did not embark rudderless upon a wide-open sea. Rather, it limited the Amendment's extension to those practices contrary to the "evolving standards of decency that mark the progress of a maturing society." 356 U. S., at (emphasis added). It has never been thought that this was a shorthand reference to the preferences of a majority of this Court. By reaching a decision supported neither by constitutional text nor by the demonstrable current standards of our citizens, the dissent displays a failure to appreciate that "those institutions which the Constitution is supposed to limit" include the Court itself. To say, as the dissent says, that " `it is for us ultimately to judge whether the Eighth Amendment permits imposition of the death penalty,' " post, at 391
|
Justice Scalia
| 1,989 | 9 |
majority
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Stanford v. Kentucky
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https://www.courtlistener.com/opinion/112326/stanford-v-kentucky/
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permits imposition of the death penalty,' " post, at 391 (emphasis added), quoting and to mean that as the dissent means it, i. e., that it is for us to judge, not on the basis of what we perceive the Eighth Amendment originally prohibited, or on the basis of what we perceive the society through its democratic processes now overwhelmingly disapproves, but on the basis of what we think "proportionate" and "measurably contributory to acceptable goals of punishment" to say and mean that, is to replace judges of the law with a committee of philosopher-kings. While the dissent is correct that several of our cases have engaged in so-called "proportionality" analysis, examining whether "there is a disproportion `between the punishment imposed and the defendant's blameworthiness,' " and whether a punishment makes any "measurable contribution to acceptable goals of punishment," see post, at 393, we have never invalidated a punishment on this basis alone. All of our cases condemning a punishment under this mode of analysis also found that the objective indicators of state laws or jury determinations evidenced a societal consensus against that penalty. See -; *380 ; -597 In fact, the two methodologies blend into one another, since "proportionality" analysis itself can only be conducted on the basis of the standards set by our own society; the only alternative, once again, would be our personal preferences. * * * We discern neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at or 17 years of age. Accordingly, we conclude that such punishment does not offend the Eighth Amendment's prohibition against cruel and unusual punishment. The judgments of the Supreme Court of Kentucky and the Supreme Court of Missouri are therefore Affirmed. JUSTICE O'CONNOR, concurring in part and concurring in the judgment.
|
Justice Stewart
| 1,973 | 18 |
concurring
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Roe v. Wade
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https://www.courtlistener.com/opinion/108713/roe-v-wade/
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In 13, this Court, in purported to sound the death knell for the doctrine of substantive due process, a doctrine under which many state laws had in the past been held to violate the Fourteenth Amendment. As Mr. Justice Black's opinion for the Court in Skrupa put it: "We have returned to the original constitutional proposition that courts do not substitute their social and economic beliefs for the judgment of legislative bodies, who are elected to pass laws."[1] Barely two years later, in the Court held a birth control law unconstitutional. In view of what had been so recently said in Skrupa, the Court's opinion in Griswold understandably did its best to avoid reliance on the Due Process Clause of the Fourteenth Amendment as the ground for decision. Yet, the law did not violate any provision of the Bill of Rights, nor any other specific provision of the Constitution.[2] So it was clear *168 to me then, and it is equally clear to me now, that the Griswold decision can be rationally understood only as a holding that the statute substantively invaded the "liberty" that is protected by the Due Process Clause of the Fourteenth Amendment.[3] As so understood, Griswold stands as one in a long line of pre-Skrupa cases decided under the doctrine of substantive due process, and I now accept it as such. "In a Constitution for a free people, there can be no doubt that the meaning of `liberty' must be broad indeed." Board of The Constitution nowhere mentions a specific right of personal choice in matters of marriage and family life, but the "liberty" protected by the Due Process Clause of the Fourteenth Amendment covers more than those freedoms explicitly named in the Bill of Rights. See ; ; Cf. U.S. 618, 629-630; United ; ; ; ; ; *169 As Mr. Justice Harlan once wrote: "[T]he full scope of the liberty guaranteed by the Due Process Clause cannot be found in or limited by the precise terms of the specific guarantees elsewhere provided in the Constitution. This `liberty' is not a series of isolated points pricked out in terms of the taking of property; the freedom of speech, press, and religion; the right to keep and bear arms; the freedom from unreasonable searches and seizures; and so on. It is a rational continuum which, broadly speaking, includes a freedom from all substantial arbitrary impositions and purposeless restraints. and which also recognizes, what a reasonable and sensitive judgment must, that certain interests require particularly careful scrutiny of the state needs asserted to justify their abridgment." (opinion
|
Justice Stewart
| 1,973 | 18 |
concurring
|
Roe v. Wade
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https://www.courtlistener.com/opinion/108713/roe-v-wade/
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of the state needs asserted to justify their abridgment." (opinion dissenting from dismissal of appeal) (citations omitted). In the words of Mr. Justice Frankfurter, "Great concepts like `liberty' were purposely left to gather meaning from experience. For they relate to the whole domain of social and economic fact, and the statesmen who founded this Nation knew too well that only a stagnant society remains unchanged." National Mutual Ins. (dissenting opinion). Several decisions of this Court make clear that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. ; See also ; 5. As recently as last Term, in we recognized "the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person *170 as the decision whether to bear or beget a child." That right necessarily includes the right of a woman to decide whether or not to terminate her pregnancy. "Certainly the interests of a woman in giving of her physical and emotional self during pregnancy and the interests that will be affected throughout her life by the birth and raising of a child are of a far greater degree of significance and personal intimacy than the right to send a child to private school protected in or the right to teach a foreign language protected in" Clearly, therefore, the Court today is correct in holding that the right asserted by Jane Roe is embraced within the personal liberty protected by the Due Process Clause of the Fourteenth Amendment. It is evident that the Texas abortion statute infringes that right directly. Indeed, it is difficult to imagine a more complete abridgment of a constitutional freedom than that worked by the inflexible criminal statute now in force in Texas. The question then becomes whether the state interests advanced to justify this abridgment can survive the "particularly careful scrutiny" that the Fourteenth Amendment here requires. The asserted state interests are protection of the health and safety of the pregnant woman, and protection of the potential future human life within her. These are legitimate objectives, amply sufficient to permit a State to regulate abortions as it does other surgical procedures, and perhaps sufficient to permit a State to regulate abortions more stringently or even to prohibit them in the late stages of pregnancy. But such legislation is not before us, and I think the Court today has thoroughly demonstrated that these state interests cannot constitutionally support the broad abridgment of personal *171 liberty worked by
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Baker v. General Motors Corp.
|
https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/
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The State of Michigan disqualifies an individual from receiving unemployment benefits for "financing" the labor dispute that causes his unemployment. (8)(a)(ii) (Supp. 1986). As construed by the Michigan *639 Supreme Court, this means that an unemployed individual is denied benefits for making a significant financial contribution to a labor organization "in temporal proximity" to the labor dispute that caused his unemployment if that contribution was "for the purpose of assisting labor disputes which reasonably and foreseeably include the dispute that caused the [individual's] unemployment." Because I believe that, as so construed, this statute conflicts with the National Labor Relations Act (NLRA) in a way that Congress did not intend to permit, I respectfully dissent from the Court's opinion and judgment. In enacting Title IX of the Social Security Act, Congress left the States a "wide range" of discretion to establish qualifications for receiving unemployment benefits. Steward Machine ; see also Ohio Bureau of Employment We have previously found evidence in the legislative history of the Social Security Act indicating that Congress intended that this broad grant of authority should include power to authorize or deny unemployment benefits in ways that may interfere with the smooth operation of the federal labor laws. Thus, in New York Telephone we held that the States were free to authorize or to prohibit payment of unemployment benefits to striking workers notwithstanding the impact of such payments on the collective-bargaining process. We based our conclusion on evidence in the legislative history of the Social Security Act specifically indicating that Congress intended to leave the States such authority. ; see also, ; It is clear, however, that the States' discretion to fashion qualifications for unemployment compensation is not boundless, and that state laws that conflict with the NLRA in ways *640 that Congress did not intend to permit are pre-empted. For example, in petitioner filed an unfair labor practice charge with the National Labor Relations Board alleging that she had been laid off in retaliation for union activities. The Florida Industrial Commission determined that filing charges with the NLRB initiated a "labor dispute" within the meaning of the Florida statute denying benefits to individuals unemployed "due to a labor dispute." We concluded that the effect of such a disqualification on national labor policy was too great: "The action of Florida here, like the coercive actions which employers and unions are forbidden to engage in, has a direct tendency to frustrate the purpose of Congress to leave people free to make charges of unfair labor practices to the Board. It appears obvious to us that this financial burden
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Baker v. General Motors Corp.
|
https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/
|
Board. It appears obvious to us that this financial burden which Florida imposes will impede resort to the Act and thwart congressional reliance on individual action. A national system for the implementation of this country's labor policies is not so dependent on state law. Florida should not be permitted to defeat or handicap a valid national objective by threatening to withdraw state benefits from persons simply because they cooperate with the Government's constitutional plan." As the Court recognizes, ante, at 635, a "financing" disqualification such as Michigan's implicates important rights that are protected by 7 of the NLRA. In particular, such a disqualification may prevent workers from exercising their right to expend money in support of a strike, and, more generally, it will influence their willingness to contribute to a fund that will strengthen the union's position in collective bargaining. The question we must answer in this case, then, is whether as in New York Telephone there is reason to think that Congress intended to tolerate the conflict between Michigan's "financing" provision and the NLRA, or *641 whether like the state law struck down in Nash this conflict is one that Congress did not intend to permit. I note at the outset that it is highly unusual to interpret one law by reference to the legislative history of a different law. However, because the NLRA and the Social Security Act were considered by Congress at the same time and were passed within five weeks of one another, it is sometimes appropriate to read them in pari materia. See New York Telephone ; ante, at 632-633. Nonetheless, the NLRA and the Social Security Act are distinct pieces of legislation that address very different concerns. Consequently, we cannot find that Congress intended to withdraw protections extended in the NLRA on the basis of the legislative history of the Social Security Act unless the expression of Congress' intent to do so is especially clear. In this case, the available evidence is anything but clear in support of the conclusion that Congress intended to permit States to deny unemployment benefits to individuals for "financing" a labor dispute in the manner approved by the Michigan Supreme Court. Unlike the discussion in the legislative history concerning unemployment benefits for actual strikers that was relied upon in New York Telephone there is no comparable discussion at any point in the legislative history of benefits for individuals who "finance" a labor dispute. Nor does the Report of the Committee on Economic Security, which " `became the cornerstone of the Social Security Act,' " ante,
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Baker v. General Motors Corp.
|
https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/
|
`became the cornerstone of the Social Security Act,' " ante, at 633 (quoting Ohio Bureau of Employment ), mention the subject of a "financing" disqualification. The sole support for the use of a financing disqualification is in "draft bills" prepared by the Social Security Board one year after the Social Security Act was passed as examples of what the Act permitted the States to do. These draft bills disqualified workers from receiving benefits if their unemployment was due to a labor dispute which they were "participating in or financing or directly interested in" United States *642 Social Security Board, Draft Bills For State Unemployment Compensation of Pooled Fund and Employer Reserve Account Types 5(d)(1) and (2), pp. 9, 10 (1936). One could argue that, in light of this scant legislative history, there is no basis for concluding that Congress intended to authorize the States to utilize any kind of "financing" disqualification that interferes with rights protected by the NLRA. However, because the draft bills constitute a contemporaneous construction of an Act by those charged with the responsibility for setting it in motion, they are entitled to considerable deference. See We may therefore conclude that the States may enact some sort of "financing" disqualification even though this might conflict with the NLRA. The difficult question is what kind. Unfortunately, the Social Security Board did not elaborate on its understanding of the permissible scope of its financing disqualification, so there is nothing in the draft bills from which to determine how broad the disqualification may be, consistent with the NLRA. It is at least clear, however, that the Social Security Board thought that there were limits on the scope of any financing disqualification. For within just a few years, the Board deleted this disqualification from its draft bills, explaining: "The provision found in some laws extending the disqualification to individuals who are financing a labor dispute is not recommended since it might operate to disqualify an individual not concerned with the dispute solely on the basis of his payment of dues to the union that is conducting the strike." United States Social Security Board, Bureau of Employment Security, Proposed State Legislation Providing for Unemployment Compensation and Public Employment Offices, Employment Security Memorandum No. 13, p. 56, note (Nov. 1940). *643 Insofar as the legislative history of the Social Security Act supports only the conclusion that Congress intended to leave the States authority to deny benefits to actual strikers, and does not indicate that Congress anticipated a distinct disqualification of individuals whose money is used to pay for a strike, such a disqualification
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Baker v. General Motors Corp.
|
https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/
|
is used to pay for a strike, such a disqualification can only be permitted to the extent that it is necessary to effectuate the State's decision to disqualify actual strikers. Thus, a financing disqualification may be justified as necessary to prevent unions from circumventing the State's disqualification of actual strikers, something unions might accomplish by striking a key group of employees knowing that the resultant work stoppage will cause additional layoffs and that laid-off workers will be supported by unemployment benefits while sharing the cost of financing the strike among all the workers. Where this is true, i. e., where workers agree to pay special dues[1] to finance a particular labor dispute that they *644 know will result in their own layoffs, they voluntarily cause their own unemployment in the same sense as actual strikers. Therefore, I agree with the Court that "[t]o the extent that appellants may be viewed as participants in the decision to strike, or to expend funds in support of the local strikes, it is difficult to see how such a decision would be entitled to any greater protection than is afforded to actual strikers." Ante, at 636-637. I also agree with the Court that, insofar as "the emergency dues decision was tantamount to a plantwide decision to call a strike in a bottleneck department that would predictably shut down an entire plant," ante, at 637, Michigan could disqualify workers who paid the dues. In other words, to the extent that Michigan denies benefits to workers who agree to pay special dues to finance the very strike *645 that caused their unemployment. I agree that the Michigan statute is not pre-empted. As interpreted by the Michigan Supreme Court, however, the Michigan statute also denies benefits to individuals whose unemployment results from a labor dispute financed with money raised for a different labor dispute so long as the dispute that caused the unemployment was "foreseeable" at the time the contribution was made. Michigan's law thus denies benefits to an individual for "financing" a labor dispute even though he did not necessarily intend to finance that dispute. Yet, where this is the case, the disqualification cannot be justified as necessary to effectuate the disqualification of actual strikers. Therefore, to the extent that it interferes with rights protected by the NLRA, it is pre-empted. Moreover, in my view, an individual who did not intend to finance the labor dispute that led to his being laid off cannot be said to have "voluntarily" caused his own unemployment in the same sense as a striker; the Court's unexplained
|
Justice Brennan
| 1,986 | 13 |
dissenting
|
Baker v. General Motors Corp.
|
https://www.courtlistener.com/opinion/111752/baker-v-general-motors-corp/
|
in the same sense as a striker; the Court's unexplained equation of the two is simply wrong. Finally, denying benefits to an individual who paid special dues merely because the strike that caused his unemployment was foreseeable when the decision to pay the dues was made interferes with rights protected by the NLRA in a much more pervasive manner than a disqualification of actual strikers. Consider the decision that must be made by a union member asked to vote on whether to collect special dues to finance an anticipated strike. If he agrees to pay the special dues and the strike results in his being laid off, he will not receive unemployment benefits under state law. This possibility will certainly influence his decision whether or not to vote in favor of the special dues, and, to that extent, the state law conflicts with a federally protected right. However, as explained above, because the union member's decision in this regard is essentially identical to the decision of an actual striker, I agree with the Court that it is reasonable to conclude that Congress was willing to tolerate this conflict. *646 But under Michigan's statute, the union member must think about other "foreseeable" strikes in addition to the particular strike under consideration. Thus, it may be that the strike under consideration will not cause layoffs among nonstrikers, or that the union member feels strongly enough about that dispute that he is willing to tolerate the loss of unemployment compensation if he is laid off. But under the Michigan statute, the union member's decision whether to vote to authorize the collection of special dues is coerced still further by the possibility that some other strike, that might be financed by these dollars and that might result in layoffs, will leave him without unemployment compensation.[2] I do not see that there is any justification for this additional interference with rights protected by the NLRA; certainly the Court has offered none. It would be one thing if the legislative history showed that Congress intended to tolerate a conflict with the NLRA such as is created by Michigan's financing provision. But it does not. Therefore, I would hold that States may disqualify unemployed individuals for "financing" a labor dispute only where they agree to pay special dues specifically to finance the particular strike that caused their unemployment. To the extent that the Michigan statute exceeds this limitation, it is pre-empted by the NLRA. Because of its construction of the Michigan statute, the Michigan Supreme Court did not find it necessary to consider whether the local foundry
|
Justice Stevens
| 1,981 | 16 |
second_dissenting
|
Ridgway v. Ridgway
|
https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/
|
As a matter of state law, the Maine Supreme Judicial Court imposed a constructive trust on the proceeds of Sergeant Ridgway's life insurance. The trust effectuates a settlement agreement and an express judicial decree that commanded Ridgway to maintain the policy in effect for the benefit of his minor children.[1] The propriety of the imposition *72 of a constructive trust under Maine law is, of course, not a matter for us to review.[2] Unless the application of this well-established equitable doctrine does "major damage" to "clear and substantial federal interests,"[3] we must respect it. Notwithstanding the absence of any such major damage, the Court today decides that the Maine court's decision conflicts with two provisions of the Servicemen's Group Life Insurance Act (SGLIA), 38 U.S. C. 765-776.[4] The Court finds a conflict with 770(a) of the statute, which gives the serviceman the right to designate his beneficiary, and with 770(g), which exempts the insurance proceeds from taxation and from seizure by legal or equitable process. Because the Court in relied on similar provisions of the National Service Life Insurance Act of in rejecting a claim to insurance proceeds paid under that statute, the Court today concludes that Wissner is controlling and that it must reach a similar result. Unquestionably, there is a strong federal interest in protecting federally supported benefits from claims of the recipient's commercial creditors.[5] There is also a federal interest, much less clearly defined, in permitting a federal serviceman *73 to designate the beneficiary of his insurance policy. Both of these federal interests supported the rejection of the estranged wife's claim in Wissner. A careful examination of this case, however, demonstrates that neither of these interests is compromised by the decision of the Maine Supreme Judicial Court. I Since the alleged conflict with the exemption provision is more obvious in this case, and concerns a more substantial federal interest, I address it first. The statute provides: "Payments of benefits due or to become due under Servicemen's Group Life Insurance or Veterans' Group Life Insurance made to, or on account of, a beneficiary shall be exempt from taxation, shall be exempt from the claims of creditors, and shall not be liable to attachment, levy, or seizure by or under any legal or equitable process whatever, either before or after receipt by the beneficiary." 38 U.S. C. 770(g). This provision prohibits a commercial creditor from securing insurance proceeds in the hands of the beneficiary, regardless *74 of any contrary agreement made by the insured or any terms of state law. Although the majority concludes that this provision also prohibits
|
Justice Stevens
| 1,981 | 16 |
second_dissenting
|
Ridgway v. Ridgway
|
https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/
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law. Although the majority concludes that this provision also prohibits the state court from recognizing respondents' claim in this case, ante, at 60, it is most unlikely that Congress intended 770(g) to operate as a bar to claims advanced by an insured's dependents for support. The language used in the "anti-attachment" provision of the SGLIA is comparable to that found in so-called "spendthrift clauses" that have protected trust beneficiaries from the claims of commercial creditors for centuries.[6] As stated by Dean Griswold, "[i]t is widely held, however, that even where such trusts are generally valid, the interest of the beneficiary may be reached for the support of his wife or children, or for the payment of alimony to his wife." E. Griswold, Spendthrift Trusts 389 (2d ed. 1947).[7] Prior to the decision of this Court in Wissner, a number of courts had held that statutory "spendthrift" provisions did not bar a claim for alimony or support.[8] Many of these cases in fact *75 concerned exemption provisions applicable to veterans' benefits programs. As summarized in one treatise: "And claims for the support and care of minor children of an incompetent veteran have been held not to be subject to the exemption, as the obligation of a father to support his minor children is not a debt within the meaning of the statute, but is an obligation growing out of the parental status and public policy." R. Kimbrough & J. Glen, American Law of Veterans 32 (2d ed. 1954).[9] A thoughtful and expansive opinion of Justice Rutledge, then a member of the United States Court of Appeals for the District of Columbia, best explains the rationale of these decisions. In the court considered a claim for arrears in alimony payments. Plaintiff sought sequestration of her former husband's property, including $100 per month that he received as disability benefit payments under the Life Insurance Act for the District of Columbia. Defendant responded that these payments were exempted specifically from process under the express language of 16(a) of that federal statute.[10] *76 The court in Schlaefer stated that "[t]he basic issue boils down to whether Congress intended to relieve the disabled insured to the extent of his disability payments from legally enforceable obligation to support his family and those legally dependent upon him." The court recognized: "So far as general creditors are concerned the purpose is clear, with the exceptions stated, to make the disposition of these funds a matter solely for his judgment. Congress regarded it as better for the creditors to go unpaid than to deprive the debtor and his dependents of
|
Justice Stevens
| 1,981 | 16 |
second_dissenting
|
Ridgway v. Ridgway
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https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/
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unpaid than to deprive the debtor and his dependents of this means of support when earning capacity would be cut off. Hence it used broad language prohibiting recourse to the fund by legal process." The court determined, however, that the insured's legal dependents were not to be classified, for purposes of the statute, "with strangers holding claims hostile to his interest." The court noted that "the usual purpose of exemptions is to relieve the person exempted from the pressure of claims hostile to his dependents' essential needs as well as his own personal ones, not to relieve him of familial obligations and destroy what may be the family's last and only security, short of public relief." The court concluded that this construction was "not inconsistent with giving full effect to the statute." As explained by the court: "The protection remaining is broad, applying both to `debts' and to `liabilities.' Furthermore, it renders the *77 statute consistent with others which provide methods for enforcement of the husband's and the father's duty of support. Any other would nullify them in circumstances where the disability payments constitute the sole source of livelihood, though they might be adequate to support the insured and all his dependents in luxury. We cannot believe that Congress intended to create an exemption so broad and so inconsistent with the policy which it has declared in other acts." The court further noted that its construction of the exemption statute was consistent with other authorities, which had held that a claim for support was not a "debt" or a "liability" in the ordinary usages of those terms.[11] In Wissner, the Court did not repudiate this distinction between family and business obligations. Rather, in ruling that the exemption statute was applicable in that case, the Court expressly recognized this distinction and placed the estranged wife's community property claim in the business category. As stated by the Court, "we must note that the community property principle rests upon something more than the moral obligation of supporting spouse and children: the business relationship of man and wife for their mutual monetary profit."[12] As a result, it simply cannot *78 be said that Wissner commands that an exemption statute such as that present in this case stands as a bar to claims based on familial obligations. Although Wissner left open the question presented in this case, there is nothing in the language of the SGLIA or its legislative history that evidences an intent by Congress to repudiate this distinction between commercial and family obligations.[13] The federal interest incorporated within exemption statutes is an interest
|
Justice Stevens
| 1,981 | 16 |
second_dissenting
|
Ridgway v. Ridgway
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https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/
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The federal interest incorporated within exemption statutes is an interest in preventing federally supported benefits from satisfying claims of commercial creditors. *79 Although such claims are certainly valid, they arise solely from a personal obligation of the debtor, and should not be borne by the public through payment from general revenues. Claims based on familial obligation, however, are of a different character, and indeed may be precisely the type of claim for which the federal benefit was intended.[14] Absent some indication that Congress intended the standard exemption provision contained in the SGLIA to bar a minor child's claim for support, I am unwilling to conclude that this provision of the statute pre-empts the application of state law in this case. II When the exemption provision is put to one side, the only support for the Court's pre-emption holding is the statutory provision giving the serviceman the right to designate the beneficiary of his insurance policy.[15] In order to determine whether the decision of the Maine court has done "major damage" to the federal interests underlying this statutory provision, it is first appropriate to identify those federal interests precisely. The right to designate the beneficiary of an insurance policy is a common feature in insurance contracts. It surely is not a right that can be characterized as uniquely federal in any sense. Moreover, the mere fact that the right has its *80 source in a federal statute does not require that it be given a construction different from that given a comparable right created by state law or by private contract. As stated by this Court in "[t]he federal nature of the benefits does not by itself proscribe the entire field of state control." To be sure, the Court in Wissner speculated that "[p]ossession of government insurance, payable to the relative of his choice, might well directly enhance the morale of the serviceman." This interest in permitting a serviceman to designate the beneficiary of his insurance policy is not compromised in this case, however. It cannot be said that state law forces a distribution of the insurance proceeds that is inconsistent with the federal policy of permitting Sergeant Ridgway to choose his beneficiary. In a freely negotiated child custody and support settlement, Ridgway agreed to maintain his former wife as the beneficiary of the policy for the benefit of his minor children. Ridgway himself made that choice; the question presented in this case, therefore, is whether any provision of the statute espouses a federal interest in permitting him to change his beneficiary in derogation of an accepted obligation to provide support
|
Justice Stevens
| 1,981 | 16 |
second_dissenting
|
Ridgway v. Ridgway
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https://www.courtlistener.com/opinion/110578/ridgway-v-ridgway/
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beneficiary in derogation of an accepted obligation to provide support for his children. I can find no section of the statute that expresses such an interest. The result reached by the Court today surely cannot be justified by the need to maintain the "morale" of our Armed Forces. The history of the statutory provision defining the serviceman's right to designate his beneficiary supports the conclusion that 770(a) does not pre-empt state law in this case. Originally, servicemen could name as beneficiaries only those persons who fell within a limited, defined class.[16] At the *81 time Wissner was decided, servicemen could designate only a spouse, child, grandchild, parent, or sibling as a beneficiary of a National Service Life Insurance policy. The designation provision at issue in Wissner thus added support for the proposition that insurance proceeds were intended to benefit only immediate family members and dependents of the serviceman, and not any other party. When Congress enacted the SGLIA in 1965, however, it removed all limitations on eligible beneficiaries. Any person may be named as beneficiary of the policy, including a commercial creditor. Today, the Court gives priority to the claim of any such designated beneficiary. Thus, as a result of its decision, a loan shark, a camp follower, or a total stranger designated as beneficiary would have priority over claims of dependent family members, even though those claims were incorporated in a voluntary settlement agreement and an express judicial decree. This result simply was not possible at the time Wissner was decided. No federal interest justifies such an absolute and unqualified priority for the designated beneficiary.[17] *82 It is ironic that today's decision may harm federal interests in a more tangible way than that ascribed to the decision of the Maine Supreme Judicial Court. As a result of the holding today, a commitment to keep military insurance in effect for one's children is not legally binding. In the future, a serviceman in divorce negotiations may be forced to purchase new insurance from a private insurer in order to provide fair assurance that his support obligation will remain satisfied in the event of his death. For many servicemen, such private insurance may not be easy to obtain. Surely there is no federal interest in depreciating the value of this insurance. I respectfully dissent.
|
Justice Scalia
| 1,990 | 9 |
dissenting
|
Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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Today the Court establishes the constitutional principle that party membership is not a permissible factor in the dispensation of government jobs, except those jobs for the performance of which party affiliation is an "appropriate requirement." Ante, at 64. It is hard to say precisely (or even generally) what that exception means, but if there is any category of jobs for whose performance party affiliation is not an appropriate requirement, it is the job of being a judge, where *93 partisanship is not only unneeded but positively undesirable. It is, however, rare that a federal administration of one party will appoint a judge from another party. And it has always been rare. See Thus, the new principle that the Court today announces will be enforced by a corps of judges (the Members of this Court included) who overwhelmingly owe their office to its violation. Something must be wrong here, and I suggest it is the Court. The merit principle for government employment is probably the most favored in modern America, having been widely adopted by civil service legislation at both the state and federal levels. But there is another point of view, described in characteristically Jacksonian fashion by an eminent practitioner of the patronage system, George Washington Plunkitt of Tammany Hall: "I ain't up on sillygisms, but I can give you some arguments that nobody can answer. "First, this great and glorious country was built up by political parties; second, parties can't hold together if their workers don't get offices when they win; third, if the parties go to pieces, the government they built up must go to pieces, too; fourth, then there'll be hell to pay." W. Riordon, Plunkitt of Tammany Hall 13 (1963). It may well be that the Good Government Leagues of America were right, and that Plunkitt, James Michael Curley, and their ilk were wrong; but that is not entirely certain. As the merit principle has been extended and its effects increasingly felt; as the Boss Tweeds, the Tammany Halls, the Pendergast Machines, the Byrd Machines, and the Daley Machines have faded into history; we find that political leaders at all levels increasingly complain of the helplessness of elected government, unprotected by "party discipline," before the demands of small and cohesive interest groups. *94 The choice between patronage and the merit principleor, to be more realistic about it, the choice between the desirable mix of merit and patronage principles in widely varying federal, state, and local political contextsis not so clear that I would be prepared, as an original matter, to chisel a single, inflexible prescription into
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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an original matter, to chisel a single, inflexible prescription into the Constitution. Fourteen years ago, in the Court did that. was limited however, as was the later decision of to patronage firings, leaving it to state and federal legislatures to determine when and where political affiliation could be taken into account in hirings and promotions. Today the Court makes its constitutional civil service reform absolute, extending to all decisions regarding government employment. Because the First Amendment has never been thought to require this disposition, which may well have disastrous consequences for our political system, I dissent. I The restrictions that the Constitution places upon the government in its capacity as lawmaker, i. e., as the regulator of private conduct, are not the same as the restrictions that it places upon the government in its capacity as employer. We have recognized this in many contexts, with respect to many different constitutional guarantees. Private citizens perhaps cannot be prevented from wearing long hair, but policemen can. Private citizens cannot have their property searched without probable cause, but in many circumstances government employees can. ; Private citizens cannot be punished for refusing to provide the government information that may incriminate them, but government employees can be dismissed when the incriminating information that they refuse to provide relates to the performance of their jobs. With regard to freedom of speech in particular: Private citizens cannot be punished for speech of merely private concern, but government employees can be fired for that reason. Private citizens cannot be punished for partisan political activity, but federal and state employees can be dismissed and otherwise punished for that reason. Public ; Civil Service ; Once it is acknowledged that the Constitution's prohibition against laws "abridging the freedom of speech" does not apply to laws enacted in the government's capacity as employer in the same way that it does to laws enacted in the government's capacity as regulator of private conduct, it may sometimes be difficult to assess what employment practices are permissible and what are not. That seems to me not a difficult question, however, in the present context. The provisions of the Bill of Rights were designed to restrain transient majorities from impairing long-recognized personal liberties. They did not create by implication novel individual rights overturning accepted political norms. Thus, when a practice not expressly prohibited by the text of the Bill of Rights bears the endorsement of a long tradition of open, widespread, and unchallenged use that dates back to the beginning of the Republic, we have no proper basis for striking it down.[1] Such a
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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have no proper basis for striking it down.[1] Such a venerable and accepted tradition is not to *96 be laid on the examining table and scrutinized for its conformity to some abstract principle of First Amendment adjudication devised by this Court. To the contrary, such traditions are themselves the stuff out of which the Court's principles are to be formed. They are, in these uncertain areas, the very points of reference by which the legitimacy or illegitimacy of other practices is to be figured out. When it appears that the latest "rule," or "three-part test," or "balancing test" devised by the Court has placed us on a collision course with such a landmark practice, it is the former that must be recalculated by us, and not the latter that must be abandoned by our citizens. I know of no other way to formulate a constitutional jurisprudence that reflects, as it should, the principles adhered to, over time, by the American people, rather than those favored by the personal (and necessarily shifting) philosophical dispositions of a majority of this Court. I will not describe at length the claim of patronage to landmark status as one of our accepted political traditions. Justice Powell discussed it in his dissenting opinions in and ; Suffice it to say that patronage was, without any thought that it could be unconstitutional, a basis for government employment from the earliest days of the Republic until and has continued unabated since to the extent still permitted by that unfortunate decision. See, e. g., D. Price, Bringing Back the Parties 24, 32 (194); Gardner, A Theory of the Spoils System, 54 Public Choice 171, 11 ; Toinet & Glenn, Clientelism and Corruption in the "Open" Society: The Case of the United States, in Private Patronage and Public Power 193, 202 (C. Clapham ed. *97 192). Given that unbroken tradition regarding the application of an ambiguous constitutional text, there was in my view no basis for holding that patronage-based dismissals violated the First Amendmentmuch less for holding, as the Court does today, that even patronage hiring does so.[2] II Even accepting the Court's own mode of analysis, however, and engaging in "balancing" a tradition that ought to be part of the scales, and today's extension of them seem to me wrong. A The Court limits patronage on the ground that the individual's interest in uncoerced belief and expression outweighs the systemic interests invoked to justify the practice. Ante, *9 at 6-72. The opinion indicates that the government may prevail only if it proves that the practice is "narrowly tailored to
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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if it proves that the practice is "narrowly tailored to further vital government interests." Ante, at 74. That strict-scrutiny standard finds no support in our cases. Although our decisions establish that government employees do not lose all constitutional rights, we have consistently applied a lower level of scrutiny when "the governmental function operating [is] not the power to regulate or license, as lawmaker, an entire trade or profession, or to control an entire branch of private business, but, rather, as proprietor, to manage [its] internal operatio[ns]" Cafeteria & Restaurant When dealing with its own employees, the government may not act in a manner that is "patently arbitrary or discriminatory," but its regulations are valid if they bear a "rational connection" to the governmental end sought to be served, 425 U. S., at In particular, restrictions on speech by public employees are not judged by the test applicable to similar restrictions on speech by nonemployees. We have said that "[a] governmental employer may subject its employees to such special restrictions on free expression as are reasonably necessary to promote effective government." In Public 330 U. S., at upholding provisions of the Hatch Act which prohibit political activities by federal employees, we said that "it is not necessary that the act regulated be anything more than an act reasonably deemed by Congress to interfere with the efficiency of the public service." We reaffirmed in Civil Service 413 U. S., at over a dissent by Justice Douglas arguing against application of a special standard to Government employees, except insofar as their "job performance" is concerned, We did not say that the Hatch Act was narrowly tailored to meet *99 the government's interest, but merely deferred to the judgment of Congress, which we were not "in any position to dispute." Indeed, we recognized that the Act was not indispensably necessary to achieve those ends, since we repeatedly noted that "Congress at some time [may] come to a different view." ; see also In we upheld similar restrictions on state employees, though directed "at political expression which if engaged in by private persons would plainly be protected by the First and Fourteenth Amendments," To the same effect are cases that specifically concern adverse employment action taken against public employees because of their speech. In we recognized: "[T]he State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general. The problem in any case is to arrive at a balance between the interests of the
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
|
to arrive at a balance between the interests of the [employee], as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees." Because the restriction on speech is more attenuated when the government conditions employment than when it imposes criminal penalties, and because "government offices could not function if every employment decision became a constitutional matter," we have held that government employment decisions taken on the basis of an employee's speech do not "abridg[e] the freedom of speech," U. S. Const., Amdt. 1, merely because they fail *100 the narrow-tailoring and compelling-interest tests applicable to direct regulation of speech. We have not subjected such decisions to strict scrutiny, but have accorded "a wide degree of deference to the employer's judgment" that an employee's speech will interfere with close working When the government takes adverse action against an employee on the basis of his political affiliation (an interest whose constitutional protection is derived from the interest in speech), the same analysis applies. That is why both the and the opinion concurring in the judgment, as well as -515, and the Court today, ante, at 72, rely on a case that applied the test announced in Pickering, not the strict-scrutiny test applied to restrictions imposed on the public at large. Since the government may dismiss an employee for political speech "reasonably deemed by Congress to interfere with the efficiency of the public service," Public at it follows, a fortiori, that the government may dismiss an employee for political affiliation if "reasonably necessary to promote effective government." at While it is clear from the above cases that the normal "strict scrutiny" that we accord to government regulation of speech is not applicable in this field,[3] the precise test that replaces * it is not so clear; we have used various formulations. The one that appears in the case dealing with an employment practice closest in its effects to patronage is whether the *102 practice could be "reasonably deemed" by the enacting legislature to further a legitimate goal. Public 330 U. S., at For purposes of my ensuing discussion, however, I will apply a less permissive standard that seems more in accord with our general "balancing" test: Can the governmental advantages of this employment practice reasonably be deemed to outweigh its "coercive" effects? B Preliminarily, I may observe that the Court today not only declines, in this area replete with constitutional ambiguities, to give the clear and continuing tradition of our people the
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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give the clear and continuing tradition of our people the dispositive effect I think it deserves, but even declines to give it substantial weight in the balancing. That is contrary to what the Court has done in many other contexts. In evaluating *103 so-called "substantive due process" claims we have examined our history and tradition with respect to the asserted right. See, e. g., Michael ; In evaluating claims that a particular procedure violates the Due Process Clause we have asked whether the procedure is traditional. See, e. g., And in applying the Fourth Amendment's reasonableness test we have looked to the history of judicial and public acceptance of the type of search in question. See, e. g., See also Press-Enterprise ; Richmond Newspapers, 44 U.S. 555, 59 ("Such a tradition [of public access] commands respect in part because the Constitution carries the gloss of history"); 67 But even laying tradition entirely aside, it seems to me our balancing test is amply met. I assume, as the Court's opinion assumes, that the balancing is to be done on a generalized basis, and not case by case. The Court holds that the governmental benefits of patronage cannot reasonably be thought to outweigh its "coercive" effects (even the lesser "coercive" effects of patronage hiring as opposed to patronage firing) not merely in 1990 in the State of Illinois, but at any time in any of the numerous political subdivisions of this vast country. It seems to me that that categorical pronouncement reflects a naive vision of politics and an inadequate appreciation of the systemic effects of patronage in promoting political stability *104 and facilitating the social and political integration of previously powerless groups. The whole point of my dissent is that the desirability of patronage is a policy question to be decided by the people's representatives; I do not mean, therefore, to endorse that system. But in order to demonstrate that a legislature could reasonably determine that its benefits outweigh its "coercive" effects, I must describe those benefits as the proponents of patronage see them: As Justice Powell discussed at length in his dissent, patronage stabilizes political parties and prevents excessive political fragmentationboth of which are results in which States have a strong governmental interest. Party strength requires the efforts of the rank and file, especially in "the dull periods between elections," to perform such tasks as organizing precincts, registering new voters, and providing services. 427 U. S., at 35 Even the most enthusiastic supporter of a party's program will shrink before such drudgery, and it is folly to think that ideological
|
Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
|
such drudgery, and it is folly to think that ideological conviction alone will motivate sufficient numbers to keep the party going through the off years. "For the most part, as every politician knows, the hope of some reward generates a major portion of the local political activity supporting parties." Here is the judgment of one such politician, Jacob Arvey (best known as the promoter of Adlai Stevenson): Patronage is "`a necessary evil if you want a strong organization, because the patronage system permits of discipline, and without discipline, there's no party organization.'" Quoted in M. Tolchin & S. Tolchin, To the Victor 36 (1971). A major study of the patronage system describes the reality as follows: "[A]lthough men have many motives for entering political life the vast underpinning of both major parties is made up of men who seek practical rewards. Tangible advantages constitute the unifying thread of most successful political practitioners" *105 "With so little patronage cement, party discipline is relatively low; the rate of participation and amount of service the party can extract from [Montclair] county committeemen are minuscule compared with Cook County. The party considers itself lucky if 50 percent of its committeemen show up at meetingseven those labeled `urgent'while even lower percentages turn out at functions intended to produce crowds for visiting candidates." See also W. Grimshaw, The Political Economy of Machine Politics, 4 Corruption and Reform 15, 30 ; G. Pomper, Voters, Elections, and Parties 255 (19); Why Political Machines Have Not Withered Away and Other Revisionist Thoughts, 34 J. Politics 365, 34 The Court simply refuses to acknowledge the link between patronage and party discipline, and between that and party success. It relies (as did the in ) on a single study of a rural Pennsylvania county by Professor Sorauf, ante, at 75a work that has been described as "more persuasive about the ineffectuality of Democratic leaders in Centre County than about the generalizability of [its] findings." at 34, n. 39. It is unpersuasive to claim, as the Court does, that party workers are obsolete because campaigns are now conducted through media and other money-intensive means. Ante, at 75. Those techniques have supplemented but not supplanted personal contacts. See Price, Bringing Back the Parties, at 25. Certainly they have not made personal contacts unnecessary in campaigns for the lower level offices that are the foundations of party strength, nor have they replaced the myriad functions performed by party regulars not directly related to campaigning. And to the extent such techniques have replaced older methods of campaigning (partly in response to the limitations the Court
|
Justice Scalia
| 1,990 | 9 |
dissenting
|
Rutan v. Republican Party of Ill.
|
https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
|
of campaigning (partly in response to the limitations the Court has placed on patronage), the political system is not clearly better off. See at 34 ; 445 *106 U. S., at 52 Increased reliance on money-intensive campaign techniques tends to entrench those in power much more effectively than patronagebut without the attendant benefit of strengthening the party system. A challenger can more easily obtain the support of party workers (who can expect to be rewarded even if the candidate losesif not this year, then the next) than the financial support of political action committees (which will generally support incumbents, who are likely to prevail). It is self-evident that eliminating patronage will significantly undermine party discipline; and that as party discipline wanes, so will the strength of the two-party system. But, says the Court, "[p]olitical parties have already survived the substantial decline in patronage employment practices in this century." Ante, at 74. This is almost verbatim what was said in see Fourteen years later it seems much less convincing. Indeed, now that we have witnessed, in 1 of the last 22 years, an Executive Branch of the Federal Government under the control of one party while the Congress is entirely or (for two years) partially within the control of the other party; now that we have undergone the most recent federal election, in which 9% of the incumbents, of whatever party, were returned to office; and now that we have seen elected officials changing their political affiliation with unprecedented readiness, Washington Post, Apr. 10, 1990, p. A1, the statement that "political parties have already survived" has a positively whistling-in-the-graveyard character to it. Parties have assuredly survivedbut as what? As the forges upon which many of the essential compromises of American political life are hammered out? Or merely as convenient vehicles for the conducting of national Presidential elections? The patronage system does not, of course, merely foster political parties in general; it fosters the two-party system in particular. When getting a job, as opposed to effectuating a particular substantive policy, is an available incentive for *107 party workers, those attracted by that incentive are likely to work for the party that has the best chance of displacing the "ins," rather than for some splinter group that has a more attractive political philosophy but little hope of success. Not only is a two-party system more likely to emerge, but the differences between those parties are more likely to be moderated, as each has a relatively greater interest in appealing to a majority of the electorate and a relatively lesser interest in furthering philosophies
|
Justice Scalia
| 1,990 | 9 |
dissenting
|
Rutan v. Republican Party of Ill.
|
https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
|
the electorate and a relatively lesser interest in furthering philosophies or programs that are far from the mainstream. The stabilizing effects of such a system are obvious. See Toinet & Glenn, Clientelism and Corruption in the "Open" Society, at 20. In the context of electoral laws we have approved the States' pursuit of such stability, and their avoidance of the "splintered parties and unrestrained factionalism [that] may do significant damage to the fabric of government." Equally apparent is the relatively destabilizing nature of a system in which candidates cannot rely upon patronage-based party loyalty for their campaign support, but must attract workers and raise funds by appealing to various interest groups. See Tolchin & Tolchin, To the Victor, at 127-130. There is little doubt that our decisions in and by contributing to the decline of party strength, have also contributed to the growth of interest-group politics in the last decade. See, e. g., Fitts, The Vice of Virtue, (19). Our decision today will greatly accelerate the trend. It is not only campaigns that are affected, of course, but the subsequent behavior of politicians once they are in power. The replacement of a system firmly in party discipline with one in which each officeholder comes to his own accommodation with competing interest groups produces "a dispersion of political influence that may inhibit a *10 political party from enacting its programs into law."[4] Patronage, moreover, has been a powerful means of achieving the social and political integration of excluded groups. See, e. g., ; Cornwell, Bosses, Machines and Ethnic Politics, in Ethnic Group Politics 190, 195-197 (H. Bailey, Jr., & E. Katz eds. 1969). By supporting and ultimately dominating a particular party "machine," racial and ethnic minorities have on the basis of their politics rather than their race or ethnicity acquired the patronage awards the machine had power to confer. No one disputes the historical accuracy of this observation, and there is no reason to think that patronage can no longer serve that function. The abolition of patronage, however, prevents groups that have only recently obtained political power, especially blacks, from following this path to economic and social advancement. "`Every ethnic group that has achieved political power in American cities has used the bureaucracy to provide jobs in return for political support. It's only when Blacks begin to play the same game that the rules get changed. Now the use of such jobs to build political bases becomes an "evil" activity, and the city insists on taking the control back "downtown."'" New York Amsterdam News, Apr. 1, 197, p. A-4, quoted in
|
Justice Scalia
| 1,990 | 9 |
dissenting
|
Rutan v. Republican Party of Ill.
|
https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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York Amsterdam News, Apr. 1, 197, p. A-4, quoted in Hamilton, The Patron-Recipient Relationship and Minority Politics in New York City, 94 Pol. Sci. Q. 211, 212 (1979). While the patronage system has the benefits argued for above, it also has undoubted disadvantages. It facilitates financial corruption, such as salary kickbacks and partisan political activity on government-paid time. It reduces the efficiency *109 of government, because it creates incentives to hire more and less qualified workers and because highly qualified workers are reluctant to accept jobs that may only last until the next election. And, of course, it applies some greater or lesser inducement for individuals to join and work for the party in power. To hear the Court tell it, this last is the greatest evil. That is not my view, and it has not historically been the view of the American people. Corruption and inefficiency, rather than abridgment of liberty, have been the major criticisms leading to enactment of the civil service lawsfor the very good reason that the patronage system does not have as harsh an effect upon conscience, expression, and association as the Court suggests. As described above, it is the nature of the pragmatic, patronage-based, two-party system to build alliances and to suppress rather than foster ideological tests for participation in the division of political "spoils." What the patronage system ordinarily demands of the party worker is loyalty to, and activity on behalf of, the organization itself rather than a set of political beliefs. He is generally free to urge within the organization the adoption of any political position; but if that position is rejected he must vote and work for the party nonetheless. The diversity of political expression (other than expression of party loyalty) is channeled, in other words, to a different stageto the contests for party endorsement rather than the partisan elections. It is undeniable, of course, that the patronage system entails some constraint upon the expression of views, particularly at the partisan-election stage, and considerable constraint upon the employee's right to associate with the other party. It greatly exaggerates these, however, to describe them as a general "`coercion of belief,'" ante, at 71, quoting ; see also ante, at 75; Indeed, it greatly exaggerates them to call them "coercion" at all, since we generally make a distinction between inducement and compulsion. The public official *110 offered a bribe is not "coerced" to violate the law, and the private citizen offered a patronage job is not "coerced" to work for the party. In sum, I do not deny that the patronage system influences
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Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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sum, I do not deny that the patronage system influences or redirects, perhaps to a substantial degree, individual political expression and political association. But like the many generations of Americans that have preceded us, I do not consider that a significant impairment of free speech or free association. In emphasizing the advantages and minimizing the disadvantages (or at least minimizing one of the disadvantages) of the patronage system, I do not mean to suggest that that system is best. It may not always be; it may never be. To oppose our - jurisprudence, one need not believe that the patronage system is necessarily desirable; nor even that it is always and everywhere arguably desirable; but merely that it is a political arrangement that may sometimes be a reasonable choice, and should therefore be left to the judgment of the people's elected representatives. The choice in question, I emphasize, is not just between patronage and a merit-based civil service, but rather among various combinations of the two that may suit different political units and different eras: permitting patronage hiring, for example, but prohibiting patronage dismissal; permitting patronage in most municipal agencies but prohibiting it in the police department; or permitting it in the mayor's office but prohibiting it everywhere else. I find it impossible to say that, always and everywhere, all of these choices fail our "balancing" test. C The last point explains why and should be overruled, rather than merely not extended. Even in the field of constitutional adjudication, where the pull of stare decisis is at its weakest, see Glidden one is reluctant to depart from precedent. But when that precedent is not only wrong, not only recent, not only contradicted by a long prior *111 tradition, but also has proved unworkable in practice, then all reluctance ought to disappear. In my view that is the situation here. Though unwilling to leave it to the political process to draw the line between desirable and undesirable patronage, the Court has neither been prepared to rule that no such line exists (i. e., that all patronage is unconstitutional) nor able to design the line itself in a manner that judges, lawyers, and public employees can understand. allowed patronage dismissals of persons in "policymaking" or "confidential" positions. ; retreated from that formulation, asking instead "whether the hiring authority can demonstrate that party affiliation is an appropriate requirement for the effective performance of the public office involved." 445 U.S., at 51. What that means is anybody's guess. The Courts of Appeals have devised various tests for determining when "affiliation is an appropriate requirement."
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Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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various tests for determining when "affiliation is an appropriate requirement." See generally Martin, A Decade of Decisions: A Government Officials' Guide to Patronage Dismissals, These interpretations of are not only significantly at variance with each other; they are still so general that for most positions it is impossible to know whether party affiliation is a permissible requirement until a court renders its decision. A few examples will illustrate the shambles has produced. A city cannot fire a deputy sheriff because of his political affiliation,[5] but then again perhaps it can,[6] especially if he is called the "police captain."[7] A county cannot fire on that basis its attorney for the department of social *112 services,[] nor its assistant attorney for family court,[9] but a city can fire its solicitor and his assistants,[10] or its assistant city attorney,[11] or its assistant state's attorney,[12] or its corporation counsel.[13] A city cannot discharge its deputy court clerk for his political affiliation,[14] but it can fire its legal assistant to the clerk on that basis.[15] Firing a juvenile court bailiff seems impermissible,[16] but it may be permissible if he is assigned permanently to a single judge.[17] A city cannot fire on partisan grounds its director of roads,[1] but it can fire the second in command of the water department.[19] A government cannot discharge for political reasons the senior vice president of its development bank,[20] but it can discharge the regional director of its rural housing administration.[21] The examples could be multiplied, but this summary should make obvious that the "tests" devised to implement have produced inconsistent and unpredictable results. That uncertainty undermines the purpose of both the nonpatronage *113 rule and the exception. The rule achieves its objective of preventing the "coercion" of political affiliation, see only if the employee is confident that he can engage in (or refrain from) political activities without risking dismissal. Since the current doctrine leaves many employees utterly in the dark about whether their jobs are protected, they are likely to play it safe. On the other side, the exception was designed to permit the government to implement its electoral mandate. But unless the government is fairly sure that dismissal is permitted, it will leave the politically uncongenial official in place, since an incorrect decision will expose it to lengthy litigation and a large damages award, perhaps even against the responsible officials personally. This uncertainty and confusion are not the result of the fact that and then chose the wrong "line." My point is that there is no right lineor at least no right line that can be nationally applied
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Justice Scalia
| 1,990 | 9 |
dissenting
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Rutan v. Republican Party of Ill.
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https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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at least no right line that can be nationally applied and that is known by judges. Once we reject as the criterion a long political tradition showing that party-based employment is entirely permissible, yet are unwilling (as any reasonable person must be) to replace it with the principle that party-based employment is entirely impermissible, we have left the realm of law and entered the domain of political science, seeking to ascertain when and where the undoubted benefits of political hiring and firing are worth its undoubted costs. The answer to that will vary from State to State, and indeed from city to city, even if one rejects out of hand (as the line does) the benefits associated with party stability. Indeed, the answer will even vary from year to year. During one period, for example, it may be desirable for the manager of a municipally owned public utility to be a career specialist, insulated from the political system. During another, when the efficient operation of that utility or even its very existence has become a burning political issue, it may be desirable that he be hired and fired on a political basis. The appropriate "mix" of party-based *114 employment is a political question if there ever was one, and we should give it back to the voters of the various political units to decide, through civil service legislation crafted to suit the time and place, which mix is best. III Even were I not convinced that and were wrongly decided, I would hold that they should not be extended beyond their facts, viz., actual discharge of employees for their political affiliation. Those cases invalidated patronage firing in order to prevent the "restraint it places on freedoms of belief and association." 427 U. S., ; see also The loss of one's current livelihood is an appreciably greater constraint than such other disappointments as the failure to obtain a promotion or selection for an uncongenial transfer. Even if the "coercive" effect of the former has been held always to outweigh the benefits of party-based employment decisions, the "coercive" effect of the latter should not be. We have drawn a line between firing and other employment decisions in other contexts, see 22-23 and should do so here as well. I would reject the alternative that the Seventh Circuit adopted in this case, which allows a cause of action if the employee can demonstrate that he was subjected to the "substantial equivalent of dismissal." 6 F.2d 943, The trouble with that seemingly reasonable standard is that it is so imprecise that it will multiply
|
Justice Scalia
| 1,990 | 9 |
dissenting
|
Rutan v. Republican Party of Ill.
|
https://www.courtlistener.com/opinion/112472/rutan-v-republican-party-of-ill/
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is that it is so imprecise that it will multiply yet again the harmful uncertainty and litigation that has already created. If and are not to be reconsidered in light of their demonstrably unsatisfactory consequences, I would go no further than to allow a cause of action when the employee has lost his position, that is, his formal title and salary. That narrow ground alone is enough to resolve the constitutional *115 claims in the present case. Since none of the plaintiffs has alleged loss of his position because of affiliation,[22] I would affirm the Seventh Circuit's judgment insofar as it affirmed the dismissal of petitioner Moore's claim and would reverse the Seventh Circuit's judgment insofar as it reversed the dismissal of the claims of other petitioners and of cross-respondents. The Court's opinion, of course, not only declines to confine and to dismissals in the narrow sense I have proposed, but, unlike the Seventh Circuit, even extends those opinions beyond "constructive" dismissalsindeed, even beyond adverse treatment of current employeesto all hiring decisions. In the long run there may be cause to rejoice in that extension. When the courts are flooded with litigation under that most unmanageable of standards () brought by that most persistent and tenacious of suitors (the disappointed officeseeker) we may be moved to reconsider our intrusion into this entire field. In the meantime, I dissent.
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Justice O'Connor
| 1,988 | 14 |
dissenting
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Hicks v. Feiock
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https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
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This case concerns a contempt proceeding against a parent who repeatedly failed to comply with a valid court order to make child support payments. In my view, the proceeding is civil as a matter of federal law. Therefore, the Due Process Clause of the Fourteenth Amendment does not prevent the trial court from applying a legislative presumption that the parent remained capable of complying with the order until the time of the contempt proceeding. *642 I The facts of this case illustrate how difficult it can be to obtain even modest amounts of child support from a noncustodial parent. Alta Sue Adams married respondent Phillip William Feiock in 1968. The couple resided in California and had three children. In 1973, respondent left the family. Mrs. Feiock filed a petition in the Superior Court of California for the County of Orange seeking dissolution of her marriage, legal custody of the children, and child support. In January 1976, the court entered an interlocutory judgment of dissolution of marriage, awarded custody of the children to Mrs. Feiock, and ordered respondent to pay child support beginning February 1, 1976. The court ordered respondent to pay $35 per child per month for the first four months, and $75 per child per month starting June 1, 1976. The order has never been modified. After the court entered a final judgment of dissolution of marriage, Mrs. Feiock and the children moved to Respondent made child support payments only sporadically and stopped making any payments by December 1982. Pursuant to 's enactment of the Uniform Reciprocal Enforcement of Support Act (URESA), Mrs. Feiock filed a complaint in the Court of Common Pleas of Stark County, See (B) (1980). The complaint recited that respondent was obliged to pay $225 per month in support, and that respondent was $2,300 in arrears. The court transmitted the complaint and supporting documents to to the Superior Court of California for the County of Orange, which had jurisdiction over respondent. Petitioner, the Orange County District Attorney, prosecuted the case on behalf of Mrs. Feiock in accordance with California's version of URESA. See Cal. Civ. Proc. Code Ann. 0 et seq. (West 1982). After obtaining several continuances, respondent finally appeared at a hearing before the California court on June 22, 1984. Respondent explained that he had recently become a *643 partner in a flower business that had uncertain prospects. The court ordered respondent to pay $150 per month on a temporary basis, although it did not alter the underlying Payments were to begin July 1, 1984. Respondent made payments only for August and September. Respondent
|
Justice O'Connor
| 1,988 | 14 |
dissenting
|
Hicks v. Feiock
|
https://www.courtlistener.com/opinion/112045/hicks-v-feiock/
|
1984. Respondent made payments only for August and September. Respondent appeared in court three times thereafter, but never asked for a modification of the Eventually, the Orange County District Attorney filed Orders to Show Cause and Declarations of Contempt alleging nine counts of contempt based on respondent's failure to make nine of the $150 support payments. At a hearing held August 9, 1985, the District Attorney invoked Cal. Civ. Proc. Code Ann. 1209.5 (West 1982), which says: "When a court of competent jurisdiction makes an order compelling a parent to furnish support for his child, proof that the parent was present in court at the time the order was pronounced and proof of noncompliance therewith shall be prima facie evidence of a contempt of court." In an effort to overcome this presumption, respondent testified regarding his ability to pay at the time of each alleged act of contempt. The court found that respondent had been able to pay five of the missed payments. Accordingly, the court found respondent in contempt on five of the nine counts and sentenced him to 5 days in jail on each count, to be served consecutively, for a total of 25 days. The court suspended execution of the sentence and placed respondent on three years' informal probation on the conditions that he make monthly support payments of $150 starting immediately and additional payments of $50 per month on the arrearage starting October 1, 1985. Respondent filed a petition for a writ of habeas corpus in the California Court of Appeal, where he prevailed on his argument that 1209.5 is unconstitutional as a mandatory presumption shifting to the defendant the burden of proof of an element of a criminal offense. That is the argument that the *644 Court confronts in this case. In my view, no remand is necessary because the judgment below is incorrect as a matter of federal law. II The California Court of Appeal has erected a substantial obstacle to the enforcement of child support orders. As petitioner vividly describes it, the judgment turns the child support order into "a worthless piece of scrap." Brief for Petitioner 47. The judgment hampers the enforcement of support orders at a time when strengthened enforcement is needed. "The failure of enforcement efforts in this area has become a national scandal. In 1983, only half of custodial parents received the full amount of child support ordered; approximately 26% received some lesser amount, and 24% received nothing at all." Brief for Women's Legal Defense Fund et al. as Amici Curiae 26 (footnote omitted). The facts of this case
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